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Beyond CIA & NSA spying: Corruption

2:54 pm in Uncategorized by Shahid Buttar

Even before open war erupted last week between the CIA and Senate Intelligence Committee Chair Dianne Feinstein (D-CA), embattled NSA officials had woven tangled skeins to downplay public crimes including lying to Congress.

Portrait of Dianne Feinstein

While the CIA’s torture prompted Feinstein to begin her committee’s investigation, it was the agency’s continuing cover up that prompted her to voice her concerns on the Senate floor in a speech described by her colleague Patrick Leahy (D-VT) as the most important he had ever witnessed in his 40 year career in the Senate.

Many observers have noted the double-standard apparent in Feinstein challenging the CIA while deferring to the NSA. Few have recognized that both the NSA’s pattern of spying and then lying about it, and the CIA’s trajectory of first committing torture crimes, then spying on Congress to cover it up and then lying about the spying when caught, can be described in a single word: corruption.

CIA: spying on Congress to cover up criminal human rights violations

Senator Feinstein knows as much about the CIA’s detention & torture programs under the Bush administration — which went well beyond the acts depicted in photographs from Abu Ghraib — as anyone outside the CIA. She described them as “un-American and brutal,” and her colleague Mark Udall (D-CO) called them both “brutal and ineffective.”

Beyond their brutality, ineffectiveness as an intelligence tool, and violation of fundamental American values and foreign policy interests, the programs were also international crimes at least partly responsible for the deaths of US military servicemembers. Releasing the Senate’s authoritative, 6,000 page, $40 million report to the public is long overdue—especially for an administration that falsely champions transparency while routinely undermining it.

While the CIA’s torture prompted Feinstein to begin her committee’s investigation, it was the agency’s continuing cover up that prompted her to voice her concerns on the Senate floor in a speech described by her colleague Patrick Leahy (D-VT) as the most important he had ever witnessed in his 40 year career in the Senate.

Feinstein revealed that CIA personnel removed files from the computers used by Senate staff to conduct their investigation, and that a CIA lawyer himself complicit in human rights abuses has tried to intimidate Senate investigators by outrageously seeking their prosecution—for obtaining an internal CIA document confirming facts the Agency is trying to continue covering up.

Ultimately, the CIA’s attempt to limit what material its congressional overseers can review smacks of self-interest, and reflects a evasion of accountability for severe institutional crimes. Brennan’s confirmation by the committee last spring entitled him to lead the CIA, not to place it above the law.

NSA: Lies to Congress and the public to cover up mass surveillance

Observers from across the political spectrum have agreed that Director of National Intelligence James Clapper either misled Congress, or lied outright when asked a straightforward question by Sen. Ron Wyden (D-OR) in a March 2013 Senate hearing.

With advance notice, Clapper was asked whether the NSA collects “any type of data at all on millions…of Americans.” He answered, “No sir. Not wittingly.” In June, the Snowden revelations shocked the globe and proved that his statement was simply not true, in addition to self-serving.

Many people have gone to prison for less significant lies than that.

Responding to Clapper’s admittedly false answer to Wyden, seven Republican members of Congress wrote to the Attorney General in December seeking a Justice Department investigation into potential perjury. They correctly noted that “Congressional oversight depends on truthful testimony,” which is why “witnesses cannot be allowed to lie to Congress.”

Members of Congress from both parties, and both chambers, are not alone in calling for accountability: Citizens for Responsibility and Ethics in Washington called for an investigation nearly a year ago, followed by the Bill of Rights Defense Committee and grassroots activists and organizations from across the country.

Obama: On the sidelines while his legacy is sealed

How else might we describe demonstrably false, self-serving statements by NSA officials paid by taxpayers to perform a public service, or CIA efforts to secretly hamstring investigations into their activities by the elected officials charged to oversee them? In any country that claims to be a democracy, the most elegant answer is a single word — corruption — with crucial connotations for a contemporary debate that remains limited, even after the Snowden revelations.

As members of Congress have challenged executive agencies covering up their crimes, President Obama has absurdly attempted to evade responsibility. This maneuver, like his initial decision to “look forward, not back” on torture, is what I described then as “an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.”

President Obama’s evasion is the antithesis of President Truman’s reminder that “the buck stops here,” and undermines his own prior commitment to releasing at least parts of the Senate’s torture report. Coming from an administration that has accepted poorly-deserved awards for transparency in ironically appropriate secret meetings, its tacit support for executive lawlessness is a spectacular — though entirely unsurprising — failure.

This post was originally published on March 17 at the People’s Blog for the Constitution.

Dueling judicial rulings on NSA Spying, and why they don’t matter

2:18 pm in Uncategorized by Shahid Buttar

Two federal judges reached opposite conclusions in separate cases challenging NSA spying. One was thoughtful; the other reflected much of what is wrong with our courts. Ultimately, however, neither will matter. The NSA’s dragnet continues unabated, and only Congress is poised to stop it.

NSA seal

Only Congress can stop the NSA.

Dueling judicial rulings on NSA Spying

Two weeks ago, US District Judge Richard Leon rightly described the NSA’s domestic spying operations as an “indiscriminate and arbitrary invasion.” He ruled in favor of a preliminary injunction against the programs, and stayed his ruling pending appeals that could go on for years.

Last Friday, Judge William Pauley opined that the NSA’s program does not violate the Fourth Amendment, prompting outrage among observers who understand either the NSA’s programs, or the role of courts, better than Judge Pauley. His decision reflects a disturbing judicial deference to executive spin, and undermines not only constitutional rights, but also judicial independence.

Why Judge Pauley’s ruling is silly: what congressional oversight?

We’ve known for some time of executive officials of lying to Congress about the NSA’s domestic dragnet.

Yet Judge Pauley’s deferential opinion states that the NSAs domestic spying programs have been subjected to rigorous oversight by all three branches of government. That is simply and demonstrably false: multiple members of Congress have publicly complained that they were kept in the dark, and even those few who were exposed to the programs through their roles on oversight committees have posed tough questions, only to hear lies in response.

Several members of Congress have gone so far as to seek the prosecution of the Director of National Intelligence for deliberately misleading Congress about the scope, extent, and scale of NSA spying —which, even after the litany of revelations this year, remain unknown to the public, press, and Congress.

Among the members of Congress seeking to curtail NSA powers are the original authors of the PATRIOT Act themselves, who claim that they never intended their signature legislative achievement to be abused as it has been over the past decade. Yet Judge Pauley relied on congressional approval of the programs.

Why Judge Pauley’s ruling is silly: effectiveness? really?

Judge Pauley also predicated his decision on the supposed effectiveness of the NSA’s programs, which the president’s own review board rejected a week before the judge released his poorly reasoned opinion. Even to whatever extent the programs were proven effective — which they have not been — that issue would be well outside the judicial scope of inquiry.

The Fourth Amendment requires searches and seizures to be justified with a specific warrant. In this context, the crucial jurisprudential question is whether or not NSA collection of telephony metadata counts as conducting a “search” or “seizure.”

Why Judge Pauley’s ruling is silly: what’s a search?

In 1979 — over 30 years ago, well before the rise of anything even remotely resembling the Internet — the Supreme Court held that capturing telephony metadata did not constitute a search when the government pursued a specific target, for whom authorities had a basis for individual suspicion, in the context of a particular investigation.

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Cracks widen in the armor of the surveillance state

10:56 am in Uncategorized by Shahid Buttar

This article was originally published at the People’s Blog for the Constitution, the blog of the Bill of Rights Defense Committee.

NSA seal

Is the NSA’s armor cracking?

Members of Congress sensitive to constitutional limits on executive power have introduced no fewer than a dozen bills to curtail NSA spying. Most of them would do nothing to address the most recent disclosures from journalist Glenn Greenwald. Until the full scope of NSA spying is revealed to the public, congressional remedies for constitutional violations will remain insufficient.

Unfortunately, while Snowden’s disclosures may enable further facts to finally emerge about NSA abuses, transparency is generally waning despite President Obama’s rhetorical commitment to it.

The latest revelations of NSA domestic spying include new information about the government’s ability to intercept social network communications, email metadata and content, and other online content–all without a judicial warrant.

Beyond the particular details about Xkeyscore, however, lies a more disturbing implication: neither the press, nor the public, nor even Congress have any idea of the full extent to which the NSA is spying on Americans.

And if the latest results from the war on whistleblowers is any indication, each of these sectors will remain in the dark going forward, executive abuses will continue to mount, and our system of constitutional checks & balances will creak as executive secrecy continues to impede review from either Congress or the courts.

Congress legislating in the dark…

The same day that the Guardian revealed the NSA’s's ability to casually intercept online communications even in social networking applications like Facebook, Senate intelligence committee chair Dianne Feinstein (D-CA) revealed how little she knows about the operations of an agency she is charged to oversee.

Despite being described by the Washington Post as “chief congressional defender of the surveillance program to skeptical colleagues and critics who say it’s Big Brother run amok,” she wrote an op-ed in the Post pledging to “work with…the Senate intelligence and judiciary committees to consider changes to the NSA call-records program in an effort to increase transparency and improve privacy protections.”

While her interests in transparency and privacy are laudable, they are a day late, a dollar short, and dramatically out of step with her overwhelmingly principled (either libertarian or progressive, but rarely moderate) constituents. Most striking, however, are the gaps pervading Feinstein’s analysis.

First, she insists that NSA intelligence collection is limited to meta-data, and emphasizes the controls supposedly limiting access to the vast mountains of data collected under a particular program, Section 215 of the PATRIOT Act, implicated by the first document revealed by Snowden.

But that’s only a single program. The PRISM program, which was also revealed weeks ago, explicitly captures content, as does the XKeyscore program revealed just yesterday. Feinstein downplays the extent of surveillance even while calling for more transparency. As the longtime chair of the relevant Senate oversight committee, she should have a better grip on the facts.

At one point, Sen. Feinstein absurdly claims to “know of no federal program for which audits, congressional oversight and scrutiny by the Justice Department, the intelligence community and the courts are stronger or more sustained.”

The Senator’s self-assurance aside, yesterday’s Guardian article revealed that even corporate contractors were allowed access to real-time social network monitoring with neither executive nor judicial oversight of any kind, not even by the rubberstamp FISA court. If this is the zenith of transparency across the federal government, it would be interesting to learn what the Senator thinks secrecy looks like.

Other members of the Senate intelligence committee, such as Sen. Ron Wyden (D-OR), have posed tough questions to executive officials, only to be stonewalled by the administration and blocked from reviewing key facts that would help reveal the extent of domestic NSA surveillance.

Last week, in the first vote on domestic surveillance powers since the Snowden leaks, the House came only six votes short of defunding the NSA’s domestic’s spying activities entirely.

The surveillance state staved off a public vote of no confidence with a margin of just over 1%. And that was before the latest revelations of online and email surveillance even beyond what Congress knew about at the time.

The PATRIOT Act has never been popular among Americans despite its recurring reauthorization from a compliant Congress. Over 400 cities and towns across the country enacted resolutions opposing PATRIOT powers, in addition to eight states, all representing a wide diversity of political cultures.

Would Congress have ever approved these powers had their more recent abuses been anticipated years ago? If recent comments from PATRIOT’s author offer any indication, the answer is no.

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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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Immigration enforcement: a trojan horse?

8:32 am in Uncategorized by Shahid Buttar

Comprehensive immigration reform, along with the fiscal cliff and sequester, has recently dominated Washington. But observers have overlooked how calls for stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.

Conservative members of Congress have demanded tighter enforcement as a condition of considering meaningful reform of federal immigration policy. But enforcement-first immigration reform could wreak havoc with the fundamental liberties of citizens. If libertarians recognized how conservative policy proposals threaten their interests, the debate could shift dramatically.

What enhanced immigration enforcement could look like

Immigration enforcement takes primarily two forms: border security and interior enforcement. Each poses a threat to Americans who value their own freedom. The border security debate hides the most severe potential pitfalls, only because the privacy implications of interior enforcement have at least been discussed in public.

Many conservatives want to lock down our borders even more than our federal agencies already have. Yet American’s borders have never been more secure. In 2012, our government spent $18 billion on civil immigration enforcement, more than combined spending on all agencies that enforce criminal laws.

Proposals to further tighten border security have included increasing the deployment of domestic surveillance drones, expanding immigration checkpoints, building a fence, and adding more agents to the already bloated rosters of CBP and ICE.

Beyond border security is interior enforcement, which Bush and Obama both escalated, reflected in record numbers of deportations. Recent proposals emphasize technology: the controversial E-verify program to force employers to enforce federal immigration law, or similar programs like 287(g), Secure Communities, or the Next Generation Initiative, which co-opt local police and undermine public safety.

Confused premises

Whether at the border or within the US, the demand for tighter enforcement ignores reality: net migration across the southern border has already turned negative, driven by harsh profiling, alongside continuing stagnation in job growth, which has made immigration less economically attractive.

In other words, tighter border security and enhanced interior enforcement are unnecessary, at best. According to Marc Rosenblum from the Congressional Research Service, “additional investments at the border may be met with diminishing returns.”

Beyond diminishing returns, enhanced border security could prove nightmarish — not just for undocumented families, but also US citizens. Border security could diminish our own freedom to travel, while interior enforcement poses a covert threat to privacy.

Interior enforcement and the privacy of Americans

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Clapper v Amnesty: Courts and Congress v Our Constitution

9:30 am in Uncategorized by Shahid Buttar

This article was originally published on the People’s Blog for the Constitution.

US Supreme Court

Tuesday’s decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts’ constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.

Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.

Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.

Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.

A scandal in plain sight

The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting “a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,” including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.

In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.

Aside from generating an earthquake across Washington, the first results of the Times‘ expose included government threats to prosecute the journalists. Their only “crime” was exposing the public to an issue that should never have been secret in the first place.  While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.

In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency’s abuses to continue.

Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.

That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.

Closing the courthouse doors

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Will Obama’s second term finally fulfill his 2008 promises? (Part I)

5:37 pm in Uncategorized by Shahid Buttar

This article was originally published on the People’s Blog for the Constitution and is the first in a forthcoming series articulating specific civil liberties recommendations for the second Obama administration.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Unlike Obama, Bush & Cheney never asserted the authority to kill US citizens based on their speech.

Unlike Obama, Bush & Cheney never signed into a law a statute granting the military the power to detain any American without evidence or proof of crime.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide  that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

The Obama administration’s prosecution of whistleblowers who sacrifice their jobs to defend the public interest has reached unprecedented levels, as have deportations of undocumented workers, their families, and occasionally, even US citizens. Rather than repudiate the Bush & Cheney paradigm, Obama has unfortunately perpetuated it.

A former President’s warning

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

Eisenhower proved prescient. True to his prediction, the contemporary national security racket offends all Americans, regardless of ideology.

Casualties of the national security state: transparency, accountability, and legitimacy

First, it has erected such pervasive secrecy that it threatens the basis for democratic accountability, subverting the consent of the governed on which democratic  legitimacy depends. For years, the NSA operated its dragnet warrantless wiretapping scheme in total secrecy, not only unauthorized by statute, but in direct violation of the Foreign Intelligence Surveillance Act (FISA) enacted by Congress in the 1970s to stop domestic spying.

Every federal court ever to review the program on the merits has struck it down as unconstitutional, yet it persists unabated. Congress bent over backward to rewrite the FISA law in 2008, and appellate courts have thrown out numerous lawsuits challenging it based on the perverse reasoning that, because the NSA’s program is secret, no plaintiffs can prove that they, in particular, have been monitored.

Officials have admitted to violating even the permissive new law. Members of Congress have asked tough questions and received only silence in response. Yet, reflecting a disturbing pattern of bipartisan abdication repeated over the past decade, the House recently voted to reauthorize the 2008 FISA amendments for another five years, even beyond the next administration.

Secret programs violating contrived statutes, especially with the blessing of (supposedly) independent courts, make a mockery of our claim to live in “a land of the free.”

Further installments in this series will examine the ideologically diverse social movements abused by misguided and constitutionally offensive domestic spying activities, as well as the contribution of those programs to the federal budget crisis. The series will conclude by suggesting not one, but two alternative national security agendas for President Obama’s second term.

Photo by leighblackall under Creative Commons license.

The greatest casualty of 9/11: The America we knew

11:31 am in Uncategorized by Shahid Buttar

LibertyReflections on the 9/11 attacks are important and moving. But most overlook the enduring legacy of the attacks, in the form of the vastly greater damage done to American principles over the past decade. Whether in the context of surveillance, torture, or the congressional cowardice that has enabled them, our leaders have sullied the legacy of an America that once inspired the world.

Earlier this summer, when facing a crucial accountability moment for an agency that continues to abuse the rights of millions of Americans, members of Congress asked no tough questions, avoided controversy, and submitted to a White House proposal to entrench the FBI leadership—at the same time as they fought to the knuckles over issues that Congress created in the first place by spending the country into a fiscal black hole and absurdly cutting taxes in the midst of multiple wars.

Most astounding in all this is Congress’s apparent abandonment of its own institutional interests. Even in the face of documented lies by the FBI’s leadership to congressional committees and repeated proof that Congress, the press, and the public are hearing only tiny slices of the whole truth, Congress has failed to use its many tools to seek transparency and investigate executive abuses.

There was a time that America’s leaders took seriously their oaths to defend the Constitution by conducting aggressive oversight of executive agencies. A generation ago, for instance, the Church and Pike Committees investigated many of the same practices that have recurred in the past decade. The failure of their successors in Congress threatens the future of democracy in America and reflects a disturbing pattern of congressional submission to executive power.

Congress began lining up to defend executive abuses in the face of public criticism soon after the 9/11 attacks. Special registration requirements, the PATRIOT Act’s draconian surveillance powers, unprecedented authorities to arbitrarily—and indefinitely—detain individuals on the mere basis of accusation, and major revisions to the FBI Guidelines all generated little debate in Congress.

And while we might find comfort in the hope that a counter-movement would emerge, that hope is misplaced. Despite running on a platform announcing that the “choice between liberty and security” was “false,” the Obama administration has continued—and even expanded—the Bush administration’s surveillance and secrecy. And by reversing course on accountability for torture, the Obama administration affirmed that criminals with enough political connections would receive judges’ robes rather than prison terms.

Even when ordered by multiple courts to release evidence of detainee abuse, the White House refused. In fall 2009, in the midst of a year-long battle to extend healthcare to 42 million underinsured Americans, Congress took less than a week to change the law at the Obama administration’s request so that evidence of the Bush administration’s abuses would remain hidden from the public. This, after abandoning Obama’s original nominee to lead the Office of Legal Counsel at the Justice Department because she favored applying the law equally to all accused criminals, regardless of their political position.

Leave aside that hiding evidence of detainee abuse places our soldiers at risk abroad by driving the recruitment efforts of violent extremists and effectively inviting our enemies to treat our troops in the same inhumane way. Ignore the 2.3 million Americans rotting behind bars—25 percent of the world’s prisoners, in the nation that claims to lead the free world—while politically connected criminals enjoy power, prestige, and even lifetime judicial office. Forget about the sacrifices of the soldiers who gave their lives in WWII to usher in a lost era of peace, or how human rights precedents that our nation established in Nuremberg have been wrecked by our unwillingness to pursue uncomfortable truths.

Think instead about how the Freedom of Information Act (FOIA) came to be: through controversy stoked by grassroots activists who broke into an FBI office and elite critics who used their findings to spark a two-year congressional investigation documenting heinous abuses by FBI and CIA officials. The FOIA stood for 40 years, but when courts interpreted it to require the revelation of Pentagon crimes, Congress quickly joined President Obama to change the law. “Move along. Nothing to see here…”

Think about why the CIA destroyed videotapes documenting torture. And then remember the debate in the wake of Osama bin Laden’s elimination over whether to revive torture, even though the Defense Department said it was unhelpful and claimed to have ended the practice.

The American people voted in 2008 for change, including restoring constitutional protections against unchecked secret dragnet surveillance and accountability for human rights abuses. The abject failure of our government to reflect that mandate reflects how perverted our republic has grown. For a project that took two and a half centuries to build, the past decade has been catastrophic for democracy in America. When future generations look back on our failures, the attacks of a decade ago will be the least of their concerns.


Ten years ago on September 11, 2001, the United States suffered the worst terrorist attack in the nation’s history. In the panic of the weeks that followed, the American government began changing its counterterrorism policies in ways that undermined constitutionally guaranteed civil liberties, culminating in the passage of the USA PATRIOT Act on October 26, 2001. Within two weeks of that law’s passage, on November 10, 2001, organizers in Massachusetts founded the Bill of Rights Defense Committee to fight against that dangerous law and others that followed.

To mark the tenth anniversary of these pivotal events in American history and of our organization itself, the Bill of Rights Defense Committee is running a series of articles looking back on the last ten years. This post is part of that series.

Out of the Frying Pan and Into the Fire: Why the FBI Needs New Leadership

8:15 am in Uncategorized by Shahid Buttar

FBI Director Robert MuellerThe last ten years have witnessed an assault on the constitutional rights of law-abiding Americans, led largely by the FBI. Appointed mere days before the 9/11 attacks, Director Robert S. Mueller III has guided the bureau through the resurrection of many long discredited practices from its COINTELPRO era. Yet, the Obama administration has proposed extending Mueller’s term as FBI director. Congress should reject the proposal and insist on a nominee from outside the bureau to restore accountability, law and order. Just ask Nick Merrill in New York, Joe Iosbaker in Chicago or Ahmadullah Niazi in Los Angeles: three law-abiding Americans whose constitutional rights are among the casualties of the last decade.

The last time Congress extended the term of FBI director was in 1972, to keep J. Edgar Hoover in office. Years later, when the Church and Pike committees finally exposed the notorious counterintelligence program (aka COINTELPRO), Congress discovered that Hoover presided over severe abuses for decades.

During the era of Hoover and COINTELPRO, the FBI’s most famous target was Dr. Martin Luther King Jr., who the bureau targeted with a smear campaign aiming to split up his marriage and drive him to suicide. The National Association for the Advancement of Colored People was accused—without evidence—of subverting the state, as were activists promoting Puerto Rican independence, an end to the war in Vietnam, women’s rights and civil rights for racial minorities including Native Americans and African-Americans. According to the US Senate:

Many of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that … the bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association.

Repeating errors from Hoover’s discredited era hardly offers hope to restore law and order to the FBI. Given the bureau’s history as a recidivist agency notorious for recurring abuses of civil rights, why has the president proposed to extend the director’s term for the first time in nearly 40 years?

According to The Washington Post, the administration simply failed to get its act together in time: “The president’s request that Congress tinker with the 10-year term limit sets a bad precedent…. It may be the path of less resistance to retain an FBI director…. But staffing an administration on schedule is part of the president’s job.” Sen. Chuck Grassley (R-Iowa) agreed that the proposed extension would be “a risky precedent to set. Thirty-five years ago, Congress limited the FBI director’s term to one 10-year appointment as an important safeguard against improper political influence and abuses of the past.”

The Post is correct that the proposed extension threatens the “integrity of the bureau,” and Grassley is right that the precedent is dangerous—although both ignored the bureau’s mounting failures and abuses. The president’s proposal appears only worse when placed in the context of Mueller’s tenure.

Don’t take my word for it. According to my colleagues at the American Civil Liberties Union, “the FBI’s significant misuse of its authorities under the USA PATRIOT Act and the Foreign Intelligence Surveillance Act, the infiltration of mosques, the abuse of the material witness statute, the FBI surveillance of peaceful groups with no evidence of criminal wrongdoing and the mishandling of the FBI watch list have raised significant civil liberties concerns” during Mueller’s tenure. Similarly, a coalition of 46 civil rights organizations wrote to Congress last year, arguing that:

In considering the potential necessity of legislation to protect civil rights and civil liberties, Congress should not grant [FBI policies] artificial legitimacy, nor should the bureau be afforded credibility that it has not only failed to earn, but actively undermined…. [T]he Chairman of the House Judiciary Committee called for the FBI’s General Counsel to be replaced…. As a repeat offender, the bureau is long overdue for intervention by Congress.

When the Senate Judiciary Committee questioned the FBI director about the bureau’s surveillance activities, Mueller essentially lied to Congress, covering his tracks with a private letter to some senators admitting abject lawlessness and disclaiming any meaningful limits on the bureau’s authority. These violations are offensive in themselves; failing to accurately answer crucial Congressional questions in order to evade accountability is even worse.

Each of these problems, alone, is enough to demand change, rather than continuity, at the FBI. Taken together, they indicate a mounting constitutional crisis screaming out for the “change we can believe in” that the president promised three years ago.

Let’s start with the PATRIOT Act. Among other things, PATRIOT expanded national security letters (NSLs): administrative subpoenas immune from review, checks, or balances, demanding private records (often from third parties) while gagging the recipients and preventing disclosure to the public, press or Congress.

Beyond violating the privacy and Fourth Amendment rights of their targets, NSLs also violate the rights of recipients, such as Merrill, an Internet service provider in New York City silenced by the threat of prosecution for simply raising his voice about a letter he received demanding a customer’s private information.

The Justice Department’s internal watchdog has repeatedly examined the FBI’s use of NSLs. Every time, the inspector general documented pervasive, systemic—and even ongoing and expanding—violations by the bureau. The PATRIOT Act dramatically expanded the FBI’s powers, but under Mueller’s leadership, the bureau exceeded even those, repeatedly breaking the few remaining limits guarding the constitutional rights of law-abiding Americans.

And that’s just the beginning. Perhaps to justify its expanding budget in a time of fiscal crisis, the FBI has generated numerous fake “terrorist plots.” The Bureau’s modus operandi has been to recruit ex-convicts, give them huge sums of cash to bribe con men and then train and equip those targets for months (or even years) to commit fake attacks before making dramatic arrests amid sycophantic media fanfare.

In Newburgh, a depressed post-industrial town in upstate New York, the bureau offered tens of thousands of dollars each to four mentally unstable con men (including a schizophrenic and a heroin addict), whose worst real offense appears to be fraud, rather than the bomb plot of which they were ultimately convicted. Sending paid government informants to initiate violent plots presumes the guilt of entire communities on the basis of association and multiplies that offense by profiling according to race, religion or ideology.

Even beyond civil liberties, the strategy is an abject national security failure: profiling overlooks potential threats outside the profile, alienates affected communities, undermines opportunities to gain human intelligence and even encourages the violent extremism that the bureau claims to prevent. Even worse, the strategy does nothing to address real sources of potential terrorism.

In drug investigations, law enforcement agents routinely target producers or distributors—rather than consumers—because prosecuting consumers does nothing to actually reduce the supply of drugs. But under Mueller, the FBI’s counterterrorism efforts have ignored producers (those who propose real plots) and distributors (who recruit others to execute them) to settle for prosecuting consumers of terrorism—and fake ones, at that.

It gets worse. Emboldened by a Supreme Court decision last spring, the FBI began a political witch hunt last fall targeting dozens of peace and labor activists in Chicago and Minneapolis. The raids and secret grand jury investigations not only offend the First Amendment, but also reflect the kind of abuse for which the bureau grew infamous under the leadership of J. Edgar Hoover.

Finally, the bureau has enmeshed itself in the business of immigration enforcement, by supplying to Immigration and Customs Enforcement pre-conviction arrest data from local police departments around the country—even over the objections of local governing bodies. By supporting the Secure Communities program, the FBI is playing a key role going forward in undermining public safety and enabling a continuing “humanitarian crisis” in immigrant communities.

Like the now-infamous J. Edgar Hoover, Mueller has received widespread praise during his tenure for the bureau’s supposedly effective work under his leadership. It took a two-year Congressional investigation and tens of thousands of pages of records and testimony for the FBI’s dramatic abuses under Hoover to finally come to light. Mueller is no different; he has received praise from the administration and the Hill only because the FBI cloaks itself in secrecy, and the many communities raising their voices have been silenced by a mainstream press that has uncritically accepted the official narrative.

Rather than extend Mueller’s term, Congress should insist on a nominee from outside the bureau and heed the calls of former agents who have recommended “[a] wide-ranging Congressional investigation of the sort conducted by the Church Committee,” to uncover further abuses that remain secret. If Congress wants to pass legislation involving the FBI, rather than extend Mueller’s term, it should impose a legislative charter to restore law to a lawless domestic intelligence agency that has, yet again, run amok.

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