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Report: Senate Report on CIA Will Sidestep Look at Bush ‘Torture Team’ October 19, 2014

Posted by rogerhollander in Constitution, Criminal Justice, Democracy, Dick Cheney, George W. Bush, Human Rights, Torture, War on Terror.
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Roger’s note: The United States government and military violate international law on a daily basis; the Bush/Cheney torture regime, which Obama has outsourced to Bagram and god knows where else, is one of its most blatant manifestations.  Obama’s “we need to look forward not backward” excuse for violating his oath to defend the constitution does credit to Lewis Carroll and Franz Kafka.  The next time you are before a judge accused of a crime, please remind her that it is time to look forward and not backward.  Your charges are sure to be dropped.

 

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According to sources who spoke with McClatchy, five-year inquiry into agency’s torture regime ignores key role played by Bush administration officials who authorized the abuse

 rumsfeld_bush_cheneyFrom left: Donald Rumsfeld, George W. Bush, and Dick Cheney. Thanks to an Obama adminstration that insisted on “looking forward, not backward” on torture, and a Senate investigation that has limited its scope to the mere “action or inactions” of the CIA, neither these men nor the others who helped authorize the torture program will likely ever face prosecution for what experts say were clear violations of domestic and international law. (Photo: Wikimedia/Public domain)

According to new reporting by McClatchy, the five-year investigation led by the U.S. Senate Intelligence Committee into the torture program conducted by the CIA in the aftermath of September 11, 2001 will largely ignore the role played by high-level Bush administration officials, including those on the White House legal team who penned memos that ultimately paved the way for the torture’s authorization.

Though President Obama has repeatedly been criticized for not conducting or allowing a full review of the torture that occured during his predecessor’s tenure, the Senate report—which has been completed, but not released—has repeatedly been cited by lawmakers and the White House as the definitive examination of those policies and practices. According to those with knowledge of the report who spoke with McClatchy, however, the review has quite definite limitations.

The report, one person who was not authorized to discuss it told McClatchy, “does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law.” Instead, the focus is on the actions and inations of the CIA and whether or not they fully informed Congress about those activities. “It’s not about the president,” the person said. “It’s not about criminal liability.”

Responding to comment on the reporting, legal experts and critics of the Bush torture program expressed disappointment that high-level officials in the administration were not part of the review. In addition to the president himself, Vice President Dick Cheney, National Security Advisor Condoleeza Rice and Secretary of Defense Donald Rumsfeld, others considered part of what it sometimes referred to as the “Torture Team,” include: Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney’s chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon’s general counsel; and John Yoo and Jay Bybee, who wrote many of the specific legal memos authorizing specific forms of abuse.

“If it’s the case that the report doesn’t really delve into the White House role, then that’s a pretty serious indictment of the report,” Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School, said to McClatchy. “Ideally it should come to some sort of conclusions on whether there were legal violations and if so, who was responsible.”

And Kenneth Roth, executive director of Human Rights Watch, indicated that limiting the report to just the actions of the CIA doesn’t make much sense from a legal or investigative standpoint. “It doesn’t take much creativity to include senior Bush officials in the Senate Intelligence Committee’s jurisdiction. It’s not hard to link an investigation into the CIA’s torture to the senior officials who authorized it. That’s not a stretch at all.”

As Mclatchy‘s Jonathan S. Landay, Ali Watkins and Marisa Taylor report:

The narrow parameters of the inquiry apparently were structured to secure the support of the committee’s minority Republicans. But the Republicans withdrew only months into the inquiry, and several experts said that the parameters were sufficiently flexible to have allowed an examination of the roles Bush, Cheney and other top administration officials played in a top-secret program that could only have been ordered by the president.

“It doesn’t take much creativity to include senior Bush officials in the Senate Intelligence Committee’s jurisdiction,” said Kenneth Roth, executive director of Human Rights Watch. “It’s not hard to link an investigation into the CIA’s torture to the senior officials who authorized it. That’s not a stretch at all.”

It’s not as if there wasn’t evidence that Bush and his top national security lieutenants were directly involved in the program’s creation and operation.

The Senate Armed Services Committee concluded in a 2008 report on detainee mistreatment by the Defense Department that Bush opened the way in February 2002 by denying al Qaida and Taliban detainees the protection of an international ban against torture.

White House officials also participated in discussions and reviewed specific CIA interrogation techniques in 2002 and 2003, the public version of the Senate Armed Services Committee report concluded.

Several unofficial accounts published as far back as 2008 offered greater detail.

Cheney and Defense Secretary Donald Rumsfeld relentlessly pressured interrogators to subject detainees to harsh interrogation methods in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein, McClatchy reported in April 2009. Such evidence, which was non-existent, would have substantiated one of Bush’s main arguments for invading Iraq in 2003.

Other accounts described how Cheney, Rumsfeld, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and Secretary of State Colin Powell approved specific harsh interrogation techniques. George Tenet, then the CIA director, also reportedly updated them on the results.

“Why are we talking about this in the White House? History will not judge this kindly,” Ashcroft said after one of dozens of meetings on the program, ABC News reported in April 2008 in a story about the White House’s direct oversight of interrogations.

News reports also chronicled the involvement of top White House and Justice Department officials in fashioning a legal rationale giving Bush the authority to override U.S. and international laws prohibiting torture. They also helped craft opinions that effectively legalized the CIA’s use of waterboarding, wall-slamming and sleep deprivation.

Though President Obama casually admitted earlier this, “We tortured some folks.” — what most critics and human rights experts have requested is an open and unbiased review of the full spectrum of the U.S. torture program under President Bush. And though increasingly unlikely, calls remain for those responsible for authorizing and conducting the abuse to be held accountable with indictments, trials, and if guilty, jail sentences. In addition, as a letter earlier this year signed by ten victims of the extrajudicial rendition under the Bush administration stated, the concept of full disclosure and accountability is key to restoring the credibility of the nation when it comes to human rights abuses:

Publishing the truth is not just important for the US’s standing in the world. It is a necessary part of correcting America’s own history. Today in America, the architects of the torture program declare on television they did the right thing. High-profile politicians tell assembled Americans that ‘waterboarding’ is a ‘baptism’ that American forces should still engage in.

These statements only breed hatred and intolerance. This is a moment when America can move away from all that, but only if her people are not sheltered from the truth.

As McClatchy notes, a redacted version of the report’s summary—the only part of it expected to be released to the public—continues to be under review. Its release date remains unclear.

Obama Charged with ‘Imperial Hubris’ Unmatched Even by Bush September 13, 2014

Posted by rogerhollander in Barack Obama, Constitution, George W. Bush, Iraq and Afghanistan, War.
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Roger’s note: Obama’s latest act of warmongering tells us at least two things.  One is that the positions on issues taken by a candidate are a completely unreliable indicator of what said candidate might do once elected.  Secondly, the fact that Obama’s decision to declare war unilaterally against Isis/Isil, without either congressional or international authority, has gained widespread bipartisan approval (which is rare these days) shows us how the military industrial complex are the de facto rulers of the allegedly democratic nation.

 

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by Jon Queally
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Following his announcement to bomb Syria without congressional approval, president slammed for total disregard for constitutional safeguards regarding war-making

President Obama told the American public on Wednesday night that he will order significantly expanded military operations against the Islamic State in the Middle East, including more U.S. troops to Iraq and a bombing campaign in Syria. Anti-war voices and progressive critics were thoroughly unimpressed with the announced strategy as they issued warnings of the disaster to come. 

A day after President Obama told the American public he was preparing to bomb targets inside the sovereign state of Syria and that he did not need congressional approval to do so, critics are lashing out against what Bruce Ackerman, a professor of law and political science at Yale University, described as “imperial hubris” on Friday.

In his scathing op-ed in the New York Times, Ackerman writes:

President Obama’s declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.

Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.

This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.

But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.

And Ackerman’s not alone.

Robert Chesney, a professor at the University of Texas School of Law, told theDaily Beast this week that Obama’s claim of authority to bomb ISIS targets in Syria was “on its face” an “implausible argument.”

“The 2001 AUMF requires a nexus to al Qaeda or associated forces of al Qaeda fighting the United States,” explained Chesney, but “since ISIS broke up with al Qaeda it’s hard to make” the case that authority granted by the AUMF  still applies.

And as The Nation magazine’s Zoë Carpenter reports:

The White House’s dismissal of the need for congressional approval is also in conflict with positions Obama himself expressed as a presidential candidate. “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Obama declared to The Boston Globe in 2008.

The situation in Iraq and Syria does not appear to meet that standard. Obama acknowledged on Wednesday that “[w]e have not yet detected specific plotting against our homeland.” Meanwhile, intelligence sources say that the threat from ISIS has been grossly exaggerated. “It’s hard to imagine a better indication of the ability of elected officials and TV talking heads to spin the public into a panic, with claims that the nation is honeycombed with sleeper cells, that operatives are streaming across the border into Texas or that the group will soon be spraying Ebola virus on mass transit systems—all on the basis of no corroborated information,” former State Department counterterrorism adviser Daniel Benjamin told The New York Times.

According to Ackerman, the president has put himself in a perilous position.

“The president seems grimly determined to practice what Mr. Bush’s lawyers only preached,” the Yale professor concludes in his op-ed. “He is acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war. In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.”

And Carpenter says that in addition to defying Congress and his constitutional obligations, Obama should also be worried about the implications for his new strategy under international law. She writes:

It’s worth noting that the legality of an extended cross-border campaign isn’t only a question of the separation of powers. As Eli Lakenoted at The Daily Beast, the White House has not explained the basis for the strikes under international law.

While the administration’s current attempt to circumnavigate Congress is hypocritical as well as potentially illegal, it’s also consistent with the way Obama has exercised US military power before. As Spencer Ackerman notes, he’s extended drone strikes across the Middle East and North Africa; initiated a seven-month air campaign in Libya without congressional approval; prolonged the war in Afghanistan; and, in recent months, ordered more than 1,000 troops back into Iraq. Promises of no boots on the ground notwithstanding, Obama’s war footprint is large, and expanding.

Three-Fifths of an Attorney General Declares POWs “Non-Persons” July 24, 2014

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Human Rights, Torture.
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Roger’s note: Congratulations.  Barak Obama and Eric Holder, with the essential contribution of George Bush, have managed to score a trifecta: a policy and implementation at Guantanamo Bay that is all three, Orwellian, Kafkaesque and Lewis Carroll at the same time.  Torture, indefinite detention, and people who are not persons.  “Execution first, then the trial” shouted the Queen.

And by the way, the three fifths of a person of African slaves that was in the original constitution is even worse than it appears at face value.  Slaves would have been better off if not considered as persons at all.  The southern states lobbied for three fifths so that their slaves would be counted in the census, which in turn determined their level of representation in the House of Representative.  More slaves on the roll via the three fifths gave the southern state more political clout with which to defend slavery.  Thus, being counted as less than fully human was a double whammy against the slaves.  Kafka would have loved it.

 

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Protestors gathered in New York City’s Time Square in April of 2013 to raise awareness of detainee hunger strikes and indefinite imprisonment of prisoners in Guantanamo Bay. (Photo: flickr / cc /Jordan P)

 

Hand it to President Obama for appointing Eric Holder the first African American Attorney General in US history. Then try to fathom that after generations of civil and human rights work by African Americans — whom the US Constitution once called “3/5 of a person” — it is Holder who declared some brown skinned prisoners of war to be “non-persons.” The men are held outside the law by the US at Guantánamo Bay.

Attorneys for the POWs have asked for an order that would allow group prayers during the holy month of Ramadan, but Holder’s Justice Dept. has formally replied that the men aren’t entitled to relief under the Religious Freedom Restoration Act (RFRA) because the Supreme Court has not found that Guantánamo’s prisoners “are ‘persons’ to whom RFRA applies.”

Holder calls the men “unprivileged enemy belligerents detained overseas during a period of ongoing hostilities.” Calling them prisoners of war would require respecting their human rights.

Cori Crider, an attorney with the legal charity Reprieve who represents some of the men, said in a statement, “I fail to see how the President can stand up and claim Guantánamo is a scandal while his lawyers call detainees non-persons in court. If the President is serious about closing this prison, he could start by recognizing that its inmates are people — most of whom have been cleared by his own Government.”

According to AG Holder, US Appeals Court rulings mean Guantánamo’s POWs — whom he calls “nonresident aliens outside the US sovereign territory” — are “not protected ‘person[s].’” In the infamous Hobby Lobby case Holder argues, the Supreme Court refused to say that the word “‘person’ as used in RFRA includes a nonresident alien outside sovereign United States territory.”

Even if RFRA applied to the POWs, Holder claims, the law “cannot overcome the judicial presumption against extraterritorial application of statutes.” Translation: US Law doesn’t apply at Gitmo, or, the reason the US isolates non-persons at an off-shore military penal colony in the first place is so we can ignore or violate “statutes” with impunity. And if we convince ourselves that “unprivileged enemy belligerents” are not people, we should be able to sleep even if we violate the US torture statute (18 USC, Sec. 1, Ch. 113C), the Convention Against Torture and the US War Crimes Act (18 USC, Sec. 2441) ¾ for years on end.

America’s indefinite imprisonment without charges, hunger strikers and force-feeding

My own jail and prison time, all for political protests, has always come with a clear sentence: six days, 90 days, 180 days; 54 months in all. Anybody who’s been on the inside knows that a release date gives you something fast to hold on to, even if you’re called by a number, fed through a slot, handcuffed for court. But imagine 156 months in a nihilistic “extraterritorial” military prison, with no charges, no trial, no sentence, no visits, phone calls or mail, and no hope.

This is what the USA imposes at Guantánamo, a torturous psychological vice of legal oblivion and manufactured futurelessness. Add to this appalling construction the fact that 72 of 149 remaining inmates were approved for release more than four years ago — but are chained up anyway. Scores of Gitmo’s inmates have looked into this man-made oblivion and decided to die. They are using the only power they have left, the dreadful hunger-strike, both as a protest against their endless detention without trial and their only means of eventually ending it.

The US military has chosen to force-feed hunger strikers, gruesomely plunging plastic tubes up the non-persons’ noses. This abuse violates laws against torture, and the force-feeding schedule is the original basis for the religious rights petition so vigorously opposed by Obama and Holder. The ghastly traumatic stress resulting from enduring force-feeding and the regime of its application make Ramadan’s prayerful group reflection impossible. US District Judge Gladys Kessler has, according to Charlie Savage in the New York Times, publicly condemned the abuse for causing “agony.” For PR purposes the Pentagon and Justice Department call the abuse “enteral feeding.”

Mr. Holder has called “not credible” the prisoners’ complaints about “alleged aspects of enteral feeding” and “allegations that detainees who were being enterally fed were not permitted to pray communally during Ramadan in 2013.” But after the number of hunger strikers reached 106 last year, the military halted its public reporting of the strike.

Significantly, a Navy medical officer at Guantánamo has become the first prison official known to refuse force-feeding duty. The unidentified nurse’s refusal was acknowledged by the Pentagon July 15.

If Holder wins his frightening argument denying the humanity of the men at Guantánamo, even the American Society for the Prevention of Cruelty to Animals could object. The ASPCA says its vision is that “the US is a humane community in which all animals are treated with respect and kindness.”

US Forced to Release Memo on Extrajudicial Drone Killing of US Citizen June 23, 2014

Posted by rogerhollander in Barack Obama, Constitution, Criminal Justice, Democracy, War on Terror.
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Roger’s note: As I have noted more than once on this Blog, the major crimes in history, including the death of Socrates, Jesus, and the Holocaust, were carried out and justified by the existing “legal’ system, that is under the color of law.   Again, history repeats itself, and David Barron of the OLC joins the disgraced criminal ranks of John Yoo, Bruce Bybee and the other torture memo conspirators.

What Excuse Remains for Obama’s Failure to Close GITMO? June 3, 2014

Posted by rogerhollander in Barack Obama, Constitution, War on Terror.
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Roger’s note: One is reminded of Richard Nixon’s famous “if the president does it, it’s not illegal.”

 

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Individuals and organizations like Witness Against Torture and the Center for Constitutional Rights have never wavered in their demand that Obama close the offshore prison in Guantanamo and put an end to the practice of indefinite detention. (Image: CCR)

The excuse-making on behalf of President Obama has always found its most extreme form when it came time to explain why he failed to fulfill his oft-stated 2008 election promise to close Guantanamo. As I’ve documented many times, even the promise itself was misleading, as it became quickly apparent that Obama — even in the absence of congressional obstruction — did not intend to “close GITMO” at all but rather to re-locate it, maintaining its defining injustice of indefinite detention.

But the events of the last three days have obliterated the last remaining excuse. In order to secure the release of American POW Sgt. Bowe Bergdahl, the Obama administration agreed to release from Guantanamo five detainees allegedly affiliated with the Taliban. But as even stalwart Obama defenders such as Jeffery Toobin admit, Obama “clearly broke the law” by releasing those detainees without providing Congress the 30-day notice required by the 2014 defense authorization statute (law professor Jonathan Turley similarly observed that Obama’s lawbreaking here was clear and virtually undebatable).

The only conceivable legal argument to justify this release is if the Obama White House argues that the law does not and cannot bind them. As documented by MSNBC’s Adam Serwer – who acknowledges that “when it comes to the legality of the decision [critics] have a point” – Obama has suggested in the past when issuing signing statements that he does not recognize the validity of congressional restrictions on his power to release Guantanamo detainees because these are decisions assigned by the Constitution solely to the commander-in-chief (sound familiar?). Obama’s last signing statement concluded with this cryptic vow: “In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.”

Obama defenders seem to have two choices here: either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?

Both Serwer and a new Washington Post article this morning note the gross and obvious hypocrisy of Obama and his Democratic loyalists now using Article-II-über-alles signing statements to ignore congressionally enacted laws relating to the War on Terror. Quoting an expert on signing statements, the Post – referencing Obama’s Bush-era condemnation of signing statements — sums up much of the last six years of political events in the US: “Senator Obama had a very different view than President Obama.”

But the eagerness of many Democrats to radically change everything they claimed to believe as of January 20, 2009 is far too familiar and well-documented at this point to be worth spending much time on. Far more significant are the implications for Obama’s infamously unfulfilled pledge to close Guantanamo.

The sole excuse now offered by Democratic loyalists for this failure has been that Congress prevented him from closing the camp. But here, the Obama White House appears to be arguing that Congress lacks the authority to constrain the President’s power to release detainees when he wants. What other excuse is there for his clear violation of a law that requires 30-day notice to Congress before any detainees are released?

But once you take the position that Obama can override — i.e., ignore — Congressional restrictions on his power to release Guantanamo detainees, then what possible excuse is left for his failure to close the camp? As Jason Leopold notes in an astute article at Al Jazeera, this week’s episode “has led one human rights organization to question why the Obama administration has not acted to transfer dozens of other detainees who have been cleared for release for many years.” He added:

Raha Wala, an attorney with Human Rights First, told Al Jazeera if the administration can make the argument that the five Taliban detainees are transferrable “without any significant problems under the congressionally imposed transfer restrictions” then certainly “the same argument can be made for the detainees who have already been cleared for release.”

Obama defenders seem to have two choices here: either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?

Revealed: Gov’t Used Fusion Centers to Spy on Occupy May 23, 2014

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Democracy, Occupy Wall Street Movement.
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Roger’s note: The Patriot Act and the establishment of the Orwellian named Homeland Security have taken the United States one giant step forward towards a police state.  Criminalizing dissent is nothing new, goes back to WWI and further; but the scope of it today is truly frightening.

New report exposes US government’s treatment of social movements as ‘criminal or terrorist enterprises’

- Sarah Lazare, staff writer

(Photo: David Shankbone / Wikimedia Creative Commons)

U.S. government Fusion Centers, which operate as ill-defined “counter-terrorism” intelligence gathering and sharing centers, conducted spy operations against Occupy protesters involving police, the Pentagon, the FBI, military employees, and business people.

So finds a report released Friday by the Partnership for Civil Justice Fund based on 4,000 public documents obtained through a Freedom of Information Act request. The release was accompanied by an in-depth article by the New York Times.

“The U.S. Fusion Centers are using their vast counter-terrorism resources to target the domestic social justice movement as a criminal or terrorist enterprise,” PCJF Executive Director Mara Verheyden-Hilliard stated. “This is an abuse of power and corruption of democracy.”

“Although the Fusion Centers’ existence is justified by the DHS as a necessary component in stopping terrorism and violent crime, the documents show that the Fusion Centers in the Fall of 2011 and Winter of 2012 were devoted to unconstrained targeting of a grassroots movement for social change that was acknowledged to be peaceful in character,” the report states.

Police chiefs of major metropolitan areas used the Southern Nevada Counter Terrorism Center to produce regular reports on the occupy movement.

Furthermore, “The Boston regional intelligence center monitored and cataloged Occupy-associated activities from student organizing to political lectures,” according to the report. That center also produced twice-daily updates on Occupy activities.

The New York Times notes:

The Boston Regional Intelligence Center, one of the most active centers, issued scores of bulletins listing hundreds of events including a protest of “irresponsible lending practices,” a food drive and multiple “yoga, faith & spirituality” classes.

Nationwide surveillance has included extensive monitoring of social media, in addition to a variety of spying methods used across Fusion Centers.

“[T]he Fusion Centers are a threat to civil liberties, democratic dissent and the social and political fabric of this country,” said Carl Messineo, PCJF Legal Director. “The time has long passed for the centers to be defunded.”

_____________________

Pete Seeger and the NSA February 4, 2014

Posted by rogerhollander in Art, Literature and Culture, Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy, History, Police.
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Roger’s note: Of course, the recent revelations about NSA outdoing George Orwell is no laughing matter.  But if you need a moment of lightness today, click in the first paragraph on Pete’s testimony before HUAC.  It reads like a Monty Python skit.  With the persecutions of Chelsea Manning, Julian Assange, Edward Snowden among others, and the hounding to death of Aaron Swartz, the U.S. government is just getting started in putting its mega data collection to use.  When the political protests heat up to the next level, I believe we are going to see the same kind of witch hunts that we saw under the era of Joseph McCarthy, only much worse.  Those who lived through that period of history can tell you what it is like to be persecuted by the government for your First Amendment protected beliefs.  Perhaps what is most frightening is the militarization of local police departments, and we saw what state violence against legitimate political protest will look like during the brutal repression of the Occupy Wall Street Movement.  Whether you are brought up before a Kafkaesque like official United States government kangaroo court or bashed over the head with police baton or run down by a Homeland Security issues armored vehicle, the chilling result is the same: fascism in our day.  
That it occurs under the auspices of the affable and articulate constitutional lawyer who is the first Black American president or the feisty and charming soon to be first woman American president, will not do much to soften the blow.

 

Published on Tuesday, February 4, 2014 by Deeplinks Blog/EFF

by Cindy Cohn

I am not going to answer any questions as to my association, my philosophical beliefs, or how I voted in any election, or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this.

Pete Seeger, 1955, testimony pursuant to subpoena before the House Un-American Activities Committee.

Pete Seeger (Image: EFF)

The world lost a clear, strong voice for peace, justice, and community with the death of singer and activist Pete Seegerlast week. While Seeger was known as an outspoken musician not shy about airing his political opinions, it’s also important to remember he was once persecuted for those opinions, despite breaking no law. And the telling of this story should give pause to those who claim to be unconcerned about the government’s metadata seizure and search programs that reveal our associations to the government today.

In 1955, Seeger was called before the House Un-American Activities Committee, where he defiantly refused to answer questions about others who he associated with and who shared his political beliefs and associations, believing Congress was violating his First Amendment rights. He was especially concerned about revealing his associations:

I will be glad to tell what songs I have ever sung, because singing is my business. . . .  But I decline to say who has ever listened to them, who has written them, or other people who have sung them.

But if the same thing were to happen today, a Congressional subpoena and a public hearing wouldn’t be necessary for the government to learn all of our associations and other “private affairs.” Since the NSA has been collecting and keeping them, they could just get that same information from their own storehouses of our records.

According to the Constitution, the government is supposed to meet a high standard before collecting this private information about our associations, especially the political ones that the Congressmen were demanding of Seeger. For instance, under the First Amendment, it must“serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”

It doesn’t matter whether the government wants associations to look for possibly “illegal” activities of civil rights activists, Communist sympathizers, anarchists, trade unionists, war resisters, gun rights activists, environmental activists, drug legalization advocates, or wants to go after legitimate criminals and potential terrorists, if the government can’t justify the collection of this “metadata” on this “strict scrutiny” standard, they’re not allowed to collect any of it. Yet right now, they collect all of it.

We’re still learning of all the ways the government is able to track our associations without anything like the due process and standards required by the First and Fourth Amendments, but it is the centerpiece of the NSA’s mass telephone records collection program under Patriot Act section 215, which EFF is fighting with our First Unitarian Church v. NSA case that focuses on the right of association.  Our lead client, the First Unitarian Church of Los Angeles, had its own role in resisting the House Un-American Activities Committee. It’s also part and parcel of the mass collection of content and metadata of people all around the world under section 702 of the FISA Amendments Act. And it’s a real concern even if the companies hold the data, as we’ve seen with the FBI’s self-certified National Security Lettersand the Hemisphere program, where AT&T employees are embedded in government investigations so that they can more readily search through our phone records for the FBI, the DEA and others.

Each of these programs effectively allows the government to do to you what Pete Seeger refused to let them do to him—track your associations, beliefs and other private affairs without proper legal protections.  And they can do this at scale that was unimaginable in 1955, thanks to the digital nature of our communications, the digital tools that allow them to search automatically rather than by hand and the fact that so much more about these private affairs is in the hands of third parties like our phone and internet companies.

While Seeger escaped jail, he was convicted of contempt for his failure to answer these questions. Thankfully Joseph McCarthy and the Un-American Activities Committees were later widely condemned, and Americans understandably look back sadly and with embarrassment on time when the Committee forced Americans to reveal their own associations, along with the associations and beliefs of others.  With the passing of moral and artistic heroes like Seeger, we should redouble our efforts to make sure that our “private affairs” remain safe and the government’s ability to access them remains subject to careful controls.

Join us on February 11 for the day we fight back against mass surveillance.

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License.
Cindy Cohn

Cindy Cohn is legal director for the Electronic Frontier Foundation (EFF), as well as its general counsel, coordinating over 40 national class action lawsuits against the telecommunications carriers and the government seeking to stop warrantless NSA surveillance

Federal Judge Orders ‘Compassionate Release’ of Attorney Lynne Stewart January 1, 2014

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Media.
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Roger’s note: amidst all the crap, some good news from a judge for a change.

 

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‘Today’s small measure of justice does little to repair the damage wrought by the government’s unjust prosecution of an advocate whose service to society has been widely documented.’

- Jacob Chamberlain, staff writer

A federal judge ordered the “compassionate release” of former defense lawyer Lynne Stewart on Tuesday on the grounds that she has been diagnosed with terminal cancer with a life expectancy of less than 18 months.Lynn Stewart’s husband, Ralph Poynter, right, protests with others outside a Manhattan court in August (Reuters)

Stewart, 74, who is known for representing underserved and unpopular defendants, has served four years out of a ten-year sentence at the Federal Medical Center Carswell (FMC Carswell) in Fort Worth, Texas, in connection with her defense of Sheikh Omar Abdel Rahman. Stewart allegedly helped pass messages between Abdel-Rahman, an Egyptian cleric convicted of planning terror attacks, and an organization designated as a Foreign Terrorist Organization by the United States Secretary of State.

Presiding Judge John Koeltl wrote that Stewart’s “terminal medical condition and very limited life expectancy constitute extraordinary and compelling reasons that warrant the requested reduction [of her sentence.]… It is further ordered that the defendant shall be released from the custody of the Federal Bureau of Prisons as soon as her medical condition permits, the release plan is implemented and travel arrangements can be made.”

Stewart left prison on Tuesday and headed for New York City to live with her family.

Jill Shellow, Stewart’s attorney, told CNN her client’s supporters were “overjoyed that she will spend her remaining days with her family.”

“From arrest to sentencing, Lynne Stewart’s case was used by the Department of Justice to send a chilling message to attorneys: think twice about who you represent!” said Heidi Boghosian, Executive Director of the National Lawyers Guild, of which Stewart was a member. “Today’s small measure of justice does little to repair the damage wrought by the government’s unjust prosecution of an advocate whose service to society has been widely documented.”

Robert J. Boyle, one of Lynne Stewart’s attorneys added, “We are gratified and thankful that the government has agreed to Lynne’s compassionate release request. She has dedicated her life to fighting for justice for the underserved and unpopular. Lynne can now return home to her family and to the community that loves her.”

NSA Intercepting Laptops Bought Online to Install Spy Malware December 30, 2013

Posted by rogerhollander in Civil Liberties, Constitution, Surveillance, Surveillance State.
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Roger’s note: I think George Orwell underestimated the problem.  According to Glenn Greenwald, “The NSA can literally watch every keystroke you make.”

 

 

The NSA’s TAO hacking unit is considered to be the intelligence agency’s top secret weapon

- Common Dreams staff

This National Security Agency complex in San Antonio, Texas, located in a former Sony chip factory, is one of the central offices of the intelligence agency’s Tailored Access Operations, the NSA’s top operative unit. It’s something like a squad of plumbers that can be called in when normal access to a target is blocked.

Germany’s Der Spiegel is reporting Sunday that the US National Security Agency (NSA), working with the CIA and FBI, has been intercepting laptops and other electronics bought online before delivery to install malware and other spying tools.

According to Der Spiegel, the NSA diverts shipping deliveries to its own “secret workshops” to install the software before resending the deliveries to their purchasers.

Elite hackers working for the NSA’s Tailored Access Operations (TAO) division are considered to be the intelligence agency’s top secret weapon.

The NSA’s TAO reportedly has backdoor access to many hardware and software systems from major tech companies such as Cisco, Dell, and Western Digital and others. The NSA exploits Microsoft Windows error reports to find weak spots in compromised machines in order to install Trojans and other viruses.

The Der Spiegel report also notes that the NSA has successfully tapped into some of the massive, under-sea fiber-optic cables that connect the global data infrastructure, in particular the “SEA-ME-WE-4″ cable system.

“This massive underwater cable bundle connects Europe with North Africa and the Gulf states and then continues on through Pakistan and India,” Der Spiegel reports, ”all the way to Malaysia and Thailand. The cable system originates in southern France, near Marseille. Among the companies that hold ownership stakes in it are France Telecom, now known as Orange and still partly government-owned, and Telecom Italia Sparkle.”

From Der Spiegel:

To conduct those types of operations, the NSA works together with other intelligence agencies such as the CIA and FBI, which in turn maintain informants on location who are available to help with sensitive missions. This enables TAO to attack even isolated networks that aren’t connected to the Internet. If necessary, the FBI can even make an agency-owned jet available to ferry the high-tech plumbers to their target. This gets them to their destination at the right time and can help them to disappear again undetected after even as little as a half hour’s work.

Responding to a query from SPIEGEL, NSA officials issued a statement saying, “Tailored Access Operations is a unique national asset that is on the front lines of enabling NSA to defend the nation and its allies.” The statement added that TAO’s “work is centered on computer network exploitation in support of foreign intelligence collection.” The officials said they would not discuss specific allegations regarding TAO’s mission.

Sometimes it appears that the world’s most modern spies are just as reliant on conventional methods of reconnaissance as their predecessors.

Take, for example, when they intercept shipping deliveries. If a target person, agency or company orders a new computer or related accessories, for example, TAO can divert the shipping delivery to its own secret workshops. The NSA calls this method interdiction. At these so-called “load stations,” agents carefully open the package in order to load malware onto the electronics, or even install hardware components that can provide backdoor access for the intelligence agencies. All subsequent steps can then be conducted from the comfort of a remote computer.

These minor disruptions in the parcel shipping business rank among the “most productive operations” conducted by the NSA hackers, one top secret document relates in enthusiastic terms. This method, the presentation continues, allows TAO to obtain access to networks “around the world.”

Even in the Internet Age, some traditional spying methods continue to live on.

* * *

An aerial view of National Security Administration (NSA) headquarters in Fort Meade, MD

As Europe erupts over US spying, NSA chief says government must stop media October 28, 2013

Posted by rogerhollander in Civil Liberties, Constitution, Democracy, Media, Surveillance State, Whistle-blowing.
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With General Alexander calling for NSA reporting to be halted, US and UK credibility as guardians of press freedom is crushed

 

NSA director Gen Keith Alexander.

NSA Director General Keith Alexander, earlier this month. Photograph: Evan Vucci/AP

 

The most under-discussed aspect of the NSA story has long been its international scope. That all changed this week as both Germany and France exploded with anger over new revelations about pervasive NSA surveillance on their population and democratically elected leaders.

As was true for Brazil previously, reports about surveillance aimed at leaders are receiving most of the media attention, but what really originally drove the story there were revelations that the NSA is bulk-spying on millions and millions of innocent citizens in all of those nations. The favorite cry of US government apologists -–everyone spies! – falls impotent in the face of this sort of ubiquitous, suspicionless spying that is the sole province of the US and its four English-speaking surveillance allies (the UK, Canada, Australia and New Zealand).

There are three points worth making about these latest developments.

First, note how leaders such as Chancellor Angela Merkel reacted with basic indifference when it was revealed months ago that the NSA was bulk-spying on all German citizens, but suddenly found her indignation only when it turned out that she personally was also targeted. That reaction gives potent insight into the true mindset of many western leaders.

Second, all of these governments keep saying how newsworthy these revelations are, how profound are the violations they expose, how happy they are to learn of all this, how devoted they are to reform. If that’s true, why are they allowing the person who enabled all these disclosures – Edward Snowden – to be targeted for persecution by the US government for the “crime” of blowing the whistle on all of this?

If the German and French governments – and the German and French people – are so pleased to learn of how their privacy is being systematically assaulted by a foreign power over which they exert no influence, shouldn’t they be offering asylum to the person who exposed it all, rather than ignoring or rejecting his pleas to have his basic political rights protected, and thus leaving him vulnerable to being imprisoned for decades by the US government?

Aside from the treaty obligations these nations have to protect the basic political rights of human beings from persecution, how can they simultaneously express outrage over these exposed invasions while turning their back on the person who risked his liberty and even life to bring them to light?

Third, is there any doubt at all that the US government repeatedly tried to mislead the world when insisting that this system of suspicionless surveillance was motivated by an attempt to protect Americans from The Terrorists™? Our reporting has revealed spying on conferences designed to negotiate economic agreements, the Organization of American States, oil companies, ministries that oversee mines and energy resources, the democratically elected leaders of allied states, and entire populations in those states.

Can even President Obama and his most devoted loyalists continue to maintain, with a straight face, that this is all about Terrorism? That is what this superb new Foreign Affairs essay by Henry Farrell and Martha Finnemore means when it argues that the Manning and Snowden leaks are putting an end to the ability of the US to use hypocrisy as a key weapon in its soft power.

Speaking of an inability to maintain claims with a straight face, how are American and British officials, in light of their conduct in all of this, going to maintain the pretense that they are defenders of press freedoms and are in a position to lecture and condemn others for violations? In what might be the most explicit hostility to such freedoms yet – as well as the most unmistakable evidence of rampant panic – the NSA’s director, General Keith Alexander, actually demanded Thursday that the reporting being done by newspapers around the world on this secret surveillance system be halted (Techdirt has the full video here):

The head of the embattled National Security Agency, Gen Keith Alexander, is accusing journalists of “selling” his agency’s documents and is calling for an end to the steady stream of public disclosures of secrets snatched by former contractor Edward Snowden.

“I think it’s wrong that that newspaper reporters have all these documents, the 50,000 – whatever they have and are selling them and giving them out as if these – you know it just doesn’t make sense,” Alexander said in an interview with the Defense Department’s “Armed With Science” blog.

“We ought to come up with a way of stopping it. I don’t know how to do that. That’s more of the courts and the policy-makers but, from my perspective, it’s wrong to allow this to go on,” the NSA director declared. [My italics]

There are 25,000 employees of the NSA (and many tens of thousands more who work for private contracts assigned to the agency). Maybe one of them can tell The General about this thing called “the first amendment”.

I’d love to know what ways, specifically, General Alexander has in mind for empowering the US government to “come up with a way of stopping” the journalism on this story. Whatever ways those might be, they are deeply hostile to the US constitution – obviously. What kind of person wants the government to forcibly shut down reporting by the press?

Whatever kind of person that is, he is not someone to be trusted in instituting and developing a massive bulk-spying system that operates in the dark. For that matter, nobody is.

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