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Paul Merrell

DOJ Seeks Removal Of Restrictions On Computer Search Warrants - 0 views

www.mintpressnews.com/...190535

surveillance state digital-privacy remote-computer-search 4th Amendment

shared by Paul Merrell on 13 May 14 - No Cached
  • The Justice Department recently submitted proposed new rules on the procedures and practices of the department’s agencies and bureaus. Among the suggested changes is a modification of the Federal Rules of Criminal Procedure Rule 41(b), which empowers a federal court to issue a warrant allowing the federal government to conduct a search of a computer or computer network involved in a criminal investigation. Under current regulations, a warrant issued by a federal court is only valid in that court’s district. As there are 94 federal judicial districts, investigating a widespread attack may require either petitioning dozens of district courts or acting extrajudicially by not seeking a warrant. An extrajudicial investigation, however, cannot be used if criminal convictions are sought, as evidence gathered in this manner is not typically admissible in court. The Justice Department is seeking to make remote access warrants to search, seize and copy electronic information valid for all federal districts.
  • The Justice Department argues that due to the sophistication of cyber-criminals, an offending computer or computer cluster can sit in a district separate from the district where the hackers that infected the target computer anonymously are and separate from the investigators’ district. “Criminals are using multiple computers in many districts simultaneously as part of complex criminal schemes, and effectively investigating and disrupting these schemes often requires remote access to Internet-connected computers in many different districts,” wrote then-acting Assistant Attorney General Mythili Raman in a September letter to the Advisory Committee on the Criminal Rules. “Botnets are a significant threat to the public: they are used to conduct large-scale denial of service attacks, steal personal and financial data, and distribute malware designed to invade the privacy of users of the host computers,” Raman continued. In the letter, Raman cited an investigation of a child porn site that uses The Onion Router Network, or Tor, to anonymize its traffic. The Justice Department argues that it knows the site’s hosting server location, but without a warrant local to the server, the department is prevented from retrieving the server’s user records — including IP and MAC addresses. In most cases, however, law enforcement do not know the physical location of the site’s server, making it impossible to request a specific warrant.
  • In these cases, the Justice Department could request a blanket warrant. This would allow the department to set up a “zero-day” attack on the server — an attack exploiting a manufacturer-unknown or -permitted security flaw, allowing access to the system’s operating software. However, a Texas judge denied the FBI access to such a warrant, saying the Justice Department’s use of “zero-day” attacks in its investigation exposes the public and the target to unknown risks. One typical type of a “zero-day” attack is an infected email that could affect a large number of innocent people if the target used a public computer to access his email. The FBI planned to install a Remote Administration Tool, or RAT, which would distribute such emails in a partially-targeted spam mail distribution. Last year, Federal Magistrate Judge Stephen Smith of the Houston Division of the Southern District of Texas ruled that this was a gross overreach of investigatory intrusion, blocking the plan temporarily. A “zero-day” attack has the potential to activate and control the targeted computer’s peripherals, such as webcams and microphones.
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  • Following this ruling, based on the assumptions that federal law enforcement fundamentally act in good faith and that there may be a legitimate need for remote exploitation of computer data, the Justice Department sought to introduce changes to the rules that would overcome Smith’s objections. The proposed change to Rule 41(b) would allow magistrate judges “… to issue a warrant to use remote access to search electronic storage media and to seize electronically stored information located within or outside that district.” The Justice Department has indicated that it wants warrants permitting multiple computers to be searched at the same time, as well as permission to search all of the email and social media accounts accessible from a single computer. Such access would constitute a violation of the Electronic Communications Privacy Act, as the government, under the act, must make demonstrate probable cause to each targeted service provider and obtain and serve a warrant for each service provider. A warrant to search every account active on a computer would be actively bypassing the act’s numerous safeguards.
  • Privacy advocates fear that this rule change would allow prosecutors and the Justice Department to seek out magistrates likely to give them their requested warrants, creating a situation in which the federal government could have a “warrant shop” with just one judge for the whole of the nation. In light of allegations of federal government over-policing — including revelations of aggressive domestic and international electronic spying by the FBI and the National Security Agency — many advocates argue that an examination of the federal government’s commitment to the Fourth Amendment is needed. “The proposed amendment would significantly expand the government’s authority to conduct remote searches of electronic storage media,” the American Civil Liberties Union wrote in a memorandum early last month. “It would also expand the government’s power to engage in computer hacking in the course of criminal investigations, including through the use of malware and other techniques that pose a risk to internet security and that raise Fourth Amendment and policy concerns. “In light of these concerns, the ACLU recommends that the Advisory Committee exercise extreme caution before granting the government new authority to remotely search individuals’ electronic data.” The rules are scheduled to be discussed at the meeting of the Judiciary’s Committee on Rules of Practice and Procedure later this month.
  • Paul Merrell on 13 May 14
     
    The proposed rule change is at pp. 499-501 here. http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Standing/ST2014-05.pdf#page499 (very large PDF).  This is not just about the government being granted permission to exploit vulnerabilities unknown to the computer owner; the issue arose in a case where the government sought judicial permission to implant a Trojan Horse in a suspect's computer. Moreover, the proposed rule goes far beyond the confines of that case, purporting to authorize the government to skip merrily along searching computers not specified in the warrant, along the purported botnet. To put the icing on the cake, the government wants to be relieved from the requirement that they apply for a warrant in the district in which the computer to be searched is located. ("Oh, Goody! Let's start shopping around for the judges we like instead of the ones we are now required to persuade. What? The Mississippi judge refused to sign the warrant? Oh well, let's try it with that other judge we like, the one in Gnome, Alaska.") In other words, what the government seeks is authority for "general warrants," the very evil that the 4th Amendment was designed to outlaw. Even more outrageously, the proposed rule provides in part: "For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant on the person whose property *was* searched or whose information *was* seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person." Not the use of the past tense "was." So after they have drained your computer of all its data, they may permissibly install a batch file that will display a copy of the warrant on your monitor the next time you boot your computer. With a big red lipstick imprint of a kiss imprinted in the warrant's bottom margin, no doubt
  • Paul Merrell on 13 May 14
     
    The proposed rule change is at pp. 499-501 here. http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Standing/ST2014-05.pdf#page499 (very large PDF).  This is not just about the government being granted permission to exploit vulnerabilities unknown to the computer owner; the issue arose in a case where the government sought judicial permission to implant a Trojan Horse in a suspect's computer. Moreover, the proposed rule goes far beyond the confines of that case, purporting to authorize the government to skip merrily along searching computers not specified in the warrant, along the purported botnet. To put the icing on the cake, the government wants to be relieved from the requirement that they apply for a warrant in the district in which the computer to be searched is located. In other words, what the government seeks is authority for "general warrants," the very evil that the 4th Amendment was designed to outlaw. Even more outrageously, the proposed rule provides in part: "For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant on the person whose property *was* searched or whose information *was* seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person." Not the use of the past tense "was." So after they have drained your computer of all its data, they may permissibly install a batch file that will display a copy of the warrant on your monitor the next time you boot your computer. With a big red lipstick imprint of a kiss imprinted at the bottom.  To be continued after this is intially posted to Diigo so the content isn't cut off.   
Paul Merrell

DOJ Pushes to Expand Hacking Abilities Against Cyber-Criminals - Law Blog - WSJ - 0 views

blogs.wsj.com/...lities-against-cyber-criminals

surveillance state DoJ government-malware criminal-procedure

shared by Paul Merrell on 29 Mar 14 - No Cached
  • The U.S. Department of Justice is pushing to make it easier for law enforcement to get warrants to hack into the computers of criminal suspects across the country. The move, which would alter federal court rules governing search warrants, comes amid increases in cases related to computer crimes. Investigators say they need more flexibility to get warrants to allow hacking in such cases, especially when multiple computers are involved or the government doesn’t know where the suspect’s computer is physically located. The Justice Department effort is raising questions among some technology advocates, who say the government should focus on fixing the holes in computer software that allow such hacking instead of exploiting them. Privacy advocates also warn government spyware could end up on innocent people’s computers if remote attacks are authorized against equipment whose ownership isn’t clear.
  • The government’s push for rule changes sheds light on law enforcement’s use of remote hacking techniques, which are being deployed more frequently but have been protected behind a veil of secrecy for years. In documents submitted by the government to the judicial system’s rule-making body this year, the government discussed using software to find suspected child pornographers who visited a U.S. site and concealed their identity using a strong anonymization tool called Tor. The government’s hacking tools—such as sending an email embedded with code that installs spying software — resemble those used by criminal hackers. The government doesn’t describe these methods as hacking, preferring instead to use terms like “remote access” and “network investigative techniques.” Right now, investigators who want to search property, including computers, generally need to get a warrant from a judge in the district where the property is located, according to federal court rules. In a computer investigation, that might not be possible, because criminals can hide behind anonymizing technologies. In cases involving botnets—groups of hijacked computers—investigators might also want to search many machines at once without getting that many warrants.
  • Some judges have already granted warrants in cases when authorities don’t know where the machine is. But at least one judge has denied an application in part because of the current rules. The department also wants warrants to be allowed for multiple computers at the same time, as well as for searches of many related storage, email and social media accounts at once, as long as those accounts are accessed by the computer being searched. “Remote searches of computers are often essential to the successful investigation” of computer crimes, Acting Assistant Attorney General Mythili Raman wrote in a letter to the judicial system’s rulemaking authority requesting the change in September. The government tries to obtain these “remote access warrants” mainly to “combat Internet anonymizing techniques,” the department said in a memo to the authority in March. Some groups have raised questions about law enforcement’s use of hacking technologies, arguing that such tools mean the government is failing to help fix software problems exploited by criminals. “It is crucial that we have a robust public debate about how the Fourth Amendment and federal law should limit the government’s use of malware and spyware within the U.S.,” said Nathan Wessler, a staff attorney at the American Civil Liberties Union who focuses on technology issues.
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  • A Texas judge who denied a warrant application last year cited privacy concerns associated with sending malware when the location of the computer wasn’t known. He pointed out that a suspect opening an email infected with spyware could be doing so on a public computer, creating risk of information being collected from innocent people. A former computer crimes prosecutor serving on an advisory committee of the U.S. Judicial Conference, which is reviewing the request, said he was concerned that allowing the search of multiple computers under a single warrant would violate the Fourth Amendment’s protections against overly broad searches. The proposed rule is set to be debated by the Judicial Conference’s Advisory Committee on Criminal Rules in early April, after which it would be opened to public comment.
Paul Merrell

Chicago federal court case raises questions about NSA surveillance - The Washington Post - 0 views

www.washingtonpost.com/...2-9df4-895344c13c30_print.html

surveillance state NSA FISA constitutional law

shared by Paul Merrell on 30 Jun 13 - No Cached
  • Four days before a sweeping government surveillance law was set to expire last year, Sen. Dianne Feinstein, the chairman of the chamber’s Intelligence Committee, took to the Senate floor. She touted the law’s value by listing some of the terrorist attacks it had helped thwart, including “a plot to bomb a downtown Chicago bar” that fall. “So I believe the FISA Amendments Act is important,” the California Democrat said before a vote to extend the 2008 law, “and these cases show the program has worked.”Today, however, the government is refusing to say whether that law was used to develop evidence to charge Adel Daoud, a 19-year-old Chicago man accused of the bomb plot.And Daoud’s lawyers said in a motion filed Friday that the reason is simple. The government, they said, wants to avoid a constitutional challenge to the law, which governs a National Security Agency surveillance program that has once again become the focus of national debate over its reach into Americans’ private communications.“Whenever it is good for the government to brag about its success, it speaks loudly and publicly,” lawyers Thomas Durkin and Joshua Herman wrote in their motion. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets.”
  • Four days before a sweeping government surveillance law was set to expire last year, Sen. Dianne Feinstein, the chairman of the chamber’s Intelligence Committee, took to the Senate floor. She touted the law’s value by listing some of the terrorist attacks it had helped thwart, including “a plot to bomb a downtown Chicago bar” that fall. “So I believe the FISA Amendments Act is important,” the California Democrat said before a vote to extend the 2008 law, “and these cases show the program has worked.”Today, however, the government is refusing to say whether that law was used to develop evidence to charge Adel Daoud, a 19-year-old Chicago man accused of the bomb plot.And Daoud’s lawyers said in a motion filed Friday that the reason is simple. The government, they said, wants to avoid a constitutional challenge to the law, which governs a National Security Agency surveillance program that has once again become the focus of national debate over its reach into Americans’ private communications.“Whenever it is good for the government to brag about its success, it speaks loudly and publicly,” lawyers Thomas Durkin and Joshua Herman wrote in their motion. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets.”
  • If the government acknowledged that it had used evidence derived from the FISA Amendments Act, Daoud would have standing to challenge the law’s constitutionality. Specifically, Daoud’s lawyers would be able to take on a provision known as Section 702. The law permits the interception of foreign targets’ ­e-mails and phone calls without an individual warrant, including when the foreigners are in communication with Americans or legal residents.The U.S. Supreme Court in February rejected a constitutional challenge to Section 702 by a group of journalists, lawyers and human rights advocates, saying they had no standing to sue because they had not proved that their communications had been intercepted.But the court also said that if the government intends to use information derived from the Section 702 surveillance in a prosecution “it must provide advance notice of its intent,” and a defendant may challenge the lawfulness of the surveillance. The government assured the court that it would give such notice to criminal defendants.In a filing this month in Chicago, U.S. Attorney Gary S. Shapiro refused to say whether the evidence was obtained under Section 702. Instead, he said, the government told Daoud the evidence was acquired pursuant to a traditional FISA court order, rather than under the expanded surveillance program authorized in 2008. A traditional order requires the government to go to a FISA judge and show probable cause that the target is an agent of a foreign power.Daoud’s attorneys say in their pleading that the government is being disingenuous. “We believe it is clear that the evidence . . . came from Section 702,” Durkin said in an interview. “Either Senator Feinstein’s information was correct in December 2012, or she was given wrong information. The government has never disputed what she said.”
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  • “The most troubling part of the case is the government seems to be trying to hide the ball,” said Alex Abdo, a staff attorney for the American Civil Liberties Union, which argued the Supreme Court case on behalf of the journalists, lawyers and activists. “They told the Supreme Court not to worry about reviewing the FISA Amendments Act because it would get reviewed in a criminal case. They said if they used the evidence in a criminal case, they’d give notice. Now they’re telling criminal defendants they don’t have to tell them. It’s a game of three-card monte with the privacy rights of millions of Americans.”Abdo said the original FISA statute, passed in 1978, requires the government to notify defendants when evidence being used against them is derived from surveillance authorized by the law. The court, he said, should require the government to abide by the law. “Otherwise,” he said, “the most sweeping surveillance program ever enacted by Congress will never be reviewed in public by a court.”Similarly, Stephen I. Vladeck, a law professor at American University, said, “Everyone knows the role that Section 702 is playing in a case like this.” But, he said, “thanks in part to the Supreme Court, the government can use Section 702 and then never have to defend its constitutionality.”
  • Paul Merrell on 30 Jun 13
     
    Another "sting" type prosecution where the FBI enticed a defendant to perform a terrorist act. But now a direct challenge to government refusal to disclose whether the email that triggered the government's interest in the defendant was unconstitutionally obtained. If so, long established criminal procedure would require that the email and all evidence discovered because of it would have to be excluded from trial unless the government could meet once of the narrow exceptions.    
Gary Edwards

"High Crimes and Misdemeanors" - Tea Party Command Center - 0 views

teapartyorg.ning.com/...show

Impeachment USA-Constitution

shared by Gary Edwards on 26 Jan 13 - No Cached
  • high crimes and misdemeanors”
  • Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.
  • Patriots plan for resisting the Globalist agenda: Develop Secure Community Co-ops (Interactive Neighborhood Watch on steroids).  Groups should be from about 5 to 15 people in the same general area, neighborhood.  All members should be conservative/responsible adults.Members should work at fortifying local, county and state govts. as well as joining Shrf. Reserve Forces (as long as the shrf. is an oathkeeper), Constitutional Sheriffs Assoc./ USCDA, State Militias, Constitutional Militias, etc.  Also,  should be involved in TP, 9-12, John Birch Soc., etc.SCC's should have a liason with other like-minded grps. in order to give/obtain support when needed.The states should and hopefully will be the first line of defense against an overreaching tyrannical govt.(Don't count on it if you are living in a Blue State)  Next, it would fall on the counties and local communities, working in concert with the various State Militia units, Co. Shrfs' Depts., Constitutional and SCC elements.  After that,  if needed,  Bug Out procedures should be implemented.  Hopefully, to safe areas.
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  • The Constitution defines treason in Article 3, Section 3, Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
  • In all the articles of impeachment that the House has drawn, no official has been charged with treason
  • What are “high crimes and misdemeanors”?
  • Gary Edwards on 26 Jan 13
     
    "The U.S. Constitution provides impeachment as the method for removing the president, vice president, federal judges, and other federal officials from office. The impeachment process begins in the House of Representatives and follows these steps: The House Judiciary Committee holds hearings and, if necessary, prepares articles of impeachment. These are the charges against the official. If a majority of the committee votes to approve the articles, the whole House debates and votes on them. If a majority of the House votes to impeach the official on any article, then the official must then stand trial in the Senate. For the official to be removed from office, two-thirds of the Senate must vote to convict the official. Upon conviction, the official is automatically removed from office and, if the Senate so decides, may be forbidden from holding governmental office again. The impeachment process is political in nature, not criminal. Congress has no power to impose criminal penalties on impeached officials. But criminal courts may try and punish officials if they have committed crimes. The Constitution sets specific grounds for impeachment. They are "treason, bribery, and other high crimes and misdemeanors." To be impeached and removed from office, the House and Senate must find that the official committed one of these acts. The Constitution defines treason in Article 3, Section 3, Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
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. 
Gary Edwards

The Farce-Hole Gets Deeper: Obama's "Bankster Robo-Settlement For Votes" Cost To Taxpay... - 1 views

www.zerohedge.com/...-big-five-banks-are-beyond-law

Banksters Obama-Bankster-Power-Play Obama-banksters

shared by Gary Edwards on 17 Feb 12 - No Cached
  • Gary Edwards on 17 Feb 12
     
    Incredible.  The Banksters were caught perpetrating a massive fraud on mortgage holders in default.  They set up document mills packed with "robo" signers forging legal documents to prove in a foreclosure procedure that they are in fact the mortgage provider for that property.  The fraud itself revelas the essentials of what went wrong with the entire mortgage securities scam that brought down the worlds financial structures in 2008. The MERS (Mortgage Electronic Registration systems, Inc.) electronic database was set up in 1995 as a means to enable participating Banksters to side step the quilt of State and County laws governing real estate transactions, non judicial foreclosure rights, and property ownership recording requirements.  MERS was essential to the bundling and trade in mortgage-backed securities.  In essence, MERS replaced public recordation requirements with a private, Bankster owned one. This all sounded good until waves of home owners facing default began to take their banksters to court.  Turns out that MERS mortgages lacked the legal documentation to establish a legal chain of ownership.  Realizing their mistake, and with thousands upon thousands of foreclosures hanging in the balance, the Banksters created the robo document industry, forging millions of foreclosure documents overnight.  Criminal fraud on steroids. The banksters got caught, with State Attorney Generals launching massive consumer protection law suits against the big banksters.  This put a halt to the illegal foreclosures, forcing banksters to turn to short sales on homes in default.  The short sale industry rocketed in 2011, but the to perfect a short sale, the banksters were taking the loss; sometimes as much as $100K to $250K per home.  But the real estate market inventory was effectively being cleared and market pricing corrected. The Banksters were unhappy.  Seeking to get back on the foreclosure track but facing what amounted to across the boards class action la
Paul Merrell

History of the Federal Judiciary - 0 views

www.fjc.gov/...tu_olmstead_doc_15.html

surveillance state wiretap litigation

shared by Paul Merrell on 26 May 14 - No Cached
  •  Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement Historical Documents Dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States Justice Brandeis’s dissenting opinion is one of the more notable dissents in Supreme Court history. He attempted to define a general right of privacy based on the Fourth and Fifth Amendments. Brandeis had long been interested in the problem of privacy in the modern age; years earlier he and his law partner, Samuel Warren, published what many consider the seminal article on the topic (Samuel Warren & Louis D. Brandeis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890)). Brandeis’s opinion in Olmstead attempted to apply to the current era what he said were the principles of the Fourth and Fifth Amendments. Historians often overlook how much his approach draws on the dissenting opinion of Judge Rudkin in the circuit court, but Brandeis himself acknowledged his debt to Rudkin in the text. The quotation about “the form that evil had theretofore taken” referred to the Supreme Court decision in Weems v. United States, in which Justice Joseph McKenna wrote of the need for the Court to apply the general principles of the Constitution to new problems.
  • Moreover, “in the application of a constitution, our contemplation cannot be only of what has been but of what may be.” The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed “subversive of all the comforts of society.” Can it be that the Constitution affords no protection against such invasions of individual security? . . .
  • In Ex parte Jackson, 96 U.S. 727, it was held that a sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below: “True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed, but these are distinctions without a difference.” The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and, although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.
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  • Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning, there is no “search” or “seizure” when a defendant is required to produce a document in the orderly process of a court’s procedure. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this Court holds the evidence inadmissible simply because the information leading to the issue of the subpoena has been unlawfully secured. . . . The provision against self-incrimination in the Fifth Amendment has been given an equally broad construction. . . .
  • Decisions of this Court applying the principle of the Boyd case have settled these things. Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper; whether the paper when taken by the federal officers was in the home, in an office, or elsewhere; whether the taking was effected by force, by fraud, or in the orderly process of a court’s procedure. From these decisions, it follows necessarily that the Amendment is violated by the officer’s reading the paper without a physical seizure, without his even touching it; and that use, in any criminal proceeding, of the contents of the paper so examined—as where they are testified to by a federal officer who thus saw the document, or where, through knowledge so obtained, a copy has been procured elsewhere—any such use constitutes a violation of the Fifth Amendment. The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
  • Paul Merrell on 26 May 14
     
    The linked opinion is Justice Brandeis' dissent in Olmstead v. U.S., the first Supreme Court decision to approve the use of secret wiretap evidence in a criminal proceeding, even though gathered without a search warrant. The warrant requirement would later be imposed in 1967 by the decision in Katz v. U.S., which established that the Fourth Amendment the privacy of people, not places, reviving the Brandeis dissent to a large degree. Since Katz and the advent of broad government surveillance, Justice Brandeis' dissent is gaining still more attention. 
Paul Merrell

Fellow soldiers call Bowe Bergdahl a deserter, not a hero - CNN.com - 0 views

www.cnn.com/...bergdahl-deserter-or-hero

war & peace MSM defamation Bergdahl

shared by Paul Merrell on 04 Jun 14 - No Cached
  • The sense of pride expressed by officials of the Obama administration at the release of Army Sgt. Bowe Bergdahl is not shared by many of those who served with him: veterans and soldiers who call him a deserter whose "selfish act" ended up costing the lives of better men.
  • Paul Merrell on 04 Jun 14
     
    I've been disgusted with American mainstream media and our political class for a very long time. Every now and then I get super-disgusted.  I'll begin with the Obama Administration. They tried to make political hay with something that should not have been made public other than notifying the released American prisoners' parents before the prisoner had been debriefed. Moreover, while I have no problems with swapping Taliban prisoners to get the American prisoner back even if it meant not giving Congress the full 30-day notice required by statute, the Administration certainly could have done a better job of it, notifying key committee members earlier that the deal might be pulled off. Waiting until the Taliban prisoners were up to the steps of the airplane bound for the exchange was not the way this should have happened. Next up, we have the members of Congress who have done their level best to turn the situation into a partisan issue. Obama may have deserved criticism given that he tried to make political hay with the release. But prisoner swaps during wartime have been a feature of most U.S. wars. It is an ancient custom of war and procedures for doing so are even enshrined in the Geneva Conventions governing warfare. So far, I have not heard any war veteran member of Congress scream about releasing terrorists. During my 2+ years in a Viet Nam combat role, the thought of being captured was horrifying. Pilots shot down over North Viet Nam were the lucky ones. No American soldier captured in South Viet Nam was ever released. The enemy was fighting a guerrilla war in the South. They had no means to confine and care for prisoners. So captured American troops were questioned for intelligence and then killed.  Truth be told, American combat troops were prone to killing enemy who surrendered. War is a very ugly situation and feelings run high. It is perhaps a testament to the Taliban that they kept Sgt. Berdahl alive. Certainly that fact clashes irreconcilably with
Paul Merrell

US drug agency gets intel from NSA, then lies about its origins to build cases | Ars Te... - 0 views

arstechnica.com/...out-its-origins-to-build-cases

security state NSA DEA lies

shared by Paul Merrell on 06 Aug 13 - No Cached
  • On Monday, Reuters reported on previously undisclosed documents showing that a secret Drug Enforcement Administration (DEA) unit uses information collected by intelligence agencies—including the National Security Agency (NSA)—to build evidence for criminal cases. The true origin of this information is usually concealed from defense lawyers—and sometimes even prosecutors and judges—to seemingly do an end-run around the normal court procedures for a criminal defendant’s right to discovery.
  • “There’s nothing that allows lying to judges about the source of information in a criminal case,” Jennifer Granick, an attorney and the director of Civil Liberties at Stanford University’s Center for Internet and Society, told Ars. Similarly, others have already started to speak out against the practice. The American Civil Liberties Union (ACLU) issued a statement. "When law enforcement agents and prosecutors conceal the role of intelligence surveillance in criminal investigations, they violate the constitutional rights of the accused and insulate controversial intelligence programs from judicial review," wrote ACLU Deputy Legal Director Jameel Jaffer. "Effectively, these intelligence programs are placed beyond the reach of the Constitution, where they develop and expand without any court ever weighing in on their lawfulness. This is inappropriate, dangerous, and contrary to the rule of law."
Paul Merrell

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

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

Dark-State state-secrets government secrecy Restis DoJ Holder

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

FBI demands new powers to hack into computers and carry out surveillance | US news | Th... - 0 views

www.theguardian.com/...hacking-computers-surveillance

surveillance state FBI Fed.R.Crim.P.-41 roving-warrants

shared by Paul Merrell on 01 Nov 14 - No Cached
  • The FBI is attempting to persuade an obscure regulatory body in Washington to change its rules of engagement in order to seize significant new powers to hack into and carry out surveillance of computers throughout the US and around the world. Civil liberties groups warn that the proposed rule change amounts to a power grab by the agency that would ride roughshod over strict limits to searches and seizures laid out under the fourth amendment of the US constitution, as well as violate first amendment privacy rights. They have protested that the FBI is seeking to transform its cyber capabilities with minimal public debate and with no congressional oversight. The regulatory body to which the Department of Justice has applied to make the rule change, the advisory committee on criminal rules, will meet for the first time on November 5 to discuss the issue. The panel will be addressed by a slew of technology experts and privacy advocates concerned about the possible ramifications were the proposals allowed to go into effect next year.
  • “This is a giant step forward for the FBI’s operational capabilities, without any consideration of the policy implications. To be seeking these powers at a time of heightened international concern about US surveillance is an especially brazen and potentially dangerous move,” said Ahmed Ghappour, an expert in computer law at University of California, Hastings college of the law, who will be addressing next week’s hearing. The proposed operating changes related to rule 41 of the federal rules of criminal procedure, the terms under which the FBI is allowed to conduct searches under court-approved warrants. Under existing wording, warrants have to be highly focused on specific locations where suspected criminal activity is occurring and approved by judges located in that same district. But under the proposed amendment, a judge can issue a warrant that would allow the FBI to hack into any computer, no matter where it is located. The change is designed specifically to help federal investigators carry out surveillance on computers that have been “anonymized” – that is, their location has been hidden using tools such as Tor.
  • Were the amendment to be granted by the regulatory committee, the FBI would have the green light to unleash its capabilities – known as “network investigative techniques” – on computers across America and beyond. The techniques involve clandestinely installing malicious software, or malware, onto a computer that in turn allows federal agents effectively to control the machine, downloading all its digital contents, switching its camera or microphone on or off, and even taking over other computers in its network.
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  • Civil liberties and privacy groups are particularly alarmed that the FBI is seeking such a huge step up in its capabilities through such an apparently backdoor route. Soghoian said of next week’s meeting: “This should not be the first public forum for discussion of an issue of this magnitude.” Jennifer Granick, director of civil liberties at the Stanford center for internet and society, said that “this is an investigative technique that we haven’t seen before and we haven’t thrashed out the implications. It absolutely should not be done through a rule change – it has to be fully debated publicly, and Congress must be involved.” Ghappour has also highlighted the potential fall-out internationally were the amendment to be approved. Under current rules, there are no fourth amendment restrictions to US government surveillance activities in other countries as the US constitution only applies to domestic territory.
  • Another insight into the expansive thrust of US government thinking in terms of its cyber ambitions was gleaned recently in the prosecution of Ross Ulbricht, the alleged founder of the billion-dollar drug site the Silk Road. Experts suspect that the FBI hacked into the Silk Road server, that was located in Reykjavik, Iceland, though the agency denies that. In recent legal argument, US prosecutors claimed that even if they had hacked into the server without a warrant, it would have been justified as “a search of foreign property known to contain criminal evidence, for which a warrant was not necessary”.
  • Paul Merrell on 01 Nov 14
     
    This rule change has been in the works during the last year.  "The change is designed specifically to help federal investigators carry out surveillance on computers that have been "anonymized" - that is, their location has been hidden using tools such as Tor."  Are we dizzy yet? The State Department is pushing the use of TOR by dissidents in nations whose governments State and the CIA intends to overthrow. Meanwhile, Feed Bag, Inc. wants use of TOR to be sufficient grounds for installing malware on anyone using it to make their systems and all their systems can see or hear be an open book. Let's see. There's the First Amendment right to anonymous speech just to begin with. McIntyre v. Ohio Elections Comm'n, 514 US 334 (1995). ("Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.") (Internal citation omitted.) And of course there's the Natural Law liberty to whisper, to utter words in a way that none but the intended recipient can hear. So throw on the violation of the Fifth Amendment's Liberty clause. Then there's the plain language of the Fourth Amendment warrant clause, "particularly describing the *place* to be searched." Not to mention the major reason for the Fourth Amendment, to abolish the "general warrant" that had enabled the Crown to search wherever the warrant's executor's little heart desired.  And th
Paul Merrell

Analysis: PA 'balking' at war crimes probe - Middle East - Al Jazeera English - 0 views

www.aljazeera.com/...israel-201491273525819720.html

war & peace Israel Palestine Gaza ICC war crimes Abbas

shared by Paul Merrell on 13 Sep 14 - No Cached
  • After a document obtained by Al Jazeera revealed the Palestinian Authority (PA) has stalled the launch of a formal investigation into alleged Israeli war crimes in Gaza, Palestinian legal and human rights experts remain dubious that the PA ever truly intended to join the International Criminal Court (ICC). In a confidential letter obtained exclusively by Al Jazeera's Investigative Unit, the ICC's top prosecutor, Fatou Bensouda, said she "did not receive a positive confirmation" from PA Foreign Minister Riad al-Malki that the request submitted for an international investigation had the Palestinian government's approval. Palestinian officials have, on numerous occasions, threatened to head to the ICC to hold Israel accountable for possible war crimes and crimes against humanity. But their efforts so far, have proved fruitless. In July, a French lawyer filed a complaint with the court on behalf of the Palestinian minister of justice, accusing Israel of carrying out war crimes in the Gaza Strip. This came after a 2009 call for an ICC investigation into Israel's three-week military offensive in Gaza that was later dropped when the prosecutor said Palestine was not a court member. In August, Malki met with ICC officials to discuss the implications of ratifying the Rome Statute, the treaty that established the criminal court. "Everything that has happened...is clear evidence of war crimes committed by Israel, amounting to crimes against humanity," he told reporters in The Hague, referring to the recent 51-day Israeli military offensive on Gaza, which left more than 2,100 Palestinians dead. Six Israeli civilians were killed, along with 66 Israeli soldiers.
  • Two years ago, Palestine became recognised as a non-member observer state at the UN General Assembly. This made it eligible to join the ICC; however, to date, Palestinian officials have not signed the Rome Statute, even though almost 80 percent of Palestinians support going to the court. Senior Fatah official Mohammad Shtayyeh didn't say when the Palestinians would apply to the ICC, but said it would probably happen in another few months. "The indictment against Israel at the ICC and all the accompanying documents are ready," Shtayyeh told Al Jazeera. One of the remaining hurdles, Shtayyeh said, is getting one remaining Palestinian faction - Islamic Jihad - to sign an accession document before the Palestinians can present it. Hamas signed onto the proposal at the behest of the PA in August. "We're not in a situation of setting a deadline or making an ultimatum," he said. "We're following developments in the region and the world, and therefore, we'll wait for answers from the international community. But I believe that by November-December, the picture should be clearer."
  • In response to Al Jazeera's claims, the Palestinian Justice Minister Salim al-Saqqa said that Palestinian President Mahmoud Abbas was serious about going to the ICC and was "awaiting national dialogue" to pursue it. "This issue is our number-one priority," he said. "It is still on the table awaiting a few legal and technical procedures. We have not missed our opportunity to head to the court." So far, the Palestinians have struggled to use the court to pursue their claims, with some attributing this to the PA's use of an ICC investigation as a political bargaining chip. "The PA can go to the ICC in one day," said Shawan Jabarin, the director of Ramallah-based human rights group al-Haq. "Abbas, who has been turned this into a political issue, is balking." Many factors are working against setting off a war crimes investigation at the ICC, not least the international community's apparent opposition to the move. "It is the PA's trump card because the Israelis and the Americans have said it is a red line," said Diana Buttu, a lawyer and former adviser to the Palestine Liberation Organisation (PLO).
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  • "When this red line is crossed, then the US said it won't give money to the PA. That's what we call blackmail. But at what point will Abu Mazen [Abbas] say this is a trump card but we will use it?"
  • During US-mediated peace talks between Israel and the Palestinians, Washington ensured that the PA would freeze all moves to turn to international organisations until April 2014. "The Palestinian Authority has been consistently pressured by the USA, Israel, Canada, the UK and other EU Member States not to take steps to grant the ICC jurisdiction," Amnesty International said. "Such pressure has included threats to withdraw financial assistance on which the Palestinian Authority depends."
  • But when Israel reneged on its pledge to free a total of 104 veteran Palestinian prisoners in four tranches, the PA responded by joining 15 international treaties and conventions. Israel said this spelled the end of their negotiations with the Palestinians, while the US said that the PA's moves negatively affected attempts to engage both parties in talks. "The PA's hesitancy can be attributed to several factors: The need to preserve it as a trump card, and also a fear of the US and some European countries' reaction," Jabarin said. "The problem is the method being used by Abbas; he has subjected the issue to political bargaining and to the whims of negotiations." Another reason the PA may be hesitant to set a war crimes investigation in motion is the ramifications it may have on some Palestinian factions. The ICC would likely look into Hamas and Islamic Jihad's rocket-firing o
  • In the past week, Israel said it would open a criminal investigation into several instances of what it is calling "military misconduct" in the Gaza war. Israel's swift call for a probe appears to be an attempt to pre-empt any independent investigations into allegations that its military committed war crimes in Gaza. "The PA gave the Israelis enough time to come up with a trick to prevent the court from opening any investigation," said Saad Djebbar, a London-based lawyer. Generally, the ICC launches probes in instances where the country involved is unable or unwilling to launch an investigation itself, Djebbar told Al Jazeera. "If the court tries to open an inquiry, the Israelis can claim they have jurisdiction [to do it themselves] because the ICC's jurisdiction is complementary," he explained. "The ICC is legally bound to allow an Israeli [probe] to continue."
  • Paul Merrell on 13 Sep 14
     
    Which helps explain why, in a recent poll of Palestinians in both Gaza and the West Bank, the Hamas leader outpolled Abbas by something on the order of 70-30 on the question of who Palestinians would vote for as President if elections were held at that time. 
Paul Merrell

New Israeli legal campaign accuses Abbas of 'terrorism' | Maan News Agency - 0 views

www.maannews.net/...ViewDetails.aspx

war & peace Israel Palestine war crimes ICC chutzpah

shared by Paul Merrell on 14 Apr 14 - No Cached
  • Right-wing Israeli political parties have begun a campaign to sue president Abbas for "war crimes" at the International Criminal Court in response to the Palestinian Authority's recent decision to join international conventions and treaties.The campaign comes amid a near breakdown in ongoing peace negotiations between Israel and the PLO, and seeks to file legal procedures against Abbas accusing him of supporting "terrorism" and aiding to terrorist organizations.Beginning on Friday, Israeli newspapers and websites have published advertisements calling on Israeli lawyers to join the campaign led by the Israel Law Center to sue Palestinian president Mahmoud Abbas on charges of supporting terrorist organizations.
  • Right-wing Israeli political parties have begun a campaign to sue president Abbas for "war crimes" at the International Criminal Court in response to the Palestinian Authority's recent decision to join international conventions and treaties.The campaign comes amid a near breakdown in ongoing peace negotiations between Israel and the PLO, and seeks to file legal procedures against Abbas accusing him of supporting "terrorism" and aiding to terrorist organizations.Beginning on Friday, Israeli newspapers and websites have published advertisements calling on Israeli lawyers to join the campaign led by the Israel Law Center to sue Palestinian president Mahmoud Abbas on charges of supporting terrorist organizations.
  • Palestinian minister of justice Ali Muhanna told Ma'an that the Israeli government had "lost balance both politically and legally." Their response, he said, reflects the degree of rage in Israel towards the PA for attempting to join international conventions. Muhanna confirmed that Israel "cannot engage in any legal action at the ICC because Israel is not a signatory to the Rome Statute of the International Criminal Court." "Such legal proceedings are submitted through the ICC's Attorney General or through the UN Security Council.""Abbas' move isn't a war crime. But the ongoing Israeli settlement construction, confiscation of Palestinian money, killing and detention of children are war crimes," he added.
Paul Merrell

Canadian Spies Collect Domestic Emails in Secret Security Sweep - The Intercept - 0 views

firstlook.org/...ony-express-email-surveillance

surveillance state Canada CSE bulk-collection email

shared by Paul Merrell on 27 Feb 15 - No Cached
  • Canada’s electronic surveillance agency is covertly monitoring vast amounts of Canadians’ emails as part of a sweeping domestic cybersecurity operation, according to top-secret documents. The surveillance initiative, revealed Wednesday by CBC News in collaboration with The Intercept, is sifting through millions of emails sent to Canadian government agencies and departments, archiving details about them on a database for months or even years. The data mining operation is carried out by the Communications Security Establishment, or CSE, Canada’s equivalent of the National Security Agency. Its existence is disclosed in documents obtained by The Intercept from NSA whistleblower Edward Snowden. The emails are vacuumed up by the Canadian agency as part of its mandate to defend against hacking attacks and malware targeting government computers. It relies on a system codenamed PONY EXPRESS to analyze the messages in a bid to detect potential cyber threats.
  • Last year, CSE acknowledged it collected some private communications as part of cybersecurity efforts. But it refused to divulge the number of communications being stored or to explain for how long any intercepted messages would be retained. Now, the Snowden documents shine a light for the first time on the huge scope of the operation — exposing the controversial details the government withheld from the public. Under Canada’s criminal code, CSE is not allowed to eavesdrop on Canadians’ communications. But the agency can be granted special ministerial exemptions if its efforts are linked to protecting government infrastructure — a loophole that the Snowden documents show is being used to monitor the emails. The latest revelations will trigger concerns about how Canadians’ private correspondence with government employees are being archived by the spy agency and potentially shared with police or allied surveillance agencies overseas, such as the NSA. Members of the public routinely communicate with government employees when, for instance, filing tax returns, writing a letter to a member of parliament, applying for employment insurance benefits or submitting a passport application.
  • Chris Parsons, an internet security expert with the Toronto-based internet think tank Citizen Lab, told CBC News that “you should be able to communicate with your government without the fear that what you say … could come back to haunt you in unexpected ways.” Parsons said that there are legitimate cybersecurity purposes for the agency to keep tabs on communications with the government, but he added: “When we collect huge volumes, it’s not just used to track bad guys. It goes into data stores for years or months at a time and then it can be used at any point in the future.” In a top-secret CSE document on the security operation, dated from 2010, the agency says it “processes 400,000 emails per day” and admits that it is suffering from “information overload” because it is scooping up “too much data.” The document outlines how CSE built a system to handle a massive 400 terabytes of data from Internet networks each month — including Canadians’ emails — as part of the cyber operation. (A single terabyte of data can hold about a billion pages of text, or about 250,000 average-sized mp3 files.)
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  • The agency notes in the document that it is storing large amounts of “passively tapped network traffic” for “days to months,” encompassing the contents of emails, attachments and other online activity. It adds that it stores some kinds of metadata — data showing who has contacted whom and when, but not the content of the message — for “months to years.” The document says that CSE has “excellent access to full take data” as part of its cyber operations and is receiving policy support on “use of intercepted private communications.” The term “full take” is surveillance-agency jargon that refers to the bulk collection of both content and metadata from Internet traffic. Another top-secret document on the surveillance dated from 2010 suggests the agency may be obtaining at least some of the data by covertly mining it directly from Canadian Internet cables. CSE notes in the document that it is “processing emails off the wire.”
  • Paul Merrell on 27 Feb 15
     
    " CANADIAN SPIES COLLECT DOMESTIC EMAILS IN SECRET SECURITY SWEEP BY RYAN GALLAGHER AND GLENN GREENWALD @rj_gallagher@ggreenwald YESTERDAY AT 2:02 AM SHARE TWITTER FACEBOOK GOOGLE EMAIL PRINT POPULAR EXCLUSIVE: TSA ISSUES SECRET WARNING ON 'CATASTROPHIC' THREAT TO AVIATION CHICAGO'S "BLACK SITE" DETAINEES SPEAK OUT WHY DOES THE FBI HAVE TO MANUFACTURE ITS OWN PLOTS IF TERRORISM AND ISIS ARE SUCH GRAVE THREATS? NET NEUTRALITY IS HERE - THANKS TO AN UNPRECEDENTED GUERRILLA ACTIVISM CAMPAIGN HOW SPIES STOLE THE KEYS TO THE ENCRYPTION CASTLE Canada's electronic surveillance agency is covertly monitoring vast amounts of Canadians' emails as part of a sweeping domestic cybersecurity operation, according to top-secret documents. The surveillance initiative, revealed Wednesday by CBC News in collaboration with The Intercept, is sifting through millions of emails sent to Canadian government agencies and departments, archiving details about them on a database for months or even years. The data mining operation is carried out by the Communications Security Establishment, or CSE, Canada's equivalent of the National Security Agency. Its existence is disclosed in documents obtained by The Intercept from NSA whistleblower Edward Snowden. The emails are vacuumed up by the Canadian agency as part of its mandate to defend against hacking attacks and malware targeting government computers. It relies on a system codenamed PONY EXPRESS to analyze the messages in a bid to detect potential cyber threats. Last year, CSE acknowledged it collected some private communications as part of cybersecurity efforts. But it refused to divulge the number of communications being stored or to explain for how long any intercepted messages would be retained. Now, the Snowden documents shine a light for the first time on the huge scope of the operation - exposing the controversial details the government withheld from the public. Under Canada's criminal code, CSE is no
Paul Merrell

How NSA Can Secretly Aid Criminal Cases | Consortiumnews - 0 views

consortiumnews.com/...an-secretly-aid-criminal-cases

surveillance state NSA parallel-construction McGovern

shared by Paul Merrell on 15 Jun 14 - No Cached
  • Though the NSA says its mass surveillance of Americans targets only “terrorists,” the spying may turn up evidence of other illegal acts that can get passed on to law enforcement which hides the secret source through a ruse called “parallel construction,” writes ex-CIA analyst Ray McGovern. By Ray McGovern Rarely do you get a chance to ask a just-retired FBI director whether he had “any legal qualms” about what, in football, is called “illegal procedure,” but at the Justice Department is called “parallel construction.” Government wordsmiths have given us this pleasant euphemism to describe the use of the National Security Agency’s illegal eavesdropping on Americans as an investigative tool to pass on tips to law enforcement agencies which then hide the source of the original suspicion and “construct” a case using “parallel” evidence to prosecute the likes of you and me.
  • For those interested in “quaint” things like the protections that used to be afforded us by the Fourth and Fifth Amendments to the Constitution, information about this “parallel construction” has been in the public domain, including the “mainstream media,” for at least a year or so. So, I welcomed the chance to expose this artful practice to still more people with cameras rolling at a large conference on “Ethos & Profession of Intelligence” at Georgetown University on Wednesday, during the Q & A after former FBI Director Robert Mueller spoke. Mueller ducked my question regarding whether he had any “legal qualms” about this “parallel construction” arrangement. He launched into a discursive reply in which he described the various ”authorities” enjoyed by the FBI (and the CIA), which left the clear impression not only that he was without qualms but that he considered the practice of concealing the provenance of illegally acquired tip-off information somehow within those professed “authorities.”
  • Bottom line? Beware, those of you who think you have “nothing to hide” when the NSA scoops up your personal information. You may think that the targets of these searches are just potential “terrorists.” But the FBI, Internal Revenue Service, Drug Enforcement Administration and countless other law enforcement bodies are dipping their cursors into the huge pool of mass surveillance.
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  • Former FBI Division Counsel in Minneapolis Coleen Rowley – who, with Jesselyn Radack, Tom Drake and me, visited Snowden in Russia last October – told me of two legal doctrines established many decades ago: the “exclusionary rule” and the rule regarding the “fruit of the poisonous tree.” These were designed to force over-zealous law enforcement officers to adhere to the Constitution by having judges throw out cases derived from improperly obtained evidence. To evade this rule, law enforcement officials who have been on the receiving end of NSA’s wiretap data must conceal what tipped off an investigation.
  • Last week a journalist asked me why I thought Congress’ initial outrage – seemingly genuine in some quarters – over bulk collection of citizens’ metadata had pretty much dissipated in just a few months. What started out as a strong bill upholding Fourth Amendment principles ended up much weakened with only a few significant restraints remaining against NSA’s flaunting of the Constitution? Let me be politically incorrect and mention the possibility of blackmail or at least the fear among some politicians that the NSA has collected information on their personal activities that could be transformed into a devastating scandal if leaked at the right moment. Do not blanch before the likelihood that the NSA has the book on each and every member of Congress, including extramarital affairs and political deal-making. We know that NSA has collected such information on foreign diplomats, including at the United Nations in New York, to influence votes on the Iraq War and other issues important to U.S. “national security.”
  • We also know how the late FBI Director J. Edgar Hoover used much more rudimentary technology a half century ago to develop dossiers on the personal indiscretions of political and ideological opponents. It makes sense that people with access to the NSA’s modern surveillance tools would be sorely tempted to put these new toys to use in support of their own priorities.
  • We cannot escape some pretty dismal conclusions here. Not only have the Executive and Legislative branches been corrupted by establishing, funding, hiding and promoting unconstitutional surveillance programs for over 12 years, but the Judicial branch has been corrupted, too. The discovery process in criminal cases is now stacked in favor of the government through its devious means for hiding unconstitutional surveillance and using it in ways beyond the narrow declared purpose of thwarting terrorism. Moreover, federal courts at the district, appeals and Supreme Court levels have allowed the government to evade legal accountability by insisting that plaintiffs must be able to prove what often is not provable, that they were surveilled through highly secretive NSA means. And, if the plaintiffs make too much progress, the government can always get a lawsuit thrown out by invoking “state secrets.” The Separation of Powers designed by the Constitution’s Framers to prevent excessive accumulation of power by one of the branches has stopped functioning amid the modern concept of “permanent war” and the unwillingness of all but a few hearty souls to challenge the invocation of “national security.” Plus, the corporate-owned U.S. media, with very few exceptions, is fully complicit.
  • The concept of a “United Stasi of America,” coined by Pentagon Papers whistleblower Daniel Ellsberg a year ago, has been given real meaning by the unconstitutional behavior and dereliction of duty on the part of both the George W. Bush and Obama administrations. Just days after the first published disclosure from Snowden, Ellsberg underscored that the NSA, FBI and CIA now have surveillance capabilities that East Germany’s Stasi secret police could scarcely have imagined.
  • Last June, Mathew Schofield of McClatchy conducted an interesting interview of Wolfgang Schmidt, a former lieutenant colonel in the Stasi, in Berlin. With the Snowden revelations beginning to tumble out into the media, Schofield described Schmidt as he pondered the sheer magnitude of domestic spying in the United States.
  • “So much information, on so many people,” says Schmidt who, at that point, volunteers a stern warning for Schofield and the rest of us: “It is the height of naiveté to think that, once collected, this information won’t be used. This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.”
  • Take note, those of you who may still feel fearless, those of you with “nothing to hide.”
Paul Merrell

Milosevic prosecutor claims top ICC official bowing to Israeli, US pressure | The Elect... - 0 views

electronicintifada.net/...ial-bowing-israeli-us-pressure

war & peace ICC Mavi-Marmara Gaza-Freedom-Flotilla Israel war crimes prosecution

shared by Paul Merrell on 29 Jul 15 - No Cached
  • The chief prosecutor of the International Criminal Court (ICC) is appealing a ruling ordering her to reconsider her decision not to investigate Israel’s lethal attack on an aid flotilla to Gaza five years ago. But Geoffrey Nice, lead counsel for victims and families of those killed in the Israeli attack on the Mavi Marmara, told The Electronic Intifada that the arguments Chief Prosecutor Fatou Bensouda has put forward are “complete hogwash.” Nice, who worked for the International Criminal Tribunal for the Former Yugoslavia from 1998 to 2006, led the prosecution of former Serbian President Slobodan Milošević. Nice and his law firm Stoke and White also represent the government of Comoros, the Indian Ocean archipelago state where the Mavi Marmara is registered. Instead of doing her job and properly investigating the case, Nice said, Bensouda’s appeal is “a last ditch attempt to do what would be expected of her by the US and supporters of Israel.”
  • A professor of law at London’s Gresham College who has previously represented victims before the ICC, Nice said he doubted that Bensouda even had a right to go to the appeal judges at this stage. He said his first legal response would be to ask them to throw her appeal out on procedural grounds. Serious errors Earlier this month, a panel of ICC judges found in a scathing 2-1 ruling that Bensouda had made serious errors of fact and law in her decision not to pursue the case. They said that the chief prosecutor had underestimated the seriousness and international significance of the crimes and ordered her to review her decision not to proceed with an investigation into the attack. In the early hours of 31 May 2010, Israeli commandos boarded and seized the flotilla boats in international waters in the eastern Mediterranean. Israeli forces carried out a particularly violent armed attack on the largest vessel, Mavi Marmara, killing nine persons. A tenth victim died of his injuries in June 2014. The victims were all Turkish citizens. One of them, 18-year-old Furkan Doğan, was also a US citizen.
  • The initial request for the ICC to investigate the killings was submitted in 2013 by Comoros. Bensouda decided not to proceed with a full investigation in November 2014. Ignoring evidence In a notice of appeal filed Monday, Chief Prosecutor Bensouda says that the judges overstepped their mandate and trampled on her prosecutorial discretion by ordering her to review the case. She also claims that the ruling gives her no clear explanation of how to review her decision. But Nice said that her claims are “absolute rubbish” and the judges’ ruling is very clear about what matters and evidence should be looked at again. The judges’ 16 July ruling lists a long litany of errors by the prosecutor.
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  • These include that Bensouda “wilfully ignored” evidence submitted by Comoros that Israeli forces “fired live ammunition from the boats and the helicopters before the [Israeli forces] forces boarded the Mavi Marmara.” This information was supplemented by the UN Human Rights Council fact-finding mission and autopsy reports, which, according to the evidence submitted by Comoros, “indicate that persons were shot from above.” Intent to kill “For the purpose of her decision” whether or not to investigate, the judges conclude, “the prosecutor should have accepted that live fire may have been used prior to the boarding of the Mavi Marmara, and drawn the appropriate inferences.” “This fact is extremely serious and particularly relevant to the matter under consideration,” the ruling continues, “as it may reasonably suggest that there was, on the part of the [Israeli] forces who carried out the identified crimes, a prior intention to attack and possibly kill passengers on board the Mavi Marmara.” The judges also fault Bensouda for failing to properly consider the impact of the crimes beyond the immediate victims.
  • srael’s violent actions against the Mavi Marmara would, the judges write, “have sent a clear and strong message to the people in Gaza (and beyond) that the blockade of Gaza was in full force and that even the delivery of humanitarian aid would be controlled and supervised by the Israeli authorities.” Rule of law Nice says the stakes are high – not just for this case but for other Palestine-related matters that might come before the ICC. In January, the court began a preliminary probe, at the request of the Palestinian Authority, that will include Israel’s attack on Gaza last summer that killed more than 2,200 Palestinians. Will such cases be handled according to the “rule of law,” Nice asks, or will victims witness “officials of the highest rank seeming yet again to bend the knee to the interests of Israel and the US?”
Paul Merrell

Turkish court issues "historic" arrest warrants for Israeli army commanders | The Elect... - 0 views

electronicintifada.net/...rrants-israeli-army-commanders

war & peace human rights Israel Turkey arrest-warrants Mavi-Marmara

shared by Paul Merrell on 03 Jun 14 - No Cached
  • A court in Istanbul has issued arrest warrants against four Israeli military officials for their role in authorizing and carrying out the attacks on the Mavi Marmara, the Turkish humanitarian aid boat bound for Gaza on 31 May 2010. Israeli forces attacked and raided the boat, which was part of a flotilla in international waters and was attempting to break the siege on Gaza. Israeli commandos killed nine civilians and wounded dozens of others. Speaking to The Electronic Intifada, Rabia Yurt, a Turkish attorney for the families of the victims, says the ruling is unprecedented. Yurt says it is “the first [time] in history” that arrest warrants have been issued against Israeli officials, who have never been held responsible in an international court for the army’s “uncountable crimes.”
  • The judges presiding at the Istanbul Çağlayan Courthouse on 26 May ordered arrest warrants against former Israeli army Chief General Gabi Ashkenazi, Naval Forces commander Vice Admiral Eliezer Marom, Israeli military intelligence chief Major General Amos Yadlin and Air Forces Intelligence head Brigadier General Avishai Levi. It is now up to Interpol, the international police agency, to follow the Turkish court’s directives and arrest the four commanders, who were tried in absentia. This was the sixth trial so far in the case against the Israeli leaders for their role in the deadly attacks on the flotilla.
  • After the deadly raid on the Mavi Marmara, Israeli forces kidnapped the crew and hundreds of the flotilla’s passengers, bringing the boats and all aboard to an Israeli port, where the human rights activists were arrested, detained and deported. One of the civilians killed was Furkan Doğan, a 19-year-old dual citizen of Turkey and the US. The Center for Constitutional Rights stated that “Israeli commandos shot Furkan five times, including one shot to the head at point-blank range. At the time of the attack, it is believed Furkan was filming with a small video camera on the top deck of the Mavi Marmara.” A tenth activist, 51-year-old Turkish citizen Uğur Süleyman Söylemez, died on 23 May — days before the court’s decision, and nearly four years after Israeli forces shot him in the head. Söylemez was in a coma ever since his injury.
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  • “The court argued that an arrest warrant had become necessary for the legal procedure as the defendants had neither attended the trial nor responded to an invitation sent to them through the related department of the Turkish justice ministry,” reported Turkish daily Hurriyet on 30 May. The Turkish humanitarian group IHH (Humanitarian Relief Foundation), which sponsored and helped organize the aid flotilla in 2010 and has been helping to represent the families of those killed, stated in a press release last week that the ruling was a “positive outcome” for the relatives and loved ones of the ten Turkish citizens who were killed by Israeli attacks. Last year, as The Electronic Intifada reported, the prosecutor of Spain’s national court formally requested a judge to begin steps to refer a case against Israeli leaders for the attack to the International Criminal Court (ICC). Three Spanish citizens, Manuel Tapial, Laura Arau and David Segarra, were aboard the Mavi Marmara when it was attacked and commandeered. Tapial, Arau and Segarra filed the case against Israeli Prime Minister Benjamin Netanyahu, six ministers and Vice Admiral Eliezer Marom of the Israeli navy who led the attack.
  • However, we are optimistic, because Turkey is a democratic country. It is part of and is a signatory to the European extradition convention and signed to Interpol, and therefore all other countries who are also signatories to these conventions and institution have an obligation to indeed arrest these Israeli officials for whom the arrest warrants were issued. So we have to trust [this] and we have to keep our faith in this. And we also know that — remember that this trial started way back in 2012 — the Israeli soldiers wouldn’t travel around too much, especially not go to Turkey. We know that Israeli soldiers were complaining about this. For instance, there was a case of an Israeli soldier who filed a claim against the State of Israel because he wanted to study in the United States, but because he took part in this operation he could not set foot out of Israel. So because we know this, we are quite optimistic about the arrest warrants, that they will be in fact implemented by other countries.
  • NBF: Finally, what’s next in this case on behalf of now ten victims of Israel’s raid, how are you pushing forward in this case? RY: In December, there is going to be another hearing, and we’re just going to make sure that the entire world will know about this arrest warrant, that we will follow whether any of these four defendants steps foot outside of Israel. We have lawyers in different countries also working together, and in South Africa, in the UK, many, many countries more — they will also closely follow whether these four defendants will travel in these countries. And then if this is the case, we will immediately take action and make sure that if the country in which one of the four defendants steps foot refuses, or neglects to fulfill its obligation to arrest [the defendant], then we will make sure that that country will not get away with it. And we will push for it, and publicize this as much as we can.
  • Paul Merrell on 03 Jun 14
     
    A historic day indeed. Turkey is a member of both NATO and INTERPOL. Four high-ranking Israeli military officers will be on the INTERPOL arrest list soon, with a network of human rights lawyers around the world on the watch and ready to enforce INTERPOL arrest obligations. In other words, these officers' travel outside Israel will be very unlikely to include INTERPOL treaty nations and European extradition convention nations as either destinations or waypoints. The deterrent effect on Israeli government officials is considerable, particularly with another criminal prosecution pending in Spain. Fittingly, the Turkish court has aimed its message at high military officials who directed the assassinations rather than at the low-ranking soldiers who committed them. Message to high Israeli officials: be nice to Turkish citizens if you want to ever travel outside Israel.  One can only wish that the same message had been delivered about American citizens. The victim shot five times including a point blank shot to the head was an American citizen. Many of the kidnaped human rights people on the Navi Marmara and accompanying boats were Americans. One of the boats was American-flagged. Under international law, these actions were casus belli, a sufficient cause for military retaliation against the government of Israel. But the cowardly Obama and Secretary of State Hillary Clinton did not so much as lodge a diplomatic protest, so fearful they are of the powerful Israel Lobby. 
Paul Merrell

Report Reveals Wider Tracking of Mail in U.S. - NYTimes.com - 0 views

www.nytimes.com/...itoring-mail-of-thousands.html

surveillance state USPS snail-mail-surveillance

shared by Paul Merrell on 01 Nov 14 - No Cached
  • In a rare public accounting of its mass surveillance program, the United States Postal Service reported that it approved nearly 50,000 requests last year from law enforcement agencies and its own internal inspection unit to secretly monitor the mail of Americans for use in criminal and national security investigations.The number of requests, contained in a 2014 audit of the surveillance program by the Postal Service’s inspector general, shows that the surveillance program is more extensive than previously disclosed and that oversight protecting Americans from potential abuses is lax.The audit, along with interviews and documents obtained by The New York Times under the Freedom of Information Act, offers one of the first detailed looks at the scope of the program, which has played an important role in the nation’s vast surveillance effort since the terrorist attacks of Sept. 11, 2001.
  • The Postal Service also uses a program called Mail Imaging, in which its computers photograph the exterior of every piece of paper mail sent in the United States. The program’s primary purpose is to process the mail, but in some cases it is also used as a surveillance system that allows law enforcement agencies to request stored images of mail sent to and received by people they are investigating.
  • The mail cover surveillance requests cut across all levels of government — from global intelligence investigations by the United States Army Criminal Investigations Command, which requested 500 mail covers from 2001 through 2012, to state-level criminal inquiries by the Georgia Bureau of Investigation, which requested 69 mail covers in the same period. The Department of Veterans Affairs requested 305, and the State Department’s Bureau of Diplomatic Security asked for 256. The information was provided to The Times under the Freedom of Information request.Continue reading the main story Continue reading the main story Postal officials did not say how many requests came from agencies in charge of national security — including the F.B.I., the Department of Homeland Security and Customs and Border Protection — because release of the information, wrote Kimberly Williams, a public records analyst for the Postal Inspection Service, “would reveal techniques and procedures for law enforcement or prosecutions.”
  • Paul Merrell on 01 Nov 14
     
    The full article is well worth the read.
Paul Merrell

Ecuador Gives Sweden Green Light for Assange Interrogation | News | teleSUR English - 0 views

www.telesurtv.net/...terrogation-20160115-0023.html

war & peace Wikileaks Assange Ecuador Sweden UK criminal-investigation

shared by Paul Merrell on 17 Jan 16 - No Cached
  • Ecuadorean Foreign Minister Ricardo Patiño confirmed Friday that his country granted the request submitted by Swedish authorities to interrogate Julian Assange in London, which could possibly result in the dropping of any future criminal charges against him. “Before (the Sweedish authorities) file three of the possible trials, they asked to go to the Ecuadorean embassy in London in order to collect his declarations,” said the state official in an interview with Radio Publica. “Julian Assange benefits from our protection for being exiled, and remains under the Ecuadorean juridiction.” Patiño explained that the procedure was the result of a two-month negotiation between the whistleblower and Swedish authorities.
  • For instance, the Swedish prosecutor could hand questions to their Ecuadorean counterpart, and the interrogation would be carried out with the presence of a Swedish attorney, he said. Once Assange's declarations are collected, Swedish authorities will be able to decide whether to proceded with criminal charges against Assange or not, meaning Assange could be able to finally leave the embassy were he has been forced to stay in since June 19, 2012. “We hope there won't be any issues with United Kingdom,” added Patiño, explaining Ecuador would then ask British authorities a letter of safe-passage, so Assange could head to the airport without fearing arrest. “Supposedly (Assange) should go straight to Ecuador, where he was granted asylum.” Swedish prosecutors have not indicated yet when they plan to visit the Ecuadorean Embassy in London to question Assange.
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