SURVEILLANCE - A 702 Warning

COMMENT:  "After all, surveillance powers are wielded by humans, with all of their prejudices and temptations and flaws."  And people can misuse the data collected for their own personal purposes.  Which can include a President wanting to stay in power.

"Why US surveillance bothers me — and should bother you" by Sarah St.Vincent, The Hill 6/11/17

As the Trump Administration comes out swinging in favor of one of the United States' most controversial surveillance laws and Congress debates them with top intelligence and Department of Justice officials, everyone in the country should be thinking about why being watched by the government makes us queasy.

I've been working on US surveillance issues as a lawyer, policy analyst, and general geek for the past three years.  In my current role, I spend every day investigating and spreading the word about what the government is doing with your private data, especially your Internet and phone conversations.

Although there are plenty of good arguments out there — both principled and pragmatic — about why government overreach in this area matters, the ones I seem to wind up discussing most with people who are curious about these issues tend to center on the idea of “privacy.”

Sometimes, even as I say the word, I can see my listeners' eyes start to glaze over.  Privacy — really?

There are people out there with guns and bombs who want to kill and maim others en masse.

How can something like privacy — which is almost never absolute anyway — take precedence over the need to prevent that?

Aren't governments responsible for protecting their populations?

So, maybe arguments that only focus on “privacy,” in the abstract, leave you cold.

Well, the truth is that—at least at a visceral level—they do the same for me.

But after spending many hours pondering the nature of government surveillance, I've been able to pin down exactly what it is about the large-scale and overwhelmingly secretive programs run by the US that does trouble me deeply—and, in my view, should also trouble you.

Especially as Congress gears up for a major battle over whether to reform one of the country's most sweeping warrantless communications surveillance laws, Section 702 of the Foreign Intelligence Surveillance Act (the subject of the upcoming Senate hearing), we should all be asking ourselves what it is about these programs that disturbs us.

Here's what keeps me up at night.

First, it bothers me that these warrantless, potentially enormous programs create such a vast power disparity between the US government and the people it is intended to represent and serve.

In this, I have solid backing: James Otis, a Boston lawyer who made a fiery argument in 1761 about the British colonial authorities' use of broad “general warrants” to barge into homes and rifle through private papers, decried that practice as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book.”

Otis pointed out that such broad powers enabled any official who wielded them to carry out “petty tyranny” and “lord it over us”—and in doing so, he helped inspire the American Revolution.

Particularly when I look at the government's Section 702 programs, which include warrantless demands for private communications from major US Internet companies and (allegedly) the bulk scanning of many of the communications that pass over the undersea cables that connect the US to the rest of the world, Otis' objections still seem relevant.

This is not how democracy is supposed to look.

It also bothers me that the US government effectively misleads its own population, not to mention the rest of the world, about what it is doing.

To cite just one example, the authorities like to describe Section 702 surveillance as “targeted” because, officially, the monitoring must “target” foreigners (or foreign entities) outside of the United States.

What the government doesn't announce with quite as much enthusiasm is that as part of this ostensibly targeted monitoring, it believes it is entitled to sweep up potentially huge numbers of private calls, emails, texts, and so on—including those belonging to Americans—“incidentally.”

There are other examples of executive branch use of narrow, secret, or non-obvious interpretations of terms in an apparent effort to conceal or minimize its activities.

If the government truly believes its surveillance practices are constitutional, then its use of these verbal smokescreens is, to say the least, difficult to understand. 

It bothers me that my free speech is no longer truly free.

As many of us probably do, I hesitate before using certain words in emails or texts.  And by “certain words,” I mean those that allude to my religious beliefs, which—I can say with great confidence—would not please everyone.

I mean those that express my views on culturally sensitive topics.  I mean those that some might regard as obscene, or are the product of frustration or anger or simply bad taste.

I mean those that some US government official, somewhere, someday, might not like.

In case law about the First Amendment, there's a term for this hesitation: the “chilling effect.”  It's a pretty unambiguous sign that fundamental rights are in jeopardy.

It bothers me that if an FBI agent reads this and doesn't like what I've written, he or she can do a search for any of my communications the government might have “incidentally” grabbed under Section 702.  Literally.  Right now.  Without a warrant.

These are known as “backdoor searches,” and the government doesn't think it needs any suspicion of wrongdoing whatsoever to do them—it only needs to be hunting for “foreign intelligence information” (a very broadly defined term) or “evidence of a crime.”  The potential consequences for activists, demonstrators, minorities, and the politically unpopular should be obvious.

After all, surveillance powers are wielded by humans, with all of their prejudices and temptations and flaws.  This is why they're supposed to be constrained by clear, strict laws and overseen by judges on a case-by-case basis—which Section 702 snooping is not.

Ultimately, these are all problems that privacy protections are intended to forestall.  Think of privacy as a “gateway” right; when I know my calls and emails are truly private, and that law enforcement can't search them unless it has a specific pre-existing reason to think I've done something wrong, I speak more freely.

When I know I can trust my government to be forthright about when it can and cannot spy on me, I'm more likely to take advantage of my legal rights to assemble with others, protest, or explore or practice a religious faith.

If I'm ultimately charged with a criminal offense, the existence of clear laws and policies on when the government can monitor me (and what it can do with that information) will help ensure that I can discover and challenge any activities that may have violated the law.

In a rule-of-law country, these are necessities, not luxuries.

If you believe in democracy and in individual freedoms, there is a great deal about the federal government's out-of-control surveillance, including under Section 702, that should worry you.  Now is the time to think about why it does.

SUPREME COURT - Warrantless GPS Tracking

"Supreme Court Hears Landmark GPS Tracking Case" PBS Newshour 11/8/2011

Excerpt

JUDY WOODRUFF (Newshour): Now we turn to the high-profile case before the Supreme Court today, where the justices questioned if the government can track a suspect using a GPS device without a warrant. At the heart of the case is an individual's constitutionally protected privacy in today's high-tech world of real-time surveillance.

Here now to bring us the highlights from today's oral arguments is Marcia Coyle of "The National Law Journal."

Welcome back, Marcia.

MARCIA COYLE, The National Law Journal: Thanks, Judy.

JUDY WOODRUFF: So, tell us first the facts of the case.

MARCIA COYLE: OK.

The police and the FBI attached a GPS tracking device to the undercarriage of Antoine Jones' car. Jones was a suspected drug dealer. They didn't have a warrant. They monitored the movement of the car 24 hours per day for 28 days. Some of the information gathered was used to convict him of conspiracy to deal drugs.

A federal appellate court later reversed his conviction, finding that the use of the GPS device without a warrant violated the Fourth Amendment.

More excerpts

JUDY WOODRUFF: So, it sounds like today, from what I read, the justices were asking a lot of questions.

MARCIA COYLE: It was a very active argument. It was the government that brought the appeal to the Supreme Court, since they lost below.

And Deputy Solicitor General Michael Dreeben, representing the government, told the justices that earlier Supreme Court cases have said there is no reasonable expectation of privacy when you travel on public roads. The GPS device, he said, exposed nothing that wasn't already exposed to anyone who cared to look at this car.

And he also said it was no different than if the police had assigned 10 agents to tail Jones' car for 24 hours a day for a month.

JUDY WOODRUFF: And how did the justices response to this line of argument?

MARCIA COYLE: The justices -- a number of the justices seemed very uncomfortable with how far the government's argument went.

Justice Breyer, for example, said, if you win, you would be able to monitor the movements of every citizen in the United States, and that suggests sort of an Orwellian, "1984" scenario. So he pressed -- and so did the other justices -- pressed the government on what protection is there here from something like that happening?

And Mr. Dreeben said, well, there are other constitutional principles that can come into play if there are abuses or if the court is afraid that something is chilled here. There's the First Amendment. There's equal protection.

But he said, we're not talking about monitoring every citizen. This is a case where police were monitoring a suspected drug dealer.
----
JUDY WOODRUFF: So, finally, Marcia, what's -- the sense is, what, that the justices could draw a line, privacy, high-tech device, that they could choose to draw that narrowly, broadly? What?

MARCIA COYLE: They could. There is a narrow way to solve this -- or resolve the case. And that is just to look at the attachment of the GPS device, was that a seizure, and not deal with the more complicated issue of search and reasonable expectations of privacy in the world today.

I thought Justice Alito had a -- really hit the nail on the head when he said, before the Internet age, our sense of -- much of our privacy resulted from difficulty in traveling and gathering information. But with computers, you can now amass a huge amount of information. He said, so what now? Is everything fair game? Or where are the limits?

And that's what the justices have to juggle. Where -- or is there a limit? Is there a line to draw?

My personal view is in agreement with the government view....

• There is no reasonable expectation of privacy in a public setting, like driving down a public road (or walking)
  


• Using a GPS is no different than having LEOs tailing a suspect


• In this particular case, the suspect is a known criminal with a record

....but there does HAVE to be a legal reason to tail ANY citizen, with or without a GPS.

ARIZONA - Win for Constitutional Law

"Birthright citizenship, immigration bills fail in Republican-held Arizona Senate" by Kris Alingod, AHN News 3/18/2011

Arizona's GOP-held Senate has voted down five immigration bills that would have, among others, forced the U.S. Supreme Court to rule on the 14th Amendment. The state last year enacted a controversial immigration law allowing police to detain people suspected of being illegal immigrants.

Republicans split during the vote late Thursday, with some joining Democrats to defeat what critics said would require education and health professionals to become immigration law enforcers.

One bill, SB 1611, was a proposal from Republican Senate President Russell Pearce banning illegal immigrants from state universities and community colleges.

It also would have required kindergarten and grade schools to ask parents for documentation of the legal status of their children. Moreover, the bill would have prohibited aliens from driving in the state and buying a vehicle.

Pearce was the author of SB 1070, which was approved last year, heightening debate nationwide on how to institute meaningful immigration reform.

Two measures introduced by state Sen. Steve Smith related to medical treatment and education.

SB 1405 would have required hospital workers to report illegal immigrants and patients unable to provide proof of legal status. The bill does not deny medical care for aliens who need emergency care but would deny admission to those who do not need non-emergency service.

The Arizona Hospital and Healthcare Association had urged lawmakers to vote against SB 1405, warning that hospitals would be burdened to check the citizenship of all patents, which amounted to more than 3.4 million in 2009.

The group added that the bill would compromise medical care because patients, including children and the elderly, or their families would have to bring documentation, and the admission of urgent but non-emergency patients could quickly become an emergency situation without proper care. Hospitals also follow "pre-admit orders" from doctors seeking to expedite treatment for patients.

"Since pediatric and elderly institutionalized patients generally do not carry any of the identification," the association had said. "With an average length of stay of four days, many of these patients would be ready for discharge before the hospital can review and confirm the prescribed identifying documentation."

Smith's other proposal, SB 1406, requires the Department of Education to gather data on the legal status of students and submit reports on how much the state is spending to educate students who are illegal immigrants.

The two other bills rejected by the senators would have sought a U.S. Supreme Court ruling on the 14th Amendment, which grants birthright citizenship.

The Arizona Chamber of Commerce and Industry had made clear that it opposed all five bills, citing concerns among business leaders about another immigration controversy affecting their companies and employees.

Chamber president Glenn Hamer said in an op-ed that despite staying neutral during last year's passage of SB 1070, Arizona companies were directly affected by the law.

"Conventions were canceled, companies lost contracts, boycotts were carried out and the state’s image took a hit. There was an economic price to pay for Arizona going it alone," he said.

Hamer said he had received a letter signed by 60 business executives and another from 20 local chambers urging lawmakers not to redefine the concept of citizenship and to "instead direct its energy to pressing Congress for meaningful immigration reform."

"These chambers and executives are not part of some conspiracy to flood the U.S. workforce with cheap labor," he said. "It’s rare for individuals of such prominence to take such a public stance on a controversial issue, but it’s indicative of how damaging they believe passing these laws could be to Arizona’s future."

The five measures are part of a larger push by the GOP in several states to deny birthright citizenship to aliens. But the initiative in the Grand Canyon State faces particularly difficult questions, including the granting of citizenship to Native Americans only in 1924.

In the U.S. Senate, two lawmakers are pushing a resolution to "close a loophole" in the 14th Amendment. Under the proposal from Sens. Rand Paul (R-KY) and Paul Vitter (R-LA), a child born on U.S. soil must have at least a parent who is either naturalized, a legal citizen, an legal immigrant or active member of the military before citizenship is conferred.

The resolution from Paul and Vitter were introduced after the DREAM Act, a Democratic bill providing children of aliens a path to citizenship if they finish two years of either college or military service, failed in the Senate.

Despite having safeguards such as age limits and years of residency before the bill is enacted, Democrats had failed to gain enough support for the legislation.

Republicans had criticized the bill for giving amnesty to illegal immigrants and exacerbating the nation's fiscal problems. They had warned it would promote "chain migration" in spite of a provision banning students from sponsoring members of their extended family.

The bill's sponsor, Sen. Dick Durbin (D-IL), had argued, "Young people were brought to the U.S. and should not be punished for their parents' choices."

Anti-Constitution Arizona GOP looses again.

POLITICS - More on CIA Detention Policy

"Shields and Brooks Look at Detention Policy" PBS News Hour Political Wrap

Over this 3-day holiday weekend (which included Friday) I stayed away from the news. I just needed a respite. Upon viewing the online News Hour's Political Wrap of Friday, 5 October 2007. I wish I had at least watched the News Hour.

The following are excerpts from the full transcript, focusing on the Examining interrogation tactics section.

JIM LEHRER: And now to Shields and Brooks, syndicated columnist Mark Shields, New York Times columnist David Brooks.

Mark, what do you make of these interrogation memos?

MARK SHIELDS, Syndicated Columnist: Well, I think, Jim, we're going right back to where we were just two years ago. Two years ago, we had a major showdown. On one side of the battle was the administration, the White House, the attorney general then, Alberto Gonzales, but the president and the vice president, and on the other side were John McCain, John Warner, and Lindsey Graham in the Senate, Colin Powell, John Shalikashvili, former chairman of the Joint Chiefs, General Joe Hoar, former Marine general and chairman of Central Command.

And one side were those who said we're going to do this because it's extraordinary circumstances and we're going to take all these measures, this is unlike any other foe we've ever had. And McCain and Powell and Warner and others just said, no, this is totally not only violative of every American value, but it hurts our soldiers and troops in combat because it exposes them to greater possibility of torture, it gets unreliable information.

And in the final analysis, John McCain made the strongest case, as a member of the Senate, when he said, When I was a prisoner, and we were prisoners, and we were tortured, and many of my comrades died, what sustained us was our belief that we were different, that our system and our values were better.

JIM LEHRER: Is the administration in these memos taking the position, David, speaking of different, that the CIA interrogating suspects is different than the military, which was, of course, what Mark was going through and what this legislation was all about?

DAVID BROOKS: Yeah, there are sort of two issues here. One is, is it a good idea to torture?

JIM LEHRER: Period.

DAVID BROOKS: Right. And then the second is the more legal issue, which these competing memos sort of we're talking about, which were, does the president have the legal authority based on precedent and all that to let the CIA do what it wants to do?

And to me, the political effect of this is a sense of elitism, a sense that people in the administration, some people in the administration, think, "This war on terror is serious. A lot of people don't take it as seriously as we are. They're not as hard and tough as we are. So we're going to put out one thing for the country, but secretly we tough guys are going to have another set of rules."

And so I think the big, damaging thing about this is the difference between what we all thought was the administration interpretation of what could be done and what inside, apparently, this memo suggests they had agreed could be done. And it's the gap between the private and the public that, to me, is the most damaging thing about this.

JIM LEHRER: Is it a little bit extraordinary that they put it all in writing?

DAVID BROOKS: No, I mean, they do go by the rules. And to be fair, one of the things the Times story made clear is that there's a group of lawyers that have been within in the Justice Department, no matter who the attorney general was, and they come from similar backgrounds, elite law schools, Supreme Court clerks, Federalist Society.

And what was fascinating and was well-described in the article was that this community of people who were friends split on this issue. And some of the lawyers decided this is within the president's rights. Some, who have very similar political philosophies said, no, this is an overreach. This is poorly argued.

So it was that split within the communities, and it depended on who happened to be sitting in what chair at what time that determined, seemingly, how the administration shifted. And, of course, within other non-legal parts of the administration, they wanted certain lawyers over others.

For me, the most telling quote is, "And in the final analysis, John McCain made the strongest case, as a member of the Senate, when he said, When I was a prisoner, and we were prisoners, and we were tortured, and many of my comrades died, what sustained us was our belief that we were different, that our system and our values were better."

Yes, our TRUE American values are better, or should be. And I mean outside the religious issue which is in an individual's realm.

The DEMONSTRATED VALUES of the Bush Administration are those of totalitarian governments and dictators. The rights of The People and our Constitution be damned.

POLITICS - The Bush Whitehouse "Bubble"

"The shrinking Bush bubble" by Rosa Brooks, LA Times

Here are the paragraphs that really say it all about the Bush Whitehouse.

Goldsmith ran the Justice Department's office of legal counsel for nine months in 2003-04 (and was briefly a colleague of mine at the University of Virginia School of Law). He and his book, "The Terror Presidency," are quoted extensively in a Sept. 9 New York Times Magazine article.

Key takeaways: Bush and Gonzales had little appetite for substance; Cheney's staff ruled the roost and insisted that the law was supposed to bend to their wishes; and top Cheney aides such as David Addington were every bit as contemptuous of their GOP colleagues in the executive branch as they were of Congress, the courts and their Democratic critics.

For instance: When Goldsmith tried to explain to Addington that terrorists and insurgents might be covered under the Fourth Geneva Convention, which applies to civilians (rather than under the Third Geneva Convention, which covers prisoners of war), Addington reacted with fury: "The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision." That's the rule of law, as understood by Cheney's office.

....bold emphases mine

This is a Bush Whitehouse belief in an Imperial Presidency. That the President, because he is "Commander and Chief" can ignore the checks-and-balances our Constitution provides. That no other branch of government has the Constitutional duty to review and provide a check against Presidential abuse of power because the President is "Commander and Chief."

This belief means any President can ignore other provisions of the Constitution, including the Bill of Rights.

As I have said before, NO one clause of our Constitution gives license to ignore any other clause. It is the DUTY of Congress and the Judiciary to provide a check to Presidential abuse of power.

POLITICS - One For the Good Guys

"Federal judge blasts Congress, strikes down part of Patriot Act" by Larry Neumeister, AP, 9/6/2007

A federal judge issued a blistering attack on the USA Patriot Act on Thursday as he struck down a key part of the law, ruling that it runs roughshod over the Constitution and puts Americans in danger of "far-reaching invasions of liberty."

In a ruling remarkable for its numerous pages spent defending the need for judicial oversight of laws, U.S. District Judge Victor Marrero handed the American Civil Liberties Union a major victory in its challenge of the post-Sept. 11 law.

"Congress needs to fix the mess it created when it gave the government overly-broad powers to obtain sensitive information about Americans," said Sen. Russ Feingold, D-Wis., one of the few lawmakers to vote against the Patriot Act.

The judge immediately stayed the effect of his ruling, allowing the government time to appeal. Justice Department spokesman Dean Boyd said: "We are reviewing the decision and considering our options at this time."

The ACLU had challenged the law on behalf of an Internet service provider, complaining that it allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers' phone and Internet records.

.....................

Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed "so that the dangers of any given moment would never suffice as justification for discarding fundamental individual liberties."

He said when "the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty."

In a lengthy opinion, he gave what amounted to an eighth-grade civics lesson, describing why the founders of the Constitution created three branches of government, separate but equal, delegating the judiciary to say what the law is and to protect the Constitution and the rights it gives citizens.

Regarding national security letters, Congress impermissibly crossed its jurisdictional boundaries so dramatically that to let the law stand might turn an innocent legislative step into "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."

The article is correct about "eighth-grade civics lesson." That is where I was taught about our Constitution and the Bill of Rights. Particularly about the reason for the 3 branches of government and separation of powers. It is very obvious to me the Bush flunked his civics classes; then again, Emperor Bush may be choosing just to ignore them.

Side issue, Gonzo supported this and should be disbarred and prevented from practicing law in the US.

SUPREME COURT - Decision Allows Government Intrusion on Religious Freedom

"Faith and taxes" LA Times Editorial

MONDAY WAS a rocky day for the 1st Amendment, and the Supreme Court did not limit its mischief to the speech clause. A smaller, more technical case threatens to undermine the amendment's protection of religion from government intrusion, in this case by limiting the ways taxpayers may challenge government spending on faith.

For nearly 40 years, the court has recognized that Americans may file lawsuits to block the government from improperly spending taxpayer money on behalf of religion. Even when those litigants can show no specific monetary damage as a result, the court has recognized their standing to bring such suits. That sensible position, first articulated by Chief Justice Earl Warren in 1968, lets all taxpayers help enforce the establishment clause, which prohibits the government from aiding the establishment of religion.

On Monday, however, two generations' worth of common sense went by the wayside as the court, in a mere plurality opinion, allowed taxpayers to challenge such spending if it is done by Congress but barred them from seeking redress if it is the president who authorizes the money. The court's reasoning was satisfying to no one and resulted in a strange fragmentation of the justices, with the chief leading two other colleagues in the main opinion, joined in concurrence by the bench's two most conservative members. The largest group of justices speaking with one voice actually was in dissent, in which Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer all joined.

It was, however, Justice Antonin Scalia who most powerfully illuminated the illogic of permitting standing in some cases while blocking it in others, a condition that, as he noted, "invites demonstrably absurd results." Taxpayers could sue, for instance, if Congress passed a bill to give money to a church school, but if Congress appropriated the same amount of money to the president knowing that he would spend it on the same school, the lawsuit would be barred.

Scalia's pungent observations led him to precisely the wrong conclusion — that all such suits be barred. But his logic is sound in one respect: The same standing rules should apply to litigants in establishment clause cases regardless of which branch spent the money. And that logic, which unites the court's liberals and conservatives, is what is sorely lacking in the opinion of the court.

Translation, Scalia: "American citizens do not have standing to protect THEIR Constitutional rights against government intrusion."

Scalia, form this American citizen, .... BS!

POLITICS - Federal Government According to "King George"

"Who Needs Congress or Courts With Bush in Charge?" by Ann Woolner, Bloomberg

Congress passes a law that says the U.S. won't torture people. The president says OK, we won't -- unless we really need to, thus adopting an exception Congress had specifically and vociferously rejected.

Congress passes the Sarbanes-Oxley law to reform business practices. In signing it, the president issues a statement to cut back on protection for corporate whistle-blowers.

Congress passes a law telling the administration to inform it on specific matters. The president issues statements saying he won't disclose anything he doesn't think he should.

So Congress tells him to notify it when he decides to ignore a law. He repeats that he will disclose only what he thinks he should, claiming, as he always does, constitutional authority to resist.

As of July 11, President George W. Bush had said no (or, not unless I want to) to 807 provisions enacted by Congress that he signed into law, according to Christopher Kelley, a political science professor at the University of Miami, Ohio.

That number compares to some 600 provisions challenged by all of Bush's predecessors combined, says Kelley. He has been studying presidential signing statements for a decade, and his work is backed up by other scholars.

Now comes a bipartisan American Bar Association task force, which concluded this week that presidential signing statements such as Bush's are "contrary to the rule of law and our constitutional separation of powers.''

Equal Branches (reformatted):

• The Congress writes the laws
• The president executes them
• The courts decide whether they violate the Constitution

When a president claims he can rewrite a law before executing it, he is acting as all three branches.

In essences, if not fact, Bush says because of the one Constitutional clause that gives the President the job of protecting America, he has the right to ignore all other parts of the Constitution. Including the Bill of Rights. As if any one part of our Constitution overrides another.

There is no way I can know what my readers were taught in school, but the equal Constitutional powers of the 3 branches of our federal government stated above was what I was taught and firmly believe.