2nd Circuit In ACLU v. Clapper: NSA Went Far Beyond Congressional Intent In Applying PATRIOT Sec. 215

Many of us have said this all along, and now the U.S. Court of Appeals for the Second Circuit has confirmed it: what the NSA has done in accumulating telephone records purportedly under the PATRIOT Act Sec. 215 went far beyond what Congress authorized when it passed that law. As Andrew Crocker at Electronic Frontier Foundation (via Informed Comment) said,

...

... The court completely rejected the government’s secret reinterpretation of Section 215 that has served as the basis for the telephone records collection program. ...

...

I personally regard all secret law and secret interpretation as invalid, if for no other reason than that it is not possible to comply with a law or interpretation to which one does not know the text.

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AFTERTHOUGHT: please read Crocker's article in detail. This is a stronger decision than I thought at first. One can only hope it survives the Supreme Court in that Court's current partisan configuration.

Clearing The Desktop

In fact, in Ubuntu Linux 12.04 with the Gnome 3 shell, the default desktop is completely clear, and many of us keep it that way in the interest of sanity. So I'm speaking only metaphorically...

• Tesla Announces New Product To ‘Fundamentally Change The Way The World Uses Energy’ (H/T ellroon. The new product is a battery.)
  
  
• Judge Halts Work On Maryland Pipeline Due To Environmental Concerns (Don't get your hopes up; the ruling is by a Baltimore County Circuit Court Judge, and I don't doubt the pipeline company has an appeals court judge securely in its pocket somewhere up the line.)
  
  
• Hawaii Will Soon Get All Of Its Electricity From Renewable Sources (Give me a few minutes to pack my bags, and a few more to earn another $1m or so to live on in Hawaii for a couple of years...)
  
  
• NSA Phone Data Collection Program Revealed By Edward Snowden Ruled Illegal (What a surprise! [/irony])
  
  
• French Lawmakers Approve Sweeping Expansion Of Spying Programs (Following in America's footsteps, despite all typical wisdom of the French...)
  
  
• Can Bernie Sanders Break Through the Status Quo?
  He may have already done it, with his unapologetic defense of social democracy and assaults on the “billionaire class.”
  
  

WTF Would NSA NOT Do?

Apparently it's a short list, and this, from Bruce Schneier, didn't make it:

Last May, we learned that the NSA intercepts equipment being shipped around the world and installs eavesdropping implants. There were photos of NSA employees opening up a Cisco box. Cisco's CEO John Chambers personally complained to President Obama about this practice, which is not exactly a selling point for Cisco equipment abroad. Der Spiegel published the more complete document, along with a broader story, in January of this year:

...

Now Cisco is taking matters into its own hands, offering to ship equipment to fake addresses in an effort to avoid NSA interception.

...

Wassamatter, NSA guys; you not competent to collect what you want without physically installing sh!t on the router while you have it in your clammy hands?

I know no one gives a fv<k whether I approve of any given NSA activity, but c'mon, this is outside the pale. I find myself really tempted to violate Godwin's Law on this one...

‘I Never Metadata I Didn't Spike’: FBI Finds Ways To Broaden Internet Dragnet

emptywheel has such details as are available in her post "How Internet Dragnettery Got Way More Permissive Under PRISM". "Metadata" is being significantly redefined for surveillance purposes, and now includes some content. Welcome to our shiny new engine of internet freedom, folks...

NSA Report Must Have Been (ahem) An Oversight

Murtaza Hussain at The Intercept:

The National Security Agency on Christmas Eve day released twelve years of internal oversight reports documenting abusive and improper practices by agency employees. The heavily redacted reports to the President’s Intelligence Oversight Board found that NSA employees repeatedly engaged in unauthorized surveillance of communications by American citizens, failed to follow legal guidelines regarding the retention of private information, and shared data with unauthorized recipients.

While the NSA has come under public pressure for openness since high-profile revelations by whistleblower Edward Snowden, the release of the heavily redacted internal reports at 1:30PM on Christmas Eve demonstrates limits to the agency’s attempts to demonstrate transparency. Releasing bad news right before a holiday weekend, often called a “Christmas Eve surprise,”  is a common tactic for trying to minimize press coverage.

...

Read it all, if you think the gigantic equivalent of a typical Washington Friday press dump contains anything useful. I have other things to do in the next couple of days.

John Napier Tye On EO 12333: Does It Spell The Limit Of Democracy?

Via emptywheel, we have John Napier Tye, who "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," writing at WaPo:

What if most American laws looked
like this, even to Congress?

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.

...

(Bolds mine. - SB)

The notion that there are federal government intelligence policies and practices that are a) completely secret, even from Congress, b) implemented exclusively according to the dictates of executive agencies historically operated in strictest secrecy, and c) beyond the reach of, and modification or revocation by, our alleged representative democracy, is a concept that would have been familiar to... but abhorrent to... our nation's founders. They would likely have seen such policies and practices as among the worst that an absolute monarchy had to offer. And IMNSHO they would have been absolutely right.

Even our Constitution, that most stable basis of our government, has means of modification when the times require it. Such modification of our fundamental document has been successfully undertaken 27 times in our history. No such procedure for modification of Executive Order 12333 exists. It is, in theory at least, forever immutable.

Have a nice day! [/sarcasm] 

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AFTERTHOUGHT: do I even need to say it? The motherfucker that is EO 12333 was issued in 1981, by.... of course... Ronald Reagan. If there is an afterlife, and if Reagan lives there, I hope he has no temperature control in his room...

Greenwald: NSA Targets Five American Muslim Leaders For Surveillance, Apparently Because They Are Muslim

Via Kevin Gosztola at FDL's The Dissenter, we have Glenn Greenwald and Murtaza Hussain at The Intercept revealing yet more NSA activity in violation of the First Amendment's freedom of religion guarantee. Here's Gosztola's summary:

...

Glenn Greenwald and Murtaza Hussain of The Intercept have published a much-anticipated story revealing five prominent Muslim-Americans the National Security Agency and FBI spied upon. The surveillance, which primarily appears to have involved monitoring their emails, was conducted under the Foreign Intelligence Surveillance Act (FISA).

The five individuals are: Faisal Gill, a former member of President George W. Bush’s administration and a Republican Party operative; Asim Ghafoor, a public relations consultant, lobbyist, lawyer and advocate for the rights of American Muslims; Agha Saeed, a professor who has mobilized American Muslims to become involved in the American political process; Hooshang Amirahmadi, founder and president of the American Iranian Council, who has done considerable work on American policy toward Iran; and Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), which is the largest Muslim civil rights organization in America.

The national legal advocacy organization, Muslim Advocates, reacted, “This report confirms the worst fears of American Muslims: the federal government has targeted Americans, even those who have served their country in the military and government, simply because of their faith or religious heritage.  The report clearly documents how biased training by the FBI leads to biased surveillance.”

...

Oh, and Gosztola notes this bit of raw, offensive incivility:

On a visceral level, The Intercept included a section from July 2005 instructions on how to format internal memos “justifying surveillance.” The NSA did not use “John Doe” in the place where the name is supposed to be. They used “Mohammed Raghead” instead.

And this from Greenwald and Hussain:

“I just don’t know why,” says Gill, whose AOL and Yahoo! email accounts were monitored while he was a Republican candidate for the Virginia House of Delegates. “I’ve done everything in my life to be patriotic. I served in the Navy, served in the government, was active in my community—I’ve done everything that a good citizen, in my opinion, should do.”

Please read both articles. Apparently, in today's America, being both a Muslim and a civil liberties activist are enough in combination to ensure you will be spied upon by the most invasive arm of your government. If the Hobby Lobby case wasn't enough to signal to you the death of the First Amendment's establishment clause, this revelation should finish the job. If you're not Christian, as I am not, you have a choice: keep a low profile... or expect your government to spy on you. Once again, Thomas Jefferson turns in his grave...

Is Keith Alexander Selling Classified Information?

If not, how else is he demanding and collecting the huge fees he is known to be receiving in his post-NSA enterprises? Alan Grayson wants to know, and emptywheel marshals available information on the subject from Grayson and other sources. From Grayson's letter, we learn that Alexander is receiving a reported $600,000 a month from a variety of banking industry associations. And emptywheel quotes this tidbit from independent security expert Bruce Schneier:

Schneier also quoted Recode.net, which headlined this news as: “For another million, I’ll show you the back door we put in your router.”

And for a few [million] dollars more... for that much money, why do I not get a sense of security?

DoD's Minerva Program: Why Do Pentagon/University Research Programs Conflate Nonviolent Activists With ‘Supporters Of Political Violence’?

This damned good question is posed by The Guardian's Nafeez Ahmed (H/T bobswern at Kos), along with related questions about why nonviolent activists are pigeonholed as "social contagions" and other questions aiming at Pentagon preparedness to beat the shit out of you, me and other nonviolent protesters in the coming conflict they see as both inevitable and violent. To me, it appears that's exactly what the DoD is seeking to justify in the coming decades, and it's paying universities large chunks of your tax money to study and crank out such justifications. Mr. Ahmed posed a version of my subject question to Minerva staffers and received essentially no response:

I contacted the project's principal investigator, Prof Maria Rasmussen of the US Naval Postgraduate School, asking why non-violent activists working for NGOs should be equated to supporters of political violence – and which "parties and NGOs" were being investigated – but received no response.

Similarly, Minerva programme staff refused to answer a series of similar questions I put to them, including asking how "radical causes" promoted by peaceful NGOs constituted a potential national security threat of interest to the DoD.

If you think I am unduly personalizing these programs and their targets, please read carefully:

One war-game, said Price, involved environmental activists protesting pollution from a coal-fired plant near Missouri, some of whom were members of the well-known environmental NGO Sierra Club. Participants were tasked to "identify those who were 'problem-solvers' and those who were 'problem-causers,' and the rest of the population whom would be the target of the information operations to move their Center of Gravity toward that set of viewpoints and values which was the 'desired end-state' of the military's strategy."

Such war-games are consistent with a raft of Pentagon planning documents which suggest that National Security Agency (NSA) mass surveillance is partially motivated to prepare for the destabilising impact of coming environmental, energy and economic shocks.

That's hitting pretty close to home, isn't it? (Bolds mine.)

This reminds me a great deal of another era in American history... you got it... that of J. Edgar Hoover's FBI. Oh, and COINTELPRO. Somewhere, Hoover's shade is grinning at us all.

A Serious Congressional Effort To Reform The Surveillance State And Restore Constitutional Rights... Or Yet Another Cover‑up?

Shahid Buttar at FDL tells us about the proposed USA FREEDOM Act... and examines what more needs to be done to rein in the decade of secret surveillance of our citizens in which our government has engaged.

DNI Clapper Issues Directive: All Intelligence Community Employees Forbidden To Speak To Press

Kevin Gosztola at FDL:

Director of National Intelligence James Clapper has issued a directive that prohibits all employees of the intelligence community from speaking to the press.

Signed on March 20, it establishes a policy on “contact with the media,” which leadership in intelligence agencies believe will “ensure a consistent approach for addressing media engagement across the intelligence community and mitigate risks of unauthorized disclosures of intelligence-related matters that may result from such contacts.”

It does not differentiate between classified and unclassified information. Any detail pertaining to an “intelligence-related” matter, if disclosed to a member of the media, is “covered” by the policy. However, the policy apparently does not “apply to contact with the media in connection with civil, criminal or administrative proceedings.”

...

Emphasis mine.

Note that all employees... not just agents handling classified material... are forbidden to speak to the press. Note also that the press is broadly defined, and most certainly includes internet publications such as blogs. And finally, note that all communication about any intelligence-related matter, even if it is unclassified, is censored by the policy. It appears to me as if this lessens or perhaps eliminates outright the whole concept of something from an intelligence agency that is unclassified, unless it is administrative or related to legal actions.

In these parlous times of consistent over-classification, often obviously for purposes of CYA rather than security, such a policy is obscene. The American public deserves better. This policy provides critics (and I am emphatically a critic) with a good argument for shutting down the three-letter agencies altogether... not that we would be so fortunate as to live to see that happen.

NSA Has Known About, Used Heartbleed Bug For Years

Via the same Steven D post linked below, we learn from Bloomberg, which has two unnamed sources, that the NSA has been using the Heartbleed bug for a couple of years to gather "critical intelligence."

The NSA of course denies doing any such damned thing. Of course, loyal Muricans should always believe what they say. Yeah, right.

So the NSA's notion of patriotism when it finds a major vulnerability affecting many of the large internet services and their customers is to a) keep a lid on it, and b) exploit it.

I can't tell you what I think should be done with the NSA, but it may involve a corkscrew...

Obama Calls For End To NSA Bulk Phone Data Collection

... right away. Real soon now... just one more 90-day period, period. Right; yeah, sure.

A lot of proposed versions of this change are floating around, from almost nothing to an outright ban, so I presume the worst, least restrictive version will pass Congress, Obama will cave, and NSA... as they are wont... will ignore it and go back to secret bulk collection.

NYT has become so restrictive of viewing articles that I may have to stop using them as a primary source, but here's a tip: if you get the dialog box insisting that you register, try hitting Reload (in Firefox on a PC that's F5) and as soon as you see most of the text, frantically hit Esc five or six times in a row. I don't know how long or how often this works, but when it no longer does, NYT will have to do without the free advertising of many blogs posting free links to its stories. My patience is almost at an end.

Just to annoy a recalcitrant source, I'll quote one small thing that caught my attention:

...

In recent days, attention in Congress has shifted to legislation developed by leaders of the House Intelligence Committee. That bill, according to people familiar with a draft proposal, would have the court issue an overarching order authorizing the program, but allow the N.S.A. to issue subpoenas for specific phone records without prior judicial approval.

The Obama administration proposal, by contrast, would retain a judicial role in determining whether the standard of suspicion was met for a particular phone number before the N.S.A. could obtain associated records.

...

 NO. For the record, I am NOT down with the idea of anything but a court order authorizing a search. There's this thing I have about the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nothing less will do.

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PS if you've run out of your daily character count at NYT, you can get at least the basic AP version of the story at TPM.

Chris Hedges On 'The Criminalization Of Journalism'

Jaisal Noor, producer for The Real Network News, interviews the always plain-spoken Chris Hedges. I started to say "the indefatigable Chris Hedges," but honestly, Hedges looks as tired as I feel these days. It must be a terrible burden that he carries, largely on our behalf and for our education. Be that as it may, Hedges addresses the detention... face it, the criminal arrest... of David Miranda by British officials at London's Heathrow Airport, charging him with "espionage" and "terrorism" — i.e., journalism embarrassing to officialdom on both sides of the Atlantic. The interview is published both as a video and in print; it is worth viewing both forms. A couple of quotations:

...

NOOR: So, Chris, let's start off by getting your response to the British government accusing David Miranda, the partner of journalist Glenn Greenwald, who often collaborates with Greenwald, of, quote, espionage and terrorism and saying those were some of the reasons why they held him for hours on end at Heathrow without letting him speak to his lawyer or anyone else.

HEDGES: Well, they didn't just told him. They seized all of his electronic equipment--his computer, his phone--because they were looking for some of the files that [Miranda's partner Glenn] Greenwald has been using to publish his stories that were leaked by Edward Snowden. And this is just part of the criminalization of journalism which has taken place not only within the United States but within countries like Great Britain as well.

NOOR: Britain doesn't have the same safeguards for journalists as places like the U.S. do. ...

HEDGES: Well, there aren't any safeguards left within the United States as well. ... the security and surveillance state has the phone--all of the electronic communications of every journalist in this country. They've used the Espionage Act aggressively seven times, the last time being against Snowden, to make sure nobody does talk to the press to expose the inner workings of power.

So we once had, at least legally, more protection as journalists than were provided to journalists in Great Britain. But all of it's gone up in smoke, both here and there. ...

NOOR: Now, the NSA and its defenders, they cite 54 terrorist plots they have been able to supposedly thwart due to this massive spying. But a recent report by ProPublica found that the NSA was only able to provide evidence in four of those cases. Why do you think the NSA is not providing additional evidence for those remaining 50 cases?

HEDGES: Well, because they're lying. ...

What's interesting is that a lot of times when they lie, they get caught because of courageous whistleblowers like Snowden who expose their [lies]. ...

...

Please read and/or watch the rest. The interview is short and to the point.

A mere few years ago I began to wonder whether the United States could survive the beating it has taken at the hands of Americans who truly do not care for its founding principles as long as they control the nation's power... Dick Cheney, the PNAC gang, Karl Rove, etc. I don't wonder anymore: in the words of Leonard Cohen, "The war is over. The good guys lost." The Bill of Rights... especially the First Amendment's freedom of speech and press... is nothing but pen-scratchings on parchment; there is no substance to those freedoms in the era of presidents George W. Bush Dick Cheney and Barack Obama. To parody the title of another Hedges book, war is a farce that gives the U.S. beatings.

It was great while it lasted. I feel I owe an apology to Thomas Jefferson and to my father, both of whom did their damnedest to create and then preserve a nation where things were done right — thank goodness neither of them survived to see what my generation has done to it.

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AFTERTHOUGHT: A couple of days ago I began reading Jeremy Scahill's new book, Dirty Wars: The World is a Battlefield. I have not read Scahill's other book, but I am reminded by his first chapter of Jane Mayer's The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, a book which I went out and bought (used, of course) *after* I finished reading the library copy. One difference: the Scahill book is immense; you could use it to exercise your arms, pumping pulp instead of pumping iron. But the content is just as depressing as Mayer's excellent work. I may not be able to finish it...

'Unleashed And Unaccountable: The FBI’s Unchecked Abuse of Authority' — ACLU Report On The FBI And Its Domestic Surveillance

Here is the document itself (.pdf, 69pp). Keep your antacid handy as you read.

Related doc's:

• Kevin Gosztola's article: ACLU Releases Report on FBI’s Development Into Abusive Domestic Intelligence Enterprise
• Matthew Harwood: A Call For FBI Reform (ACLU Blog of Rights post)
• EFF: In Response to the NSA, We Need A New Church Committee and We Need It Now (not new but very much to the point)

(I may add other articles here as I find them. The report and these articles should keep us occupied for a few days.)

ASIDE: Please join one or more of the major civil liberties, constitutional rights or related org's... ACLU, EFF, CCR, etc. I'm an ACLU guy out of habit, more than three decades of habit, but we need all of them, and they need our help as they are inundated with actions by a government increasingly inclined to disregard the Constitution when it finds it inconvenient to comply. Please do your part!

iNSAnity Update

Most of these are from TPM:

• US Declassifies Phone Surveillance Program Details
• Report: DOJ Prepares Charges Against Snowden
• U.S. Preparing Charges Against Leaker of Data [NYT]
• Greenwald: Snowden Has Provided ‘Thousands’ Of Documents, ‘Dozens’ Are Newsworthy

... and, in the interest of justice, defendants' rights, and fair trials everywhere [/snark],

• Democratic Senator: Snowden Committed An ‘Act Of Treason’
• Boehner On Snowden: ‘He’s A Traitor’

There was no way, ever, that Edward Snowden could have gotten a fair trial for what he admittedly did. But perhaps if his lawyer is any good, s/he can ply these outrageous statements by members of Congress into a dismissal.