Posts Tagged ‘Department of Justice’

Glaring omissions and unasked questions in “The Unknown Known”

Tuesday, April 1, 2014 at 1:05 pm by

Original commentary by Sharon Adams

rumsmileErrol Morris’ documentary on former Defense Secretary Donald Rumsfeld, based on 33 hours of interviews with Donald Rumsfeld, is set to open in theaters on April 2. Morris has been on the interview circuit talking up the new flick, writing op-eds in the New York Times, and perpetuating the invisible wall of immunity around Rumsfeld and the others who violated human rights as part of the “war on terror” started by the Bush Administration.

Morris states that he wanted to know why the U.S. went to war in Iraq. He describes his motivation:

 “I had a desire to make a very specific kind of film. I call it history from the inside out. This was also true of McNamara, Fog of War. How do they see the world? The memos, the oral history is a way in. I didn’t interview 15, 20 people. I interviewed one person.”

GOP Reps call for criminal investigation for DNI’s lies to Congress

Friday, December 20, 2013 at 9:06 pm by

CLAPPER-perjurerOn Thursday, seven members of Congress wrote a scathing letter to the Attorney General requesting a criminal investigation into potential perjury by the Director of National Intelligence, James Clapper. The letter — signed by Republican representatives Reps. Darrell Issa (CA), James Sensenbrenner (WI), Trent Franks (AZ), Blake Farenthold (TX), Trey Gowdy (SC), Raúl Labrador (ID) and Ted Poe (TX) — reads in part:

One of the hallmarks of American democracy is that no one is above the law….

Director Clapper…was asked a question and he was obligated to answer truthfully. He could have declined to answer. He could have offered to answer in a classified setting. He could have corrected himself immediately following the hearing. He did none of those things despite advance warning that the question was coming….

Director Clapper’s willful lie under oath fuels the unhealthy cynicism and distrust that citizens feel towards their government and undermines Congress’s ability to perform its Constitutional function.

Earlier this year, in March, Clapper testified before the Senate Select Committee on Intelligence about domestic data collection conducted by the NSA. Senator Ron Wyden (D-OR) posed a tough question, asking whether “the NSA collected any type of data at all on millions or hundreds of millions of Americans.” Clapper responded “No, sir,” but revelations from whistleblower Edward Snowden revealed Clapper’s denial as a lie, for which he later apologized in writing. If anything, Wyden’s question was an understatement; in fact, the NSA collects telephony metadata for every call placed within the US.

Clapper has responded inconsistently to accusations that he lied to Congress under oath, stating alternately that he answered in “the least untruthful manner possible,” that he misunderstood the question, and finally that he just “didn’t think” of the specific section of the Patriot Act that the NSA claims authorizes bulk data collection. To some lawmakers in Washington, however, “Oops” is not good enough.


Protestors face down urban shield war games in Oakland CA

Tuesday, October 29, 2013 at 1:10 pm by

Between October 25 and the 28, an intimidating list of over 150 police departments, federal law enforcement agencies and private corporations participated in a series of militarized war games using the city of Oakland California as if it was their personal playground.

The exercises unfolded as various “real world” scenarios where local law enforcement agencies competed against one another from a central “Red Command.”

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“In past years, Urban Shield has featured hostage-taking scenarios involving animal rights activists, and the bombing of an oil platform by Anarchists. In an interview, Sheriff Ahern said the scenarios are sourced from threats made to law enforcement and government agencies over the past five to ten years that have been documented by the Northern California Regional Intelligence Center. “Many of those threats have used the formats of anarchy, in the form of white supremacy, of Muslim extremism,” Ahern said. “We simply use threats we’ve received over the last five to ten years that have been documented through our regional intelligence center.” (Eastbay Express)


The drone tide continues to rise

Wednesday, July 3, 2013 at 9:48 am by

In the last couple of weeks, drones have been doing what they do best: surreptitiously showing up everywhere, from local law enforcement to the FBI.

As the NSA scandal continues to grow, compounded by the release of ever more documents that demonstrate the pervasive reach of surveillance on US soil, the significance of this should not be overlooked. Drones are part and parcel of the cancerous domestic surveillance state.

On June 19, on the tails of the first revelations of the NSA spying scandal, the Federal Bureau of Investigation (FBI) Director Robert Mueller came before the Senate Judiciary committee for an oversight hearing.

In his introduction to the hearing, Chairman Patrick Leahy (D-VT) reminded the committee that the FBI needed to strike the balance between safety and civil liberties. The purpose of the hearing was to “review the broad intelligence authority Congress has granted the FBI” and to “ensure…that they do not violate the privacy rights and civil liberties of law-abiding Americans.”

It seems clear that the FBI is misusing that broad intelligence authority. During the hearing, Senator Chuck Grassley (R-IA) questioned Director Mueller on whether the agency was using drones for domestic surveillance, based on his understanding from the Department of Justice that the DEA and ATF have drones.

The answer was yes, although the Director was quick to qualify that by saying “In a very, very minimal way, and very seldom.”


BORDC in the news: June 3-June 19, 2013

Wednesday, June 26, 2013 at 7:34 am by


Recent news cycles have provided numerous opportunities for BORDC to inform the public about issues including revelations about Department of Justice (DOJ) attacks on the press, and secret dragnet surveillance by the National Security Agency (NSA). Over the past several weeks, BORDC spokespeople have informed communities and broadcast audiences all across the country about these abuses and their profound impact on all Americans.

On June 3, BORDC Executive Director Shahid Buttar appeared on Counterpoint (broadcast from Bridgeport, CT on WPKN) to discuss the disturbing implications for a supposedly democratic republic of seizing press phone records in secret. Shahid explained that:

Freedom of the press is one of the defining elements of a free society…The Justice Department’s…outright seizure of records from the Associated Press…strikes a blow at the heart of the First Amendment…[T]he press can’t be free if its sources are available to the state…When anonymity is gone, when the press can’t report on…state abuses, that is definitionally part of authoritarianism…[W]e are tinkering…with the underpinnings of our society.

Shahid goes on to suggest that degrading the liberties of the American people advances the objectives of terrorists, and even parallels government practices in areas where violent radicalism thrives. He also emphasizes local activism as most viable means of countering rights violations at the federal level.

On June 10, WBAI New York City featured Shahid’s explanation of NSA surveillance programs twice, in the morning with Esther Armah’s Morning Wake Up Call, and again on Robert Knight’s Five O’Clock Shadow.


Comey FBI nomination will put spying in spotlight

Friday, June 7, 2013 at 8:25 am by

Last week, the Obama administration anonymously leaked that James B. Comey would be its nominee to direct the Federal Bureau of Investigation (FBI). Comey formerly served as an Assistant United States Attorney, the Deputy Attorney General, Senior Vice President and General Counsel of Lockheed Martin, and General Counsel of the largest hedge fund in the world.

Mr. Comey’s time as Deputy Attorney General has gained the most attention due to a dramatic 2004 incident where, as Acting Attorney General, he rushed to the bedside of a sedated John Ashcroft to refuse the renewal of the Bush Administration’s illegal warrantless wiretapping program.

When Bush began to go ahead with the program anyway, FBI Director Robert Mueller, Comey and Ashcroft all threatened to resign. However, after unknown changes were made in the spying program, the men withdrew their threats of resignation.

Put another way, Comey affirmatively approved warrantless wiretapping of Americans. At his confirmation hearing, Comey should explain exactly what changes were made to the program, and why he believed they were sufficient to allow warrantless spying on people in the United States.

Putting the issue into sharp focus, Comey’s nomination will come on the heels of a recent leak of a court order that provides a window into the dragnet surveillance of Americans’ telephone communications initiated by the FBI. As reported by the Guardian, The Foreign Intelligence Surveillance Court (FISC) order gives the National Security Agency (NSA) daily records of every phone call made by Verizon Business Customers. The revelation is just one piece of evidence pointing a much broader spying program conducted by the National Security Agency.

In recent years, the FBI has not only been conducting widespread wiretaps but also targeting, surveilling and entrapping innocent Americans. Such odious tactics are ripe for review during the confirmation of a new FBI director. The current operating guidelines for the FBI allow the FBI to investigate people without any indication of wrongdoing, including the use of informants and physical surveillance. Congress should seize this opportunity to demand that law enforcement respect constitutional protections for speech and privacy.


5 Overlooked lessons from the AP subpoena controversy and other leak investigations

Wednesday, May 22, 2013 at 9:28 am by

The following post by Cindy Cohn & Trevor Timm was originally published on Electronic Frontier Foundation’s  blog Deeplinks, on May 20, 2013.

The journalism world has been rightly outraged by the Justice Department dragging the Associated Press (and now a Fox News reporter) into one of its sprawling leak investigations. As we wrote last week, by obtaining the call records of twenty AP phone lines, “the Justice Department has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news.”

But there are several other important lessons that this scandal can teach us besides how important free and uninhibited newsgathering is to the public’s right to know.

1.  Weak Privacy Laws That Doomed AP Affect Everyone

The AP detailed in its letter to the Justice Department how its privacy was grossly invaded even though the government accessed only the call records of its reporters and not the content of their conversations. We completely agree. Unfortunately, this isn’t just a problem in the AP investigation. Law enforcement agencies routinely demand and receive this information about ordinary Americans over long periods of time without any court involvement whatsoever, much less a full warrant.

For example, according to information released by the phone companies to Rep. Ed Markey, Sprint alone received a staggering 500,000 subpoenas for call records data last year.

The DOJ’s decision to dive into these call records shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine—which holds that anything you give to a service provider, or that a service provider collects as part of providing you a service—can retain no reasonable expectation of privacy. In an era where email is stored by our providers, cellphone companies keep records that track our location and cloud services hold our documents, it’s long past time to bring our interpretation of the Fourth Amendment and statutory electronic privacy laws in compliance with the 21st Century.

In response to the AP scandal, a bipartisan coalition in Congress just introduced a bill to partially fix this problem called The Telephone Records Protection Act. The bill would require the Justice Department to get a judge’s approval before seeking these records. At EFF, we think the government should have to go even further than a court order: a judicial warrant showing the kind of probable cause required by the Fourth Amendment should be the standard. But this bill is certainly an improvement over administrative subpoenas, which don’t need a sign-off from a judge at all and allow the Executive branch to seek information without any external check.

2.  Phone Companies May Give Up Your Information Without Telling You

As the New York Times reported, the AP is still examining if and when any telephone companies tried to push back on the overbroad requests for its call records. “But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena,” the Times said. And it also seems clear that the AP itself wasn’t given notice before their phone company turned over the records.

In EFF’s 2013 “Who Has Your Back” report, which tracks several ways in which communications companies can help protect user privacy, we give a star for promising to notify users about government demands for data whenever whenever the company is not legally prevented from doing so. Notably, Verizon does not have such a notification policy and did not receive a star. In fact, Verizon was the only company to receive zero stars.

This isn’t a small problem or just a problem for journalists. Verizon received 260,000 similar subpoenas for call records last year. The government requests this information with regularity, and given the phone companies control the data, communications company policies are all that stand between you and governmental overreach.

Users should demand that their communications companies notify them when the government comes seeking information, unless they are legally barred by a court order.


The Fourth Amendment and Warrantless DNA Testing

Saturday, April 6, 2013 at 9:56 am by

Lady JusticeOn February 26, the Supreme Court heard oral arguments in the case Maryland v. King, which raised the question of whether the Fourth Amendment permits warrantless DNA collection upon an individual’s arrest but without charge.  The case began on April 10, 2009, when Alonzo King was arrested for pointing a shotgun at a group of people.  He admitted his guilt, was originally charged with a felony assault and ended up pleading guilty to a misdemeanor.

At the time of King’s arrest, the police swabbed his mouth to gather a DNA sample, which matched DNA from an unsettled rape case four years prior – King was convicted of first-degree rape and sentenced to life in prison.  His warrantless DNA sample was the only evidence linking him to the rape case; the police had no probable cause to sample his DNA.  Patricia Millet, who heads the Supreme Court practice at Atkin Gump, explained this by saying ,”DNA is more commonly used not to identify the individual but to link the individual to other crimes for which he is not otherwise a suspect (or at least there is not probable cause to think he committed the other crime.”

There are several problematic facets to warrantless DNA collection, the first of which is that this specific form of testing appears unconstitutional according to our Fourth Amendment protections.  This is the ground on which the Supreme Court will determine whether police can conduct DNA testing upon arrest, but there are far more complex issues beyond the simple constitutionality of this sampling.

Invasion of Privacy

Justice Stephen Breyer argued that DNA tests are “no more intrusive” than fingerprints but “much more accurate.”  This is a gross overstatement on Breyer’s part – unlike fingerprints, DNA tracks an individual’s medical history, ancestry, gender – even whether or not an individual is adopted.  It is a wonder that Justice Breyer argued DNA tests are “much more accurate,” being that in 2011, over 10,500 DNA samples were taken, only 19 of which led to arrests.  Not only, then, are DNA samples fairly unproductive, resulting in a meager percentage of arrests, but they also expose some of our most personal information.

Racial Bias

DNA tests are already used as racial dragnets among whole families and communities of color, The Nation argues. Because the majority of individuals stopped by police are African American and Latino men, DNA samples taken in these instances are inherently skewed, representing a disproportionate number of men of color.  The Nation writes, “DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems.  By 2008, Britain’s National Database stored DNA from 27% of the black population and 77% of black males.” It is imposible to overstate the racial, age and gender bias present in DNA databases.


Obama might explain why he can drone you, but he’ll be wrong

Monday, March 11, 2013 at 7:14 am by

In Attorney General Eric Holder’s recent contentious appearance before the Senate Judiciary Committee, he hinted that President Obama would soon make a speech on the topic of drone usage for targeted killing. Holder alluded to President Obama’s promise for more openness on the issue in his State of the Union address:

“We have talked about a need for greater transparency in what we share, what we talk about,” said Holder, who added that with the release of more information, “there would be a greater degree of comfort that this government does these things reluctantly but also in conformity with international law, with domestic law and with our values.”


The executive’s track record on this has been dismal. The administration first denied the existence of any sort of drone or targeted killing program, continued to use the denial as a shield against liability for its killings in court, while beginning to announce its reasoning informally in speeches by various executive officials.

Any actual documentation of the administration’s logic for assassinating  both citizens and non-citizens was unseen until a “white paper“ summarizing a portion of the goverment’s logic was leaked to the press.

Finally, the administration has begun to show some of the actual (still classified legal) memos outlining the criteria for extra judicial killing to selected members of congress.  However, the public still doesn’t know under what circumstances the President and his lawyers think would justify their murder from the sky.

Transparency would be a good first step. Senator Rand Paul (R-KY) staked out a courageous position on in his recent filibuster, finally forcing Eric Holder to declare:

Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

However, this representation (which begs the question: how does Holder define combat?), disclosure of all of the legal memos around drones, and a clear speech from President Obama explaining his necessity for keeping a “kill list” (or “disposition matrix,” if you prefer the administration’s sanitized euphemism) are only the beginning.


Ultimately, the people of the United States and their all too often cowed representatives in Washington need to demand a stop to murder, killing and assassination by drones in contravention of the Constitution, international law and human rights law. The broad claims staked out in the leaked white paper make clear that the administration is currently operating under a rubric that violates all three.

While some constitutional issues are esoteric, the protections of due process under the Fifth Amendment are not.  The government does not have the right to deprive you of your life, after review of your perceived sins by government officials on “Terror Tuesdays.”

Some in Congress and the punditocracy have suggested that the due process problem be solved by so called “drone courts” where the government would secretly present the evidence against you to a judge who would then sign a death warrant. While paying some lip service to the idea that an independent judiciary can constrain executive power, a secret court authorizing murder is not a check or balance in any meaningful way.


Don’t Get Mad, Get Even: Challenge Prosecutors, not Scapegoats

Tuesday, January 15, 2013 at 9:52 am by

Bigelow and Ortiz are each scapegoats, focal points for debates forced by the failures not of individuals, but of entire institutions.

Two tragic events last Friday have prompted heated debate about torture, secrecy, freedom of information, and prosecutors run amok. But are critics assigning blame where due, or merely where convenient?

And is the convenient option too charitable, letting powerful systems of oppression off the hook in favor of scapegoating only the most visible perpetrators?

First (only because it’s an anniversary and was therefore predictable) was the 11th year of military detention at Guantánamo Bay, where prisoners under US control have endured torture–and in some cases, been murdered in custody while their deaths have been presented in public as suicides.

The military detention scheme at Guantánamo has existed for over a decade, but the use of torture remains clouded in secrecy.

In the middle of the raging healthcare debate in 2009, the one thing Congress could agree on was giving the Pentagon authority to hide evidence of its own criminal trail. Even though multiple courts ordered our government to release photos and videos held by the Pentagon that document widely implemented torture policies, that substantial body of criminal evidence remains secret to this day.

One of President Obama’s key appointments to the Justice Department was stalled for a year, before being withdrawn, because she committed the heresy of suggesting that DOJ actually enforce the law by prosecuting officials for human rights abuses.

Ultimately, Obama’s decision to resign accountability for torture ensured that discredited warmongers remained in Washington, where they continued their assault on the Constitution. A year ago, they secured a law extending military detention powers into the US, even beyond the Bush administration’s wildest dreams.

What do we know about torture? Apparently, only what Hollywood tells us.

Kathryn Bigelow’s controversial film Zero Dark Thirty supplies the public with plenty of facts (whether real or imagined) to fill the vacuum. Is it a work of fiction? A documentary? A Rorschach test?

Legions have rightly criticized Bigelow’s depiction of torture, lambasting the filmmaker’s careless insinuation that torture was ever useful (which it wasn’t) and reminding moviegoers that even if it was, it would remain illegal. Many have distributed flyers at theaters (like this one that we designed at BORDC) or chosen to boycott her work in awards ceremonies.

But who are the real culprits? Is it Hollywood’s fault that the public remains in the dark?

Three particular figures have gotten off especially easy–first when they committed crimes, again when they left government to return to positions of influence instead of prison cells, and yet again as Bigelow draws fire for depicting their crimes.  Dick Cheney, John Yoo, and Ninth Circuit Judge Jay Bybee are the former officials who authorized torture in the first place, hid their illegal decisions from the American public, and then lobbied to avoid accountability for their universally abhorred crimes.

Bigelow is no hero. But it’s not her fault that the American people don’t have enough facts to recognize her movie as fiction.

Why haven’t reporters been allowed to read the Senate’s 6,000 page, bipartisan report slamming torture? Blame that on the Obama administration. Or better yet, raise your voice and demand that the facts be allowed to speak for themselves.

Then came heartbreaking news of Aaron Swartz’s suicide.

A bona fide genius and dedicated public servant, Aaron did more for the world in his 26 years than most people do in a lifetime. (Full disclosure: my colleagues and I at BORDC often collaborate with Demand Progress, the advocacy organization that Aaron co-founded.)

His supporters have many good reasons for anger at the senseless prosecution that drove Aaron from a world that needs him, and others like him, so desperately. But who most deserves our criticism?