In a press conference Thursday, May 16, at the White House, President Obama stated he had no regrets over the AP scandal:

Obama said he made “no apologies” for being concerned about national security but that the free flow of information was important to him as well.

What exactly is this “free flow” of information? According to The Guardian blogger Glenn Greenwald:

If you talk to any real investigative journalist, they will tell you that an unprecedented climate of fear has emerged in which their sources are petrified to talk to them. That the Obama administration has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined has already severely chilled the news gathering process. Imagine what message this latest behavior sends to journalists and their sources: that at any moment, the phone records of even the nation’s most establishment journalists can be secretly obtained by the DOJ, which has no compunction about doing so even in the most extreme and invasive manner.

This mind set is obviously not very conducive to a “free flow” of information. So apparently, President Obama’s “free flow” of information is only pertaining to that information which benefits his administration:

The Obama administration does not mind leaks of classified national security information; to the contrary, they love such leaks and are the most prolific exploiters of them. What they dislike are leaks that they don’t approve and/or which don’t glorify the president.

Interestingly,  the media is suddenly up in arms about this abuse by the Obama administration. This passage from the Washington Post had Greenwald laughing audibly:

President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.

The Justice Department’s collection of journalists’ phone records and the Internal Revenue Service’s targeting of conservative groups have challenged Obama’s credibility as a champion of civil liberties – and as a president who would heal the country from damage done by his predecessor.

Greenwald’s response?

You don’t say! The Washington Post’s breaking news here is only about four years late. Back in mid-2010, ACLU executive director Anthony Romero, speaking about Obama’s civil liberties record at a progressive conference, put it this way: “I’m disgusted with this
president.” In the spirit of optimism, one can adopt a “better-late-than-never” outlook regarding this newfound media awakening.

The news media should take a several steps back from its cozy relationship inside the Beltway and return to its adversarial position as a watchdog of government. We, the people, need the media on our side, not the side of the politically elite.

Important criticism of the Justice Department’s suppression of press freedom remains inadequate.

Finally finding its voice after five years of relative silence, the mainstream establishment press finally woke up this week to criticize the Obama administration’s assault on the First Amendment. But, while this criticism is important and necessary, it remains days (indeed, years) late, and much more than merely a dollar short.

Is this America or China?

The Justice Department’s seizure of Associated Press telephone calls without prior notice, in violation of fundamental First Amendment principles, and extending the Obama administration’s already hypocritical and authoritarian crackdown on government whistleblowers, is indeed a travesty worthy of this week’s onslaught from the press, Congress, and the public. Reaching even beyond the office phone lines of reporters and editors to also invade the privacy of their home and cellular calls, the Justice Department’s tactics seem more fitting in China than the United States.

Noting that “[b]y obtaining these records, the DOJ has struck a terrible blow against…freedom of the press and the ability of reporters to investigate and report the news,” the Electronic Frontier Foundation also noted the broader need to “require more than a mere subpoena…whether the target is the news media or an ordinary citizen.” Few others, however, beyond Glenn Greenwald, have recognized that the assault on press freedom is merely an extension of a longstanding policy shared by presidents from both of the major political parties.

To its credit, the Washington Post expanded the context of its reporting, writing this week that:

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As the hunger strike at Guantánamo has widened to include all of the men held there, President Obama recently announced that he would renew a push on Congress to close the prison and examine his administrative options. However, the implication that Congress is preventing the closure of Guantánamo is at best disingenuous.

Obama has the power to transfer prisoners from Guantánamo right now.  The president himself has placed a uniform ban on transferring any prisoners to Yemen, a collective punishment policy that he could reverse immediately. He could also release prisoners by issuing a certification through the Department of Defense and State that the administration has steps to assure the secure release and monitoring of the prisoners.

Moreover, President Obama’s seemingly newfound rhetorical opposition to indefinite detention runs counter to the policies of his administration. While he may have tried to move the prisoners to the United States, he still wanted them indefinitely detained, in violation of the Constitution and International Law. This has left even supporters of his detention policy befuddled.

The Guantánamo hunger strike can only be ended by the administration taking meaningful steps to close the prison. Those steps can begin immediately by releasing the 86 men who have been cleared for release by the government itself. The remaining men should either be given a speedy and fair trial or released as well.

The men at Guantánamo are resolute to peacefully protest through a hunger strike until they receive justice. One of them, Moath Hamza Ahmed al-Alwi put it this way:

I do not want to kill myself. My religion prohibits suicide. But I will not eat or drink until I die, if necessary, to protest the injustice of this place. We want to get out of this place. It is as though this government wishes to smother us in this injustice, to kill us slowly here, indirectly, without trying us or executing us.

Currently, 21 of the men, including Mr. al-Alwi, are bring force-fed in violation of medical ethics. The force-feeding process is brutal, as was described by one prisoner in an New York Times op-ed and can constitute torture, if undertaken as a form of punishment.

As the hunger strike continues, people across the world are pushing for the closure of Guantánamo and an end to indefinite detention. A change.org petition started by a former Guantánamo prosecutor, calling for the prison’s closure, has gained over 100,000 signers in less that two days. From May 17-19, people of conscience will stand together to demand that President Obama close the United States’ forever prison.

The George W. Bush Presidential Library  and Museum opened to the public this week, a great unveiling that has  reignited the debate about the Bush-era “enhanced interrogation techniques” (read: torture).  One of the most controversial elements of the new museum is a video narrated by former Secretary of State, Condoleezza Rice.  The video explains that President Bush asked two “very important” questions in his decision to use torture in the post-9/11 “War on Terror”: was it legal?  And was it necessary?  When allegedly answered “yes” to both of these questions, President Bush proceeded in making detention and torture an instrumental part of his administration’s work.

The real surprise of the video, though, is in Rice’s suggestion that the United States was spared further terrorist attacks because of Bush’s detention and torture policies.  Rice argues that, “The fact that we have not had a successful attack on our territory traces directly to those difficult decisions in a new kind of war after September 11th.”  This is a dangerous allegation to make, and it underscores the need for our government to reconsider the effectiveness of detention and torture, a fight of which Senator Mark Udall (D-CO) has been at the forefront.

Udall correctly commented that the video in the George W. Bush Presidential Library and Museum “could potentially leave thousands of visitors to the library with the false impression that this wrongheaded program prevented terrorist attacks here in the United States.”  Udall seeks to correct the record on the Bush administration’s detention and interrogation program and to declassify the Senate Select Committee on Intelligence more than 6,000 page report on that program.

Understanding the effectiveness of Bush’s detention and interrogation programs is particularly crucial as the U.S. now faces a new moral dilemma posed by the Obama administration’s drone programs and the new executive power to legally authorize the targeted killing of American citizens.  To move forward without rectifying past misuses of executive power would likely make any hope of future executive accountability unattainable.  In order to hold the Obama administration to a higher humanitarian standard and reject the executive power to assassinate American citizens, we must demand truth and accountability from past administrations as well.  It is for this reason that Udall’s push to correct the record on the post-9/11 detention and interrogation programs and declassify the 6,000 plus page report is so crucial.  You can support Senator Udall’s fight by signing BORDC’s petition to declassify the Senate Select Committee on Intelligence report.

This blog post was authored by guest blogger Patrick Thronson, a 2013 JD Candidate at the University of Michigan School of Law.

The March 6 filibuster of John Brennan’s nomination to lead the CIA  was a rare occasion in which bipartisan voices in the Senate united with those of the family of a slain American teenager, other civilian victims of the CIA’s drone program, and a nation now growing willing to face the truth about its long slide away from its core constitutional ideals.

Senator Rand Paul’s (R-KY) speech has helped abate the helplessness many feel towards our nation’s disastrous course toward ever-eroding individual rights and endless war, by showing that one speech from a junior senator can compel the nation’s vast national security apparatus to account for itself.

A wide array of members of Congress, as well as prominent media pundits praised Senator Paul’s efforts. In his filibuster, Sen. Paul quoted material authored by numerous liberal commentators, including Glenn Greenwald, Conor Friedersdorf, Charles Pierce, and Kevin Gosztola. Although Senator Paul’s efforts garnered their most vocal support from Tea Party Republicans, a recent poll indicates a substantial majority of the public backs his position rejected targeted assassination of American citizens without trial.

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On Thursday, April 18, despite unresolved  and integral privacy issues, the House of Representatives voted against privacy and approved the Cyber Intelligence Sharing and Protection Act (CISPA). The legislation passed with 288 votes in favor and 127 against. While the majority of yes votes were Republican, nearly half of the Democrats in the House voted yes.

The vote comes on the heels of the CISPA Week of Action, in which corporations and Americans made their opposition to the bill clear. Companies such as Craigslist and Firefox took part and thousands of people contacted their representatives in Congress to express their concern around CISPA. Earlier this week, the White House also issued a veto threat, stating:

[T]he administration still seeks additional improvements and if the bill, as currently crafted, were presented to the president, his senior advisers would recommend that he veto the bill.

CISPA passed out of the House Intelligence Committee last week by a vote of 18-2. The bill was marked up in a closed session on Thursday, April 10, despite urgings from the privacy and civil liberties community to the contrary. BORDC, along with 40 other organizations, signed a letter urging an open and transparent markup. The closed markup begs the question: if the bill presents no privacy concerns, why not move it forward in a transparent and open way?

Unsurprisingly, the markup did not yield a significantly improved version of the bill. The committee voted down four amendments that would have significantly increased privacy protections. On the floor, the House voted down further privacy amendments, including one amendment that:

would have ensured companies’ privacy promises — including their terms of use and privacy policies — remained valid and legally enforceable in the future. Another would have curbed police ability to conduct warrantless searches of CISPA-shared data.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions, brushing over the legal protections from liability for negligent actions by corporations that the bill creates. This is hardly surprising, consider the corporate interests behind the bill, and the dollars they have spent on lobbying. In fact, CISPA supporters spent 140 times as much lobbying as CISPA opponents. Similarly, CISPA supporters have donated 13 times more money in campaign contributions as CISPA.

However, it appears that the Senate has not been convinced. The bill still has to be approved in the Senate, and it appears that they are not eager to move.  Senate reticence and the White House veto threat are good news, but anyone concerned about online privacy should continue to check out Electronic Frontier Foundation’s CISPA action page.

The beginning of April brought HB46 to the Missouri statehouse.  The bill, titled the “Preserving Freedom from Unwarranted Surveillance Act,” bans use of government surveillance drones over Missouri properties.  Representative Casey Guernsey (R) drafted the legislation in response to the Environmental Protection Agency’s (EPA) use of drones to search for clean water violations on farms and large feedlots in western states.  Representative Guernsey explained the legislation simply, saying, “I believe the citizens of this state deserve and expect a reasonable amount of privacy.”  The bill, now under review in the state senate, would prohibit an individual, state, or other entity’s use of a drone “to gather evidence or other information relating to criminal conduct or a violation of a statute or regulation except to the extent authorized in a warrant.”  The bill specifically names farms and other agricultural industry as being exempt from any warrantless surveillance.  At risk of otherwise being unsafe or imprudent, the bill ”does not prohibit the use of a manned aircraft, drone or unmanned aircraft by a law enforcement agency if the agency possesses reasonable suspicion that, under particular circumstances, swift action to prevent imminent danger to life is necessary or by a higher education institution conducting certain educational, research, or training programs.”

Some members of the Missouri state legislature argue that, even with the latter caveat, the bill offers dangerous protections.  Representative Jeff Roorda (D) said that by including manned aircrafts, the bill, “goes way too far. It disables law enforcement’s ability to keep us safe.”  Representative Guernsey allegedly responded by saying, “If you live where I live and you followed what was going on all of last year of the government literally spying on farmers in Iowa and Nebraska I think you’d feel a little bit differently, especially if you were a farmer.”

Idaho governor  C.L. “Butch” Otter (R) also signed a bill into law on Thursday which would restrict the use of drone aircrafts by police and public agencies as the use of unmanned aircrafts within borders is increasing.  The passage of this bill into law makes Idaho the second state in the U.S. (after Virginia) to restrict pilotless aircraft use due to privacy concerns. In most cases, the statute requires law enforcement agencies to get a warrant in order to collect evidence about suspected criminal activity via drones.  The only exceptions to this are if the case involved illegal drugs, public emergencies or search-and-rescue missions.  The law also forbids surveillance of individuals or property without written consent.

The bill introduced in Missouri and the law passed in Idaho combat the Federal Aviation Administration’s eventual goal to allow routine drone operations in U.S. airspace, and challenge the government’s tendency to ignore personal privacy for the “sake of safety.”  BORDC has drafted model legislation to address domestic surveillance drones on a local scale within townships, cities and states, and we urge activists to use this model to start movements in their area.  BORDC is also available to consult on organizing campaigns, and we can be contacted at organizing [at] bordc [dot] org.

The Cyber Intelligence Sharing and Protection Act (CISPA) is continuing to move through Congress despite major, unresolved privacy issues.

Several weeks ago, privacy advocates, consumers associations, and technology companies all worked together during the Cyber Intelligence Sharing and Protection Act (CISPA) Week of Action to address the major privacy flaws in CISPA, H.B. 624. The week of action was a major success, with companies such as Craigslist and Firefox taking part and thousands of people contacting their representatives in Congress to express their concern around CISPA. However, the fight over CISPA is just beginning. Last week, CISPA passed out of the House Intelligence Committee by a vote of 18-2.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions. Yet as EFF’s Mark Jaycox correctly notes:

The best example of a dangerous undefined term in the bill is found within the overly broad legal immunity for companies. The clause grants a company who acts in ‘good faith’ immunity for ‘any decisions made’ based off of the information it learns from the government or other companies. . . Companies should not be given carte blanche immunity to violate long-standing computer crime and privacy law. And it is notoriously hard to prove that a company acted in bad faith, in the few circumstances where you would actually find out your privacy had been violated.

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President Obama came to office promising government transparency and accountability, but throughout his presidency, has acted more aggressively than any other president to silence government whistleblowers who might expose corruption, fraud and general wrongdoing.  Since 2009, Obama has used the World War I-era Espionage Act six times to prosecute government officials suspected of leaking classified information.  A Bloomberg report on this intimidation campaign summarized the objections this way: “the president’s crackdown chills dissent, curtails a free press and betrays Obama’s initial promise to ‘usher in a new era of open government.’”

The logic behind the prosecution of whistleblowers is that a government has the right to protect itself and its own best interests, and as a result, should be allowed to punish treasonous citizens.  Woodrow Wilson argued that the Espionage Act allowed the government to protect itself against “insidious methods of internal hostil activities” and  declared it unlawful in a time of war to publish information that the president may determine to be “of such character that it is or might be useful to the enemy.”  Following this logic, it seems reasonable that Obama would  crackdown on whistleblowers.  The problem, though, Glenn Greenwald of The Guardian wrote, is that:

…This Obama whistleblower war has nothing to do with national security. It has nothing to do with punishing those who harm the country with espionage or treason.  It has everything to do with destroying those who expose high-level government wrongdoing. It is particularly devoted to preserving the government’s ability to abuse its power in secret by intimidating and deterring future acts of whistleblowing and impeding investigative journalism.

Greenwald makes an important point here; the common thread between the cases of  every whistleblower that has been prosecuted since 2009 is the growing strain of witnessing acts of fraud, corruption and flagrant unconstitutionality.

The four whistleblowers from the National Security Agency (“The NSA Four”) all echo the struggle of being asked to hold classified information that is clearly in violation of the law.  Thomas Drake, William Binney, J. Kirk Weibe and Edward Loomis make up the NSA Four, who were falsely accused of leaking confidential information in 2007.  According to The Nation, the NSA Four have now endured years of harassment for “exposing the waste and fraud behind a multibillion-dollar contract for a system called Trailblazer, which was supposed to “revolutionize” the way the NSA produced signals intelligence (SIGINT) in the digital age.”

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President Obama’s 2009 promise to close down the detention center at Guantanamo Bay, infamous for its flagrant denial of human rights, was met with much support throughout the United States and the world.  Human rights advocates throughout the world felt justice would finally be served by transferring and releasing detainees from the Guantanamo detention facility.  Individuals within the U.S. hoped that Obama’s promise to close the facility would re-solidify the country’s position as the self-proclaimed exemplar of moral and ethical leadership.

Unfortunately, four years later, Guantanamo remains open, still imprisoning detainees who are held without charge, and without access to judge or lawyer.  In January of 2012, several retired generals and admirals drafted a letter to President Obama urging the transfer of Guantanamo detainees cleared by the Task Force, under the National Defense Authorization Act (NDAA) Security Waver.  They write:

We recognize the political opposition you have faced in attempting to honor your commitment. Congress has repeatedly restricted your ability to transfer detainees held there who have been cleared for release. Congress has also restricted your authority to bring criminal suspects held at Guantanamo to justice in our time-honored federal criminal courts. However, despite these restrictions, we are asking you to act within the discretion available to you to move our nation forward in closing Guantanamo once and for all.

Political opposition (particularly in the House of Representatives) has been one of the defining challenges of Obama’s presidency, and while it is a legitimate hurdle, it does not excuse Obama’s unfulfilled promise to close Guantanamo.  The President must be held accountable as well.

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