We’ve filed our reply brief in the appeal of Smith v. Obama, our case challenging the NSA’s mass telephone records collection on behalf of Idaho nurse Anna Smith. The case will be argued before the Ninth Circuit Court of Appeal on December 8, 2014 in Seattle, and the public is welcome to attend.
Another case challenging the telephone records program, Klayman v. Obama, will be argued on November 4 in Washington DC before the DC Circuit and EFF will be participating as an amicus.
The Smith v. Obama case records are all here: but we thought we’d highlight three of the more outrageous arguments the government made, and our responses debunking them.
Mrs. Smith doesn’t think her phone records are any of the government’s business. That’s why, only a few days after the Guardian published a secret order from the Foreign Intelligence Surveillance Court revealing the government’s bulk collection of the telephone records of millions of innocent Americans, she sued. Smith v. Obama challenges the government’s collection of call detail records under Section 215 of the PATRIOT Act. Mrs. Smith is represented by her husband, attorney Peter Smith, along with the ACLU, EFF, and Idaho State Rep. Luke Malek.
The district court said it felt bound to dismiss her claims because of a 1979 Supreme Court case, Smith v. Maryland. That case involved the collection of the phone numbers dialed by a criminal suspect over the course of three days. It’s one of the cornerstones of the so-called “third party doctrine,” the idea that people have no expectation of privacy in information they entrust to others—and it’s outdated to say the least.
The centerpiece of Mrs. Smith’s case is the issue of whether the government’s collection of our telephone records in bulk, and retention of those records for five years, triggers the Fourth Amendment’s warrant requirement. The warrant requirement applies if there is a legitimate and reasonable expectation of privacy in those records. And if the warrant requirement applies, the collection is unconstitutional, since there is no warrant (everyone agrees that the secret FISA Court rulings allowing the bulk collection under Section 215 of the Patriot Act are NOT warrants).
We argue that there is a legitimate and reasonable expectation of privacy violated by the bulk collection of telephone records, because unlike the narrow situation the Supreme Court considered in 1979, they can reveal an incredible amount of sensitive information. For example, in one short-term study of only a few months of telephony metadata from 546 people, researchers at Stanford were able to identify one plausible inference of a subject obtaining an abortion; one subject with a heart condition; one with multiple sclerosis; and the owner of a specific brand of firearm.The government wants the court to simply ignore these differences. Alternately, the government argues that even if there is an expectation of privacy, it is so small compared to the government’s interest that the warrant requirement can be ignored, under something called the “special needs” test (more on that below).
But, as we emphasize our reply brief, this is wrong, in part because we are living in what member of the President’s Review Group Professor Peter Swire calls the “Golden Age of Surveillance.” As we argue: “technological advances have vastly augmented the government’s surveillance power and exposed much more personal information to government inspection and intrusive analysis. If courts ignored this reality, the essential privacy long preserved by the Fourth Amendment would be eliminated.”
The Government’s Arguments
So with that background, let’s look at three of the most troubling claims the government makes.
Call Detail Records Don’t Actually Identify People
The government still claims with a straight face that call detail records don’t reveal private information, because they “do not include information about the identities of individuals,” including “the name, address, [or] financial information” of any telephone subscribers.
That’s technically true, of course, but who cares? It’s not like this prevents the government from identifying you in less than a millisecond after it gets your telephone number. Last time we checked, the government did have access to, say, telephone books and the many public online services that can do reverse number lookup. That’s why we point out that: “phone numbers are every bit as identifying as names. Indeed, they are more so: while many people in the country may share the same name, no two phone subscribers share the same number.”
It’s pretty ridiculous for the government to continue to try to convince the court that the absence of the names in calling records represents any real privacy protection for the millions of Americans whose records are collected. It plainly does not.
We Have to Collect Everything for the Program to Work. But We’re Not Collecting Everything.
The government tries to challenge Mrs. Smith’s standing to sue by repeatedly alleging that the call detail records “program has never encompassed all, or even virtually all, call records and does not do so today.” It claims that the case should be dismissed because Mrs. Smith cannot immediately “prove” that her records were included. Of course, that’s not how litigation works. Mrs. Smith has good reason to believe that her records have been included—the government’s own public statements give her good reason. The district court properly rejected this argument, but the government continues to press it on appeal.
The government also seems to be talking out of both sides of its mouth here, since, as we note in our brief:“In explaining the program to Congress and the public…the government has emphasized not only that the program is comprehensive, but that this comprehensiveness is the key to its utility.”
In fact, Robert Litt, General Counsel of the Office of the Director of National Intelligence told Congress: “In order to find the needle that matched up against that number, we needed the haystack, right. That’s what the premise is in this case.” And NSA Deputy Director John Inglis defended the program by saying: “If you’re looking for a needle in the haystack you need the haystack. So you wouldn’t want to check a database that only has one third of the data, and say there’s a one third chance that I know about a terrorist plot, there’s a two thirds chance I missed it because I don’t have that data.”
So to get the case dismissed they want to convince the court that they aren’t really collecting “virtually all” of the telephone records, but their public justifications rely on the fact that they are. So either they are collecting Mrs. Smith’s records, along with every other Verizon Wireless customer—Verizon is the second largest wireless service in the U.S. after all—or they are not very good at meeting their own stated goals. Which is it, government?
And that goes right to the heart of the government’s next argument:
Bulk Telephone Records Collection Isn’t Necessary to Protect Us—But Is Still Allowed Under the “Special-Needs Doctrine”
The government’s fallback argument is that even if the call detail records triggered the Fourth Amendment, a warrant is still not required under a narrow legal precedent called the “special-needs doctrine.” It allows warrantless searches of a few small categories of people who have a reduced privacy expectation, like students in schools or employees who handle dangerous equipment. It also only applies when compliance with probable-cause and warrant requirements would be “impracticable” and the government’s primary goals are not law enforcement.
The first problem here is that the millions of ordinary Americans affected by the government’s bulk collection do not have a reduced expectation of privacy in the records of their telephone calls. The privacy interests here are great, since with a trail of telephone records, the government can learn extremely sensitive information.
The second problem is that no less than the White House itself has said that the government can accomplish its goals without bulk telephone records collection. This has been confirmed by the President’s two hand-picked panels as well as several Congressmembers who have seen the intelligence information. As we point out in our reply brief, the best the government can say about the program is that it “enhances and expedites” certain techniques it uses in its investigations. So getting a warrant isn’t impracticable, it’s just, at most, inconvenient. But as we point out: “If efficiency alone were determinative, the Fourth Amendment’s warrant requirement would have no force at all.”
The special-needs argument is especially concerning because if the courts were to accept it, the special-needs doctrine could become an exception that swallows the Fourth Amendment’s rule against general searches. It could, de facto, create a national security exception to the Constitutional rights enjoyed by ordinary, nonsuspect Americans, something the founders plainly did not do when they created this country in the midst of a national security crisis.
We expect an interesting argument on December 8.
More Police Departments than Previously Thought Use Portable Surveillance Systems to Spy on almost Everyone
More U.S. police departments are employing electronic surveillance technology that can collect information from cell phones and laptop computers belonging not just to criminal suspects but also law abiding citizens.
The Charlotte Observer found the Charlotte-Mecklenburg police have for eight years used such equipment, which goes by many names: Stingray, Hailstorm, AmberJack and TriggerFish.
But the technology, which mimics cell towers, is also used by other law enforcement around the country. It’s just not clear which departments, the newspaper says, because the federal government has helped to shield police from disclosing their owning and operating the spy hardware. In fact, the Obama administration “has ordered cities not to disclose information about the equipment,” the Observer’s Fred Classen-Kelly reported.
However, members of the administration might also be among those spied upon. Through an open records request, VICE News has learned that Washington, D.C., is another city whose police department is using the technology. The Metropolitan Police Department (MPD) there purchased the Stingray system in 2003, purportedly to use for anti-terrorism efforts.
In 2008, however, the system was brought out of storage and is now used in regular criminal cases. But the system doesn’t discriminate between calls made by those suspected of wrongdoing and those of ordinary citizens, which means anyone’s whereabouts can be tracked.
Nathan Wessler, an attorney with the ACLU’s Speech, Privacy & Technology Project, told VICE News “If the MPD is driving around D.C. with Stingray devices, it is likely capturing information about the locations and movements of members of Congress, cabinet members, federal law enforcement agents, and Homeland Security personnel, consular staff, and foreign dignitaries, and all of the other people who congregate in the District…. If cell phone calls of congressional staff, White House aides, or even members of Congress are being disconnected, dropped, or blocked by MPD Stingrays, that’s a particularly sensitive and troublesome problem.”
Some in Charlotte have those concerns as well. “The thought of police or another agency collecting data on communications devices is troubling,” Charlotte City Councilman John Autry told the Observer. “I understand the balance between security and privacy, but I think we should honor the privacy protection in the Constitution. … What happens to the data? Who sees it? Who has access to it?”
The ACLU estimates that at least 46 local law enforcement agencies nationwide have cell phone tracking systems.
To Learn More:
Charlotte Police Investigators Secretly Track Cellphones (by Fred Classen-Kelly, Charlotte Observer)
Police in Washington, D.C. Are Using the Secretive ‘Stingray’ Cell Phone Tracking Tool (by Jason Leopold, VICE News)
After Months of Denial, Sacramento Sheriff Admits Using Stingray Cellphone Surveillance (by Ken Broder, AllGov California)
Local Police Departments Use Non-Disclosure Agreements to Hide Cellphone Tracking (by Noel Brinkerhoff, AllGov)
Former Clinton Administration Labor Secretary Robert Reich recently called on the government to force young people to spend two years either “serving” in the military or performing some other type of government-directed “community service.” Neoconservative Senator John McCain has introduced legislation creating a mandatory national service program very similar to Reich’s proposal. It is not surprising that both a prominent progressive and a leading neocon would support mandatory national service, as this is an issue that has long united authoritarians on the left and right.
Proponents of national service claim that young people have a moral obligation to give something back to society. But giving the government power to decide our moral obligations is an invitation to totalitarianism.
Mandatory national service is not just anti-liberty, it is un-American. Whether or not they admit it, supporters of mandatory national service do not believe that individuals have “inalienable rights.” Instead, they believe that rights are gifts from the government, and, since government is the source of our rights, government can abridge or even take away those rights whenever Congress decides.
Mandatory national service also undermines private charitable institutions. In a free society, many people will give their time or money to service projects to help better their communities, working with religious or civic associations. But in a society with government-enforced national service, these associations are likely to become more reliant on government-supplied forced labor. They will then begin to tailor their programs to satisfy the demands of government bureaucrats instead of the needs of the community.
The very worst form of national service is, of course, the military draft, which forces young people to kill or be killed on government orders. The draft lowers the cost of an interventionist foreign policy because government need not compete with private employers for recruits. Anyone who refuses a draft notice runs the risk of being jailed, so government can provide lower pay and benefits to draftees than to volunteers.
As the burden of our hyper-interventionist foreign policy increases, it is increasingly likely that there will be serious attempts to reinstate the military draft. General Martin Dempsey, the chairman of the Joint Chiefs of Staff, continues to suggest that US troops on the ground may be needed to fight “Operation Inherent Resolve” in Iraq and Syria. A major escalation requiring a large US troop deployment will likely add pressure to consider a military draft.
The only real way the American people can protect their children from the military draft is to demand an end to the foreign policy that sees the US military as the solution to any and every problem — from ISIS to Ebola — anywhere in the world.
Some who share my opposition to a militaristic foreign policy support the draft because they think a draft will increase public opposition to war. However, the existence of a draft did not stop the American government from launching unconstitutional wars in Vietnam and Korea. While the draft did play a role in mobilizing political opposition to Vietnam, it took almost a decade and the death of thousands of American draftees for that opposition to reach critical mass.
It is baffling that conservatives who (properly) oppose raising taxes would support any form of national service, including the military draft. It is similarly baffling that liberals who oppose government interference with our personal lives would support mandatory national service. Mandatory national service is a totalitarian policy that should be rejected by all who value liberty.
BETHLEHEM – Palestinian Authority police regularly detain people in the West Bank due to their political affiliation, an official said Sunday.
Khalil Assaf, a member of the subcommittee on civil liberties formed after the West Bank-Gaza unity government was sworn in in June, told Ma’an that regardless of the committee’s formation, none of its recommendations have been implemented.
“Every day people are being detained in the West Bank because of their political affiliation, though in most cases they are released within days,” Assaf said.
Though he could not give an exact number of political detainees, he said “we are talking about dozens” of people.
The subcommittee, which was tasked with maintaining and monitoring civil liberties in the West Bank and Gaza, has not been summoned for any meetings with the rest of the unity government so far, Assaf said.
He said it was formed in order to address several aspects of freedom in a democratic society: the freedoms of work, assembly, research, and movement; the freedom to distribute newspapers; the freedom to participate in political activities without discrimination; providing passports to citizens who had previously been denied passports; and the issue of citizens being summoned for questioning both in the West Bank and Gaza.
Palestinian political leaders have been unable to implement these freedoms due to the lack of full implementation of the unity government, he added.
Critics of the US-backed PA often decry the night raids conducted by Palestinian police to arrest dissenting politically active individuals, stressing that they are carried out in a manner nearly identical to the raids conducted by occupying Israeli forces.
As expected, the recent fabricated ISIS terror scare that swept the headlines of Canada’s Zionist-owned media is being used by the neocon regime in Ottawa to give Canada’s spy agency CSIS more sweeping powers to spy on citizens and protect the identities of informants.
“The federal government will face intense scrutiny – perhaps even a constitutional challenge – when it introduces legislation to give its spies more legal powers,” reported the Ottawa Citizen.
Proposed amendments to the act governing CSIS will grant the Canadian spy agency more wiggle room to collaborate with the “Five Eyes” spy network comprised of US, UK, Australia and New Zealand espionage agencies. NSA whistleblower Edward Snowden revealed that the Five Eyes network has been neck-deep in illegal espionage activities targeting millions of their own citizens.
“A second measure,” the Citizen continued, “would give CSIS informants the same anonymity that already exists for police sources, who are not subject to cross-examination and can have their identities hidden, even from trial judges.” The Canadian government’s informants are more than likely responsible for spurring or otherwise concocting the very ‘terror’ plots CSIS claims to have foiled — just like its counterpart in the US has been caught doing time and time again. (See The Terror Factory: Inside the FBI’s Manufactured War on Terrorism by Trevor Aaronson) Problem, reaction, solution — the Machiavellian methodology never fails.
Like Canada, Australia and Britain are endeavoring to empower their spook agencies as well as stiffen their fraudulent “anti-terror” laws in the face of phony ISIS ‘terror plots’ that bear all the hallmarks of intelligence psyops.
That is what the ISIS sham threat is all about — creating a bogus pretext so our governments can strip us of our liberties and stamp out dissent.
British PM David Cameron unveiled the real agenda behind ISIS terrorism fear-mongering — silencing critics of the war on terror and skeptics of the US and UK government versions of 9/11 and 7/7. In September, Cameron delivered a bizarre speech at the UN in which he said with unreserved hubris:
“As evidence emerges about the backgrounds of those convicted of terrorist offences, it is clear that many of them were initially influenced by preachers who claim not to encourage violence, but whose world view can be used as a justification for it. … The peddling of lies: that 9/11 was a Jewish plot and the 7/7 London attacks were staged. The idea that Muslims are persecuted all over the world as a deliberate act of Western policy. The concept of an inevitable clash of civilizations. We must be clear: to defeat the ideology of extremism we need to deal with all forms of extremism – not just violent extremism.”
More and more people are awakening to the truth that 9/11, 7/7 and other major terrorist incidents in the West were staged by US, UK and Israeli intelligence services to provide said countries a pretext to launch the pre-planned Zionist-contrived war on terror against Israel’s enemies. Innumerable masses of people are learning about the dark legacy of Zionism and are starting to speak out about it.
The public’s growing interest in alternative theories about 9/11, 7/7 and other false-flags has alarmed the Western powers-that-be whose present foreign policies hinge upon the big lies surrounding those events. If the true story of 9/11 and 7/7 emerged, the American and British public would rise up in revolt against the unjust and criminal regimes occupying their capitals. The perfidious elites cannot allow that to happen, hence Cameron’s insistence that “non-violent extremists” — 9/11 and 7/7 truthers, anti-Zionists, etc. — are akin to the head-chopping Takfiri marauders of ISIS and should be treated as such.
The manufactured ‘civil war’ in Syria, like the preceding one in Libya, is a deliberate Zionist policy of destabilization. Syria, like Iran, is one of the last bastions of resistance against Israeli hegemony in the region, and has therefore been earmarked for extinction by the usual suspects and their Western lapdogs.
Aside from being impediments to Israel’s imperium, countries like Syria, Iran, Libya, Iraq and other target states have been resilient to globalist attempts to import a degenerate American monoculture into their jurisdictions. These countries affirmed their sovereignty against the globalist cultural imperialists — headquartered in Washington — who seek to export MacDonalds, Burger King and Wal-Mart to the four corners of the earth. The globalists want to erect a global shopping mall on the ruins of traditional cultures.
Unlike in America and much of the deracinated West, the peoples of the Middle East have been widely educated about the Zio-American world menace. Instead of chowing down Big Macs or listening to the putrid rhymes of Kanye West, Middle Easterners are being informed on issues of global importance. Instead of reading trashy gossip mags and stewing over celebrity degeneracy, Iranians are perusing The Protocols of Zion and holding conferences questioning the veracity of ‘the holocaust.’
Neocon Zionists like Daniel Pipes, David Aaronovitch and Jonathan Kay have routinely decried the “conspiracy” culture emanating from homogenous Muslim societies. That’s what Pipes’ book The Hidden Hand: Middle East Fears of Conspiracy was all about; Aaronovitch’s Blaming the Jews documentary is of a similar vein. The reality is that the Muslim world has figured out the Zionists’ Machiavellian game plan and is therefore being punished for failing to succumb to their decrepit exceptionalist mythology.
A dumbed down, atomized mass of materialistic consumers is what the Zionists and their Big Money cohorts want. A pitiful populace comprised of tattooed, chain-smoking, money-chasing, burger-munching airheads is what pleases the moneyed elite.
The Frankfurt School Zionists conquered much of the West through the promotion of degenerate and dysgenic social norms, thereby weakening the traditional culture of their host nations and effectively taking them over. Since the nation-states of the Middle East have largely thwarted the cultural imperialists’ internal plots, the globalist armies of the West have besieged them.
But there is still a glimmer of hope in the West as more people come to terms with the truth about 9/11, 7/7 and the ‘war on terror’ hoax. Only time will tell if that will be enough to stop the globalist menace from devouring what’s left of our broken world.
Copyright 2014 Brandon Martinez
The New York Supreme Court dismissed a lawsuit against the NYPD challenging its refusal to confirm or deny the existence of records related to its surveillance of a New York City mosque. The case appears to be the first time that a court has affirmed a “Glomar doctrine” below the federal level. Adam Marshall from the Reporters Committee for Freedom of the Press has more:
The case, Abdur-Rashid v. New York City Police Department, involved a request by Imam Talib Abdur-Rashid for records regarding NYPD surveillance of himself and his mosque in New York City. The city refused to disclose to Mr. Abdur-Rashid whether any such records existed, and told him that even if they did exist, such records would be exempt under the New York Freedom of Information Law (“FOIL”).
In its decision, the court somewhat perplexingly acknowledged that according to federal and state case law, “[i]t should follow that when a local agency such as the NYPD is replying to a FOIL request, the Glomar doctrine is similarly inapplicable.” However, it then went on to state that as this was a case of first impression, the NYPD’s use of a Glomar response “is in keeping with the spirit of similar appellate court cases.” The court determined that “disclosing the existence of responsive records would reveal information concerning operations, methodologies, and sources of information of the NYPD, the resulting harm of which would allow individuals or groups to take counter-measures to avoid detection of illegal activity, undermining current and future NYPD investigations.” Therefore, it granted the NYPD’s motion to dismiss the case.
Elizabeth Kimundi, a lawyer for the firm of Omar T. Mohameddi, which is representing Abdur-Rashid, said over the phone that her firm is drafting an appeal.
That appeal will be one to watch, because this is a “case of first impression,” meaning that, if the ruling is upheld, it will set precedent in the state of New York. And it would be a bad precedent.
The Glomar doctrine gives agencies the obvious power to hide the existence of records, but it also allows agencies to short-circuit the appeal process, since requestors can’t file an appeal for records they don’t know exist. The NYPD consistently flouts both the spirit and letter of New York’s Freedom of Information Law. There is no expectation that it would use Glomar powers in good faith. A Glomar doctrine would just become another tool in Police Plaza One’s aggressive strategy to block and discourage FOIL requestors.
- CIA says it didn’t know it had a copy of the Senate torture report.
- ACLU and EFF file appeal in suit for LAPD license plate reader tech
- Obama admin asks judge to dismiss civil lawsuit against United Against Nuclear Iran, attempting to invoke state secrets without public explanation. “After everything – the torture, the rendition, the eavesdropping…This is the case that stands for the proposition that privilege can be asserted in the dark?”
- In FOIA lawsuit, EPA says it may have lost text messages it was required to archive under federal record law.
- Judicial Watch sues DOJ for Operation Choke Point records.
- Pebble Project files lawsuit against EPA, alleging FOIA violation
It’s part of the public record that the NSA has engaged in an industry-wide campaign to weaken cryptographic protocols and insert back doors into hi-tech products sold by U.S. companies. We also know that NSA officials have privately congratulated each other in successfully undermining privacy and security across the Internet. Hence it’s only logical to assume that the NSA’s numerous subversion programs extend into foreign “commercial entities”. Thanks to documents recently disclosed by the Intercept we have unambiguous confirmation.
Hi-tech subversion underscores the fact that the whole tired debate regarding cryptographic keys held in escrow for so-called lawful interception (what the Washington Post called “secret golden keys”) only serves to distract the public from programs aimed at wielding covert back doors. In other words, by reviving the zombie idea of an explicit back door the editorial board at the Washington Post is conveniently ignoring all of the clandestine techniques that already exist to sidestep encryption. In a nutshell: zero-day bugs and malware often trump strong crypto.
On an aside it’s interesting to observe the citadel of free thinkers at the Electronic Frontier Foundation continue to promote cryptographic tools as a privacy tonic with a faith that’s almost religious while conspicuously neglecting other important aspects of operational security. The EFF cheerfully provides a litany of alleged success stories. Never mind all of the instances in which the users of said cryptographic tools were compromised, even users who specialized in computer security.
Infiltrating the Media
The NSA’s campaign to undermine software and hardware is mirrored by parallel efforts in other domains. Specifically, the Church Committee and Pike Committee investigations of the 1970s unearthed secret programs like Operation Mockingbird which were conducted to infiltrate the media and develop an apparatus, a Mighty Wurlitzer of sorts, that allowed government spies to quietly influence public perception. The findings of congressional investigators have been substantiated by writers like Deborah Davis and Carl Bernstein.
Though much of the documented evidence is decades old the CIA continues to maintain its long-standing relationship with the press. For example in March of 2010 WikiLeaks published a classified CIA analysis which described a propaganda recipe for the “targeted manipulation of public opinion” in Germany and France to bolster support for NATO military action in Afghanistan. Also, here in the United States New York Times editor Bill Keller admitted to delaying the story on Bush-era warrantless wiretapping in direct service to the powers that be.
So don’t think for a minute that the CIA didn’t have a hand in the media’s assault on journalist Gary Webb after Webb exposed the CIA’s connections to the international drug trade. Gary caught U.S. intelligence with its pants down and spymasters had their operatives in the press destroy him.
More recently, the former editor of Frankfurter Allgemeine Zeitung revealed that he worked for the CIA. In a televised interview Udo Ulfkotte described Germany as an American client state, noting the role of the CIA in the origins of German intelligence. He warned that powerful interests in the United States were pushing for war with Russia and that American spies have widespread links to foreign news outlets:
“Is this only the case with German journalists? No, I think it is especially the case with British journalists, because they have a much closer relationship. It is especially the case with Israeli journalists. Of course with French journalists. … It is the case for Australians, [with] journalists from New Zealand, from Taiwan, well, there is many countries, … like Jordan for example. …”
A Question for Ed Snowden
While media subversion enables political manipulation through indirect means, U.S. intelligence has been known to employ more direct means to impose its agenda in places like Angola, Chile, Guatemala, Iran, Nicaragua, and Ukraine. In fact, stepping back to view the big picture, one might be tempted to posit that U.S. intelligence has established clandestine footholds globally in any institution seen as vital to the interests of the corporate factions that drive the American Deep State.
All of this subversion raises a question: are covert programs compatible with democracy? Can the public allow secrecy, propaganda, and infiltration to blossom while simultaneously expecting to be immune from their effects? Former CIA officers who went public, intrepid whistleblowers like Philip Agee and John Stockwell, answered this question with a resounding “no.” As would millions of people in third-world countries who suffered through the bloody proxy battles of the Cold War. For instance, Philip Agee stated in his book CIA Diary:
“When the Watergate trials end and the whole episode begins to fade, there will be a movement for national renewal, for reform of electoral practices, and perhaps even for reform of the FBI and the CIA. But the return to our cozy self-righteous traditions should lure no one into believing that the problem has been removed. Reforms attack symptoms rather than the disease”
Hence it’s unsettling to hear Edward Snowden, despite his commendable admonishments for an open debate on mass surveillance, maintain the underlying legitimacy of government subterfuge:
“We can have secret programs. You know, the American people don’t have to know the name of every individual that’s under investigation. We don’t need to know the technical details of absolutely every program in the intelligence community. But we do have to know the bare and broad outlines of the powers our government is claiming … and how they affect us and how they affect our relationships overseas.”
You’re witnessing the power of framing the narrative. Society has been encouraged to discuss the legitimacy of what spies do and how they do it. But the problem with this well-intentioned dialogue is that “we the people” are led away from the more fundamental question of whether society needs spies and their covert ops to begin with.
Author’s Note: In the past I’ve posed a question to Glenn Greenwald and was met with silence. Exceptional behavior for someone who is famous for responding vocally. Now we’ll see how Mr. Snowden replies.
Bill Blunden is an independent investigator whose current areas of inquiry include information security, anti-forensics, and institutional analysis. He is the author of several books, including The Rootkit Arsenal , and Behold a Pale Farce: Cyberwar, Threat Inflation, and the Malware-Industrial Complex. Bill is the lead investigator at Below Gotham Labs.
The family of Mark Duggan –the man whose death sparked the UK riots in 2011 – have lost their bid to have the inquest verdict that ruled his death ‘lawful’ overturned. Lawyers acting for the Duggan family had argued that the coroner had blundered in his summing up and lead the jury to conclude that Duggan was unarmed at the time but the police’s shooting of him was still lawful. Amina Taylor has more from London.
It was a killing that was the spark for one of the worst periods of civil unrest seen in the UK for a generation. The inquest into the death 29-year old of Mark Duggan at the hands of a Metropolitan Police marksman in August 2011, was ruled ‘lawful’.
The Duggan family disagreed but on Tuesday lost their appeal to have the inquest verdict set aside. The family was not in court to hear the decision of Lord Justice Levenson and two other high court judges.
In Tottenham where Mark Duggan used to live, among his friends, family and wider support network there will be an overwhelming sense of disappointment at the court’s decision because so many of those who protested against the way in which Mark was killed by Metropolitan polices marksman they’ve argued that for so long that his death was tantamount to ‘state-sanctioned murder’
Those involved in the Mark Duggan justice campaign say they believe the coroner and the jury were mislead and that police corruption may be involved.
The Independent Police Complaints Commission is continuing its investigation into the shooting.
60 Minutes, which has been harshly criticized for running puff pieces for the NSA and FBI recently, is at it again. Last night, they ran two unrelated yet completely conflicting segments—one focusing on FBI Director Jim Comey, and the other on New York Times reporter James Risen—and the cognitive dissonance displayed in the back-to-back interviews was remarkable.
First up was 60 Minutes correspondent Scott Pelley’s interview with FBI Director Jim Comey. 60 Minutes aired the first part of the interview last week, which ran 14 minutes and did not contain a single adversarial question. This time, Scott Pelley asked him at least asked a couple softballs about civil liberties, although the primary one Comey just refused to answer.
The main focus of the piece, however, was Comey supposed commitment to “the rule of law.” “That’s a principle over which James Comey is willing to sacrifice his career,” Pelley explains to the audience. He then proceeded to re-tell the infamous “hospital bed” scene from 2004 during the Bush administration, where Comey, then deputy attorney general, threatened to resign unless Bush altered the original NSA warrantless surveillance program. Bush relented a bit and so Comey stayed on as deputy attorney general for more than a year afterwards.
Comey is portrayed as the hero, who stopped illegal surveillance from going forward. What Comey did was certainly admirable, but this episode happened in March 2004 and only pertained to a small portion of the NSA’s illegal activities. The NSA’s illegal warrantless wiretapping program (as the public knew it) was first exposed more than eighteen months later in December 2005.
60 Minutes explains this in the very next segment but couldn’t apparently put two and two together: Jim Comey was presumably also responsible for signing off on the illegal program the New York Times exposed after his hospital bed protest.
During the next segment segment, 60 Minutes interviewed James Risen about the Obama administration’s war on leaks and described the scoop he is most famous for: his Pulitzer Prize-winning story exposing that same warrantless wiretapping program.
Risen explains to 60 Minutes correspondent Lesley Stahl that the NSA was not only gathering metadata without a warrant on Americans in 2005, but the content of phone conversations as well. And as Stahl herself points out—and as former NSA chief Michael Hayden basically admits in the segment—this was in direct violation of the 1978 law the Foreign Intelligence Surveillance Act, which required court orders to conduct such spying.
Critically, Risen’s first story in December 2005 makes it clear the warrantless wiretapping of Americans was ongoing at the time. And we learned just last year as part of the Snowden revelations that Comey’s hospital protest was over Internet metadata, not illegal eavesdropping on phone calls.
So to sum up: the government was breaking the law in December 2005. This is the program that Comey had presumably signed off on after the much-talked-about incident and while he was still deputy attorney general. Yet Comey is still uncontroversially portrayed as a man dedicated to “the rule of law.”
This information was readily available to 60 Minutes, as it’s in the most well-known recounting of the hospital bed scene done by reporter Barton Gellman for the Washington Post and in his book The Angler in 2007. As Barton Gellman reported in 2007, Comey forced some changes with his potential resignation in 2004, but “much of the operation remained in place.”
“Imagine you’re doing ten things one day, and the next day you’re only doing eight of them,” an unnamed official told Gellman in The Angler. “That’s basically what happened here.”
As we reported a few weeks ago, Australia has passed a dreadful “anti-terror” law that not only allows the authorities to monitor the entire Internet in that country with a single warrant, but also threatens 10 years of jail time for anyone who “recklessly” discloses information that relates to a “special intelligence operation.” But what exactly will that mean in practice? Elizabeth Oshea, writing in the Overland journal, has put together a great article fleshing things out. Here’s her introduction:
The parliament has passed legislation that permits the Attorney General to authorise certain activities of ASIO and affiliates as ‘special intelligence operations’. We can only assume that ASIO will seek such authorisation when its operatives plan to break the criminal or civil law — the whole point of authorising an operation as a special intelligence operation is that participants will be immune from the consequences of their unlawfulness. It will also be a criminal act to disclose information about these operations.
So the Australian government can designate activities of its spy services as “special intelligence operations,” which may well be illegal, and then it becomes a criminal act to disclose anything about those operations, however bad they are. Indeed, that even seems to include operations that result in death, as Oshea explains in one of her examples of what could happen under the new law:
A botched operation is conducted that results in the death of an innocent bystander (credit this suggestion to the former Independent National Security Legislation Monitor). Note that if a person with three children dies as a result of a failure to take reasonable care, her family will be unable to make a claim for the cost of raising her dependents. If she is maimed but not killed, she will be unable to make a claim for the cost of her medical care, lost earnings, pain and suffering, and the cost of raising her dependents.
That’s a hypothetical case, but Oshea also lists a number of incidents that have already occurred, but which are likely to be covered by the new law — and would thus become impossible to write about. Here are a couple of them, with links to the real-life cases:
Agents and officers raid a couple in their home and hold them captive at gunpoint for an hour, only leaving when they discovered they were at the wrong address. The couple will have no entitlement to compensation for any property or personal damage arising from imprisonment, trespass and assault.
Agents kidnap and falsely imprison a young medical student. They attempt to coerce answers from him, making threats that go beyond what is permitted by the relevant search warrant.
There’s more of the same, listing previously-reported incidents that would probably be censored in future. The post also explores legislative proposals that are equally disturbing:
The parliament is considering laws that will punish people with life imprisonment for a range of new offences associated with ‘subverting society’ (which is a component of the new definition of ‘engaging in hostile activities’). The law contains a defence of advocacy, protest, dissent or industrial action, but it is very unclear how these would be applied.
Here’s the kind of thing that might get you life imprisonment in Australia in the future:
Leaking materials taken from government information systems that demonstrate serious wrongdoing (as per Manning or Snowden).
Organising and engaging in denial of service attacks – the online equivalent of a sit in – against government websites, such as that of the President, Prime Minister, the Ministry of Industry, the Ministry of Foreign Affairs, and the Stock Exchange.
There’s also an explanation of what data retention might mean for the public. All in all, it’s a valuable guide to some of the seriously bad stuff that Australia is doing. Let’s just hope that other countries don’t take it as a blueprint.
The NYPD officer who used his gun to bludgeon an unarmed Brooklyn teenager in the face has been suspended without pay and might be indicted, after video footage of the violent August arrest went public this week.
But then, this isn’t Officer David Afanador’s first brush with the law he is sworn to uphold. Nor is it the first time that Afanador’s misconduct under the color of authority has involved a camera.
In 2009, Afanador was one of five officers who were defendants in a lawsuit against the NYPD. According to the complaint, Afanador and four of his colleagues were strip-searching a suspect on the street when plaintiff Ranique Williams walked by. For whatever reason—legally, he never needed one—Williams whipped out his camera and started snapping pictures.
Bad idea. Immediately, Williams was detained. He tried to call 911 to complain and asked for their badge numbers. They didn’t give any. Instead, they roughed him up, “slapping” the phone from his hand, “striking” him in the face and head, then “punching” him in the face while he was still handcuffed in the back of a police cruiser, never telling him he was under arrest. They also took his camera and his flash drive without a warrant.
As if that weren’t enough, the complaint alleges, Afanador and his colleagues initiated a malicious prosecution against Williams in an attempt to cover up the violent false arrest and the illegal search-and-seizure. (That prosecution was dismissed in 2009.)
Williams’ lawsuit against Afanador and the other cops cost the city a $37,500 settlement.
Whether or not Afanador’s arrest in 2008 went down exactly they way the complaint alleges—we’ll never know, since the case never went to trial—in hindsight the lawsuit stands in the record as a red flag that the NYPD ignored.
Five years later, we have a violent arrest against a sixteen-year-old boy who threw up his hands in surrender just seconds before a cop with a bad rap slammed a loaded gun into his mouth.
Good thing young Kahreem Tribble wasn’t trying to record any of the blows raining down on his head. Knowing the past allegations against Officer Afanador, he might not have survived the encounter.
Yesterday, a grand jury in Habersham County, Georgia, decided not to bring charges against the police officers who threw a flashbang grenade into the crib of Bounkham Phonesavanh, known affectionately as “Baby Bou Bou.” The explosion left a hole in the then-19-month-old’s chest, exposing his rib, and almost ripped his nose from his face.
How could this happen? Combine systemic police militarization, the war on drugs, and sloppy police work, and you have the perfect recipe for disaster.
In May, the Habersham County Special Response Team executed a no-knock drug raid on the home of a family friend where Baby Bou Bou, his parents, and sisters were staying. It was the middle of the night, and even though the family’s minivan was parked in the driveway and children’s toys were in the yard, a squad of SWAT officers decided to throw a flashbang grenade into the living room.
Acting and looking like an invading army, the cops broke down the door, terrorizing the entire family. When Alecia, Baby Bou Bou’s mother, tried to go to him, they screamed at her to shut up. They violently threw and pinned Bou, his father, to the ground, injuring his shoulder so badly he cannot take care of his children alone anymore. Alecia and Bou did not see their son until they arrived at the hospital several hours later.
When they were able to see him, they were devastated.
The explosion from the flashbang tore a hole in Bou Bou’s chest, separated his nose from his face, and covered his body in third degree burns. His injuries were so severe that doctors placed Bou Bou in a medically induced coma.
And for what?
The man the SWAT team was looking for no longer lived in the house and was later arrested without incident. There weren’t any guns or drugs in the home either. To add insult to injury, the county refuses to pay the Phonesavanh’s medical bills, which now total $1 million, claiming the law doesn’t allow it.
The Phonesavanh family, however, is not alone. SWAT teams raid people’s homes approximately 50,000 times a year in the United States. Most of these raids are to search for drugs. Many of them result in tragedy.
In May, the police shot and killed a man in his home during a raid to search for some marijuana. The man had reported that he was fearful of being burglarized and the police told him: “If anyone breaks into this house, grab your gun and shoot to kill.” When he followed their instructions, they killed him.
In July, a St. Paul SWAT team raided a home and killed the family dogs in front of two young children. All they found was some marijuana.
Earlier this month, the Georgia State Patrol sent a helicopter and a K-9 Unit to a man’s home in search of what they thought was marijuana. It turned out to be okra.
As we pointed out in our report, War Comes Home: The Excessive Militarization of American Policing, police militarization is real. And it can be deadly. America watched in horror as law enforcement responded to the peaceful protests in Ferguson, Missouri, as though they were an invading army. They threatened to kill peaceful protesters. They pointed assault rifles at people exercising their right to peaceably assemble. They jailed journalists.
Some lawmakers have suggested that the answer is better training. Training will help, but it is not an answer to the very real and very entrenched problem of police militarization.
Law enforcement agencies have been aggressively using military weapons and tactics in communities of color for decades, mostly for the purpose of waging the failed and wasteful War on Drugs. They have been able to do so largely courtesy of the federal government, which funnels billions of dollars’ worth of funding and equipment to state and local law enforcement agencies – equipment that was designed for combat.
Habersham County, where the flashbang exploded in Baby Bou Bou’s crib, has received at least 17 assault rifles, 13 automatic pistols, two utility trucks, and an armored personnel carrier from the federal government in the last 10 years alone. When the police use combat weaponry to serve drug warrants and respond to peaceful protests, they do so knowing that they are using weapons and tactics designed for war against their own citizens.
What happened to Baby Bou Bou is not a rare occurrence, and neither is the lack of accountability for the police officers who altered his life forever. It’s the price our communities pay – young and old, disproportionately black and brown – when police believe they are counterinsurgents waging the War on Drugs, and Uncle Sam arms them that way.
It is time to end police militarization. Not only through improved training, but through an end to the federal programs that fuel it and a shift in how the police view the communities they’re meant to protect and serve.