Tag: Constitution

Cross posted from The Stars Hollow Gazette

The cocksure Tea Party governor of Maine, Paul Lepage, decided he would play games with what he thought were his veto powers under Maine’s constitution by using a pocket veto of 65 bills.

On Thursday, LePage delivered vetoes of 65 of those bills (the rest he returned unsigned) and urged the Legislature to consider his vetoes. Both House Speaker Mark Eves, D-North Berwick, and Senate President Michael Thibodeau, R-Winterport, said they would not let the vetoes hit the floors of their respective chambers.

LePage argued that because lawmakers left Augusta on June 30, he had been prevented from returning the vetoes before the 10 days had expired. The Maine Constitution states that if a Legislature adjourns, the governor may hold bills until three days after they return.

The House and Senate passed a temporary adjournment order on June 30 to give LePage time to act on the bills. Top lawmakers and Attorney General Janet Mills, a Democrat elected by the Legislature, said that temporary recess was not adjournment, and thus did not give LePage more time to act.

Gov. LePage’s problem was that he was using his interpretation of the constitution, not what it really said. So off to the Maine Supreme Court he went. Briefs from both sides were submitted and oral arguments were heard last Friday

Today that court disagreed with the governor and those 65 bills are now law:

Gov. Paul LePage erred in his end-of-session veto gambit, and in so doing lost the ability to veto 65 bills that he opposed.

In an advisory opinion released by the Maine Supreme Judicial Court on Thursday (pdf), the justices said that the bills in question became law without the governor’s signature, and that the Legislature should not be required to consider his attempted vetoes. [..]

In making its decision, the court relied in part on decades of precedent in which Maine governors had returned vetoes to the Legislature while it was in recess.

“History demonstrates that Maine governors, for nearly forty years, have routinely returned bills with their vetoes during temporary absences of the Legislature that came at the end of the session – after an “adjournment” but before the Legislature adjourned sine die,” the court wrote.

“These examples demonstrate that temporary adjournments of the Legislature near the end of a legislative session-whether until a date certain or until the call of the leadership, and whether beyond a ten-day period-have not prevented governors from returning bills with their objections to their Houses of origin within the constitutionally-required ten-day timeframe.”

LePage on Thursday thanked the court for its ruling.

Indeed, too clever by half.

Cross posted from The Stars Hollow Gazette

When you think of the state of Maine, you usually think of woods, camping, vacations, rocky beaches, sailing and, maybe, the Bush crime family or where Tom Clancy hid a stolen Russian submarine in his novel, “Hunt for the Red October.” You don’t think of it as one of the crazy states like Kansas, Texas or Oklahoma but since Republican Governor Paul LePage was reelected in November, Maine is now up there at the top of the crazy list.

The Tea Party Republican governor has been in a veto war with the state’s two house legislature over taxes, spending, health care, the state budget just to name a few. The Republicans, who are mostly moderates, hold the majority in the Senate and the House majority is Democratic. They work fairly well together and have been successful in overriding the governor’s vetoes that would have crippled the state. The dispute came to a head in July when the Gov. LePage tried to use a the parliamentary procedure known as the pocket veto on 19 bills. But the clerk of the Maine House says that the vetoes were not valid under the state’s constitution. Talking Points Memo has been following this wish relish

By not signing the bills and “pocketing” them, LePage could under some circumstances have effectively vetoed them. In theory, that would have allowed the proposals to die without legislators having a chance to override his veto. But the pocket veto only works if the legislature has adjourned after the end of the second regular session. And there is the rub.

The clerk of the Maine House told TPM Wednesday morning that the legislature, which is nearing the end of the first regular session, has not adjourned. By not vetoing the bills within the required 10-day period, LePage allowed the bills he opposed — some ferociously — to become law.

But LePage’s office is now claiming the legislature did adjourn. [..]

Here’s what Article IV, Section 2 of the Maine Constitution says on the subject:

   If the bill or resolution shall not be returned by the Governor within 10 days (Sundays excepted) after it shall have been presented to the Governor, it shall have the same force and effect as if the Governor had signed it unless the Legislature by their adjournment prevent its return, in which case it shall have such force and effect, unless returned within 3 days after the next meeting of the same Legislature which enacted the bill or resolution; if there is no such next meeting of the Legislature which enacted the bill or resolution, the bill or resolution shall not be a law.

Both Hunt and Suzanne Gresser, the reviser of statutes, are acting as if the usual 10-day period for the governor to veto the bills has passed and are now on their way to becoming law.

Things went downhill from there. The governor then threw a temper tantrum, refused to concede to the bipartisan interpretation of the constitution and put a hold on another 51 bills

LePage’s office is saying that he will sit on another 51 bills passed by the state legislature. Those are in addition to the 19 bills he previously failed to act on. He plans to send them all back to the legislature with a veto when lawmakers return to Augusta July 16, the Bangor Daily News reported.

Democratic lawmakers and the clerk of the state House contend — and history and custom tend to support their view — that LePage missed the 10-day deadline he had to veto those 19 bills. Under Maine’s constitution, the bills automatically become law if the governor doesn’t act within that 10-day window.

LePage contends that the legislature adjourned June 30, which triggers another section of the state constitution that gives him additional time to act. But lawmakers claim they never took the kind of “adjournment” required by the constitution to allow LePage to wait to act on the bills, and they become law when he didn’t return them in the 10-day period.

Needless to say the Democrats and the Republicans refused to accept his vetoes, stating the governor had missed the 10 day deadline. Gov. LePage then took the disagreement to the Maine Supreme Court asking them to decide if he botched the vetoes. To add insult to injury, the Democratic House and Republican Senate leadership refused House Minority Leader Ken Fredette’s request to use public money to underwrite the associated legal costs.

The court fast-tracked the request, briefs were filed last Friday and oral arguments began today

The discussion revolved around thorny, complex issues of procedural mechanics and constitutional balance of power between the executive and legislative branches. Over the course of about 45 minutes, LePage’s counsel Cynthia Montgomery and the attorney representing Maine’s House and Senate each had 15 minutes each for their opposing arguments, with Montgomery given the opportunity for rebuttal at the end. Additionally, an attorney representing a few House Republicans as well as counsel for the attorney general each had a few minutes to make their cases, with the former favoring LePage’s view and the latter challenging it.

The justices were clearly seeking to streamline the arguments being presented in front of them, perhaps knowing both the short-term impact of their decision on dozens of pieces of legislation, as well as the long-term precedent they could set in navigating what has become a constitutional crisis. Their questions touched on both broad understanding of the executive branch’s veto powers and LePage’s specific motivations in waiting to submit his vetoes. They were mostly patient to weed through the convoluted specifics of the case, but at times were willing to call out what appeared to be suspicious reasoning.

To make matters worse for Gov. LePage, he being now sued for abuse of power. Steve Brennan, at MSNBC’s Maddowblog, reported this yesterday:

Maine Gov. Paul LePage (R) is caught up in a doozy of a controversy. As regular readers know, a Maine charter school recently hired state House Speaker Mark Eves (D), but LePage, a fierce opponent of Democratic legislators, threatened the school – either fire Eves or the governor would cut off the school’s state funding. In effect, LePage played the role of a mobster saying, “It’s a nice school you have there; it’d be a shame if something happened to it.”

The school, left with no options, reluctantly acquiesced. The problem, of course, is that governors are not supposed to use state resources to punish people they don’t like. By most measures, it’s an impeachable offense.

As of today, as the Portland Press Herald [reported http://www.pressherald.com/201… it’s also the basis for a civil suit.

   Democratic House Speaker Mark Eves will file a civil lawsuit Thursday against Gov. Paul LePage, alleging that the governor used taxpayer money and the power of his office to prevent his hiring at a private school in Fairfield.

   The lawsuit, to be filed in U.S. District Court in Portland, has been anticipated ever since the board of directors at Good Will-Hinckley voted to rescind its offer to pay Eves $150,000 a year to become the organization’s next president. Eves said that the board told him before his contract was terminated that LePage threatened to eliminate $530,000 in annual state funding for the school unless it removed him from the job.

“Acting out of personal rage, vindictiveness and partisan malice, Gov. Paul LePage blackmailed a private school that serves at-risk children into firing its president, the Speaker of Maine’s House of Representatives,” the complaint reads.

The governor hasn’t denied the allegations and is now facing possible impeachment

Even Politico has called LePage “America’s Craziest Governor” and questioned if he is “playing with a full deck.”

Maine may be be this Summer’s best entertainment. Get the popcorn.

The battle over citizens’ right to privacy and the government’s mass collection of private data that has nothing to do with protecting the country from terrorist attacks, is coming to a head on June 1. That’s when the Patriot Act’s section 215, the provision of the act that the NSA used to authorize its bulk telephone metadata collection program, must either be renewed by congress or it expires. The problem is the lack of interest by the American public. In an extended segment of his HBO program, “This Week Tonight,” John Oliver found a subject that might pique their interest, “dick pics.” He presented his idea to Edward Snowden in a one on one exclusive interview.

So why all the trouble? In theory, Snowden’s revelations are old, they have proven to be either inaccessible or not titillating enough for the American public, and Oliver already covered the issue himself on the show in an interview with former NSA chief General Keith Alexander less than a year ago.

As it turns out, Oliver wasn’t satisfied. Using the June 1 expiration of controversial sections of the Patriot Act as a peg, Oliver decided to revive the conversation anew by highlighting one specific aspect of the surveillance issue that a majority of Americans could relate to.

And Sunday’s final product is earning Oliver plaudits across the Internet. In the interview, Oliver accomplishes several feats. He’s not only funny (Snowden apparently misses eating Hot Pockets, the sodium vehicle of the American freezer section), but also incisive and tough. [..]

But most notably of all, Oliver might finally have pinpointed a way to make the debate about surveillance accessible to a wide audience. By honing on one aspect of the government surveillance, the capacity for intelligence agencies to access “dick pics,” he captures the attention and summons the outrage of numerous passersby in a filmed segment in Times Square. Many of those interviewed can’t properly identify Edward Snowden or don’t quite recall what he had done, but all recoil at the thought of government access to intimate photography.

Thanks to John’s interview and the above viral video, which at this posting has

4,723,977 views, the movement to end mass surveillance has new life.

Privacy advocates experienced a major setback in November when a surveillance reform bill, the FREEDOM Act, died in a Senate procedural vote. But now they’re back, and with a new, simple question for Americans – Can they see your junk?

Playing off Oliver’s hilarious skit, one privacy activist built cantheyseemydick.com, which breaks down how each NSA program could be used to access private communications. Despite its flippant tone, the website offers simple explanations of complex programs that are difficult to understand.

On a more serious note, a new coalition of privacy groups led by the Electronic Frontier Foundation (EFF) today launched the Fight 215 campaign calling for an end to the NSA’s bulk collection of Americans’ phone records.

EFF activist Nadia Kayyali told TechCrunch the organizations launched the campaign today because of the impending deadline, but they were very excited about the Last Week Tonight with John Oliver skit and the attention it has already brought to surveillance reform.

With this campaign, the privacy advocates have taken a direct stance, end the bulk collection of Americans’ telephone records. [..]

Even with the new public attention on surveillance reform, privacy advocates face an uphill battle in Congress. Although surveillance reform is an issue that does not fall squarely on party lines, reform efforts in the Democratic-controlled Senate last year were thwarted primarily by Republican votes. Now Republicans control both chambers of Congress.

As the June 1 deadline approaches, no one in Congress has laid out a comprehensive plan to address government surveillance this year. Kayyali attributes the lack of action on the Hill to uncertainty.

“I think a lot of people, including people who want to see good legislation passed, weren’t certain where to start from,” Kayyali said. “It’s hard to say what Congress is thinking.”

As members look to form that plan, Kayyali hopes the new campaign will send them a clear message.

EEF and thirty other civil liberties organizations have launched a call in campaign, Fight 215. They will help connect you to your representatives to tell them to end mass surveillance.

Call Congress Now

Urge them to end mass surveillance under the Patriot Act.

What to say

Hi,

I’m one of your constituents, and I’m calling to urge you to end the NSA’s unconstitutional mass surveillance under the Patriot Act.

NSA surveillance illegally invades my privacy, along with millions of other innocent people, without making me safer.

Ending phone record surveillance is the first step to reining in surveillance abuses by the NSA. The time to put pressure on congress is now.

The NSA, FBI and DOJ are upset with the new Apple and Google encryption apps that they can’t hack. The poor Director of the FBI, James Comey is “concerned” so he plays the “fear card”

“I am a huge believer in the rule of law, but I also believe that no one in this country is beyond the law,” Comey told reporters at FBI headquarters in Washington. “What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law.”

Apple said last week that it would no longer be technically feasible to unlock encrypted iPhones and iPads for law enforcement because the devices would no longer allow user passcodes to be bypassed. The move comes as tech companies struggle to manage public concerns in the aftermath of last year’s leak of classified National Security Agency documents about government access to private user data. [..]

“Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” the company said. “So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”

Comey said that while he understood the need for privacy, government access to mobile devices may be needed in extreme circumstances, such as in the event of a terror attack.

“I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone’s closet or their smart phone,” he said. “The notion that someone would market a closet that could never be opened — even if it involves a case involving a child kidnapper and a court order — to me does not make any sense.”

Comey said FBI officials have had conversations with both Apple and Google about the marketing of their devices.

“Google is marketing their Android the same way: Buy our phone and law-enforcement, even with legal process, can never get access to it,” he said.

Why anyone would think that the guy who approved torture believes in the rule of law is beyond me. Trevor Timm at The Guardian dissects what Comey said:

Comey began:

  I am a huge believer in the rule of law, but I also believe that no one in this country is beyond the law. … What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law.

First of all, despite the FBI director’s implication, what Apple and Google have done is perfectly legal, and they are under no obligation under the “the rule of law” to decrypt users’ data if the company itself cannot access your stuff. From 47 U.S. Code § 1002 (emphasis mine):

   A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.

Comey continued:

   I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone’s closet or their smart phone.

That’s funny, because literally four months ago, the United States government was saying the exact opposite (pdf) before the US supreme court, arguing that, in fact, the feds shouldn’t need to get a warrant to get inside anyone’s smartphone after you’re arrested. In its landmark June ruling in the case, Riley v California, the court disagreed. So it’s great to see that Jim Comey, too, has come around to the common sense conclusion that cops need a warrant to search your cellphone data, but it would’ve been nice for him to express those sentiments when they actually mattered.

Comey doubled down in another statement with the absurd fear that criminals, like child kidnappers would be able to evade the law. On its face that’s insanely ridiculous since law enforcement has numerous ways tools to access your data. The Intercept‘s Micah Lee points out that Apple still has access to plenty of your data to feed to the Feds. He went on how bemoan the NSA leaks by Edward Snowden has caused the need to protect a person’s private information may have gone too far. How so, Mr. Comey? As Timm notes in his article

Congress has not changed surveillance law at all in the the nearly 16 months since Edward Snowden’s disclosures began, mostly because of the vociferous opposition from intelligence agencies and cops. The pendulum is still permanently lodged squarely on law enforcement’s side. If it has swung at all, it’s because of the aforementioned ruling by the supreme court of the United States, along with tech companies implementing more privacy protections unilaterally because US tech companies are losing billions of dollars because of the government’s spying scandals.

A week ago, The Intercept‘s Glenn Greenwald gave a Ted Talk in Rio de Janeiro on why your privacy matters

Crypto wars redux: why the FBI’s desire to unlock your private life must be resisted

In 1995, the US government tried – and failed – to categorise encryption as a weapon. Today, the same lines are being drawn and the same tactics repeated as the FBI wants to do the same. Here’s why they are wrong, and why they must fail again

Eric Holder, the outgoing US attorney general, has joined the FBI and other law enforcement agencies in calling for the security of all computer systems to be fatally weakened. This isn’t a new project – the idea has been around since the early 1990s, when the NSA classed all strong cryptography as a “munition” and regulated civilian use of it to ensure that they had the keys to unlock any technological countermeasures you put around your data.

In 1995, the Electronic Frontier Foundation won a landmark case establishing that code was a form of protected expression under the First Amendment to the US constitution, and since then, the whole world has enjoyed relatively unfettered access to strong crypto. [..]

The arguments then are the arguments now. Governments invoke the Four Horsemen of the Infocalypse (software pirates, organised crime, child pornographers, and terrorists) and say that unless they can decrypt bad guys’ hard drives and listen in on their conversations, law and order is a dead letter.

On the other side, virtually every security and cryptography expert tries patiently to explain that there’s no such thing as “a back door that only the good guys can walk through” (hat tip to Bruce Schneier). Designing a computer that bad guys can’t break into is impossible to reconcile with designing a computer that good guys can break into.

If you give the cops a secret key that opens the locks on your computerised storage and on your conversations, then one day, people who aren’t cops will get hold of that key, too. The same forces that led to bent cops selling out the public’s personal information to Glen Mulcaire and the tabloid press will cause those cops’ successors to sell out access to the world’s computer systems, too, only the numbers of people who are interested in these keys to the (United) Kingdom will be much larger, and they’ll have more money, and they’ll be able to do more damage.

Long live The Republic.

News that journalist James Foley was waterboarded before he was brutally beheaded by his ISIS captors should come as no surprise. It is past time that the United States come clean on its war crimes and release the entire 6300 page congressional report, unredacted and let the chips fall where they may.

What Charlie Pierce said:

Please, somebody, goddammit, just leak the damn report. All of it, CIA concerns be damned. Because now not only do we have a moral right and a moral duty to know everything that was done in our name, but we also have a national interest in determining to what extent the behavior of our government differed from the behavior of ISIS, besides the fact that (as far as we know) none of our captives were beheaded. That’s a pretty low bar for an evolved democracy, but there it is. I no longer care about phantom “national security” concerns. Fk the torturers and fk their enablers in Congress, and fk all redactors, and fk the pet lawyers and bureaucrats that made torture legal and acceptable. Let what’s going to happen to them happen. Let justice be done though the heavens fall and John Yoo loses his job. They opened the door to this, with their memos and their barely stifled giggles. They grafted sadism onto the Constitution. They taught ISIS its techniques. James Foley, a fellow Warrior, god rest his brave soul, was tortured before he was murdered using techniques that barbarians learned from the oh-so-civilized heroes of our National Security state. This is what we teach the world now. Are you guys proud? Does your heart swell in the faculty lounges and in the cozy think-tanks? Does it swell with pride at the impact you’ve had on the world?

How do you like your blue-eyed boy now, Mr. Death?

They had to be carefully taught.  

Are you on the Department of Homeland Security’s Terrorist Watch List or No-Fly List? If you are, there is no way for you to find out but we now know what the criteria is and it’s pretty fast and loose with the rules. The Intercept investigative journalists Jeremy Scahill and Ryan Devereaux have obtained a copy of the guidelines from a document that was issued by the National Counterterrorism Center, the “March 2013 Watchlisting Guidance.” In an extensive article, they examine how the government is using secret rules  “putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings.”

The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

Over the years, the Obama and Bush Administrations have fiercely resisted disclosing the criteria for placing names on the databases-though the guidelines are officially labeled as unclassified. In May, Attorney General Eric Holder even invoked the state secrets privilege to prevent watchlisting guidelines from being disclosed in litigation launched by an American who was on the no fly list. In an affidavit, Holder called them a “clear roadmap” to the government’s terrorist-tracking apparatus, adding: “The Watchlisting Guidance, although unclassified, contains national security information that, if disclosed … could cause significant harm to national security.” [..]

The document’s definition of “terrorist” activity includes actions that fall far short of bombing or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous” to property and intended to influence government policy through intimidation.

This combination-a broad definition of what constitutes terrorism and a low threshold for designating someone a terrorist-opens the way to ensnaring innocent people in secret government dragnets. It can also be counterproductive. When resources are devoted to tracking people who are not genuine risks to national security, the actual threats get fewer resources-and might go unnoticed. [..]

The fallout is personal too. There are severe consequences for people unfairly labeled a terrorist by the U.S. government, which shares its watchlist data with local law enforcement, foreign governments, and “private entities.” Once the U.S. government secretly labels you a terrorist or terrorist suspect, other institutions tend to treat you as one. It can become difficult to get a job (or simply to stay out of jail). It can become burdensome-or impossible-to travel. And routine encounters with law enforcement can turn into ordeals. [..]

The government has been widely criticized for making it impossible for people to know why they have been placed on a watchlist, and for making it nearly impossible to get off. The guidelines bluntly state that “the general policy of the U.S. Government is to neither confirm nor deny an individual’s watchlist status.” But the courts have taken exception to the official silence and footdragging: In June, a federal judge described the government’s secretive removal process as unconstitutional and “wholly ineffective.”

The difficulty of getting off the list is highlighted by a passage in the guidelines stating that an individual can be kept on the watchlist, or even placed onto the watchlist, despite being acquitted of a terrorism-related crime. The rulebook justifies this by noting that conviction in U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a reasonable suspicion. Once suspicion is raised, even a jury’s verdict cannot erase it.

Not even death provides a guarantee of getting off the list. The guidelines say the names of dead people will stay on the list if there is reason to believe the deceased’s identity may be used by a suspected terrorist-which the National Counterterrorism Center calls a “demonstrated terrorist tactic.” In fact, for the same reason, the rules permit the deceased spouses of suspected terrorists to be placed onto the list after they have died.

Essentially, once a person is on these lists their Fourth Amendment rights are completely ignored, as Mike Masnick at Techdirt points out individuals are subjected to extra scrutiny, essentially allowing the government to sift through every aspect of a person’s life:

In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, “any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),” cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the information is then uploaded to the TIDE (Terrorist Identities Datamart Environment) database.

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition-“e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information” – details about pets from veterinarians or tracking chips-is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

At FDL’s The Dissenter, Kevin Gosztola discusses how this loop-hole ridden criteria violate a person’s rights and are inherently discriminatory towards Muslims:

There are a few general points to make in order to fully understand what this vague criteria for watchlisting means.

First of all, it is important not to ignore the anti-Muslim racism that likely influences a number of aspects of the watchlisting process. The idea that Muslims are “predisposed” to commit acts of violence is pervades the national security establishment. Training materials on fighting terrorism have been used by government agencies in previous years that deal with theories of “radicalization” and such training promotes prejudice, as evidenced by the fact that one NSA official used the slur “Mohammed Raghead” in an NSA memo.

Second, a federal district court in Oregon recently decided violated due process rights of Americans placed on the No-Fly List because it is nearly impossible to challenge inclusion and clear one’s name. The ACLU represented thirteen Americans, who have never engaged in any terrorist activity, in this case. Each person experienced hardship because they ended up on the No-Fly List.

The guidance shows why there needs to be a process established for getting off watchlists, especially the No-Fly List.

Finally, there is absolutely no reasonable justification for why this rulebook and any version of it from 2001 to 2014 should be secret. The watchlisting guidance is marked “unclassified.” There is nothing in it that will endanger any Americans.

Jeremy and Ryna sat down for an an interview with Huffington Post‘s Alyona Minkovski. During the discussion, Ryan called the these guidelines a “global stop and frisk program.”

Recently there were two court rulings that pertain to getting off the No-Fly list and a Supreme Court decision that bars warrantless searches of cell phones. Precisely how how those rulings will impact the guidelines remains to be seen but it is fairly obvious that the Obama administration has little regard for the rule of law.

On July 10, NSA whistleblower Edward Snowden sat down for an interview with Alan Rusbridger, editor-in-chief of the Guardian, and reporter Ewen MacAskill in Moscow.

Over the course of seven hours, he talked about the need for professionals to protect the confidentiality of their clients in the light of the surveillance by spy agencies. He also spoke about his life in Moskow and the specious accusations that he was spying for Russia or had given the information he took from the NSA to Russian authorities.

(Snowden):

• Said if he ended up in US detention in Guantánamo Bay he could live with it.

• Offered rare glimpses into his daily life in Russia, insisting that, contrary to reports that he is depressed, he is not sad and does not have any regrets. He rejected various conspiracy theories surrounding him, describing as “bullshit” suggestions he is a Russian spy.

• Said that, contrary to a claim he works for a Russian organisation, he was independently secure, living on savings, and money from awards and speeches he has delivered online round the world.

• Made a startling claim that a culture exists within the NSA in which, during surveillance, nude photographs picked up of people in “sexually compromising” situations are routinely passed around.

• Spoke at length about his future, which seems destined to be spent in Russia for the foreseeable future after expressing disappointment over the failure of western European governments to offer him a home.

• Said he was holding out for a jury trial in the US rather a judge-only one, hopeful that it would be hard to find 12 jurors who would convict him if he was charged with an offence to which there was a public interest defence. Negotiations with the US government on a return to his country appear to be stalled.

Cross posted from The Stars Hollow Gazette

The National Security Agency and the Federal Bureau if Investigation was given authorization by a judge with the top-secret Foreign Intelligence Surveillance Court to spy on five Americans because of their political activity and, umm, their Middle Eastern names:

Meet the Muslim-American Leaders the FBI and NSA Have Been Spying On

By Glenn Greenwald and Murtaza Hussain

he National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans-including a political candidate and several civil rights activists, academics, and lawyers-under secretive procedures intended to target terrorists and foreign spies.

According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”-short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.he National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans-including a political candidate and several civil rights activists, academics, and lawyers-under secretive procedures intended to target terrorists and foreign spies.

According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”-short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens. [..]

The five Americans whose email accounts were monitored by the NSA and FBI have all led highly public, outwardly exemplary lives. All five vehemently deny any involvement in terrorism or espionage, and none advocates violent jihad or is known to have been implicated in any crime, despite years of intense scrutiny by the government and the press. Some have even climbed the ranks of the U.S. national security and foreign policy establishments.

[..]

Asim Ghafoor says his first-hand experience working on behalf of other Muslim-Americans has led him to believe that “the U.S. government embarked on a very systematic approach” to target his community.

“I saw the government specifically go after Muslim people who were involved in certain activities such as charity work, humanitarian work, political activism,” he says. “Maybe they had some website that had some speeches that nobody ever read or even noticed, maybe they had some bloodcurdling speeches. So the government just treated you like you were blowing up the next tower. They treated you like you were going to be the Manchurian Candidate, you were going to destroy America from within. There were U.S. attorneys, FBI agents, DHS agents, customs agents all over the country that were trying to find the next terror cell in their midst. If you were involved in those activities and maybe you were on a student visa and you didn’t quite fill out the paperwork, you were hosed. There is no question about it, you were worse off than a migrant worker in Dubai. You were just packed up and sent home. Life became very, very unbearable for them.”

Even a U.S. citizen like Faisal Gill, who served his country both in the armed forces and in the White House, found himself spied on by his own government. “I was a very conservative, Reagan-loving Republican,” he says. “If somebody like me could be surveilled, then [there are] other people out there I can only imagine who are under surveillance.

“I went to school here as a fourth grader – learned about the Revolutionary War, learned about individual rights, Thomas Jefferson, all these things,” he continues. “That is ingrained in you – your privacy is important. And to have that basically invaded for no reason whatsoever – for the fact that I didn’t do anything – I think that’s troubling. And I think that certainly goes to show how we need to shape policy differently than it is right now.”

As per Huffington Post‘s Ryan Grim, Glenn Greenwald received the permission of all five named in the article before printing their names.

This is the Democratic administration of Barack Hussein Obama.

Cross posted from The Stars Hollow Gazette

During an hour “fireside” chat at this week’s Southland Conference on technology, entrepreneurship and southern culture, former Vice President Al Gore was asked about Eric Snowden by Sarah Lacey. His answer, when asked if Snowden was a hero or traitor, was quite clear:

   I hear this question all the time…I’m like most people, I don’t put (Snowden) in either one of those categories. But I will be candid – if you set up a spectrum, I would push it more away from the traitor side. He clearly violated the law (so) you can’t say OK what he did is alright. It is not.

   But what he revealed in the course of violating important laws included violations of the Constitution that were way more serious than the crimes he committed. In the course of violating important laws he also provided an important service because we did need to know how far this has gone.

He then added his concerns about the mass surveillance by the NSA:

This is a threat to the heart of democracy. Democracy is among other things a state of mind. If any of us are put in a position where we have to self censor, and think twice about what we write in an email, or what we click on for fear that somebody reading a record of this may misunderstand why we looked up some disease or something, some young people who might otherwise get help with a medical condition, might think oh my gosh if I put down a search for bipolar illness I will be stigmatized if my online file is hacked or accessed by my employer. That kills democracy.

Edward Snowden’s NSA leaks ‘an important service’, says Al Gore

By Ewan MacAskill, The Guardian

Former vice-president argues whistleblower exposed ‘violations of US constitution far more serious than crimes he committed’

Asked if he regarded Snowden as a traitor or whistleblower, Gore veered away from the “traitor” label. He refused to go as far as labelling him a whistleblower but signalled he viewed him as being closer to that category than a traitor, saying: “What he revealed in the course of violating important laws included violations of the US constitution that were way more serious than the crimes he committed.” [..]

Gore called on the internet companies to work with the public to help draw up a “digital Magna Carta” that provides protection of freedoms. “They need to pay attention to correcting some of these gross abuses of individual privacy that are ongoing in the business sphere,” he said.

Snowden’s hope of a return to the US is dependent on a change in a major shift in opinion that would allow him to escape a lengthy prison sentence. His supporters will seize on Gore’s comments to help make the case that he is a whistleblower and should be allowed to return to the US as a free man. Ben Wizner, Snowden’s US-based lawyer, said: “Al Gore is quite obviously right. Regrettably, the laws under which Snowden is being charged make no allowance for the value of the information he disclosed. Whether the NSA’s activities violated the law or the constitution would be irrelevant in a trial under the Espionage Act.”

This conversation about our privacy and the government disregard of the Constitution in the name of security is not over by a long shot.

Cross posted from The Stars Hollow Gazette

This administration, especially the Department of Justice really hates your Fourth Amendment rights and is doing everything in its power to narrow your right to privacy as much as it can.

DOJ Says Americans Have No 4th Amendment Protections At All When They Communicate With Foreigners

by Make Masnick, Techdirt

We’ve already questioned if it’s really true that the 4th Amendment doesn’t apply to foreigners (the Amendment refers to “people” not “citizens”). But in some new filings by the DOJ, the US government appears to take its “no 4th Amendment protections for foreigners” to absurd new levels. It says, quite clearly, that because foreigners have no 4th Amendment protections it means that any Americans lose their 4th Amendment protections when communicating with foreigners. They’re using a very twisted understanding of the (already troubling) third party doctrine to do this. As you may recall, after lying to the Supreme Court, the Justice Department said that it would start informing defendants if warrantless collection of information under Section 702 of the FISA Amendments Act (FAA) was used in the investigation against them.

Last October, it finally started alerting some defendants, leading courts to halt proceedings and re-evaluate. As two of those cases have moved forward, the DOJ is trying to defend those cases, and one way it’s doing so is to flat out say that Americans have no 4th Amendment protections when talking to foreigners.

   The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. . . . For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.

This argument is questionable on so many levels. First, it’s already relying on the questionable third party doctrine, but it seems to go much further, by then arguing that merely providing information to a foreign person means that it’s okay for the US government to snoop on it without a warrant.

The official US position on the NSA is still unlimited eavesdropping power

by Jameel Jaffer, the ACLU at The Guardian

One year after Snowden, the government is defending – in not-so-plain sight – the ‘paramount’ power to spy on every call and email between you and your friends abroad

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

In the government’s view, there is no need to ask whether the 2008 law violates Americans’ privacy rights, because in this context Americans have no rights to be violated.

Marcy Wheeler at emptywheel points out that former Sen Russ Feingold warned us back in 2008 about the abuses that could occur under Section 702 of the FISA Amendments Act (FAA).

Cross posted from The Stars Hollow Gazette

In an article posted here by our friend and editor, Edger, reported that a federal court panel ruled on Monday the  U.S. government must publicly disclose secret papers describing its legal justification for using drones to kill citizens suspected of terrorism overseas, because President Barack Obama and senior government officials have publicly commented on the subject.

The 2nd US circuit court of appeals in New York ruled in a Freedom of Information Act case brought by the American Civil Liberties Union and two reporters for the New York Times. In 2011, they sought any documents in which Department of Justice lawyers had discussed the highly classified “targeted-killing” program.

The requests came after a September 2011 drone strike in Yemen killed Anwar al-Awlaki, an al-Qaida leader who had been born in the United States, and another US citizen, Samir Khan, and after an October 2011 strike killed Abdulrahman al-Awlaki, Awlaki’s teenage son and also a US citizen. Some legal scholars and human rights activists complained that it was illegal for the US to kill American citizens away from the battlefield without a trial. [..]

In January 2013, US district court judge Colleen McMahon ruled that she had no authority to order the documents disclosed, although she chided the Obama administration for refusing to release them.

In an opinion written by 2nd circuit judge Jon Newman, a three-judge panel noted that after McMahon ruled, senior government officials spoke about the subject. The panel rejected the government’s claim that the court could not consider official disclosures made after McMahon’s ruling, including a 16-page Justice Department white paper on the subject and public comments by Obama in May in which he acknowledged his role in the Awlaki killing, saying he had “authorized the strike that took him out”.

Most certainly, the Obama administration will appeal this ruling.

Earlier this month, Constitutional lawyer Bruce Fein addressed a panel discussion on government secrecy and overreach at Yale Law School that was arranged by activist and former presidential candidate, Ralph Nader.  He spoke directly about President Barack Obama’s dangerous level of executive power and the lack of congressional oversight.

“And what about Congress? That’s not an impeachable offense, to lie under oath and mislead the American people?!” he asked, referring to testimony by Obama’s Director of National Intelligence, James Clapper. “No. He’s still serving. We have as our Director of National Intelligence, who’s entrusted with secrets about us, a known perjurer, remains in office, untarnished, public reputation there. Where’s all the newspapers calling for his resignation? Silence.”

Clapper confirmed in a letter sent last week to Senator Wyden that U.S. persons have been targeted by the surveillance program – something he had earlier and categorically denied.

Fein, who also worked under the acting attorney general in the early 1970s to write a paper outlining a rationale for impeachment of President Richard Nixon, says Obama is exercising a dangerous level of executive power without adequate checks. “This president has authority to kill anyone on the planet, to play prosecutor, judge, jury and executioner, if he decides, in secret, that the target of the Predator drone – could be another instrument of death, doesn’t have to be a Predator drone – is an imminent threat to U.S. national security.” Fein added the process “is not subject to review by Congress, it’s not subject to review by courts, it’s not subject to review by the American people. It is limitless.”

We apparently still have judges and courts that are willing to rein in the administration, now if we only had the congress we had in the 1970’s.