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Paul Merrell

Report on the Free Flow of Information Act - 0 views

www.fas.org/...freeflow.html

surveillance state s.987 press-shield-legislation

shared by Paul Merrell on 13 Nov 13 - No Cached
  • 113th Congress Report SENATE 1st Session 113-118 ====================================================================== FREE FLOW OF INFORMATION ACT OF 2013 _______ November 6, 2013.--Ordered to be printed _______ Mr. Leahy, from the Committee on the Judiciary, submitted the following R E P O R T together with ADDITIONAL AND MINORITY VIEWS [To accompany S. 987]
  • Senator Cornyn offered an amendment (ALB13708) that would ensure that all persons or entities that are protected under the Free Press Clause of the First Amendment are covered by the bill's privilege. The Committee rejected the amendment by a roll call vote. The vote record is as follows: Tally: 4 Yeas, 13 Nays, 1 Pass Yeas (4): Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R- AZ) Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D- MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley (R-IA), Hatch (R-UT), Graham (R-SC) Pass (1): Feinstein (D-CA)
  • ADDITIONAL MINORITY VIEWS FROM SENATORS CORNYN, SESSIONS, LEE, AND CRUZ On December 15, 1791, the United States of America ratified the Bill of Rights--the first ten amendments to the U.S. Constitution. The first among them states: ``Congress shall make no law . . . abridging the freedom . . . of the press[.]'' United States Constitution, amend. I. The freedom of the press does not discriminate amongst groups or individuals--it applies to all Americans. As the Supreme Court has long recognized, it was not intended to be limited to an organized industry or professional journalistic elite. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (the ``liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a fundamental personal right[.]''); Lovell v. Griffin, 303 U.S. 444, 452 (1938) (``The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.''). The Founders recognized that selectively extending the freedom of the press would require the government to decide who was a journalist worthy of protection and who was not, a form of licensure that was no freedom at all. As Justice White observed in Branzburg, administering a privilege for reporters necessitates defining ``those categories of newsmen who qualified for the privilege.'' 408 U.S. at 704 That inevitably does violence to ``the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.'' Id.
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  • The First Amendment was adopted to prevent--not further-- the federal government licensing of media. See Lovell, 303 U.S. at 451 (striking an ordinance ``that . . . strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor.''). But federal government licensing is exactly what the Free Flow of Information Act would create. The bill identifies favored forms of media--``legitimate'' press--by granting them a special privilege. That selective grant of privilege is inimical to the First Amendment, which promises all citizens the ``freedom of the press.'' See Branzburg, 408 U.S. at 704 (``Freedom of the press is a fundamental personal right[.]'') (emphasis added). It also threatens the viability of any other form of press. The specially privileged press will gain easier access to news. That will tip the scales against its competitors and make it beholden to the government for that competitive advantage. A law enacted to protect the press from the state will, in fact, make that press dependent upon the federal government--anything but free.
  • Proponents of this bill suggest that, because the Constitution does not provide a reporter's privilege, Congress's provision of a limited privilege cannot raise any constitutional concerns. Those proponents misunderstand--and thus run afoul of--the First Amendment. The First Amendment was adopted to prevent press licensure. While it does not create a ``reporter's privilege'' on its own, it abhors the selective grant of privilege to one medium over another. The American Revolution was stoked by renegade pamphleteers and town criers who used unlicensed presses to overthrow tyranny. Today, ``any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.'' Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). If today's town crier or pamphleteer must meet a test set by the federal government to avail themselves of liberty, we have gone less far from tyranny than any of us want to admit. This bill runs afoul of the First Amendment to the United States Constitution and amounts to de facto licensing. It would weaken the newly-illegitimate press, render the specially privileged press supplicant to the federal government and ultimately undermine liberty. This legislation also raises a number of serious national security concerns, as discussed in the minority views authored by Senator Sessions. For these reasons, we oppose this bill. John Cornyn. Jeff Sessions. Michael S. Lee. Ted Cruz.
  • Paul Merrell on 13 Nov 13
     
    The Senate Committee on the Judiciary reports with a do-pass recommendation a bill to grant a "covered journalist" a limited testimonial privilege against revealing news sources. But the attempt to grant such a shield to mainstream media reporters not only runs afoul of the First Amendment as indicated by the quoted minority view, but also a denial of equal protection of the law for non-mainstream media investigators and lowly citizens. The core problem is the Supreme Court has invariably held that members of the press have no greater protection under the first amendment than the lowly pamphleteer, hence the denial of Equal Protection of the law in this legislation.  The legislation is in direct response to government surveillance of the press and reporters being required by the courts to reveal their sources of classified information. 
Paul Merrell

Venezuela's Maduro Granted Decree Powers by Parliament to Confront Imperialism | venezu... - 0 views

venezuelanalysis.com/11272

war & peace U.S.-foreign-policy Venezuela emergency-powers

shared by Paul Merrell on 17 Mar 15 - No Cached
  • Venezuelan President Nicolas Maduro looks set to pass landmark legislation aimed at shielding the country from continued US aggression, after the Venezuelan parliament approved his request for temporary decree powers on Sunday.  Officially submitted to parliament last week, the petition was a response to the release of an Executive Order from the White House which classified Venezuela as an “extraordinary threat to U.S. national security”. The designation was preceded by a series of sanctions against Venezuelan officials enacted by the Obama administration, which cited unsubstantiated allegations of human rights abuses.  Venezuela and almost all countries in the Latin American region have interpreted the move as an act of interference and aggression. 
  • Venezuelans Mobilize in Marches and Military Exercises in Defense of Sovereignty Against U.S. Aggression
  • Entitled the "Anti-Imperialist Enabling Law for Peace", the latest decree powers will last for a period of nine months and allow the president to pass legislation in pre-established areas without parliamentary debate and consent - a process which can take several years.  According to the draft presented by Maduro to parliament, the four articles which make up the law are designed to “prepare the country for any eventuality”. 
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  • UNASUR Rejects US Aggressions on Venezuela Mar 16th Venezuelan Social Movements Take to the Streets to Oppose U.S. Aggression Mar 13th Venezuelan Assembly Grants Executive Powers while Military Drills in Defensive Exercises
  • Initially written into Venezuela’s Constitution in 1961, the enabling laws are often used when the president is deemed to be responding to a situation which requires immediate action. Nonetheless, they require at least 60% approval from the National Assembly and consent from a designated specialist commission.  The laws have subsequently been used by several Venezuelan presidents, including former president Hugo Chavez in 1999, 2000, 2007 and 2010.  President Maduro last made use of the laws in 2013 in order to pass a slew of anti-corruption legislation, for which he was condemned by the Obama administration for allegedly overstepping his boundaries as chief executive. However, critics have fired back that Obama's own executive orders targetting Venezuela with sanctions do not, by contrast, require legislative approval.
  • Although few details are known about the prospective laws, on Sunday Cabello confirmed that the government was looking to create a norm in order to “repatriate all Venezuelan capital” being held in the U.S. 
  • While legislators from the ruling United Socialist Party of Venezuela (PSUV) voted unanimously in favour of the law, its use was opposed by all but one opposition legislator. A dissident from the opposition coalition, the Roundtable of Democratic Unity, Ricardo Sanchez, stated that his defence of the law came down to “whether we are prepared to defend the sacred soil or whether we will be collaborators with foreign boots."  “If this (executive order) isn’t the preamble to a military intervention, then it certainly looks like one,” stated the legislator to private press.  Many opposition politicians have longstanding ties to the United States, and some parties such as Voluntad Popular (The Popular Will party) have received funding from US "democracy promotion" organisations such as the NED (National Endowment Democracy) and USAID (U.S. Agency for International Development). 
  • Paul Merrell on 17 Mar 15
     
    Fears of a U.S. invasion have become widespread in Venezuela after two failed U.S.-instigated coup attempts, sanctions issued by Obama, and bellicose statements by prominent War Party members of the U.S. Congress.   
Paul Merrell

Spy Chief James Clapper Wins Rosemary Award - 0 views

www2.gwu.edu/...20140324

surveillance state NSA Rosemary-Award Obama Clapper Alexander

shared by Paul Merrell on 24 Mar 14 - No Cached
  • Director of National Intelligence James Clapper has won the infamous Rosemary Award for worst open government performance in 2013, according to the citation published today by the National Security Archive at www.nsarchive.org. Despite heavy competition, Clapper's "No, sir" lie to Senator Ron Wyden's question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" sealed his receipt of the dubious achievement award, which cites the vastly excessive secrecy of the entire U.S. surveillance establishment. The Rosemary Award citation leads with what Clapper later called the "least untruthful" answer possible to congressional questions about the secret bulk collection of Americans' phone call data. It further cites other Clapper claims later proved false, such as his 2012 statement that "we don't hold data on U.S. citizens." But the Award also recognizes Clapper's fellow secrecy fetishists and enablers, including:
  • Gen. Keith Alexander, director of the NSA, for multiple Rose Mary Woods-type stretches, such as (1) claiming that the secret bulk collection prevented 54 terrorist plots against the U.S. when the actual number, according to the congressionally-established Privacy and Civil Liberties Oversight Board (PCLOB) investigation (pp. 145-153), is zero; (2) his 2009 declaration to the wiretap court that multiple NSA violations of the court's orders arose from differences over "terminology," an explanation which the chief judge said "strains credulity;" and (3) public statements by the NSA about its programs that had to be taken down from its website for inaccuracies (see Documents 78, 85, 87 in The Snowden Affair), along with public statements by other top NSA officials now known to be untrue (see "Remarks of Rajesh De," NSA General Counsel, Document 53 in The Snowden Affair).
  • Robert Mueller, former FBI director, for suggesting (as have Gen. Alexander and many others) that the secret bulk collection program might have been able to prevent the 9/11 attacks, when the 9/11 Commission found explicitly the problem was not lack of data points, but failing to connect the many dots the intelligence community already had about the would-be hijackers living in San Diego. The National Security Division lawyers at the Justice Department, for misleading their own Solicitor General (Donald Verrilli) who then misled (inadvertently) the U.S. Supreme Court over whether Justice let defendants know that bulk collection had contributed to their prosecutions. The same National Security Division lawyers who swore under oath in the Electronic Frontier Foundation's Freedom of Information Act lawsuit for a key wiretap court opinion that the entire text of the opinion was appropriately classified Top Secret/Sensitive Compartmented Information (release of which would cause "exceptionally grave damage" to U.S. national security). Only after the Edward Snowden leaks and the embarrassed governmental declassification of the opinion did we find that one key part of the opinion's text simply reproduced the actual language of the 4th Amendment to the U.S. Constitution, and the only "grave damage" was to the government's false claims.
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  • President Obama for his repeated misrepresentations about the bulk collection program (calling the wiretap court "transparent" and saying "all of Congress" knew "exactly how this program works") while in effect acknowledging the public value of the Edward Snowden leaks by ordering the long-overdue declassification of key documents about the NSA's activities, and investigations both by a special panel and by the Privacy and Civil Liberties Oversight Board. The PCLOB directly contradicted the President, pointing out that "when the only means through which legislators can try to understand a prior interpretation of the law is to read a short description of an operational program, prepared by executive branch officials, made available only at certain times and locations, which cannot be discussed with others except in classified briefings conducted by those same executive branch officials, legislators are denied a meaningful opportunity to gauge the legitimacy and implications of the legal interpretation in question. Under such circumstances, it is not a legitimate method of statutory construction to presume that these legislators, when reenacting the statute, intended to adopt a prior interpretation that they had no fair means of evaluating." (p. 101)
  • Even an author of the Patriot Act, Rep. Jim Sensenbrenner (R-WI), was broadsided by the revelation of the telephone metadata dragnet. After learning of the extent of spying on Americans that his Act unleashed, he wrote that the National Security Agency "ignored restrictions painstakingly crafted by lawmakers and assumed plenary authority never imagined by Congress" by cloaking its actions behind the "thick cloud of secrecy" that even our elected representatives could not breech. Clapper recently conceded to the Daily Beast, "I probably shouldn't say this, but I will. Had we been transparent about this [phone metadata collection] from the outset … we wouldn't have had the problem we had." The NSA's former deputy director, John "Chris" Inglis, said the same when NPR asked him if he thought the metadata dragnet should have been disclosed before Snowden. "In hindsight, yes. In hindsight, yes." Speaking about potential (relatively minimal) changes to the National Security Agency even the president acknowledged, "And all too often new authorities were instituted without adequate public debate," and "Given the unique power of the state, it is not enough for leaders to say: Trust us. We won't abuse the data we collect. For history has too many examples when that trust has been breached." (Exhibit A, of course, is the NSA "watchlist" in the 1960's and 1970's that targeted not only antiwar and civil rights activists, but also journalists and even members of Congress.)
  • The Archive established the not-so-coveted Rosemary Award in 2005, named after President Nixon's secretary, Rose Mary Woods, who testified she had erased 18-and-a-half minutes of a crucial Watergate tape — stretching, as she showed photographers, to answer the phone with her foot still on the transcription pedal. Bestowed annually to highlight the lowlights of government secrecy, the Rosemary Award has recognized a rogue's gallery of open government scofflaws, including the CIA, the Treasury Department, the Air Force, the FBI, the Federal Chief Information Officers' Council, and the career Rosemary leader — the Justice Department — for the last two years. Rosemary-winner James Clapper has offered several explanations for his untruthful disavowal of the National Security Agency's phone metadata dragnet. After his lie was exposed by the Edward Snowden revelations, Clapper first complained to NBC's Andrea Mitchell that the question about the NSA's surveillance of Americans was unfair, a — in his words — "When are you going to stop beating your wife kind of question." So, he responded "in what I thought was the most truthful, or least untruthful, manner by saying 'no.'"
  • After continuing criticism for his lie, Clapper wrote a letter to Chairman of the Senate Select Committee on Intelligence Dianne Feinstein, now explaining that he misunderstood Wyden's question and thought it was about the PRISM program (under Section 702 of the Foreign Intelligence Surveillance Act) rather than the telephone metadata collection program (under Section 215 of the Patriot Act). Clapper wrote that his staff "acknowledged the error" to Senator Wyden soon after — yet he chose to reject Wyden's offer to amend his answer. Former NSA senior counsel Joel Brenner blamed Congress for even asking the question, claiming that Wyden "sandbagged" Clapper by the "vicious tactic" of asking "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Meanwhile, Steve Aftergood of the Federation of American Scientists countered that "it is of course wrong for officials to make false statements, as DNI Clapper did," and that in fact the Senate Intelligence Committee "became complicit in public deception" for failing to rebut or correct Clapper's statement, which they knew to be untruthful. Clapper described his unclassified testimony as a game of "stump the chump." But when it came to oversight of the National Security Agency, it appears that senators and representatives were the chumps being stumped. According to Representative Justin Amash (R-Mich), the House Intelligence Committee "decided it wasn't worthwhile to share this information" about telephone metadata surveillance with other members of Congress. Classified briefings open to the whole House were a "farce," Amash contended, often consisting of information found in newspapers and public statutes.
  • The Emmy and George Polk Award-winning National Security Archive, based at the George Washington University, has carried out thirteen government-wide audits of FOIA performance, filed more than 50,000 Freedom of Information Act requests over the past 28 years, opened historic government secrets ranging from the CIA's "Family Jewels" to documents about the testing of stealth aircraft at Area 51, and won a series of historic lawsuits that saved hundreds of millions of White House e-mails from the Reagan through Obama presidencies, among many other achievements.
  • Director Clapper joins an undistinguished list of previous Rosemary Award winners: 2012 - the Justice Department (in a repeat performance, for failure to update FOIA regulations for compliance with the law, undermining congressional intent, and hyping its open government statistics) 2011- the Justice Department (for doing more than any other agency to eviscerate President Obama's Day One transparency pledge, through pit-bull whistleblower prosecutions, recycled secrecy arguments in court cases, retrograde FOIA regulations, and mixed FOIA responsiveness) 2010 - the Federal Chief Information Officers' Council (for "lifetime failure" to address the crisis in government e-mail preservation) 2009 - the FBI (for having a record-setting rate of "no records" responses to FOIA requests) 2008 - the Treasury Department (for shredding FOIA requests and delaying responses for decades) 2007 - the Air Force (for disappearing its FOIA requests and having "failed miserably" to meet its FOIA obligations, according to a federal court ruling) 2006 - the Central Intelligence Agency (for the biggest one-year drop-off in responsiveness to FOIA requests yet recorded).   ALSO-RANS The Rosemary Award competition in 2013 was fierce, with a host of government contenders threatening to surpass the Clapper "least untruthful" standard. These secrecy over-achievers included the following FOI delinquents:
  • Admiral William McRaven, head of the Special Operations Command for the raid that killed Osama Bin Laden, who purged his command's computers and file cabinets of all records on the raid, sent any remaining copies over to CIA where they would be effectively immune from the FOIA, and then masterminded a "no records" response to the Associated Press when the AP reporters filed FOIA requests for raid-related materials and photos. If not for a one-sentence mention in a leaked draft inspector general report — which the IG deleted for the final version — no one would have been the wiser about McRaven's shell game. Subsequently, a FOIA lawsuit by Judicial Watch uncovered the sole remaining e-mail from McRaven ordering the evidence destruction, in apparent violation of federal records laws, a felony for which the Admiral seems to have paid no price. Department of Defense classification reviewers who censored from a 1962 document on the Cuban Missile Crisis direct quotes from public statements by Soviet Premier Nikita Khrushchev. The quotes referred to the U.S. Jupiter missiles in Turkey that would ultimately (and secretly) be pulled out in exchange for Soviet withdrawal of its missiles in Cuba. The denials even occurred after an appeal by the National Security Archive, which provided as supporting material the text of the Khrushchev statements and multiple other officially declassified documents (and photographs!) describing the Jupiters in Turkey. Such absurd classification decisions call into question all of the standards used by the Pentagon and the National Declassification Center to review historical documents.
  • Admiral William McRaven memo from May 13, 2011, ordering the destruction of evidence relating to the Osama bin Laden raid. (From Judicial Watch)
  • The Department of Justice Office of Information Policy, which continues to misrepresent to Congress the government's FOIA performance, while enabling dramatic increases in the number of times government agencies invoke the purely discretionary "deliberative process" exemption. Five years after President Obama declared a "presumption of openness" for FOIA requests, Justice lawyers still cannot show a single case of FOIA litigation in which the purported new standards (including orders from their own boss, Attorney General Eric Holder) have caused the Department to change its position in favor of disclosure.
Paul Merrell

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

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

transparency FOIA U.S. records

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