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Monday, June 1, 2015

Sunsetting A Few Parts Of The PATRIOT Act May Be Symbolic And Good, But It Won't Really Change Much By Itself


Sunsetting A Few Parts Of The PATRIOT Act May Be Symbolic And Good, But It Won't Really Change Much By Itself

from the we-need-reform dept

As you likely know, barring some sort of last minute deal this weekend (which is a distinct possibility) a few sections of the PATRIOT Act are set to expire (or, as the cool kids are saying: "sunset"). It is not -- as some have falsely claimed -- the entire PATRIOT Act ending. It just a few pieces -- with most of the publicity focused on Section 215, which had been the rationale for the bulk phone records collection that was the first big leak from the Snowden documents. There's been a bit of a debate among some about whether or not this sunset is really that important, beyond the clear symbolism of finally killing off part of the PATRIOT Act. Two of the people I most respect on privacy and surveillance issues -- Jennifer Granick and Julian Sanchez -- have come down on seemingly different sides of the issue, so it seemed worth comparing what they had to say (and realizing that they're really not that far off from each other). Granick takes the position that letting the provisions sunset is important and a big deal. She admits that it's still limited:
If Congress does nothing, section 215 will sunset. And this is exactly what reformers should be asking for. The fact is, sunset is the only thing that will definitely stop massive spying under section 215. It won’t stop mass surveillance more generally, but killing the law that NSA and FBI have abused for years is the first step.
But, still, she says, it's important and will have an impact. In particular, she notes that while basic reform -- a la the USA Freedom Act -- might have made sense before, "the political winds have shifted." In particular, she points to the the big 2nd Circuit appeals court ruling that noted that Section 215 never really authorized the bulk records collection program in the first place -- along with a growing number of elected officials who appear to believe the intelligence community has gone too far. Her fear, is that if we passed something like the USA Freedom Act, it will take away any chance at real reform, whereas sunsetting may force the issue:
Americans want real, not symbolic change. Sixty percent of likely voters from both political parties believe the rules on surveillance have to become more restrictive. Groups that were heavily involved in the USAF compromise negotiations are concerned that if it doesn’t pass, if 215 sunsets, civil liberties advocates will have to struggle to ensure that something worse than USAF doesn’t become law. But there’s a clear and present danger that if USAF passes, everyone will pat themselves on the back for a job well done, suspicionless domestic spying will continue, the amazing and expansive Second Circuit opinion will be mooted, and it’ll be suspicionless spying as usual until the next big surveillance provision, section 702 of the FISA Amendments Act sunsets at the end of 2017, and we’re in the same position again. The truth is, this struggle to be a robust democracy in the face of the threat of terrorism, is here to stay, regardless of what happens in the next week or so.

So, let’s don’t just do something, let’s stand here. Let’s let 215 sunset. It was unthinkable a month ago. Today it’s likely. In combination with the Second Circuit opinion, the sunset will, irrefutably, put laws on the books that will end domestic dragnets. Then, let’s get serious. Let’s have hearings, really understand all the spying being done in our name, how the information is being used. Let’s set up real, comprehensive, robust checks and balances, starting with declassifying interpretations of law and changing the role of the FISA judges.
On the flip-side, however, we have Sanchez, who argues that the benefits to sunsetting Section 215 are massively overstated. He highlights how the intelligence and law enforcement communities have a number of other authorities under which they have collected similar "bulk" records, and that they would likely shift to pretty quickly after Section 215 goes away.
But while "Sunset the Patriot Act" makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent—and includes an array of overlapping authorities that will limit the effect of an expiration.
While section 215 covers business records, section 214, also known as the "pen register/trap & trace" authority, covers the acquisition of communications “metadata” (things like dialed phone numbers and email or Internet Protocol addresses) in real time.
Years before the current version of the NSA telephone program under 215 was born, the government employed similar arguments to persuade the secret Foreign Intelligence Surveillance Court (FISC) to bless a bulk program vacuuming up international internet metadata under the aegis of section 214. Though that program was ended in 2011—likely at least in part because NSA was able to obtain much of the same data by collecting it overseas, with fewer restrictions—the authority is permanent.
Also permanent are National Security Letters or NSLs, which that allow the FBI to obtain a more limited range of telecommunications and financial records without even needing to seek judicial approval. Unsurprisingly, the government loves these streamlined tools, and used them so promiscuously that the FBI didn’t even bother using 215 for more than a year after the passage of the Patriot Act. Inspector General reports have also made clear that the FBI is happy to substitute NSLs for 215 orders when even the highly accommodating FISC manages a rare display of backbone. In at least one case, when the secret court refused an application for journalists’ records on First Amendment grounds, the Bureau turned around and obtained the same data using National Security Letters.
Even worse, there's actually something of a "grandfather clause" that will let the NSA keep on keeping on anyway:
Even 215 itself doesn’t really expire when it expires. In theory, the law reverts to a pre–Patriot Act version of the business records authority that is restricted to records that "pertain" to a suspected foreign agent or terrorist—language the government is sure to read as broadly as possible. But thanks to a little-noticed grandfather clause in the law, the current souped-up version of the law, which covers any records “relevant” to an authorized national security investigation, will remain available for investigations already open at the time of sunset, as well as new investigations into offenses committed before the sunset. Since the FBI routinely maintains massive “enterprise” investigations covering entire terror groups, which can continue for years if not decades, we can expect section 215 to have a lengthy afterlife.
In short: sunsetting may be symbolic, but it won't really change much on its own. Sanchez points out that what we really need is real reform -- and his fear is that by focusing so much on championing the "sunset," people advocating for such a solution may miss out on then adding the necessary surveillance reforms that are needed beyond that:
...the celebration may not only be premature, but counterproductive if the impending expiration is perceived as a substantial victory in itself. Some legislators and activists are now so fixated on the symbolism of sunsetting "the Patriot Act" that they’re even urging opposition to broader reforms.
Sanchez readily admits that the USA Freedom Act isn't perfect either, but that it does have many features that are important:
That’s not to say that the USA Freedom Act is by any means an ideal alternative, or that its critics shouldn’t use the sunset of 215 as leverage to push for stronger reforms. USA Freedom, for instance, doesn’t even touch massive surveillance within the United States under section 702 of the FISA Amendments Act, or the even more massive spying enabled by Executive Order 12333, a Reagan-era order that covers surveillance conducted outside the United States. But the Freedom Act does at least cover the full range of Patriot Act authorities that employ the "relevance" standard, preventing a tricky shell game that simply moves collection from expired authorities to permanent ones.

The way USA Freedom seeks to do this is also hardly perfect: The law creates a streamlined process for obtaining specific telephone records from multiple phone carriers (addressing objections that a massive NSA database was the only way to avoid the cumbersome necessity of serving many companies with orders for records stored in incompatible formats) and requires that, across all these authorities, "specific selection terms"—like a phone number or billing address—be used to identify the particular records sought. That means instead of evaluating whether an entire database might be “relevant” when considered in aggregate, the court would have to consider whether the government had demonstrated the relevance of the particular records corresponding to a set of selection terms.
Both are very interesting reads -- and while they appear to be taking the opposite viewpoint, they really are a lot closer than they may appear on the surface. Both are advocating for the need for real surveillance reform, going beyond just this program. Both recognize that sunsetting Section 215 is largely symbolic. Where they differ is in their thinking about how best to get there. Sanchez worries that the sunset will be seen as "mission accomplished" and real reform won't occur. Granick fears the same "mission accomplished" feeling with the too weak USA Freedom Act.

To be honest, they both may have a point. The common message remains there, however: we need real surveillance reform to stop an awful lot of bad activity on the part of the intelligence (and law enforcement) community. Sunsetting Section 215 is a possible step. USA Freedom is another possible step. Either one, on their own, is not nearly enough.

That said, the fact that either are seriously on the table is a huge step forward on its own. For years, surveillance has only expanded. And we're actually at a rare point in history where things are going to go the other way. Now we just need to make it meaningful in creating something that goes beyond either just sunsetting or just USA Freedom.

The NYTimes Plays Its Role In 'Keeping Fear Alive' With Pure Fearmongering Over PATRIOT Act Renewal


The NYTimes Plays Its Role In 'Keeping Fear Alive' With Pure Fearmongering Over PATRIOT Act Renewal

from the all-the-propaganda-that's-fit-to-print dept

Earlier this year, we wrote about the psychological games that surveillance state defenders play -- both on themselves and the public -- to continually ratchet up programs that show no evidence of working. In it, we pointed to a great post by the ACLU's Kade Crockford, highlighting a rare case where an FBI official was forthright about what's really going on:
If you’re submitting budget proposals for a law enforcement agency, for an intelligence agency, you’re not going to submit the proposal that ‘We won the war on terror and everything’s great,’ cuz the first thing that’s gonna happen is your budget’s gonna be cut in half. You know, it’s my opposite of Jesse Jackson’s ‘Keep Hope Alive’—it’s ‘Keep Fear Alive.’ Keep it alive.
Keep fear alive. Keep it alive. And, apparently, one great way to do that is to basically get the NY Times to run pure government propaganda in the form of simply repeating anonymous fearmongering from administration officials who set up a call for this exact purpose:
“What you’re doing, essentially, is you’re playing national security Russian roulette,” one senior administration official said of allowing the powers to lapse. That prospect appears increasingly likely with the measure, the USA Freedom Act, stalled and lawmakers in their home states and districts during a congressional recess.

“We’re in uncharted waters,” another senior member of the administration said at a briefing organized by the White House, where three officials spoke with reporters about the consequences of inaction by Congress. “We have not had to confront addressing the terrorist threat without these authorities, and it’s going to be fraught with unnecessary risk.”
First, note the anonymity, even though this isn't a leak or a reporter sniffing out a story and needing to protect sources. This is a "briefing organized by the White House" where they play stupid games in demanding anonymity for the sole purpose of avoiding accountability. Second, note the blatant fearmongering without any specifics. It's pure "keep fear alive" in action -- aided along by a stenographer at the NY Times.

All the propaganda that's fit to print.

As the Intercept rightly notes, this piece was published without even the slightest critical look into the statements by those officials:
Worst of all, it’s all published uncritically. There’s not a syllable challenging or questioning any of these dire warnings. No Patriot Act opponent is heard from. None of the multiple facts exposing these scare tactics as manipulative and false are referenced.
It’s just government propaganda masquerading as a news article, where anonymous officials warn the country that they will die if the Patriot Act isn’t renewed immediately, while decreeing that Congressional critics of the law will have blood on their hands due to their refusal to obey. In other words, it’s a perfect museum exhibit for how government officials in both parties and American media outlets have collaborated for 15 years to enact one radical measure after the next and destroy any chance for rational discourse about it.
Once again, two separate government review boards, as well as judges who have looked over the program and Senators who have been briefed on the full extent of the program in question, have all said that the bulk metadata collection program has not proven useful in stopping terrorist attacks. At all.

And, of course, blatant fearmongering without comparing the costs and (lack of) benefits is completely useless. Again, it could be taken to any extreme. Would putting real-time cameras hovering over every living human being 24/7 allow the government to find out who was plotting a terrorist attack? In theory, yes. But everyone would consider it a gross violation of privacy. Just because a tool might be useful doesn't mean that it's the right thing to do. So, here we have a case of a "tool" that is both a clear violation of our civil liberties and one that hasn't even been found to be useful.

Yet why is the NY Times -- the so-called "paper of record" -- repeating blindly government propaganda about how important it is to keep the program alive? Keep fear alive, NY Times. Keep it alive.

FBI, CIA Use Backdoor Searches To Warrentlessly Spy On Americans' Communications


FBI, CIA Use Backdoor Searches To Warrentlessly Spy On Americans' Communications

from the but-of-course dept

The other shoe just dropped when it comes to how the federal government illegally spies on Americans. Last summer, the details of the NSA's "backdoor searches" were revealed. This involved big collections of content and metadata (so, no, not "just metadata" as meaningless as that phrase is) that were collected under Section 702 of the FISA Amendments Act (FAA). This is part of the program that the infamous PRISM effort operates under, and which allows the NSA to collect all sorts of content, including communications to, from or about a "target" -- where a "target" can be incredibly loosely defined (i.e., it can include groups or machines or just about anything). The "backdoor searches" were a special loophole added in 2011 allowing the NSA to make use of "US person names and identifiers as query terms." In the past, it had been limited (as per the NSA's mandate) to only non-US persons.

This morning, James Clapper finally responded to a request from Senator Ron Wyden concerning the number of such backdoor searches using US identifiers that were done by various government agencies. And, surprisingly, it's redaction free. The big reveal is... that it's not just the NSA doing these searches, but the CIA and FBI as well. This is especially concerning with regards to the FBI. This means that the FBI, who does surveillance on Americans, is spying on Americans communications that were collected by the NSA and that they're doing so without anything resembling a warrant. Oh, and let's make this even worse: the FBI isn't even tracking how often it does this. It's just doing it willy nilly:
The FBI does not track how many queries it conducts using U.S. person identifiers. The FBI is responsible for identifying and countering threats to the homeland, such as terrorism pilots and espionage, inside the U.S. Unlike other IC agencies, because of its domestic mission, the FBI routinely deals with information about US persons and is expected to look for domestic connections to threats emanating from abroad, including threats involving Section 702 non-US. person targets. To fulfill its mission and avoid missing connections within the information lawfully in its possession, the FBI does not distinguish between U.S. and non- U.S. persons for purposes of querying Section 702 collection. It should be noted that the FBI does not receive all of Section 702 collection; rather, the FBI only requests and receives a small percentage of total Section 702 collection and only for those selectors in which the FBI has an investigative interest.

Moreover, because the FBI stores Section 702 collection in the same database as its "traditional" FISA collection, a query of "traditional" FISA collection will also query Section 702 collection. In addition, the FBI routinely conducts queries across its databases in an effort to locate relevant information that is already in its possession when it opens new national security investigations and assessments. Therefore, the FBI believes the number of queries is substantial. However, only FBI personnel trained in the Section 702 minimization procedures are able to View any Section 702 collection that is responsive to any query.
Got that? Basically, the FBI often asks the NSA for a big chunk of data that the NSA probably shouldn't have in the first place -- including tons of Americans' communications, and the FBI gets to dump it into the same database that it is free to query. And the FBI tracks none of this, other than to say that it believes that there are a "substantial" number of such queries. This would seem to be a pretty blatant attempt to end run around the 4th Amendment, giving the FBI broad access to searching through the communications of Americans with what appears to be almost no oversight.


Oh, and it's not just the NSA, but the CIA as well. Remember, the CIA is not supposed to be doing any surveillance on US persons (like the NSA), but that's not what's happening at all. At least the CIA tracks some (but not all) of its abuse of backdoor searches:
In calendar year 2013, CIA conducted fewer than 1900 queries of Section 702-acquired communications using specific U.S. person identifiers as query terms or other more general query terms if they are intended to return information about a particular U.S. person. Of that total number approximately 40% were conducted as a result of requests for counterterrorism-related information from other U.S. intelligence agencies. Approximately 27% of the total number are duplicative or recurring queries conducted at different times using the same identifiers but that CIA nonetheless counts as separate queries. CIA also uses U.S. person identifiers to conduct metadata-only queries against metadata derived from the FISA Section 702 collection. However, the CIA does not track the number of metadata-only queries using U.S. person identifiers.
So, the CIA is doing these kinds of warrantless fishing expeditions into the communications of Americans as well, but at least the CIA tracks how often it's doing so. Of course, when it comes to metadata searches, the CIA doesn't bother. It's also a bit bizarre that the CIA is apparently carrying out a bunch of those searches for "other U.S. intelligence agencies," when the CIA should be especially limited in its ability to do these searches in the first place.

Senator Wyden has responded to these revelations by pointing out how "flawed" the oversight system is that these have been allowed:
When the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight. This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected. The findings transmitted to me raise questions about whether the FBI is exercising any internal controls over the use of backdoor searches including who and how many government employees can access the personal data of individual Americans. I intend to follow this up until it is fixed.
Hopefully, now you are starting to recognize what a big deal it was last week when the House of Representatives recently voted to defund the ability to do these kinds of backdoor searches. Still, much more needs to be done.

Oh, and in case you're wondering why Clapper finally 'fessed up to the FBI and CIA making use of these data to warrantlessly spy on Americans, it's worth noting that the Privacy and Civil Liberties Oversight Board (PCLOB) is expected to come out with its report on the Section 702 surveillance program on July 2nd (7/02, get it?). It seems likely that the report will discuss these backdoor searches on Americans and how other agencies besides the NSA has been involved in the practice.

Meet Executive Order 12333: The Reagan rule that lets the NSA spy on Americans

Meet Executive Order 12333: The Reagan rule that lets the NSA spy on Americans

July 18, 2014
John Napier Tye served as section chief for Internet freedom in the State Department’s Bureau of Democracy, Human Rights and Labor from January 2011 to April 2014. He is now a legal director of Avaaz, a global advocacy organization.

In March I received a call from the White House counsel’s office regarding a speech I had prepared for my boss at the State Department. The speech was about the impact that the disclosure of National Security Agency surveillance practices would have on U.S. Internet freedom policies. The draft stated that “if U.S. citizens disagree with congressional and executive branch determinations about the proper scope of signals intelligence activities, they have the opportunity to change the policy through our democratic process.” 

But the White House counsel’s office told me that no, that wasn’t true. I was instructed to amend the line, making a general reference to “our laws and policies,” rather than our intelligence practices. I did.

Even after all the reforms President Obama has announced, some intelligence practices remain so secret, even from members of Congress, that there is no opportunity for our democracy to change them.

Public debate about the bulk collection of U.S. citizens’ data by the NSA has focused largely on Section 215 of the Patriot Act, through which the government obtains court orders to compel American telecommunications companies to turn over phone data. But Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333.

From 2011 until April of this year, I worked on global Internet freedom policy as a civil servant at the State Department. In that capacity, I was cleared to receive top-secret and “sensitive compartmented” information. Based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215.

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court. Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Select Committee on Intelligence, has said that the committee has not been able to “sufficiently” oversee activities conducted under 12333.

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

“Incidental” collection may sound insignificant, but it is a legal loophole that can be stretched very wide. Remember that the NSA is building a data center in Utah five times the size of the U.S. Capitol building, with its own power plant that will reportedly burn $40 million a year in electricity.

“Incidental collection” might need its own power plant.

A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.

Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.

Without any legal barriers to such collection, U.S. persons must increasingly rely on the affected companies to implement security measures to keep their communications private. The executive order does not require the NSA to notify or obtain consent of a company before collecting its users’ data.

The attorney general, rather than a court, must approve “minimization procedures” for handling the data of U.S. persons that is collected under 12333, to protect their rights. I do not know the details of those procedures. But the director of national intelligence recently declassified a document (United States Signals Intelligence Directive 18) showing that U.S. agencies may retain such data for five years.

Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures. I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA.

I am not the first person with knowledge of classified activities to publicly voice concerns about the collection and retention of communications by U.S. persons under 12333. The president’s own Review Group on Intelligence and Communication Technologies, in Recommendation 12 of its public report, addressed the matter. But the review group coded its references in a way that masked the true nature of the problem.

At first glance, Recommendation 12 appears to concern Section 702 of the FISA Amendments Act, which authorizes collection inside the United States against foreign targets outside the United States. Although the recommendation does not explicitly mention Executive Order 12333, it does refer to “any other authority.” A member of the review group confirmed to me that this reference was written deliberately to include Executive Order 12333.

Recommendation 12 urges that all data of U.S. persons incidentally collected under such authorities be immediately purged unless it has foreign intelligence value or is necessary to prevent serious harm. The review group further recommended that a U.S. person’s incidentally collected data never be used in criminal proceedings against that person, and that the government refrain from searching communications by U.S. persons unless it obtains a warrant or unless such searching is necessary to prevent serious harm.

The White House understood that Recommendation 12 was intended to apply to 12333. That understanding was conveyed to me verbally by several White House staffers, and was confirmed in an unclassified White House document that I saw during my federal employment and that is now in the possession of several congressional committees.

In that document, the White House stated that adoption of Recommendation 12 would require “significant changes” to current practice under Executive Order 12333 and indicated that it had no plans to make such changes.

All of this calls into question some recent administration statements. Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.” Note, however, that Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans dig deeper.

Consider the possibility that Section 215 collection does not represent the outer limits of collection on U.S. persons but rather is a mechanism to backfill that portion of U.S. person data that cannot be collected overseas under 12333.

Proposals for replacing Section 215 collection are currently being debated in Congress. We need a similar debate about Executive Order 12333. The order as used today threatens our democracy. There is no good reason that U.S. citizens should receive weaker privacy and oversight protections simply because their communications are collected outside, not inside, our borders.

I have never made any unauthorized disclosures of classified information, nor would I ever do so. I fully support keeping secret the targets, sources and methods of U.S. intelligence as crucial elements of national security. I was never a disgruntled federal employee; I loved my job at the State Department. I left voluntarily and on good terms to take a job outside of government. A draft of this article was reviewed and cleared by the State Department and the NSA to ensure that it contained no classified material.

When I started at the State Department, I took an oath to protect the Constitution of the United States. I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing. Such a legal regime risks abuse in the long run, regardless of whether one trusts the individuals in office at a particular moment.

I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

Read more from Outlook and follow our updates on Facebook and Twitter.

Why Do They Spy on Us and Not The Terrorists?

Capitol Hill Daily

Why Do They Spy on Us and Not The Terrorists?

Why Do They Spy On Us, And Not The Terrorists?
In less than a week since it became public, the Obama administration’s NSA spying scandal has progressed far beyond the accumulation of Verizon (VZ)’s phone records.

We now know the NSA and its friends at Eric Holder’s Department of Justice are also utilizing Google (GOOG), Facebook (FB), Yahoo! (YHOO) and almost every other large tech firm to spy on us.

Of all the recent scandals, the NSA spying scandal is particularly frightening. Between our phone records, emails, text messages and our whereabouts – which are provided courtesy of our cellphones – the government has admitted to knowing all our secrets.

Now, the justification for granting the regime this unconstitutional spying power is based on the idea that the snooping makes us safer. But does it really make us more secure? Ben Franklin said, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

Broadly speaking, Americans agree that politicos are slippery folk. So why would we trust them with such untold power? The record shows that, up to now, Obama and his team aren’t worthy of unlimited access to our most personal and intimate information.

Our Fears Are Justified

Based on their statements and actions, America’s leaders believe we‘re all potential threats to the Federal government. And now Obama is learning that trust (or a lack of trust) is a two-way street.

You see, everything comes down to trust. And the American people have lost theirs in this administration. Following the string of recent scandals, it’s impossible to ignore that there’s a distinct pattern of abuse of power in Obama’s administration. Let’s face it…
  • It’s abuse of power when the IRS and other federal agencies are used to target political opponents.
  • It’s abuse of power when the DOJ is digging into the phone records of journalists.
  • It’s abuse of power when Kathleen Sebelius shakes down the same insurance companies that she regulates to pay for Obamacare.
  • It’s abuse of power when the government blames a YouTube video for what happened at the Benghazi compound.
  • It’s abuse of power to order the summary execution of an American citizen without a trial via drone strike… even if the execution takes place in Yemen, or some other far-off land.
So here’s the bottom line… why would we trust the Obama administration to not abuse the NSA’s spying powers, too?

The Sad Truth

All this spying on innocent Americans didn’t collar the Tsarnaev brothers ahead of the Boston Marathon bombing. And it’s clear they made abundant use of smartphones and the internet. Heck, we even had a warning from Russian security officials that the older Tsarnaev brother was a threat, and we couldn’t catch them.

The spying on innocent Americans didn’t collar Major Nidal Hasan before he massacred soldiers at Fort Hood, and he regularly surfed to jihadi websites.
Instead of focusing on the real problem characters, the Obama administration wants to know who you and I talk to. As Senator Diane Feinstein, who was supposed to be providing congressional oversight, stated this last week, the authorities need this information in case someone might become a terrorist in the future.

But only the most compliant of citizen sheep would believe Obama and his team won’t abuse this spying power.

Let’s hope Congress will have the fortitude to put this frightening episode of domestic spying in the history books and make clear the government only has the power to collect data on suspects of a crime.

Your eyes on the Hill,

Floyd Brown
Floyd Brown boasts a lifetime of political involvement, ranging from political appointee in the Reagan campaigns and consultant to the Bush, Dole and Forbes presidential campaigns - to his current role as the President of the Western Center for Journalism, a nonprofit dedicated to informing and equipping Americans who love freedom. Learn More >>

Sunday, May 18, 2014

You Can Have Your Kids Taken Away for Smoking Legal Pot



Marijuana may be legal in Colorado, yet harsh drug war laws still penalize society's most marginalized women.

It is no secret that marijuana legalization in Colorado and Washington ushered in internationally unprecedented progressive drug policy in the United States. What is lesser understood, however, is that these new “experimental” reforms do not necessarily peel back all of the many, punitive layers of drug war enforcement. Despite the prevailing notion that the consequences of marijuana prohibition are determined in criminal courts for crimes like possession and sale, some of the harshest punishments are steeped in ever-complicated family law and Child Protective Services (CPS).
Well-intentioned marijuana policy reform thus often leaves women, who are more likely to be their children’s primary caretakers, behind. The effects of enforcing anti-drug family law go so far, in fact, as to punish women for child abuse and neglect crimes ostensibly committed on their fetuses — even in states where marijuana is explicitly legal for all adults 21 and older.
“Drug endangered children” — the term used to describe various programs, tactics, and other efforts to address child abuse via drug use — represents “the new way drug warriors are trying to continue their war on marijuana, and has become a multi-agency federal, state, and local tool, which the states and agencies may use to get even more funds,” Sara Arnold, marijuana policy activist and founder of the Family Law Cannabis Alliance, told RH Reality Check. “Many cannabis [decriminalization] laws actually run the risk of making parents second-class citizens, because they end up being the only ones left who will face penalties for their cannabis use.”
For Colorado mother Amber Buster, marijuana use was a seemingly legal, effective treatment for debilitating side effects of pregnancy. Buster was expecting her third child when she experienced “morning” sickness so severe that her nausea and vomiting lasted throughout the day.
“I couldn’t even drink water or eat crackers,” Buster said. She worried nutritional deficiencies might affect her pregnancy. Familiar with medical marijuana because her mother and spouse are state-licensed users, Buster found that smoking a little weed improved her appetite enough that she could keep some food and liquids down.
Unbeknownst to her, however, Colorado’s marijuana law need not explicitly state exceptions to legalized adult marijuana use for such exceptions to exist. The complicated, incentive-based relationship between federal and state child abuse laws obscures parents’ protections under legalization.
“As long as cannabis is a scheduled controlled substance under federal law, it will be included in laws regarding child abuse/neglect and come into conflict with state laws — and leave it up to CPS departments to decide which policy they follow, unless they are specifically stopped from doing so,” Arnold explained in an email, adding that professionals, like doctors, who are tasked with reporting child abuse also have wide discretion. “Keep in mind that both mandated reporters [of child abuse] and CPS workers have qualified immunity; what this means is that they cannot be sued by parents who are wronged if they report or investigate a parent when they shouldn’t, as long as it was in good faith (and it is always presumed to be so unless there is clear proof it was malicious).”
The Child Abuse Prevention and Treatment Act (CAPTA) requires states receiving federal grants to meet a series of standards. It mandates, for example, that states address the needs of infants “affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure,” and that “health care providers involved in the delivery or care of” drug-exposed infants notify CPS, regardless of whether the baby’s health is threatened.
CAPTA’s failure to further define terms like “affected by an illegal substance” leaves hospital staff incredible discretion in determining which mothers they perceive as potential addicts whose children should be tested, which babies are “affected,” and even which drugs are “illegal.”
This discretion, in turn, allows for an unpredictable system often guided by confusion and biases from individual reporters of abuse and neglect.
Buster informed her primary physician that she was using marijuana for nausea because she had been taught that doctors are “supposed to have the truth in case anything happens.” The doctor thought of her marijuana use as the equivalent of smoking a cigarette, she said, and nonchalantly made a note of it. But nurses in the hospital where Buster gave birth were more concerned, and after discovering the note in her file, they notified the new mother that, despite an uncomplicated delivery and healthy infant, they were “required” to drug-test the baby. (There is no law explicitly requiring them to do so.)
The infant tested positive for THC, prompting three CPS visits to Buster’s home followed by a notice indicating an official finding of child abuse and neglect, all thanks to a well-intended note neither she nor her physician expected to cause such a kerfuffle. To Buster, the entire ordeal was shocking proof that marijuana in Colorado is only legal for some.
Indra Lusero, a Colorado attorney focusing on civil rights related to childbirth, took on Buster’s case. She argued that Buster’s marijuana use was legal under Amendment 64, and that CPS agents failed to find additional evidence of an unfit environment. She won her appeal and had the child abuse finding expunged before Buster went to trial. “The positive test for drug exposure basically became a de facto finding of abuse,” said Lusero. Moreover, she said that she doubts Buster is alone.
“I am confident there are other women who are facing charges [similar to Buster’s] and don’t have access to legal help,” said Lusero. “I am also confident that marijuana use is a factor in some complex cases where there are other variables related to abuse, and if parents had better access to legal help, marijuana use could be mitigated as an influential factor.”
One such example is custody battles, during which marijuana use could be presented as evidence of an unfit parent.
In two marijuana-related child abuse and neglect cases Lusero successfully fought, drug tests at birth were the primary cause of investigation. The law here is fuzzy: Colorado considers a positive drug test for a Schedule I or II controlled substance (as defined by the state’s Controlled Substance Act) an automatic finding of abuse or neglect, unless the Schedule II substance was taken legally as prescribed by a doctor. In Colorado, however, marijuana does not appear in the Schedule I or II category, creating a discrepancy between state and federal law (which does categorize marijuana as Schedule I) that individuals tasked with reporting child abuse have the leisure to define.
You see, CAPTA instructs states receiving funding to establish “mandatory reporters” of child abuse and neglect. In Colorado, these reporters range from marriage counselors to dental hygienists to clergy, all of whom are legally required to report maltreatment given “reasonable cause to know or suspect child abuse or neglect” or having observed “a child being subjected to circumstances or conditions that would reasonably result in abuse or neglect.” At the same time, they are tasked with interpreting the laws and making decisions about home lives that, though often requiring a wealth of intimate knowledge, are based on the individual reporter’s preconceived notions about drugs and who use them, including a host of race- and class-based biases.
“It would be nice to have some kind of policy — even if I could have expected that on my delivery date I would be harassed and forced to get involved in CPS,” said Buster. “It would be nice if maybe doctors would be required to tell you up-front that this could happen, that if you smoke marijuana and they end up testing your baby there’s a lot of things that could happen. At the time, I thought patient confidentiality applied, that it would only be brought up in the case of an emergency.”
Colorado legislators just introduced but failed to pass two bills tasked with “clarifying” the law in terms of drug-related child abuse and neglect, though not necessarily in a way that would have protected Buster.
The bills, SB 14-177 and SB 14-178, sought to define instances of a “drug-endangered child” while treating drug-endangerment as an automatic, punishable finding of child abuse and neglect. Concerning to Colorado legislators and marijuana policy activists alike, however, was that the bills were too sweeping to delicately address a complicated, yet exponentially important, issue. Critics’ amendments significantly reduced the bills’ oversight so that, by the time they reached the finish line, proponents argued the new legislation more narrowly defined drug-related child abuse than existing codes did.
Indeed, the new legislation added via amendments that de facto child abuse findings from drug endangerment can occur “ONLY” when a child’s welfare or health is threatened — a much-needed adjustment.
Still, the bills also expanded the existing code’s de facto finding of child abuse in several ways. SB 14-177, for example, introduced to state law two new definitions by which parental drug use could legally endanger and abuse/neglect children: a child’s “unrestricted access” to a controlled substance (including marijuana) and a parent’s “impairment” due to use of a controlled substance or legal substance capable of causing impairment. Under these new de facto child abuse findings, mandatory reporters would be tasked with judging proper marijuana storage, not to mention acceptable levels of highs, both of which leave the door to discretion wide open.
SB 14-177 and SB 14-178 also tried to broaden the law’s “manufacturing” focus on children near meth labs to consider parents who cultivated, produced, possessed, used, distributed, or obtained a controlled substance — such as voter-approved pot — where a child is present or resides, an automatic finding of child abuse. Amendments adding that abuse “ONLY” exists amid threat of injury soothed but did not eradicate concerns that state-sanctioned home grows might be treated by some individual reporters as de facto child abuse.
Even in their amended state, however, these laws fail to acknowledge that, even when legislative language mandates evidence of a safety risk, linking drug use to abuse ignites a judgement of parenting that is difficult to reverse.
Buster, for example, says her marijuana use was treated as illegal “because they just presumed I was getting my baby high instead of [treating nausea].”
This notion — that a person who smokes marijuana while pregnant is causing abuse to her fetus — is one scientists have repeatedly rejected. In an affidavit related to a similar case, Dr. Peter Fried, a psychology professor at Carleton University in Canada who has dedicated much of his career to studying the effects of prenatal marijuana exposure on infants, wrote:
Based on my 30 plus years of experience examining the newborn, infants, toddlers, children, adolescents and young adults born to women who used marihuana during pregnancy it is important to emphasize that to characterize an infant born to a woman who used marihuana during pregnancy as being ‘physically abused’ and/or ‘neglected’ is contrary to all scientific evidence (both mine and subsequent work by other researchers). The use of marijuana during pregnancy … has not been shown by any objective research to result in abuse or neglect.
Indeed, the legislative push to punish women for marijuana use during pregnancy is based not on science suggesting harm from which to protect children, but the notion of fetal rights.
Dorothy Roberts, University of Pennsylvania professor and author of “Killing the Black Body,” told RH Reality Check, “Punishing or monitoring a pregnant women for drug use relies on a view of the fetus as not just a separate person apart from the mother, but as if their interests are in conflict,” thus promoting the concept of fetal “personhood.”
Roberts also explained that the “very discretionary, very discriminatory” practices of Child Protective Services are rooted in racial stereotypes about drug use and mothering that continue to affect the outcome of CPS cases today.
“Drug use during pregnancy became a crime because it was targeted at Black women,” she said, acknowledging that “it has since moved to punish other women as well, but the conception of a public health problem as a crime relies on the vilification of Black women and their children.”
It began during the crack era, says Roberts, along with which came anti-drug hysteria including “the myth of the pregnant crack addict, who was thought to have no maternal instinct, and the myth of the ‘crack baby,’ who was supposed to be destined to be a criminal, a welfare dependent, a drug addict, and every anti-social behavior imaginable.”
The myth of the “crack baby,” too, has been debunked in several well-regarded studies. One found, for example, that doctors could not tell the difference between babies born crack-exposed from those born poverty-stricken.
The science is clear: Drug-related accusations of child abuse and neglect for crimes committed against a fetus are unsubstantiated.
Fighting against this trend in Child Protective Services will require more than just marijuana legalization. But to move the drug policy reform conversation in a direction that benefits women, there will need to be more women in positions of authority in the marijuana legalization movement — which is often overwhelmingly represented by men.
To offer resources like model legislation, female drug policy reformers are stepping up and organizing their own women-led groups, like the NORML Women’s Alliance and Sara Arnold’s Family Law Cannabis Alliance. As we usher in a new tide of marijuana policy reform, their work is paramount to ensuring marijuana legalization remain dedicated to social and racial justice for men, women, and parents alike.
“This is the next major battle in the long fight of marijuana reform,” said Arnold. “There is still some stigma about this issue even from marijuana reformers, and that has to change. The full might of marijuana reform needs to get behind this.”
Kristen Gwynne is a freelance reporter based in New York. Her work has appeared in The Nation, Salon and RollingStone.co

Saturday, April 12, 2014

DOJ Investigation Confirms: Albuquerque Police 'Executing' Citizens


Following release of report, rights groups calling for removal of mayor and police chief

- Lauren McCauley, staff writer 

Protesting against systemic abuse by the Albuquerque Police Department on Sunday April 6, demonstrators encountered officers in riot gear. (Photo: Cole L. Howard)

Residents of Albuquerque, New Mexico are marching on the police department Saturday to demand retribution against the city's mayor and police chief for their role in the police force's documented "execution" of citizens.

The march comes after the Department of Justice slammed the Albuquerque Police Department for their frequent use of excessive and lethal force in a damning report released on Thursday.

Though, according to advocates, abuse by local law enforcement has been systemic for years, calls for increased scrutiny of the APD were amplified following the police shooting death of James Boyd, a homeless man suffering from mental illness, on March 16.

Advocates welcomed the DOJ's findings, saying the report was "spot on" in terms of identifying the root causes of this behavior, such as the "aggressive culture of the department" and the way in which "force is prioritized in training."

However, according to David Correia, an organizer with the Task Force for Public Safety who has been working with families of victims of APD violence, the DOJ's inclusion of Mayor Richard J. Berry and police chief Gorden Eden in the negotiations for the consent decree, which will dictate how those recommendations will be implemented, is a "non-starter" for the community groups.

The systemic deficiencies identified by the DOJ are "all produced and reinforced through leadership," Correia told Common Dreams. "To say those people should be involved to us is 'no go.' We don't want them to be a part of it."

Further, Correia noted that the report did not go so far as to address some of the larger issues including laws around homelessness, access for people suffering from mental illness and access for veterans, which he says are also major contributors to the police violence in the city.

The Saturday evening protest will begin at 5 PM MST at Civic Plaza from where demonstrators will march to the APD. During another recent protest against the department, police assaulted demonstrators with tear gas.

Activists are calling for the removal of those officials, including Berry and Eden, who oversaw the frequent "execution" of citizens and for a federal monitor to be appointed. Correia said that they need to "interrupt the idea that this is somehow resolved," now that the DOJ has released their report.

"Our fear is that people will now think that the sheriff has come down in his white hat and we can all sit back and relax," Correia continued.

The Justice Department investigation, launched in November 2012, found:
APD officers too frequently use deadly force against people who pose a minimal threat and in situations where the conduct of the officers heightens the danger and contributes to the need to use force;
APD officers use less lethal force, including electronic controlled weapons, on people who are passively resisting, non-threatening, observably unable to comply with orders or pose only a minimal threat to the officers; and
Encounters between APD officers and persons with mental illness and in crisis too frequently result in a use of force or a higher level of force than necessary.
The DOJ also cited "systemic deficiencies" which contribute to these patterns which include deficient policies, failed accountability, inadequate training and supervision, ineffective systems of investigation and adjudication, the absence of a culture of community policing and a lack of sufficient civilian oversight.

This leaked video taken from a police helmet camera depicts APD officers killing unarmed homeless man, James Boyd: