The American Bear

› Court Finds FBI-Issued National Security Letters ‘Significantly Infringe Upon Speech’ | Kevin Gosztola

Nondisclosure or gag provisions of National Security Letters “significantly infringe upon speech regarding controversial government powers,” a district court in California ruled on March 15. The provisions were found to violate the First Amendment and “separation of powers principles.”

National Security Letters (NSLs) are issued by the Federal Bureau of Investigation (FBI). They are issued to telecommunication companies, financial institutions, credit companies, etc, without court approval and, as the American Civil Liberties Union (ACLU) describes, make it possible for the FBI to compile “vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of email addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.”

The authority to do this was granted under the guise of protecting national security by Congress in the PATRIOT Act.

Even more totalitarian than what the FBI actually does with information it obtains without court approval is the fact that NSLs have had “gag” provisions that require recipients to be silent. The company being asked to provide records is supposed to not talk about NSL requests publicly. The person whose data is being mined by the FBI is supposed to be silent as well.

In a lawsuit brought by the Electronic Frontier Foundation (EFF) on behalf of an “unnamed telecommunications company,” a US district court in California ruled the gag provisions were unconstitutional. [++]

› Google Breaks Silence On FBI's National Security Letters That Demand Its Users' Data | Forbes

› Extremism normalized | Glenn Greenwald

Remember when, in the wake of the 9/11 attack, the Patriot Act was controversial, held up as the symbolic face of Bush/Cheney radicalism and widely lamented as a threat to core American liberties and restraints on federal surveillance and detention powers? Yet now, the Patriot Act is quietly renewed every four years by overwhelming majorities in both parties (despite substantial evidence of serious abuse), and almost nobody is bothered by it any longer. That’s how extremist powers become normalized: they just become such a fixture in our political culture that we are trained to take them for granted, to view the warped as normal. Here are several examples from the last couple of days illustrating that same dynamic; none seems overwhelmingly significant on its own, but that’s the point:

After Dick Cheney criticized John McCain this weekend for having chosen Sarah Palin as his running mate, this was McCain’s retort:

Look, I respect the vice president. He and I had strong disagreements as to whether we should torture people or not. I don’t think we should have.

Isn’t it amazing that the first sentence there (“I respect the vice president”) can precede the next one (“He and I had strong disagreements as to whether we should torture people or not”) without any notice or controversy? I realize insincere expressions of respect are rote ritualism among American political elites, but still, McCain’s statement amounts to this pronouncement: Dick Cheney authorized torture — he is a torturer — and I respect him. How can that be an acceptable sentiment to express? Of course, it’s even more notable that political officials whom everyone knows authorized torture are walking around free, respected and prosperous, completely shielded from all criminal accountability. “Torture” has been permanently transformed from an unspeakable taboo into a garden-variety political controversy, where it shall long remain. [more examples]

› NSA Whistleblower: Justice Department Covers Up Crimes of Obama, Bush Administrations | The Dissenter

The annual report on 2011 from the Justice Department shows secret surveillance under FISA went up. The FISA court did not deny a request to eavesdrop or spy, according to the privacy group known as EPIC:

of DOJ requests to the FISA court to eavesdrop on and/or physically search Americans/legal residents: 1,745

of FISA court denials: 0

While national security letters (NSLs)—a secret subpoena that the government can use to force the disclosure of records, banking or credit information of citizens—decreased, Trevor Timm of the Electronic Frontier Foundation (EFF) points to a larger issue:

Perhaps most notably, the government’s use of Section 215 – the so-called “business records” provision of FISA – more than doubled in 2011. The DOJ filed 205 applications in 2011, up from 96 applications made in 2010. This is the same provision that Senators Wyden and Udall have warned us about: the Senators have said that when the American public finds out how the government has interpreted and is using the provision, the public will be “stunned” and “angry.” Given this, it is particularly concerning the government is relying on the provision much more frequently.

Yes, right now, the Executive Branch has secret interpretations of laws that are not being shared with members of Congress. Members of Congress could be more vocal about this issue, but, to protect their careers or status in government, they are silent and, if they challenge this conduct at all, they do it privately.

Finally, the secret surveillance — the ever-expanding surveillance state — is defended by the Obama administration in court. The American Civil Liberties Union (ACLU) is challenging the constitutionality of the FISA Amendments Act but the government has tried to block any judicial review of the surveillance law. They have opposed the ACLU as the Cyber Intelligence Sharing and Protection Act (CISPA) moves through Congress, granting NSA even more power to collect information on US citizens. And, they have opposed the ACLU as they push Congress to reauthorize the probably illegal FISA law of which Congress refuses to conduct proper oversight.

Don’t fret everyone: just assume that everything you do is being monitored either by giant corporations or the government and act accordingly. I usually start with a greeting.

Hi guys!

› In the Constitution, "security" means protection from our law enforcers, not by them | Jim Hightower

An excerpt from Jim Hightower’s laundry list of creeping civil liberties violations during the first decade of “terror”:

Patriot Act: The Thing that won’t die. This hydra-headed monster arose from the swamp of fear following the 2001 crashbombing of our people, having been spawned by the Machiavellian opportunism of Cheney, Ashcroft, and other far-right authoritarian zealots. They foisted it on America in the name of “protecting” us from foreign fiends, but we quickly learned that the act itself was the fiend, endowed by its creators with multiple powers to rampage over innocent people’s rights. Its Big Brother abuses throughout the Bush years made the Patriot Act a hot political issue in the 2008 presidential contest, and Obama promised again and again that he could and would tame the beast.

Sir Barack the Gallant’s shining moment came last May, when congressional Democrats and Republicans were grappling over reforms to several major provisions of the oppressive law:

* Section 215, a sweeping and widely despised power, lets the FBI grab “any tangible thing” it considers “relevant” to a terrorism investigation—your library records, phone calls, emails, credit card data, websites visited, etc. Agents can seize your information even if they don’t suspect you of being guilty of anything, and they can (and routinely do) search your records without ever telling you they’ve snuck into your privacy.
* Section 206, known as the “roving John Doe wiretap,” simply erases the Fourth Amendment’s requirement that the government state specifically who or what place is to be searched and what it’s looking for before it can get a warrant. The Patriot Act says that agents in vaguely defined terrorism investigations can get a warrant to wiretap an unnamed John Doe just because they want one.
* Section 505 hands secret and frighteningly invasive power to FBI agents through “national security letters.” These totalitarian documents compel phone, internet, financial, and other corporations to hand over all data on the private communications and transactions of their customers. This is the surveillance-vacuum-cleaner-from-hell, sucking in ridiculous volumes of info on Americans who are not even suspected of doing anything unlawful. The FBI issues tens of thousands of the letters each year in far-flung fishing expeditions that yield practically nothing of value to the agency, much less to America’s security. NSLs are the stuff of the old KGB, coming complete with gag orders that prohibit corporate recipients from ever revealing that they got such a letter, while also precluding any court from questioning whether the gag is necessary to protect national security.

The NSL outrages were the subject of a 2009 reform effort when Democrats had a congressional majority. While Obama’s official position was that he supported the reforms proposed by his fellow Democrats, his justice department furtively wrote the amendments that stripped away those reforms, then worked behind the scenes to get Republican lawmakers to sponsor and pass the amendments.

Last May, with several of the Patriot Act’s liberty-busting provisions set to expire, the White House and Congress had an opportune moment to restore our Bill of Rights’ supremacy over the sprawling surveillance superstructure imposed on us by that awful piece of legislation. The tea party Republicans controlling the House, however, mocked their professed devotion to liberty by locking arms against reform. The Obamacans, having no stomach for a fight, meekly retreated. On May 26, with little media attention and no debate, the Repubs and Dems joined in a rare bipartisan vote—to punt the Bill of Rights. They extended the Patriot Act—including sections 215, 206, and 505—for four more years.

Read whole →

› Ron Wyden Suggests Secret PATRIOT GPS Tracking May Be Illegal Under Jones | Marcy Wheeler

[Senator] Ron Wyden used yesterday’s Threat Assessment hearing to try to get James Clapper to commit to whether US v Jones makes Secret PATRIOT illegal.

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.

Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment.

Given Clapper’s quick invocation of the law enforcement context, I suspect the Intelligence Community’s lawyers are planning to use the language in Samuel Alito’s concurring opinion addressing “extraordinary offenses”…

We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

…To claim that their intelligence application–”foreign or domestic”–would still permit the tracking of innocent citizens using their cell phones.

In any case, if Clapper is good on his word (though note, he said he’d give this interpretation to Wyden, not release it publicly), the government may finally tip its hand regarding its cell phone tracking of Americans.

› How the Patriot Act stripped me of my free-speech rights

Sometime in 2012, I will begin the ninth year of my life under an FBI gag order, which began when I received what is known as a national security letter at the small Internet service provider I owned. On that day in 2004 (the exact date is redacted from court papers, so I can’t reveal it), an FBI agent came to my office and handed me a letter. It demanded that I turn over information about one of my clients and forbade me from telling “any person” that the government had approached me.

National security letters are issued by the FBI, not a judge, to obtain phone, computer, and banking information. Instead of complying, I spoke with a lawyer at the American Civil Liberties Union and filed a constitutional challenge against the NSL provision of the Patriot Act, which was signed into law 10 years ago Wednesday.

A decade later, much of the government’s surveillance policy remains shrouded in secrecy, making it impossible for the American public to engage in a meaningful debate on the effectiveness or wisdom of various practices. The government has used NSLs to collect private information on hundreds of thousands of people. I am the only person from the telecommunications industry who received one to ever challenge in court the legality of the warrantless NSL searches and the associated gag order and to be subsequently (partially) un-gagged.

(Source: azspot, via reagan-was-a-horrible-president)

› The Unpatriotic Act: Ten Years Later | Stephen Rohde

Ten years later, due to the unprecedented secrecy shrouding anything labeled “anti-terrorism,” we still do not know the full extent of what has been done under the Patriot Act. For example, we do not know the extent of surveillance activities conducted by the National Security Agency (NSA) that so alarmed even officials at the Bush Justice Department that, in March 2004, they nearly resigned en masse. We do know that the activities must have been extreme to provoke such a reaction from the conservative lawyers serving under then-attorney general John Ashcroft.

The little we do know about the NSA’s post-9/11 spying operations is due to the courage of government whistleblowers who risked their careers - and criminal charges - to expose the fact that the NSA has engaged in unconstitutional and illegal domestic eavesdropping and data mining operations against innocent Americans. In a comprehensive new report, “A Call to Courage: Reclaiming Our Liberties Ten Years After 9/11,” the American Civil Liberties Union (ACLU) reveals that, in the immediate aftermath of 9/11, the NSA tapped directly into major American communications centers, with the cooperation of US telecommunications companies, to access billions of American emails, phone calls and other communications, which the agency then combed through for people it deemed “suspicious.”

[…]

In 2002, we learned about the Total Information Awareness (TIA) program, under which the Pentagon was planning to gather information from thousands of government and commercial databases worldwide, covering every facet of the everyday lives of ordinary Americans, to create one giant database that military and law enforcement officials could easily search for “suspect activity” related to terrorism. After the press exposed TIA, Americans from across the political spectrum spoke out, and Congress shut down the program. Or so we thought. Instead, Congress slipped back into its compliant ways, ignored the public’s demand for privacy protections and allowed key data-mining elements of TIA to be perpetuated under the secret umbrella of the NSA, where we cannot monitor their use.

[…]

Government data mining is now being replicated in a variety of other programs at the federal, state and local levels to spy on Americans in virtually complete secrecy. The ACLU has identified several so-called Suspicious Activity Reporting (SAR) programs, named “eGuardian,” “Eagle Eyes,” “Patriot Reports” and “See Something, Say Something,” which are now run by the director of national intelligence, the FBI, the Department of Defense (DoD) and the Department of Homeland Security (DHS). Once the government collects data about alleged “suspicious” activity, it can retain it for a lifetime, even when the information shows the person is not a threat.

[more PATRIOTIC evil, thoroughly explained, can be found here]