The American Bear

› ACLU files suit against NSA on behalf of...ACLU, and why metadata matters | Privacy SOS

Did you hear? The ACLU is suing the National Security Agency (NSA) for spying on…the ACLU.

That’s right. The ACLU is a Verizon Business customer, and its lawyers are pretty alarmed and ticked off to find that the government has been sweeping up the organization’s call and most likely internet records. As ACLU fellow Brett Max Kaufman put it in a blog,

As an organization that advocates for and litigates to defend the civil liberties of society’s most vulnerable, the staff at the ACLU naturally use the phone—a lot—to talk about sensitive and confidential topics with clients, legislators, whistleblowers, and ACLU members. And since the ACLU is a VBNS customer, we were immediately confronted with the harmful impact that such broad surveillance would have on our legal and advocacy work. So we’re acting quickly to get into court to challenge the government’s abuse of Section 215.

Readers well-versed in these issues will immediately recognize that the FISC court order to Verizon enables the ACLU to push back against the government’s central claim when its surveillance programs have previously been challenged in court.

In a prior lawsuit against NSA warrantless spying, Amnesty v. Clapper, the ACLU represented human rights attorneys, researchers, journalists and others who suspected their private and extremely confidential communications were subject to warrantless NSA spying. Just this year, the Supreme Court agreed with the government’s objection to that lawsuit and tossed it out of court.

That objection was called ‘standing’. Essentially the government said, and the Court agreed, that the ACLU’s clients couldn’t even bring the lawsuit because they couldn’t prove they were being spied on. The government wouldn’t disclose whether they were in fact spied on because, naturally, that is a State Secret.

All of that is now irrelevant, because the ACLU has incontrovertible evidence to prove that records of its communications, along with those of every other Verizon Business customer, have been vacuumed up without individual suspicion or due process.

› NSA surveillance challenged in court as criticism grows over US data program

The constitutional implications of Snowden’s revelations were addressed in the ACLU’s law suit, filed in the Southern District of New York. It claimed the National Security Agency’s acquisition of phone records of millions of Verizon users, obtained in April through an order by the secret Fisa court and revealed by the Guardian, violates the first and fourth amendments, which guarantee citizens’ right to association, speech and to be free of unreasonable searches and seizures. As a Verizon subscriber, the ACLU claimed standing to sue.

The suit also claims that the surveillance goes beyond the authorisation provided by section 215 of the Patriot Act, a claim made for years by two leading Democratic members of the Senate intelligence committee, Ron Wyden of Oregon and Mark Udall of Colorado.

Wyden revealed on Tuesday that he had given Clapper, the director of national intelligence, a day’s advance notice of a question about the extent of government surveillance at a congressional hearing earlier this year.

When asked directly by Wyden in March whether the NSA was collecting any kind of data on “millions” of Americans, Clapper replied “no” and “not wittingly” – a claim undermined by the Guardian’s disclosures about NSA collection of millions of Americans’ phone records. Wyden disclosed that he had given Clapper an opportunity in private to revise his answer, after the session. Clapper said earlier this week that he had answered the question in the “least untruthful” way possible.

› ACLU Comment on U.S. Admission to Killing Americans in Targeted Killing Program | American Civil Liberties Union

› Antiwar.com Sues FBI After Secret Surveillance | Kelley B. Vlahos

Antiwar.com is taking the FBI to court.

The website’s founder and managing editor Eric Garris, along with longtime editorial director Justin Raimondo, filed a lawsuit in federal court today, demanding the release of records they believe the FBI is keeping on them and the 17-year-old online magazine.

Antiwar.com says this is one more example of post-9/11 government overreach, and a stark reminder that the First Amendment has been treated as little more than a speed bump on the road to a government surveillance state. The lawsuit is particularly timely, considering recent scandals in which the Department of Justice secretly seized months of journalists’ phone records at the Associated Press, and did the same and more to a FOX News reporter, while the IRS is acknowledging it singled out conservative groups that criticize the government for extra scrutiny.

Suddenly, the press is more aware than ever that the state has the ability to secretly monitor its activities, heretofore thought of as constitutionally protected from government interference and intimidation.

“Freedom of the press is a cornerstone of our democracy, whether it’s AP or Antiwar.com,” said Julia Harumi Mass, staff attorney for the American Civil Liberties Union of Northern California, which is representing Antiwar.com in the case. “FBI surveillance of news organizations interferes with journalists’ ability to do their jobs as watchdogs that hold the government accountable.”

The suit was filed on Tuesday at the United States District Court, Northern District of California, San Francisco Division. Both Garris and Raimondo live and work in the San Francisco Bay area.

According to the suit, the ACLU has made several futile attempts to obtain the FBI files since a reader alerted Garris and Raimondo to this lengthy FBI memo in 2011. The details in question begin at page 62 of the heavily redacted 94-page document. It’s clear from these documents, the suit alleges, that the FBI has files on Garris and Raimondo, and at one point the FBI agent writing the April 30, 2004 memo on Antiwar.com recommends further monitoring of the website in the form of opening a “preliminary investigation …to determine if [redaction] are engaging in, or have engaged in, activities which constitute a threat to national security.”

“On one hand it seemed almost funny that we would be considered a threat to national security, but it’s very scary, because what we are engaging in is free speech, and free speech by ordinary citizens and journalists is now being considered a threat to national security and they don’t have to prove it because the government has the ability to suppress information and not disclose any of their activities – as witnessed with what is going on now at the AP and other things,” said Garris.

“The government’s attitude is they want to know all, but they want the public to know as little as possible.” [continue]

› AG Holder, FBI and U.S. Attorneys' offices can't agree on a warrant requirement for email surveillance | Privacy SOS

› ACLU lawsuit takes on FBI surveillance of news organizations including Antiwar.com | War in Context

› DOJ Releases Completely Blacked-Out Memo on Surveillance of Text Messages

The Justice Department has released 15 pages of completely blacked-out material in response to a request for information about how text messages from cellphones are intercepted. The American Civil Liberties Union says the Obama administration is reading emails and other electronic communications without a warrant, despite a court ruling against the practice. In response to a recent Freedom of Information Act request on the issue, the Justice Department released a memo with black rectangles covering every bit of text except the title, sender and recipient. ACLU spokesperson Josh Bell told ABC News: “We got very little information about the policy on text messages. [The document] does not even show the date, let alone what the policy is.”

Paperclipped to the last page of the redacted document was a sheet of white paper, blank, except for the phrase, perfectly centered both vertically and horizontally, “Go Fuck Yourself” in 12 pt. brush script.

› ACLU and CCR Comment on New York Times Article on Killing of Anwar Al-Aulaqi | American Civil Liberties Union

NEW YORK - The American Civil Liberties Union and the Center for Constitutional Rights issued the following statement in response to The New York Times article today detailing the U.S. government’s killings of three U.S. citizens:

“In anonymous assertions to The New York Times, current and former Obama administration officials seek to justify the killings of three U.S. citizens even as the administration fights hard to prevent any transparency or accountability for those killings in court. This is the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program, including its use against citizens.

“Government officials have made serious allegations against Anwar al-Aulaqi, but allegations are not evidence, and the whole point of the Constitution’s due process clause is that a court must distinguish between the two. If the government has evidence that Al-Aulaqi posed an imminent threat at the time it killed him, it should present that evidence to a court. Officials now also anonymously assert that Samir Khan’s killing was unintended and that the killing of 16-year-old Abdulrahman al-Aulaqi was a mistake, even though in court filings the Obama administration refuses to acknowledge any role in those killings. In court filings made just last week, the government in essence argued, wrongly, that it has the authority to kill these three Americans without ever having to justify its actions under the Constitution in any courtroom.”

The ACLU and CCR are challenging the legality of the drone strike that killed Al-Aulaqi and Khan, as well as the separate strike that killed Al-Aulaqi’s 16-year-old son, Abdulrahman, in Yemen in September and October 2011.

The ACLU is also seeking disclosure of the legal memoranda written by the Department of Justice Office of Legal Counsel that provided justifications for the targeted killing of Al-Aulaqi, as well as records describing the factual basis for the killings of all three Americans, in a separate Freedom of Information Act lawsuit.

› ACLU Obtains Emails That Prove ICE Officials Set Deportation Quotas

sinidentidades:

A set of e-mails obtained by the American Civil Liberties Union of North Carolina show U.S. immigration officials developed strategies to increase the number of deportations so they could surpass the previous year’s record deportation numbers.

Federal immigration authorities have claimed to target people who pose a threat to public safety but these email show officials targeted immigrants convicted of minor crimes.

“These recently reported documents suggest that ICE’s ‘targeted’ approach may have less to do with public safety or a focus on serious crimes, and more to do with the agency’s laser focus on meeting deportation levels,” said Seth Freed Wessler, Colorlines.com’s investigative reporter.

Wessler says the documents provide evidence to support what advocates have long argued: immigration enforcement as it’s currently practiced looks more like a dragnet than a harpoon.

USA Today analyzed the emails and point to some of the strategies used to increase the number of deportations:

Among those new tactics - detailed in interviews and internal e-mails - were trolling state driver’s license records for information about foreign-born applicants, dispatching U.S. Immigration and Customs Enforcement (ICE) agents to traffic safety checkpoints conducted by police departments, and processing more illegal immigrants who had been booked into jails for low-level offenses. Records show ICE officials in Washington approved some of those steps.

…

In April, officials told field office heads to map plans to increase removals, then instructed at least one field office that supervises enforcement throughout Georgia, North Carolina and South Carolina to go ahead with efforts to mine DMV records and step up their efforts to deport people who had been booked into county jails, among other measures.

ICE spokeswoman Gillian Christensen told USA Today in a statement that “ICE does not have quotas.” She said the agency sets “annual performance goals” that “reflect the agency’s commitment to using the limited resources provided by Congress.”

Immigration advocates say this news doesn’t come as a surprise.

“The revelations about the Obama Administration’s deportation quotas are shocking, but not a suprise” said Arturo Carmona, Executive Director of Presente.org. “Anyone who knows the hard working people that the Administration is calling ‘criminals,’ who are being jailed by the thousands and deported by the millions, knows that government officials have such internal quotas. Other officials do an injustice to us all when they repeat false claims that there is some sort of legal mandate to deport 400,000 people a year. There’s not. And now everybody can see the ‘bonuses,’ deceit and dirty politics behind the immigrant tragedy.”

Chris Newman, Legal Director of the National Day Laborer Organizing Network says the findings are offensive.

“Setting immigration policy by a deportation quota runs counter to every talking point the Obama administration has used in the past five years. It has endangered public safety. It offends both constitutional values and has led to grave civil rights violations,” Newman said.

“It’s the exact reason why the first step in immigration reform must be a suspension of deportations,” Newman went on to say.

(via theblackcommunist)

› DOJ sends bundle of completely censored documents in response to ACLU lawsuit

sinidentidades:

Responding to a lawsuit filed by the American Civil Liberties Union (ACLU), the Department of Justice (DOJ) turned over a bundle of documents that are completely blacked out.

The lawsuit was filed after the DOJ ignored a Freedom of Information Act (FOIA) request seeking information on how the agency interpreted a 2011 Supreme Court decision (PDF) that bans law enforcement from using GPS technology to track Americans without a warrant.

The Department responded to the lawsuit with 111 pages of attorney memos, but only two pages are legible. The rest are covered by large black rectangles that blot out all useful information.

“The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking—possibly for months at a time—or whether the government will first get a warrant,” ACLU staff attorney Catherine Crump explained in a statement.

“This is yet another example of secret surveillance policies—like the Justice Department’s secret opinions about the Patriot Act’s Section 215—that simply should not exist in a democratic society,” she added. “Privacy law needs to keep up with technology, but how can that happen if the government won’t even tell us what its policies are?”

The ACLU said it would be asking a federal court to force the DOJ to release the uncensored versions of the two memos. Until then, it’s anyone’s guess what the federal government considers to be the limit of its power to stalk citizens without prior approval by a judge.

Link to the memos

› Warrantless Eavesdropping Before Supreme Court | Wired

The Supreme Court on Monday will hear arguments on whether it should halt a legal challenge to a once-secret warrantless surveillance program targeting Americans’ communications, a program that Congress eventually legalized in 2008.

The hearing will mark the first time the Supreme Court has reviewed any case touching on the eavesdropping program that was secretly employed by the George W. Bush administration in the wake of the September 11, 2001 terror attacks, and largely codified into law years later.

Before the justices is the FISA Amendments Act (.pdf), the subject of a lawsuit brought by the American Civil Liberties Union and others. The act authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed to be outside the United States. Communications may be intercepted “to acquire foreign intelligence information.”

The government has also, according to former top Justice Department lawyer David Kris, taken the ”position that surveillance of a U.S. person’s home and mobile telephones was ‘directed at’ al Qaeda, not at the U.S. person himself. [T]his logic seemed to allow surveillance of Americans’ telephones and e-mail accounts, inside the United States, without adherence to traditional FISA, as long as the government could persuade itself that the surveillance was indeed ‘directed’ at al Qaeda or another foreign power that was reasonably believed to be abroad.”

That bill was signed into law in July 2008, and the ACLU filed suit immediately claiming it was unconstitutional. A lower court judge tossed the suit.

But a surprise appellate court decision last year reinstated the challenge. The Obama administration asked the Supreme Court to overturn the decision and, in May, the justices agreed to do so. [continue]

› ACLU Asking the Federal Government How It’s Using Drones Inside the U.S. | Free Future

Today the ACLU filed Freedom of Information Act requests seeking records related to the federal government’s domestic use of Unmanned Aerial Systems (UAS) – better known as drones – as well as plans for the future rollout of drones in the United States. Drone technology is largely a product of our war efforts abroad, but the federal government is repurposing these machines for surveillance purposes at home.

We sent the FOIA requests to five federal agencies:

♦ Federal Aviation Administration: Following the FAA Modernization and Reform Act of 2012, the FAA has been tasked with developing a plan for incorporating drones into the national airspace by 2015, and authorizing private and public entities to utilize drones. We’d like to see the FAA’s records on drone flights as well as any policies they’ve been developing.
♦ Department of Justice: DOJ oversees several agencies that we know are using drones in the U.S., including the FBI and DEA. We’d like to know how each agency is using their own drones, drones that they’re borrowing, and drones that they’re lending.
♦ Department of Homeland Security: DHS also oversees several drone-totin’ departments, including U.S. Customs and Border Protection. We’d like to know how DHS is using, and sharing, its drones.
♦ General Services Administration: According to a recent GAO report, “Federal agencies that own or lease UAS report their UAS inventory, cost and utilization data to GSA.” We’ve asked them to share this information.
♦ U.S. Air Force: In a recent document implementing new policy, the Air Force listed several permissible domestic drone uses, including responding to natural disasters, counterintelligence, vulnerability assessments, training, and testing. We’d like to find out how they’ve been using drones for these purposes, or any others.

The ACLU wants to know how the government is using, acquiring, paying for, and sharing drones. We’ve asked the following questions to the government:

♦ How are drones being funded and purchased?
♦ What are the technical capabilities of drones that are being flown in the U.S.?
♦ What type of surveillance data is being captured, and how long is it being stored?
♦ Who can access drones and the data they capture?
♦ What other policies or procedures currently govern the domestic use of drones?

Though the full extent of government ownership of drones remains unclear, one example of government drone use involves U.S. Customs and Border Protection, which is using drones to patrol both our northern and southern borders. The U.S. Border Patrol owns nine drones and is awaiting the delivery of its tenth. Additionally, the Department of Justice is rumored to have four drones of its own that it loans out to police departments.

The ACLU released a report on domestic drones in December 2011, urging that rules be put in place to safeguard Americans’ privacy. The report recommends limits on when drones can be deployed and for what purposes, and calls for restrictions on retention of and access to data collected by drones employed for any purpose. Today’s FOIA requests seek to determine how extensively the government has heeded this advice. [++]

› Are Judges finally Standing up to Secretive Drone Assassinations? | Jack Searle

Three federal appeal court judges greeted US government efforts to block the release of information on the CIA’s targeted killings programme with skepticism on Thursday, as they grilled the administration’s lawyers for double the scheduled time.

The American Civil Liberties Union (ACLU) is challenging the Obama administration to reveal records of the CIA’s drone programme, including the legal basis and policy decisions that allow the intelligence agency to target and kill alleged militants in foreign countries.

But the government refuses even to confirm or deny whether the records exist. Judge Merrick Garland responded by saying that the government was asking the court to say ‘the emperor has clothes, even when the emperor’s boss’ says the emperor does not have clothes, according to AP.

Sitting in the Washington DC circuit appeals court, Judge Garland put it to the government legal team that a speech by John Brennan, President Obama’s chief counter terrorism adviser, amounted to an official acknowledgment of the CIA drone programme.

Jameel Jaffar, ACLU deputy director, who gave evidence to the court, later told the Bureau: ‘All three judges questioned the government aggressively about the disconnect between its position in court…and the many statements it has made publicly about the programme.’

But Department of Justice lawyers stuck to their position that the government has not officially acknowledged the CIA’s use of drones.

‘Hardly secret’

Yesterday’s hearing was the latest installment of a two-and-half year legal battle between the ACLU and the US government.

The … group is also suing the government to reveal information about the killing of Anwar al Awlaki in a US drone strike in Yemen last year, and a cruise missile strike in Yemen in 2009 that killed 22 children. The ACLU is also helping al Awlaki’s family to bring cases against former CIA director and current Secretary of Defence Leon Panetta, and President Obama.

The Bureau is one of a number of bodies that has filed an amicus brief with the Washington DC court in support of the ACLU’s argument, saying: ‘The existence of the CIA’s targeted killing programme… is so widely acknowledged and heavily reported upon that it can hardly be called a secret anymore.’

The government’s justification for refusing to give up information about its drone strikes is only applicable if the government has not officially acknowledged the CIA is using the unmanned aircraft in Pakistan. Last year a district court decided in the government’s favour.

The ACLU is now appealing that decision, saying that senior members of the Obama administration, including Obama and Panetta, have openly discussed the programme in speeches and interviews.

The ACLU believes this equates to official acknowledgement of an eight-year campaign that has seen the CIA launch 344 drone strikes, killing between 2,562 and 3,325 people in Pakistan. At least 474 of those killed were civilians and 176 children,according to data collected by the Bureau.

‘I continue to feel that anyone who reads these statements can’t possibly come away with the impression that the CIA has done anything except acknowledge that it uses drones to carry out targeted killings,’ said Jaffar.

› ACLU takes CIA to court over drone strikes | Paul Harris

The American Civil Liberties Union will go to court on Thursday in an attempt to get the CIA to hand over documents related to President Barack Obama‘s controversial “targeted killing” programme that uses unmanned drones to strike suspected Islamic militants.

The programme has been repeatedly referenced in public by numerous senior officials, including by Obama himself and defence secretary Leon Panetta, but the spy agency has refused to comply with a Freedom of Information Act request from the civil liberties group because it says it will not confirm the secretive use of drones.

As a result the ACLU has gone to court to argue that the CIA cannot deny the existence of a programme that has been so widely reported, including in great detail in off-the-record briefings by administration and agency officials. Jameel Jaffer, the deputy legal director of the ACLU, said: “It is preposterous. The assertion that this programme is a secret is nothing short of absurd.

“For more than two years, senior officials have been making claims about the programme both on the record and off. They’ve claimed that the programme is effective, lawful and closely supervised. If they can make these claims, there is no reason why they should not be required to respond to [FOIA] requests.”

[…]

The ACLU’s demand for details of the programme – including documents related to its legal justification drawn up by the department of justice – is aimed at prompting a national debate on the scope of the drone programme and how it is used. Its legality is a particular issue. The memorandum justifying the legal basis for the targeted killing has now been requested by at least 10 members of Congress and three different lawsuits but it remains so secret that that acknowledging its existence is a classified matter. “The public has a right to decide for itself whether or not the programme is lawful or moral,” Jaffer said.

Some legal and security experts agree and believe that the current boom in drone warfare is only like to increase the demand for greater openness about how and why the weapons are used. Professor Amos Guiora, a national security and legal expert at the University of Utah, said: “Given that the drones are the warfare of the future you need a public debate about what’s being done in the public’s name.”