DOJ Pretends No Fly Guidelines Haven't Been Leaked, Claims 'State Secrets' To Avoid Revealing Them To The Judge

from the hiding-in-shame dept

Back in July, we wrote about the Intercept releasing a leaked copy of the US law enforcement guidelines for putting someone on the no fly list. There have been a series of lawsuits recently concerning the no fly list, and the government has basically done everything possible, practically to the point of begging judges, to avoid having those cases move forward. So far, that's failed miserably. The Rahinah Ibrahim case, for example, showed how a Stanford PhD student with no terrorist connections was put on the list by someone checking the wrong box on a form (and then was kept on a separate terrorist watchlist under a secret exception to the rule that there be "reasonable suspicion.") In that case, like every other, the DOJ claimed "state secrets" in trying to get the case dismissed. There have also been cases about the feds using the threat of being put on the no fly list to force unwilling people to "become informants." An important ruling back in July said that the process for getting off the list is unconstitutional.

In another case involving the list, Gulet Mohamed is challenging the fact that he's on the list, and the DOJ has done its usual "state secrets, throw out the case" claim. The judge, so far, isn't buying it, and has asked the DOJ to reveal how it puts people on the list. Specifically, Judge Anthony Trenga asked the DOJ to provide:

[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.

In a filing last week, Mohamed's lawyers pointed to the leaked guidelines, and the DOJ responded by saying, "Huh? Document? What document? We don't know of any such document, and deny its existence." Or something to that effect:

With respect to Plaintiff’s points, Defendants do not acknowledge the authenticity of the purportedly leaked documents, and will respond to the proposed Notice in due course.

The DOJ has now gone further and said it still doesn't think it should have to produce the information because it's still claiming state secrets, and it doesn't think the judge should have to look at the documents in question to determine if the state secrets demand is appropriate. Yes, they're arguing that the judge should determine if something can properly be called a state secret without revealing what the information is. Actually, the DOJ is going even further, arguing that it's inappropriate to look at the alleged state secrets to determine if the state secrets privilege applies.

The requested submission would not assist the Court in deciding the pending Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the State Secrets privilege, does not pertain to the claims in the Complaint, and does not address the appropriate legal standard for substantive due process.

Got that? The Court should just agree that it's a state secret and shut down the entire case. The DOJ pretends first that the necessary documents haven't already been leaked to the world, and second acts like it's crazy for a judge to want to actually see the documents before determining if it's really a "state secret" they're protecting.

Of course, as we noted, when the document leaked it seemed pretty clear that the DOJ was lying when it said it wouldn't reveal them because of state secrets. It doesn't want to reveal them, because they reveal how the process almost certainly violates the 4th Amendment. Rather than protecting "national security," the attempts to hide the details of the list are very much about protecting "DOJ security."

Filed Under: doj, guidelines, gulet mohamed, leaks, no fly list, state secrets, watchlist

FISA Court Twists PATRIOT Act To Pretend It's Okay To Spy On Americans Based On Their Constitutionally Protected Speech

from the that's-a-problem dept

We've written before about how it appears that the DOJ/FBI and NSA have conducted surveillance on Americans almost entirely based on First Amendment-protected activities. Whenever that issue comes up, the Intelligence Community and its defenders insist no way, that they take the prohibition on surveillance over First Amendment protected activities seriously. Section 215 of the Patriot Act is rather explicit:

the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Seems clear, right? But, of course, what seems clear in the statute and how the intelligence community and the rubber-stamping FISA Court will view things often seem to differ by a wide margin. The FISA court has now released yet another heavily redacted opinion, given by Judge John Bates, concerning just such a request. You may recall Judge John Bates from his recent letters in which he pretends to represent the entire judiciary, in fighting back against any attempt to limit the NSA and the FISA Court's ability to spy on American people. Bates seems absolutely sure that doing so will let the terrorists win, which gives you a glimpse into his mindset.

Thus, while depressing, it shouldn't be too surprising to find out that when a Section 215 request came to him concerning activity of a US person that was entirely protected by the First Amendment, Bates figured out a way to give the FBI the go ahead to spy on the person anyway. Because terrorism.

While heavily redacted, it seems clear that Judge Bates admits that the nameless person the FBI wishes to spy on didn't do anything that went outside of First Amendment protected speech: Okay then, so all of the activities of this US person are clearly protected under the First Amendment. The law is pretty clear that the FISA Court then cannot grant the power to collect that individual's records. But... Judge Bates is deathly afraid of terrorism, so surely there must be a way to massage things to come up with a reason why it's okay, despite what the law clearly says. So Bates comes up with a neat little trick. He says, sure, the person of interest may only be engaged in protected speech, but some other guy (a non-American, and thus not protected by the First Amendment) is engaged in non-protected speech, and because of the actions of that other guy, the FISA Court will grant the ability for the FBI to slurp up the American's records and data. Because of the redactions, this part is a little more difficult to parse, but it's pretty clearly saying that even though the US person who is the subject of this surveillance request did nothing other than Constitutionally protected speech, because some other person who is not in the US and not directly associated with the party in question, has some evidence of terrorist activity, that makes it okay to spy on the US person.

As law professor Jennifer Granick notes in the link above, this is an extremely troubling interpretation of Section 215, basically allowing the FISA Court to ignore the prohibition on spying on people because of their Constitutionally protected speech, so long as it's somehow a part of a larger terrorism investigation.

The statute prohibits the FBI from investigating law abiding Americans unless their own conduct fell outside of the First Amendment, regardless of the conduct of other people related to the investigation. I think most people, when they cite that statutory language, believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do.

They would be wrong. Judge Bates’ alternate interpretation allows for Americans exercising only constitutional protected rights to nevertheless be investigated under section 215 so long as there’s an independent, constitutionally unprotected basis for the overarching terrorism investigation.

The takeaway is, Americans are being investigated for their First Amendment protected activity, so long as someone’s else’s related conduct is not protected, even where the relationship between the American and the other party is too attenuated to support suspicion of aiding and abetting or conspiracy.

That is an immensely troubling interpretation of the law, one that appears to run counter to the plain wording of the law, as well as the basic concept of both the First and Fourth Amendments of the Constitution. No freaking wonder Judge Bates has been so adamant against having any sort of civil liberties advocate reviewing and challenging his decisions within the FISC.

Filed Under: doj, fbi, first amendment, fisa court, fisc, free speech, john bates, nsa, patriot act, section 215, surveillance, terrorism

Health And Human Services Ex-Cybersecurity Director Convicted Of Kiddy Porn

from the guarding-the-chicken-coop dept

There seems to be someone asleep at the wheel in the federal government's HR department, given how many questionable people have been put in high profile/high responsibility security positions. Kieth Alexander, uber-Patriot, locked his cyber-security expertise up with a patent. The White House's cyber-security guy can't wait to tell you how little he knows about his job. Homeland Security's former Inspector General was accused of a ridiculously long list of questionable behavior (in addition to having no qualifications for the job). And now, ex-director of cybersecurity for the U.S. Department of Health and Human Services has been convicted on kiddy porn charges.

Timothy DeFoggi, 56, formerly of Germantown, Md., is the sixth individual to be convicted as part of an ongoing investigation targeting three child pornography websites, the Justice Department said. He faces sentencing on Nov. 7 based on the findings Tuesday that he engaged in a child-exploitation enterprise, conspired to advertise and distribute child pornography, and accessed a computer with intent to view child pornography in connection with his membership in a child-pornography website.

Oh, well that's just great. The head cyber-security guy for a government organization that includes divisions for preventing child abuse and child support enforcement was a pedophile at best. Let's be clear: according to the evidence presented by prosecutors, DeFoggi is simply as bad as it gets.

"Through the website, DeFoggi accessed child pornography, solicited child pornography from other members, and exchanged private messages with other members where he expressed an interest in the violent rape and murder of children," prosecutors added. "DeFoggi even suggested meeting one member in person to fulfill their mutual fantasies to violently rape and murder children."

I'd like to take a moment to remind everyone reading this that the United States federal government has engaged in widespread surveillance on its own people. They're watching what you do, particularly online. They're intruding on our lives in ways Orwell couldn't have dreamed of. And they're doing it all under the notion that it's for our protection. If we must live with that kind of intrusion for the time being, is it too much to ask that the government manage to weed out violent child-rapists from their own ranks as some kind of accommodation?

Filed Under: child porn, cybersecurity, doj, health and human services, timothy defoggi

Justice Dept. Official: We Could Get Lois Lerner's Emails From Backups, But It's Too Hard So Naaaaaah

from the facepalm dept

I try not to go for conspiracy theories generally, but this ongoing IRS nonsense involving conveniently disappearing emails potentially pertaining to the scandal involving targeting certain groups is making my skeptics beacon go off. The official story essentially involves a computer (server?) crash that obliterated the email data of several email accounts that would otherwise be of great interest to those trying to figure out who in the Obama administration knew what about how the IRS was operating. That crash somehow also involves the destruction of any local backups these IRS folks are required to keep as part of their job.

But what I imagine pretty much everyone that has even a modicum of interest in office technology is asking is what about the kind of backups that are typically run for disaster recovery and offsite purposes. You know, like tape drives (blech), D2D backups, or remote storage. It's difficult to believe that all copies of the data for those email accounts had somehow been disappeared by accident. Or, really, disappeared entirely at all.

As it turns out, there is backup data for those email accounts, but if you're thinking that we're finally going to get to the bottom of this nonsense, you're a silly naive person that hasn't witnessed our glorious government at work.

“A Department of Justice attorney told a Judicial Watch attorney on Friday that it turns out the federal government backs up all computer records in case something terrible happens in Washington and there’s a catastrophe, so the government can continue operating,” Judicial Watch president Tom Fitton told Fox News’s Shannon Bream. “But it would be too hard to go get Lois Lerner’s e-mails from that backup system."

Now, I know, Fox News and blah blah blah, but this is a claim worth paying attention to mostly because it only makes sense to begin with. Well, the part about there being backups, I mean. The suggestion that such backups are so difficult to parse and recover that the administration isn't going to get them for review makes zero sense because that's what damned backups are for.

Think about the logic here for a moment. The reason the federal government has backups of data in place is because there's a great deal of horrible crap that could happen to their facilities. Natural disasters, terrorist attacks, hallmark-level incompetence, Area 51 aliens going Rambo on the computers. These are the things they have to prepare for and they need the ability to restore data from a remote location should one of their facilities fall to our alien overlords. To say that restoring that data is too hard to do when requested is to say that they're ill-prepared for a disaster. The suggestion that the government can't retrieve emails for court or congressional review is to say that they wouldn't even meet FINRA compliance, something that itsy-bitsy little trading firms are required to meet.

Fitton said his group plans to ask a federal judge to order the IRS to hand over the e-mails, which conservative opponents of Lerner want to see in order to determine if there is a link between President Obama’s team and the IRS’s targeting of tea-party groups.

“If this backup system is working, Lois Lerner’s e-mails are there,” Fitton said.

And if the backup system isn't working, then fire everyone everywhere because this kind of thing is no joke. I'd say it'd be a bigger scandal to have any portion of the federal government not have basic backup and DR systems in place than to find out that any portion of the Executive administration was encouraging the IRS to target certain special interest groups.

Filed Under: backups, doj, email, irs, justice department, lois lerner

From The Unsealed 'Jewel v. NSA' Transcript: The DOJ Has Nothing But Contempt For American Citizens

from the and-[local]-god-help-you-if-you're-a-foreign-citizen dept

With some of the proceedings unsealed in the EFF's long-running Jewel vs. NSA lawsuit, more details can finally be exposed. Not that what's already been exposed hasn't been damning enough. Over the past several months, the DOJ has run interference for the NSA, traveling from courtroom to courtroom, destroying and saving (or at least pretending to...) collected data amongst a flurry of contradictory orders.

Not that it ultimately mattered. The NSA just kept destroying relevant evidence, claiming the system was too complex to do anything with but allow to run its course. Evidence would be destroyed at the 5-year limit, no matter what preservation orders were issued. The NSA, of course, has a vested interest in destroying evidence that its 215 and 702 programs collect the data and communications of Americans. Thanks to Snowden's leaks, it can no longer pretend it doesn't. But despite this, the DOJ still claims Section 702 targets only foreigners and American suspects located outside of the US.

The mock concern about compliance with court orders was a hustle. The DOJ wants as much evidence that might be useful to plaintiffs gone as swiftly as possible. Thanks to the unsealing of Jewel court documents, the EFF can now relate that the DOJ's efforts went much further than simply letting aged-off collections expire. It also actively tried to change the historical record of the Jewel case, as Mike covered here recently.

Citing classification concerns, the DOJ sought to editorialize its statements to the court, removing them (not redacting them) from the public record… and it didn't want anyone to find out. Take a moment to soak in the audacity of this request, made by the US government in a federal court.

If the judge had sided with the DOJ, there's a good chance some of the transcript embedded below would have gone missing… forever. Even after the documents were eventually unsealed, whatever the government had managed to convince the court was "classified" would no longer exist -- despite the fact that one week earlier these statements were made in an open court room.

It's likely that the judge's decision to notify the plaintiffs changed the DOJ's mind about retconning its own statements. It's a good thing nothing's missing. What's in there is terrible. The DOJ basically mounts the argument that no plaintiff should ever have standing to challenge either the Section 215/501 or 702 programs, unless they are Verizon Business customers… and even then they should only be able to challenge the former. (Apologies for the all caps, but that's the way the court transcribed it.)

AND WE SET THIS FORTH, AGAIN, FOR THIS COURT IN OUR MOST RECENT FILING IN WHICH THE DNI ASSERTED THE STATES SECRET PRIVILEGE AND EXPLAINED TO THE COURT THAT NOTWITHSTANDING ALL THESE TERRIBLE DISCLOSURES THAT OCCURRED OVER THE PAST YEAR -- IN FACT, THIS IS THE ONE YEAR ANNIVERSARY -- DISCLOSURES THAT WE ARE CONVINCED THAT HAVE SERIOUSLY HARMED THE NATIONAL SECURITY OF THIS COMPANY, WE HAVE CONTINUED TO PROTECT THE IDENTITY OF PARTICULAR TELECOMMUNICATION CARRIERS THAT ARE ALLEGED TO HAVE ASSISTED THE NSA, NOT ONLY IN THE SECTION 215 PROGRAM, WHICH WAS AT ISSUE IN THE CASES YOU CITED, BUT ALSO IN THE PRESIDENT'S SURVEILLANCE PROGRAM, ACTIVITIES WHICH ARE AT ISSUE IN JEWEL AND SHUBERT, AS WELL.

SO WE HAVE NOT CONCEDED THAT STANDING COULD BE FOUND BASED ON THE MERE EXISTENCE OF THE BULK TELEPHONY META DATA PROGRAM, IF THAT IS YOUR QUESTION.

Got that, citizens? Because we have made the choice to protect telcos withhold information, you will only have standing to challenge these programs under very narrow circumstances. The government is looking out for the best interests of its partners in surveillance. The rights of citizens are much further down the list.

And while acknowledging that it has withheld info on the telephony metadata program, the DOJ's lawyers simultaneously claim the plaintiffs should have been prevented from amending their case to include the recent Section 702 revelations, because that program has supposedly been out in the open and fully transparent since 2008.

SO I HARDLY KNOW WHERE TO BEGIN. BUT I WILL START WITH THIS. FIRST OF ALL, THE CONTENTION THAT 702 DID NOT EXIST WHEN THE COMPLAINT WAS FILED IS A FALSEHOOD. 702 WAS ENACTED IN 2008, IN JULY OF 2008, AS PART OF THE FISA ACT AMENDMENTS OF 2008.

NOT ONLY DID IT EXIST BEFORE THIS COMPLAINT WAS FILED, THE JEWEL PLAINTIFFS KNEW ABOUT IT, BECAUSE IT'S PRECISELY WHY THEY FILED SUIT. THAT LEGISLATION CREATED IMMUNITY FOR THE TELECOMMUNICATION COMPANIES.

THE ACLU OVER IN NEW YORK, KNEW QUITE WELL IT EXISTED. THEY FILED A COMPLAINT, I THINK, THE DAY IT WAS ENACTED INTO LAW. AND THAT MADE A LOT OF HEADLINES, AND IT WAS LITIGATED. AND IT WAS ALL, ALL PUBLIC. NO SECRET PROGRAM. AND IT WAS OUT THERE. SO THAT STATEMENT IS JUST NOT TRUE.

THE SECOND THING THAT'S NOT TRUE IS HER PROGRAM DESCRIPTION. 702 IS A PUBLIC STATUTORY PROGRAM. IF YOU LOOK AT THE AMNESTY INTERNATIONAL DECISION, IT DETAILS HOW THAT PROGRAM OPERATES. AND SO THAT IS THE SOURCE OF WHAT SHOULD BE THE COURT'S UNDERSTANDING FOR THIS PROGRAM AND HOW IT OPERATES.

Completely disingenuous. The program was never "out in the open." It protected telcos and helped codify warrantless wiretapping, but there was never any indication given that it also allowed the NSA to tap into the internet backbone and siphon off communications of Americans. And it certainly wasn't presented as a tool to be used as an untargeted dragnet.

This is only a small part of a document the DOJ wanted to selectively edit and present later as an untouched factual record of a federal hearing. The government claims no one has standing because everything related to the NSA's programs is "rank speculation" -- basically pretending the "terrible disclosures" never happened. In the same breath, it claims the programs have always been transparent and completely above board, therefore no one should be able to amend their complaints when additional info is exposed by leakers.

The government not only wants it both ways, but it has the breathtaking gall to ask to touch up its talking points after delivering them. After a dozen attempts to wrap up this post with something that pithily highlights the anger the government's editing attempt (and the horrible arguments contained in the transcript) has generated in me, I'm left with little more than this: FUCK THE DOJ -- it and every agency it oversees.

It witholds information about the companies involved in its dragnet surveillance programs, covers up everything else and pretends unauthorized disclosures "don't count," at least not when it comes to citizens being granted standing. It could easily clear up this "rank speculation," but it would rather shelter telcos from irate customers and give itself an easy way to get lawsuits dismissed. Then it spins everything around and claims the plaintiffs are misrepresenting the programs to the court -- something the DOJ has actually done itself -- and should not be allowed to amend complaints to reflect additional evidence gleaned from leaked documents.

Hey, I'm sorry the leaks have made it harder for these agencies to do whatever the hell they want, but they are all part of a government that's supposed to be accountable to the citizens picking up the check. But when faced with unhappy citizens and their diminished rights, all the DOJ's lawyers can say is that the public doesn't know shit and has no right to question the government's activities.

The government has somehow managed to come to a conclusion others reached weeks ago -- there's more than one leaker out there. GOOD. Burn it down. In the DOJ's hands, the government isn't by or for the people. It's despite the people. The DOJ can't be trusted to protect the balance between privacy and security. As it sees it, what the public doesn't know will likely hurt it, and it's damned if it's going to allow citizens to seek redress for their grievances.

Filed Under: 4th amendment, contempt, doj, jewel v. nsa, nsa, privacy, section 702, section 215, surveillance

Snuffing Out The Magistrate's Revolt: DC District Court Judge Roberts Grants Another Rejected Warrant Application

from the 'I-concur-with-my-own-finding-that-this-complies-with-the-4th-Amendment' dept

As we've been covering for the past few months, there seems to be an emboldened set of magistrate judges willing to push back against broad electronic search requests by the government. While it would be nice to see a stronger pushback originate somewhere closer to the top, it is (or was, it seems...) refreshing to see those on the lower rungs defend citizens' rights by rejecting what can only be termed "general warrants," the very thing that prompted the Fourth Amendment in the first place.

But it appears the rest of the judicial system is more interested in quelling what Scott Greenfield has memorably termed the "Magistrates' Revolt." As was noted here back in May, a DC district court judge overrode DC Magistrate John Facciola's refusal to bury a subpoena to Twitter under a gag order (Facciola actually went one step further and invited Twitter to respond in court). Judge Richard Roberts allowed the burial, utilizing a lot of "government knows best" rationale, even while pointing out the government was using the wrong venue to attempt an appeal of a magistrate's decision.

Another Facciola refusal, one that had twice crossed his desk has now been overridden as well. This warrant application -- seeking the entire contents of a person's .mac email account -- was summarized (twice) by Facciola as being "overly broad" for making no attempt to balance law enforcement interests with the expectation of privacy inherent to electronic communications.

The DOJ again appealed this decision and got the same judge -- Richard Roberts -- it got last time. And in spite of his earlier admonishment that the district court does not act as the appellate level for magistrate court decisions (a "mistake" the DOJ has made twice -- involving the same two judges and pointed out in the decision with the exact same footnote), Roberts again found that the government should generally be deferred to because it "knows best."

With very little preamble, Roberts announces that rules were followed and everything is on the level, but in the next 20 pages raises very few questions about the application of these rules to this specific situation, much less the digital reality of everyday life.

Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.

Just simply saying something "complies with the Fourth Amendment" doesn't magically make it so. Judge Facciola saw the same warrant application (twice) and came to a completely opposite conclusion. There's probably some middle ground that allows the DOJ to pursue this, but it's highly unlikely that Roberts (and the DOJ) are 100% right and Facciola is 100% wrong when it comes to the Fourth Amendment.

But Roberts is more of a business-as-usual judge. And business had gone on pretty much uninterrupted until recent months. When laying out the background of the case, Roberts nods to the Stored Communications Act, a particularly bad law that combines the worst parts of the Third Party Doctrine with being nearly out-of-date by the time it was codified in 1986.

As Roberts notes, the government did scale back its request after its first rejection, but only from "all email ever" to "all email from Jan. 14, 2014 going forward." While the government listed more specifics about its search and minimization efforts, Facciola still felt the DOJ was asking for more than it needed to achieve its aims.

While Facciola argued that the old way (grab everything and dig through it later) just doesn't mesh with the reality of the situation in terms of upholding the Fourth Amendment, Judge Roberts finds no issues with the government using warrants to engage in fishing expeditions.

Several courts have found the two-step procedure to be reasonable under the Fourth Amendment, provided that there is a valid warrant supported by probable cause. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (upholding government’s seizure of electronic data for a subsequent offsite search where there was a fair probability that evidence would be found on the defendant’s personal computer and other electronic devices); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a ‘sufficient chance of finding some needles in the computer haystack.’” (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999))).

And who does Roberts rely on to ensure that not too "haystack" is idly thumbed through during the search for "needles?" The government itself, the most trustworthy of the participants, at least in this judge's eyes. Roberts says the judicial system plays an important part in weighing the balance between the government's desires and personal privacy, but then states that if anything gets abused, it can always be fixed after the damage is done.

As the government argues in its challenge, law enforcement officers are provided with considerable discretion in determining how to execute a particular search warrant. The Supreme Court has explained that a search warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[.]” Dalia, 441 U.S. at 257.

That said, although law enforcement officers are afforded wide discretion in executing search warrants, “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978). Accordingly, the government will be afforded deference in deciding how to execute the search warrant, subject to later review by a court to determine whether the search complied with the Fourth Amendment’s reasonableness requirement.

So, everything's fine. The government can be trusted to only look at the stuff it's supposed to (even though it has access to plenty it doesn't need), and if it proves unworthy of that trust, the person whose rights have been violated can sleep well knowing a "later review" by the court will ensure no such abuse happens ever again. Until the next time.

Filed Under: 4th amendment, doj, john facciola, magistrate judges, richard roberts, warrants

Many Pulitzer Prize Winners Demand DOJ Stop Threatening Reporter James Risen With Jail If He Protects His Sources

from the chilling-effects dept

For a while now we've been following the troubling story of NY Times reporter James Risen, whom the DOJ has been bullying and threatening with jail for daring to keep his sources confidential. Despite Eric Holder pretending to say that the DOJ won't put a reporter in jail, he's made it quite clear that only applies to a "reporter who is doing his job," and it's pretty clear that the DOJ apparently doesn't think protecting your sources is part of the job. Unfortunately, the court process has gone against Risen, so the only remaining question is if the DOJ will really seek to put Risen in jail.

The Freedom of the Press Foundation has put together a petition for Risen, but perhaps even more interesting is that it further got over a dozen Pulitzer Prize-winning journalists to speak out on Risen's behalf. Here are just a few:

DANA PRIEST, Public Service, 2008 / The Washington Post; Beat Reporting, 2006 / The Washington Post:

If the U.S. government were so concerned about the information revealed in Jim Risen’s stunning chapter on a now 14-year-old CIA operation against Iran gone wrong, it would have moved quickly to resolve this matter eight years ago when it was first published. Instead, it seems obvious now that what officials really want is to hold a hammer over the head of a deeply sourced reporter, and others like him who try to hold the government accountable for what it does, even in secret.

As Presidents George W. Bush and Barack Obama classified more and more of the government’s actions over the last 14 years, denying the public critical information to judge how its democracy is faring, it has fallen to reporters like Risen to keep Americans informed and to question whether a gigantic government in the shadows is really even a good idea. We will all be worse off if this case proceeds.

DAVID ROHDE, International Reporting, 1996 / Christian Science Monitor; International Reporting, team coverage, 2009 / New York Times (now at Reuters): 

The Justice Department’s pursuit of James Risen puts the lie to President Obama’s claim that he “welcomes” debate regarding his national security policies and leads “the most transparent administration in history.”  The administration should immediately end its pursuit of Risen and respect all journalists’ first amendment rights.

MARCUS STERN, National Reporting, 2006 / Copley News Service:

No press shield, no freedom. It's about the great values embodied in the First Amendment and whether they will be undermined at this moment in history or endure for future generations. The fate of James Risen and his anonymous source is our fate and our grand-children's fate. Please, get it right.

JASON SZEP and ANDREW R.C. MARSHALL, International Reporting, 2014 / Reuters:

It is scandalous that James Risen faces jail time for doing what every good journalist working in the public interest does: protect confidential sources. President Obama and Attorney General Holder should halt all legal action against James to demonstrate that their “war on leaks” is not an assault on the First Amendment and freedom of the press.

It's a travesty that this situation is still occuring. It creates a real chilling effect for both reporters and for sources, and seems like a clear First Amendment violation, even if the courts still disagree on this fact. The DOJ could put an end to this, but has not.

Filed Under: chilling effects, doj, eric holder, jail, james risen, journalism, pulitzer prize, sources

Cell Phones Need A Warrant, But Cell Site Location Info Doesn't? Appellants Challenge Government's Assertions

from the it's-time-to-start-disassembling-the-Third-Party-Doctrine dept

The Supreme Court's recent finding that warrantless cell phone searches are unconstitutional is already generating some pretty interesting arguments in ongoing cases. The government obviously wishes to mitigate the "damage" done by this decision by still doggedly pursuing data through warrantless methods.

In this particular case, the government is arguing that it has every right to access cell site location information (CSLI) without a warrant, claiming that the Riley decision solely pertains to the contents of cell phones. Obtaining CSLI without a warrant is still Constitutionally-dubious, however. One state court and a federal court have held that this information should only be obtained with a warrant. In the prior case, it was found that the state's Constitution provided more protection than the US Constitution and in the latter, the finding was very narrowly tailored to the case at hand, making it very difficult to apply to others cases, even under the same jurisdiction.

While the government makes the usual claims about third party data and warrant requirements being an undue burden, the appellant's reply takes those arguments apart.

The government is quite candid in its brief that it wishes to use cell phone location data to conduct dragnet surveillance without any individualized suspicion, or even a belief that a crime has occurred. It claims that CSLI is a simple building block at the beginning of an investigation that is the equivalent of chatting with bystanders. Riley refused to countenance this warrantless practice when it explained that location data qualifies as one of the “privacies of life” that the Fourth Amendment protects.

The appellant's reply further disassembles the government's assertion that grabbing cell location info is like "chatting with bystanders" in order to help "build an investigation." In one footnote, it asks why the government feels it shouldn't need a warrant for the cell location data when it obviously found a warrant necessary elsewhere, belying its "building an investigation" claim.

Here, this argument is demonstrably false. Appellants had already been arrested and indicted–and multiple search warrants had already been issued–before the government first sought the 18 U.S.C. § 2703(d) orders. In fact, some of the warrants were to search the cell phones.

In another, it attacks the ridiculousness of the Third Party Doctrine, which the government claims gives it the "right" to grab records without warrants and, in essence, turns the cell provider into nothing more than an impartial witness/bystander.

Contrary to the government’s assertion, nobody at Sprint witnessed Appellants’ movements, let alone any criminal activity. The government required Sprint to record his movements, using Sprint as the custodian. The technology itself needs only ephemeral and anonymous detection of location. Using this artefact of the technology as a retrospective homing beacon does not transform Sprint into a witness. Without the government’s action, no person would have ever known or seen the Appellants’ every move over the course of seven months.

If there's anything the court should pay particular attention to, it's this footnote. The government has successfully argued for years that so-called "business records" carry no expectation of privacy while hiding the fact that many of these records are maintained to meet government regulations. The government compels the production of records and then claims it should have broad, warrantless access to them because cell phone owners "voluntarily" generated these by using their phones. It ignores the fact that there's no way for customers to opt out of these collections, short of not using a phone. This ties into the Riley decision, in which the Supreme Court noted that having a cell phone isn't some sort of luxury enjoyed by a small percentage of the population but a necessity of modern life.

Filed Under: 4th amendment, cell site location, doj, location info, riley, warrant

DOJ Report Details The Massive Amount Of Violence Committed By Rikers Island Staff Against Adolescent Inmates

from the the-infernal-machine dept

Late in 2012, two mentally-ill minors were taken from their cells at Rikers and beaten by a shift captain and multiple guards, who took turns punching the two inmates while they were restrained. A jail clinician reported seeing one of them being punched in the head while handcuffed to a gurney. Another clinician said she saw staff striking the other while he screamed for them to stop hurting him. One of the two told consultants he was still spitting up blood "more than a month after the incident."

This was prompted by the inmates' refusal to "comply with earlier search procedures" and for "throwing urine" on guards. When questioned about this retaliatory beating by a prison physician, the captain said the inmates had banged their own heads against the wall. Other statements gathered infer that those involved pressured clinic staff to corroborate this story. The official report said simply: "The inmates were escorted to the clinic without further incident or force used."

We've long since dismissed the idea that the prison system offers any sort of reform or rehabilitation. Instead, it's a place where people are sent to be forgotten, broken down or completely destroyed. The Rikers Island prison in New York is no exception, but it does "offer" something many others don't. Because New York law treats everyone 16 and up as adults when it comes to criminal charges, minors are sent into the general population to co-exist with those with years or decades of criminal experience under their belts.

But there should be someone acting as a force of good, or at least neutrality, inside the prison: the guards. According to the DOJ's investigation of Rikers Island, those tasked with watching the prison population are indistinguishable from the long-term inhabitants. And those perceived as weakest -- the newly-imprisoned minors -- are targeted most frequently.

In the driest terms, the DOJ breaks down the problems at Rikers.

We conclude that there is a pattern and practice of conduct at Rikers that violates the constitutional rights of adolescent inmates. In particular, we find that adolescent inmates at Rikers are not adequately protected from harm, including serious physical harm from the rampant use of unnecessary and excessive force by DOC staff. In addition, adolescent inmates are not adequately protected from harm caused by violence inflicted by other inmates, including inmate-on-inmate fights. Indeed, we find that a deep-seated culture of violence is pervasive throughout the adolescent facilities at Rikers, and DOC staff routinely utilize force not as a last resort, but instead as a means to control the adolescent population and punish disorderly or disrespectful behavior. Moreover, DOC relies far too heavily on punitive segregation as a disciplinary measure, placing adolescent inmates—many of whom are mentally ill—in what amounts to solitary confinement at an alarming rate and for excessive periods of time.

This opening statement is alarming, but the devil is in the details, as they say. And Rikers' staff are operating at near-Satanic levels.

Based on a review of Department 24-hour reports from October 2012 through early April 2014, we identified 64 incidents involving blows to an adolescent inmate’s head or face. This is undoubtedly an underestimate of the number of headshots during this period, because 24hour reports contain only initial incident summaries prepared by staff themselves. Indeed, our review of incidents and witness interviews suggest that headshots were utilized far more frequently during this period. However, the fact that these summaries so often openly refer to headshots is disturbing.

Our consultant reported that headshots are far more common at Rikers than at any other correctional institution he has observed. In many instances, correction officers readily admit hitting inmates but claim they acted in self-defense after being punched first by the inmate. As a threshold matter, even when an inmate strikes an officer, an immediate retaliatory strike to the head or face is inappropriate. Moreover, there is often reason to question the credibility of the officer’s account. These incidents also disproportionately occur in locations without video surveillance, making it difficult to determine what transpired.

Those who intimately know the system know how to abuse it. The report details incident after incident that cannot be fully confirmed because it occurred out of view of the cameras. This is no accident. Inmate-on-guard violence can almost always be quantified because the inmate either doesn't know the camera's full scope or just doesn't care. But guards who want to hide their violent acts know where to go to escape the pervasive surveillance.

Where video exists, [there is a] failure to describe the events on the video. Often there is just a summary statement that the video was reviewed and consistent with officers’ use of force reports. Because video recordings so frequently go missing, as described above, without an accurate and detailed description of the video recording, there is no longer any objective record of the incident.

They also know how to deploy CYA phrases for beatings with witnesses, a little trick often used by abusive police officers.

While utilizing force, staff often yell “stop resisting” even though the adolescent has been completely subdued or, in many instances, was never resisting in the first place. This appears intended to establish a record that the continued use of force is necessary to control the inmate. Officers who witness the incident also frequently report that they heard the inmate was resisting, even though that is false.

In law enforcement, "stop resisting" is a mantra to be chanted while swinging fists, batons or anything else that might inflict pain. Rikers Island fits right in with its brothers on the outside.

This list neatly summarizes the brutal force that is the Rikers Island staff:

• force is used against adolescents at an alarming rate and violent inmate-on-inmate fights and assaults are commonplace, resulting in a striking number of serious injuries;
• correction officers resort to “headshots,” or blows to an inmate’s head or facial area, too frequently;
• force is used as punishment or retribution;
• force is used in response to inmates’ verbal altercations with officers;
• use of force by specialized response teams within the jails is particularly brutal;
• correction officers attempt to justify use of force by yelling “stop resisting” even when the adolescent has been completely subdued or was never resisting in the first place; and
• use of force is particularly common in areas without video surveillance cameras.

The long report details numerous, extremely violent incidents, like this one:

In August 2013, four adolescent inmates were reportedly brutally beaten by multiple officers. Based on accounts provided by the inmates, several officers assaulted the inmates, punching and kicking them and striking them with radios, batons, and broomsticks. The beating continued for several minutes after the inmates already had been subdued and handcuffed. The inmates were then taken to holding pens near the clinic intake where they were beaten again by several DOC Gang Intelligence Unit members, who repeatedly punched and kicked them while the inmates were handcuffed. Two of the inmates reported that they had lost consciousness or blacked out during the incident. The officers’ written statements assert that the inmates instigated the fight and they used force only to defend themselves. The Department’s investigation of the incident was ongoing at the time this letter was prepared. The inmates sustained multiple injuries, including a broken nose, a perforated eardrum, head trauma, chest contusions, and contusions and injuries to the head and facial area.

And chillingly matter-of-fact footnotes point to the pervasive culture of violence maintained by Rikers staff.

RNDC inmates suffered 22 jaw fractures during the first 5 ½ months of 2012 alone.

The ultimate problem here is that the DOJ could investigate nearly every prison in the country and come away with reports nearly as damning. A severe imbalance of power, only occasionally addressed by very minimal checks or repercussions, leads directly to this sort of behavior.

The violence is abhorrent. That it's often directed at the weakest members of the prison population is even more so. And the staff knows what it's doing is completely wrong. The report shows that staff falsified reports, destroyed recordings, instructed clinic staff to corroborate their lies, told visiting teaching staff to "look away" from violent incidents (and keep their students from viewing these beatings as well) and failed to investigate questionable reports in a thorough or timely fashion.

Going to prison is never expected to be a pleasant experience, but one would hope they only needed to watch out for their fellow inmates. The Rikers staff's behavior ensures there is no safe haven inside its walls.

Filed Under: adolescents, beating, doj, gangs, inmates, prison, rikers island, violence

Judge Gives DOJ Until The End Of The Month To Submit Declassified Opinion Containing FISA Court's Justifications For The Section 215 Program

from the surveillance-state-sausage-making dept

It appears the government will finally be releasing the FISA court's thought process justifying the mass harvesting of Americans' metadata from fully-immunized telcos under the Section 215 program (now 501). An earlier court order from FISA judge Dennis Saylor discussing the potential release of this court opinion described it thusly:

The government has identified the Opinion issued in Docket Number BR 13-25 on February 19, 2013, as one that "contain[s] analysis by this Court evaluating the meaning, scope, and/or constitutionality" of Section 215 of the USA PATRIOT Act, codified as amended at 50 U.S.C. § 1861.

Whether it will be instructive and enlightening (rather than stuffed full of Third Party Doctrine bullshit and circular "it's legal because it's legal" reasoning) remains to be seen. But the last two words of that previous sentence are something at least: it will "be seen." And, apparently, with a minimum of redactions.

For the reasons stated herein, the Court is directing the government to prepare and declassify a redacted version of the opinion issued by the Foreign Intelligence Surveillance Court (FISC) in Docket Number BR-25 on February 19, 2013.

The ACLU (and others) have pushed for a release of this particular FISC opinion for more than a year now. The court doesn't even attempt to address the First Amendment implications of withholding the opinion from the public because there are plenty of other angles justifying its release. The court notes that the release would serve the public's interest as recent disclosures (both authorized and unauthorized) have brought the Section 215 program into the court of public opinion (as well as actual federal courtrooms).

While the FISA court may have arrived at this conclusion based on ongoing events, the government arrived somewhere completely different.

After appropriations had been reinstated and a timetable for declassification review had been set, the government advised that, “[a]fter careful review of the [February 19, 2013] Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.”

The FISA court asked for the combined brain power of the DOJ, Executive Branch and an unspecified number of "senior intelligence officials" to explain their thought process and got a lot of unintelligible mumbles and floor-staring in return.

Noting that “the government has provided no explanation of this conclusion,” the Court ordered the government to submit “a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.”

Duly chastened, the brain trust resorted to one of its favorites: making this info public would jeopardize ongoing investigations. But it conceded that the opinion could still be declassified if a sufficient amount of black ink is spilled. The FISC pressed harder, asking for narrower redactions that removed only the targets in question, rather than the accompanying language that would clarify the court's stance on the bulk collection issue. Surprisingly, despite its lack of practice with operating anything narrowly-defined or targeted, the government managed to come up with a redacted version that satisfied the unexpectedly demanding FISA court.

[T]he Court notes that releasing the February 19, 2013 Opinion pursuant to the Second Redaction Proposal achieves the basic objective sought by the movants: disclosure of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts. There is an inherent risk that the end product of such an exercise “may confuse or obscure, rather than illuminate, the decision[ ] in question.” In re Motion for Release of Court Records, 526 F. Supp.2d at 495. On balance, however, the Court is satisfied that publication of the February 19, 2013 Opinion in conformance with the Second Redaction Proposal would enhance, rather than detract from, public understanding of the Court’s reasoning as to the legal issues presented.

Well, I guess we'll see what it looks like when we get it. August 29th is deadline for the submission of a formally declassified version of the (supposedly) narrowly-redacted opinion. The FISA court then needs to give it a quick once-over before publishing it "immediately" to its website. I don't expect to see it any sooner than the end of this month, but we'll be taking a good look at it when it finally arrives.

Filed Under: bulk data collection, bulk phone records, doj, fisa court, fisc, foia, justification, legal justification, nsa, section 215