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House committees take first step to reform NSA

3:28 pm in Uncategorized by Shahid Buttar

Last week, the House Judiciary and Intelligence committees approved a bill that would begin the process of restoring constitutional limits to dragnet government surveillance. While a praiseworthy step in the right direction, the progress to date remains both entirely too slow, and deferential to the intelligence agencies.

Congress should immediately pass the USA FREEDOM Act, and then get back to work to pass the further restrictions on NSA spying necessary to render it compliant with the First and Fourth amendments.

A limited reform package

Several observers have noted various ways in which the bill passed out of the committees last week leaves a great deal to be desired. The House committees watered down the bill’s provisions before approving it, undermining its ability to meaningfully restrain government spying.

For instance, the revised bill would fail to stop “back door searches,” through which the government targets Americans for surveillance while claiming to target foreigners in order to evade legal restrictions created in the 1970s after the agencies were caught spying on peaceful domestic social movements. In addition, the measure that would have created a public advocate to lend some legitimacy to the secret FISA court was scuttled. Instead, the court will retain discretion to appoint a panel of privacy advisors.

Finally, the revised bill fails to ensure transparency. Its public reporting requirements, watered down in committee, previously would have covered a number of domestic surveillance activities, including controversial National Security Letters long abused by the FBI.

This week, a coalition of 30 organizations wrote to Congress to address vulnerabilities where “several technical corrections and clarifications to the bill are required if Congress is to help ensure that the bill language is not misinterpreted and its stated goal of ending bulk collection is met.” Encyclopedic writer and analyst Marcy Wheeler questioned ”whether the bill will actually expose more kinds of US person records to the scrutiny of the NSA.” And Georgetown law professor David Cole said “the biggest mistake any of us could make would be to conclude that this bill solves the problem.”

Most fundamentally, Danielle Brian from the Program on Government Oversight said, “We cannot expect this bill to protect privacy and civil liberties while the public and Congress continue to be in the dark about the policies in practice.”

These concerns are all valid. Unfortunately, they’re just the beginning of the story.

Deferring to agencies despite a decade of secret crimes

Beyond particular concerns with changes wrought by Senate committees to the USA FREEDOM Act are a series of broader problems. Despite its welcome progress, the policy reform process reflects a troubling pattern of congressional deference to agencies and officials without any legitimate basis.

No senior intelligence agency official has confirmed even a single instance in which the NSA dragnet helped stop a potential terrorist attack. Multiple independent review panels have affirmatively reached the conclusion that NSA surveillance has never actually helped protect national security, despite the self-protecting statements of executive officials to the contrary.

Meanwhile, some of those very same officials have been caught red-handed lying to Congress, about matters as fundamental as whether the NSA is spying on millions of Americans. The Director of National Intelligence misled Congress, despite having advance written notice of that question, prompting several members of Congress to seek his appropriate prosecution for perjury.

Instead, the officials implicated in mass constitutional crimes all remain in place, and only after a year since learning the facts is Congress finally taking steps to restore the rule of law.

The proportionate response to the Snowden revelations would be to remove the entire senior leadership of the domestic intelligence agencies. The fact that the agencies’ leadership remains in place — despite the revelation of over a decade of unconstitutional surveillance that has poisoned our nation’s international relations and undermined our constitutional legacy, self-protecting lies to Congress, the misappropriation of public funds, and documented abuses of these programs facilitating potential domestic violence —renders suspect so-called policy “reforms” that ultimately defer to their interests.

Restoring a legitimate baseline for debate

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Killing us softly

1:48 pm in Uncategorized by Shahid Buttar

John Brennan - Caricature

John Brennan - Caricature

Why Holder’s letter carries little water

Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate’s confirmation of the new CIA director remained premature.

Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.

His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.

Accepting disclosure without investigation

Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.

The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.

Mere disclosure of some OLC memos to some Senators is insufficient.

Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.

The congressional intelligence committees, after all, were founded after robust investigations revealed widespread abuses by intelligence agencies, including the CIA, spanning decades and the terms of several presidents. Factual investigation has revealed more recent abuses, as well.

Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.

Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.

Forgotten in commentary on Brennan’s confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.

First, Senators had to fight tooth & nail to secure even the most minimal disclosure from the White House. Second, other congressional committees also sought access to the OLC assassination memos, but were denied.

Finally, beyond disclosure of the OLC’s legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.

How the facts suggest elastic powers
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Uncle Sam is watching you

1:43 pm in Uncategorized by Shahid Buttar

"I've got my eye on you."

This week, Congress prepares to abuse the Constitution again, by extending its 2008 amendments to the Foreign Intelligence Surveillance Act (FISA). With the House of Representatives poised to vote today on a premature five year extension, will members remember what they heard when theatrically reading the Constitution on the House floor, or instead entrench the Bush-Cheney legacy beyond even the next administration?

When Congress first voted back in 2008 to give the National Security Agency the power to eavesdrop on any—in other words, every–American without any reason for individual suspicion, it did so without a full picture of what it allowed. Indeed, the full contours of the program remain secret even today.

The only reason the NSA’s spying powers have survived this long is because courts have refused to consider claims that they are unconstitutionally invasive. The Supreme Court will consider one such case this fall — which, if successful, will merely allow the several year process of a litigation challenge to finally begin.

Even though much of it remains shrouded in secrecy, we do know a few things about the NSA’s warrantless spying program authorized by FISA.

We know that it began illegally, without any authorization by Congress and in clear violation of the FISA law crafted by Congress in the 1970s to stop our government from spying on Americans.

We know it is so vast and unchecked that, nearly ten years ago, Attorney General John Ashcroft refused to authorize it, even despite coercion from the Bush White House.

We know that an architect of the program, alarmed at how his work was co-opted to abuse the rights of Americans, blew a whistle about fraud and waste, only to face prosecution by the Obama Administration for espionage–until a federal court ultimately told the government to stop chasing a loyal servant of the American people.

We know that the NSA has violated even this incredibly permissive law, abusing its own powers and the rights of untold numbers of Americans. Our government has admitted to that much, without offering any way to know how widespread those violations have been — or remain.

We know that the executive branch currently interprets parts of other surveillance laws in secret, allowing government activities even beyond the intentions of their authors.

We know that congressional Democrats–including then Senator Obama–joined their Republican colleagues in 2008 to approve FISA, even while both parties paid lip service about defending constitutional values in Washington. Despite the partisan rancor apparent on many issues, Congress marches in lockstep on national security, elevating government power well beyond constitutional limits.

We know that, despite Washington’s wrangling over the budget crisis, the NSA has never justified its massive costs to the American people. In fact, Congress knows neither what the program costs, nor when the NSA’s program has actually helped national security, let alone whether those costs are justified!

We know that FISA has enabled the most pervasive state surveillance system ever known to humankind. The only settings in which powers like it have ever existed are dystopian science fiction novels.

Even the former Soviet Union and contemporary China, for all their efforts to control their people, lacked the resources to conduct the kind of monitoring that the NSA does every day — not only on terror suspects, but on you and your family.

We also know that the Obama administration has supported the Bush-Cheney NSA policy, extending it once before — even though Senator Obama, before winning the White House, promised at one point to vote against it. Until President Obama signed a 2011 law granting our military the potential power to detain any American indefinitely without proof of crime, FISA was the high water mark of the post 9-11 national security state.

Finally, we know that the American people can still defend our rights when aroused. Earlier this year, a grassroots firestorm stopped SOPA and PIPA before they transformed the Internet.

Congress already gave our government the power to conduct mass domestic spying by approving FISA four years ago, but a grassroots clamor this fall could stop that power from being renewed — or at least force Congress to finally do its job and ask tough questions that should have been answered long ago, before writing the NSA yet another blank check.

This post originally appeared at the People’s Blog for the Constitution.

Washington dishonors our veterans

5:42 pm in Uncategorized by Shahid Buttar

This Veterans Day, it’s worth noting how, while paying lip service to honoring our veterans, our leaders systematically abuse their legacy, expose current servicemembers to potential human rights violations, and degrade the nation they have risked their lives to defend.

The day before the PATRIOT Act’s 10 year anniversary last month, I was visiting the San Francisco Bay Area for a series of speaking engagements. The afternoon of Tuesday, October 25, I visited a journalism class at the University of California Berkeley to discuss the First Amendment. It was during the class that the Oakland Police Department began gassing peaceful protesters just a few miles down the road at Occupy Oakland. After class was over, I headed to downtown Oakland, encountered some police violence myself, and witnessed the aftermath of Iraq veteran Scott Olsen suffering a fractured skull at the hands of the Oakland police department.

It’s one thing, to use the words of President Eisenhower, for our country’s military industrial complex to co-opt taxpayer money, create entire industries dedicated to death and destruction, and skew our foreign policy to encourage war and militarism. That same industrial complex now sells to local police departments technologies initially developed for the military to use in war, from rural sheriffs’ offices using aerial drones, to monitoring neighborhoods with license plate scanners, to local police deploying the mobile sonic cannon to quell dissent in Oakland two weeks ago.

The domestic intelligence industrial complex is apparent in other, even more disturbing, ways. Under the guise of a program to deport undocumented immigrants, government agencies are constructing the Next Generation Initiative, a national identification system based on biometric data like fingerprints, facial and voice recognition, iris scans, and potentially even DNA—turning our bodies themselves as identification cards. Working with America’s local law enforcement agencies, the FBI has already rolled out this pervasive biometric data collection.

These are not the rights for which our veterans risked their lives.

For 60 years, we have prided ourselves on being the nation that ended torture and human experimentation, at the cost of a World War and tens of millions of lives. In only 10 short years, we have abandoned those principles. As I’ve written before:

Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama’s aim to “look forward, not backward,” may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.

Our nation’s leaders, from both major political parties, have left behind not only the prohibition on torture our veterans once fought to establish, but alsoany pretense of accountability for human rights abuses—effectively ensuring that torture and forced confessions will rear their ugly heads in the future. Forced confessions will abuse not only the rights of those false accused and wrongfully convicted, but also our justice system, which will lose whatever shred of legitimacy it still claims after having already imprisoned millions for trivial offenses while letting human rights abusers (like Judge Jay Bybee) run amok and continue to claim power.

We have lost World War II—to ourselves—in a time of relative peace, two generations after achieving victory at incalculable cost.

This is not the vision for which our veterans fought.

We give thanks today for our veterans and their sacrifices, and we remember and honor the principles they defended. They paid in blood to protect liberty and human rights. It is a shame on our nation and the world that we have abandoned those principles with such glaring indifference.