The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets.
Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment.
Judge Richard Leon, NSA phone surveillance program likely unconstitutional, federal judge rules
As you my have heard, there’s a trial going on here in San Francisco about the legality of the complete lack of any sort of due process concerning the US’s “no fly” list. The NY Times has a good background article on the case, which notes that somewhere around 700,000 people appear to be on the list, where there’s basically no oversight of the list and no recourse if you happen to be placed on the list. This lawsuit, by Rahinah Ibrahim is challenging that.
In that case, a Stanford University Ph.D. student named Rahinah Ibrahim was prevented from boarding a flight at San Francisco International Airport in 2005, and was handcuffed and detained by the police. Ultimately, she was allowed to fly to Malaysia, her home country, but she has been unable to return to the United States because the State Department revoked her student visa.
According to court filings, two agents from the Federal Bureau of Investigation visited Ms. Ibrahim a week before her trip and asked about her religious activities (she is Muslim), her husband and what she might know of a Southeast Asian terrorist organization. A summary of that interview obtained by Ms. Ibrahim’s lawyer includes a code indicating that the visit was related to an international terrorism investigation, but it is not clear what other evidence — like email or phone records — was part of that inquiry.
The Identity Project blog is covering the trial, which kicked off earlier this week with a ridiculous situation, highlighted by BoingBoing. Apparently, one of the people set to testify in the case, Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a lawyer, was an eye witness to her mother being blocked from boarding her flight. The US knew that Kamal was set to testify and from all indications, in a move that appears extremely petty, appears to have purposely blocked her from flying to the US. Kamal was directly told by the airline that DHS had ordered them not to let Kamal to board. The airline even gave her a phone number for a Customs and Border Patrol office in Miami, telling her to call that concerning her not being able to board.
Judge William Alsup, who is known for his rather no-nonsense approach in court (and his willingness to dig very deep into understanding the issues), quickly noted that this apparent blocking of Kamal was ridiculous, and demanded that the government explain what happened. When they insisted they knew nothing about it, Alsup wasn’t satisfied. Nor was he satisfied with the story they eventually came back with. [READ]
The U.S. hypes the threat of hackers in order to justify the multi billion dollar cyber security industrial complex, but it is also responsible for the same conduct it aggressively prosecutes and claims to work to prevent. The hypocrisy of ‘law and order’ and the injustices caused by capitalism cannot be cured by institutional reform but through civil disobedience and direct action. Yes I broke the law, but I believe that sometimes laws must be broken in order to make room for change.
Jeremy Hammond’s Sentencing Statement
Back in January of 2012 former war correspondent Christ Hedges and others, including Noam Chomsky and Daniel Ellsberg, filed a lawsuit in federal court challenging the constitutionality of the 2012 National Defense Authorization Act (NDAA) and specifically the Act’s Section 1021(b)(2), which allows for indefinite detention by the U.S. military of people “who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States.” This detention denies those held of the ability to “contest the allegations against them because they have no right to be notified of the specific charges against them.” In this suit filed by Hedges et al., the issue in question was the vagueness of the terms “substantially support” and “associated forces.” For instance, could this vagueness lead to apprehension and detention of journalists who publish interviews with members of Al Qaeda or the Taliban? Could it lead to the same treatment against political activists protesting U.S. policies against these or “associated” groups?
The case, now designated Hedges v. Obama, was initially heard in New York District Court by Judge Katherine Forrest. The plaintiffs claimed that the NDAA violated the 1st (free speech), 5th (due process as well as the stipulation that people must be able to understand what actions break the law) and 14th (equal protection) Amendments to the Constitution. To address the question Judge Forrest asked the government lawyers if they could assure the court that the activities of the plaintiffs would not result in indefinite detention under the act. If they could give such assurances it would, as far as the judge was concerned, eliminate the plaintiff’s “standing” to challenge the law.
The government lawyers refused to give those assurances, and as a result, the judge concluded, “The definitions of ‘substantially supported’ and ‘associated forces’ were so vague that a reporter or activist could not be sure they would not be covered under the provision.” This, in turn, would result in what the plaintiffs considered a “chilling effect on free speech and freedom of the press.” Therefore, in September 2012, the Judge granted a permanent injunction against the practice of indefinite detention as put forth in NDAA.
There is no evidence that the U.S. government ever complied with this injunction, and its lawyers immediately appealed the ruling to the U.S. Second Circuit Court of Appeals. When the case was heard in this court, the U.S. Justice Department suddenly came up with the assurances it refused to give only weeks before. In part it was because of these assurances that the appeals court decided to overturn Forrest’s ruling and grant a permanent stay of her injunction. In one of its interim rulings, the appeals court observed, “Since the U.S. government has promised that citizens, journalists, and activists were not in danger of being detained as a result of NDAA, it was unnecessary to block the enforcement of 102 (b)(2) of the NDAA.” However, as Carl Mayer, the lawyer for Christopher Hedges, had noted earlier, “The government has not put in any evidence. They just keep making these broad assurances. It’s all a ‘trust us’ proceeding.” And trust them is exactly what the appellate judges did. The appeals court’s final ruling in favor of the government was given on 17 July 2013.
One can seriously ask, is any government that trustworthy? Particularly those governments that see themselves at endless war with shadowy enemies and which claim the need for “broad executive war powers” to wage the struggle? One of the reasons that the rule of law is so important is just because there must be limits to behavior for everyone, including the rule makers. Usually the rules that hold governments in check are set forth in constitutions. Laws formulated by branches of U.S. government should explicitly comply with the U.S. Constitution, not just promise to do so.
Despite the naive faith of the Second Circuit judges in the verbal assurances of government lawyers that the NDAA will be enforced in a constitutional manner, there is evidence that such assurances cannot be trusted. Government personnel seem not to have enough objectivity and simple common sense for trust to be placed in them. For example, consider the 2010 case of Holder v. Humanitarian Law Project.
This case was argued before the Supreme Court in January 2010 and challenged that part of the USA Patriot Act, which prohibits “material support” to groups designated terrorist organizations by the U.S. government. Just as “substantially support” and “associated forces” are too vague for Hedges and his fellow plaintiffs, so was “material support” too vague for the Humanitarian Law Project. The HLP was seeking to interact with alleged terrorist groups such as the Kurdistan Workers Party of Turkey so as to “help the group enter into peace negotiations and United Nations processes.” In other words, the HLP wanted to help lead such organizations away from violence and toward nonviolent strategies. Could this be construed as giving “material support” to terrorists? The Obama Justice Department, in striking disregard of common sense, argued that it was indeed material support and thus a criminal venture. And, as it turned out, in its June 2010 decision, the Supreme Court agreed.
This was not just an intellectual exercise in front of the highest court of the land. The resulting Supreme Court decision quickly assumed real life significance. Within three months of its decision, the FBI was raiding homes in Chicago and Minneapolis, confiscating computers and files, because they suspected some undefined connection between the residents and various alleged Colombian and Palestinian terrorist groups. The FBI cited Holder v. Humanitarian Law Project as legal justification for their actions.
In addition, enforcement of this law turned out to be blatantly selective. In January 2011 civil rights lawyer David Cole, who represented the HLP before the Supreme Court, noted that well-known political figures, such as former New York City mayor Rudolph Giuliani and former head of homeland security Tom Ridge, had committed felonies when they publicly spoke in support of the Mujahedeen Khalq, an Iranian designated terrorist group that happened also to be in opposition to the current Islamic government of Iran. The FBI has not, nor will it, raid their homes.
Under these circumstances, anyone who accepts at face value the assurance of government lawyers that laws such as the Patriot Act and NDAA will conform to the Constitution and not walk all over one’s civil rights should, as the old saying goes, have their head examined.
from American Civil Liberties Union
Judge Stephen Smith of the Southern District of Texas held that “warrantless disclosure of cell site data violates the Fourth Amendment.”
A few aspects of the opinion (PDF) are worth noting:
The government’s application appears to request historical location information for whenever the phone was turned on, not just when calls were made. According to Judge Smith, “the Government seeks continuous location data to track the target phone over a two month period, whether the phone was in active use or not.” This is notable because the cell tracking applications we have seen previously only sought location information for those moments when an individual actually made a phone call. The government is now asking for a great deal more information, and consequently its requests are now more invasive than we previously thought.
Cell phone tracking information is increasingly accurate. The opinion devotes many pages to explaining the ways in which cell tracking information has grown more accurate over time. In fact, it is because of these “refinements in location-based technology” that Judge Smith concludes that requests for cell tracking information trigger the Fourth Amendment’s warrant requirement.
The Fourth Amendment requires the government to get a warrant and show probable cause to obtain historical cell tracking information. The court reached this conclusion both because cell tracking reveals information about constitutionally protected spaces such as the home, and because the prolonged nature of such surveillance is very invasive. The court likened the records sought by the government to “a continuous reality TV show, exposing two months’ worth of a person’s movements, activities, and associations in relentless detail.”
The takeaway that is important from the Reuters piece is that all the frothing about “golly, what if those NSA capabilities bleed out of terrorism and into traditional criminal cases” is nuts. It already is, and has been for a long time. It is the “clean teaming” of criminal prosecutions. And it is a direct and tangible fraud upon defendants, the courts, Due Process and several other important Constitutional concepts. It is not a matter of what if it happens, it IS happening.
bmaz, About the Reuters DEA Special Operations Division Story
A Washington federal judge said [on Friday] she was “troubled” by the U.S. Department of Justice’s position that the courts are powerless to hear a challenge of the government’s ability to target and kill U.S. citizens abroad.
The government argued the court should dismiss a lawsuit brought by the families of American citizens killed in Yemen in 2011 by targeted missile strikes. Justice Department lawyers argued the court was barred from hearing a case that would require an assessment of sensitive military and political issues far outside its purview and ability to review.
U.S. District Judge Rosemary Collyer repeatedly expressed concern that the government’s position would essentially strip U.S. citizens abroad of their constitutional rights. Deputy Assistant Attorney General Brian Hauck argued there was a difference between having a constitutional right—which he said could be protected by the executive and legislative branches—and being able to make constitutional claims in court. Collyer countered that not being able to access the courts would deprive citizens of the ability to enforce their rights.
"I’m really troubled…that you cannot explain to me where the end of it is," Collyer said. “That, yes, they have constitutional rights but there is no remedy for those constitutional rights."
The two missile strikes at issue killed suspected terrorist Anwar Al-Aulaqi, an American citizen, along with two other Americans, Al-Aulaqi’s 16-year-old son Abdulrahman Al-Aulaqi and Samir Khan. In a complaint filed by the elder Al-Aulaqi’s father and Khan’s mother last July, they accused the federal government of violating the Americans’ Fourth and Fifth Amendments rights.
Arguing before a standing-room only gallery, Hauck said the legal principle known as the political question doctrine prevented the court from taking up the case. A federal judge, he said, didn’t have the same “apparatus” as the military and the executive and legislative branches to weigh the policy considerations that went into missile strikes. To consider a claim that the strikes were unconstitutional, Hauck said, the court would have to answer “extraordinarily sensitive questions.”
When Hauck said that the “constitutional structure” enabled the executive and legislative branches to protect citizens’ rights, Collyer pointed out that the structure included three branches of government.
"The problem is, how far does your argument take you?" Collyer said, adding that she found it “a little disconcerting" that the government was arguing that there could be no court review of a decision by the executive and Congress to target American citizens abroad.
Pardiss Kebriaei of the Center for Constitutional Rights, arguing for the plaintiffs, said the question of the whether the government violated the Americans’ Fourth and Fifth Amendment rights could be answered by the court, pointing to a legal opinion published by the Justice Department spelling out the standards for deciding whether an attack was constitutional.
Collyer asked Kebriaei to explain how the court would evaluate some of the sensitive security questions at issue, such as whether an imminent threat justified the strikes. Kebriaei replied that that the court had taken up habeas petitions by detainees at Guantanamo Bay, which required the court to delve into national security issues.
The judge asked Hina Shamsi of the American Civil Liberties Union Foundation, also arguing for the plaintiffs, how the case could be brought under a 1971 Supreme Court ruling known as Bivens, which gave individuals the right to sue a federal official for alleged constitutional violations. The government argued that Bivens didn’t apply because it would create a new category of cases that could be brought and raise separation-of-powers concerns.
Shamsi said it was a “quintessential Bivens case” because the plaintiffs had no other remedy. Unlike other terrorism cases cited by the government in which the courts found Bivens didn’t apply, the current case didn’t involve military operations during an immediate conflict and didn’t raise questions of the plaintiffs’ citizenship.
Collyer did not rule from the bench and didn’t say when she expected to issue a decision.
Well, not really. But that’s the unintended consequence of yesterday’s awful decision in US v. Sterling, in which the Fourth Circuit held that James Risen could not rely on journalist’s privilege to avoid testifying against James Sterling, whom the government believes leaked classified information [about the CIA] to Risen. According the court, the government is entitled to Risen’s testimony, because he is the only “eyewitness” (a journalist receiving classified information) to the “crime” (leaking classified information to a journalist):
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
If a journalist can be forced to testify against a whistleblower in a leak case because he “witnessed” the “crime,” there is only one solution for journalists who want to work with whistleblowers who expose government misconduct: obtain the information completely anonymously. If they do not know who provided the information, forcing them to testify will accomplish precisely nothing.
In other words, WikiLeaks. That is now the only viable model of investigative journalism, given Sterling‘s overt attack on freedom of the press.
Well done, Fourth Circuit. You’ve offered the most compelling defense of WikiLeaks to date.
[In] both the GPS case and in the cell-site litigation, the government maintains that privacy does not exist in public places.
Courts Can’t Agree on Whether Cops Can Track Your Cell Without a Warrant
In a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent. The prosecutors used the silence of Genovevo Salinas to convict him of a 1992 murder. Because this was a non-custodial interview, the Court ruled that the prosecutors could use his silence even though citizens are allowed to refuse to speak with police. It is of little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers. [continue]
First it was the President George W. Bush administration and then the President Barack Obama administration, which for years have been arguing in court that the state-secrets privilege shields the government from lawsuits accusing it of siphoning Americans’ electronic communications to the National Security Agency without warrants.
But with the recent Spygate leaks, including one that all calling metadata of Verizon customers is being forwarded to the NSA, the government is hard-pressed to maintain that line with a straight face.
“By contrast, the recent disclosures have greatly undermined the factual and legal basis for the government defendants’ separate and distinct state secrets motion,” the Electronic Frontier Foundation wrote in a recent court filing.
The EFF’s lawsuit, which has had a tortured history through the courts, is based in part on allegations of internal AT&T documents, first published by Wired, that outline a secret room in an AT&T San Francisco office and others which allegedly route internet traffic to the NSA.
A decision from U.S. District Jeffrey White in San Francisco is pending on whether to dismiss the long-running case, based on the government’s state secrets assertion. The state secrets doctrine was first recognized by the Supreme Court in the McCarthy era, and is asserted when the government claims litigation threatens to expose national security secrets. Judges routinely dismiss cases on that assertion alone.
But because of the leak appearing in the Guardian two weeks ago, the Obama administration wants the court to delay, perhaps indefinitely, a decision on the EFF lawsuit.
“In light of these developments, the Government Defendants request that the Court defer further consideration of the pending motions and grant the Government time to consider the effect on the pending motions of the Government’s decision to declassify certain information, and to consult with plaintiffs concerning the matter,” the government wrote in a recent filing. (.pdf)
The EFF countered: (.pdf)
“The government defendants’ request for an open-ended stay lacks merit. It is only the latest step in the government’s so-far entirely successful effort over the past seven years to evade any adjudication of the legality of the electronic surveillance it has been engaging in since October 2001.”
The Guardian newspaper was leaked a secret court order requiring Verizon Business Solutions to provide the NSA with the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.
The Guardian and Washington Post were leaked material detailing a program called PRISM, which described a system whereby nine internet companies, including Google, Yahoo and Facebook had special equipment installed in their facilities that allowed NSA analysts sitting at their desks to query the data directly. The internet companies said they did not provide the government direct access to their servers.
Meanwhile, following the leaks, at least two new lawsuits with similar spying allegations have surfaced. The government has not publicly responded to those yet.