Tag Archives: civil liberties

Update on the Thomas Drake case

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In an earlier post, I pointed to the Thomas Drake case in which the federal government was accusing Mr. Drake under the Espionage Act for blowing the whistle on what he saw as monumental waste of resources at the NSA. Then the prosecution’s case fell apart shortly before trial.

And now, the judge has delivered his ruling:

Judge Richard D. Bennett of the Federal District Court praised the former National Security Agency official, Thomas A. Drake, for his exemplary record of public service before giving him a mild scolding for improperly providing information on alleged agency mismanagement to The Baltimore Sun.

But Judge Bennett reserved his strongest condemnation for the Justice Department, saying the two and a half years that elapsed between the search of Mr. Drake’s home and his indictment in 2010 was far too long.

The visibly angry judge said that Mr. Drake had been through “four years of hell” and that the dragging out of the investigation — and then the dropping of the major charges on the eve of trial — was “unconscionable.”

“It doesn’t pass the smell test,” he said.

Federal government over-reach, as usual in cases with the slightest connection to the “war” on terror.

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Another privacy invasion

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Check this out:

Dozens of law-enforcement agencies from Massachusetts to Arizona are preparing to outfit their forces with controversial hand-held facial-recognition devices as soon as September, raising significant questions about privacy and civil liberties.

With the device, which attaches to an iPhone, an officer can snap a picture of a face from up to five feet away, or scan a person’s irises from up to six inches away, and do an immediate search to see if there is a match with a database of people with criminal records. The gadget also collects fingerprints.

This device should only be used if there is probable cause to suspect criminal activity. That is the standard generally applied to allow law enforcement to take a person’s fingerprints and an iris scan is substantively the same.

Bill Johnson, executive director at the National Association of Police Organizations, a group of police unions and associations, says he is concerned in particular that iris scanning, which must be done at close range and requires special technology, could be considered a “search.”

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Safety’s threat to liberty

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Read this. It provides a nice summary of the six times that Americans gutted their Constitution wrongfully. The first five largely have been corrected. The sixth time remains an open question.

Excerpt:

The Patriot Act, amending those privacy statutes, passed overwhelmingly with little debate six weeks after the attacks. It broadened FISA, which regulates domestic intelligence gathering through a secret court that issues clandestine warrants that don’t require probable cause and particularity, as the Fourth Amendment demands. The law originally authorized this shadow system exclusively to collect intelligence, but the Patriot Act frees investigators to use it for criminal cases as well.

Even that permissive FISA system wasn’t permissive enough for President Bush, who secretly ordered the NSA to intercept Americans’ communications by phone and Internet. The suspicionless sweeps, effectively legalized by Congress in 2008, continue.

Further, by expanding administrative subpoenas known as national security letters (NSLs), the Patriot Act shot holes through three laws that had guarded the privacy of Americans’ credit, banking and communications records. Without suspicion of a crime and with no judicial oversight, NSLs can now be issued by the head of any FBI field office to librarians, Internet providers and financial institutions, among others. Each of the 50,000 NSLs being served annually comes with a lifetime gag order.

One measure that could change the country if fully implemented is the executive branch’s power to subject civilians to military trial. Under the Military Commissions Act, passed in 2006 and revised in 2009, the president may unilaterally designate anyone an enemy combatant—even inside the United States—and try non-citizens before military officers, with no judicial involvement except on appeal. Applied only to Guantanamo detainees so far, this mechanism has no geographical restrictions. Nothing in the law prevents its employment in Alabama as well as Afghanistan.

These six deviations show that rights cannot rely on officials’ benevolence. They rely on an ingenious constitutional system that has pulled us back from our periodic wanderings. Let’s hope it does this time, and soon, before counterterrorism’s shortcuts through our rights become the new normal.

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Six strikes

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The major ISPs have agreed with media companies to implement a “six strikes” program. Under the agreement, when content companies report to an ISP that they believe an ISP customer is accessing illegal content, the ISPs will implement a series of notices intended to get the customer to stop. Ultimately, the customer could be terminated by the ISP if they cease the activity.

The problem with this approach is that it is based merely on claims made by private companies, with no judicial oversight whatsoever. In effect, the ISPs become cops for the media industry and the media industry has the unilateral power to block (or severely degrade) service for those accused.  Imagine if a private company could go to the phone company and accuse a customer of using his phone to commit a crime and demand that the phone company take action, including disconnecting the phone. Would we agree to that approach? Since when do private companies engage in law enforcement?

The Center for Democracy & Technology, along with Public Knowledge, said in a joint statement they were concerned about the accord. “We believe it would be wrong for any ISP to cut off subscribers, even temporarily, based on allegations that have not been tested in court,” the groups said.

Corynne McSherry, the intellectual property director at the Electronic Frontier Foundation, also had concerns. She added, in a telephone interview, that the EFF was “pretty disappointed that ISPs have agreed to serve as a propaganda agent for big media.”

If a media company believes that a person has illegally stolen their content, the law provides existing remedies.

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New info on pornoscanners

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The Electronic Privacy Information Center (EPIC) has filed a law suit challenging the safety of the x-ray pornoscanners at airport security checkpoints. They have also file numerous Freedom of Information Act requests seeking DHS and TSA documents relating thereto.

Now they have discovered this:

Another document indicates that the DHS mischaracterized the findings of the National Institute of Standards and Technology, stating that NIST “affirmed the safety” of full body scanners. The documents obtained by EPIC reveal that NIST disputed that characterization and stated that the Institute did not, in fact, test the devices. Also, a Johns Hopkins University study revealed that radiation zones around body scanners could exceed the “General Public Dose Limit.”

So NIST has some doubts about the “safety” of the devices. That makes me feel a lot better.

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Warrantless GPS tracking heads to Supreme Court

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The Supreme Court has agreed to hear a case challenging the constitutionality of warrantless GPS tracking later this year. Such tracking occurs when law enforcement secretly attaches a GPS monitoring device to an individual’s automobile. Whether such an action requires probably cause and a subpoena is at issue. In the particular case, a device was attached that reported movement of the vehicle in question for a full 30 days.

Hopefully, the Supreme Court will recognize the reality of such tracking. The DC Circuit concluded that the invasion of privacy was extreme and required a warrant.

A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

More here.

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Political quote of the day

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For over a decade now, the government has tried to make us more secure by chipping away at the one provision of the Bill of Rights that pivots on the word “secure” — the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.”

– David K. Shipler, writing in an op-ed in the New York Times.  Being secure includes being secure from governmental intrusions without cause.

The in-audacity of hope

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President Obama, speaking at the LGBT Gala in New York last week, again refused to endorse same-sex marriage. Such refusal came as New York, lead by Andrew M. Cuomo, was legalizing same sex marriage in the state. Why Obama cannot bring himself to openly support a freedom that the majority of citizens now supports is beyond confusing. His failure to support same-sex marriage is a betrayal of his promises of equal rights for all.

This is yet another in a long string of disappointments for those of us who voted for him, expecting that he would alter the policies of the Bush administration. We are still in Iraq and Afghanistan. Guantanamo remains open. The DOJ has refused to investigate credible claims that we tortured prisoners in the so-called war on terror using the cover of wrong-headed opinions from the Office of Legal Counsel. Our civil liberties continue to be eroded by the extension of the Patriot Act and new spying tools claimed by the FBI. We are fighting a third war in Libya, without Congressional approval, despite Administration claims that we are not involved in hostilities. The big banks have been bailed out but not homeowners who owe billions to the banks as a result of abusive loan tactics.  No officials of the banks have been convicted for wrongdoing.

Change? Hope? Nope. Not from Obama.

Political quote of the day

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You get to the point where you evolve in your life where everything isn’t black and white, good and bad, and you try to do the right thing.

You might not like that. You might be very cynical about that. Well, f— it, I don’t care what you think. I’m trying to do the right thing.

I’m tired of Republican-Democrat politics. They can take the job and shove it. I come from a blue-collar background. I’m trying to do the right thing, and that’s where I’m going with this.

– New York State Senator Roy McDonald (R), after announcing that he would be the 31st vote in favor of legalizing same sex marriage in New York. 32 votes are required for the measure to pass.

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Same sex marriage = anarchy?

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Here is a reporter, Kyra Phillips, who actually does her job, and does it well. Research, follow-up questions, fearlessness, asking for facts and evidence.

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Political quote of the day

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Q. You call this an antigroping bill. Why is it necessary?

A. The Fourth Amendment prohibits unreasonable searches and seizure of our person, not just our houses, and effects and papers. Right now, searches are proceeding under the object of preventing terrorist activities. But we’ve got to draw a line. You’ve got to have reasonable cause to touch people’s private parts. There was a parallel bill banning these full body scanners that allow people to see you naked. Both are violations of our dignity and impede law-abiding citizens’ access to travel.

– Texas representative David Simpson, answering a question about his intent to reintroduce a bill in Texas that would ban any pat-down that “touches the anus, sexual organ, buttocks or breast of another person including through the clothing, or touches the other person in a manner that would be offensive to a reasonable person.”

 

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Obama administration case collapses

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The Obama administration has filed (and appears to be planning to file) more cases against government whistle blowers than the George W. Bush administration. It is part of the Obama administration’s consistent attack on civil liberties and hardened governmental secrecy.

Well, one of these cases, against Thomas Drake, formerly of the NSA. I noted this case in an earlier post.  The DOJ had charged Drake with violating the Espionage Act of 1917 because of his efforts to disclose waste, fraud and abuse at the NSA.  The case has collapsed. Drake agreed to plead to a single misdemeanor, and prosecutors have said they would not object to no jail time. It is a scandal that he and his family were subject to a multi-year federal investigation for simply trying to bring problems to light.  Jane Mayer, staff writer for The New Yorker talks on NPR about the collapsed case here.

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Pursuing happiness

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So a very small group of people planned a flash mob dance at the Jefferson Memorial. I am sure that Jefferson, author of the Declaration of Independence, would in no way sanction the abuse of these peaceful individuals by the police.  And once again police claim the right not to be photographed or videotaped. There is so such legal prohibition.

These are police state tactics.

(via Marginal Revolution)

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TSA is f*cking serious

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So the Texas legislature is considering a bill to outlaw the overly intrusive TSA pat-downs/x-ray machines, etc. U.S. Attorney John Murphy is threatening to shut down air travel in Texas if it passes.

If HR 1937 were enacted, the federal government would likely seek an emergency stay of the statute. Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew.

It appears that the legislature has pulled the bill.

(via Jonathan Turley)

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