• 3/28, Ryan Gallagher, Slate, Details Revealed on Secret U.S. “Ragtime” Domestic Surveillance Program
• 3/1, Elise Ackerman, Forbes, Security Experts Warn State Governments Face Losing Battle With Hackers
• 2/28, Colin Moynihan, New York Times, In Bay Area, a Fragile Relationship Between Muslims and F.B.I.
• 2/28, Charlie Savage, New York Times, Soldier Admits Providing Files to WikiLeaks
• 2/28, Matt Sledge, Huffington Post, Rajesh De, NSA General Counsel, Defends Warrantless Wiretapping Program
• 2/28, Patrick McGreevy, Los Angeles Times, California lawmakers propose rules, tax breaks for drone aircraft
• 2/27, Cory Doctorow, Boing Boing, Supreme Court turns down ACLU bid to kill NSA warrantless wiretapping

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.

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5-4 decision in Clapper vs. Amnesty allows mass warrantless wiretapping to continue

Today, the US Supreme Court (SCOTUS) decided, in a monumental 5-4 case, that the secrecy of government surveillance can perversely insulate dragnet warrantless wiretapping scheme from judicial review. In one fell swoop, the case effectively invites the government to continue spying on law-abiding Americans en masse, renders the judiciary institutionally complicit in constitutional violations, and places the National Security Agency (NSA) above the law.

(Read the full decision online)

The NSA’s warrantless wiretapping program caused an earthquake when first revealed in 2005, by New York Times journalists who risked prosecution to alert the public to a secret government scheme to wiretap the entire phone system and the Internet.

Having previously prompted threats of a mass resignation by Justice Department officials under the Bush administration, the program was sensibly struck down as unconstitutional by multiple federal courts, only to be reversed on appeal. Today’s decision allows government surveillance to continue in secret, without meaningful checks and balances.

While five Justices claimed that alternative sources of review are available, their finding buries the court’s head in the sand. For instance, SCOTUS defers to the secret FISA court, which according to the Director of National Intelligence, has previously found parts of the NSA’s program unconstitutional. Yet despite repeated requests, even Congress does not know the details of that judicial decision, let alone whether and how the program has been modified to satisfy constitutional limits.

According to BORDC’s Shahid Buttar:

The Clapper decision is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government. 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.

Congress must reverse its premature decision to extend the Foreign Intelligence Surveillance Act (FISA) to provide the check on executive abuses that the Court has abdicated.

Buttar has written about the NSA’s warrantless wiretapping scheme since Congress amended the FISA statute in 2008, for sources including Huffington Post.

BORDC has covered more recent developments, including the recent re-authorization of the 2008 FISA amendments by Congress.

The following commentary was written by Nick Sibilla, a former BORDC Summer of 2012 intern.

A new bill by state Rep. Nicholas Schwaderer would restore due process in Montana and counter the National Defense Authorization Act (NDAA). Passed by Congress and signed by President Obama in December 2012, the NDAA codifies indefinite detention for those accused of supporting al-Qaeda and its “associated forces,” a very broad term. Even American citizens could be held indefinitely in military custody without due process.

If passed, the bill would “prohibit state cooperation with federal officials regarding indefinite detention.” LC 1810 would ban indefinite detention within the state of Montana. In addition, the state attorney general would be instructed to report any efforts made by federal agents to implement the NDAA. So far, the bill has garnered two cosponsors: state Rep.  Mike Miller and Daniel Zolnikov. Both are Republicans, as is Schwaderer.

In an email interview, Schwaderer proclaimed his anti-NDAA bill was a way “to support the Constitution and defend liberty:”

“This legislation is a fulfillment of my commitment to Montanans to support the constitution and defend liberty. This is the result of hard work by a bipartisan coalition of folks who recognize that the concept of indefinite detention without charge or trial is repugnant to a free society.”

A freshman representative, Schwaderer is already earning a reputation for what he calls his “small government, conservative principles.” Schwaderer was the only representative to vote against giving more compensation to Montana legislators. He’s cosponsored a bill to restrict drones in Big Sky airspace. A broader bill recently passed by the Montana Senate prohibits weaponizing drones and bans using intelligence gathered by drones in court.

This Republican is also leading a push to repeal Montana’s outdated “sodomy” law. The Montana Supreme Court and the U.S. Supreme Court have both struck down sodomy bans as unconstitutional. Yet under state law, anyone who has sex with someone of their same sex could still face a potential $50,000 fine and 10 years imprisonment. “In Montana we have a legacy of respecting people’s rights. This flies in the face of what we’re about,” Schwaderer said in an interview with the Huffington Post.

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On January 31, the San Francisco Bay Guardian newspaper reported on a recent Board of Supervisors meeting addressed by Police Chief Greg Suhr. Required under the Safe San Francisco Civil Rights ordinance adopted by the Board last year, the Police Chief’s report was supposed to disclose to the Board the circumstances of the SFPD’s collaboration with the FBI.

The Bay Guardian quoted BORDC’s NLG Legal Fellow, Nadia Kayyali, who worked on the campaign to secure the ordinance even before joining BORDC in fall 2012:

“We were very clear with the chief about what we expected to see,” Nadia Kayyali of the Bill of Rights Defense Committee, a coalition member, told the Guardian. She also said the report “was slipped on the agenda at the last minute,” despite assurances that the coalition would be notified and given a chance to respond. “It does show a lack of regard for the ordinance and the work that went into it.

The Bay Guardian also quoted Nasrina Bargzie with the Asian Law Caucus, who said “she was disappointed and dismayed by what the report included, ‘but we’re going to keep pushing on it.’”  Guardian editor Steve Jones went on to explain:

The controversy surrounding possible SFPD-FBI spying on people who haven’t violated any laws – which is illegal under local and state law – broke almost two years ago when the American Civil Liberties Union obtained a secret 2007 SFPD-FBI memorandum of understanding placing SFPD officers under FBI command. It seemed to bypass local restrictions adopted after past SFPD scandals involving police spying on political groups.

Suhr tried to quell the controversy by issuing a general order banning officers from participating in surveillance that violates local rules or the state constitution’s privacy protections, but activists pushed for a stronger assurance. The Board of Supervisors then voted 6-5 to codify those protections into city law, but Suhr objected and Lee vetoed the measure. A weaker version calling for annual reports and Police Commission reviews of future SFPD-FBI MOUs was approved unanimously by the board.

Now, it appears the SFPD has done little to soften the “trust us” stance that it has taken from the beginning, frustrating activists who had pushed for more, here and in other cities that do domestic surveillance with the FBI.

January 2013, Vol. 12 No. 01

View this newsletter as a webpage: http://www.bordc.org/newsletter/2013/01

Washington greets the New Year by assaulting your rights

Congress and White House extend domestic military detention powers in NDAA

On January 2nd of this year, President Obama signed the NDAA (National Defense Authorization Act) of 2013 into law, without any provisions to restore due process in the face of surviving sections of the 2012 NDAA that continue to threaten indefinite domestic military detention.  While President Obama strongly criticized the bill that reached his desk, his criticism focused on congressional restrictions on the military’s authority to transfer Guantanamo detainees who had been cleared for release.  As with prior laws that assault the Constitution, however, he ultimately signed the bill into law.

Congress and White House extend pervasive domestic surveillance powers in FISA

On December 30th, President Obama signed the Foreign Intelligence Surveillance Amendments Act (FAA), extending the National Security Agency’s (NSA) program of unconstitutional warrantless wiretapping for another five years.  FISA is essentially a codification of the illegal domestic spying program begun in secret under the Bush administration.

BORDC News

BORDC in the news

In the last month, BORDC and coalitions we support across the nation have appeared in various press outlets to promote concerns about constitutional rights and the powers of police and intelligence agencies that abuse them.

Raise your voice to demand the truth about US torture

Last month, the Senate Intelligence Committee voted to approve a 6,000 page report on torture based on a three year investigation that reviewed over 6 million pages of documents from the CIA and other intelligence agencies. While the bipartisan Senate report is sharply critical of torture, however, it remains secret.

Legal Fellow Nadia Kayalli speaks in Seattle, WA

On January 19th, BORDC Legal Fellow Nadia Kayyali will be the keynote speaker  at a forum on racial profiling focusing on the Secure Communities Initiative (S-Comm).

Read the latest news & analysis from the People’s Blog for the Constitution

Have you read BORDC’s blog lately? The People’s Blog for the Constitution has attracted a growing audience that has tripled over the past year. Featuring news & analysis beyond the headlines on a daily basis, it offers a great way to stay up to date and informed.

Highlights from the past month include:

• Changes to S-comm reveal the program’s flaws, don’t go far enough by NadiaKayyali
• “Zero Dark Thirty” pushes the torture debate into popular discussion by AlokBhatt
• Federal court allows government to keep targeted killing justification secret by Michael Figura
• Defense bill halts hope of closing Guantanamo Bay by Annette Macaluso
• Zero tolerance for torture by Emily Walsh
• Don’t Get Mad, Get Even: Challenge Prosecutors, not Scapegoats by Shahid Buttar

Grassroots News

Patriot Award: Andrew Bashi

Every month, BORDC honors an individual who has made an outstanding contribution in his or her community to the movement to restore civil liberties and the rule of law. This month, the Patriot Award goes to Andrew Bashi from Chicago, IL for his extraordinary and committed activism and organizing.

Mourn an Internet hero and take action in his honor

On January 11, our country lost a luminary in the suicide of Aaron Swartz, a brilliant young man who, according to BORDC’s Shahid Buttar, “did more for the world in his 26 years than most people do in a lifetime.” In the wake of Aaron’s tragic death, the Electronic Frontier Foundation has launched an online petition to fix the draconian computer crime law that exposed Aaron to 13 felony counts of hacking and wire fraud for a victimless crime actually committed in the public interest.

Grassroots updates

To get involved in any of these efforts, please email the BORDC Organizing Team at organizing@bordc.org. We’re eager to hear from you and help support your activism!

• Alameda County, CA: Coalitions mobilize to challenge local surveillance drones, immigration enforcement
• Los Angeles, CA: Broad protests on 11th anniversary of Guantanamo challenge torture and detention under NDAA, while Stop LAPD Spying Coalition continues to mobilize
• Dallas, TX: Advocates host press conference and demonstration to creatively challenge detention, torture, NDAA
• Fayetteville, AR: Communities come together to address anti-immigrant profiling
• Chicago, IL: Coalition rallies first to challenge mass incarceration, and again to confront detention under NDAA and torture
• Washington, DC: Activists mobilize against torture at release of Zero Dark Thirty
• New York, NY: Coalition presses towards victory on racial profiling as federal judge blocks NYPD profiling in the Bronx
• New Britain, CT: Coalitions address anti-immigrant profiling, military detention without trial

Law and Policy

The FBI vs. Occupy

It’s no secret that the FBI and local law enforcement have targeted the Occupy movement since its inception in fall 2011, sometimes to the degree of planting informants and manufacturing criminal charges.  However, recently released documents reveal that monitoring by federal law enforcement was even more extensive than imagined.

Zero Dark Thirty: Kathryn Bigelow and the Senate keep us in the dark about torture

Kathryn Bigelow and Mark Boal’s Zero Dark Thirty opens with a title that declares “The following motion picture is based on first-hand accounts of actual events.” With this title and relentless publicity, Biegwlow has suggested “What we were attempting is almost a journalistic approach to film.’’ Zero Dark Thirty not only misrepresents the facts surrounding the role of torture in Osama Bin Laden’s capture, it also uses film technique to align the audience with the torturers.

Programs under development to further erode privacy through cybersecurity, domestic drone aircraft

In 2010, the Wall Street Journal reported on the initial phases of a NSA program now known to be called “Perfect Citizen.” Despite its brazenly Orwellian title, the NSA allegedly designed Perfect Citizen to prevent cyberattacks on federal agencies and computer systems that control critical infrastructure.  FOIA documents procured by the Electronic Privacy Information Center (EPIC) confirm the concern with protecting power grids and other vulnerable systems.

New Resources and Opportunities

Want to spy on your neighbor? The surveillance state comes to a store near you

The next time your family celebrates a birthday, consider a gift for the whole family: a functional aerial surveillance drone. Verizon Wireless has you covered—you can purchase your very own quadro-copter, along with two HD cameras, online.

In addition to President Obama’s second inauguration (on which the People’s Blog for the Constitution will soon post a comment), yesterday was also a national holiday celebrating the life and work of Dr. Martin Luther King, Jr. In 2008, American Radio Works produced King’s Last March, an insightful documentary by Kate Ellis and Stephen Smith that NPR re-broadcast yesterday.

The program reminds listeners about the life of Dr. King, including not only his inspiring civil rights work, but also the disturbing examples of state surveillance and “neutralization” to which he was subjected for years preceding his untimely death.

With the FBI’s ressurrection of its war on the Constitution, BORDC’s 2011 video, COINTELPRO 2.0, offers a timely reminder of this unfortunate history:

According to American Radio Works, the “FBI’s War on King” included “an extensive program of surveillance and harassment…[u]nder the guidance of FBI Director J. Edgar Hoover – and with the permission of Attorney General Robert F. Kennedy….”

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The revelation last month that the FBI treated the Occupy movement, from the beginning, as a potential criminal or terrorist threat perhaps comes as no surprise given the FBI’s past repression of other political movements demanding change. Indeed, we reported last June that the FBI was resurrecting COINTELPRO, a program which targeted civil rights activists in the 1960’s including Dr. Martin Luther King, Jr., to “neutralize” Occupy.

What is new, though, is the revelation that the FBI as well as other law enforcement agencies were implementing a wide-ranging policy of close collaboration with the private sector to counteract the efforts of Occupy. In so doing, the government favored the interests of corporate America over the First Amendment rights of the American people.

These findings came to light based on documents disclosed to the Partnership for Civil Justice Fund (PCJF) pursuant to a Freedom of Information Act request. The documents show that the FBI met with the New York exchange in August 2011 to discuss Occupy protests that did not start until a month later. The FBI, in fact, had been conducting high-level surveillance of Occupy activists even though it recognized, paradoxically, that they called for peaceful protests.

Surveillance extended to Occupy activity taking place on college campuses and the FBI had informants at many local Occupy encampments. At least one representative of the State University of New York at Oswego provided intelligence to the FBI on the SUNY-OSWEGO Occupy encampment.

In one report circulated among the FBI, the Department of Homeland Security, and corporate America, Occupy protests taking place at West Coast ports were described as “criminal activity.” The same group issued tips to its corporate clients regarding “civil unrest,” advising them to dress conservatively, avoid political discussions, and “avoid all large gatherings related to civil issues” because “bystanders may be arrested or harmed by security forces using water cannons, tear gas or other measures to control crowds.”

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With the rise of a new year and our 113th Congress, BORDC continues its mission to inform and mobilize the public around significant civil liberties concerns.  While mainstream news outlets inundated the national consciousness with “fiscal cliff” hyperbole, we occupied  the airwaves last week to engage quiet-but-critical issues facing the American people.

On Thursday January 3,  Flashpoints on KPFA 94.1 featured BORDC Communications Specialist Samantha A. Peetros to discuss indefinite detention.  Sections 1021 and 1022 of the National Defense Authorization Act (NDAA) allow the military to detain anyone in U.S. territory on suspicion of committing or supporting terrorism.  Leary of the national security institution’s broad definition of “terrorism”, and vague standards for  passive activities that merit detention, a class of journalists and activists initiated Hedges v. Obama to challenge the NDAA’s prejudicial effect on their work and civil liberties.  However, as Peetros observes:

the problem here is it’s not just limited to journalists, it’s not just limited to activists; it applies to all of us. …It’s so broad and it can be applied in almost any circumstance that the government wants to when…considering potential terrorist activity. …And unfortunately, so far, attempts to constrain that have been eliminated in Congress.

Though indefinite detention of Americans indicates a disturbing future, the greatest hope for freedom lies in the American people.  Peetros suggests that preserving our rights requires “raising awareness [and] encouraging education”, because without a persistent, collective voice, “this [issue] will disappear again and people will forget we are letting Congress erode our civil rights”.

Also on Thursday, Samantha appeared on Syndicated News to offer perspective on the Foreign Intelligence Surveillance Act (FISA).  Initially enacted to prevent domestic spying, FISA now authorizes the clandestine activity Congress intended to prohibit.  Peetros describes warrantless wiretapping by the National Security Agency (NSA) as:

…the most invasive dragnet surveillance program. It goes beyond whether or not you’re the person [the government is] targeting…they’re eavesdropping on all Americans, and it’s an issue of your constitutional rights.

On Friday January 4, BORDC Legal Fellow Michael Figura extended the discussion of FISA on Radio Islam.  Regarding the warrantless wiretapping program’s evasion of judicial review, Figura explains:

…every time the courts have examined this on the merits, they said its unconstitutional.  But the problem is the government has claimed secret privilege… what they’ve said is: because the program is secret, you can’t prove you’re being spied on, and you can’t have your day in court.

Figura’s analysis illustrates the treachery of warrantless wiretapping under FISA.  Although state secrecy deters government accountability, Figura encourages Americans to engage grassroots organization and “stand up against spying by law enforcement”, citing demonstrations in California, Massachusetts, and New York City as effective examples of public protest against the curtailment of civil liberties.

Appearing Wednesday January 2, on Al-Jazeera’s Inside Story, BORDC Executive Director Shahid Buttar expounded on the malicious nature of FISA.  Protesting that “civil liberties are dead for all intents and purposes”, he condemned the obscurity of NSA operations and their very real impact on Americans’ lives.  Buttar observes:

No one knows how much money the NSA squanders to abuse our rights, but it’s budgetary salt on a constitutional wound, and either of those elements of secrecy alone should be enough to disqualify this law, and at least force the executive branch to answer the tough questions.…These are questions that gravely concern the rights — and the pocketbooks — of all Americans.

Although the feds utilize secret courts and overclassified documents to elude public oversight, grassroots organization and pervasive action against constitutionally subversive programs can effectively secure our civil liberties.

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• 1/7, Scott Shane, New York Times, Counterterror Adviser to Be Named Chief of C.I.A.
• 1/7, Carol Rosenberg, The State (SC), Guantanamo is a place of sometimes puzzling secrecy
• 1/7, John W. Whitehead, Rutherford Institute, The Magician’s Con: Renewing FISA and the NDAA Under Cover of the Fiscal Cliff Debates
• 1/6, Editorial, Los Angeles Times, Rights and the ‘war on terror’
• 1/6, Michael Kirkland, United Press International, Spying on Americans, phase 2
• 1/5, Jason Cherkis and Zach Carter, Huffington Post, FBI Surveillance Of Occupy Wall Street Detailed