Favorite Quotes

"Once you walk into a courtroom, you've already lost. The best way to win is to avoid it at all costs, because the justice system is anything but" Sydney Carton, Attorney. "There is no one in the criminal justice system who believes that system works well. Or if they are, they are for courts that are an embarrassment to the ideals of justice. The law of real people doesn't work" Lawrence Lessig, Harvard Law Professor.

Friday, December 14, 2012

U.S. spying program was started in secret on a bogus pretext.

By Chris Calabrese:

The Wall Street Journal today published (alternate link) an in-depth review of a new, relatively unknown program run by the National Counterterrorism Center (NCTC). The Journal’s story conveys how controversial the program was even inside the government. It also describes the broad scope of new authority the government is granting itself.

As the Journal reports, under new guidelines issued by the Attorney General back in March,
The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation.

Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited.

The changes also allow databases of U.S. civilian information to be given to foreign governments for analysis of their own. In effect, U.S. and foreign governments would be using the information to look for clues that people might commit future crimes.
The program is striking in so many ways. Innocent people can be investigated and their data kept for years. It can be shared with foreign governments. All of this in service of not just terrorism investigations but also investigations of future crimes. In effect, the U.S. government is using information it gathers for its ordinary business to turn its own citizens into the subjects of terrorism investigations.

Meanwhile, all of this is supposed to be against the law. The Privacy Act of 1974 says that information collected by the federal government for one purpose is not supposed to be used for another. However, agencies are attempting to circumvent these rules by publishing boilerplate notices in the Federal Register. Sadly, that practice has become far too common.

Government officials who have a firsthand look at how the program works are stunned by it:
"It's breathtaking" in its scope, said a former senior administration official familiar with the White House debate.
And from Mary Ellen Callahan, then the Chief Privacy Officer at the Department of Homeland Security:
The rules would constitute a "sea change" because, whenever citizens interact with the government, the first question asked will be, are they a terrorist?
Worse, all of this happened in secret, approved by National Security Advisor John Brennan and signed off on by Attorney General Eric Holder. No public debate or comment and suddenly, every citizen can be put under the terrorism microscope.

Ironically, all of these changes to the rules came in response to an attempted attack that had nothing to do with information collection or a U.S. citizen. The government cites the attempted 2009 Christmas bombing by Umar Farouk Abdulmutallab as the impetus for the changes. However, as the Journal story makes clear, Abdulmutallab wasn’t a U.S. citizen, and collecting information on him wasn’t a problem. Instead, his own father had identified him to the U.S. government as a potential terrorist. In short, an attack by a known foreign terror suspect was used to justify changes to rules about collecting information on U.S. citizens.

Nation's top spies still mum on how many Americans are being surveilled.

By Robyn Greene:

Senator Ron Wyden spearheaded two more letters to the National Security Agency (NSA) Director and the Director of National Intelligence (DNI).  Again, he was denied answers.

Wyden and Sen. Mark Udall (D-CO) wrote to NSA Director Gen. Keith Alexander, asking him to clarify his recent public statements on FISA that “the story that we have millions or hundreds of millions of dossiers on people is absolutely false.”  Alexander refused to answer whether or how he could be “certain that the number of American communications collected is not ‘millions or hundreds of millions’” when the administration’s official position is that no one knows how many of us have information sitting in NSA files.  Instead, he claimed that his statement “did not refer to or address whether it is possible to identify the number of [Americans’] communications that may be lawfully” collected under FISA.  He even refused to define his use of the term “dossier.”

Wyden and three other senators also wrote to the DNI, requesting that their questions about the use of American information be answered fully and in unclassified format.  The senators want, and believe that Americans have the right, to know:  How many Americans’ communications have been collected under FISA – 100, or 100,000, or 100 million?  Can or have any entities tried to estimate this number?  Have any wholly domestic communications been collected?  And has the government used a loophole in the law to conduct warrantless “back-door searches” on Americans’ communications?

Again, the DNI refused to provide a public answer.  Instead, DNI Director James Clapper told the senators that their “earlier publicly available letters…properly balance protecting classified information and informing the public of the manner in which [FISA] is implemented…We cannot provide additional answers to your questions in an unclassified format.”

Congress is set to consider a long-term reauthorization of FISA before the end of the year.  As Wyden points out, the government’s refusal to disclose even basic information on FISA likely leaves many members of Congress in the dark about the law’s impact on Americans’ privacy.  To break down this wall of secrecy and better protect Americans’ rights, a handful of senators are proposing amendments to require disclosure about how FISA is used, and to place reasonable limits on how and when the government can review our private communications.

Learn more about NCTC information collection here: http://www.aclu.org/national-security/aclu-factsheet-information-collection-national-counterterrorism-center-nctc

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