When one power is constrained (or simply not broad enough), interpret other powers to be unrealistically and shockingly expansive and shield that interpretation from public scrutiny…at least that’s what the FBI would tell you.

The FBI’s annual report on its use of spying powers released late last month reveals a meteoric 900% rise in the use of Section 215 of the PATRIOT Act under the Obama Administration (see graphic). This provision, reauthorized in 2011, allows the FBI to force unwilling businesses to hand over “any tangible things” simply upon showing the closed-door Foreign Intelligence Surveillance Courts (FISA court) that they are “relevant” to an “authorized investigation” into “international terrorism or clandestine intelligence activities.” In a break with foundational Fourth Amendment principles, the person whose “tangible things” are sought need not be suspected of any criminal activity themselves. The FBI merely must show the FISA court that those “things” sought are “relevant” to an investigation into international terrorism.

So just how broad is this power?

A few courageous senators in the know have hinted that Americans would be “stunned” by the scope of the spy powers claimed under Section 215; the only problem is the government has kept this interpretation secret. Not only does this lack of transparency prevent public discourse on what the limits of the government’s powers should be, it also drips with irony under a president that denounced such broad powers as a “fishing expedition” while in the Senate.

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For the month of February, sequestration held the focus of the political arena, but in March, that focus has shifted to issues of government surveillance and Americans’ constitutional rights.  Senator Ron Wyden (D-OR) has been spearheading the political debate over surveillance and privacy, spurred by the warrantless wiretapping activities of the National Security Agency (NSA), but also by the nomination of John Brennan to head the CIA, and the release of the white paper explaining the process behind Obama’s “kill list.”

The white paper is not a legal document, but rather a summary of a classified memo prepared by the Justice Department’s Office of Legal Counsel.  Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU), says the publication of the memo affirms:

The power that the government has to carry out the targeted killing of American citizens who are located far away from any battlefield, even when they have not been charged with a crime, even when they do not present any imminent threat in any ordinary meaning of that word. So it’s a pretty sweeping power that’s been set out.

The memo argues that, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

According to the memo, then, the government does not need any evidence to justify the targeted killing of American citizens. (more…)

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.

• 2/7, Andrea J. Prasow, Foreign Policy, Enhance This Interrogation
• 2/6, Frederic J. Frommer, Miami Herald, Walton appointed presiding judge of FISA Court
• 2/6, Jennifer Martinez, The Hill, House Intel chairman says US ‘under siege’ from cyberattacks
• 2/6, Natasha Lennard, Salon, NDAA is back in court
• 2/6, Amy Goodman, Democracy Now!, Part 2: Daniel Ellsberg and Jacob Appelbaum on the NDAA, WikiLeaks and Unconstitutional Surveillance
• 2/6, Michael D. Shear and Scott Shane, New York Times, Congress to See Memo Backing Drone Attacks on Americans

BORDC has continued raising awareness of domestic surveillance and military detention laws recently extended by Congress and the Obama administration, informing radio hosts and their audiences in cities from coast-to-coast about how FISA and the NDAA abuse the rights of all Americans.

On January 17th, BORDC’S Shahid Buttar spoke with Ernest Hancock, host of ”Declare Your Independence” radio on LRN.FM, about the extension of FISA over the holiday season, while the public was focused on the so-called fiscal cliff. He explained that the National Security Agency’s warrantless wiretapping scheme “is not limited to persons of interest,” and instead monitors all Americans.

In addition to emphasizing the secrecy of the program’s operation and the threat it poses to dissent, Buttar also noted that the program’s budget is entirely secret, consuming at least dozens of billions of dollars in a reportedly unsustainable federal budget.

Buttar also shared analysis with Air Cascadia (KBOO 90.7FM in Portland, OR) with host Chris Andrae on January 22, before an hour long interview on Lockwood Phillips’ “Viewpoints” on the Talk Station, (WTKF 107.1FM in North Carolina). He also spoke at length on January 23 with hosts Ron Pinchback and Kymone Freeman on Speak Easy, their program on We Act Radio (WPWC 1480AM in Dumfries, VA).

On January 24, Buttar spoke at length with host Kim Dobson on “Parallel University” (KAOS 89.3 FM in Olympia, WA). Buttar suggested that criticism of President Obama’s inauguration address largely missed the mark, blaming the President for articulating progressive values even though his speech also referenced shared constitutional norms that his administration has abused in practice.

As he explained in a Huffington Post article on January 28 (cross-posting a post originally published on this blog):

Critics of Mr. Obama have described his inaugural address as radical.  But insisting on values as fundamental as “equality before the law” and the “enduring strength of our Constitution” are hardly radical. Indeed, they are simply restatements of principles that have long united America.

If observers want to criticize the president, they should instead challenge his derogation in practice of the same values he professes in lofty speeches. Rhetoric is no substitute for reality, and given the president’s unfortunate extension of the Bush-Cheney assault on civil liberties, his administration deserves criticism.

Buttar’s comments were also recently featured by the Kansas City InfoZine, as well as UPI.com.

For a comprehensive view of BORDC’s latest news coverage, and to find out how to reach staff for comment, and more, view our online press resources.

If observers want to criticize the President, they should challenge his derogation in practice of the same values he professes.

Critics of Mr. Obama have described his inaugural address as radical.  But insisting on values as fundamental as “equality before the law” and the “enduring strength of our Constitution” are hardly radical.  Indeed, they are simply restatements of principles that have long united America.

If observers want to criticize the President, they should instead challenge his derogation in practice of the same values he professes in lofty speeches. Rhetoric is no substitute for reality, and given the President’s unfortunate extension of the Bush-Cheney assault on civil liberties, his administration deserves criticism.

Forgotten promises

The President seems no more inclined than his neo-con predecessors to heed longstanding constitutional limits on executive power. Indeed, his first term witnessed several extensions of the Bush-Cheney legacy.

Extrajudicial assassination using armed drone aircraft, the use of unmanned aerial drones for unwarranted domestic spying, the NSA’s dragnet domestic wiretapping, the FBI’s resurrection of COINTELPRO, the unprecedented crackdown on immigrants under President Obama, the use of immigration enforcement as a pretext to create a national biometric identification scheme for all Americans (including citizens), continued racial profiling in the drug war, and the new threat of military detention within the US, all reflect a dark side of President Obama’s legacy.

I’ve written at length about the secrecy pervading the administration’s national security efforts, which butcher constitutional rights in many ways that are unfortunately even worse than the sum of their parts.

If President Obama wants to leave a legacy in his second term, he need cite no transformative agenda. He need merely remember his own campaign promises from 2008, or the need to ensure accountability for documented recent violations by federal agencies, or alternatively the oath of office he adopted again this week.

Several looming policy issues offer opportunities for the administration to finally walk the President’s talk in its second term.

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• 1/22, Curt Goering, Huffington Post, In President Obama’s Second Term, Accountability for Torture
• 1/22, Carl Franzen, TalkingPointsMemo.com, Removed Full Body Airport Scanners Being Redeployed By Military, Law Enforcement
• 1/21, Byron Tau, Politico, Drone protest closes street downtown
• 1/21, Susan Hennessey, Lawfare, A Belated FISA Amendment Act Reauthorization Act Update
• 1/20, Stephen Dinan, Washington Times, Four years after Obama’s signature promise, Gitmo is still open
• 1/20, Ellen Nakashima, Washington Post, No classified FISA court rulings made public as a result of review
• 1/16, Vicki Divoll, New York Times Opinion Pages, Who Says You Can Kill Americans, Mr. President?

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.

While last week’s mainstream hysteria shifted from fiscal cliff-jumping to debt ceiling collapse, BORDC engaged media outlets to discuss disturbing developments endangering our constitutional rights.

On Monday, January 7, Flashpoints  (on KPFA 94.1 PM in the San Francisco Bay Area) invited BORDC’s Shahid Buttar and Nadia Kayyali to break down domestic surveillance under the recently re-authorized FISA Amendments Act (FAA). Describing the counterintuitive construction of the FAA, Kayyali notes:

[The Foreign Intelligence Surveillance Act (FISA)] was amended in 2008…and this amendment changed even the minimal requirements of review of this surveillance by the FISA court, and now it allows for warrantless wiretapping that will sweep up Americans’ communications.

Kayyali’s observation suggests that the FAA, in amending a law created to establish judicial oversight, actually undermines its very purpose. Buttar, highlighting the secrecy with which the National Security Agency (NSA) violates our privacy rights, adds:

[I]n spite of knowing that the [NSA] has violated the law, no one knows the context in which that violation took place. No one knows how many people [were affected]. No one knows even whether or not it’s been stopped or whether that violation remains ongoing.

Also on Monday, BORDC’s Michael Figura appeared on Progressive Radio Network’s The Smart Show, as well as The Monitor (on KPFT 90.1 FM in Houston),  to extend the discussion of unconstitutional federal programs. Highlighting the treatment of former CIA agent John Kiriakou, Figura states the chilling consequences for individuals who defy our government’s  illegal conduct:

the only person to ever go to prison so far in the history of the whole [CIA] torture program is someone who blew the whistle on it.

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