NSA’s secretive surveillance program goes to the Supreme Court

 

The US Supreme Court (AFP Photo / Karen Bleier / Files)

Source: Russia Today

http://rt.com/usa/news/surveillance-fisa-supreme-wiretap-324/

The US government insists that Americans don’t have the right to challenge a law that lets the National Security Agency eavesdrop on the intimate communications of anyone in the country, but all of that could now change as early as next week.

The Supreme Court will officially start their second session of the year on Monday, and first on the agenda is a matter that could eventually shatter the government’s ability to order wiretaps on the emails and phones of any US citizen without ever obtaining a warrant.

The Foreign Intelligence Surveillance Act (FISA) was put into place in the 1970s to install safeguards to keep Americans safe from unlawful eavesdropping. Following the terrorist attacks of September 11, though, the George W. Bush administration ordered amendments to the law that have ever since allowed the NSA to monitor the communications of any US citizen as long as the government suspects that they are corresponding with anyone outside of the country.

Last month, the US House of Representatives voted to reauthorize the 2008 FISA Amendment Act (FAA), but not without attracting criticism from some very concerned parties. The American Civil Liberties Union filed a legal brief warning, “Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals.”

Beside from the obvious opposition to the warrantless wiretapping of any American with no explanation, there’s another problem that has put the FAA in the spotlight. The Justice Department has insisted that Americans can’t challenge the eavesdropping provisions because no civilians can say with absolute certainty that they have been targeted by secret surveillance.

The reason Americans can’t prove they’ve been monitored, of course, is because the government won’t give them yes or no answer anytime they’ve been asked.

Each time the question comes up over who has been targeted, the government has defaulted to say that national security prohibits them from disclosing who’s been subjected to NSA spying, claiming state secret privilege to prevent disclosing even the bare bones of their wiretapping program. When two US senators asked the Office of the Inspector General of the Intelligence Community earlier this year, “how many people inside the United States have had their communications collected or reviewed under the authorities granted by section 702” of the FAA, the NSA fired back by saying even responding to that inquiry would be against their rules.

A “review of the sort suggested would itself violate the privacy of US persons,” Inspector General I. Charles McCullough wrote, adding that the request would be “beyond the capacity” of his office and that “dedicating sufficient additional resources would likely impede the NSA’s mission.”

“The overwhelming power of the state secrets privilege makes it nearly impossible for any US citizen to show that he or she was the subject of surveillance, while the inability to prove he or she has been spied on prevents any citizen from having standing to challenge the program,” Frank Matt explains the case this week for the Arab American Institute.

But although the NSA won’t come close to offering any details, the texts of the FISA amendments open up literally any American citizen to government surveillance as long as their emails, phone calls or instant messages are sent to someone abroad, whether it’s a cousin in Canada or an employee working overseas.

“Rather than target its surveillance power at a specific person thought to be the agent of a foreign power, the government can target its surveillance power at a group of people, a neighborhood, a country or a geographic region,” the ACLU insists.

Rep. Dennis Kucinich (D-Ohio) argued on the Hill last month against reauthorizing the FAA, telling his colleagues in Congress, “Everyone becomes suspect when big brother is listening.” Now before any Americans can try to say that the surveillance allowed under those 2008 amendments violate the US Constitution, they need to convince the court that they should be able to bring the matter up.

On Monday, the Supreme Court will hear oral arguments regarding Clapper v. Amnesty International, a case being fought to show that opponents of the FAA have a right to bring their suit up in Washington. Those that call the warrantless wiretapping illegal will have a hard case to fight, though, given that they can’t prove they’ve been watched.

“Unfortunately, the government has tried to block the courts from ever reaching that constitutionalissue, arguing that unless the plaintiffs can prove they will be monitored (which is impossible, since the list of who is monitored is classified), they cannot sue,” former NSA agents-turned-whistleblowers Bill Binney and J. Kirk Wiebe write in an op-ed published in Politico this week.

The US Second Circuit has already ruled in Clapperthat the plaintiffs — attorneys, journalists and activists from human rights organizations — should be able to challenge the constitutionally of those amendments. Because those parties cannot prove that they’ve been personally subjected to the surveillance, though, it has been an uphill battle all the while.

The Brennan Center for Justice out of the New York University Law School notes, “given the nature of their professional work,”the Second Circuit previously ruled that the plaintiffs had “a reasonable fear that they were in fact subject to such surveillance and had to take costly steps to protect the confidentiality of their communications.” That’s enough, they say, to show that the plaintiffs “satisfied the required showing of a concrete injury resulting from the challenged amendments sufficient to establish standing to sue and reversed the contrary finding of the district court.”

“Because the identity of persons subject to surveillance is a government secret, it is highly unlikely that any US persons could ever show that they were in fact the subject of such surveillance. Accordingly, if the plaintiffs-respondents in this case do not have standing, it is likely that serious questions as to whethersurveillance conducted under the 2008 amendments violate the First and Fourth Amendments will escape review altogether,” the center adds.

On their part, the ACLU agrees that the plaintiffs have good reason to believe that they’ve been monitored under the 2008 amendments. “Some plaintiffs communicate with people who have been the targets of surveillance or other US government attention in the past,” the ACLU wrote in last month’s brief, specifically bringing up clients whose jobs require them to, for example, communicate with indigenous rights advocates in Columbia, or corresponds with former CIA detainees for human rights research.

The ACLU adds that an appeals court panel already agreed in 2011 that “plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct,” and the US Court of Appeals for the Second Circuit later refused the government’s attempts to reverse that decision. Now if the Supreme Court can come to the same conclusion, those plaintiffs — the ones who may or may not have ever been surveilled — can finally challenge the constitutionality of the FISA amendments.

“While it may seem like a minor step in the battle against the abuses of FISA, the outcome of this case could have profound implications for future civil liberties cases,” Frank Matt adds in his article this week. equating the government’s defense of the FAA as “Kafkaesque resistance.”

“Based on our combined six-plus decades of experience working at the NSA, we are sure there is only one just outcome,” Binney and Wiebe write to Politico. “The justices should let this case proceed, giving the courts the opportunity to determine whether the executive and legislative branches have gone too far.”

“The NSA cannot be trusted with this power. No agency should be.”

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White House doesnt address privacy concerns in cybersecurity executive order draft

 

Reuters / Lucas Jackson

Source: Russia Today

http://rt.com/usa/news/cybersecurity-executive-order-sharing-362/

A copy of the cybersecurity executive order currently being written by the Obama administration has been leaked to the Web, and the contents do little to calm the fears of those who suspected their privacy concerns wouldn’t be considered.

Only days after journalists with both Federal News Radio and TechDirt.com claimed to have come into possession with a copy of a cybersecurity executive order being readied by the White House, a draft assumed to be authored for the president has been leaked, and in it the Obama administration lays down the groundwork for interim cybersecurity measures following Congress’ failure to come to agreement on legislation of their own. But while the alleged executive order does not discuss the specifics of what the White House has in mind for protecting the country’s e-grid, it also fails to provide any safe guards for making sure that any sharing of personal information does not raise privacy concerns or cause any civil rights violations.

“It is therefore essential that a mutually beneficial arrangement for public-private collaboration be further developed,” the introduction of the draft declares. Over the course of the 18 pages that follow, the Obama administration authors repeatedly remark about the necessity for streamlining the sharing of information held by private sector companies with the federal government. Nowhere, however, has the White House explained how it plans to protect the rights of Americans.

Under earlier cyber legislation considered by Congress, private-sector entities, including businesses and telecom providers, would be offered federal incentives for openly providing the government with personal details offered up by their customers — the American public. Although the leaked copy does not describe any specific-handouts, it heavy handedly avoids explaining anything that will be done to handle the privacy concerns that were caused by earlier attempts at cyber bills.

In one excerpt of the draft, the establishment of a “risk management framework” is discussed, explaining it as something that would “facilitate streamlined collaboration and information sharing mechanisms,” as well as “address interdependencies among critical infrastructure sectors.”

“Because the majority of the Nation’s crucial infrastructure is owned and operated by the private sector, efforts to strengthen and maintain secure, functioning and resilient critical infrastructure required effective and routine collaboration and information exchange between all levels of government and critical infrastructure owners and operators,” it continues.

Elsewhere in the draft, “information sharing”between private and federal entities is considered imperative and a call to arms it made to “facilitate an optimization of resources to advance our collective ability to act when a threat is present or an incident occurs.” Not only does the vague wordage included in the draft leave the possibility of information collection and sharing open-ended, but suggests that this act is only the starting point of what sort of cyber-sharing protocols are yet to be put to use.

The draft, according to the copy released by TechDirt, also calls for the establishment of a “24/7 situational awareness and crisis monitor” system managed by the US Department of Homeland Security, which will “facilitate information sharing, interaction and collaboration among and between SSAs and other Federal department agencies, critical infrastructure, owners and operators and international partners.” In another section, the White House rallies for a National Cybersecurity Center to exist with “the ability to enable and support situational awareness and a common operating picture for cyberspace across private sector, Federal, SLTT and international entities y integrating information obtained from such entities and providing cyber information to support the Secretary of Homeland Security.”

The process, writes the White House, will include “an institutionalized capability to facilitate information sharing.” Nowhere, though, do they discuss how they will facilitate the civil liberties concerns raised by the sharing of sensitive intelligence.

Although the White House has not yet weighed in on the authenticity of the alleged draft, the Obama administration does admit to be at work on readying a copy for release.

"Following congressional inaction, the President is determined to use existing executive branch authorities to protect our nation against cyber threats," National Security Adviser John Brennan confirmed in a letter sent from the White House on Friday. "Specifically, we are exploring an Executive Order to direct executive branch departments and agencies to secure our nation's critical infrastructure by working with the private sector."

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White House demands military prisons for Americans under NDAA

 

The White House Logo.(Reuters / Adrees Latif)

Source: Russia Today

http://rt.com/usa/news/ndaa-hedges-appeal-obama-339/

The White House has asked the US Second Circuit Court of Appeals to place an emergency stay on a ruling made last week by a federal judge so that the president’s power to indefinitely detain Americans without charge is reaffirmed immediately.

On Wednesday, September 12, US District Court Judge Katherine Forrest made permanent a temporary injunction she issued in May that bars the federal government from abiding by the indefinite detention provision in the National Defense Authorization Act for Fiscal Year 2012, or NDAA. Judge Forrest ruled that a clause that gives the government the power to arrest US citizens suspected of maintaining alliances with terrorists and hold them without due process violated the Constitution and that the White House would be stripped of that ability immediately.

Only hours after Judge Forrest issued last week’s ruling, the Obama administration threatened to appeal the decision, and on Monday morning they followed through.

At around 9 a.m. Monday, September 17, the White House filed an emergency stay in federal appeals court in an effort to have the Second Circuit strip away Judge Forrest’s ruling from the week earlier.

“Almost immediately after Judge Forrest ruled, the Obama administration challenged the decision,” writes Chris Hedges, a Pulitzer Prize-winning journalist that is listed as the lead plaintiff in the case. According to Hedges, the government called Judge Forrest’s most recent ruling an “extraordinary injunction of worldwide scope,” and Executive Branch attorneys worked into the weekend to find a way to file their stay.

“The Justice Department sent a letter to Forrest and the Second Circuit late Friday night informing them that at 9 a.m. Monday the Obama administration would ask the Second Circuit for an emergency stay that would lift Forrest’s injunction,” Hedges writes. “This would allow Obama to continue to operate with indefinite detention authority until a formal appeal was heard. The government’s decision has triggered a constitutional showdown between the president and the judiciary.”

Attorney Carl Mayer, a counsel for Hedges and his co-plaintiffs, confirmed to RT early Monday that the stay was in fact filed with the Second Circuit.

“This may be the most significant constitutional standoff since the Pentagon Papers case,” Carl Mayer says in a separate statement posted on Mr. Hedge’s blog.

Bruce Afran, who serves as co-lead counsel along with Mayer, tells Hedges that the White House could be waging a war against the injunction to ensure that the Obama administration has ample time to turn the NDAA against any protesters participating in domestic demonstrations.

“A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the US and saying that DHS is looking for the Islamic leaders of these likely riots,” Afran tells Hedges. “It is my view that this is why the government wants to reopen the NDAA — so it has a tool to round up would-be Islamic protesters before they can launch any protest, violent or otherwise. Right now there are no legal tools to arrest would-be protesters. The NDAA would give the government such power. Since the request to vacate the injunction only comes about on the day of the riots, and following the DHS bulletin, it seems to me that the two are connected. The government wants to reopen the NDAA injunction so that they can use it to block protests.”

Hedges, who has previously reported for papers including the New York Times and the Christian Science Monitor, argued that his job as a journalist requires him to routinely interact and converse with persons that may be considered terrorists in the eyes of the US government.

Under the NDAA, Americans “who was part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners" can be held in prison cells “until the end of hostilities,” vague verbiage that essentially allows for those suspect of such associations to be decided under the discretion of US President Barack Obama or any federal agent underneath him.

“Because the language is so vague in this law,” Mr. Mayer explains to RT, “if any journalist or activist is seen as reporting or offering opinions about groups that could somehow be linked not just to al-Qaeda but to any opponent of the United States or even opponents of our allies”

“I spent many years in countries where the military had the power to arrest and detain citizens without charge,” Hedges wrote when he first filed his suit in January. “I have been in some of these jails. I have friends and colleagues who have ‘disappeared’ into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.”

Monday morning, Hedges once more responded to the White House’s relentless attempts to reauthorize powers granted under the NDAA, asking, “If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future?”

“The decision to vigorously fight Forrest’s ruling is a further example of the Obama White House’s steady and relentless assault against civil liberties, an assault that is more severe than that carried out by George W. Bush,” writes Hedges. “Obama has refused to restore habeas corpus. He supports the FISA Amendment Act, which retroactively makes legal what under our Constitution has traditionally been illegal — warrantless wire tapping, eavesdropping and monitoring directed against US citizens. He has used the Espionage Act six times against whistle-blowers who have exposed government crimes, including war crimes, to the public. He interprets the 2001 Authorization to Use Military Force Act as giving him the authority to assassinate US citizens, as he did the cleric Anwar al-Awlaki. And now he wants the right to use the armed forces to throw U.S. citizens into military prisons, where they will have no right to a trial and no defined length of detention.”

In his latest blog post, Hedges acknowledges, “The government has now lost four times in a litigation that has gone on almost nine months.”

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US Congress approves extension of secret surveillance under FISA

 

U.S. Capitol.(AFP Photo / Win McNamee)

Source: Russia Today

http://rt.com/usa/news/congress-surveillance-act-fisa-980/

The House of Representatives voted Wednesday to extend the government’s power to warrantlessly wiretap Americans for another five years by reauthorizing the 2008 amendments to the Foreign Intelligence Surveillance Act.

Lawmakers in the House agreed from Washington, DC on Wednesday afternoon to reauthorize the Foreign Intelligence Surveillance Act’s Amendments Act of 2008 (FAA), a polarizing legislation that has been challenged by privacy advocates and civil liberties organizations alike around the country. The extension was approved by a vote of 301 to 118.

The Foreign Intelligence Surveillance Act was first signed into law in 1978 by President Jimmy Carter, but amendments added two decades later under the George W Bush administration provide for the government to conduct widespread and blanketing snooping of emails and phone calls of Americans. The FISA Amendments added in 2008, specifically section 702, specify that the government can eavesdrop on emails and phone calls sent from US citizens to persons reasonably suspected to be located abroad without ever requiring intelligence officials to receive a court order.

If the US Senate echoes the House’s extension of the act, the FAA will carry through for another five years until 2017, ensuring the federal intelligence community that they will be able to conduct surveillance on the correspondence of the country’s own citizens well into the future. If no action is taken, the FAA is slated to expire at the end of 2012.

Earlier this year, a plea from two US senators to see how many times the FAA has been used was refused by the National Security Administration. Last month, San Francisco’s Electronic Frontier Foundation filed a lawsuit against the US Justice Department for failing to adhere to Freedom of Information Act requests for documents pertaining to the program.

“The FISA Amendments Act (FAA) of 2008 gave the NSA expansive power to spy on Americans' international email and telephone calls,” the EFF explained in an official statement made after the suit was filed. “However, last month, in a letter to Senator Ron Wyden, a government official publicly disclosed that the NSA's surveillance had gone even further than what the law permits, with the Foreign Intelligence Surveillance Court (FISC) issuing at least one ruling calling the NSA's actions unconstitutional.”

Sen. Wyden, a Democratic lawmaker from Oregon who has also sit on the Senate intelligence committee for several years, originally asked for Senate to place a hold on the vote this past June. This week, Sen. Wyden tells Reuters, "My hold is on and it will stay on," although that plea does not apply to the House, however, where lawmakers appeared eager on Wednesday to power through the vote.

So determined were some lawmakers to proceed, in fact, that the rules of the debates preceding Wednesday’s vote called for no more than one hour of discussion before ballots were cast. Several congressmen, including lawmakers that planned to vote yes on the FAA extension regardless, proposed a two year extension as a compromise, but no new amendments were allowed to be tacked on before Wednesday’s vote.

Despite opposition on and off the Hill, the FAA has received praise from some of Washington’s most elite members of the government, including Attorney General Eric Holder and long-standing lawmaker Rep. Lamar Smith (R-TX), the sponsor of the FAA renewal who also infamously urged Congress to approve the since-defeated Stop Online Piracy Act, or SOPA, a broad and dangerous Internet legislation that threatened to reshape the Web as we know it.

In his address at Northwestern University School of Law this past March, Mr. Holder said section 702 of the FAA “ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security,” but emphasized the fact that only persons thought to be outside the US — not Americans — can be targeted. When Sens. Wyden and Udall asked to know how often that snooping involved Americans at all, however, they were told by the NSA’s Inspector General that a “review of the sort suggested would itself violate the privacy of US persons.”

On his part, Sen. Wyden has written, “that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act . . . Then it is possible that this number could be quite large.”

“Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American,” the lawmaker wrote in an official press release earlier this year.

Rep. Smith, the sponsor of both this bill and SOPA, has said, “We have a duty to ensure the intelligence community can gather the intelligence they need to protect our country.”

On Thursday, Rep. Smith claimed, “Foreign nations continue to spy on America to plot cyber-attacks and attempt to steal sensitive information from our military and private sector industries,” and that Congress has “a solemn responsibility to ensure that the intelligence community can gather the information” necessary to hinder these attempts.

Rep. Dan Lungren (R-California) added on Wednesday from the Hill that reauthorizing the FAA is “critical to the protection of the American people,” claiming that the United States, “as a nation had not done enough to connect the dots to warn us sufficiently to protect” against another terrorist attack on par with the ones that devastated America on September 11, 2001.

Rep. Trey Gowdy, a Republican congressman from South Carolina, also used the attack on the Twin Towers to justify the necessity of extending the FAA.

“If we could come together to remember 9/11, surely we can come together to prevent another one,”

said Rep. Gowdy.

Opponents of the act, however, say that the attempts to do as such come at a cost too great for civil liberties.

“We’ve been told that we can’t even tell how many people are being subjected to this process located in the United States, and that we don’t know and they can’t tell us,” Rep. John Conyers (D-Michigan ) pleaded earlier this year in opposition to the act. “I think we can get a little bit closer. There can be some reasonableness. It’s this kind of vagueness that creates in those of us in the Congress, suspicions that are negative rather than suspicions that are positive.”

“Why can't we know how many people are affected by FISA amendment act in the US?” Rep Conyers asked. “This kind of vagueness creates suspicions.”

Former Democratic presidential hopeful Rep. Dennis Kucinich (D-Ohio) said on his own part that those suspicions are even more validated since the Justice Department has declined to adhere to a Freedom of Information Act request for information on the FAA, explaining on Wednesday, “Everyone becomes suspect when big brother is listening.”

Rep Hank Johnson (D-GA) also threw his weight behind efforts to reject the act on Wednesday, saying it the FISA amendments allow for “illegal surveillance of an untold number of American citizens” with absolutely no oversight.

“Not even the NSA knows the extent to which FISA amendment acts have potentially been approved,” Rep Earl Blumenhauser (D-Oregon) added from the House floor before the vote.

The American Civil Liberties Union reports that, every day, the NSA intercepts and stores around 1.7 billion emails, phone calls, text and other electronic communications thanks to laws like FISA. To put it into perspective, they add, “that’s equivalent to 138 million books, every 24 hours.”

“After four years, you’d hope that some basic information or parameters of such a massive spying program would be divulged to the public, or at least your rank-and-file member of Congress, but they haven’t,” says Michelle Richardson, a counsel at the ACLU’s Washington Legislative Office. “Only a small handful of members have either personally attended classified briefings or have staff with high enough clearances to attend for them.Sen. Ron Wyden — who has been on the Senate Intelligence Committee for years—has even been stonewalled by the Obama administration for a year and a half in his attempts to learn basic information about the program, such as the number of Americans who have had their communications intercepted under the FAA.”

“Can you believe that 435 members of Congress who have sworn to uphold the Constitution are about to vote on a sweeping intelligence gathering law without this basic information?” she asks.

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