The DHS Has Been Using A Fake Mexican Constitution Article To Deport US Citizens For 35 Years

from the every-deportation-justifies-the-lie dept

We're used to our government's security and intelligence agencies telling lies in order to justify their actions. The Director of National Intelligence, James Clapper, has achieved a sort of infamy for his "least untruthful answer" in response to questioning. (Not that this infamy has cost him his job…) Others have performed linguistic aerobics ("not under this program," "relevant to…") to stretch the truth just enough to give their activities a thin veneer of legitimacy.

The DHS does it, too. However, when it lies, it goes big, and it plays a long, long con.

For more than two decades, Sigifredo Saldana Iracheta insisted he was a U.S. citizen, repeatedly explaining to immigration officials that he was born to an American father and a Mexican mother in a city just south of the Texas border.

Year after year, the federal government rejected his claims, deporting him at least four times and at one point detaining him for nearly two years as he sought permission to join his wife and three children in South Texas.

In rejecting Saldana's bid for citizenship, the government sought to apply an old law that cited Article 314 of the Mexican Constitution, which supposedly dealt with legitimizing out-of-wedlock births. But there was a problem: The Mexican Constitution has no such article.

NPR calls it an "error." Jeff Gamso, public defender and former criminal defense lawyer, calls it something else.

Our government's been lying to the courts about this since at least 1978 when the Immigration and Naturalization Service first invented Article 314 of the Mexican Constitution as a convenient way to deny citizenship to and thus deport American citizens.

The opinion from the Fifth Circuit Court of Appeals isn't as generous as NPR, either.

DHS officers and the Administrative Appeals Office (“AAO”) within DHS have relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claims they say.

The DHS, however, was very generous towards its previously uninterrupted 35-year exploitation of a non-existent constitutional article.

Saldana's case was finally resolved earlier this month, when the 5th U.S. Circuit Court of Appeals dismissed the government's explanation of a "typo" and ruled that he had been a citizen since birth.

A "typo." That sounds familiar. The NSA used the same excuse for its collection of tons of domestic data when it claimed analysts accidentally entered US area codes rather than codes tied to foreign countries. It was a "typo," and the DHS never bothered to correct it for 35 years and then only because it was called out by a federal court.

And this isn't the only lie/error in the DHS' case. It also pointed to another article of the Mexican Constitution to deny Saldana's claims of citizenship -- Article 130. Fortunately, for the DHS, this article actually exists. Unfortunately for its hopes of barring Saldana from the country for the fifth time, what it says isn't anywhere near what is claimed.

The AAO also cited Article 130 of the Constitution of Mexico for the same proposition that the Constitution requires that parents be married in order for children to be legitimated. However, Article 130 provides only that marriage is a civil contract, as opposed to a religious one, and says nothing about legitimation or children.

Why would the government repeatedly lie in order to prosecute and deport legal US citizens? Gamso answers this question very succinctly.

Because it can.

It got away with this one for 35 years. Why should it stop? Three-and-a-half decades of reliance on a wholly fabricated article of a constitution it (correctly) assumed no one would actually bother looking up. In retrospect, it seems audacious. But the reality of the situation is that the government got away with a lie for more than three decades and that fact alone is enough to encourage it to deploy useful lies in any situation where it thinks misstating the facts will give it an edge or help it achieve its aims.

Filed Under: deportation, dhs, immigration, lying, mexican constitution, mexico

EFF Lawsuit Uncovers Abuse Of Surveillance Drones; DHS Files Motion To Suppress Further Transparency

from the it's-so-GREAT-that-we-have-to-sue-our-government-so-often-#americandream dept

About a week ago, the EFF obtained documents (via a FOIA lawsuit) detailing usage of CBP's (Customs and Border Protection) fleet of Predator drones. Nothing much has changed since the last time this subject was visited (back in July): the CBP is still acting like a drone lending library, loaning out its drones to everyone, from the FBI and DEA to DPS offices, the Bureau of Indian Affairs and various military entities. What has changed is just how many agencies have been recipients of the CBP's largesse.

First off, there's a "problem" with the DOJ's internal accounting. According to the recent OIG report, DOJ agencies have only used the CBP's drones twice. The list obtained by the EFF shows that DOJ agencies have utilized these drones more than 100 times. Even an internal inspection failed to uncover the breadth of the CBP's drone deployment.

Beyond this misstatement (or whatever the DOJ will claim it is), the CBP's indiscriminate drone loans have become somewhat of a community outreach program.

The list also includes several county sheriff’s departments. However, CBP has refused to release the names of these agencies, arguing in a recent court filing that to do so would disclose secret law enforcement techniques and would somehow “reveal that CBP is aware of the illegal activities taking place in a particular location.” It’s hard to fathom how releasing the name of a county sheriff department—without any other information about the drone flight for that department—would somehow let the criminals in the area know they’re being watched and help them evade detection.

Worst case scenario, criminals would now be aware there's a chance their local sheriff's department might have sporadic access to surveillance drones and govern themselves accordingly. Seems like a long shot to claim that current investigations might be compromised. If the criminals are staying current with EFF and ACLU document liberations, then it's safe to assume they've already adjusted their activities to account for potential drone usage.

But the argument the CBP is pushing isn't really about protecting ongoing investigations. It's about maintaining the opacity the CBP was used to. It doesn't want to talk about its indiscriminate lending and deployment of surveillance drones because this might uncover illegal uses and constitutional violations. This summary judgment motion is the DHS (which oversees the CBP) indicating it's no longer interested in being forced to be transparent -- a tactic that echoes the UK's intelligence agency reps telling The Guardian while observing the forced hard drive destruction, "You've had your debate. There's no need to write more."

The DOJ certainly doesn't want any more info to be liberated by agencies looking after the rights of Americans. Why? Because it has deployed drones for seven years without putting together even the most minimal of privacy policies. It's finally being forced to do so thanks to the highly-critical OIG report, but it comes roughly seven years too late.

The EFF has expressed the hope that the DOJ will craft policies "with some meat on them," but early responses from various agencies indicate that they're fine with minimal guidance and oversight and point to existing rules governing manned surveillance flights as being more than adequate. According to these officials, there's no "practical difference" between the two. But that's completely wrong.

“The main difference is that UAS will drive down the cost of aerial surveillance quite radically, as well as permit smaller and more invasive and longer flying, or even persistent, aerial platforms for surveillance,” Peter Asaro, a drone expert and professor of media studies at the New School, told Ars. “The implications of these technological shifts are that such surveillance can be done much more readily and may even become ubiquitous. This has an obvious and definite impact on privacy, whether that surveillance is being conducted by police forces and the Department of Justice, or whether it is being conducted by private citizens and companies.”

Even the OIG calls out the DOJ for treating the two as interchangeable:

The OIG recognized what EFF has been saying all along—that the advanced technological capabilities of drones, their low operational costs as compared to manned aircraft, and their ability to conduct “pervasive tracking of an individual’s movements” whether on “public or private property “ raise “unique concerns about privacy and the collection of evidence.”

The government is currently fighting to keep its redactions intact, all the while showing it clearly can't be trusted to responsibly deploy the technology under its command.

Filed Under: cbp, customs and border protection, dhs, drones, transparency
Companies: eff

Former DHS Chief Privacy Officer Recounts How She Was Regularly Called A 'Terrorist' By The Intelligence Community

from the sickening dept

Mary Ellen Callahan was the Chief Privacy Officer (and the Chief Freedom of Information Act Officer) at the Department of Homeland Security from 2009 until 2012 (though, don't tell DHS, since they still have a page on their website about her claiming she still has that role -- even though she left over a year ago). You have to imagine that being the Chief Privacy Officer within DHS (or any part of the federal government, really) is a pretty thankless job, and it appears that was absolutely the case when Callahan was there. Last night, she was given an award by the IAPP, the International Association of Privacy Professionals -- and used it as an opportunity to reveal the work environment in her old job. From the sound of those in attendance, she gave quite a speech, unloading on the lack of respect for privacy in both the Department of Homeland Security and the wider intelligence community.

She apparently claimed that the number of privacy officers at the NSA was zero -- including the Chief Privacy Officer of the NSA. In other words, the position within the NSA is a joke, and that person has no interest, at all, in protecting Americans' privacy. But, apparently, she was just warming up, because (according to other attendees), she claimed that her office was accused of being "terrorists" once a month both by others at DHS as well as in the wider intelligence community. Furthermore, she was told that they would make her testify after the next terrorist attack, claiming it would be her fault, for daring to protect Americans' privacy. To her credit, Callahan apparently told those pressuring her that she would "happily" testify in support of her efforts to protect the privacy of Americans.

While this won't surprise the more cynical among you, it's an incredibly damning statement about how our intelligence community and the Department of Homeland Security view privacy, and piddly little things like the 4th Amendment. It also shows how merely hiring a "chief privacy officer" doesn't mean that an agency actually is concerned about privacy or that it makes sure to protect the privacy of the American public. It's quite common that defenders of DHS, DOJ and NSA overreach will point to things like "privacy officers" as if that means they take privacy seriously. However, it's often somewhat like a privacy policy -- something you can point to, but which no one pays attention to. And, there had always been assumptions that anyone who took that role seriously would get pressure, but it sounds like the pressure was even greater and more ridiculous than most people expected. Hopefully Callahan will speak out further on the kind of pressure she was put under while in that job.

Hat tip to Ryan Calo and Joseph Lorenzo Hall, for tweeting from the event.

Filed Under: 4th amendment, chief privacy officer, dhs, homeland security, intelligence community, mary ellen callahan, nsa, pressure, privacy, terrorism

'See Something, Say Something' Campaign Creates Massive Database Of Useless Info From Citizens Spying On Each Other

from the the-government-is-the-worst-conspiracy-theorist dept

The ACLU's recent release of "Suspicious Activity Reports" from various California law enforcement agencies (working with DHS Fusion Centers) shows that the government has developed a strong culture of paranoia through its increasingly-broad anti-terrorism efforts. The catchphrase, "If you see something, say something," has resulted in plenty of seeing and saying, but has failed to turn up much in the way of usable counter-terrorism intelligence.

Much in the way that intelligence agencies like gathering data "just in case," the Fusion Centers are aided and abetted by law enforcement officials who are willing to add to the data piles by approaching anything "suspicious" (very broadly defined) as potentially terrorist-related. This state-approved paranoia has spilled over into the private sector as the documents detail several second-hand reports from concerned citizens.

In both cases (law enforcement and private individuals), much of the "suspicion" seems to be based solely on reported persons being (or appearing to be) Middle Eastern. This term shows up so often it's often simply abbreviated as ME. For instance, page 21 has a report of some "suspicious" photography occurring on a Metrolink train, involving two people, one dressed in a "'Middle Eastern' costume."

Speaking of photography, aiming a camera at any government building, power station, railroad track, bridge, dam, oil refinery, airport building or any other building that an observer feels should remain unphotographed is enough to get your description (at the very least) added to the FBI's e-Guardian database. Even filming on-duty cops can raise the "suspicions" of law enforcement [p. 10].

After responding to a call of disturbance aboard an MTA bus, a male white and a female white in a black Dodge Charger (newer model) video taping deputy personnel. When Sgt [redacted] attempted to contact the couple. they fled the scene and could not be located. The reason for the couple video taping is unknown.

There's more. Photographers filming a manufacturing plant deemed suspicious until questioning discovered they were filming the pollution, not the plant [p. 28]. Five males "photographing a mannequin on a bus bench" -- weird, but not dangerous [p. 50]. Man filming Highway 101, allegedly for a "Stop the Violence" video not cited or bothered further [p. 64], but like many others, had his case kicked up the ladder to the "JTTF" (Joint Terrorism Task Force). A citizen filming officers serving a warrant across the street from his/her house and is duly noted in the database [p. 167]. Throughout the 300 pages of reports, almost everything involving cameras, law enforcement (or concerned citizens) and structures is either added to the FBI's database or handed over to the JTTF.

This is troubling, but it gets worse. A demonstration against law enforcement's use of excessive force makes its way into the database [p. 165]. An "overly assertive" person complaining about security measures at the Shasta Dam (son had pocketknife confiscated) received his/her own entry into the e-Guardian database [p. 280]. An officer reports a traffic stop dealing with a person who was "unstable and possibly had a fetish about police that could easily turn to becoming antipolice" [p. 235]. This too results in a database entry.

The 300+ pages detail vagaries and contains several statements given by the type of people who peer through the slats of their blinds all day long, one hand resting on the phone in case anything "suspicious" happens. When you portray terrorist activity as omnipresent, you're basically asking to be inundated with useless "tips" detailing with very subjectively suspicious activity and having to entertain the fantasies of bigots and busybodies.

On May 25,2012, at approximately 0710 hours, the RP was commuting on the Sacramento Regional Transit commuter train when she overheard two passengers reading from a book that may have contained references to terrorist information gathering and strategy. [p. 171]

Since December 17,2011, the Chico Police Department (CPD) has responded to the Chico, CA on three different occasions in apartment complex located at response to receiving reports of a resident yelling in his apartment and making derogatory statements towards the United States and the president. [p. 185]

On 09/14/2011 Sac RTAC/CCIC received an email stating that an individual, living in New York, New York, may be here in the United States illegally. The complainant also stated that they do not know how the individual affords such a lavish lifestyle… [p. 213]

A private citizen observed two men, possibly of Middle Eastern decent [sic], at [redacted] gas station in Manteca, CA on 9/9/2011. The men were driving a vehicle with New York State plates. The citizen is aware of the current terrorist threat to NY... [p. 214]

Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water [p. 270]

Dozens of low-quality tips like these pollute the report. An overheard question in a public restroom ("What jihad wouldn't want to kill Obama and get his 72 virgins?") [p. 223]. A "suspicious male" in possession of flight simulator software [p. 172]. A male taking photos of a feedlot [p. 173]. Someone goes down to the cop shop and shows an officer there how he/she can locate a "recipe" for rocket fuel at Make.com [p. 173]. "Suspicious" inquiry as to location of newly-built power plant (subject asks off-duty officer and another customer at gas station) [p. 203]. "Suspicious" but "cooperative" male "caught" taking pictures of the railroad [p. 211]. Person applying for a job at a prison leaves behind "suspicious" book called "Daily Reminder" filled with "arabic writing and phone numbers" [p.285].

Much of what doesn't detail useless bias projections or photographer harassment deals with theft. Lots and lots of theft. Some is troubling, like the disappearance of hundreds of pounds of fertilizer or dozens of propane tanks. (Then again, fertilizer is expensive and both products do have some resale value rather than only being valuable as bomb ingredients.) More troubling (at least to reporting officers and their supervisors) is the number of reports of weapon and uniform theft from official vehicles and buildings. Several reports of copper wiring disappearing from power stations and industrial sites also feature in the reports, suggesting there's something more nefarious afoot than the obvious, non-terroristic conclusion: an easily unloaded metal with a decent going rate.

Going beyond all of the mostly useless stuff lies the truly bizarre.

Student Found in Possession of Notebook Containing Radical Writings
On May 12, 2012, a Roseville Police Department officer working in the capacity of a School Resource Officer observed the partial quote "the blood of tyrants" on a woodshop project… [p. 171]

On 12 February 2012 at 0800, a UC Davis PD officer took a vandalism report at Emerson Hall Dorm, 1st floor men's restroom of anti-government graffiti written in black marker on the wall signed by the moniker name of [redacted] with a circle around the "E." [p. 191]

On 11/21/2011, an anonymous female called the CCIC to report possible illegal selling of controlled substance, Oxycotton [sic]. The caller is associated with the subject [redacted] attempting to sell oxycotton [sic] on his [redacted] page… [p. 202]

On 28 October 2011, Sacramento Police Department officers found two sets of anti-religious graffiti on a wall of the [redacted] The first set of graffiti, in black spray paint, was of 2 upside down crosses with a pentagram in the middle of [report ends]. [p. 206] (Halloween much?)

And then there's this. Unfortunately, the responding agency chose to use screenshots rather than delivering the entire report, so we'll never know where this was headed., but the opening partial paragraph is certainly intriguing.

On Saturday October 29th, A CHP Special Investigations Officer was off duty in a parking lot of a [redacted] in South Sacramento. He saw a parked custom Chopper style M/C that was chromed out with high handle bars in good shape. With his training and e[xpertise? ...] [p. 205]

With the exception of the erstwhile "Oxycotton" dealer, every one of these clearly non-terrorist activities ended up in the e-Guardian database.

Sure, there's some potentially useful counter-terrorism info in this collection, but the problem is that it makes up for a small subset of the data gathered. Not for nothing did a recent Congressional investigation tear into the DHS and its Fusion Centers for producing and acquiring such low-quality intelligence. According to the report, the centers have done little more than waste money and trample on civil liberties in the pursuit of hundreds of useless "leads."

As the ACLU points out, the system itself has been skewed towards collecting garbage for quite some time, thanks to the involved agencies' own efforts to expand the scope of their mission.

So why are police submitting reports (sometimes received from community members, private security guards and via anonymous tips) about such innocuous conduct for inclusion in anti-terrorism databases? Because under the NSI and related programs,everyone – our neighbors, public employees, storekeepers – are encouraged to help. "If you see something, say something," says the Department of Homeland Security. The "Functional Standard" for Suspicious Activity Reporting defines "suspicious activity" to include many activities that are not only lawful, but protected by the First Amendment. Even worse, the FBI encourages fusion centers not to limit themselves to the Functional Standard and instead to report "all potentially terrorism-related activity." With such a broad and vague standard, no wonder we are seeing innocent activities reported as "suspicious," especially when they involve community groups against whom we still see significant governmental bias.

The only upshot is that the involved definitions are in the process of being refined, along with the Functional Standard itself -- the inevitable result of major government entities (including the Senate's Homeland Security subcommittee) calling out a program as being completely useless. No one likes losing a budget line, so there's bound to be some improvement. However, any positives must be weighed against the FBI's tendency to declare nearly everything "relevant" to a terrorist investigation. To help guide this process towards something more useful and less damaging to the public, the ACLU is urging everyone to join its campaign to push the agencies to work towards smarter intelligence gathering, rather than simply gathering more data.

Filed Under: dhs, fusion centers, homeland security, see something say something

Border Patrol's Horrific Treatment Of On The Media's Producer, Family & Friends Highlights The Lack Of Accountability From DHS

from the shameful dept

By now we've all heard plenty of stories about ridiculous goings on at the border by Homeland Security's Customs and Border Patrol agents. We've written many times about questionable electronics searches. Still, I urge people to listen to the story that On The Media producer Sarah Abdurrahman did for last week's episode, all about how she, her family and friends were all detained at the Canadian border for around six hours, the treatment they received and the lack of answers that anyone is willing to give when she asked questions (as a journalist) about these actions. Listen to it and try not to get angry at the shameful behavior of these agents supposedly representing our country.

Everyone they detained was an American citizen, coming back to the US after attending a wedding of a cousin. They were treated terribly, put in a cold room with no food or drinks, and no information on what was going on. CBP demanded they hand over their electronics, and made it clear they might not get them back. The thing is, this isn't a unique situation. As the report notes, there's almost no oversight over CBP actions, allowing them to act with impunity. In the report, the story is told of a 4-year-old girl, an American citizen, who was detained for 14 hours, in a cold room, without being allowed to speak to her parents and given no food beyond a cookie. And then she was deported. Even though she was a US citizen. She was allowed to come back weeks later, but now has symptoms of post-traumatic stress disorder.

Abdurrahman's own story is perhaps not that crazy, but is still ridiculous. She tried to find out information during the detainment, but was repeatedly told "it's not your right to know." She wasn't even allowed to know the names of the CBP agents who detained them. When she asked, agents turned their backs to her so she couldn't see their name tags. Multiple attempts at getting Homeland Security or CBP to respond to questions failed.

She also tells the story of some other wedding attendees who were similarly detained with incredibly obnoxious behavior from CBP agents. The first one they met was quizzing everyone in the car on their names, and the 3-year-old kid in the back cheerily volunteered his name and the CBP agent snapped at him. The agents initially promised that they wouldn't search their phones, but then demanded that people unlock their phones, and even told them the phones would be confiscated and not returned. People complained that they needed their phones for work and were basically told too bad. Abdurrahman notes that three full cars of people from that one wedding all had their phones confiscated, and she notes that DHS claims only about 15 phones are confiscated each day by CBP, and wonders why everyone from one wedding appear to have nearly reached that quota.

Then there's the really ridiculous part: one of the people detained went through mutliple invasive body searches, and then after five and half hours was suddenly handcuffed and locked up in a jail cell with no explanation at all. He asked the officers to let his family know what was going on, but they didn't. Instead, they told his family to leave, and when they asked what happened, his family was told that "an agency" was coming to "pick him up," without giving any more details -- obviously leading to the worst assumptions. Instead, it turned out the guy had an unpaid ticket for a crooked license plate from 2006. CBP called the Michigan State Police to come "get him" over this -- and, again, didn't explain any of this to his family.

Basically, the CBP seems to act like you'd expect pretty much any group in authority with no oversight to act. They seem to feel free to terrorize people just because they can and because there are no recriminations. And there's basically nothing to be done about this. Abdurrahman finds out that they can submit a complaint, but that such complaints rarely lead to anything, other than getting a cursory letter saying that the complaint has been "dismissed."

The stories and quotes from the various individuals who went through this -- all American citizens just trying to get back into their own country -- are heartbreaking. They talk about how dehumanizing this is, how unwelcome it makes them feel in their own country, how it feels like an attack on their dignity, how it makes them feel like an animal. It's horrifying and shameful. It's also depressing. This is not how any country should act, especially towards its own citizens, and when it's my country acting this way, I'm horrified. Yes, all the stuff about America standing for freedom and whatnot can be seen as its own form of propaganda -- and most people realize that the US has never really lived up to the ideals it sets forth, but to have them stomped on so blatantly, and then having no one willing to answer for them is just... horrific. Sarah, her family and friends, all deserved much better. And, we, as American citizens all deserve much better.

Filed Under: cbp, customs and border patrol, dehumanizing, dhs, homeland security, sarah abdurrahman, us citizens

Feds Abused Anti-Terrorism Database To Track Chelsea Manning Supporter, Seize His Computer

from the subject-detained-in-notorious-border-town-of-Chicago,-IL dept

We've written a number of times about the so-called Constitution-free zone that extends 100 miles inward from the borders of the United States, a place where the Border Patrol, along with the DHS and ICE, exercise the "right" to search electronic devices without a warrant. (The government has also baffingly argued that not searching your laptop doesn't provide enough of a civil liberties benefit to outweigh the potential security "gain.")

As is the case with most unconstitutional acts performed by government agencies, the justification is "terrorism." Keeping our borders secure apparently means allowing federal agents to delve as deeply as they want into electronics that cross the border, even if it's someone who just went to Mexico on vacation. Presumably, David House wasn't a threat to national security when he left for Mexico, but by the time he landed at Chicago's O'Hare Airport, he was.

House worked with the Bradley Manning Support Network and this was all the "evidence" ICE needed to alert DHS agents that House would be returning from Mexico through Chicago -- and the wide-open policy on electronic searches was all the agents needed to seize and search House's phone and laptop.

House was stopped at Chicago’s O'Hare International Airport coming back from vacation in November 2010. At the time, he was working with the Bradley Manning Support Network, which was raising funds for the legal defense of the soldier who has since plead guilty to providing classified documents to WikiLeaks. DHS agents detained House, interrogated him about his political activities and beliefs, and then seized his laptop computer, mobile phone, camera, and USB drive. The agents returned House’s phone after inspecting it, but the government kept the rest of his devices for seven weeks while agents searched his files for evidence. Even after the government returned House’s physical devices, it continued to actively investigate copies of his files for nearly six more months.

The ACLU filed suit on House's behalf, claiming he was targeted for political reasons, leading to his First and Fourth Amendment rights being violated. The government tried to dismiss the suit in 2012, claiming its agents don't need reasonable suspicion or a warrant to search electronic devices at the border. The judge smacked that down, granting that the DHS has certain powers which preclude reasonable suspicion or warrants, but that those powers are still limited and that its politically-motivated actions violated House's First Amendment rights. A settlement was reached with the government, which agreed to destroy the data it gathered from its search of House's electronics and release documents related to the search.

Here's what the ACLU has discovered from the released documents:

The settlement documents reveal that an agent with Homeland Security Investigations (HSI)—an Immigration and Customs Enforcement (ICE) subdivision that is now the second largest law enforcement agency in the United States—entered a “lookout” into a government database called TECS (see the document here), effectively notifying government agents throughout the country that House was wanted for questioning in connection with the Department of Justice’s investigation into Manning and WikiLeaks. As a result of the lookout, which was linked to the Advance Passenger Information System, HSI later received an automated notification that House would be traveling outside the country and that he would return through O’Hare on November 3, 2010.

The records also show that HSI was acting in cooperation with—and perhaps at the request of—the Department of Justice, the Department of State, and the Army’s Criminal Investigative Division, not to protect our borders but to further a domestic investigation of the WikiLeaks disclosures. House’s connection to Manning through the Bradley Manning Support Network made him a target of that investigation. The government then used its access to airline passenger information to learn when and where David House, and others, would be traveling across our border (see the document here), and laid in wait to seize his computer and other electronic devices.

Much like the GCHQ's abuse of terrorism laws to intimidate David Miranda, the US abused its terrorism laws to pursue a vindictive domestic investigation. In addition to misusing its powers to intimidate House, the government also violated its own electronic search policies, which state that device searches should generally be completed within 30 days. House's devices were held for seven weeks and his data was investigated for the next seven months.

House may have received a settlement from the government and the presiding judge may have suggested that politically-motivated searches are unconstitutional, but this won't do much to change our current border policies on electronic devices. As the ACLU points out, federal agents are performing nearly 5,000 of these searches a year, and with the vague definition of "border" including a 100-mile band around the country and any other inland entry point where someone might return from a foreign country, the power remains almost limitless and completely unrelated to keeping our borders secure.

House's experience shows just how many tools the US government has at its disposal to intimidate whistleblowers and their associates (no matter how poorly defined). Fortunately, the ACLU scored a rare win against government-ordained abuse, but our federal agencies have frequently shown that the legality of their actions is usually only a minor concern -- something they'd rather deal with after the fact than consider ahead of time, especially when attempting to shut someone up.

Filed Under: anti-terrorism, border searches, bradley manning, chelsea manning, computers, david house, dhs, ice, seized, tecs

Court Sides With ACLU On Unconstitutionality Of The DHS's No-Fly List

from the prying-our-rights-out-of-the-govt's-cold,-undead-fingers dept

Some good news has arrived on the Homeland Security front (although the department in charge of securing the Homeland probably wouldn't agree). Last time we visited the infamous "No Fly List," a federal judge (Anna J. Brown) wasn't buying the government's arguments in favor of preserving the list's lack of transparency or redress options. The ACLU, arguing on behalf of 13 list members, pointed out that the system violates citizens' (there are more than 20,000 names on the list) right to due process.

As if being on the list and having no way to be removed wasn't enough of a problem, the government made it clear it believed air travel and international travel in any form were luxuries granted by the State. The government's argument was Marie Antoinette-esque in its dismissive simplicity: let them drive cars.

During deliberations, Judge Brown swiftly undercut the government's argument that air travel is nothing more than a "convenience."

"To call it 'convenience' is marginalizing their argument," Brown said. [She] said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."

The government apparently failed to make any further inroads at impressing the judge over the past couple of months. The ACLU announced today that the federal court has found in its favor.

A federal court ruled late yesterday that constitutional rights are at stake when the government places Americans on the No Fly List, agreeing with the plaintiffs in a lawsuit filed by the American Civil Liberties Union. The suit challenges the process for attempting to get off the list as unfair, inadequate, and unconstitutional. The decision also asked the ACLU and the government to submit additional information about the No Fly List redress procedure in order to help the court decide the ultimate question of whether it satisfies the Fifth Amendment's guarantee of due process.

We'll likely be waiting quite some time for the government to get its input together, if other TSA-related input-gathering efforts are any indication. As it stands now, the so-called redress procedure offered by the DHS is a pointless waste of paper for everyone involved. Here's that procedure in all its glory.

Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.

That's not due process. That's a form letter awaiting a name to insert between the placeholder brackets.

In her ruling, Judge Brown reiterated the her problems with the government's insistence that air travel is a "convenience."

"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation… the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list."

This is good news for the 20,000 unwilling participants in the DHS's no-fly program. I would imagine the government will be appealing this decision as any changes to its (lack of) redress process will probably cause "grave damage to national security," especially as it will now require the DHS to divulge some sort of actual information as to why Person A is on the list.

More likely the real reason for this opacity is to prevent the public from recoiling in horror at the briefest peek into the crafting of War on Terror™ sausage -- a process that seems to involve running a variety of amendments through the grinder along with handfuls of tax dollars. This win is a small push back against that apparatus and stakes another one of ACLU's flags into a chunk civilly liberated territory.

Filed Under: constitution, convenience, dhs, due process, homeland security, no fly list
Companies: aclu

Embrace The Hate: One ICE Employee's Quest For A Race War

from the holy-crazy dept

We all know that the Department of Homeland Security and its daughter agency, Immigrations and Customs Enforcement, wield a great deal of power. One need only look at their ability to circumvent the need for warrants to search pilots to notice that. Beyond just pilots, ICE's insistence that their metaphysical thought-bombs are of more import than any codified rights of citizens at the border certainly is a flexing of agency muscle. Even playing Kujo for the biggest sports league is a measure of their terrible relevancy. And, as the saying goes, great power comes with great responsibility, so you'd have to imagine that an agency like ICE takes its hiring practices quite seriously to make sure these extreme measures are carried out by a crack-team of super-agents.

But that's all it would be: imagination. Because if it wasn't, then DHS is going to have to explain how employing a guy running a website advocating the mass killing of white people makes for good human resources policy and slipped past the screeners. Meet Ayo Kimathi of the DHS.

Off-duty, he calls himself “the Irritated Genie.” He’s a gay-bashing, revenge-seeking black nationalist who advocates on his website – War on the Horizon – the mass murder of whites and the “ethnic cleansing” of “black-skinned Uncle Tom race traitors.”

“Warfare is eminent,” the website declares, “and in order for Black people to survive the 21st century, we are going to have to kill a lot of whites – more than our Christian hearts can possibly count.”

You really have to love the kind of loon that claims to be a Christian in the same sentence he’s advocating killing whitey. I believe it was John 14:6 when Christ said, “I am the way, the truth, and the life: no man cometh unto the Father but by me. Also, if you see any pale-skinned dudes walking around, thou shalt dispatch them to eternal fire post-haste. Black power!”

More importantly, how does this psychopath get past the employment screenings? Now, Kimathi’s role in the DHS is essentially in procurement, am I really to believe that his being hired shouldn’t cast doubt on ICE hiring practices of folks that might actually take part in all the examples listed in the opening? He’s far more dangerous than others that have been harrassed by ICE. It’s not like he kept the site super-secret, either; he had to get doing this website approved by the brass, and was successful.

Kimathi obtained official permission but only by misrepresenting the true nature of his endeavor. He told management that it was an entertainment website selling videos of concerts and lectures. He called it simply WOH, never saying that WOH stood for War on the Horizon.

“If he had adequately and truthfully described his group,” the supervisor said, “I can’t imagine for a minute he would have been granted permission.”

You didn’t check? This isn't just some minor crackpot pushing the limits of free speech, this guy has a barely-veiled hit list that includes Al Sharpton, Oprah, Colin Powell, and President Obama. Employed by Homeland Security, you have to hope this guy wasn't simply trying to get into a position where he found himself close to any cracker or black "race traitor" on his list. Either way, it's an incredible indictment on the DHS human resources office.

So, hey, government, listen up. I know you’re there, I know you’re listening. No more spying on us until you get your own house in order, mmkay?

Filed Under: ayo kimathi, dhs, ice, race war

Snowden Leaks Have Likely Killed CISPA Dead

from the about-time dept

The cybersecurity legislation pushed by Reps. Mike Rogers and Dutch Ruppersberger, CISPA, was already probably dead in the water because the Senate had shown no interest in supporting their privacy-destroying legislation for the past two years -- preferring instead to introduce bills that actually took privacy seriously. However, as we'd explained at the time, CISPA was always really about giving more power to the NSA as part of a turf war between the Defense Department (which the NSA is a part of) and Homeland Security. In fact, the biggest concerns that activists were raising about CISPA was the fact that it would give companies broad immunity from liability if they handed any information over to the NSA. Supporters of the bill kept bending over backwards insisting that this was entirely "voluntary" and that, of course, the NSA wouldn't do anything bad with the data -- rather it was all to "protect" us from evil hackers from China.

Of course, given the revelations over the last few months concerning the NSA's activities, it appears that they've driven the final nail in CISPA's coffin, as a growing number of people in Congress realize that handing even more power to the NSA is not such a good idea.

"The plan was always a little vague, at least as [NSA boss] Keith [Alexander] described it, but today it may be Snowden's biggest single victim," one senior intelligence official said recently, referring to Edward J. Snowden, the former N.S.A. contractor who released documents revealing details of many of the agency's surveillance programs.

"Whatever trust was there is now gone," the official added. "I mean, who would believe the N.S.A. when it insists it is blocking Chinese attacks but not using the same technology to read your e-mail?"

Exactly. So kudos to Snowden for stopping another really bad bill that was always really about giving the NSA that much more power to spy on people.

Filed Under: cispa, congress, cybersecurity, dhs, dutch ruppersberger, ed snowden, mike rogers, nsa, privacy

Other Government Agencies Wanted Access To NSA Surveillance Data For Other Investigations... Including Copyright Infringement

from the seriously-now? dept

Going all the way back to 2010, we've talked many times about how much of the "debate" over "cybersecurity" was really a kind of turf war between the Defense Department (really, the NSA) and the Department of Homeland Security, over who would control both the budgets and the information they were collecting. So it should come as little surprise to see the NY Times reporting that this turf war has been playing out behind the scenes with various other government agencies demanding access to all that sweet, sweet data it has on everyone for whatever their personal area of interest was -- including:

...drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement

To its credit (and I can't believe I'm saying that), it appears that the NSA has rejected most of these requests, saying that those other issues are not high enough of a priority and they don't want to violate privacy rights (don't laugh). Still, given how much pressure is coming from other agencies of the government, you have to expect that sooner or later the NSA will be pressured into opening up the data to other parts of the government. In fact, part of the concern about CISPA and other cybsersecurity legislation wasn't just that it would put the NSA in control over such information, but that it also made it clear that government agencies would be free to share that data with each other, for almost any investigative purpose.

And, of course, that brings us to the "copyright infringement" bit. It's no secret that different parts of the government -- including the DOJ and ICE (a part of Homeland Security) have taken it upon themselves to act as if copyright infringement is a huge problem that they, personally, need to stop. The idea that agencies are even seeking access to the NSA's data to deal with copyright infringement claims shows just how incredibly obsessed they are. Copyright shouldn't even involve federal law enforcement in the first place, as it really should only be about civil cases between private parties. It was troubling enough that the government was deputizing itself to be copyright cops -- but to find out that they also wanted to use the data the NSA collects (which is already of questionable legality) in order to further work on their copyright obsession is downright ridiculous.

Filed Under: copyright infringement, dhs, doj, drug war, nsa, nsa surveillance, surveillance data