Witness In No Fly List Trial, Who Was Blocked From Flying To The Trial, Shows That DOJ Flat Out Lied In Court
On Friday the case against the US government, brought by Rahinah Ibrahim over her being placed on the “no fly list,” officially concluded with closing arguments, but that may have been the least interesting part of everything. Apparently, the day got off to a rocky start, after Ibrahim’s lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team for their actions in court, specifically concerning “misrepresentations” made to the court. It seems clear that this was mainly about the DOJ denying that the US government (mainly DHS) had done anything to prevent Ibrahim’s daughter, Raihan Mustafa Kamal, an American citizen, from coming to the US to be a witness in the trial. As you may recall, on Monday it had come out that she had been denied in her attempt to board her flight in Malaysia, and the DOJ claimed, flat out, that Kamal had merely missed her flight and rebooked on another flight.
It appears that none of that was true.
Instead, while Kamal had been rebooked by her travel agent earlier in the week to a different flight (because Expedia informed her that her original flight was full and she wouldn’t be able to travel on it), she arrived at the airport with nearly 3 hours to spare for her own flight, and was then denied the ability to board. There was a lot of back and forth, but eventually she obtained the email that had first been sent to Philippines Airlines (she was flying from Malaysia to the Philippines and then on to San Francisco), warning that Kamal was “a possible no board request.”
While that’s not a full on “denial” it was enough to have the airline deny her passage, and clearly shows that, contrary to the DOJ’s claims, DHS specifically had targeted Kamal and was hinting very strongly to airlines not to let her fly. It seems unlikely that they ever expected that email to get out. Either way, Kamal had spent nearly $2,000 of her own money on the original flight, and noted in her own deposition that she was unable to afford another immediate flight to the US (especially given that it’s holiday travel season).
Judge Alsup held a closed hearing about all of this, so it’s not entirely clear what he’s going to do, though from the public statements he has made to date, he did not appear to be happy about all of this. During the closing arguments — some of which involved kicking the public out — he even noted how ridiculous it was that they had to have a closed session since he didn’t think any of the “sensitive security information” was really that sensitive. He also challenged the government’s argument that they can properly review people who “appeal” their status without ever letting anyone know if or why they’re on the list. From Edward Hasbrouck’s transcript of the exchange:
JUDGE ALSUP: That’s just going back to the same sources that were wrong in the first place, and of course they are going to say, “We were right the first time.”
That troubles me.
Do you know what happened to Robert Oppenheimer?
He was denied his clearance. It was totally unjust. The information was bogus. They suspected him of being a Communist, but that was wrong.
It was a low point for America, to do that wrongly to an American hero.
You’re not seeing the other side of what can happen.
DEFENDANTS’ COUNSEL: TRIP is a continually improving process…
JUDGE ALSUP: We know that there’s going to be mistakes in your system, in any system, and people are going to get hurt.
What do we need? Should there be some sort of follow-up FBI interview to find out if there is contrary evidence?
DEFENDANTS’ COUNSEL: When a TRIP letter is sent, the recipient is offered the possibility of review by a Court of Appeals. Review by a Court of Appeals would reveal any improper basis for the decision.
JUDGE ALSUP: How could the Court of Appeals tell that from the file it is handed up by the agency?
Even if it includes the derogatory information, how is the Court of Appeals going to know from looking at the face of the document whether it’s true?
Couldn’t there be some process where you tell the person the nature of the allegations (”You contributed money to Al Qaeda”) without revealing the specific sources or methods for the information containing those allegations?
DEFENDANTS’ COUNSEL: We can say more in closed session, but we can’t do that.
The government also appeared to admit in its closing that the original no fly determination on Dr. Ibrahim was a mistake, but then seems to bend over backwards not to take responsibility for all the additional fallout from that incorrect designation — including the repeated denial of a visa to go back to the US (even for this very trial).
Case Over No-Fly List Takes Bizarre Turn As Gov’t Puts Witness On No Fly List, Then Denies Having Done So
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 (who had been a Stanford PhD student) 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. As Edward Hasbrouck at the Identity Project reports:
Judge Alsup ordered the government defendants’ lawyers to investigate and report back. “You’ve got ten lawyers over there on your side of the courtroom. You can send one of them out in the hall to make a phone call and find out what’s going on.”
At the end of the first day’s session of the trial (more on that below), the governments’ lawyers told Judge Alsup that they had made inquiries and had been told that “the plaintiff’s daughter just missed her flight” and was rebooked on a flight tomorrow (Tuesday) afternoon.
Needless to say, that story strains credulity. If Ms. Mustafa Kamal had merely missed her flight, why would she have been given a CBP phone number in Miami to call for information about what had happened? The governments’ lawyers insisted that, “That’s what we have been told”, but Judge Alsup wasn’t satisfied.
“We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information tomorrow… “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”
That was Monday. Tuesday morning, Ibrahim’s lawyer proved that the DOJ was flat out lying the day before by presenting the “no-board” instructions that DHS had sent to Malaysia Airlines to the court:
“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.
Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her. Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.
As Hasbrouck notes, the airline deserves kudos for handing over that info. Many airlines would simply keep it a secret. Judge Alsup, however, will not consider the document yet, noting that there isn’t evidence to its authenticity and it’s not part of a sworn record. Thus, he said that when Kamal arrives in SF to testify, that can be a part of her testimony. While the lawyer pointed out that Kamal was hesitant to buy another ticket if she wouldn’t be able to board again, Judge Alsup made it clear that she needs to come, and also appears to have made it quite clear to the DHS that if she is blocked again, there will be consequences:
“Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ” And Mr Freeborne, with disingenuous faux-solicitude, claimed that the government is “willing to do whatever we can to facilitate” Ms. Mustafa Kamal’s ability to board a flight to the U.S.
Judge Alsup wasn’t willing to take any action today on unproven allegations or unverified documents. But he made clear that, “I am disturbed by this…. We’ll hear from her [Ms. Mustafa Kamal] when she gets here. If it turns out that the DHS has sabotaged a witness, that will go against the government’s case. I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here.”
The report from Monday also describes other ridiculous claims by the DOJ, including trying to argue that information that was publicly available could not be included in the case because it was “sensitive security information” (SSI). Once again, Judge Alsup saw through the DOJ’s bullshit and called them out on it:
That’s ridiculous. Are you saying that if the president makes a speech, TSA can retroactively make it a secret what he said? It cannot be the law that something that is publicly known later becomes hidden…
Here’s my ruling: If it’s in a document that’s SSI, but it’s also available from some other publicly available source, it’s public information, and cannot be withheld from the public in this courtroom…. The government is taking such an unreasonable position on how to run a trial. If it’s been in the public domain for years, you’re barred from making the argument that the plaintiff’s counsel cannot “disclose” it….
Trials are important. Trials are supposed to be public.
I want to categorically reject one thing: If information is publicly available in some other way, the government does not have the right to retroactively clamp it down and remove it from the public record. Even if it could have been protected as SSI within the government, if the plaintiff obtains this information independently, the government can’t clamp that down.
The plaintiff has the right to prove her case. If she can prove it through publicly available admissible evidence, she can do so even if that information is also included in internal government documents designated as SSI.
That’s the way I feel. That’s the law, that ought to be the law, and that’s the only way to run this country. That’s my ruling, and if the government disagrees, I invite you to take an emergency writ to the Ninth Circuit Court of Appeals.
It would be an understatement to suggest that Judge Alsup is not impressed with the US government’s actions so far. The notes from day two in the trial provide a lot more background on what happened. It would appear that the lawyers for Ibrahim are making a (rather compelling, from the evidence) case that bumbling US law enforcement officials confused two very different Malaysian organizations with similar names: Jamaah Islamiyah Malaysia, which is a terrorist organization, and Jamaah Islah Malaysia, “a non-profit professional networking group for Muslims who have returned to Malaysia after post-secondary schooling in the U.S. and Europe.” The two organizations are, as you would imagine, quite different. Ibrahim is involved in the latter, and has no connection to the former, but it sounds like the FBI agents who interviewed her were unaware of the difference.
The further details of Ibrahim’s life, her arrest and treatment, all suggest a situation where US law enforcement totally screwed up, and seriously mucked up someone’s life — and now they seem to be doing everything possible to avoid taking responsibility for it.
On Friday, we wrote about Jeremy Hammond’s 10-year prison sentence, mentioning that the judge had required part of Hammond’s statement be redacted from any reports as his discussion of the list of targets he was asked to hack by FBI informant Sabu (Hector Xavier Monsegur) was considered classified. Of course, it will come as little surprise that the unredacted/uncensored text of his original statement is alleged to have leaked soon after the sentencing. Someone posted it to Pastebin. While it’s entirely possible that this is fake, there are at least some indications that it’s accurate.
Sabu also supplied lists of targets that were vulnerable to “zero day exploits” used to break into systems, including a powerful remote root vulnerability effecting the popular Plesk software. At his request, these websites were broken into, their emails and databases were uploaded to Sabu’s FBI server, and the password information and the location of root backdoors were supplied. These intrusions took place in January/February of 2012 and affected over 2000 domains, including numerous foreign government websites in Brazil, Turkey, Syria, Puerto Rico, Colombia, Nigeria, Iran, Slovenia, Greece, Pakistan, and others. A few of the compromised websites that I recollect include the official website of the Governor of Puerto Rico, the Internal Affairs Division of the Military Police of Brazil, the Official Website of the Crown Prince of Kuwait, the Tax Department of Turkey, the Iranian Academic Center for Education and Cultural Research, the Polish Embassy in the UK, and the Ministry of Electricity of Iraq.
Sabu also infiltrated a group of hackers that had access to hundreds of Syrian systems including government institutions, banks, and ISPs. He logged several relevant IRC channels persistently asking for live access to mail systems and bank transfer details. The FBI took advantage of hackers who wanted to help support the Syrian people against the Assad regime, who instead unwittingly provided the U.S. government access to Syrian systems, undoubtedly supplying useful intelligence to the military and their buildup for war.
All of this happened under the control and supervision of the FBI and can be easily confirmed by chat logs the government provided to us pursuant to the government’s discovery obligations in the case against me. However, the full extent of the FBI’s abuses remains hidden. Because I pled guilty, I do not have access to many documents that might have been provided to me in advance of trial, such as Sabu’s communications with the FBI. In addition, the majority of the documents provided to me are under a “protective order” which insulates this material from public scrutiny. As government transparency is an issue at the heart of my case, I ask that this evidence be made public. I believe the documents will show that the government’s actions go way beyond catching hackers and stopping computer crimes.
Again, while Hammond is responsible for actually carrying out the activity of breaking into these sites, it still seems incredibly questionable that the targets may have been suggested by the FBI, which then basically got to take advantage of Hammond’s activities, and then when that wasn’t useful any more, to throw him in jail for a decade.
The United States intelligence community’s research arm is set to launch a program that will thoroughly broaden the capabilities of biometric facial recognition software in order to establish an individual’s identity.
The Janus program of the Intelligence Advanced Research Projects Agency (IARPA) will begin in April 2014 in an effort to “radically expand the range of conditions under which automated face recognition can establish identity,” according to documents released by the agency over the weekend.
Janus “seeks to improve face recognition performance using representations developed from real-world video and images instead of from calibrated and constrained collections. During daily activities, people laugh, smile, frown, yawn and morph their faces into a broad variety of expressions. For each face, these expressions are formed from unique skeletal and musculature features that are similar through one’s lifetime. Janus representations will exploit the full morphological dynamics of the face to enable better matching and faster retrieval.”
Current facial recognition relies mostly on full-frontal, aligned facial views. But, in the words of Military & Aerospace Electronics, Janus will fuse “the rich spatial, temporal, and contextual information available from the multiple views captured by security cameras, cell phone cameras, news video, and other sources referred to as ‘media in the wild.’”
In addition, Janus will take into account aging and incomplete or ambiguous data for its recognition assessment goals.
IARPA was created in 2006 and is a division of the Office of the Director of National Intelligence. The intelligence agency is modeled after DARPA, the Pentagon’s notorious research arm that fosters technology for future military utilization.
In-Q-Tel, a not-for-profit venture capital firm run by the Central Intelligence Agency, invests in companies that develop facial recognition software.
In an age of ubiquitous surveillance video amid a severe lag of legal protections for privacy, civil liberties advocates are expressing concern.
IARPA’s effort to significantly boost facial recognition capabilities “represents a quantum leap in the amount of surveillance taking place in public places,” said Jay Stanley, a senior policy analyst with the American Civil Liberties Union’s Speech, Privacy and Technology Project, as quoted by USA Today.
Stanley noted that law enforcement and the like could easily run random facial recognition programs over surveillance video to assess the identities of crowds in public places without oversight.
IARPA gave industry representatives a solicitation briefing on the program in June, according to media reports.
Late last month, the Federal Bureau of Investigation published a request for information in developing “a roadmap for the FBI’s future video analytics architecture” as the agency prepares to make its high-tech surveillance abilities all the more powerful.
In September, the Department of Homeland Security tested its Biometric Optical Surveillance System (BOSS) at a junior hockey game in Washington state. When it’s fully operational, BOSS could be used to identify a person of interest among a massive crowd in just seconds.
Over the summer, the state of Ohio admitted it had access to a facial recognition database that included all state-wide driver’s license photos and mug shots without the public’s knowledge.
Committee to Stop FBI Repression | October 23, 2013
She is charged with immigration fraud. Allegedly, in her application for citizenship, she didn’t mention that she was arrested in Palestine 45 years ago by an Israeli military court that detains Palestinians without charge – a court that has over 200 children in prison today and does not recognize the rights of Palestinians to due process.
The arrest today appears to be related to the case of the 23 anti-war activists subpoenaed to a grand jury in 2010. Well-known labor, community and international solidarity activists around the Midwest had their homes raided by the FBI when the U.S. attorney alleged that they had provided material support to foreign terrorist organizations in Palestine and Colombia.
Assistant U.S. Attorney Barry Jonas is leading the investigation against the 23. He was at the courtroom in Chicago this morning, consulting with the assistant U.S. attorney who was presenting the indictment to the judge. Jonas was also the prosecutor in the case of the Holy Land Five, the heads of the largest Muslim charity in the U.S. before 9/11. He was successful in getting prison sentences for as long as 65 years for the five men, who provided charity to children in Gaza.
The Committee to Stop FBI Repression (CSFR) denounces this attack as another example of the continuing repression of Palestinians and people who stand in solidarity with them. Homeland Security, the FBI, Immigration and Customs Enforcement and the U.S. Attorney’s office now are carrying out enforcement of the Israeli occupation of Palestine.
Odeh will appear in court in Detroit on Nov. 1, where she will be represented by Jim Fennerty of the National Lawyers Guild. CSFR urges people to attend the proceedings at the Federal Court in Detroit in her defense.
MANHATTAN – A Muslim man says he has been unable to visit his ailing mother for over two years because he refused to spy for the FBI and is now on the no-fly list.
Muhammad Tanvir says he is not the only one who the FBI unlawfully placed on the no-fly list “in retaliation for their refusal to work as informants against their communities and submit to questioning.”
The Queens man says his predicament has left him unable to visit his ailing mother in Pakistan for over two years, and that it has burdened his practice of Islam.
He notes that he is a lawful permanent resident employed at a 99-cent store in the Bronx who has “never been convicted of a crime nor does he pose any threat to aviation safety.”
The FBI declined to comment.
Though the no-fly list is supposed to represent a list of suspected terrorists, the American Civil Liberties Union calls it “a draconian tool to coerce Americans into spying on their communities.” In this case, Tanvir is represented by Shayana Kadidal with the Center for Constitutional Rights.
After refusing FBI agents’ request that he serve as an informant in his predominantly Muslim community and landing on the no-fly list, Tanvir says he reached out to the FBI to clear things up. Instead of helping, FBI agents offered to take him off the list in exchange for information.
Tanvir, who has lived in the United States since 2002, again refused.
“Mr. Tanvir has been prevented from flying despite the fact that he does not present any threat to aviation security,” the lawsuit states. “Instead, defendants sought to exploit the draconian burden posed by the No Fly List – including the inability to travel for work, or to visit family overseas – in order to coerce him into serving the FBI as a spy with American Muslim communities and places of worship.”
Named as defendants are FBI Director James Comey; Terrorist Screening Center Director Christopher Piehota; Acting Secretary of Homeland Security Rand Beers; and Transportation Security Administration Administrator John Pistole.
The FBI agencies are responsible maintaining the Terrorist Screening Database, which includes the no-fly list.
Tanvir wants the court to declare as unconstitutional the FBI’s alleged practice of placing people on the no-fly list for not cooperating, then using an offer to remove them as a bribe for information.
He also wants off the list, along with damages.
A report published on Tuesday by the American Civil Liberties Union urges the Obama administration to reform the Federal Bureau of Investigation following years of documented instances in which the FBI has abused its authority.
In thousands of words spanning a 60-plus page report titled Unleashed and Unaccountable: The FBI’s Unchecked Abuse of Authority, the ACLU this week condemns the agency, particularly in the years following the September 11, 2001 terrorist attacks.
The ACLU argues that since the attacks of 9/11, the federal government has time and time again allowed the FBI to broaden its law enforcement powers, often without sufficient oversight. As a result, they write, the FBI has been transformed into “a domestic intelligence and law enforcement agency of unprecedented power and international reach.”
Despite reform enacted in the wake of the infamous years J. Edgar Hoover spent as FBI director, the ACLU says that the agency has “subverted internal and external oversight” in recent time, in turn allowing for gross abuse, often impacting the civil liberties of Americans as a result.
In a plea for change, the ACLU accuses the FBI of “squelching whistleblowers, imposing and enforcing unnecessary secrecy and actively misleading Congress and the American people” since 9/11, and says the agency has “regularly overstepped the law, infringing on Americans’ constitutional rights while overzealously pursuing its domestic security mission.”
Items highlighted by the ACLU in the report include the secretive surveillance powers the agency has inherited through the PATRIOT Act, its power to open investigations of Americans without proof of a crime, racial and religious profiling and the targeting of people exercising their First Amendment-protected rights, such as journalists and political activists.
Published on the anniversary of the signing of the US Constitution, the ACLU urges President Barack Obama and his administration “to conduct a comprehensive examination of the FBI’s policies and practices to identify and curtail any activities that are unnecessary, ineffective or misused,” especially before the newly appointed director of the agency, James Comey, can subvert any further the policies enacted by his predecessor, James Mueller, who ran the FBI from before 9/11 up until only this month.
Should the executive and legislative branches not consider reform, the ACLU writes, “FBI officials and certain members of Congress will undoubtedly demand that the new director stay the course, no matter how disastrous it may be for American civil liberties and privacy rights.”
“The list of abuses is long and demonstrates that Congress must do a top-to-bottom review of FBI politics and practices to identify and curtail any activities that are unconstitutional or easily misused,” Hina Shamsi, director of the ACLU’s National Security Project, said in a statement accompanying the report. “The time for wholesale reform has come.”
One figure cited in the new report portends that the FBI “will soon have the equivalent of 20 pieces of intelligence on every American.”
“An FBI budget request for fiscal year 2008 said the FBI had amassed databases containing 1.5 billion records, and two members of Congress described documents predicting the FBI would have 6 billion records by 2012, which they said would represent “20 separate ‘records’ for each man, woman and child in the United States.”
In turn, the ACLU believes that this huge volume of amassed data can be “shared widely.”
“According to a 2012 Systems of Records Notice covering all FBI data warehouses, the information in these systems can be shared broadly, even with foreign entities and private companies, and for a multitude of law enforcement and non-law enforcement purposes.”
Brazil has announced plans to bypass the US-centric internet amid revelations that Washington conducts spy operations on web communications.
Brazilian President Dilma Rousseff announced the country’s measures to boost the Brazil’s independence and security on the World Wide Web, including storing data locally and bypassing internet traffic that goes through the United States.
Rousseff said plans are in the works to lay underwater fiber optic cable directly to Europe and all the South American nations in order to create a network free of US eavesdropping. This is while most of Brazil’s global internet traffic passes through the US.
The president also announced that she will push for new international rules of privacy and security in hardware and software during the UN General Assembly meeting later this month.
The country’s postal service also plans to create an encrypted e-mail service that would serve as an alternative to Gmail and Yahoo, two companies being monitored by the NSA.
Experts said the move may herald the first step toward a global network free from US monopoly and its illegal surveillance of global communications.
The development comes following the publication of documents leaked by whistleblower and former NSA contractor Edward Snowden in July, exposing US spying on Brazilian companies and individuals for a decade.
Snowden, a former CIA employee, leaked two top secret US government spying programs under which the NSA and the Federal Bureau of Investigation (FBI) are eavesdropping on millions of American and European phone records and the Internet data from major Internet companies such as Face book, Yahoo, Google, Apple, and Microsoft.
The NSA scandal took even broader dimensions when Snowden revealed information about its espionage activities targeting friendly countries.
- Brazilian president postpones visit to Washington over US spying
- South America: UNASUR To Build Fibre-Optic ‘Mega Ring’
- Latin America Condemns US Espionage at United Nations Security Council
- Mercosur complains to Ban Ki-moon on US global espionage and EU affront towards Bolivia’s Evo Morales
- UK spying on Germany’s major data cable to US triggers media storm
In the wake of the continuing leaks about the NSA’s activities, most commentators are understandably still trying to get to grips with the enormity of what has been happening. But John Naughton, professor of the public understanding of technology at the UK’s Open University, tackles a very different question on his blog: what is likely to happen in the future, if things carry on as they are?
Naughton notes that the NSA’s mission statement includes the following phrase: “to gain a decision advantage for the Nation and our allies under all circumstances.” “Under all circumstances” means that as the Internet grows — and as we know, it is currently growing rapidly — so the NSA will naturally ask for resources to allow it to do tomorrow what it is doing today: monitoring more or less everything that happens online. Naughton then asks where that might lead if the political climate in the US remains sufficiently favorable to the NSA that it does, indeed, get those resources:
The obvious conclusion therefore, is that unless some constraints on its growth materialise, the NSA will continue to expand. It currently has 35,000 employees. How many will it have in ten years’ time? Who can say: 50,000, maybe? Maybe even more? So we’re confronted with the likelihood of the growth of a bureaucratic monster.
How will such a body be subjected to democratic oversight and control? Let me rephrase that: can such a monster be subjected to democratic control?
Although optimists might answer ‘yes’, Naughton points to the FBI as an example of what has already happened in this area:
those with long memories recall the fear and loathing that J. Edgar Hoover, the founder — and long-term (48 years) Director — of the FBI aroused in important segments of the American polity. The relatively restrained Wikipedia entry for him claims that even US presidents feared him and quotes Harry Truman as saying that “Hoover transformed the FBI into his private secret police force”. “We want no Gestapo or secret police”, Truman is reported as saying. “FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail. J. Edgar Hoover would give his right eye to take over, and all congressmen and senators are afraid of him.”
He then goes on to draw the obvious parallel with a possible tomorrow:
Now spool forward a decade or so and imagine a Director of the NSA, a charismatic ‘securocrat’ imbued with a mission to protect the United States from terrorists and whatever other threats happen to be current at the time. He (or she) has 50,000+ operatives who have access to every email, clickstream log, text message, phone call and social-networking post that every legislator has ever made. S/he is a keystroke away from summoning up cellphone location logs showing every trip a lawmaker has made, from teenager-hood onwards, every credit- and debit-card payment. Everything.
And then tell me that lawmakers will not be as scared of that person as their predecessors were of Hoover.
- Zero Sum: Americans Must Sacrifice Some Security to Reform the NSA (theatlantic.com)
The former top lawyer at the FBI deeply implicated in surveillance abuses revealed before and by Edward Snowden’s leaks was confirmed as a federal judge in a top court for terrorism cases this week.
The US Senate voted 73-24 on Monday in approving Valerie Caproni, Federal Bureau of Investigation general counsel from 2003 to 2011, to the Southern District of New York, one of the country’s most important federal courts for terrorism cases.
Caproni has received bipartisan criticism for allowing and defending surveillance abuses both found to be overbroad during her tenure and those not disclosed when she was counsel but later revealed to be inappropriate or illegal. For example, the Snowden leaks showed Caproni mischaracterized the limits of the Patriot Act during her term.
A 2010 report by the Department of Justice revealed the FBI inappropriately used non-judicial subpoenas called “exigent letters” to gather phone numbers of over 5,550 Americans until 2006.
“The FBI broke the law on telephone records privacy and the general counsel’s office, headed by Valerie Caproni, sanctioned it and must face consequences,” said John Conyers in April 2010 as chairman of the House Judiciary Committee.
Conyers called for Caproni’s firing at the time over the use of the non-judicial subpoenas, according to the Guardian.
“It’s not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel,” Conyers said in 2010.
Caproni told House lawmakers in 2008 if phone numbers — acquired from telephone companies by the FBI via the non-judicial subpoenas evidently sanctioned in the Patriot Act — were not related to a “currently open investigation, and there was no emergency at the time we received the records, the records are removed from our files and destroyed.”
Yet revelations found in documents supplied by Snowden outlined how the National Security Agency stores phone records on all Americans for up five years no matter if they are associated with an open investigation or not. In addition, it’s been found that the NSA has the capability to feed the FBI phone records if there is a “reasonable articulable suspicion” they are related to terrorism.
“Caproni knew that the Bush administration could use or was using the Section 215 provision in the Patriot Act to obtain Americans’ phone records on a broad scale, an issue that has recently been documented by the whistleblower material first printed in the Guardian,” Lisa Graves, a former deputy assistant attorney general who dealt with Caproni while working on national security issues for the ACLU, told the Guardian.
In 2007, DOJ’s Inspector General Glenn Fine found the FBI was serially abusing National Security Letters — a demand regarding national security independent of legal subpoenas– to obtain business records, including “unauthorized collection of telephone or internet email transactional records.” While the larger collection of phone records was still not exposed at the time, Caproni called the inappropriate collection a “colossal failure on our part.”
“Government officials that secretly approved of overbroad surveillance programs the public is only seeing now because of leaks, and whose testimony on the issue obscured rather than revealed these abuses, should be held to account for their actions in a public forum,” former FBI agent Mike German told the Guardian.
Caproni’s nomination to the federal bench had some bipartisan opposition, but not enough to block her appointment.
“She is a woman with impeccable credentials,” Sen. Kirsten Gillibrand (D-N.Y.) said on the Senate floor Monday. “This country needs more women like her.”
Brazil has criticized the United States for spying on Brazilian companies and individuals, saying the electronic surveillance is a violation of the South American country’s sovereignty.
“We expressed Brazil’s unhappiness on learning that data was intercepted without the authorization of Brazilian authorities, for the use of US intelligence,” Brazilian Justice Minister Jose Eduardo Cardozo said on Thursday, the last day of his two-day visit to the US.
“The acts imply a violation of human rights, violation of Brazilian sovereignty and rights enshrined in our constitution,” he added.
Last month, Brazilian Foreign Minister Antonio Patriota expressed serious concerns over a report, which said the US National Security Agency (NSA) has been spying on Brazilian companies and individuals for a decade.
Brazil’s O Globo newspaper reported on July 7 that the NSA had collected data on billions of telephone and email conversations in the country.
The report said that information released by US surveillance whistleblower Edward Snowden reveals that the number of telephone and email messages logged by the NSA in the 10-year period was near to the 2.3 billion captured in the US during the same period.
During his visit to Washington, the Brazilin justice minister met US Vice President Joe Biden, US Attorney General Eric Holder and White House counter-terrorism adviser Lisa Monaco.
Cardozo said US officials could not allay his country’s concerns.
“We made a proposal to move toward an agreement to establish the rules on procedures in the interception of data. They told us the United States would not sign an agreement under those terms with any country in the world,” he said.
Cardozo said US officials claimed that the spying was used for counter-terrorism purpose.
“But for us it was clear that there was collection of data to deal with organized crime and drug-trafficking, but what is worse, also Brazilian diplomatic actions,” he said.
The chairman of the US Joint Chiefs of Staff, Gen. Martin Dempsey, admitted in July that Snowden’s exposés have seriously damaged US ties with other countries. “There has been damage. I don’t think we actually have been able to determine the depth of that damage.”
Snowden, a former CIA employee, leaked two top secret US government spying programs under which the NSA and the Federal Bureau of Investigation (FBI) are eavesdropping on millions of American and European phone records and the Internet data from major Internet companies such as Facebook, Yahoo, Google, Apple, and Microsoft.
The NSA scandal took even broader dimensions when Snowden revealed information about its espionage activities targeting friendly countries.
Newly unveiled National Security Agency programs detail how the US government has the ability to monitor approximately 75 per cent of American internet traffic, and further discloses how telecommunications companies are compelled to provide such data.
The programs – known as Blarney, Fairview, Oakstar, Lithium, and Stormbrew – are able to monitor the writing of emails, not just a message’s metadata, according to The Wall Street Journal. The programs also affect digital phone calls placed inside the US.
Among other capabilities, the systems can “reach roughly 75 per cent of all US internet traffic, including a wide array of communications by foreigners and Americans.”
The NSA commands internet service providers (ISPs) to send “various stream internet traffic it believes most likely to contain foreign intelligence,” then copies that data and searches through it.
NSA officials have claimed in recent weeks that the intelligence agency “touches” a mere 1.6 percent of internet traffic, although TechCrunch speculated that rhetoric refers to information that has been sent to the NSA and “culled to their liking.”
Perhaps the most disturbing news is that the NSA worked in conjunction with the FBI to monitor all email and text messages for the six month period surrounding the 2002 Olympic Games in Salt Lake City, Utah.
One NSA official, who wished to remain anonymous, told The Wall Street Journal that the NSA is “not wallowing willy-nilly” through Americans’ communications. “We want high-grade ore.”
The WSJ report is based on interviews with current and former government officials familiar with the NSA’s tactics. They claim the filtering was designed to identify communications that either begin or end outside the US, although the “broad reach makes it more likely that purely domestic communications will be incidentally intercepted and collected,” not foreign ones.
NSA spokeswoman Vanee Vines said that oversight is in place in the event that domestic communication is inadvertently recorded, including “minimization procedures that are approved by the US attorney general and designed to protect the privacy of United States persons.”
While lawmakers have asserted that NSA surveillance is necessary to protect national security, Blarney is known to have been in use since before the September 11, 2001 terrorist attacks. The program was operating near important fiber-optic landing points, including one in San Francisco, California and another in New Jersey, with the intention of intercepting foreign communications entering and exiting the US.
Such laws are permitted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which was expanded in 2008. Section 702 grants the NSA and the FBI the ability to monitor people who are “reasonably believed” to be located outside the US. Before FISA was expanded, it allowed the government to track targets if there was “probable cause” that they were an “agent of a foreign power.”
The PRISM surveillance program is also permitted under Section 702. One of the first Edward Snowden leaks to be published, an internal NSA document described PRISM’s method of collecting stored internet communications as “the number one source of raw intelligence used for NSA analytic reports.”
Multiple telecommunications companies have denied that PRISM requests administered by the government require bulk data turnovers – an indication that they are more precise than the internet filtration systems under Barney and other newly disclosed programs.