Tag: justice

Cross posted from The Stars Hollow Gazette

During his stop over in Stockholm, Sweden on the way to the G-20, President Barack Obama renewed his defense of unfettered surveillance

“I can give assurances to the publics in Europe and around the world that we’re not going around snooping at people’s emails or listening to their phone calls,” Obama said in response to a Swedish reporter’s question during a news conference with Prime Minister Fredrik Reinfeldt as he began a whirlwind, 24-hour trip to Sweden. “What we try to do is to target very specifically areas of concern.”

Still, the president acknowledged that questions about privacy were likely to trail him in Europe – a continent that is protective of privacy rights – for some time. The issue also bubbled up during his trip to Germany in June, shortly after newspapers published reports based on documents leaked by former government contractor Edward Snowden.

Despite Obama’s assertions of a more narrow-scope effort, the Snowden-leaked documents show the NSA collects and stores all kinds of data traveling through the Internet, including emails, video chats and instant messages. Under one such classified program, known as Prism, the government can obtain secret court orders and gather mass amounts of data from major Internet companies such as Google, Apple, Microsoft and Facebook.

The ACLU is challenging the constitutionality of the intelligence agency’s action filing a complaint in the Southern District of New York against James Clapper in June. An up date on that lawsuit was posted today on their web site. (please note that the link contains an interesting but really annoying gif).

An impressive array of organizations and individuals filed amicus briefs yesterday in support of the ACLU’s constitutional challenge to the government’s collection of the call records of virtually everyone in the United States. The range of voices joining the protest against mass government surveillance-not to mention the bipartisan storm that has swept Congress since the recent NSA disclosures – is a real testament to the fact that the government’s dragnet surveillance practices are offensive to Americans from across the political spectrum.

Among the groups supporting our lawsuit are the National Rifle Association, the Reporters Committee for Freedom of the Press, and the PEN American Center. Philosophy Professor Michael Lynch submitted a brief arguing that privacy is fundamental to human dignity. Our friends at the Electronic Frontier Foundation submitted a brief on behalf of Rep. Jim Sensenbrenner (R-Wis.), one of the authors of the Patriot Act. Rep. Sensenbrenner has decried the now-public call-records program as outside the scope of the law he authored.

Yes, you’re reading that right, the NRA and Rep. Sensenbrenner.

NSA surveillance: National Rifle Association backs ACLU challenge

by Ewen MacAskill, The Guardian

Anger at US government’s data trawling creates unlikely alliance in court between NRA and American Civil Liberties Union

The NRA, in an amicus brief in support of the ACLU, argues that the mass surveillance programme provides “the government not only with the means of identifying members and others who communicate with the NRA and other advocacy groups, but also with the means of identifying gun owners without their knowledge or consent”.

EFF Files Brief on Behalf of Rep. Sensenbrenner in NSA Spying Case

Press release from Electronic Freedom Foundation

Original Patriot Act Author Says Call-Data Collection Exceeds Congressional Intent

San Francisco – The Electronic Frontier Foundation (EFF) today filed a brief on behalf of Rep. Jim Sensenbrenner (R-WI), the author of the original USA PATRIOT Act, in a case brought by the American Civil Liberties Union (ACLU) against the National Security Agency (NSA). In the brief, Sensenbrenner argues that Congress never intended the Patriot Act to permit the NSA’s collection of the records of every telephone call made to, from and within the United States. Sensenbrenner urges the court to deny the NSA’s motion to dismiss and grant the ACLU’s motion for a preliminary injunction, which would halt the program until the case is decided.

In another development today, hundreds of pages from NSA spying documents are to be released in response to an FOIA request by EFF:

In a major victory in one of EFF’s Freedom of Information Act (FOIA) lawsuits, the Justice Department conceded yesterday that it will release hundreds of pages of documents, including FISA court opinions, related to the government’s secret interpretation of Section 215 of the Patriot Act, the law the NSA has relied upon for years to mass collect the phone records of millions of innocent Americans. [..]

While the government finally released a white paper detailing its expansive (and unconstitutional) interpretation of Section 215 last month, more important FISA court opinions adopting at least part of that interpretation have remained secret. The results of EFF’s FOIA lawsuit will finally lift the veil on the dubious legal underpinnings of NSA’s domestic phone surveillance program.

This victory for EFF comes on the heels of another FOIA success two weeks ago, when the Justice Department was also forced to release a 2011 FISA court opinion ruling some NSA surveillance unconstitutional.

Now to that gif. It is visualization demonstrating the staggering scope of the NSA’s surveillance. Click on the image to view.

Cross posted fromThe Stars Hollow Gazette

In the midst of the angst of the debate over Obama bombing Syria, a front page article in Monday’s New York Times has revealed a new surveillance scandal involving a little known deal between the Drug Enforcement Agency (DEA) and AT&T called the Hemisphere Project. That deal gives the DEA access to 26 years of its phone records:

Unlike the controversial call record accesses obtained by the NSA, the data is stored by AT&T, not the government, but officials can access individual’s phone records within an hour of an administrative subpoena.

AT&T receives payment from the government in order to sit its employees alongside drug units to aid with access to the data.

The AT&T database includes every phone call which passes through the carrier’s infrastructure, not just those made by AT&T customers.

Details of the program – which was marked as law enforcement sensitive, but not classified – were released in a series of slides to an activist, Drew Hendricks, in response to freedom of information requests, and then passed to reporters at the New York Times.

Officials were instructed to take elaborate steps to ensure the secrecy of the Hemisphere program, a task described as a “formidable challenge” in the slide deck, which detailed the steps agencies had taken to “try and keep the program under the radar”.

The NYT‘s national security reporter, Scott Shane joined Democracy Now!‘s Amy Goodman to discuss the Hemisphere Project and it’s impact.

Cross posted from The Stars Hollow Gazette

Attorney General Eric Holder announced that the Department of Justice would no longer seek to reverse state law that legalize the use of marijuana. However, it still leaves the door open for abuse and harassment by individual US Attornies.

Eric Holder Says DOJ Will Let Washington, Colorado Marijuana Laws Go Into Effect

by Ryan J. Reilly and Ryan Grim, Huffington Post

Deputy Attorney General James Cole also issued a three-and-a-half page memo to U.S. attorneys across the country. “The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests,” it reads. “A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice.”

The memo also outlines eight priorities for federal prosecutors enforcing marijuana laws. According to the guidance, DOJ will still prosecute individuals or entities to prevent:

• the distribution of marijuana to minors;
• revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
• the diversion of marijuana from states where it is legal under state law in some form to other states;
• state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
• violence and the use of firearms in the cultivation and distribution of marijuana drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
• growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;
• preventing marijuana possession or use on federal property.

The eight high-priority areas leave prosecutors bent on targeting marijuana businesses with a fair amount of leeway, especially the exception for “adverse public health consequences.” And prosecutors have shown a willingness to aggressively interpret DOJ guidance in the past, as the many medical marijuana dispensary owners now behind bars can attest.

Longtime investigative reporter and co-founder of FAIR, the national media watch group, Martin Lee joined Amy Goodman and Juan González on Democracy Now! to discuss the changes:

“There is so much cultural momentum with respect to marijuana, there is a significant shift in place that the politicians are now starting to catch up to it,” says Martin Lee, longtime investigative reporter and author of several books, including “Smoke Signals: A Social History of Marijuana – Medical, Recreational and Scientific.” He also notes that “the guidance issue made by the Department of Justice yesterday is kind of littered with caveats and red flags.”

Cross posted from The Stars Hollow Gazette

Someone suggested that latest lie told by President Barack Obama on the Jay Leno Show that other night stating, “There is no spying on Americans. We don’t have a domestic spying program,” was up there with the 10 greatest lies ever told. That fallacy of the president’s declaration was made very obvious in a New York Times article by Charlie Savage on the latest and greatest NSA domestic surveillance program. The NSA has been copying virtually all overseas messages that Americans send or receive, scanning them to see if they contain any references to people or subjects the agency thinks might have a link to terrorists.

Hints of the surveillance appeared in a set of rules, leaked by Mr. Snowden, for how the N.S.A. may carry out the 2008 FISA law. One paragraph mentions that the agency “seeks to acquire communications about the target that are not to or from the target.” The pages were posted online by the newspaper The Guardian on June 20, but the telltale paragraph, the only rule marked “Top Secret” amid 18 pages of restrictions, went largely overlooked amid other disclosures.

In an opinion by the New York Times Editorial Board, these messages could be very private and no connection to terrorists or terrorist activity:

That could very well include innocent communications between family members expressing fears of a terror attack. Or messages between an editor and a reporter who is covering international security issues. Or the privileged conversation between a lawyer and a client who is being investigated.

Data collection on this scale goes far beyond what Congress authorized, and it clearly shreds a common-sense understanding of the Fourth Amendment. It’s as if the government were telling its citizens not to even talk about security issues in private messages or else they will come to the attention of the nation’s spies.

At the Electronic Frontier Foundation, Mark Rumold explains what it means to be an NSA target:

When “Target” Means Searching a Specific Person’s Communications

First, at least this much is clear: a “target” under the FA (FISA Amendments Act ) must be (a) a non-US person and (b) not physically located within the United States. A “person,” for purposes of the FAA, includes individuals as well as “any group, entity, association, corporation, or foreign power.”  Under the FAA, the government can thus “target” a single individual (e.g., Vladimir Putin), a small group of people (e.g., Pussy Riot), or a formal corporation or entity (e.g., Gazprom).

So, when the NSA decides to “target” someone (or something), it turns its specific surveillance vacuum at them. [..]

When “Target” Means Searching Everyone’s Communications

Once a target is established, the NSA believes it can expand the sweep of its interception far more broadly than the communhttp://www.guardian.co.uk/world/interactive/2013/jun/20/exhibit-a-procedures-nsa-documentications of the particular, identified target. Notably, the NSA’s procedures state (emphasis added):

   [I]n those cases where NSA seeks to acquire communications about the target that are not to or from the target, NSA will either employ an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas, or it will target Internet links that terminate in a foreign country.

In plain English: the NSA believes it not only can (1) intercept the communications of the target, but also (2) intercept communications about a target, even if the target isn’t a party to the communication. The most likely way to assess if a communication is “about” a target is to conduct a content analysis of communications, probably based on specific search terms or selectors.

And that, folks, is what we call a content dragnet.

Importantly, under the NSA’s rules, when the agency intercepts communications about a target, the author or speaker of those communications does not, thereby, become a target: the target remains the original, non-US person. But, because the target remains a non-US person, the most robust protection for Americans’ communications under the FISA Amendments Act (and, indeed, the primary reassurance the government has given about the surveillance) flies out the window. If you communicate about a target of NSA surveillance, your citizenship is irrelevant: the only thing standing between you and NSA surveillance is your IP address or the fiber optic path through which your communications flow.

Jameel Jaffer, American Civil Liberties Union deputy legal director, made the following comments about the latest revelations:

“The program described by the New York Times involves a breathtaking invasion of millions of people’s privacy.  The NSA has cast a massive dragnet over Americans’ international communications, collecting and monitoring all of them, and retaining some untold number of them in government databases.  This is precisely the kind of generalized spying that the Fourth Amendment was intended to prohibit.

“The government’s scrutiny of virtually every international email sent by Americans will have extraordinary consequences for free expression. Americans will inevitably hesitate to discuss controversial topics, visit politically sensitive websites, or interact with foreigners with dissenting views. By injecting the NSA into virtually every cross-border interaction, the U.S. government will forever alter what has always been an open exchange of ideas.”

“There is no spying on Americans. We don’t have a domestic spying program,” is right up there with “I am not a crook” and “I did not have sex with that woman.”

Cross posted from The Stars Hollow Gazette

The National Security Agency isn’t just looking to “keep us safe” from terrorists by collecting metadata, the NSA is sharing its information with the secretive Special Operations Division of the U.S. Drug Enforcement Administration (DEA) which is then passing that information to local authorities, covering up the NSA source.

U.S. directs agents to cover up program used to investigate Americans

by John Shiffman and Kristina Cooke, Reuters

A secretive US Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

It isn’t just the DEA that is doing this, the Justice Department is also receiving information about non-terrorist related criminal activity.

NSA handing over non-terror intelligence

by Stewart M. Powell, SFGate

The National Security Agency is handing the Justice Department information, derived from its secret electronic eavesdropping programs, about suspected criminal activity unrelated to terrorism.

This little-known byproduct of counterterrorism surveillance continues amid controversy over the NSA’s wide-ranging collection of domestic communications intelligence, including Americans’ telephone calling records and Internet use.

It is unclear whether the referrals have been built upon the content of telephone calls and emails. Administration officials have previously assured Congress that NSA surveillance focuses on so-called metadata and in the main does not delve into the content of individual calls or email messages.

Also, some in the legal community question the constitutionality of criminal prosecutions stemming from intelligence-agency eavesdropping.

Other Agencies Clamor for Data N.S.A. Compiles

by Eric Lichtblau and Michael S. Schmidt, The New York Times

The National Security Agency’s dominant role as the nation’s spy warehouse has spurred frequent tensions and turf fights with other federal intelligence agencies that want to use its surveillance tools for their own investigations, officials say.

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the security agency’s vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say.

Intelligence officials say they have been careful to limit the use of the security agency’s troves of data and eavesdropping spyware for fear they could be misused in ways that violate Americans’ privacy rights.

The recent disclosures of agency activities by its former contractor Edward J. Snowden have led to widespread criticism that its surveillance operations go too far and have prompted lawmakers in Washington to talk of reining them in. But out of public view, the intelligence community has been agitated in recent years for the opposite reason: frustrated officials outside the security agency say the spy tools are not used widely enough.

At emptywheel, bmaz points out this is nothing in the Reuter’s article on the SOD wasn’t already known, just no one has been paying attention:

First, the headline is misleading. The caption is:

   Exclusive: U.S. directs agents to cover up program used to investigate Americans

Well, not really (and, in fairness, the actual body of the article is about a practice that is a result of the SOD). DEA’s Special Ops Division is neither new nor secret in the least, and there is no way to “cover it up”. Google it; I got “About 289,000 results (0.29 seconds)” as a return. You will get something similar. The revelation that SOD was used in the Viktor Bout case is also not new, here is a Time story detailing it from 2011.

In fact, any criminal defense attorney who did cocaine hub conspiracy cases in the 90′s could have told you most of the Reuter’s article in their sleep. That was exactly the scene that DEA-SOD was born from. As the war on drugs went nuclear, the DEA devised what they termed the “Kingpin Strategy” (pdf):

   In 1992, the DEA instituted the Kingpin Strategy that focused investigative and enforcement efforts on specific drug trafficking organizations. The DEA planned to dis- able major organizations by attacking their most vulnerable areas-the chemicals needed to process the drugs, their finances, communications, transportation, and leadership structure.

   The Kingpin Strategy held that the greatest impact on the drug trade took place when major drug organizations were dis- rupted, weakened, and destroyed. This strategy focused enforcement efforts and resources against the highest-level traffickers and their organizations, and provided a systematic way of attacking the various vulnerabilities of the organiza- tions. By systematically attacking each of these vulnerabilities, the strategy aimed to destroy the entire organization, and with it, the organization’s capacity to finance, produce, and distrib- ute massive amounts of illegal drugs. Each blow weakened the organization and improved the prospects for arresting and prosecuting the leaders and managers of the organizations.

   The Kingpin Strategy evolved from the DEA’s domestic and overseas intelligence gathering and investigations.

And from Kingpin sprung the Special Operations Division:

   Under the original Kingpin Strategy, DEA headquarters often dictated the selection of Kingpin targets. In response to the SACs’ concerns, Administrator Constantine agreed to allow them more latitude in target selection. In conjuction with this decision, he established the Special Operations Division at Newington, Virginia, in 1994 to coordinate multi-jurisdictional investigations against major drug trafficking organizations responsible for the flow of drugs into the United States.

On this morning’s Democracy Now!, Guardian journalist Glenn Greenwald responded to a report by Reuters.

“It’s a full-frontal assault on the Fourth, Fifth and Sixth Amendments and on the integrity of the judicial process, because they’re deceiving everyone involved in criminal prosecutions about how this information has been obtained,” Greenwald says.

Cross posted from The Stars Hollow Gazette

The long awaited internal report (pdf) of its roll of the Massachusetts Institute of Technology in the federal prosecution of Aaron Swartz for hacking into its computer system has been finally been released. Aaron was being charges by federal prosecutors with 13 counts of violating the Computer Frauds Act. He was facing a $1 million fine and up to 35 years in prison when he committed suicide in his Brooklyn apartment in January of this year. Aaron also suffered from severe depression.

The report found that MIT did not press for prosecution of Aaron for downloading several million academic articles from the JSTOR database through the MIT computer network, which were returned. However, the school did nothing to stop the over zealous prosecution.

In a Guardian article written by Amanda Holpuch, the report stated that the school viewed that US v Swartz was “simply a lawsuit to which it was not a party.” Yet, they told the prosecutors that that it was not seeking punishment for Swartz but never actually said that they were opposed to jail time. How these people thought that that they were “not party” to Aaron’s prosecution is simply beyond belief.

According to the report, prior to his death, “the MIT community paid scant attention” to Swartz’s prosecution and few people expressed concerns to the administration about the case. However, Swartz’s father, a consultant to the MIT lab and former student there, asked MIT to aid efforts to have the charges dropped or to get a plea deal that would not have jail time. Two faculty members advocated a similar appeal.

In choosing the position of neutrality, the report says the school did not consider Swartz’s contributions to internet technology and was not critical enough of the US government’s “overtly aggressive prosecution.” MIT also did not account for Swartz’s prosecution under the Computer Fraud and Abuse Act, which the report called ” a poorly drafted and questionable criminal law.” That law has been widely criticised since Swartz’s death. [..]

Friends and family have been harshly critical of the report with Aaron’s partner, Taren Stinebrickner-Kauffman, calling the report a “whitewash” on her blog.

She also criticized the school for objecting to a Freedom of Information Act request for the secret service files on Swartz’s case. The school took the unusual step of intervening in the request for government documents after a judge ordered the documents to be released in July.

The Wired reported that while MIT claimed it was “neutral,” it is very clear from the report that they willingly cooperated with the prosecution’s investigation:

MIT police called the Cambridge police, who showed up with a Secret Service agent from the New England Electronic Crimes Task Force – sparking the federal investigation.

The report says that MIT officially adopted a neutral posture with respect to the federal criminal case, treating it as an outside matter. But it also details extensive cooperation between MIT officials and federal agents and prosecutors.

MIT sniffed network traffic from Swartz’s computer and provided logs voluntarily to the government, without demanding a subpoena. And MIT did not offer to give Swartz’s defense team access to the employees interviewed by prosecutors. “The choice not to do this was based on a judgment that the criminal process was sufficiently fair, without the need for it to provide equality of outcome,” the report notes.

“The report makes clear that MIT was not neutral,” says Robert Swartz, who’d met with MIT repeatedly during the prosecution to plead for his son. “But they should not have been neutral. They should have advocated of Aaron’s behalf, because the law under which he was charged was wrong.”

“They cooperated with prosecutors in endless ways, and they were fundamentally opaque to us.”

My fervent hope that the people at MIT who decided to cooperate with the aggressive prosecution of Aaron sleep at night haunted by his face.

Cross posted from The Stars Hollow Gazette

If anyone, at this point, thinks that President Barack Obama would a change from the Bush administration, his nomination of James Comey to be FBI Director should be proof that any change from the past was a delusion. Besides his record of approving torture, indefinite detention and warrantless wiretapping, at his confirmation hearing Comey defended current US surveillance practices.

James Comey defends US surveillance practices at FBI confirmation hearing

by Spencer Ackerman, The Guardian

Former deputy attorney general who famously rebelled against warrantless spying in 2004 declines to criticise current policy

James Comey, the former US deputy attorney general, said Tuesday that the secret surveillance court that approves wiretapping requests is “anything but a rubber stamp”, even though the so-called Fisa court approves nearly every surveillance request by the government.

“I think folks don’t understand that the FBI operates under a wide variety of constraints,” Comey testified during his confirmation hearing to succeed Robert Mueller as the second director of the bureau since 9/11. The combination of the Fisa court, investigative guidelines from the US attorney general, congressional scrutiny and internal inspectors general are “very effective” at checking FBI abuse, Comey argued.[..]

But Comey declined to criticize the broad, ongoing collection of the phone records when senators asked if they should be scaled back.

Having been out of government since 2005, Comey said that he was “not familiar with the details of the current programs” and did not wish to opine on them. “I do know, as a general matter, the collection and analysis of metadata is a valuable tool in counter-terrorism.”

When questioned about the use of drones, Comey said he did not think drones should be used to kill US citizens in America, but left the door open for cases of “imminent threats.” The precise definition of what circumstances would constitute an “imminent thread” were left unanswered.

Former FBI agent, Colleen Crowley, who was a division legal counsel for 13 years and taught constitutional rights to FBI agents and police, joined Amy Goodman and Nermeen Shaikh on Democracy Now! to discuss Comey’s testimony and inevitable confirmation.

At his confirmation hearing to head the FBI, former Bush administration Deputy Attorney General James Comey refused to criticize the broad, ongoing collection of the phone records of Americans and defended the indefinite detention of U.S. citizens deemed to be enemy combatants. Comey also explained why he signed off on a memo authorizing waterboarding while serving under Attorney General John Ashcroft. We get reaction from former special FBI agent Coleen Rowley, who served with the Bureau from 1981 to 2004. The New York Times just published her op-ed titled “Questions for the FBI Nominee.” In 2002, Time magazine named her and two other female whistleblowers as Time’s “Person of the Year,” for warning about the FBI’s failure to help prevent the 9/11 attacks.

What digbt said: What do you have to do to not be eligible for promotion in official Washington?

I’ve always thought it was a mistake for the administration not to pursue prosecutions for the torture regime. It seems like a bad idea for a powerful nation to ignore war crimes. You have to assume that it could blow back on it some time in the future. But since we now know that the presidency is largely a ceremonial position without any power to shape the debate, affect legislation or influence the military industrial complex, it’s clearly awfully tough to do anything at all. Best stick to nice pictures with foreign leaders and leave it at that.

However, even those who view the office as nothing more than a symbol of leadership would have to grant that the president surely has the discretion not to promote the people who signed off on the war crimes.

Cross posted from The Stars Hollow Gazette

Try as President Barack Obama and Attorney General Eric Holder might to denounce torture their actions with the last round of nominees and appointments to crucial positions speak louder than their words. First is was John Brennan to head the CIA, whose dubious record during the Bush/Cheney regime on torture and covering up war crimes was glossed over by Obama. Then there is Director of National Intelligence James Clapper, an inveterate liar who has a memory problem as well, “I forgot the Patriot Act.” Really? Clapper also served as an executive for Booz Allen Hamilton, a private security company contracted to gather data for the NSA, who employed Edward Snowden.

Now, the director of the Federal Bureau of Investigations (FBI) Robert Mueller is retiring and who does Obama choose to replace him? Another Bush crony, James B. Comey, who served as deputy attorney general from 2003 to 2005. Comey, as has been hammered by the Obama administration supporters, blocked, along with Mueller, the Bush administration’s attempt to renew a still secret and illegal surveillance program on Americans’ electronic communications. That incident is only part of Comey’s record at DOJ which includes his support of torture, warrantless wiretapping, and indefinite detention. In her article at The Guardian, Laura Murphy reviews Comey stands on these issues and questions just what illegal surveillance program did Comey oppose so much he would resign over it?

On Torture

On 30 December 2004, a memo addressed to James Comey was issued that superseded the infamous memo that defined torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure”. The memo to Comey seemed to renounce torture but did nothing of the sort. The key sentence in the opinion is tucked away in footnote 8. It concludes that the new Comey memo did not change the authorizations of interrogation tactics in any earlier memos.

In short, the memo Comey that approved gave a thumbs-up on waterboarding, wall slams, and other forms of torture – all violations of domestic and international law. [..]

On Warrantless Wiretapping

While, to his credit, (Comey) he immediately began raising concerns (pdf), the program was still in existence when the New York Times exposed it in December 2005. This was a year and a half after Comey’s hospital showdown with Gonzales and Card. In fact, the warrantless wiretapping program was supported by a May 2004 legal opinion (pdf) produced by the Justice Department’s Office of Legal Counsel and signed off by Comey, which replaced the 2001 legal opinion Comey had problems with (pdf).

This, of course, raises the question: just what illegal surveillance program did Comey oppose so much he would resign over it? Last weekend, the Washington Post provided a new theory: the Marina program, which collects internet metadata. Now, the Senate has an opportunity to end the theorizing and find out what exactly Comey objected to.

On Indefinite Detention

The final stain on Comey’s record was his full-throated defense of the indefinite military detention of an American citizen arrested on American soil. In a June 2004 press conference, Comey told of Jose Padilla, an alleged al-Qaida member accused of plotting to detonate a dirty bomb as well as blow up apartment buildings in an American city. By working for al-Qaida, Padilla, Comey argued, could be deprived of a lawyer and indefinitely detained as an enemy combatant on a military brig off the South Carolina coast for the purpose of extracting intelligence out of him

In a letter to Comey, two Democratic senators, Senators Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, expressed concern on Wednesday about Mr. Comey’s views on waterboarding and his role in approving “enhanced interrogation techniques” while at the Justice Department in the George W. Bush administration. They are asking Comey to explain his e-mail of April, 2005, where he gave his approval of 13 interrogation techniques that included waterboarding.

. . Mr. Comey gave his assent to a Justice Department legal opinion that authorized the C.I.A. to use 13 interrogation methods, including waterboarding and up to 180 hours of sleep deprivation. The opinion “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.

But he said in the e-mail that he disagreed with another legal opinion addressing the “combined effects” of the harsh methods, suggesting that their use in combination might be illegal. He recorded his views in e-mails to Chuck Rosenberg, then his chief of staff, as if deliberately creating a record in case his position might become relevant to his record in the future, as it has.

Appointing Comey to head the FBI is a another slap in the face to voters to whom Mr. Obama promised that he would end the Bush era abuses. Instead, Mr. Obama and his appointees not only continued these programs but covered up the wrong doing of the past, reinforcing and expanding the abuses.

This is what Barack believes.

Despite the risks to his personal safety, the whistleblower who leaked the FISA court order and NSA surveillance programs to The Guardian has revealed himself. Prior to giving the tapes to columnist Glenn Greenwald, the 29 year old Edward Snowden chose to leave the US for Hong Kong because of it long history of respect for freedom of speech. Like six other whistleblowers, he expects that he will be charged by the Obama administration under the 1917 Espionage Act. In the 12 minute video that was produced and copyrighted* by American documentary film director and producer, Laura Poitras, he explains his decision to give the secret warrant and programs to Greenwald and leave the United States.

The 29-year-old source behind the biggest intelligence leak in the NSA’s history explains his motives, his uncertain future and why he never intended on hiding in the shadows

The individual responsible for one of the most significant leaks in US political history is Edward Snowden, a 29-year-old former technical assistant for the CIA and current employee of the defence contractor Booz Allen Hamilton. Snowden has been working at the National Security Agency for the last four years as an employee of various outside contractors, including Booz Allen and Dell.

The Guardian, after several days of interviews, is revealing his identity at his request. From the moment he decided to disclose numerous top-secret documents to the public, he was determined not to opt for the protection of anonymity. “I have no intention of hiding who I am because I know I have done nothing wrong,” he said.

Snowden will go down in history as one of America’s most consequential whistleblowers, alongside Daniel Ellsberg and Bradley Manning. He is responsible for handing over material from one of the world’s most secretive organisations – the NSA.

Cross posted from The Stars Hollow Gazette

While we were mostly fixed on the aftermath of explosion at the Boston Marathon, a non-partisan 11-member panel, that had been convened by the  legal research and advocacy group, Constitution Project to look into the treatment of detainees after 9/11, released a 577 page report (pdf) on Tuesday.

The report relying solely on public records, interviews with detainees, military officers and interrogators, concluded that “it is indisputable that the United States engaged in the practice of torture” under the Bush administration:

The use of torture, the report concludes, has “no justification” and “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.” The task force found “no firm or persuasive evidence” that these interrogation methods produced valuable information that could not have been obtained by other means. While “a person subjected to torture might well divulge useful information,” much of the information obtained by force was not reliable, the report says.

At emptywheel, Marcy Wheeler points out the report contains a “number of errors, repetition of dangerous misinformation, and incomplete reporting” but it is still important and comprehensive and its conclusion valuable:

Because even this cautious, bipartisan, institutionalist report concludes the following (among other findings):

   Finding #1: U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.

   Finding #2: The nation’s most senior officials, through some of their actions and failures to act in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some U.S. personnel on detainees in several theaters. Responsibility also falls on other government officials and certain military leaders.

   Finding #3: There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

   Finding #16: For detainee hunger strikers, DOD operating procedures called for practices and actions by medical professionals that were contrary to established medical and professional ethical standards, including improper coercive involuntary feedings early in the course of hunger strikes that, when resisted, were accomplished by physically forced nasogastric tube feedings of detainees who were completely restrained.

   Finding #19: The high level of secrecy surrounding the rendition and torture of detainees since September 11 cannot continue to be justified on the basis of national security.

   Finding #21: The Convention Against Torture requires each state party to “[c]riminalize all acts of torture, attempts to commit torture, or complicity or participation in torture,” and “proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” The United States cannot be said to have complied with this requirement.

The panel was formed after Pres. Barack Obama decided in 2009 not to support a national commission to investigate the post-9/11 counterterrorism programs, as proposed by Senator Patrick J. Leahy (D-VT) and others. “Look forward, not backward”, the president said. included former Senator Asa Hutchinson (R-AL), who served in President George W. Bush’s administration from 2003-2005 as the Under Secretary for Border and Transportation Security in the Department of Homeland Security, and former Representative James Jones (D-OK) who served as the U.S. Ambassador to Mexico from 1993-1997.  Among the other members were a three-star general and former president of the American Bar Association.

Significantly the New York Times article notes this:

The United States is a signatory to the International Convention Against Torture, which requires the prompt investigation of allegations of torture and the compensation of its victims. [..]

While the Constitution Project report covers mainly the Bush years, it is critical of some Obama administration policies, especially what it calls excessive secrecy. It says that keeping the details of rendition and torture from the public “cannot continue to be justified on the basis of national security” and urges the administration to stop citing state secrets to block lawsuits by former detainees. [..]

The core of the report, however, may be an appendix: a detailed 22-page legal and historical analysis that explains why the task force concluded that what the United States did was torture. It offers dozens of legal cases in which similar treatment was prosecuted in the United States or denounced as torture by American officials when used by other countries.

The report compares the torture of detainees to the internment of Japanese Americans during World War II. “What was once generally taken to be understandable and justifiable behavior,” the report says, “can later become a case of historical regret.”

Laura Pitter, counterterrorism adviser at Human Rights Watch, joined Democracy Now‘s Amy Goodman and Nermeen Shaikh to discuss the report,s “indisputable” evidence that the Bush administration tortured.

What Marcy said:

In short: it was torture, it was illegal, it was not valuable, and it still needs to be prosecuted.

Instead, The Justice Department instead chose to prosecute Central Intelligence Agency (CIA) whistleblower John Kiriakou, who refused to participate in torture and helped exposed the torture program. Mr. Kiriakou was sentenced to prison while the torturers he exposed walk free. Nice job, Barack.

Cross posted from The Stars Hollow Gazette

March 18 marked the fiftieth anniversary of Gideon v. Wainwright, the landmark case by the Supreme Court that required states under the 14th amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorneys, extending the identical requirement made on the federal government under the 6th Amendment.

But is justice now equal?

The Legacy of Gideon v. Wainwright

by John Light, Moyers & Company

Anthony Lewis, The New York Times journalist whose masterwork chronicled the Supreme Court’s landmark Gideon v. Wainwright decision, died earlier this week at the age of 85. The court’s ruling, handed down 50 years ago last week, established a criminal defendant’s right to an attorney, even if that defendant cannot afford one. [..]

Here are some resources on Anthony Lewis and the legacy of Gideon v. Wainwright.

1. Gideon’s Trumpet

In 1964, Lewis, a two-time Pulitzer Prize winner, published his book Gideon’s Trumpet. In it, he described Clarence Earl Gideon as a wrongly convicted Florida man convinced that he was entitled to legal representation even though the state of Florida said otherwise. [..]

2. Defending Gideon

A new documentary from The Constitution Project and the New Media Advocacy Project examines the impact of Gideon v. Wainwright and includes a recent interview with Anthony Lewis as well as an archival interview from the 1960s with Gideon, who explains that he was surprised to hear from the trial judge that he was not entitled to a lawyer. [..]

3. “The Silencing of Gideon’s Trumpet”

Ten years ago, on the 40th anniversary of Gideon v. Wainwright, Lewis described in The New York Times Magazine the “endless failures to bring the promise of Gideon to life.” He wrote, “Even more alarming is the assertion by the Bush administration that in a whole new class of cases it can deny the right to counsel altogether. [..]

4. Adam Liptak on Lewis’s Transformative Journalism

Adam Liptak, one of Lewis’s successors as Supreme Court correspondent for The New York Times, wrote the paper’s obituary of its former reporter and columnist. He noted that Gideon’s Trumpet has never been out of print from the day it was published, and that Lewis’s knowledgeable and thorough coverage of the court during the years Earl Warren served as its chief justice made him almost as essential to its history as the judges themselves. [..]

5. Andrew Cohen on Lewis and Gideon today

Writing in The Atlantic earlier this month, legal scholar Andrew Cohen described how, in the story of Gideon v. Wainwright, Lewis found material for one of the “best nonfiction works written about the Supreme Court and the American legal system.” [..]

But the thrust of Cohen’s essay is that Gideon’s legacy has not fared so well. A Brennan Center for Justice report found that many court appointed lawyers are overworked and spend less than six minutes per case at hearings where they counsel their clients to plead guilty. Lawmakers haven’t funded public defenders adequately, Cohen says, and the Supreme Court has not required them to do so.

On March 29th’s Moyers & Company, host Bill Moyers discussed the system’s failures, and ongoing struggles at the crossroads of race, class and justice with attorney and legal scholar Bryan Stevenson. Then Mr. Moyers is joined by journalists Martin Clancy and Tim O’Brien, authors of Murder at the Supreme Court, to examine the fatal flaws of the death penalty.

The broadcast closes with a Bill Moyers Essay on the hypocrisy of “justice for all” in a society where billions are squandered for a war born in fraud while the poor are pushed aside.