The Poor Door: Building has Separate Entrances for Rich and Poor

July 28, 2014 // 10 Comments

Tags: affordable housing, New York, tax abatement
Posted in: #99Percent, Democracy, Economy

Not that America has become a divided, classist society or anything. Oh wait, it has.


Poor Doors

New York City approved plans for a new 33-story luxury high-rise at 40 Riverside Drive on the Upper West Side of Manhattan that will include a separate entrance for tenants in “affordable” housing, what some have called the “poor door.” The high-rise has both super-luxe units worth millions, and some affordable housing units. Rich residents come in the front door. Poor residents enter through the side door. The expensive units overlook the Hudson River waterfront. The affordable units are in a “building segment” that faces the street. “Affordable” folks cannot enter the rich side of the building and are prohibited from using any of the building’s amenities. The way the architecture was specifically designed, the two groups will never mingle.


Affordable Housing in a Luxury Building?

Why does such a luxury building have affordable housing units in the first place? Well, so the rich can manipulate New York’s housing laws for their own benefit.

Including some affordable housing units in your new construction buys you two distinct advantages in New York. The first is that the developer is allowed to build a much taller building (and thus having more apartments to sell), skirting zoning laws and claiming valuable “air rights” for the benefit of the poor, of course. The air rights the developer will claim are worth millions in crowded Manhattan. The benefits even apply if you build your luxury tower in one part of Manhattan and your affordable units “off site,” maybe in a nasty part of town.

A developer can also qualify for the program by building condos on “areas of Manhattan of underutilized or unused land,” wherever those may be on some of the most densely populated land in the world.

The biggest advantage of including the affordable units in a luxury building is the massive tax breaks all residents share. New York waives or significantly lowers property taxes, meaning the rich, who need never see or interact with their poor neighbors, make money off their presence. It’s all called the “Inclusionary Housing Program,” or officially, the 421a program.

Here’s an example of how significant these tax breaks can be drawn from another super-luxury building in midtown Manhattan that included some affordable housing units. On an apartment purchased in 2007 for $1.5 million, the owner paid just $35 a month in property taxes. That creeped up to only $374 a month in 2011. When the exemption expires in 2018, the actual monthly tax bill will be an estimated $1,629. Note also any that real estate taxes paid are tax-deductible from one’s income.


Developers Getting Rich off the Poor

Another New York developer, who has built “poor door” buildings, summed things up quite succinctly:

No one ever said that the goal was full integration of these populations. So now you have politicians talking about that, saying how horrible those back doors are. I think it’s unfair to expect very high-income homeowners who paid a fortune to live in their building to have to be in the same boat as low-income renters, who are very fortunate to live in a new building in a great neighborhood.

The developers of the poor door building under discussion have done well with tax breaks. Five of the luxury firm’s other apartment towers cost the city $21.8 million in tax revenue in their first year alone. Overall, as of 2012, property tax abatements in New York City totaled $2.9 billion, about 20 percent of actual property tax collections in the city.

So what’s the problem, some say, with poor folks gettin’ some uptown housing from the swells? History: Separate but equal favors the separate but never the equal part. It did not work as a solution for racial inequality and it won’t work as a solution for economic inequality. Indeed, one wonders if the building caught fire which door the fire department would go through first?

And there you have it, another tidy example of how taxes and laws are rigged to favor the people who already have the most money. Go ahead, work as hard as you like; this game, friends, has already been decided.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Interview with NHK, Japanese TV

July 27, 2014 // 7 Comments

Tags: Bobby Fischer, Iceland, NHK, Passport, Snowden
Posted in: #99Percent, Economy

Japan’s main broadcast station, NHK (similar to PBS here in the U.S.) dropped by for an interview about my new book, as well as a discussion about an event from my past, my brief encounter with chess great turned psycho Bobby Fischer.

Ghosts of Tom Joad is of interest to Japan for two reasons. First, the main time frame in the book, the late 1970s and early 1980s, represents arguably the high point of the Japanese industrial economy. That was the era of Japan as Number One: Lessons for America, the time when Japanese investors poured money into U.S. real estate, including high-profile purchases such as Rockefeller Center and the Pebble Beach golf course. Of course, Japan’s economic ascendancy was fueled in large part by their industrial exports, especially cars and steel to the U.S. One of the factors of American de-industrialization was the loss of jobs to Japan.

In the way that history loves irony, Japan has interest in Ghosts now also because it is experiencing its own era of de-industrialization. We’re painting in broad strokes here (economists, relax a bit), but much of Japan’s current industrial malaise is due to cheap imports from China and other parts of Asia. Japanese companies are increasingly moving production abroad in search of cheaper labor. Ghosts, to some in Japan, is both a history of Japan’s role in America, and a road map to it’s potential future, with a dash of prophecy.

BONUS: About Bobby Fischer. Bobby you’ll recall was a Cold War hero in America after beating Soviet chess champ Boris Spassky in Iceland in 1972. Fischer went on to lose to his mind, as well as play a for-money chess match in what was then Yugoslavia. The latter violated U.S. trade sanctions of the time, and turned Fischer into a wanted man. He avoided U.S. law enforcement for many years by traveling around the world, until by accident, aided by post-9/11 snooping, Homeland Security found him in Japan. My job at the U.S. embassy there included the revocation of U.S. passports. Homeland Security and State, via me, took away Bobby’s passport in a preview of what would later be done to Edward Snowden.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Hearing the Little Voices, or Why History Matters

July 26, 2014 // 7 Comments

Tags: Algeria, Sand Pebbles, White
Posted in: Afghanistan, PRT Life

From time to time we turn this blog over to a guest post. Today’s is by historian Daniel N. White.

Why do we need to read history? Why does history matter? Because history helps us to hear the little voices, to discriminate among them, and to silence, perhaps, some of the more troublesome ones. And to act on those little voices, the right ones, when they tell us something important.

For an explanation of this, let’s crack open my favorite novel, The Sand Pebbles, by Richard McKenna. You might have heard of it somewhere along the way; you might also have seen the 1968 movie, with Candice Bergen and Steve McQueen, which was a fairly decent film.

The book is noteworthy because it is one of a scant handful of novels about machinery, written by an author who firsthand knew and understood the world of machinery. I’ve always been a sprockethead first class, so seeing machinery written about this well always appealed to me. The book also has passages of descriptive sociology and cultural anthropology of the first order running through it; particularly about the world of men. It is also the best book ever written about the below decks Navy—the U.S. Naval Academy at Annapolis thought so too and said so on the dustjacket when their press reprinted it some years ago.

McKenna wrote this book after he retired after 20-something years as a torpedo mechanic in the Navy. Sadly, McKenna died way too young from a heart attack, shortly after this book’s publication.

The Sand Pebbles is the story of a Caliban-like machinist’s mate in the China Fleet in the 1920s, back when the US, as well as the other Western powers, ran their warships up and down the major rivers of China. The protagonist, Jake Holman, is posted to the most obscure ship on the China Station, patrolling the far reaches of the Yangtze River. Once aboard, Holman makes it a point, as he always had done, to master every single aspect of the ship’s engineering spaces. The ship is a creaky old relic taken from Spain after the Spanish-American War of 1898, and it has a knock in the engine that has always been there and that has always defeated all prior repair efforts. The knock causes main bearing wear that in turn causes increased coal burning and regular major repairs to clean and re-clearance the ship’s crank bearings. Holman is driven to find out what the cause of the knock is, and to fix it.

Early on in the book Holman is spending time in the ship’s bilges, sloshing around in the dirty bilge water, getting the rustproofing tar in his uniforms and skin and hair, staring at the huge pieces of rotating machinery just inches from his face, trying to figure out the problem.

McKenna talks about all the little voices in the engine room around Holman, all the little noises of the machinery in operation, all its sights and smells, and how it is all a confusing welter of little voices, each trying to be heard. He can hear them, but he can’t hear the right one, on account of the crowded welter of them all, and his ignorance of what voice he should be listening for.

Under the ship’s main crank spinning overhead, Holman sees a drop of oil on the engine soleplate, a drop of oil that expands and contracts regularly. All of a sudden, Holman recognizes that he’s seeing something important–this drop of oil, expanding and contracting, indicates relative movement in the soleplates, where they should be absolutely dead tight. Holman picks up a ballpeen hammer and beats on all the soleplate bolts, and discovers that many of them are loose.

The light bulb goes off in Holman’s head–the soleplate bolts are loose, and the soleplates therefore are in misalignment, causing the rest of the machinery to be in misalignment, all on account of a long-ago grounding that bent the hull slightly. Making the soleplates true and tight to the hull will fix the problem that has dogged the ship’s engine for decades.

McKenna goes on for a spell about the little voices in the passage that tells the above story. Anyone who has worked around machinery knows about those little voices, because they are always out there in machinery, telling you the machine’s story about what’s right and what’s wrong, and what you can do to fix it if it is broken. Anybody who is any good as a wrench, or e-tech, knows about the little voices and how important it is to listen for them. You don’t fix broken things very well without having an ear for the little voices, no matter how skilled you are as a technician. To be any good, you have to have the craft knowledge, the skills, AND the ear for the little voices.

The story of Jake Holman in The Sand Pebbles is really the same story about us and history. History gives us, should we choose to use it, the ability to hear the little voices that tell us the key important facts about some big event going on around us, some big event that is surrounded by a huge welter of competing voices. And if we read history with a keen eye—if we listen to it with discriminating ears–we are far better able to pick out the right little voice out there from all the welter of them that explains things to us, and gives us, combined with our life craft-skills that we acquire as we live and learn, the ability to understand, and perhaps even fix, the problems in our world that bedevil us.

Ace technicians, with a sure eye, ear, and feel for the little voices, are rare, as are ace historians, and ace political leaders. But we all can do better if we are aware of these little voices, and try at least to listen for them. And that is what the study of history is for.

Here’s an example from our today. In our train-wreck of a war in Afghanistan, the Afghan National Army’s (ANA) troops, which the US military is training, sometimes turn sides and shoot the trainers—Green on Blue violence is what the Pentagon calls it. Shoot the trainers, and if they aren’t themselves shot, they then defect to the Taliban.

Such attacks, according to the Pentagon, are unprecedented in human history. That’s rubbish. We only need look back to France’s war in Algeria (1954-62): to cock our heads and listen to the little voices of that war. Listen for that voice, and maybe heed it:

One day in the war there was this French infantry patrol out in the bled (the deep countryside) that got fired on by someone hiding in an orchard just outside this small village. The French patrol returned fire, and a dead fellaga (FLN—Front National Liberation, the Algerian Muslims fighting for Algeria’s independence from France) fell from one of the trees. The members of the patrol went over to his body to investigate and discovered that the person who shot at them was a very old man, who had let fly at them with some antique muzzleloader. The soldiers went through his pockets, and found a Medaille Militaire in his pocket, from the old man’s First World War days in the French Army. Thumbing the medal, and looking down at the corpse of the dead old man, the Lieutenant said, “You know, there’s just something terribly wrong with this war, terribly wrong.”

That fellaga, a combat veteran, knew what he was up against and what he was doing and how suicidal it was for him when he grabbed his muzzleloader and went to try and bag him a Frenchman. The obvious lesson was that the gig was up for France in Algeria, and that France had to leave. Even if that wasn’t quite clear yet to that Lieutenant. He, and most all of France, had not yet the ears to hear, even if the little voices were screaming it.

In that war, there were dozens of instances of Algerian troops killing their French officers and NCOs while they slept and then deserting to the FLN—in at least one instance, a full company of men did.

The French were deaf to what events like these were telling them about Algerie Francais. They refused to hear the little voices. We are equally deaf, and I’d say deliberately so in the Pentagon’s case, with what Green on Blue attacks are telling us about our war in Afghanistan.

When the Pentagon claims these attacks are unprecedented, beyond human ken and understanding, they’re willfully refusing to pay any attention to the discordant voices of history. Anyone who has read anything about the French war in Algeria knows better about the lazy canards about Green on Blue put out by the Pentagon. Anyone who has read anything about counterinsurgency has read about that war, as the French were the foremost practitioners of counterinsurgency in the 20th century, and knows about the Algerian soldiers regularly mutinying and killing their French leaders and deserting.

The gig is up for us in Afghanistan, and the American endeavor in that country is every bit as dead as Algerie Francais. That is clear and beyond refutation.

That lesson should be obvious, if you know your history and understand the little voices studying it lets you hear. Few in this country have read any of that history, any history much period, and so we don’t hear those little voices, and so the problems we face remain beyond our ken to understand enough to fix. But Jake Holman heard those voices in the engine room, and he fixed that engine. But that’s another, absolutely great, story from that book that I’ll leave to you.

This piece by Dan White originally appeared on The Contrary Perspective and is reprinted by permission because it is worth reading.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Dead Is Dead: Drone-Killing the Fifth Amendment

July 25, 2014 // 7 Comments

Tags: al Awlaki, drones, due process, fifth amendment
Posted in: Democracy, Embassy/State, Police State, Post-Constitution America

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

Due Process in Constitutional America

Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

Al-Awlaki’s Death

On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

Death by Pen

For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

What Do Words Mean in Post-Constitutional America?

Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law  — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.

Principles

Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

The Kind of Country We Live In

We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Parallel Construction: Unconstitutional NSA Searches Deny Due Process

July 24, 2014 // 6 Comments

Tags: dea, DOJ, NSA, parallel construction
Posted in: Democracy, Police State, Post-Constitution America

The NSA sits at the nexus of violations of both the Fourth and Fifth Amendments with a legal dodge called Parallel Construction.

Parallel Construction is a technique used by law enforcement to hide the fact that evidence in a criminal case originated with the NSA. In its simplest form, the NSA collects information showing say a Mr. Anderson committed a crime. This happens most commonly in drug cases. The conclusive information is passed to the Drug Enforcement Agency (DEA), who then works backwards from the conclusion to create an independent, “legal” body of evidence to use against Mr. Anderson.

Example: an NSA email intercept shows our Mr. Anderson received a Fedex package with drugs, which he hid under his bed. The DEA takes this info, and gets a search warrant for the Fedex data, which leads them to Mr. Anderson’s apartment. A new legal warrant authorizes a search, and agents “find” the drugs under the bed right where the NSA said they were in the first place.

Some may call this little more than illegal evidence laundering.

Some Constitutional Background

The Fourth Amendment to the Constitution protects Americans against unreasonable and unwarranted searches. The Supreme Court has generally held that searches of, for example, someone’s home, require a warrant. That warrant can be issued only after law enforcement shows they have “probable cause.” That in turn has been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.” The NSA pulling information out of the cyberspace ether bypasses and thus violates the Fourth Amendment.

The NSA violations of the Fourth Amendment enable further DEA and other law enforcement violations of the Fifth Amendment, specifically the critical due process clause. The concept of due process dates back to the 13th century Magna Carta.

Specifically, the use of information obtained illegally and whose ultimate source is concealed from the accused violates procedural due process. This is the requirement that before any government actions to take away life, liberty or possessions, the persons affected have the right to defend themselves, to understand the evidence against them, and to question and call witnesses in rebuttal, one’s “day in court.” In short, procedural due process aims to protect individuals from the coercive power of government by ensuring that adjudication processes are fair and open.

DEA is blunt in a document released via FOIA as to how conveniently parallel construction violates these rights:

Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community.

Why Do This to Americans?

With exceptions, courts have held that evidence obtained illegally cannot be used in trial. So why bother to fight for an exception when, using NSA data surreptitiously, evidence can subsequently be obtained cleanly under a warrant, albeit a warrant issued by a court kept ignorant of the source of the underlying information. Another reason to use parallel construction is to hide the NSA’s role. Apart from the broader goal of not disclosing to the American people what their government is doing, blurring the trail back to the NSA gets around any courtroom attempts that require such data to be shared with the defense. And of course the defense can’t ask for something it does not know exists. Lastly, if defendants do not know the ultimate source of the information used to convict them, they cannot know to ask to review potential sources of exculpatory evidence– information that could reveal entrapment, mistakes or biased witnesses.

Needless to say, using information obtained already pre-packaged from the NSA makes DEA’s and other law enforcement agencies’ jobs much easier. They have to do little work on their own to gather the data needed to track down Americans they seek to prosecute. It’s all in the bag.

DEA as the Nexus

DEA seems to be the center of the NSA distribution network, as the program originally started as a way to bust foreign drug dealers before it metastasized into the currrent tool for broadly evading the Bill of Rights.

How widespread domestically is the practice of parallel construction? No one knows. It is known that the unit of the DEA that distributes the NSA information is called the Special Operations Division (SOD.) It partners with two dozen other agencies, including the FBI, CIA, Internal Revenue Service and the Department of Homeland Security. Once laundered of any NSA fingerprints, what those multiple agencies do with the data, and how far they themselves spread it to even more agencies, or to local law enforcement, is unknown.

Why it Matters

There have been complex questions raised about the hiding of NSA-obtained information used to convict Americans, leading to the Solictor General of the United States lying to the Supreme Court about how the Justice Department was not notifying defendants in situations when warrantless surveillance had led in turn to a wiretap order that produced evidence used in court. The Justice Department has taken to notifying some defendents that information obtained via warrantless survellience is being used against them, allowing for a likely Supreme Court challenge. The Justice Department has previously blocked Supreme Court challenges by hiding how information was obtained, thus denying the accused of “standing” in the Court’s eyes.

As part of the response to such government actions, organizations such as the Los Angeles County Bar Association are now offering for-continuing-education-credit tutorials to defense attorneys under titles such as “Criminal Prosecutions and Classified Information.”

A lot of attention Post-Snowden has been paid to what the NSA does– vacuum up emails, listen in on Skype chats and so forth. Too little attention has been devoted to what is done with the information NSA collects. The appetites of law enforcement agencies in Post-Constitutional America are bottomless, and the NSA holds terabytes of data to fill them.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

John Kerry Accidentally Sanctions Self

July 23, 2014 // 4 Comments

Tags: gaza, hamas, Israel, Kerry, sanctions
Posted in: Afghanistan, Embassy/State, Iraq

“I’m still not sure exactly what happened,” said gaffe-prone, beleaguered Secretary of State John Kerry, “but I’m told I agreed to sanctions on myself.”


In an exclusive, Kerry explained his mistake.


“So there we were in the Middle East. I travel almost constantly, and at my age, even with a large staff, it can get hard to keep track. I mean, have you ever been to the MidEast? Every place looks like every other place. It’s hot, sandy, and each country seems to have some sort of odd headgear. Look, I’m not the first to get confused by all this.”

“Anyway, so I’m tired. We’re in West-Somewhere-Stan, some forsaken patch of garbage with no oil, where the national export is dust, and I’m shaking hands for a photo op with what seems like the same orphan I shook hands in Baghdad, Kabul, Cairo and Tunis. Does that kid travel on the plane with me? We had had some local food for lunch which did not agree with me, and so I proposed sanctioning humus. Maybe it was sort of a joke, maybe I meant Hamas, maybe it was the Ambien talking. Next thing I know, the State Department spokesperson in Washington is telling reporters I have imposed a sanction on a beloved food product.”

“It really hits the fan then. Half the Middle East turns around and imposes retaliatory sanctions on me. Those people can’t agree on something simple like not killing each others’ kids, and bang! overnight they band together on some silly food thing. I had hoped it was going to blow over after another suicide bombing like always, but then Israel joins in the sanctions against me. Cray cray, amiright?”

Kerry leaned over to an aide, who confirmed for him that he had read his printed talking points correctly.

“Can’t be too careful, right?” joked Kerry, now chewing on the edge of the note card.

“So once Israel agreed to join every Arab nation on the planet in sanctioning me, my hands were tied. I mean, when Israel barks, I’m there with a Scooby treat, often a multi-million dollar treat. So, in a show of solidarity with Israel– who indeed has the right to defend itself against me, which I strongly support– I agreed to join the sanctions regime against myself. I even explained that the United States views the situation with concern to make it all official. Tomorrow I’ll add ‘grave concern.’ That’ll show me I mean business about myself.”

“Next thing I know, everybody in the U.S. is on TV about it. I thought nobody actually watched those Sunday morning news shows, but it turns out that Fox has an intern who takes notes if she’s up early. Pretty soon all of the media has opinions on this, some former Ambassador is writing an Op-Ed and then Barack orders me to come home and not leave my room.”

“So we get on the plane and I’m relaxing with a stiff drink when out the window I see three F-18′s escorting us. My pilot tells me they’re trying to force us to land somewhere, saying I’m violating my own sanctions by flying, plus I’m on the No-Fly list now. Guess what? I end up in Moscow! Nearest airport somehow. You’d think they had a lot of places to stay there with capitalism and all, but I found out all the VIPs are stuck in the same place, which was booked solid for the Ukrainian National Day celebration, and I get stuck on Edward Snowden’s couch for the night. Awkward.”

“At least the guy is pretty quiet, though he leaves his towels on the floor in the shower. And who doesn’t flush? But we got along OK and he even helped me with my laptop. The State Department still runs some software thingie I’m told is called “Windows XP” and Snowden told me it hadn’t been ‘patched’ since ‘like when the first Matrix came out.’ I had left the paper with all my passwords on the plane, but he knew mine somehow. He even said he installed a free ‘keylogger’ for me and some other good stuff. I asked him if I needed a new laptop and he was adamant that I should never, ever stop using the one he had installed all that magic stuff on. What could I say? Hah hah, I can’t even program my VCR I told Ed.”

“That was apparently funny, because my aide had to explain to Ed what a VCR was. Ed said ‘LOL,’ which made me feel good after all those sanctions.”

“How it could the day get worse? One word– Vladimir Putin. Really, what is that guy’s problem? Putin shows up on TV opposing sanctions against me. C’mon, does that dude have to oppose everything we do? Yeah, apparently he does. So I have to throw together a press conference where I call out Putin for opposing sanctions on me, and call on the international community to robustly support even greater sanctions against me. The EU issues a statement saying they resolutely aren’t sure what their position is, and the press sniping starts all over. I’m stuck ‘accidentally’ saying into an open mic I’m personally really angry at myself for not upholding the sanctions. What a mess.”

“Next thing I know, my own State Department starts Tweeting about the sanctions, hashtagging my sorry self with junk like #SaveALifeSanctionKerry. Worse yet, they’re sending me emails asking me to approve the Tweets about myself, something about policies come and go but bureaucracy remains. Man, me and Snowden had a laugh about that one. He knew my password for Netflix and so we just chilled after that.”

“So here I am stuck in Russia with all these sanctions on me. I hear Obama is threatening to ‘ratchet down’ the sanctions on me if China doesn’t lower tariffs. I’d like to fly there and sort that out, but with the sanctions I’m really over a barrell. I can’t even use my card at the ATM. At this point I’m not sure what to do next. I’m thinking of calling up Jon Stewart and seeing if he’ll weigh in for me. He’s about the only guy left Barack really listens to. Wish me luck.”

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Police Militarization: Fish Rot from the Head

July 22, 2014 // 4 Comments

Tags: ACLU, Brandeis, First Amendment
Posted in: #99Percent, Democracy, Military, Police State, Post-Constitution America

We were warned we might become this way.

In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.

In his dissent, Justice Louis Brandeis wrote:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…

Like Father, Like Son

In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.

Militarization of the Police

There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.

Criminalization of Everything

Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)

But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.

Flashing Lights

Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.

In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”

Videotaping the Police

Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.

So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.

A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.

An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.

Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.

Bigger

The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.

The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”

Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.

There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.

Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Edward Snowden is the Most Dangerous Man in America. Good.

July 21, 2014 // 9 Comments

Tags: hacker, hopex, NSA, Snowden, whistleblowers
Posted in: Military, Police State, Post-Constitution America

Oh yes, yes, Edward Snowden is clearly the most dangerous man in America.

Speaking via video link (he uses Skype!) from Russia to the HopeX hackers’ conference in New York City July 19, Edward Snowden issued a call to arms to those present. Engineers, he said, “need to think now in adversarial terms to defeat government technical capabilities.” While the government now uses technology to shield themselves from accountability, software and hardware must “become a way to express our freedoms while protecting our freedoms.”

Technology and Government

Snowden went on to make a number of important points regarding the new relationship technology has created between the government and the people.

– Technology now makes it possible to publish information without the government’s ability to stop it. While the photocopier was the “killer app” of Daniel Ellsberg’s day, Wikileaks and Snowden’s own revelations show the empowerment potential of technology. Snowden reminded the audience that when the government fears its people (as opposed to the inverse), that is democracy.

– The value of masses of documents– evidence– cannot be understated because it cannot be ignored. Only mass evidence of NSA illegal spying “brought the president to the podium, and the people back to the table of government.”

– Snowden noted his and other whistleblowers’ attempts to “go through channels” with their concerns, but cautioned “The American Revolution was not fought for the right to channels.”

– Secret courts interpreting secret laws to issue secret findings carried out by secret agencies in secret defines much of our world today. The government through this “exploit chain” has shut us out from the process and policies that impact our lives.

– Via his NSA revelations, we now know a new truth about our world, that who we love, who we spend time with, who we hate is now known by people who are not held accountable, not even by the full Congress.

Encoding Our Rights

Snowden’s most important points were part of a call to action for technologists. He emphasized encryption, while very important, only protects content (what is written in your emails) and not metadata (information about to whom you send emails, for example.) This means, encryption or not, everything you communicate is being measured and analyzed; the government is programmatically examining our lives, in bulk, creating layers of suspicion by association. And in that sense, metadata is not about you, or me, it is about us, the collective us, all Americans and all others around the world.

In this sense, what the NSA is doing is perhaps greater, perhaps even worse, than “merely” listening in on what you say or reading what you write. They are, in a broader sense, creating a map of how every global citizen fits in with every other citizen. Pair that with whatever content is collected, and the NSA comes close to knowing everything.

That is why, Snowden told the crowd, the next job for us all, and Snowden’s own future work, will be to encode our rights into our technology, to take away by our own hands and intellect what the government has learned to use against us.

The key is to divorce the connection from the connector, i.e., create unattributable communications that destroy the government’s ability to collect and analyze metadata and run traffic analysis. Snowden gave the example of Tor, a secure enough networking tool. The big weakness of Tor is that the NSA can easily see that a computer has entered the Tor network, allowing them to otherwise easily target that computer, and, if possible, target the person associated with that computer. Same with someone who makes a call using the Verizon network. Divorcing the connection from the connector means cutting those links of association, forcing NSA to have to find some other means of targeting an individual or uncovering broader patterns.

Whistleblowers

A significant issue that holds many potential whistleblowers back is the risk of getting caught. Getting caught in this era means potentially life in prison, loss of family, loss of savings, loss of job and/or loss of status, position and identity. If technologists can lower the risk of getting caught, then that would likely make it more likely that more people would consider acts of patriotism and conscience. It is important that thousands (maybe hundred of thousands?) of people could have done what Snowden did, but only one man did it.

Snowden then made one of his most chilling, and significant points, unexpectedly.

He informed that crowd that there were almost certainly NSA operatives among them as he spoke. He explained that NSA has a budget just for sending people to hacker conferences, to see what they can learn, which people to look at further, and report back. Addressing those NSA people specifically, as well as the mass audience, Snowden challenged them directly to think about the world they wanted to live in, and then help build it.

Comment

Snowden just upped his game. In addition to his own work and revelations, he is now directing how others should proceed. He is combining technology and patriotism, whistleblowing and philosophy.

The NSA may be right; Edward Snowden may be the most dangerous man (virtually) in America.

Note: The presentation was built around a three-way discussion among Daniel Ellsberg, Trevor Timm and Ed Snowden. I’ve only reported on Snowden’s remarks, though seeing him interact with Ellsberg was like what I imagined being in the room would have been like when Bruce Springsteen met Pete Seeger.

Here’s the full audio of the presentation if you’d like to listen.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Interview with KGNU: Ghosts of Tom Joad

July 20, 2014 // 1 Comment

Tags: interview, piketty, Radio
Posted in: #99Percent, Economy, Minimum Wage

I recently spoke with KGNU‘s Claudia Cragg about my personal work experience at a store I call “Bullseye,” in the minimum wage Big Box economy and how this led to Ghosts of Tom Joad: A Story of the #99Percent.


Ghosts looks up close at the drastic effects of social and economic changes in America between WWII and the decline of the blue collar middle class in the 1980’s right up to today.

Have a listen to the full interview.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

U.S. Spying on Germany: Breaking the Rules for What?

July 19, 2014 // 5 Comments

Tags: CIA, germany, NSA, spy
Posted in: Embassy/State, Police State

In the world of spying in general, and especially when you’re spying on allied nations, Rule No. 1 is “Don’t Get Caught.” Rule No. 2 is “Make Sure the Juice is Worth the Squeeze.” The U.S. broke both rules, several times, in Germany. For what?

Rule No. 1: Don’t Get Caught

Getting caught spying is never a good idea. Want to end a relationship? Have your girlfriend discover you looking through her cell phone. The same applies to nations. Though the adage “everyone spies on everyone” and its antecedent “spying is the world’s second oldest profession” are true, getting caught trumps both, especially when spying on a friendly nation.

In Germany, the U.S. was caught. Several times.

The Snowden revelations showed that not only did the United States (via the NSA) spy on Germany as a whole, vacuuming up all sorts of communications, but that it drilled down to the level of spying on Chancellor Angela Merkel’s personal cell phone. Recently, however, two more examples emerged.

The first involved a mid-level employee of the German intelligence service, arrested on July 2. The employee, identified only as Markus R., became of interest in May after he sent an email to the Russian consulate in Munich offering classified information. He even attached a sample intelligence document to his email, information suggesting another German official was a Russian spy.

German counterintelligence officials set up a trap, replying to Markus R. using a fake Russian email address, suggesting a meeting. Markus R. didn’t bite. Seeking help, the Germans forwarded Markus’ Gmail address to the Americans, asking if they recognized it. No reply from the Americans. Instead, Markus R.’s email address suddenly shut down. The Germans arrested Markus, who rolled over and provided proof he was spying for the U.S.

That other German official, maybe a Russian spy Markus dangled in front of the Russians? That took a curious twist. It turns out that German intelligence had had the guy on its radar since 2010, and had learned the man had taken trips paid for by an “American friend.” Soon after the Germans raided the guy’s home and, perhaps by coincidence, then immediately expelled the head of the CIA resident in Germany.

How Not to Get Caught

Sometimes things just go belly-up and there is not much you could have done. But often times there are things you could have done.

To begin, one must vet one’s agents, the foreign citizen who is paid to spy for you on his own country. Is he a flake? A fake? A glory seeker, an adventurer, a Walter Mitty-type? Has he shopped his information around to other spies? What is his motivation? If you pay him a lot of money, will he do stupid things like suddenly start buying luxury goods on a clerk’s salary? What are his weaknesses– if he talks too much to you when drunk, maybe he’ll do the same with others. If he can be played with women, men, drugs, gambling or whatever, well, the other side(s) knows how to do that too. The answers to these questions can help predict whether or not he can be trusted. After all, by your choosing to work with him, he now knows some of your secrets too.

Next up is assessing his ability to spy for you without doing things that will compromise the action. Does he understand how to communicate securely, how to be discreet, how to acquire documents without alerting his employer? Is he teachable, can he follow instructions on how to do all those things? If you give him secure ways to communicate, does he use them all the time, or does he panic and call over open channels? (Markus R., after his initial email(s), was apparently given a secure communications device by his American handler.)

What about the host nation? How good are they at counter-intelligence? How good are you at counter-counter-intelligence, knowing what they know about your activities? This dictates how much caution and discretion needs to be involved.

Markus R. apparently offered himself directly to the U.S. via an open email, and then went on to try the same with the Russians. In the latter instance, he communicated openly over Gmail, even attaching a sensitive document. Given the furor over the Snowden revelations in Germany, and his own position inside the German intelligence operation, it is impossible that he was unaware of the boneheadedness of such actions. This should have been a full-blown emergency sign inside the CIA.

Finally, don’t make it easy for the other side to catch you. Slamming shut the Gmail account right after the Germans asked the U.S. about it pretty much sealed the deal.

All of this brings us to Rule No. 2.

Rule No. 2: Is the Juice Worth the Squeeze?

In other words, for any given information (the juice), what effort is required to obtain it (the squeeze)? Similarly, what is the potential fallout if the squeeze is exposed? In the German caper, the violation of Rule No. 2 seems near-complete.

Following the Snowden revelations, it was dead solid perfect obvious that anything to do with additional spying inside Germany, never mind spying on Germany, would be sensitive enough to immediately reach the highest levels of both governments. That should have set off a careful evaluation of activity, with a risk analysis of each and every operation ongoing or planned. The question that should have been being asked was “If this gets out, given the likely bilateral fallout, can we justify that by what we learned?” In other words, was the info acquired so valuable to the U.S. that it was worth the firestorm that followed?

It does not appear that risk analysis was done, or if it was done, that anyone paid attention to it. Though full details are of course (for now…) unknown, it appears that Markus R. did not turn over documents critical to U.S. national security. Some reports claim what he revealed mostly dealt with what the German’s were doing about the earlier NSA revelations. According to one news source, Markus “admitted passing to an American contact details concerning a German parliamentary committee’s investigation of alleged U.S. eavesdropping disclosed by Edward Snowden.”

Though some agents are bought off very cheaply by the CIA, that seems less applicable in a first world nation such as Germany. You often do get what you pay for; the U.S. allegedly only paid Markus R. about $34,000.

Further risk was assumed by possibly involving a third country, also an ally. Reports suggest Markus R. traveled to Austria to meet his CIA handler, and that the whole operation was run primarily out of Austria. That can push the disruption of relations across a second border with little if any potential benefit to the United States.

Fallout?

There have been short-term negatives. The German Interior Ministry said it would cancel a contract with Verizon Communications. “The links revealed between foreign intelligence agencies and firms,” the ministry said in a statement, “show that the German government needs a high level of security for its essential networks.” A lot of rhetoric will pass. There is no doubt that American intelligence officers in Germany will come under greater scrutiny, likely reducing their effectiveness. Some points of intel cooperation between the U.S. and Germany may suffer.

But U.S.-German relations are long, deep and complex. The Markus R. incident, like the NSA revelations, will be hard to track in the broader picture. It will be hard to pinpoint specific changes in the relationship, as they will be subtle if not classified, or because they may not even occur.

Perhaps though the bigger lesson here is more domestic than foreign. Obama claims he was not informed of the Markus R. case, as he claimed he was not informed of NSA spying on Merkel’s cell phone. Was CIA action in the Markus case (and the NSA’s earlier actions) sensitive to their implications? Did the CIA act in concert with broader U.S. government goals and aims, or did they act with a lack of concern? The answers to those questions may tell us more about how things are working inside our own government than anything to do with foreign relations.

BONUS: There is a Rule No. 3, but if I told you that I’d have to kill you…

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Another Whistleblower Speaks Out: Air Force Contract Fraud

July 18, 2014 // 16 Comments

Tags: Air Force, contractors, ferner, nellis, saic, Whistleblower
Posted in: Afghanistan, Military

Looking for a new hero? Meet former Air Force Lieutenant Colonel Tim Ferner, who exposed millions in U.S. government contract fraud, and paid the price for his patriotism.

Contract Fraud with Your Money

Tim Ferner blew the whistle on a contract-steering scam involving a middleman in Florida and an engineering company hired to develop anti-terrorism techniques.

Tim Ferner suspected the scam in 2007 when his superiors at the Coalition and Irregular Warfare Center downplayed his concerns about how contracts were being doled out. Science Applications International Corporation (SAIC), received those contracts.

Ferner tried to go through military channels to stop the fraud he witnessed, Instead of helping, his superiors made his life difficult, even threatening to deploy him to Afghanistan while he was undergoing cancer treatment. Ultimately, he was fired from his job as Chief of Staff for the Coalition and Irregular Warfare Center at Nellis Air Force Base and relegated to a menial position. With channels closed off and retaliation underway, the case went to court.

Settlements

SAIC and the government reached a settlement. The Department of Justice went to pains to note the settlement contained “allegations only and there has been no determination of liability.” However, SAIC agreed to pay the government $5.75 million to resolve allegations it circumvented the bidding process to obtain lucrative contracts.

Ferner’s lawyers claimed the alleged scam was facilitated by a civilian middleman who “claimed to be a high-ranking government official who had authority to bypass the bidding process, none of which was true.” Ferner himself “was alarmed that his military supervisors condoned and wanted to cover up the violation.”

And hey, small world: SAIC around the same time also paid the government $11.75 million to settle allegations it charged inflated prices for another, unrealted, contract.

EXCLUSIVE: Ferner Recounts His Whistleblowing

Ferner received a nice financial award under the False Claims Act, and left the U.S. for New Zealand. In an exclusive, he speaks out on his own experience as a whistleblower, with some hard words for America about how its government works:

Exactly one year after my whistle-blowing case became public, I’m looking back and wondering: “What the hell was I thinking?” Like many whistleblowers, my allegations were validated; I was vindicated but nobody was ever held accountable. So actually, what was accomplished?

My case pales in comparison to others working in the government who have come across really bad people doing horrendous things. All across America there are thousands of regular people, brave men and women who happen upon malfeasance. These people had the courage and conviction to do the right thing and report it. Why? Like myself, these people did the right thing because honor and integrity are the core essence of who they are. Unfortunately, honesty, integrity and dedication to professionalism are dying traits across America and individuals who demonstrate these qualities are punished, especially those who work within the government sector.

I’ve always felt that as a member of the United States military it was an honor and privilege to serve a great nation. And that, in addition to my legal obligations, I had a moral obligation to ensure that the monies the American people paid were spent in the most effective and efficient manner. I always treated government monies the same as my own personal money and spent it judiciously. Unfortunately, other military members and government employees don’t hold the same view. Consequently, millions and millions of taxpayers’ dollars are wasted needlessly. Like thousands of other whistle-blowers working for the government, I found out what happens when you have the audacity to call them out on fraud, waste and abuse and try and hold people accountable.

The terrorist attacks that occurred on 9/11 changed our country in many ways. People don’t recognize that it’s changed the way the government provides safety and security to the people. The government embraced contractors to provide security in keeping America safe. We seem to be safer but at what cost? This decision has transformed the governmental contracting process into something akin to a gigantic hog’s trough. The government pours an endless supply of money into the trough and the contractors continue to “belly up” and feed totally unchecked. The government provides little oversight over monies spent and a fearful public doesn’t care so long as they think they are safe.

Consequently, unscrupulous individuals continue to line their pockets at our expense. Even when they are caught, the government does nothing and seemingly doesn’t care. Contractors pay huge fines under the auspices of “avoiding the costs of protracted litigation” while the individuals involved plead to lesser charges in exchange for working with prosecutors. The fraud, waste and abuse is so prevalent that this ridiculous cycle is the only way to keep it in check. The “Justice System” is devoid of any justice or accountability; it’s solely a process designed to make it look like something is being done.

I uncovered in excess of $42 million in fraud. Despite this, nobody has been prosecuted or held accountable. Like so many other contractors, a multimillion dollar settlement was paid to the government to “costly, protracted litigation.” The individual operating as the “middleman” was ultimately found to be liable for $42 million. Despite this, he negotiated this down and paid a fine of $105,000 in exchange for providing assistance to the government in “ongoing investigations.” Amazingly, all these people still have security clearances and still work as a contractors for the government. What message does this send about the government’s commitment to honesty and integrity in the contracting community?

The Air Force officers responsible for overseeing the programs involved in the fraud all walked away with no repercussions to their careers. The taxpayers paid a lot of money to some very senior officers to not be held accountable. A sad commentary that in today’s Air Force, the moral fibre of the command environment is so fetid that it views fraud as a normal cost of doing business. Nice to know the senior leaders who are deciding the fate of your sons and daughters get that privilege given their lack of morality. How can we expect them to make an appropriate decision on the sanctity of life when they lack the morality to decide simple things like what’s right and wrong concerning contract fraud? Aren’t the military supposed to be above the pettiness of politics? Or has the military just become another breeding ground for the dysfunctional politicians that now stymie our political system? Given the fiscal state of the country people should be outraged!

Like so many other whistle-blowers; I know in my heart I did the right thing in reporting the fraud. And again, like so many other whistle-blowers I was the only one who paid a price throughout the ordeal. Ostracised, targeted and ultimately punished because I had the audacity to believe we the people deserve better. When are we going to start holding people accountable? Like other whistleblowers; I’ve done my part. Everybody needs to do their part. It’s hard for others to look at maleficence in government and report it when they see how whistleblowers are treated but more needs to be done.

I hope you never find yourself in the unenviable position of being a whistleblower; and I mean that. Yeah, I got a nice settlement for my troubles as a whistleblower but that’s not why I did it. I did it because it was the right thing to do. Knowing what I know now, I’m still looking back thinking; “What the hell was I thinking?”

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Shredding the Fourth Amendment in Post-Constitutional America

July 17, 2014 // 6 Comments

Tags: First Amendment, Fourth Amendment, HIPPA, NSA, stingray
Posted in: Democracy, Police State, Post-Constitution America

Here’s a bit of history from another America: The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now, in Post-Constitutional America.

The Fourth Amendment

A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.

The Constitutional Borderline

Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.

Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.

There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.

Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)

Making It All Constitutional In-House

Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: The Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.

Some background: A warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”

A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.

The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: The DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.

It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.

How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.

Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth Amendment

Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.

To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.

With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”

Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: The need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.

What does all this mean in terms of the Fourth Amendment? It’s simple: The technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.

On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers. 

In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.

Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

National Security Disclosures Under HIPPA

While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: Since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.

Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.

How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.

Our health care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.

How the Unreasonable Becomes Reasonable

At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.

In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

What We’ve Lost Since 9/11: The First Amendment in Post-Constitutional America

July 16, 2014 // 12 Comments

Posted in: * Most Popular, Democracy, Post-Constitution America

America has entered its third great era: the post-constitutional one. In the first, in the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.

In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. Now, we are wading into the shallow waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.

Deeper, darker waters lie ahead and we seem drawn down into them. For here there be monsters.

The Powers of a Police State Denied

America in its pre-constitutional days may seem eerily familiar even to casual readers of current events. We lived then under the control of a king. (Think now: the imperial presidency.) That king was a powerful, unitary executive who ruled at a distance. His goal was simple: to use his power over “his” American colonies to draw the maximum financial gain while suppressing any dissent that might endanger his control.

In those years, protest was dangerous. Speech could indeed make you the enemy of the government. Journalism could be a crime if you didn’t write in support of those in power. A citizen needed to watch what he said, for there were spies everywhere, including fellow colonists hoping for a few crumbs from the king’s table. Laws could be brutal and punishments swift as well as extra-judicial. In extreme cases, troops shot down those simply assembling to speak out.

Among the many offenses against liberty in pre-constitutional America, one pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion of wrongdoing. American privacy was violated and property ransacked, often simply as a warning of the king’s power. Some colonist was then undoubtedly the first American to mutter, “But if I have nothing to hide, why should I be afraid?” He soon learned that when a population is categorically treated as a potential enemy, everyone has something to hide if the government claims they do.

The Stamp Act and the flood of kingly offenses that followed created in those who founded the United States a profound suspicion of what an unchecked government could do, and a sense that power and freedom are not likely to coexist comfortably in a democracy. A balancing mechanism was required. In addition to the body of the Constitution outlining what the new nation’s government could do, needed was an accounting of what it could not do. The answer was the Bill of Rights.

The Bill’s preamble explained the matter this way: “…in order to prevent misconstruction or abuse of [the government's] powers, that further declaratory and restrictive clauses should be added.” Thomas Jefferson commented separately, “[A] bill of rights is what the people are entitled to against every government on earth.”

In other words, the Bill of Rights was written to make sure that the new government would not replicate the abuses of power of the old one. Each amendment spoke directly to a specific offense committed by the king. Their purpose collectively was to lay out what the government could never take away. Knowing first-hand the dangers of a police state and unchecked power, those who wrote the Constitution wanted to be clear: never again.

It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed “humanity,” but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation’s Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.

Still, for more than two centuries, the meaning of the Bill of Rights was generally expanded, though — especially in wartime — it sometimes temporarily contracted. Yet the basic principles that guided America were sustained despite civil war, world wars, depressions, and endless challenges. Then, one September morning, our Post-Constitutional era began amid falling towers and empty skies. What have we lost since? More than we imagine. A look at the Bill of Rights, amendment by amendment, tells the tale.

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”

That was how it was seen long ago. In Post-Constitutional America, however, the government strives to “control the message,” to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson’s powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let’s just look at a few important ones that tell the tale of what we have lost since 9/11.

(Lack of) Freedom of Information

In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available — and quickly — to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.

Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.

Most federal agencies now regard the deadline mandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.

In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.

John Young, who runs the web site Cryptome and is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”

Sealed Lips and the Whistleblower

All government agencies have regulations requiring employees to obtain permission before speaking to the representatives of the people — that is, journalists. The U.S. Intelligence Community has among the most restrictive of these policies, banning employees and contractors completely from talking with the media without prior authorization. Even speaking about unclassified information is a no-no that may cost you your job. A government ever more in lockdown mode has created what one journalist calls a “culture where censorship is the norm.”

So who does speak to Americans about their government? Growing hordes of spokespeople, communications staff, trained PR crews, and those anonymous “senior officials” who pop up so regularly in news articles in major papers.

With the government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those inside locked behind an iron curtain of secrecy, the whistleblower has become the paradigmatic figure of the era. Not surprisingly, anyone who blows a whistle has, in these years, come under fierce attack.

Pick a case: Tom Drake exposing early NSA efforts to turn its spy tools on Americans, Edward Snowden proving that the government has us under constant surveillance, Chelsea Manning documenting war crimes in Iraq and sleazy diplomacy everywhere, John Kiriakou acknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In each instance, the threat of jail was quick to surface. The nuclear option against such truthtellers is the Espionage Act, a law that offended the Constitution when implemented in the midst of World War I. It has been resurrected by the Obama administration as a blunt “wartime” tool for silencing and punishing whistleblowers.

The Obama administration has already charged six people under that act for allegedly mishandling classified information. Even Richard Nixon only invoked it once, in a failed prosecution against Pentagon Papers whistleblower Daniel Ellsberg.

Indeed, the very word “espionage” couldn’t be stranger in the context of these cases. None of those charged spied. None sought to aid an enemy or make money selling secrets. No matter. In Post-Constitutional America, the powers-that-be stand ready to twist language in whatever Orwellian direction is necessary to bridge the gap between reality and the king’s needs. In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent, ruling that the prosecution need not even show that the information leaked to a Fox news reporter from a CIA report on North Korea could damage U.S. national security or benefit a foreign power. It could still be a part of an “espionage” charge.

A final question might be: How could a law designed almost 100 years ago to stop German spies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did free speech become a crime?

Self-Censorship and the Press

Each person charged under the Espionage Act in these years was primarily a source for a journalist. The writers of the Bill of Rights chose to include the term “press” in the First Amendment, specifically carving out a special place for journalists in our democracy. The press was necessary to question government officials directly, comment on their actions, and inform the citizenry about what its government was doing. Sadly, as the Obama administration is moving ever more fiercely against those who might reveal its acts or documents, the bulk of the media have acquiesced. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”

For example, a survey of reporters showed “the percentage of U.S. journalists endorsing the occasional use of ‘confidential business or government documents without authorization,’ dropped significantly from 81.8% in 1992 to 57.7% in 2013.” About 40% of American journalists would not have published documents like those Edward Snowden revealed.

And the same has been true of the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006, the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans.

Government Efforts to Stop Journalists

Reporters need sources. Increasingly, the government is classifying just about any document it produces — 92 million documents in 2011 alone. Its intelligence agencies have even classified reports about the over-classification of documents.  As a result, journalistic sources are often pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sources discourages future whistleblowing.

In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.

According to Washington lawyer Abbe Lowell, who defended Stephen Kim, significant amounts of time have been spent by the Department of Justice in the search for a legal rationale for indicting journalists for their participation in exposing classified documents. A crucial test case is James Risen’s 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’s nuclear program. When Risen, citing the First Amendment, refused to identify his source or testify in the trial of the former CIA officer accused of being that source, the government sought to imprison him. He responded that the “Obama administration… wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.”

In June 2014, the Supreme Court refused to take Risen’s case on appeal, essentially ratifying a U.S. Court of Appeals decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.” That decision makes clear that a reporter receiving classified information from a source is part of the crime of “leaking.”

Risen has said he will go to prison rather than testify. It is possible that, having secured the precedent-setting right to send Risen to jail, the government will bring the suspected leaker to trial without calling on him. Attorney General Eric Holder recently hinted that his Justice Department might take that path — a break for Risen himself, but not for reporters more generally who now know that they can be jailed for refusing to divulge a source without hope of recourse to the Supreme Court.

The Descent Into Post-Constitutionalism

As with the King of England once upon a time, many of the things the government now does have been approved in secret, sometimes in secret courts according to a secret body of law. Sometimes, they were even approved openly by Congress. In constitutional America, the actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying constitutional principles of our democracy. Not any more. “Law” made in secret, including pretzeled legal interpretations by the Justice Department for the White House, opened the way, for instance, to the use of torture on prisoners and in the Obama years to the drone assassination of Americans. Because such “legalities” remain officially classified, they are, of course, doubly difficult to challenge.

But can’t we count on the usual pendulum swings in American life to change this? There were indeed notable moments in American history when parts of the Constitution were put aside, but none are truly comparable to our current situation. The Civil War lasted five years, with Lincoln’s suspension of habeas corpus limited in geography and robustly contested. The World War II Japanese internment camps closed after three years and the persecuted were a sub-set of Japanese-Americans from the West Coast. Senator McCarthy’s notorious career as a communist-hunter lasted four years and ended in shame.

Almost 13 years after the 9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.

The usual critical history of our descent into a post-constitutional state goes something like this: in the panic after the 9/11 attacks, under the leadership of Vice President Dick Cheney with the support of President George W. Bush, a cabal of top government officials pushed through legal-lite measures to (as they liked to say) “take the gloves off” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along with indefinite detention without charges or trial.

Barack Obama, elected on a series of (false) promises to roll back the worst of the Bush-era crimes, while rejecting torture and closing America’s overseas “black sites,” still pushed the process forward in his own way. He expanded executive power, emphasized drone assassinations (including against American citizens), gave amnesty to torturers, increased government secrecy, targeted whistleblowers, and heightened surveillance. In other words, two successive administrations lied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen since the days of King George. That’s the common narrative and, while not wrong, it is incomplete.

Missing Are the People

One key factor remains missing in such a version of post-9/11 events in America: the people. Even today, 45% of Americans, when polled on the subject, agree that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Americans as a group seem unsure about whether the NSA’s global and domestic surveillance is justified, and many remain convinced that Edward Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is still “patriot or traitor?” and toward the war on terror, “security or freedom?”

It’s not that Americans are incorrect to be fearful and feel in need of protection. The main thing we need to protect ourselves against, however, is not the modest domestic threat from terrorists, but a new king, a unitary executive that has taken the law for its own, aided and abetted by the courts, supported by a powerful national security state, and unopposed by a riven and weakened Congress. Without a strong Bill of Rights to protect us — indeed, secure us — from the dangers of our own government, we will have gone full-circle to a Post-Constitutional America that shares much in common with the pre-constitutional British colonies.

Yet there is no widespread, mainstream movement of opposition to what the government has been doing. It seems, in fact, that many Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time.

We are the first to see, in however shadowy form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it. 

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

No-Fly List Appeals System Declared Unconstitutional

July 15, 2014 // 3 Comments

Tags: ACLU, FBI, No Fly List, oregon, redress, TSA
Posted in: Democracy, Police State, Post-Constitution America

No-Fly is No Fair.

People on the government’s no-fly list are denied their constitutional right to due process, because the government’s procedures to challenge inclusion on the secretive roster are “wholly ineffective,” U.S. District Judge Anna Brown declared in a case brought by thirteen American citizens and supported by the ACLU.

Important: The court did not declare the no-fly list itself unconstitutional per se, but did say that the lack of any effective system for knowing you are on the list (absent showing up at the airport and being denied boarding) and especially the lack of any real procedure for trying to clear your name and get off the list, are unconstitutional under the Fifth Amendment, as they deny people the Constitutional right to due process. Due process basically means the government cannot punish you, or take something away from you, without giving you the right to challenge that decision, typically in court with a lawyer.

Specifically, in a 65-page opinion, the Oregon judge ordered the government to come up with a new way for the thirteen plaintiffs to contest their inclusion on the no-fly list that prohibits them from flying in or through U.S. airspace. The government must provide notice to the plaintiffs that they are on the list and give the reasons for their inclusion. The judge also ordered that the government allow the plaintiffs to submit evidence to refute the government’s suspicions.

There is nothing, however, in the judge’s decision that negates or otherwise does away with the no-fly list. Because her decision took place only in a District Court, the government may appeal the case, perhaps as far as the Supreme Court.

What is the Current Appeals Process Like for the No-Fly List?

Understanding the importance of the judge’s decision requires understanding how the no-fly List “appeals” process works currently.

If you find yourself denied boarding, you must contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.

You are not currently allowed to know why, or based on what information, you are on the no-fly list. You just are. While you can ask a lawyer to help you prepare whatever you submit to DHS, you cannot be represented because you cannot otherwise interact with DHS.

The government argues in return that national security prevents a more open system– they can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.

What if You’re Not a Terrorist?

If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number that clears your name in theory, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.

There are no deadlines for an answer from DHS. They may take weeks, months or forever to reply to you. Meanwhile, you, as an official dangerous person, will be able to travel by ship, train, bus, rental car, horseback, donkey cart, ferry, private rented plane, unicycle or other means. Of course none of those conveyances have TSA screening or security.

How Do You Get on No-Fly in the First Place?

On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.

The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.

Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.

A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.

Want to read about the ultimate No-Fly list nightmare?

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

Stung: Government Disappears Stingray Spying Records

July 14, 2014 // 3 Comments

Tags: ACLU, cell, FBI, florida, harris, NSA, stingray
Posted in: Iraq, Police State, Post-Constitution America

We’ve heard variations on the phrase “If you have nothing to hide, you have nothing to fear” from the government for quite some time. It appears this may be true, at least if you are the government.

In the case of Stingray, a cell phone spying device used against Americans, the government does have something to hide and they fear the release of more information. Meanwhile, the Fourth Amendment weeps quietly in the corner.

Stingray

Cell phone technology is very useful to the cops to locate you and to track your movements. In addition to whatever as-yet undisclosed things the NSA may be up to on its own, the FBI acknowledges a device called Stingray to create electronic, “fake,” cell phone towers and track people via their phones in the U.S. without their knowledge. The tech does not require a phone’s GPS. This technology was first known to have been deployed against America’s enemies in Iraq, and it has come home to be used against a new enemy– you.

Stingray, also known as an International Mobile Subscriber Identity, or IMSI, catcher, works like this. The cell network is designed around triangulation and whenever possible your phone is in constant contact with at least three towers. As you move, one tower “hands off” your signal to the next one in your line of motion. Stingray electronically inserts itself into this process as if it was a (fake; “spoofed”) cell tower itself to grab location data before passing your legitimate signal back to the real cell network. The handoffs in and out of Stingray are invisible to you. Stingrays also “inadvertently” scoop up the cell phone data of anyone within several kilometers of the designated target person. Though typically used to collect location metadata, Stingray can also capture conversations, texts and mobile web use if needed.

Stingray offers some unique advantages to a national security state: it bypasses the phone company entirely, which is handy if laws change and phone companies no longer must cooperate with the government, or simply if the cops don’t want the phone company or anyone else to know they’re snooping.

This has led the Electronic Frontier Foundation (EFF) to warn “A Stingray— which could potentially be beamed into all the houses in one neighborhood looking for a particular signal— is the digital version of the pre-Revolutionary war practice of British soldiers going door-to-door, searching Americans’ homes without rationale or suspicion, let alone judicial approval… [Stingray is ] the biggest technological threat to cell phone privacy.”

Trying to Learn about Stingray

Learning how Stingray works is difficult.

The Electronic Privacy Information Center filed a FOIA request for more information on Stingrays, but the FBI is sitting on 25,000 pages of documents explaining the device that it won’t release.

The device itself is made by the Harris Corporation. Harris makes electronics for commercial use and is a significant defense contractor. For Stingray, available only to law enforcement agencies, Harris requires a non-disclosure agreement that police departments around the country have been signing for years explicitly prohibiting them from telling anyone, including other government bodies, about their use of the equipment “without the prior written consent of Harris.”

A price list of Harris’ spying technology, along with limited technical details, was leaked online, but that’s about all we know.

Though the non-disclosure agreement includes an exception for “judicially mandated disclosures,” there are no mechanisms for judges even to learn that the equipment was used at all, thus cutting off any possibility they could know enough demand disclosure. In at least one case in Florida, a police department revealed that it had decided not to seek a warrant to use the technology explicitly to avoid telling a judge about the equipment. It subsequently kept the information hidden from the defendant as well. The agreement with Harris goes further to require law enforcement to notify Harris any time journalists or anyone else files a public records request to obtain information about Stingray and also demands the police department assist Harris in deciding what information to release.

Something to Hide

An evolving situation in Florida shows how hard the government is working to keep the details of its Stingray spying on Americans secret.

The ACLU originally sought Stingray records in Sarasota, Florida after they learned a detective there obtained permission to use the device simply by filing an application with a local court, instead of obtaining a probable-cause warrant as once was required by the Fourth Amendment of the Constitution. It became clear that the Sarasota police had additionally used Stingray at least 200 times since 2010 without even the minimal step of even notifying a judge. In line with the non-disclosure agreement, very rarely were arrested persons advised that Stingray data was used to locate and prosecute them.

The ACLU, which earlier in 2014 filed a Florida state-level FOIA-type request with the Sarasota police department for information detailing its use of Stingray, had an appointment with the local cops to review documents. The local police agreed to the review. However, the June 2014 morning of the ACLU’s appointment, U.S. Marshals arrived ahead of them and physically took possession of the files. The Marshals barred the Sarasota police from releasing them. The rationale used by the federal government was that having quickly deputized a Sarasota cop, all Sarasota records became federal property.

“This is consistent with what we’ve seen around the country with federal agencies trying to meddle with public requests for Stingray information,” an ACLU spokesperson said, noting that federal authorities have in other cases invoked the Homeland Security Act to prevent the release of such records. “The feds are working very hard to block any release of this information to the public.”

A Court Says the Feds Can Hide the Records

Following the feds’ seizure of the Stingray records, the ACLU filed an emergency motion with a Florida court that would require Sarasota to make its Stingray records available. However, in a decision issued June 17, 2014, a Florida state circuit court judge found that his court lacked jurisdiction over a federal agency, allowing the transfer of the Stingray documents to the feds and de facto blocking their release.

The ACLU plans further appeals. Unless and until they succeed, details of another way of spying on Americans will remain secret. The government does indeed have something to hide.

Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!