Published: November 6, 2013
November 25, 2013, 1:44 p.m.
A prominent African American judge has filed a complaint against two UCLA police officers, accusing them of using excessive force when they pulled him over for not wearing a seat belt.
Los Angeles Superior Court Judge David S. Cunningham III, a former Los Angeles Police Commission president, said the officers shoved him against his car, handcuffed him, locked him in the back of their police cruiser and told him he was being detained for resisting arrest.
Cunningham's complaint does not attribute the incident to his race, but his attorney said race was clearly a factor in the officers' behavior.
"Do you think this would have happened if he was a white judge?" the attorney, Carl Douglas, said Monday, calling for both officers to be removed from the field immediately.
UCLA said it is investigating the incident.
The 60-year-old judge, dressed in a black gym shirt and shorts, was pulled over as he was leaving L.A. Fitness in Westwood about 10 a.m. Saturday.
A state trooper accused of triggering a three-car crash on Route 1 in Revere that smashed up a cruiser and put an on-duty trooper in the hospital has been suspended indefinitely without pay today, state police announced.
Trooper Shawn D’Amato, 43, who authorities said told EMTs he had smoked crack within an hour of yesterday's crash, was arraigned in his Massachusetts General Hospital bed yesterday on charges of drunken and drugged driving, negligent operation; and failure to change lanes for an emergency vehicle.
At the heart of Reynaldo Vargas' argument is a Police Department audit that found that many officers did exactly what he was accused of doing: testify during trials on regular time but put in for overtime. Yet he was the only one fired, Vargas' appeal attorney says, calling his punishment "unduly severe."
Vargas, now 44, was already in trouble before the Police Department fired him last year. He was among a team of officers based at the Mission District station whose conduct in a February 2011 drug-related search of a residential hotel on Julian Street has come under FBI scrutiny.
Surveillance video of the officers taken inside the Julian House Hotel appears to show Vargas walking out of the search target's room with a bag of the person's possessions, which Vargas never checked into evidence. Another officer was filmed walking out with a bag that authorities believe contained the person's laptop computer, which police also never submitted as evidence.
Vargas was also among several officers involved at a drug-related search in December 2010 at another residential hotel, the Jefferson on Eddy Street in the Tenderloin. One of Vargas' colleagues was filmed by a surveillance camera there taking away a bag of undisclosed possessions, which the officers never accounted for.
District Attorney George Gascón, who was police chief when the raids happened, turned over the investigation to the U.S. attorney's office to avoid the appearance of a conflict of interest.
No criminal charges have been filed, and none of the officers in any of the raids has been brought up on disciplinary charges. About a dozen officers remain under investigation, sources say.
It’s been more than two years since Jesse Benavides was gunned down at a family birthday party in Dallas by a man who never should have been on U.S. streets.
Santana Gaona had been in jail less than two months earlier for allegedly raping and beating his estranged wife. He was flagged as an illegal immigrant and scheduled for deportation. Despite a U.S. Immigration and Customs Enforcement “detainer” that had been placed on Gaona, requiring him to face a deportation hearing, ICE officials canceled the order and he was released from jail.
At the time, ICE officials told the Dallas Morning News and this reporter that “another law enforcement agency” asked them to remove the detainer.
In 2011, a federal law enforcement officer confirmed to this reporter that Gaona had been an informant for multiple federal agencies, including the FBI, which was responsible for his release. The official said Gaona showed no signs of being a violent criminal and there was no reason to believe he would have committed murder.
Benavides, 33, was trying to stop a fight between Gaona and Gaona’s estranged wife when he was shot in front of his 8-year-old son.
Date: December 5, 2013 at 11:02:03 AM ESTSubject: Tune in to The Free Speech Zone on Sunday night December 8th at 7 pm
BOSTON — The Boston FBI office would neither confirm nor deny whether a man murdered in Methuen in October was an informant. A spokesman, however, categorically denied paying anyone for testimony.
Due to FBI policy, Special Agent Greg Comcowich could not answer questions about David Rivera, 28, of Lawrence, who was killed outside a club in Methuen on Oct. 23.
The bureau’s policy is to neither confirm nor deny whether an individual was an informant or whether an individual has received a payment, he said.
“The FBI does not pay anyone in return for testimony,” said Comcowich, the media coordinator at the FBI’s Boston field office.
He did confirm that Lawrence police patrolman Richard Brooks previously worked with an FBI gang task force, and that Brooks is no longer with that task force.
December 7, 201
A Duquesne man acquitted in December 2011 on drug charges claims that an FBI agent had him arrested and prosecuted for no other reason than he was friends with and related to convicted drug dealers.
Frank M. Cobb, 32, says in the civil rights lawsuit that Special Agent Minh-Tri V. Truong had no evidence linking him to drug trafficking and that he or someone else on the task force destroyed evidence that would have helped prove his innocence.
One of Cobb's childhood friends and two cousins were arrested in the same drug sweep and pleaded guilty to drug charges.
A federal jury on Dec. 9, 2011, acquitted Cobb on charges of drug conspiracy, operating a drug house and possessing a firearm in connection with drug trafficking. He spent a year in jail awaiting trial.
Cobb had security cameras on his home and tried to get Truong and other members of the task force to review the footage to see that no drug trafficking was taking place, the lawsuit says.
“At some point, after the illegal search and seizure of the plaintiff's home, after the plaintiff insisted defendants review the security footage and after the defendants, without good cause or excuse, refused to review that footage, the memory on plaintiff's security system was mysteriously wiped clean,” the lawsuit says.
[CP readers should read, in the Dec. 18 issue, two fine articles on topic: Rob Hager, “A Victory for the Constitution,” and Binoy Kampmark, “Outlawing the Metadata Program.” Undoubtedly there will be more. My analysis is slightly different from both, not the decision itself, which they address, and which has received widespread attention in the press, but rather the preliminaries, obstructions thrown up to the adjudication of USG surveillance that Judge Leon in roughly the first-half of his 68 page opinion had to take into account, essentially a clearing-away process, before establishing clear ground for rendering his decision. Why is this important? First, for showing the institutional and governmental structure of repression, semi-hiding under the mantle of the law, to protect illegal and unconstitutional practices when these come forward in defense of militarism, intervention, and the social control of the populace—here specifically the last-named. Second, demonstrating these obstructions, as he does, shows what Judge Leon was up against (his point for doing so), which accounts for the narrow scope and limited application of his decision—a sweeping pronouncement, yet having, leaving aside questions of reversal by a higher court, pertinence only to the plaintiffs, the violation of their Fourth Amendment rights, and not extended to the nation as a whole. Thus, on to dissecting the wording of the opinion.]
I Eviscerating the Privacy Right
By way of introduction, Adam Liptack in the New York Times, Dec. 18, the article entitled, “After Ruling Critical of N.S.A., Uncertain Terrain for Appeal,” quotes Judge Leon, himself troubled by the prior boxing-in of a clear channel for rendering his opinion: “I’m not sure how I’m going to come out, but I know it’s going upstairs.” That he stayed his order to allow for the appeal process, itself, I believe, an unnecessary compromise, one of several, psychologically inviting reversal, indicates that, although one should honor the man and credit the significance of his determining that the massive surveillance of Americans’ phone calls is probably unconstitutional, he in fact did not lay down the gauntlet, did not, therefore, expose the political-legal gangsterism currently in vogue at the highest levels—POTUS, DOJ, Congress, the Supremes down to the District Courts and, of course, FISC. Judge Leon did not blink from ridiculing the defense of the government, that the plaintiffs had no standing (this “defies common sense,” given the widespread public knowledge, and USG’s admission, of massive surveillance) and that surveillance had in fact foiled terrorist plots (How? When? Where?, no evidence forthcoming), yet that criticism did not—and because of prior obstacles put in place, e.g., provisions of the Patriot Act, and much more, Congress itself always a step ahead in fostering repression, taking no chances, perhaps could not–catapult him to the higher ground of a definitive rendering, spread broadcast, decisively constitutionally-rooted, and having effect without delay.
The initial stumbling block, the heart of Liptack’s analysis, is the difference between concurring and controlling opinions, here a 2012 opinion by the Supreme Court, in which the latter represents the precedent Judge Leon’s decision “blew past,” and the former, no more than an anticipation of where, in support, “the justices might be heading.” Not a happy prospect, because, going back to Smith v. Maryland, in 1979, the Court held—Liptack writes—that “a robbery suspect could not expect that his right of privacy extended to the numbers dialed from his phone. The government says the Fourth Amendment analysis in the new cases should begin and end with that decision.” Cut-and-dried, no Fourth Amendment defense on the right of privacy—thank you, POTUS and AG Holder—when you voluntarily (by dialing!) give information to a third party, the telephone company. Ah, then in the 2012 decision, United States v. Jones, which “unanimously rejected the use of a GPS device to track the movements of a drug suspect over a month, we see what looks like support for the Leon decision, except that the majority held that “attaching the device violated the defendant’s property rights”—but no mention was made of his privacy rights.
Here we see a pair of concurrences, in which “five justices said the tracking raised concerns about the defendant’s expectation of privacy.” (Italics, mine—because it appears that in legal and constitutional interpretation, expectation plays an important role.) Bless her, Justice Sotomayor wrote, citing the Smith case: “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Justice Kennedy, who announced for the Court in 1989 a principle affecting the concurring-controlling distinction, and hence, the order of priorities, now is invoked as though the Court metaphorically mounting its judicial horse to slay the privacy dragon, proclaims, in his words: “If a precedent of this court has direct application in a case, yet appears to rest on reasons rejected in some other lines of decisions, [lower court judges] should follow the case which directly controls, leaving to this court the prerogative of overruling its own decisions.” (Italics, mine) Does it work? Liptack cites a case last month in California, in which a federal judge, Jeffrey T. Miller, would not “grant a new trial to a defendant convicted of terrorism charges based on asserted Fourth Amendment violations arising from the N.S.A. program.” Exactly what is at issue. Judge Miller stated that he would not “blaze a new path and adopt the approach to the concept of privacy set forth by Justice Sotomayer in her concurrence in United States v. Jones.” (Italics, mine) No wonder Judge Leon, clearly aware of the California case, could say, “I’m not sure how I’m going to come out, but I know it’s going upstairs.”
Perhaps I’ve been too hard on him. As Liptack points out, Judge Leon strongly criticized the Foreign Intelligence Surveillance Court (FISC), a secret court, in which the 15 judges who supervise the program of surveillance “have issued 35 orders authorizing it,” despite the fact that that the government “repeatedly made misrepresentations and inaccurate statements about the program,” deeply angering the judge. Liptack, in conclusion, quotes NYU law professor Barry Friedman, a specialist on the Fourth Amendment, to the effect that “only Judge Leon’s work was worthy of a federal judge.” In Friedman’s words, “Judge Leon’s reads as though there is a living, breathing, thinking person behind it. Right or wrong ultimately, it is full of detail, real-world fact and serious consideration. The FISA court opinions are lifeless. They read like a machine wrote them.” Lifeless? That’s too kind; politicized, kept jurists, the fact of deliberating in secret and, as we shall see, legitimating ex parte proceedings in which there is no party challenging the government, as well as keeping their decisions secret, should merit for them only scorn, ridicule, contempt, and the same for those who have empowered them under such conditions, the Chief Justice who makes the appointments, and the usual characters (suspects?), POTUS on down, who, burnishing the credentials of the Inquisition, add Joseph R. McCarthy for father-confessor and inspiring spirit, have reduced civil liberties in America to a sick joke.
II Klayman et al, v. Obama, et al., United States District Court For The District of Columbia, Dec. 16, 2013 [Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881)]
This Memorandum Opinion, befitting its importance, is heavily annotated, footnoted, a citational cornucopia which raises the danger of losing sight of the argument (my apologies, in advance, to CP readers and contributors who may possess legal training, were I not to put a fine point on procedural matters), my emphasis now, shared, I believe, by Judge Leon, being the impedimenta preventing clear-sighted logical and constitutional reasoning. To begin: “On June 6 [i.e., six months ago, which speaks to the carefulness in Judge Leon’s bringing forward the proceedings], 2013, plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence-gathering practices by the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens.” I like the formulation: acknowledgment of the program and its dimensions, and challenges both on constitutional and statutory grounds.
It continues: “These related cases are two of several lawsuits [e.g., the ACLU v. Clapper, filed five days later, Southern District of New York, which, of course, also bears watching] arising from public revelations over the past six months [public revelations therefore giving the plaintiffs standing; also, recognition of Snowdon’s revelations, six months before] that the federal government through the National Security Agency (‘NSA’), and with the participation of certain telecommunications and internet companies, has conducted surveillance and intelligence-gathering programs that collect certain data about the telephone and internet activity of American citizens within the United States.” (Italics, mine) Already, we see Judge Leon imposing restrictions, for momentarily he will rule out internet companies and internet activity, reduce the number of plaintiffs to two, confine the suits to the government (and draw distinctions here), ruling out that affecting private defendants (telecommunication and internet firms and their executives), and while giving the plaintiffs standing to bring suit, denying their attempt to bring the suits “as class actions on behalf of themselves and ‘all other similarly situated consumers, users, and U.S. consumers and users of,’”—in addition to ignoring (perhaps correctly given the terms of the suits) foreign eavesdropping.
Still, much to work with, if the manner and mode of surveillance can be ruled in violation of the Fourth Amendment. Yet, plaintiffs seem overly restrictive, calling only for preliminary injunctions seeking relief for themselves, which permits Judge Leon to confine this relief to the federal government alone, and only with regard to its “bulk collection and querying of phone record metadata—the latter again, presumably, applying to themselves. Long explanations for the resulting narrowing, as in why “the Court need not address” internet data surveillance activity (“plaintiffs intermingle claims regarding the surveillance of phone and internet data,” and then ask relief only concerning the latter), seem unworthy of the occasion. Again, too harsh? For Judge Leon appears willing and able to differentiate between the statutory and constitutional dimensions of the plaintiffs’ suit, opting to bear down on the latter and more consequential of the two, finding himself hamstrung, however, on the former (“the Court finds that it lacks jurisdiction to hear plaintiffs’ Administrative Procedure Act (‘APA’) claim that the Government has exceeded its statutory authority” under FISA, the Foreign Intelligence Surveillance Act. This is our first notice, with APA, of the judicial-governmental process operating in, and behaving like, a closed system.
He then explicitly confines his preliminary injunction to the two plaintiffs “only,” and states that “in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will STAY [in the original] my order pending appeal.” Rather than seek cover, Judge Leon gives us an instructive historical lesson, under “Background,” detailing the initial Snowden revelations drawn from the articles of Glenn Greenwald in The Guardian—a courageous act in the current judicial climate, and made relevant to the opinion (as though perhaps chafing at the bit). The very firms omitted from the scope of the decision are, along with their ready cooperation with the government, blazoned across the page. The phrase which seems to stick in his mind and recur often is, “telephony metadata,” and he turns from there to the government’s admission, because of the disclosures, of the program’s existence, including that (quoting from the Office of the Dir. Of Nat’l Intelligence) “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA Patriot Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’” By rights, that should be the ballgame, even an obtuse and protective Supreme Court coming on board.
But the more admissions, the more legislative and judicial legerdemain. Section 215 of the Patriot Act is a story in itself, to which Judge Leon subsequently devotes attention, and he shows interest as well in the bearing that the APA and FISA have fending off critical scrutiny of surveillance, and by implication, the whole counterterrorism shtick (I make fun of what is really a serious business, counterrevolution, from paramilitary operations and regime change to drone assassinations—regrettably miles apart from the judicial focus on the constitutional determination of massive surveillance, and the health of the Fouth Amendment). Plaintiffs filed the day after the first public revelations of massive surveillance, and, as part of the record, Judge Leon identifies Larry Klayman and Charles Strange, irrelevant for present, one a maverick conservative, the other, father of “a cryptologist technician for the NSA and support personnel for Navy SEAL Team VI who was killed in Afghanistan”—rather difficult to dismiss as pinko-terrorists. This is followed by the analytical crunching down, “Statutory Background, FISA and Section 215 of the USA Patriot Act, the former, ironically, passed in 1978, in response to abuses of “warrantless domestic intelligence-gathering that infringed the Fourth Amendment rights of American citizens,” as brought out by the Church Committee. Fortunately, Frank Church is not alive to see the results of his handiwork.
Yet even the best laid plans of mice and men…. For FISA did the unpardonable at and from the outset, which Judge Leon, by bringing out, obviously recognizes: It “created a procedure for the Government to obtain ex parte judicial orders authorizing domestic electronic surveillance upon a showing that, inter alia, the target of the surveillance was a foreign power or an agent of a foreign power.” Whether the more menacing phrase is ex parte or inter alia is open to debate, the first denying the adversarial process in which only one side appears before the court, government, already addressing hand-picked suppliants at the heavenly gates of patriotism, or the second, the among other things ballooning into secret courts, secret decisions, secret spying on all and sundry. Both become fully operable, especially after 2000, with Bush, and, if possible, intensified by Obama. And with the creation of FISA came FISC, the Foreign Intelligence Surveillance Court, eleven district judges having “jurisdiction to hear applications for and grant orders approving” surveillance, and FISC Court of Review, with three district or court of appeals judges, having “jurisdiction to review the denial of any application made under [FISA].” And with that, USG can’t miss—and hasn’t.
The screws only tighten further. Still with FISA: “In addition to authorizing wiretaps [keep in mind, this is part of Judge Leon’s Memorandum Opinion], FISA was subsequently amended to add provisions enabling the Government to obtain ex parte orders authorizing physical searches, as well as pen registers and trap-and-trace devices.” And why stop there? “In 1998, Congress added a ‘business records’ provision to FISA.” (Already, counterterrorism precedes terrorism.) The Judge continues: “Under the provision, the FBI was permitted to apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of business records upon a showing in the FBI’s application that ‘there are specific articulable [a word appearing frequently in these ex parte requests and proceedings] facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” When “foreign” gives way, in application and/or insinuation, to “domestic,” then we are hitting our stride. Parenthetically, the phrase “business records” becomes the entering wedge for widening the mechanics and scope of surveillance, by bringing telecommunication and internet firms on their knees to the government in obedience to orders for disclosure, cooperation, and most intriguing, silence.
We come then to the Patriot Act, which Congress passed after 9/11, and “which made changes to FISA and several other laws.” Specifically, “Section 215 of the PATRIOT ACT replaced FISA’s business-records provision with a more expansive ‘tangible things’ provision.” For, Judge Leon goes on, “it authorizes the FBI to apply ‘for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Even the FBI’s application was made easier, from showing that the records were sought for an investigation, to, instead, the tangible things being merely relevant to such an investigation. We next enter the murky ways of the procedural jungle with Section 1861 [almost as famous as Sect. 215] “impos[ing] other requirements on the FBI when seeking to use this authority,” to wit, following the Attorney General’s guidelines applying to, quaintly termed, “minimization procedures” pertinent to “an order for the production of tangible things, most of all, the prohibition against dissemination and a correlative silence. If the FBI’s application satisfies meets the FISC judge in meeting the requirements, he “shall enter an ex parte order as requested,” called (savor the term) a “production order,” which means approval for “the release of tangible things.” The clincher: “Meanwhile, recipients of Section 1861 production orders are obligated not to disclose the existence of the orders, with limited exceptions.”
Anyone for tennis? No, this is a serious business. Hence, “Consistent with other confidentiality provisions of FISA, Section 1861 provides that ‘[all] petitions under this subsection shall be filed under seal,’ and the ‘record of proceedings…shall be maintained under security measures established by the Chief Justice of the united States, in consultation with the Attorney General and the Director of National Intelligence.” All three, estimable gentlemen, whose collective motto might as well be, “loose lips sink ships” of World War II vintage—a refrain unfamiliar to Edward Snowden, who has blown the lid on production orders and related practices. The practices, which Judge Leon in a separate heading puts in boldface, include “Collection of Bulk Telephony Metadata Pursuant to Section 1861,” his particular bête noir. When he states, “To say the least, plaintiffs and the Government have portrayed the scope of the Government’s surveillance activities very differently,” this poses no problem “for purposes of resolving these preliminary injunctions,” because the government has already conceded “the phone metadata collection and querying program.”
Here we see important connections being made between the program, its rationale, and the production orders: “In broad overview, the Government has developed a ‘counterterrorism’ program under Section 1861 in which it collect[s], compiles, retains, and analyzes certain telephone records, which it characterizes as ‘business records’ created by certain telecommunications companies”—the metadata. (Judge Leon seems to accept—despite his use of the word “analyzes”—the government’s word that its collection does “not include any information about the content” of the calls. A dangerous assumption because reducing surveillance to mere formalities—bad as that is.) This “Bulk Telephony Metadata Program” has gone on for over seven years, the FBI having, since May 2006,“obtained production orders from the FISC under Section 1861 directing certain telecommunications companies to produce, on an ongoing daily basis, these telephony metadata records, which the companies create and maintain as part of their business of providing telecommunications services to customers.” From there, NSA “consolidates the metadata records” provided by the companies “into one database,” and its “intelligence analysts, without seeking the approval of a judicial officer [italics in original, which, unless my own, I do not point out, but here, for Judge Leon, the importance of the words is manifest], may access the records,” using “identifiers”—called “seeds”–to query the data base, the seeds being approved by NSA’s Homeland Security Analysis Center, a, to me, thoroughly sweetheart arrangement.
To keep matters kosher, the identifiers must meet the RAS standard (“reasonable, articulable suspicion”), which introduces “minimization procedures” stipulating “that query results are limited to records of communications within three ‘hops’ from the seed.” Even the Judge loses his cool, the “hops,” as he illustrates, potentially embracing thousands of parties: first hop, identifiers and their associated metadata over a five-year period, say 100; the second hop, the identifiers and associated metadata now having direct contact with the first set (100 times 100); the third, same circumstances, now having direct contact with the second, therefore “includ[ing] all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 ‘second hop’ numbers, or 1,000,000 total).” RAS appears to be stretched to the limits of belief. In a footnote, he plaintively adds: “But it’s also easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers”—this said in response to the government’s constant minimizing of the identifiers and resulting spread. And he brings the extended footnote to a close (revealing that even RAS is thrown out the window): “But, of course, that [efforts to “defeat high volume and other unwanted metadata”] does not change the baseline fact that, by the terms of the FISC’s orders, the NSA is permitted to run queries capturing up to three hops that can conceivably capture millions of Americans’ phone records. Further, these queries using non-RAS-approved selection terms, which are permitted to make the database ‘usable for intelligence analysis,’ may very well themselves involve searching across millions of records.”
One would think that USG would be satisfied, to all intents a dummy FISA Court, an open sesame to indulge in surveillance, legislation designed as enablers to that unfortunate enterprise, and yet, there is a clear trail of noncompliance and outright lying, even to the Court that trusts it, comforts it, pats it on the head. Judge Leon: “Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed [to go beyond three would probably involve monitoring the communications of Martians, so generous is this mandate]), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms.” I am tempted to say that only the blind could fail to find content, pace USG, in these searches, searches which employ not only analysis but also following the “chains of communication,” which themselves “cross different communications networks” because the metadata is aggregated. Since May 2006, “the FISC has repeatedly approved applications under Section 1861,” in which, as part of “the program,” orders are issued “directing telecommunications service providers to produce records in connection with the Bulk Telephony Metadata Program.” Under these orders, in addition to seeking periodical renewal (the record shows this to be a mere formality), government also “acknowledged, as it must, that failures to comply with the minimization procedures set forth in the order have occurred.” Which they most certainly have; example: “in January 2009, the Government reported to the FISC that the NSA had improperly used an ‘alert list’ of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved under the RAS standard.”
As far as one can tell, the usual slap on the wrist, if that at all. Only one member of the FISC, Judge Reggie Wilson, stepped forward on such matters, stating that “the NSA had engaged in ‘systematic noncompliance’” with procedures since the inception of the program, “and had also repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. Concluding that “he had no confidence [Judge Leon continues] that the Government was doing its utmost to comply with the court’s orders,” Judge Wilson “ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries of the bulk telephony metadata collected pursuant to Section 1861 orders.” The approval procedure lasted all of only six months. Afterwards, “the Government apparently has had further compliance problems relating to its collection programs in subsequent years.” He quotes the complaint of Judge John Bates, in October 2011, here government misrepresentation of “the scope of its targeting of certain internet communications” under a different collection program, and thereby references the Wilson complaint about “the NSA’s use of unauthorized identifiers” in the Bulk Program. Judge Bates: “[T]he Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” As Judge Leon notes, Judges Walton and Bates’s “opinions were only recently declassified by the Government in response to the Congressional and public reactions to the Snowden leaks.” (Reactions, I might add, as in Congressional concerns voiced about massive data collection over the last several days, Dec. 16-18, at this time of writing, hardly fundamental and emphatically too late.)
I submit, the picture is clear, without the need to delve further into Judge Leon’s Memorandum Opinion (he takes up next the statutory claims under the APA and the reasons for precluding judicial review of agency’s actions, part of the tightening noose placed around attempts at rectification of an increasingly repressive system), so that what emerges is a tableau of political gangsterism etched in marble across the government buildings in Washington, no branch exempted, and radiating out through the country, from federal district courts to FBI field offices, and a compliant host of service providers covering the whole gamut of communications, rendered more potent through constant technological advancement, the more readily penetrable into the consciousness, understanding, and articulation of the American people. Here, to resurrect the adversarial process deemed too dangerous by the structure of power and its multiform sources of influence, I should like to give Edward Snowden the final word. His revelations, after all, got Americans to begin thinking, necessitating the government’s time away from its usual task of normalizing its and the society’s servitude to ruling groups and their structure of power, to directing more careful attention to damage control, in this case, the anticipation a radical sensibility might arise from the ideological barbarism sanctioning Wall Street—and the matching conditions of a deterioration of living standards, widening class differences of income, wealth, and power, and, still part of damage control on a larger scale (perpetuating capitalism), promoting war, intervention, and the further pursuit of global hegemony.
III Snowden and the Deconstruction of American Repression: “An Open Letter to the People of Brazil”
As part of his effort to seek asylum in Brazil, Snowden published on Dec. 17 this letter in the newspaper, Folha de S. Paulo (I shall be quoting from the English edition), in which one senses the strong convictions and unflinching bravery which motivated and underpinned his whistleblowing revelations. He writes: “I shared with the world [his standing “in front of a journalist’s camera,” six months before, when he had “stepped out from the shadows” of USG’s NSA]evidence proving some governments are building a world-wide surveillance system to secretly track how we live, who we talk to, and what we say.” This was not easy to do: “I went in front of that camera with open eyes, knowing that the decision would cost me family and my home, and would risk my life. I was motivated by a belief that the citizens of the world deserve to understand the system in which they live.” Would that Judge Leon had this courage, for he would have rendered a more forthright, sweeping decision. And would that I has this courage, for I would be translating these words into action.
Snowden feared “no one would listen to my warning,” but he was deeply moved by “the reaction in certain countries,” Brazil being “certainly one of these.” He does not mince his words: “At the NSA, I witnessed with growing alarm the surveillance of whole populations without any suspicion of wrongdoing, and it threatens to become the greatest human rights challenge of our time.” Would at least that Americans recognized this! Snowden exposes the doublespeak, the arrogance of US claims to protecting the American and global citizenry: “The NSA and other spying agencies tell us that for our own ‘safety’—for Dilma’s [president of Brazil, who canceled a state visit to the US in protest against NSA eavesdropping on her personal calls] ‘safety,’ for Petrobras’ ‘safety’—they have revoked our right to privacy and broken into our lives. And they did it without asking the public in any country, even their own.” The enormity of the insult to national honor—which appears to be strongly felt in Brazil, given US activity: “Today, if you carry a cell phone in Sao Paulo, the NSA can and does keep track of your location: they do this 5 billion times a day to people around the world.” Here, I should like to say, “Case closed.” But we continue.
Giving examples of the closeness of surveillance, Snowden implies the cynicism of such programs: “American Senators tell us that Brazil should not worry, because this is not ‘surveillance,’ it’s data collection.’ They say it is done to keep you safe. They’re wrong.” Followed by what most should agree is a reasonable distinction, but of course is denied by many in America, including POTUS, DOJ, and FISC: “There is a huge difference between legal programs, legitimate spying, legitimate law enforcement—where individuals are targeted based on a reasonable, individualized suspicion—and these programs of dragnet mass surveillance that put entire populations under an all-seeing eye and save copies forever.” (He isn’t buying the stated five-year retention of records limit. Nor should we.) Then, stated in utmost brevity, Snowden explodes the entire political-social-ideological rationale and pretext for America’s counterterrorism, reflecting a wisdom few in academics or the media have shown: “These programs were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.” (Italics, mine—I wish to the second or third power)
He then comes to his plea for asylum. “Many Brazilian senators agree [with the foregoing], he writes, “and have asked for my assistance with their investigations of suspected crimes against Brazilian citizens.” He has wanted to help, “but unfortunately the United States government has worked very hard to limit my ability to do so—going so far [this is a compelling example, taken less seriously in the US than throughout the world] as to force down the Presidential Plane of Evo Morales to prevent me from traveling to Latin America!” Asylum is a matter of grave importance to him: “Until a country grants me permanent political asylum, the US government will continue to interfere with my ability to speak.” And perhaps even then, his life would remain in danger, the US perfectly capable of staring down protest by and within the host country. We see here a scrappy Snowden, fully aware of the importance of his revelations: Six months ago, I revealed that the NSA wanted to listen to the whole world. Now, the whole world is listening back, and speaking out, too. And the NSA doesn’t like what it’s hearing.” Nor, one supposes, does Obama, his national security advisers, his entire retinue.
I find in this letter an unsuspected fount of eloquence, Snowden the Sacco and Vanzetti of our times, as his closing statements reveal, and which deserve to be thrown back in the face of the American power elite. Thus, “The culture of indiscriminate worldwide surveillance, exposed to public debates and real investigations on every continent, is collapsing.” This nod to what Brazil is doing: “Only three weeks ago, Brazil led the United Nations Human Rights Committee to recognize for the first time in history that privacy does not stop where the digital network starts, and that the mass surveillance of innocents is a violation of human rights.” Then: “The tide has turned, and we can finally see a future where we can enjoy security without sacrificing our privacy. Our rights cannot be limited by a secret organization, and American officials should never decide the freedoms of Brazilian citizens.” Snowden recalls his earlier principled stated: “I don’t want to live in a world where everything that I say, everything I do, everyone I talk to, every expression of creativity or love or friendship is recorded. That’s not something I’m willing to support, it’s not something I’m willing to live under.” For his pains, the US “had made me stateless and wanted to imprison me. The price for my speech was my passport, but I would pay it again: I will not be the one to ignore criminality for the sake of political comfort. I would rather be without a state than without a voice.”
I pray Brazil is listening to his words: “If Brazil hears only one thing from me, let it be this: when all of us band together against injustices and in defense of privacy and basic human rights, we can defend ourselves from even the most powerful systems.” And I pray even harder that America is listening. When one reviews the obstructions coming from all quarters toward the realization of fundamental human rights in the United States, glimpsed in the judicial and Congressional endeavors to silence dissent and the awareness of alternative ways of living, working, thinking, feeling, vivified by the actual powers of repression (no other word will do) we have bestowed for now on our leaders to implement over us, and through self-castration, on ourselves, then perhaps Snowden’s words, Judge Leon’s better instincts, the societal collective decency buried in the rubble of fear, xenophobia, consumerism, and yes, counterterrorism as a front to press for counterrevolution, will break free and give authentic expression to human freedom.
IV The Cusp of Fascism
My New York Times Comment on the editorial, Dec. 17, “A Powerful Rebuke of Mass Surveillance,” same date, follows:
All praise due The Times–and about time, for it did not take a court decision to show the USG flagrantly violated, taking on police-state proportions, Americans’ civil liberties. Indeed, a symbolic if not actual breakthrough, judicially, beyond Judge Leon’s findings, finally a legitimation in this area of both giving the plaintiffs standing (a rebuke to the Supreme Court) and the adversarial process (a rebuke to POTUS and DOJ, both forfeiting all respect for their bulldozer tactics).I’m excited. This may be a break in the miasma of Obama’s National Security State and his use of counterterrorism to undermine democracy at home and conduct aggression abroad. (No mention of eavesdropping on foreign leaders in the decision, but integrally related to massive domestic surveillance.) For the first time in ages, we see CONSERVATISM on the side of principle, fulfilling–as in Leon’s reference to James Madison– the Founders’ custodianship of civil liberties, privacy, personal freedom.We have as a nation blasphemed the tradition of constitutionalism, current Republicans (let alone Tea Partiers) no more than gut-reactionaries–if not worse, and Democrats, including liberals and progressives, gutless in the face of Obama’s grab for power and blatant contempt for civil liberties. Judge Leon is a lone voice for truth and sanity. We can be sure, USG and the Supreme Court will do everything possible to postpone, discredit, overturn the decision. We’re on the cusp of fascism.
All praise due The Times–and about time, for it did not take a court decision to show the USG flagrantly violated, taking on police-state proportions, Americans’ civil liberties. Indeed, a symbolic if not actual breakthrough, judicially, beyond Judge Leon’s findings, finally a legitimation in this area of both giving the plaintiffs standing (a rebuke to the Supreme Court) and the adversarial process (a rebuke to POTUS and DOJ, both forfeiting all respect for their bulldozer tactics).
I’m excited. This may be a break in the miasma of Obama’s National Security State and his use of counterterrorism to undermine democracy at home and conduct aggression abroad. (No mention of eavesdropping on foreign leaders in the decision, but integrally related to massive domestic surveillance.) For the first time in ages, we see CONSERVATISM on the side of principle, fulfilling–as in Leon’s reference to James Madison– the Founders’ custodianship of civil liberties, privacy, personal freedom.
We have as a nation blasphemed the tradition of constitutionalism, current Republicans (let alone Tea Partiers) no more than gut-reactionaries–if not worse, and Democrats, including liberals and progressives, gutless in the face of Obama’s grab for power and blatant contempt for civil liberties. Judge Leon is a lone voice for truth and sanity. We can be sure, USG and the Supreme Court will do everything possible to postpone, discredit, overturn the decision. We’re on the cusp of fascism.
Outrageous HSBC Settlement Proves the Drug War is a Joke
“If you've ever been arrested on a drug charge, if you've ever spent even a day in jail for having a stem of marijuana in your pocket or "drug paraphernalia" in your gym bag, Assistant Attorney General and longtime Bill Clinton pal Lanny Breuer has a message for you: Bite me.
Breuer this week signed off on a settlement deal with the British banking giant HSBC that is the ultimate insult to every ordinary person who's ever had his life altered by a narcotics charge. Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, opting instead for a "record" financial settlement of $1.9 billion, which as one analyst noted is about five weeks of income for the bank…
…Though this was not stated explicitly, the government's rationale in not pursuing criminal prosecutions against the bank was apparently rooted in concerns that putting executives from a "systemically important institution" in jail for drug laundering would threaten the stability of the financial system. The New York Times put it this way:
Federal and state authorities have chosen not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system.
It doesn't take a genius to see that the reasoning here is beyond flawed. When you decide not to prosecute bankers for billion-dollar crimes connected to drug-dealing and terrorism (some of HSBC's Saudi and Bangladeshi clients had terrorist ties, according to a Senate investigation), it doesn't protect the banking system, it does exactly the opposite. It terrifies investors and depositors everywhere, leaving them with the clear impression that even the most "reputable" banks may in fact be captured institutions whose senior executives are in the employ of (this can't be repeated often enough) murderersand terrorists. Even more shocking, the Justice Department's response to learning about all of this was to do exactly the same thing that the HSBC executives did in the first place to get themselves in trouble – they took money to look the other way.
And not only did they sell out to drug dealers, they sold out cheap. You'll hear bragging this week by the Obama administration that they wrested a record penalty from HSBC, but it's a joke. Some of the penalties involved will literally make you laugh out loud. This is from Breuer's announcement:
As a result of the government's investigation, HSBC has . . . "clawed back" deferred compensation bonuses given to some of its most senior U.S. anti-money laundering and compliance officers, and agreed to partially defer bonus compensation for its most senior officials during the five-year period of the deferred prosecution agreement.
Wow. So the executives who spent a decade laundering billions of dollars will have to partially defer their bonuses during the five-year deferred prosecution agreement? Are you fucking kidding me? That's the punishment? The government's negotiators couldn't hold firm on forcing HSBC officials to completely wait to receive their ill-gotten bonuses? They had to settle on making them "partially" wait? Every honest prosecutor in America has to be puking his guts out at such bargaining tactics. What was the Justice Department's opening offer – asking executives to restrict their Caribbean vacation time to nine weeks a year?”
Another one knocked out of the park by Matt Taibbi. Share this article with anybody who still doubts our government and Wall Street’s collusion with international drug dealers. - Wes
Off the World News Desk:
NSA Had Secret Contract with RSA
“As a key part of a campaign to embed encryption software that it could crack into widely used computer products, the U.S. National Security Agency arranged a secret $10 million contract with RSA, one of the most influential firms in the computer security industry, Reuters has learned.
Documents leaked by former NSA contractor Edward Snowden show that the NSA created and promulgated a flawed formula for generating random numbers to create a "back door" in encryption products, the New York Times reported in September. Reuters later reported that RSA became the most important distributor of that formula by rolling it into a software tool called Bsafe that is used to enhance security in personal computers and many other products.
Undisclosed until now was that RSA received $10 million in a deal that set the NSA formula as the preferred, or default, method for number generation in the BSafe software, according to two sources familiar with the contract. Although that sum might seem paltry, it represented more than a third of the revenue that the relevant division at RSA had taken in during the entire previous year, securities filings show.
The earlier disclosures of RSA's entanglement with the NSA already had shocked some in the close-knit world of computer security experts. The company had a long history of championing privacy and security, and it played a leading role in blocking a 1990s effort by the NSA to require a special chip to enable spying on a wide range of computer and communications products.”
Friday, Jan. 3, 2014
Nearly a year ago, federal agents unveiled a sting operation that embarrassed police departments across metro Atlanta. It accused officers of using their badges and guns to protect cocaine transactions for a street gang.
January 04, 2014
CRANSTON — The Rhode Island Affiliate of the American Civil Liberties Union and two City Council members are challenging the decision by Mayor Allan W. Fung to have the police investigate their own parking ticket scandal.
The ACLU said Fung should have had an independent law enforcement agency such as the state police or a private investigative agency probe the scandal. And Councilmen Steven A. Stycos and Paul H. Archetto said the state police should be called in.
“They are all comrades in arms,” Archetto said of the city Police Department. “It’s a brotherhood and it’s closely knit.”
Three weeks ago, Stycos and Archetto disclosed at a council meeting that the police blitzed their wards with parking tickets the day after the councilmen joined in a vote to reject a proposed labor contract that the police union wanted.
Stycos and Archetto said Friday that the city police have significant conflicts of interest, due to working and familial relationships and friendships.
Stycos added that an official of the police labor union is implicated in wrongdoing and that a rank-and-file officer giving evidence in the internal investigation might be intimidated, worried that the union would not back him if he offended the union official.
Fung has arranged for a New Jersey company to review an eventual report of the findings by the city police, in an effort to ensure the quality of the internal investigation. The company is that of Louis F. Stephens Sr., a former supervisory special agent in the New York field office of the Federal Bureau of Investigation.
Steven Brown, executive director of the ACLU, wrote a letter to Fung dated Jan. 2 asking him to clarify the limits of Stephens’ assignment, particularly whether Stephens will be able to look beyond the report.
Credo CEO Michael Kieschnick, whose company is believed to be at the heart of a historic legal battle over the secrecy of government surveillance. Image: Credo
A small telecom believed to be at the center of a historic court battle over government surveillance published its first transparency report on Thursday, noting that it had received 16 government requests for customer data in 2013. But the report may be most significant for what it doesn’t say.
Credo Mobile, the first telecom to release a transparency report, received just 15 requests for customer data pursuant to subpoena, summons or court order and one emergency request for data. But the most significant part of the report may be the government requests it doesn’t list.
A press release accompanying the report notes that it may be incomplete because legal restrictions prevent companies like Credo from disclosing certain kinds of government requests for customer data, such as those requested with a so-called National Security Letter or NSL.
“[D]ue to existing U.S. surveillance statutes that Credo is on the record opposing, such as the USA PATRIOT Act and the FISA Amendments Act, this report and those of other service providers may fall short of full transparency,” the note reads.
The report and statement are significant because Credo is believed to be the anonymous plaintiff at the heart of a historic legal battle over NSLs — a fight that began before documents leaked by Edward Snowden revealed the extent of the government’s sweeping surveillance programs. That legal battle resulted in a court ruling last year saying that NSLs, and the mandatory gag orders that accompany them, are unconstitutional.
The Credo transparency report identifying 16 requests, including one emergency request, that the telecom received from government entities for customer data.
By law, gag orders can be imposed on telecom companies prohibiting them from disclosing requests for customer information that are issued under an NSL or under Section 215 of the PATRIOT Act. The gag order also prohibits companies from disclosing whether they have complied with the order or challenged it in court.
Last year, after one telecom challenged the NSL it received, U.S. District Judge Susan Illston in San Francisco ruled ultra-secret National Security letters are an unconstitutional impingement on free speech, and ordered the government to stop issuing NSLs, a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals, which it did.
The telecom, which is not identified in court documents but is believed to be Credo, received an NSL in 2011 from the FBI. The company took the extraordinary and rare step of challenging the underlying authority of the NSL, as well as the legitimacy of the gag order accompanying it. Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without judicial oversight. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them, though few requests have been challenged by the recipients.
After the telecom challenged the NSL, the Justice Department made the extraordinary move of suing the company, arguing in court documents that the company was violating the law by challenging its authority. That stunned the Electronic Frontier Foundation, which is representing the anonymous telecom.
“It’s a huge deal to say you are in violation of federal law having to do with a national security investigation,” EFF’s Matt Zimmerman told WIRED at the time. “That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here.”
In her ruling, Judge Illston said the NSL nondisclosure provisions “significantly infringe on speech regarding controversial government powers.” She noted that the telecom had been “adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate” on the government’s use of the letters. Illaston also said the review process for challenging an order violated the separation of powers. Because the gag order provisions cannot be separated from the rest of the statute, Illston ruled that the entire statute was unconstitutional.
The judge found that although the government made a strong argument for prohibiting the recipients of NSLs from disclosing to the target of an investigation or the public the specific information being sought by an NSL, the government did not provide compelling argument that the mere fact of disclosing that an NSL was received harmed national security interests. A blanket prohibition on disclosure, she found, was overly broad and “creates too large a danger that speech is being unnecessarily restricted.” She noted that 97 percent of the more than 200,000 NSLs that have been issued by the government were issued with nondisclosure orders.
Although the telecom was not identified in court documents that were released publicly, the Wall Street Journal used details that were revealed in them to narrow the likely plaintiffs to Credo in a story published in 2012. The company’s CEO, Michael Kieschnick, didn’t confirm or deny his company was the unidentified recipient of the NSL, but did release a statement following Illston’s ruling.
“This ruling is the most significant court victory for our constitutional rights since the dark day when George W. Bush signed the Patriot Act,” Kieschnick said. “This decision is notable for its clarity and depth. From this day forward, the U.S. government’s unconstitutional practice of using National Security Letters to obtain private information without court oversight and its denial of the First Amendment rights of National Security Letter recipients have finally been stopped by our courts.”
The redacted documents don’t indicate the exact information the government was seeking from the telecom, and EFF won’t disclose the details. But by way of general explanation, Zimmerman said at the time that the NSL statute allows the government to compel an ISP or website to hand over information about someone who posted anonymously to a message board or to compel a phone company to hand over “calling circle” information — that is, information about who has communicated with someone by phone.
An FBI agent could give a telecom a name or a phone number, for example, and ask for the numbers and identities of anyone who has communicated with that person. “They’re asking for association information – who do you hang out with, who do you communicate with, [in order] to get information about previously unknown people.
“That’s the fatal flaw with this [law],” Zimmerman told WIRED last year. “Once the FBI is able to do this snooping, to find out who Americans are communicating with and associating with, there’s no remedy that makes them whole after the fact. So there needs to be some process in place so the court has the ability ahead of time to step in [on behalf of Americans].”
The company said in its statement Thursday that it supports the full repeal of the USA PATRIOT Act and the FISA Amendments Act and is working to pass Rep. Rush Holt’s Surveillance State Repeal Act.
“Credo, which supports the repeal of the USA PATRIOT Act and FISA Amendments Act, a plea bargain or clemency for Edward Snowden, and an end to the retroactive immunity granted to protect telecom companies from facing charges for colluding with the NSA in the illegal wiretapping of Americans, is releasing the report to increase transparency around governmental requests for customer information,” the company said in a statement.
Credo’s transparency report follows in the tradition begun by Google and other internet service providers to release transparency reports about the number of government requests they receive for customer data. Google and other companies have been battling the government to be able to release more information than their transparency reports currently cover. Late last year, Verizon and AT&T announced that they would be releasing a transparency report in 2014 — their first.
But Credo took a swipe at its fellow telecoms in its statement on Thursday, saying that it had opposed the immunity granted by Congress to telecoms like Verizon and AT&T after previous revelations that the companies cooperated with the Bush administration’s illegal wiretapping program without trying to fight it.
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