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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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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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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.

Fazaga v. FBI: Eroding democracy, in two dimensions at once

8:15 am in Uncategorized by Shahid Buttar

On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.

FBI seal

Are they above the law?

The ruling is especially surprising given the judge’s previous criticism of the FBI for lying to him in court.

Fazaga v. FBI addressed claims by a series of southern Californians challenging a long running secret infiltration of their faith institutions by an ex-convict and undercover FBI informant named Craig Monteilh. After being promised a six figure payment to infiltrate mosques across southern California—and even to record sexual encounters with women in those communities to enable subsequent blackmail—Monteilh blew a whistle and joined a case brought by the Council on American-Islamic Relations; Hadsell, Stormer, Richardson & Renick LLP; and the ACLU of Southern California.

US District Judge Cormac J. Carney of the Southern District of California dismissed much of the case this week (leaving intact claims against individual FBI officers under the Foreign Intelligence Surveillance Act), holding that the state secrets privilege and sovereign immunity essentially preclude the suit from moving forward against the government.

News outlets such as The Los Angeles Times have featured analysis from ACLU attorney Ahilan Arulanantham, who correctly noted that Judge Carney’s ruling is “contrary to the basic notion that the judiciary determines what the law is and holds the government to it,” and that the ruling essentially “exempt[s] huge swaths of government activity [from] judicial oversight.”

Missing from most reports, however, are a recognition of the multiple ways in which Carney’s decision erodes democracy.

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What Do We Celebrate this July Fourth?

3:41 pm in Uncategorized by Shahid Buttar

When the United States championed democracy, freedom, and opportunity, it made sense to celebrate the Fourth of July.  But are we still promoting those values? If we are paragons of neither opportunity nor freedom, what exactly do we celebrate today?

Our Statue of Liberty bears an inscription welcoming the world’s “tired and poor…huddled masses yearning to breathe free.”  Our open arms which once greeted strangers (on whose backs our country was built), however, have been replaced by laws like Arizona’s SB 1070, copycat laws around the country, and the recent Supreme Court decision upholding provisions that encourage racial profiling. liberty crying Pictures, Images and Photos

Liberty itself is a fading memory, a lyric in an anthem that few Americans today understand, even as millions sing it at sporting events and during today’s holiday.

Robert Samuelson’s Is the U.S. a land of liberty or equality? reviews a duality within America’s political culture.  Samuelson writes that “Americans’ self-identity springs from the beliefs on which this country was founded,” including values of equality and liberty that often stand in tension.  He correctly notes that “in today’s politically poisoned climate, righteousness is at a premium and historical reality at a discount,” which in turns helps “explain[] why love of country has become a double-edged sword, dividing us when it might unite.”

While Samuelson’s observation of political dysfunction is compelling, his analysis is flawed. It examines a conflict between two values, neither of which is visible in today’s United States.

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