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.
Department Of Homeland Security Funded Study Proves War On Terrorism Has Greatly Increased Global Terrorism
A new study from the Department of Homeland Security has proven what has been a well-known fact amongst anyone who follows the alternative media. The so-called war on terrorism has actually increased terrorism around the world. Whenever the United States government announces that they are launching a war on something we get more of what they are waging a war on.The war on poverty resulted in more poverty, the war on drugs resulted in more drug use and now we can definitively say the same thing about the war on terrorism. If the goal of the so-called war on terrorism was to reduce the amount of terrorism in the world it has failed miserably. Anyone with any sort of common sense would look at this study and realize that a policy change is in order. Unfortunately the policy makers within the Obama regime who are either useful idiots or psychotic criminals will do nothing of the sort.
According to the study there has been a 69% rise in terrorist attacks and an 89% increase in terrorist related fatalities from 2011.In addition, the number of people killed due to a terrorist attack has risen greatly since 2001.These figures clearly indicate that global terrorism has steadily risen throughout this so-called war on terrorism.
In reality, these numbers should be considered low due to the fact that this study does not include terrorist attacks launched by governments or state actors.
If they did include these numbers the amount of terrorist attacks and terrorist related fatalities would be much higher with the Obama regime topping the list as one of the world’s biggest terrorist organizations. The Obama regime has authorized countless drone strikes that have killed many civilians including women and children.These incidents should all be considered acts of terrorism.
To prove this point, the study used the following criteria to classify an incident as an act of terrorism.
It was aimed at attaining a political, economic, religious or social goal.
It was intended to coerce, intimidate or convey a message to a larger group.
It violated international humanitarian law by targeting non-combatants.
The Obama regime’s drone strikes certainly fulfill all three categories and if they were carried out by a non-state actor they would be considered terrorist attacks.These drone strikes have specifically targeted civilians who the Obama regime merely suspects are terrorists.This means that the Obama regime is acting as judge, jury and executioner.This is illegal and contrary to international law. … Full article
- US drone strikes under fire at UN (nation.com.pk)
- No explicit, implicit consent for drone strikes: Pakistan (rediff.com)
- U.S. “War On Terror” Has INCREASED Terrorism (blacklistednews.com)
- Empire Under Obama, Part 2: Barack Obama’s Global Terror Campaign (thehamptoninstitute.wordpress.com)
An Oakland, CA activist says local police officers sent surveillance footage of him participating in a protest last week to his employer, resulting in his firing Monday.
The activist, who goes by @Anon4Justice on Twitter, tweeted the details Monday morning in what appears to be police use of surveillance footage in combination with private and public records that identified @Anon4Justice and led to his employer.
The activist had called in sick to work Friday to take part in a protest of Urban Shield, an expo for SWAT teams, military contractors and police officers from all over the world.
Urban Shield, coordinated by the Alameda County Sheriff’s Office, exists under the guise of fighting terrorism and “disaster preparedness” in heavily-populated areas. The event is partly a trade show for a myriad of militarized tactical gear and weapons, but there are also training exercises and war-game competitions that teams from California to Guam to Qatar took part in over the weekend. The exercises include protest suppression techniques and SWAT-team-raid simulations.
As the activist protested the militarized police event, paid for by the Department of Homeland Security, Oakland police produced surveillance footage of his participation in the demonstration and photos of his truck, which they sent to the his employer. The police called the employer, as well, to tell them though he said he was out sick, he was really taking part in a protest, which led to his firing.
The instance of @Anon4Justice’s tracking and firing, comes amid news that Oakland received $7 million, again from the Department of Homeland Security, for port security. Yet in addition to the use for ports, Oakland plans to spend the money on a vast surveillance “Domain Awareness Center,” as the ACLU of Massachusetts’ Privacy SOS blog pointed out Monday.
“From a central location, it will electronically gather data around the clock from a variety of sensors and databases, analyze that data and display some of the information on a bank of giant monitors,” the New York Times reported two weeks ago.
The city maintains the center will help reduce crime in a city that sees more than its share. Yet critics told the Times the program “will create a central repository of surveillance information” and “gather data about the everyday movements and habits of law-abiding residents,” calling into question the legality and ethics of such an operation.
As one Oakland City Council member told the Times, the center would have the capabilities to “paint a pretty detailed picture of someone’s personal life, someone who may be innocent.”
The Oakland City Council voted unanimously on July 31 to adopt the plan to build the surveillance center, which officials have said will be staffed 24 hours a day. Lawmakers voted at the same meeting to ban hammers and spray paint cans at local protests in fear that the items will be used as weapons. Waiting outside, protesters admonished council members with chants of “Shame! Shame! Shame!”
The Times reported that this project is not the first time Oakland has sought to develop such technology. A city audit viewed by the paper revealed that lawmakers spent nearly $2 million in 2012 on police tools that did not work or could not be used for a variety of reasons.
The center will be operational by July 2014, and will eventually cost $10.9 million in federal grants, the San Francisco Chronicle reported.
Oakland has been the site of contentious, at times violent, confrontations between police and protesters in recent years, and beyond.
The City of Oakland and Alameda County agreed in June to settle a class action lawsuit by paying out $1.025 million to 152 people arrested in 2010 while protesting the leniency of sentence for a white transit officer who shot dead an unarmed black man, Oscar Grant.
Occupy Oakland and police clashed many times, most notably in late October, 2011 as Oakland police attempted to clear its encampment and disperse hundreds of protesters, later leading to Iraq war veteran Scott Olsen suffering a skull fracture caused by a non-lethal projectile shot by police.
Tear gas was also used on protesters during May Day 2012.
On top of the centralized surveillance operation, as Privacy SOS wrote, the allegations that surveillance data was used to undermine the exercise of free speech by @Anon4Justice could have a chilling effect among other activists.
“This kind of government action sends a chilling message to all Oakland residents: If you protest the police, they will use the powerful surveillance tools at their disposal to come after you and interfere with your life — regardless of whether or not you’ve done anything wrong.
“Was the compilation of photographs of @Anon4Justice part of the Urban Shield exercise the activist was protesting? Is it OPD policy to use photographs of people exercising their First Amendment rights to get them in trouble with their employers? Is this kind of McCarthyite political repression how Oakland residents — or the rest of the country — want their tax dollars spent?”
President Barack Obama has chosen a former Pentagon attorney who defended the extrajudicial killing of American citizens to man the helm of the United States Department of Homeland Security and replace outgoing Secretary Janet Napolitano.
Jeh Johnson, a general counsel for the Pentagon during the president’s first term in office, was named by Mr. Obama as his choice for new DHS secretary during a Friday afternoon press conference.
“The president is selecting Johnson because he is one the most highly qualified and respected national security leaders,” a senior administration official told the Washington Post on Thursday while speaking condition of anonymity. “During his tenure at the Department of Defense, he was known for his sound judgment and counsel.”
Johnson, 56, served as a special counsel during John Kerry’s unsuccessful 2004 run for the presidency before assisting with Obama’s campaign four years later. During his first week in office, Obama nominated Johnson as DoD general counsel and he was confirmed by the Senate in Feb. 2009.
Up until his resignation from Defense Department attorney in December 2012, Johnson advised the largest military in the world, including during historic matters regarding the repeal of the Pentagon’s ban on openly gay troops and the reform of military commissions.
That same span in the Pentagon was also marred by Obama administration decisions that opponents of the president’s latest pick have been quick to pounce on.
While working as one of the top attorneys for the US military, Johnson authorized the execution of Anwar al-Awlaki, an American citizen and suspected senior figure in Al-Qaeda who was killed by a drone strike in Yemen in late 2011. That slaying was carried out by an operation conducted by the Pentagon in cooperation with the Central Intelligence Agency and has drawn immense criticism directed at the White House and the president’s extrajudicial killing of an American citizen.
The New York Times reported shortly after that Johnson told attendees at a speech at Yale Law School that “Belligerents who also happen to be US citizens do not enjoy immunity where non-citizen belligerents are valid military objectives.”
The president postponed offering full justification for the attack until this past May when he said, “I do not believe it would be constitutional for the government to target and kill any US citizen — with a drone, or with a shotgun — without due process . . . But when a US citizen goes abroad to wage war against America and is actively plotting to kill US citizens, and when neither the United States, nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.”
Johnson also served as general counsel during the height of the WikiLeaks scandal that involved the unauthorized disclosure of hundreds of thousands of sensitive documents. In a letter to the whistleblower organization published in August 2010, Johnson blamed WikiLeaks for their “illegal and irresponsible actions,” and said that the leaking of classified materials aided America’s enemy in “their own terrorist aims.” Earlier this year, a military judge said that Chelsea Manning, the Army analyst who admitted to giving those files to WikiLeaks, did not aid Al-Qaeda by supplying the website with documents.
Johnson said in the same letter that the Pentagon “demands that NOTHING further be released by WikiLeaks, that ALL of the US Government classified documents that WikiLeaks has obtained be returned immediately and that WikiLeaks remove and destroy all of these records from its databases.”
Mr. Obama officially nominated Johnson at a 2 p.m. meeting, paving the way for the Senate to formally decide if they will appoint the president’s pick.
“If confirmed by the Senate, I promise all of my energy, focus and ability towards the task of safeguarding our nation’s national and homeland security,” Johnson said after being introduced by the president.
US President Barack Obama quietly signed his name to an Executive Order on Friday, allowing the White House to control all private communications in the country in the name of national security.
President Obama released his latest Executive Order on Friday, July 6, a 2,205-word statement offered as the “Assignment of National Security and Emergency Preparedness Communications Functions.” And although the president chose not to commemorate the signing with much fanfare, the powers he provides to himself and the federal government under the latest order are among the most far-reaching yet of any of his executive decisions.
“The Federal Government must have the ability to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions,” the president begins the order. “Survivable, resilient, enduring and effective communications, both domestic and international, are essential to enable the executive branch to communicate within itself and with: the legislative and judicial branches; State, local, territorial and tribal governments; private sector entities; and the public, allies and other nations.”
President Obama adds that it is necessary for the government to be able to reach anyone in the country during situations it considers critical, writing, “Such communications must be possible under all circumstances to ensure national security, effectively manage emergencies and improve national resilience.” Later the president explains that such could be done by establishing a “joint industry-Government center that is capable of assisting in the initiation, coordination, restoration and reconstitution of NS/EP [national security and emergency preparedness] communications services or facilities under all conditions of emerging threats, crisis or emergency.”
“The views of all levels of government, the private and nonprofit sectors, and the public must inform the development of NS/EP communications policies, programs and capabilities,” he adds.
On the government’s official website for the National Communications Systems, the government explains that that “infrastructure includes wireline, wireless, satellite, cable, and broadcasting, and provides the transport networks that support the Internet and other key information systems,” suggesting that the president has indeed effectively just allowed himself to control the country’s Internet access.
In order to allow the White House to reach anyone within the US, the president has put forth a plan to establish a high-level committee calling from agents with the Department of Homeland Security, Pentagon, Federal Communications Commission and other government divisions to ensure that his new executive order can be implemented.
In explaining the order, the Electronic Privacy Information Center (EPIC) writes that the president has authorized the DHS “the authority to seize private facilities when necessary, effectively shutting down or limiting civilian communications.”
In Section 5 of his order, President Obama outlines the specific department and agency responsibilities that will see through his demands. In a few paragraphs, President Obama explains that Executive Committee that will oversee his order must be supplied with “the technical support necessary to develop and maintain plans adequate to provide for the security and protection of NS/EP communications,” and that that same body will be in tasked with dispatching that communiqué “to the Federal Government and State, local, territorial and trial governments,” by means of “commercial, Government and privately owned communications resources.”
Later, the president announces that the Department of Homeland Security will be tasked with drafting a plan during the next 60 days to explain how the DHS will command the government’s Emergency Telecommunications Service, as well as other telecom conduits. In order to be able to spread the White House’s message across the country, President Obama also asks for the purchasing of equipment and services that will enable such.
The United States government doesn’t need a reason to seize and search the cell phones, laptops and other electronic devices of Americans entering the country, according to a Department of Homeland Security document provided to the press this week.
The DHS has long insisted that border agents and immigration officers are allowed to collect the electronics of US citizens crossing into the country without reason or cause, but a December 2011 document made public this week once and for all shines a light on a sparsely discussed security-measure that has attracted the attention of privacy advocates and others who’ve equated the practice as a constitutional violation.
The American Civil Liberties Union and the Associated Press jointly filed a Freedom of Information Act request for the document earlier this year after the DHS published a two-page executive summary briefly explaining the results of an audit conducted by the department’s Office for Civil Rights and Civil Liberties. In that statement, the DHS auditor concluded that Customs and Border Protection agents and officers with Immigration and Customs Enforcement were not violating either the First or Fourth Amendments to the US Constitution by seizing the electronics of Americans without clear suspicion of a crime.
“We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment,” Tamara Kessler wrote for the Office for Civil Rights and Civil Liberties in the summary. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”
Now with the full 23-page paper in their possession — albeit a version that’s seen a fair share of redactions — the AP and ACLU have published the document in order to expose a post-9/11 policy that has remained intact under President Barack Obama, but to little discussion.
“This is striking,” ACLU fellow Brian Hauss wrote Wednesday, “because it is the first time, as far as we know, that the government has explained why purely suspicionless searches supposedly enhance security.”
The government’s reasoning, according to the document, is that the blanketing ability to collect and assess the devices of anyone thought to be entering the country is crucial to thwart high crimes. That being said, the government attests that requiring actual probable cause before seizing a device would, in the eyes of the DHS, hinder their ability to counter terrorism.
“[A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit,” the document found. “First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches.”
“Even a policy change entirely unenforceable by courts might be problematic,” it continued. “Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.”
Speaking to AP, ACLU staff attorney Catherine Crump said the government’s reasoning is “just not good enough” and demonstrates purely inadequate reasoning.
“A purely suspicionless search opens the door to ethnic profiling,” Crump said.
Hauss, the legal fellow for the group’s Speech, Privacy and Technology Project, said the government’s line of thought in defending the policy is faulty for a few different reasons. “DHS claims that giving Americans the opportunity to challenge laptop searches in court would lead to the divulgence of national security secrets, but this is obviously wrong,” he wrote. “The government has numerous resources at its disposal to prevent the disclosure of sensitive information. The ‘state secrets privilege,’ to take just one example that is used in court cases, has been criticized on many grounds, but no one has ever seriously suggested that its protections are too anemic. Although DHS might fear the prospect of being called into open court to explain its actions, executive accountability before the law is the bedrock on which our system of constitutional self-government is built.”
Last year, the US Supreme Court upheld an earlier ruling that legally permitted the use of suspicionless roadblocks anywhere within 100 miles of an international border, subjecting nearly 200 million Americans around the country to spontaneous and sporadic inspections of vehicles and their possessions.
On Tuesday, ACLU spokesperson Peter Boogaard told Bloomberg News that a 2009 policy change restricted how long the DHS can hold on to seized electronics. Earlier this week, though, it was suggested that the department did not necessarily see any problems with duplicating that information to be held on to indefinitely.
David House, a founding member of the Bradley Manning Support Network, sued the DHS in 2011 after his computer and cell phone were seized after an international flight he was on landed at O’Hare International Airport in Chicago. On behalf of the ACLU, House sued DHS Secretary Janet Napolitano on the accusation that his belongings were searched solely on the basis of his association with the Support Network, an organization that has paid in full the legal bills for the 25-year-old Army private accused of committing espionage and aiding terrorists by sharing sensitive files with the website WikiLeaks. House’s devices were held for 49 days by ICE — longer than the 30 days allowed legally — and the contents of those electronics were copied by investigations. House dropped his lawsuit last after the DHS agreed to delete its copy of the data.
“They’re giving us exactly what we wanted,” House told Wired.
The Department of Homeland Security is under investigation for purchasing large stockpiles of ammunition, days before legislation was introduced that would restrict the amount a government agency can legally buy.
The Government Accountability Office is now conducting the investigation into the alleged DHS purchases, which is “just getting underway,” GAO spokesman Chuck Young told US News & World Report.
DHS officials have repeatedly denied stockpiling ammunition, but AP reports claim that the agency plans to buy more than 1.6 billion rounds of ammunition over the next four or five years, and has already bought 360,000 rounds of hollow point bullets and 1.5 billion rounds in 2012.
DHS claims that it is buying ammo in bulk to save money, but experts have pointed out that hollow point bullets cost nearly twice as much as full metal jacket rounds. They also explode on impact for maximum damage, which has caused some Americans to wonder what purpose they would serve the DHS domestically. Purchasing 1.6 billion rounds of ammo would also give DHS the means to fight the equivalent of a 24-year Iraq War. Members of Congress say the DHS has repeatedly refused to tell them the purpose of procuring such large amounts of ammo.
“They have no answer for that question,” Congressman Timothy Huelscamp told Infowars in March, pointing out that the purchases are being made at a time when sequestration should be limiting the agency’s spending. “…We’re going to find out… I say we don’t fund them until we get an answer.”
DHS officials testified last week that it was only planning to purchase up to 750 million rounds of ammunition for training centers and law enforcement over the next five years. The agency’s spokesman, Peter Boogaard, told Congress that the media reports are ‘misleading’. But Boogard also mentioned a second five-year contract for up to 450 million rounds of ammunition for law enforcement purposes. Together, the two DHS contracts for ammunition would result in purchases of up to 1.2 billion rounds of ammo.
“With more than 100,000 armed law enforcement personnel in DHS, significant quantities of ammunition are used to support law enforcement operations, quarterly qualifications, and training, to include advanced firearms training exercises,” Boogard said.
But the DHS testimony did not provide an adequate explanation for the large amount of ammo it plans to procure, prompting a GAO investigation at approximately the same time as the introduction of the AMMO Act.
The new legislation, which was introduced in both the Senate and the House on Friday, would prevent government agencies from buying any more ammunition if its stockpiles are already larger than what they were in previous presidential administrations.
Proponents of the bill suspect that government agencies may be making large ammunition purchases to keep the supplies out of the hands of Americans at a time when the administration has been trying to reduce gun violence.
“President Obama has been adamant about curbing law-abiding Americans’ access and opportunities to exercise their Second Amendment rights,” US Sen. Jim Inhofe, who introduced the bill, said in a news release. “One way the Obama Administration is able to do this is by limiting what’s available in the market with federal agencies purchasing unnecessary stockpiles of ammunition… [DHS] has two years worth of ammo on hand and allots nearly 1,000 more rounds of ammunition for DHS officers than is used on average by our Army officers.”
Congressman Frank Lucas cited an ammunition shortage in Oklahoma and blamed the DHS for taking away Americans’ Second Amendment rights by removing ammo from the market.
The GAO investigation will attempt to determine whether there truly is a reason for the large ammo purchases, or whether DHS is simply buying large quantities to save money in the long run.
EPIC has filed appeals in two Freedom of Information Act cases seeking documents related to airport body scanners from the Department of Homeland Security and the Transportation Security Administration.
The TSA is currently developing formal rules for the use of body scanners in response to a court order in one of EPIC’s previous cases.
Body scanners allow routine digital strip searches of individuals who are not suspected of any crime.
- Judge: DHS Must Release Body Scanner Safety Reports (reason.com)
- Letter From a Screener: So We Found a Suicide Bomber With The Full Body Scanner: Now What? (takingsenseaway.wordpress.com)
The government does not have the unchecked authority to place individuals on a secret blacklist without providing them any meaningful opportunity to object, the ACLU argued in a brief filed last Friday with the federal district court in Oregon.
We made the filing in Latif v. Holder, our lawsuit asserting that the government violated the Fifth Amendment due process rights of 13 Americans, including four military veterans, by placing them on the No Fly List and refusing to give them any after-the-fact explanation or a hearing at which they can clear their names.
Our brief highlighted the utter irrationality of the government’s No Fly List procedures. The plaintiffs in Latif all flew for years without any problems. But more than two years ago, they were suddenly branded as suspected terrorists based on secret evidence, publicly denied boarding on flights, and told by U.S. and airline officials that they were banned from flying perhaps forever. Each of them asked the government to remove them from the No Fly List through the only “redress” mechanism available—the Department of Homeland Security Traveler Redress Inquiry Program. But the government has refused to provide any explanation or basis for their inclusion in the list. Our clients have been stuck in limbo ever since.
We submitted evidence to the court showing that the No Fly List burdens our clients’ constitutionally protected liberties, with devastating consequences for their personal and professional lives. It deprives them of the ability to fly—an essential means of travel in modern life. It also stigmatizes them as suspected terrorists, although they have never been charged with any crime, let alone convicted of one.
Our brief argued that the Constitution’s core promise of procedural due process requires the government to provide at least some explanation and some hearing where Americans can defend themselves after it deprives them of their liberties. The government’s categorical refusal to provide either is unconstitutional. We explained:
Defendants’ refusal to provide the bare rudiments of due process stems from their embrace of an explicit policy—known as the “Glomar” policy—of refusing to confirm or deny any information concerning a person’s status on the No Fly List. The Glomar policy and Defendants’ inadequate process cannot be reconciled with governing due process doctrine. Courts routinely require notice and some form of hearing for much less severe deprivations of liberty than Plaintiffs have suffered. Thus, the government cannot suspend a student from school for ten days, or recover excess Social Security payments, or terminate state assistance for utility bills without some kind of notice and hearing.
In its own brief to the court defending its “redress” program, the government’s arguments boiled down to two sweeping—and extraordinary—claims. First, according to the government, the Constitution has nothing to say about the adequacy and fairness of the procedures the government provides Americans to challenge their inclusion on the No Fly List because “alternatives” to flying are available. We countered that argument in a separate brief (also filed on Friday) showing that the government relied on the wrong law, and by providing evidence confirming what is obvious: the No Fly List so severely restricts Americans’ ability to travel that it triggers due process rights. Not only does the list ban Americans from the skies, it even bars them from travel on boats. As a result, two of our clients have been effectively banned from traveling from the United States to be with their families in Ireland and Yemen.
The government’s second sweeping claim is that even confirming or denying No Fly List-status (much less actually providing notice of the reasons and basis for inclusion in the list) will cause a parade of national security horribles, including the disclosure of sensitive or classified information. Our brief, however, showed that this argument is based on a fiction: all of our clients already know they are on the No Fly list; they were each prevented from flying and explicitly told that they are on the list. We also pointed out that the mere possibility that sensitive national security information might be involved is no reason to categorically foreclose the hearings that due process requires.
Americans have a right to know what kind of “evidence” or innuendo is sufficient to land them on the No Fly List, and to have a hearing where they can defend themselves. Without this bare minimum, there is no meaningful check to correct the government’s mistakes or ensure that it uses the blacklisting power it claims fairly and appropriately. We are asking the court, therefore, to vindicate a basic yet fundamentally important proposition: a government black list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.
President Barack Obama’s plan to protect the United States’ critical infrastructure against cyberattacks is accelerating quickly as more private sector businesses are signing on to share information with the federal government.
When Pres. Obama rolled out his ‘Improving Critical Infrastructure Cybersecurity’ executive order last month, he asked that classified cyber threat and technical information collected by the government be given to eligible commercial service providers that offer security services to businesses linked to the country’s critical infrastructure.
But in the few short weeks since the order was announced during the president’s annual State of the Union address, warnings of an imminent attack have only increased. CIA Director John Brennan told a panel last week that “the seriousness and the diversity of the threats that this country faces in the cyber domain are increasing on a daily basis,” and US national intelligence chief James Clapper claims there is “a remote chance of a major cyberattack against US critical infrastructure systems during the next two years that would result in long-term, wide-scale disruption of services, such as a regional power outage.”
Upon announcement of the executive order, a handful of defense contractors and telecom companies — namely Lockheed Martin, Raytheon, AT&T and CenturyLink — confirmed that they’d be voluntarily sharing information back and forth with the country’s top intelligence agencies in order to closely monitor any threats that could collapse the country’s critical infrastructure, a vaguely defined category assumed to include the nation’s power systems, telecommunication wires and other major utilities.
“The demand is there. I think the priority is there, and the threat is serious,” Steve Hawkins, vice president of information and security solutions for Raytheon, told Bloomberg earlier in the month.
As warnings of a cyberattack increase, however, the latest news out of Washington is that even more private sector companies with ties to critical infrastructure will be participating in the program. In a report published on Thursday by Reuters, the newswire notes that the framework first outlined during last month’s executive order is already quickly shaping up, with tasks being delegated throughout the US so that threat information can be adequately passed to applicable persons.
According to Reuters’ latest write-up, the executive order will require the National Security Agency to collect classified intelligence on serious hacking attempts aimed at American businesses, which will then be handed over to the Department of Homeland Security to pass on to the telecom and cybersecurity providers — Raytheon, AT&T and others — where employees holding security clearances will scan incoming emails and routine Web traffic for threats to the infrastructure.
But while the government has long asked the entities to open up lines of communication with the NSA and other offices, smaller private-sector businesses could soon be signing on. According to Joseph Menn and Deborah Charles of Reuters, the government is already expanding their cybersecurity program so that even more Web traffic heading into and out of defense contractors will be scanned to include far more of the country’s private, civilian-run infrastructure.
“As a result, more private sector employees than ever before, including those at big banks, utilities and key transportation companies, will have their emails and Web surfing scanned as a precaution against cyberattacks,” they write.
Once those participating companies sign on to get data from Homeland Security, the DHS will send them computer threat “signatures” obtained by the NSA that will offer a list of red flags to be watching out for as huge amounts of Web data is scanned second-by-second and bit-by-bit.
“The companies can use this intelligence to strengthen cybersecurity services they sell to businesses that maintain critical infrastructure,” Bloomberg News reports.
That intelligence, including but not limited to cyber timestamps, indicators and the critical sector potentially, can then be monitored to search for malicious code and viruses sent through America’s Internet with the intent of causing harm. In exchange, the critical infrastructure companies that could be targeted by cyberterrorists will pay the contractors and telecoms for their help.
The threat of a cyberwar crippling America’s power grid and communication systems has been ramped-up in recent weeks, particularly in light of a highly-touted report that linked Chinese state actors with repeated attempts to sabotage US businesses and conduct espionage to steal secrets.
“Increasingly, US businesses are speaking out about their serious concerns about sophisticated, targeted theft of confidential business information and proprietary technologies through cyber intrusions emanating from China on an unprecedented scale,” National Security Adviser Thomas Donilon told the Asia Society in New York last week. “The international community cannot afford to tolerate such activity from any country.”
Given the current controversy surrounding the extent of the U.S. drone program and targeted killings, it is important to revisit that in the summer of 2012, the U.S. Customs and Border Protection Agency announced that unmanned drones would begin patrolling Caribbean airspace as an expansion of the Caribbean Basin Security Initiative (CBSI). This is only one aspect of how the War on Drugs in the Caribbean is increasingly looking like the War on Terror.
The U.S.–Caribbean border is the often ignored “Third Border,” which the Department of Homeland Security has referred to as an “open door for drug traffickers and terrorists.” A recent study by the National Defence University has stated that “the region’s nexus to the United States uniquely positions it in the proximate U.S. geopolitical and strategic sphere. Thus, there is an incentive, if not an urgency, for the United States to proactively pursue security capacity-building measures in the Caribbean region.”
While the drones are unarmed for the time being, they will be primarily used to locate drug traffickers operating fishing boats, fast boats, and semi-submarines and would relay information to the Coast Guard, Navy or Caribbean authorities to carry out the interception and arrests. It has been revealed that the drones will be operating out of bases in Corpus Christi, Texas, Cocoa Beach, Florida and potentially the Dominican Republic and Puerto Rico.
The shift towards the use of drones in the region is largely based off of an unconvincing pilot program carried out over 18 months in the Bahamas, in which “During more than 1,260 hours in the air off the southeastern coast of Florida, the Guardian (drones) assisted in only a handful of large-scale busts.” That said, the Caribbean governments increased militarization in the region when they implemented the never-ending War on Drugs without any public consultation or debate. This erosion of regional sovereignty may be a slippery slope to a dangerous future in which Caribbean nationals may very well find themselves on kill lists instead of facing a trial.
Such a conclusion is not baseless, as a November 2012 report by the U.S. House Committee on Homeland Security recommended that Latin American drug cartels be classified as terrorist organizations “so there is increased ability to counter their threat to national security.” Furthermore, in 2009, the U.S. Military drew criticism for placing 50 suspected Afghani drug traffickers on a “kill list” as part of their ongoing efforts to cut off finance stream of the Taliban. The controversy arose due to the fact that drug traffickers (generally classified as civilians) had now been placed into the same legal category as the Taliban “insurgents” and thus became legitimate targets.
This is especially important in light of how the extradition of Jamaican kingpin Christopher “Dudus” Coke was handled. In September 2009, the United States requested his extradition to face drug trafficking charges, but Jamaican Prime Minister Bruce Golding blocked the request due to his deep political connections with Coke. It was only after months of intense pressure that Golding caved in May 2010. Jamaican Police and the Jamaican Defense Forces led the bloody operation to arrest Coke, which resulted in the deaths of more than 70 civilians—the vast majority of which were unarmed.
The resulting scandal led to the downfall of Golding as Prime Minister but highlighted the power that drug traffickers and gang leaders have had in Jamaican government and politics. It has since been reinforced that the operation was “assisted by the U.S. government and carried out, to a large degree, at its behest.” Information has emerged which reveals that a U.S. spy plane participated in the raid of Coke’s stronghold of Tivoli Gardens, and a Freedom of Information Act action has recently been levied against the Drug Enforcement Agency (DEA) by a group of law students to reveal the extent of U.S. involvement.
To prevent such explosive outcomes in the future, there has been a call for closer integration between Caribbean police forces and the U.S. DEA in a clear escalation of the War on Drugs. A September 2012 Senate Report revealed that Jamaica has been floated as a target for a Sensitive Investigative Unit, which consists of a highly trained police that collaborate with the DEA. A similar program exists in Kandahar, where U.S. and British troops have created and participated in a task force made up of Afghan police officers and U.S. DEA agents to disrupt the drug trade and investigate corrupt Afghan officials.
According to a seemingly benign Department of Homeland Security (DHS) press release announcing the drone program, the “DHS is partnering with Caribbean nations to enhance border security in the region through the Caribbean Basin Security Initiative (CBSI) . . . . The DHS is conducting border security training in conjunction with CBSI to increase partner nation capacity to secure their borders.” The problem with such statements is that there is always more shady business going on behind the scenes. Given the direction of U.S. policy in the region, it will only be a matter of time until the War on Drugs becomes eerily similar to the War on Terror.