Liberty's Easy Slide into Tyranny

Liberty's Easy Slide into Tyranny

by Prof John Kozy

The best-laid schemes o' mice an' men
Gang aft agley,
An' lea'e us nought but grief an' pain,
For promis'd joy!

Robert Burns – 1785

No matter how hard we try, no one can control the future, and we cannot assume the future will be like the present.

Woodrow Wilson signed the law that established the Federal Reserve. He later rightly lamented having done so. He writes, "I am a most unhappy man. I have unwittingly ruined my country. A great industrial nation is controlled by its system of credit. Our system of credit is concentrated. The growth of the nation, therefore, and all our activities are in the hands of a few men. We have come to be one of the worst ruled, one of the most completely controlled and dominated Governments in the civilized world no longer a Government by free opinion, no longer a Government by conviction and the vote of the majority, but a Government by the opinion and duress of a small group of dominant men." Oh, how right he is, and oh, the mischief the FED has wrought! But establishing the FED must have seemed right to Wilson when he signed the law.

Harry Truman had similar qualms about the CIA.

[I]t has become necessary to take another look at the purpose and operations of our Central Intelligence Agency. . . .

assuming the President himself possesses a knowledge of our history, a sensitive understanding of our institutions, and an insight into the needs and aspirations of the people, he needs . . . the most accurate and up-to-the-minute information on what is going on everywhere in the world, and particularly of the trends and developments in all the danger spots. . . .

every President has available to him all the information gathered by the many intelligence agencies already in existence. . . .

But their collective information reached the President all too frequently in conflicting conclusions. At times, the intelligence reports tended to be slanted to conform to established positions of a given department. . . .

Therefore, I decided to set up a special organization charged with the collection of all intelligence reports from every available source, and to have those reports reach me as President without department "treatment" or interpretations.

I wanted and needed the information in its "natural raw" state and in as comprehensive a volume as it was practical. . . . But the most important thing about this move was to guard against the chance of intelligence being used to influence or to lead the President into unwise decisions—and I thought it was necessary that the President do his own thinking and evaluating. . . .

For some time I have been disturbed by the way CIA has been diverted from its original assignment. It has become an operational and at times a policy-making arm of the Government. This has led to trouble and may have compounded our difficulties in several explosive areas.

I never had any thought that when I set up the CIA that it would be injected into peacetime cloak and dagger operations. Some of the complications and embarrassment I think we have experienced are in part attributable to the fact that this quiet intelligence arm of the President has been so removed from its intended role that it is being interpreted as a symbol of sinister and mysterious foreign intrigue. . . .

I, therefore, would like to see the CIA be restored to its original assignment . . . and that its operational duties be terminated. . . .

We have grown up as a nation, respected for our free institutions and for our ability to maintain a free and open society. There is something about the way the CIA has been functioning that is casting a shadow over our historic position and I feel that we need to correct it.

Of course, nobody paid any attention. And oh, the mischief the CIA has wrought!

The problem is that what seems like a good idea to someone with pristine motives turns into something horrid when placed in the hands of someone else. Those pristine motives Gang aft agley." So it is with what has come to be known as executive privilege.

Executive privilege is the claim made by members of the executive branch that they can refuse to comply with certain subpoenas and other requests from the legislature and courts, but executive privilege is not mentioned in the Constitution. Some claim the privilege is a form of the common-law principle of deliberative process privilege whose roots are often traced to English Crown Privilege. Viewed that way, it is clearly a monarchial attribute that is distinctly antidemocratic. But the Supreme Court has validated it.

In US v. Nixon, Chief Justice Burger writes: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to [emphasis mine] derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings." No one, it seems, noticed that "can be said to" is not synonymous with "is."

Chief Justice Burger further writes,

"In United States v. Reynolds . . . the Court said:

It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."

Mr. Burger seems not to have noticed that he gave the executive branch the combination to the safe in this passage. From this point on, all the executive branch has to do to sustain a claim of executive privilege is to say that complying with the subpoena or request would entail a reasonable danger that military matters would be exposed or the nation's security would be impaired. These claims have now become standard practice.

Until the end of World War II, assertions of executive privilege were rare. In 1796, George Washington refused to comply with a request from the House of Representatives for documents related to the negotiation of the Jay Treaty. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. So Washington provided the documents to the Senate but not the House.

Thomas Jefferson asserted the privilege in the trial of Aaron Burr for treason. The Court denied it and he complied with the Court's order.

But from 1947-49, several major security cases arose. A series of investigations followed, ending with the Hiss-Chambers case of 1948. At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and administration officials were banned from testifying before Congress on security issues.

During the Army–McCarthy hearings in 1954, Eisenhower used executive privilege to forbid the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents. The reasoning behind the order was that there was a need for "candid" exchanges among executive employees in giving "advice" to one another. Eisenhower made the claim 44 times between 1955 and 1960. The Supreme Court has validated such claims saying there is a "valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."

In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal.

The George W. Bush administration invoked executive privilege on numerous occasions. So has the Obama administration. Executive privilege has now become a tool for not only protecting military secrets and other secrets the revelation of which would endanger the nation's security, but a way of covering up executive branch wrongdoing.

Nixon tried to use executive privilege in an unsuccessful attempt to cover up his administration's complicity in the Watergate break in. Clinton attempted to use executive privilege to cover up his relationship with Monica Lewinsky. George W. Bush asserted executive privilege to deny disclosure of details about the scandal involving the FBI's misuse of organized-crime informants and Justice Department deliberations about President Bill Clinton's fundraising tactics, none of which had anything to do with national security or military secrets. And now it is reported that the Justice Department has in the last few months gotten protective orders from two federal judges keeping details of some software technology out of court because the details if revealed would threaten national security. But others involved in the case say that what the government is trying to avoid is public embarrassment over evidence that the software's designer bamboozled federal officials.

Huge conspiracies aren't what destroys people's freedom, they are too easy to undo. The accumulation of errors, failed policies, and little and big unfairnesses destroy it. It happens because The best-laid schemes o' mice an' men/ Gang aft agley,/ An' lea'e us nought but grief an' pain.

The FED, CIA, Executive Privilege, The Patriot Act, Homeland Security, and more, by themselves, are bad but not disastrous. Together, however, they are the tools of tyranny that are tyrannizing America, because they provide people who are not answerable to the people with powers that can be and often are abused. It happens because those who implement ideas that seem sound never ask what happens when the powers these ideas entail fall into the hands of the unscrupulous.

The insidiousness of these tyrannical tools is that they can exist amid the trappings of democracy, along with political parties and regular elections. The result is a tyrannical nation masquerading as a democracy.

All of these agencies as part of the executive branch act secretly. And we have forgotten that, "Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government."—Jeremy Bentham

John Kozy is a retired professor of philosophy and logic who writes on social, political, and economic issues. After serving in the U.S. Army during the Korean War, he spent 20 years as a university professor and another 20 years working as a writer. He has published a textbook in formal logic commercially, in academic journals and a small number of commercial magazines, and has written a number of guest editorials for newspapers. His on-line pieces can be found on http://www.jkozy.com/ and he can be emailed from that site's homepage.

Global Research Articles by John Kozy

Big Brother is Stronger than Ever: America's Total Surveillance Society

February 27, 2011 at 04:07:48

America's Total Surveillance Society

By Stephen Lendman (about the author)

America's Total Surveillance Society - by Stephen Lendman

In 2003, an ACLU report warned that "Big Brother" no longer is fiction, America having advanced to where total surveillance is now possible. Barry Steinhardt, Director of the ACLU's Technology and Liberty Program said:

"Given the capabilities of today's technology, the only thing protecting us from a full-fledged surveillance society are the legal and political institutions we have inherited as Americans. Unfortunately, the September 11 attacks have led some to embrace the fallacy that weakening the Constitution will strengthen America."

As a result, civil liberties fast eroded. In 2007, another ACLU report warned about America being six minutes to midnight "as a surveillance society draws near...." Powerful new technologies potentially make total monitoring possible under a president, a compliant Congress and courts that believe national security takes precedence over constitutional freedoms.

As a result, "we confront the possibility of a dark future where our every move," transaction, and communication is "recorded, compiled, and stored away" for ready access for whatever authorities may want.

One of several earlier articles on institutionalized spying can be accessed through the following link:

click here

It reviewed undiscussed police state tools used without congressional authorization, oversight, or legal standing - state-of-the-art technology, including satellite imagery, to spy on unsuspecting Americans.

In his article titled, "Creating the Domestic Surveillance State," Alfred McCoy explained that Obama embraced the same executive powers as Bush, including NSA surveillance, CIA renditions, drone assassinations, indefinite military detentions, and more - virtual lawlessness across the board. As a result, constitutional Law Professor Jack Balkin believes bipartisan affirmation of unchecked executive powers could "reverberate for generations," subverting constitutional freedoms.

As concerned, McCoy said Americans are largely unaware of the "war on terror" toll on their rights. "Think of our counterinsurgency wars abroad as so many living laboratories for the undermining of a democratic society at home, a process historians (say) has been going on for a long, long time."

In his book titled, "Policing America's Empire: The United States, the Philippines and the Rise of the Surveillance State," McCoy chronicled over a century of US imperialism from the 1899 - 1902 Philippines conquest to the present.

As a result, America developed a coercive policing, intelligence, and surveillance apparatus to ensure absolute imperial domination, using covert infiltration and violence to curb all remnants of resistance.

Repressive tactics now include a state-of-the-art coercive national security/surveillance/counterintelligence apparatus. Established in the Philippines, it was used:

-- during the 1920s Red Scare;

-- for mass WW II incarceration of Japanese Americans;

-- during post-war McCarthy witch-hunts and secret blacklisting of suspected communists; and

-- for many decades against human rights, labor, anti-war and civil liberties activists.

Other techniques include:

-- psychological warfare;

-- targeted or sweeping assassinations;

-- death squads killing thousands from Korea to Southeast Asia, Central America, Iraq, Afghanistan, and dozens of other countries covertly and overtly on the ground and overhead by drones and attack aircraft;

-- FBI subversion from red-baiting to COINTELPRO to later tactics to disrupt, sabotage and neutralize dissent by surveillance, political repression, infiltration, disinformation, assassinations, and denigration of targeted individuals or groups; and

-- sophisticated forms of intelligence, subversion and violence throughout the Cold War and thereafter, especially post-9/11 in the war on terror.

McCoy's book exposed imperial America's dark side, a shadowy public/private world of repressive policing, sophisticated surveillance, active informers, counterintelligence, secret agents, and state terror, undermining human rights, civil liberties, and democratic freedoms at home and abroad. It proved Mark Twain right saying you can't have an overseas empire and democracy at home.

From 1898, America developed an invasive internal security blueprint, more sophisticated than ever today. Today's global war on terror developed a "technological template, (including) omnipresent cameras, deep data-mining, nono-second biometric identification," global drone patrols, killer drones, satellite surveillance, and other forms of sophisticated lawless spying, intelligence, subversion, disruption, and destruction of constitutional freedoms.

McCoy said America's war on terror involves a "massive expansion of (FBI, NSA, Pentagon, and CIA) data-mining systems, (amassing billions of) private documents (on) US citizens" kept in classified data banks.

"Abroad, after years of failing counterinsurgency efforts in the Middle East, the Pentagon began applying biometrics - the science of identification via facial shape, fingerprints, and retinal or iris patterns - to the pacification of Iraqi cities, as well as....electronic intercepts for instant intelligence and split-second" satellite imagery use to aid drone assassinations from Africa to South Asia to perhaps America after a future homeland attack.

Today, the combination of biometric identification, global surveillance, and digital warfare makes counterinsurgency more sophisticated than ever. With everyone in a database, authorities can get instantaneous feedback from iris, retinal, or other data to identify, target, arrest or kill.

In Iraq under General Stanley McChrystal, "every tool available....from signal intercepts to human intelligence (was employed for) lightening quick strikes." The same technology is used in Afghanistan, Pakistan, dozens of other countries, and perhaps soon, if not already, in communities across America.

McCoy explained:

"While those running US combat operations overseas were experimenting with intercepts, satellites, drones, and biometrics, inside Washington....FBI and NSA (operatives) began expanding domestic surveillance through thoroughly conventional data sweeps, legal and extra-legal, and - with White House help - several abortive attempts to revive a tradition that dates back to World War I of citizens spying on suspected subversives."

In 2002, Operation TIPS (Terrorism Information and Prevention System) was launched to have "millions of American truckers, letter carriers, train conductors, ship captains, utility employees and others" snitch on other Americans.

At the same time, the Pentagon developed a Total Information Awareness program with "detailed electronic dossiers" on millions of unsuspecting Americans. Public outrage got Congress to ban it, but the NSA, CIA and FBI continued it, monitoring Americans electronically, including private email and phone communications as well as access to financial, medical and other personal information.

In 2004, the FBI established an Investigative Data Warehouse "centralized (counterterrorism) repository," and in two years amassed 659 million individual records, now perhaps double that amount. It includes social security data, drivers' licenses, financial records, and virtually any information considered important to monitor - potentially making everyone's private life an open book to know about and abuse, including by warrantless wiretaps and other lawless methods.

Since taking office, Obama advanced the Bush agenda, endangering Americans more than ever under surveillance. For example, the FBI's "Terrorist Watchlist" adds 1,600 names daily to hundreds of thousands already included. A new Lackland Air Base cyber-command is charged with targeting enemy computers and repelling hostile cyber-attacks against US networks. Official denials notwithstanding, no one escapes surveillance.

The combined intelligence/Homeland Security/US Northern Command (NORTHCOM)/local authorities apparatus constitutes a formidable force against civil unrest, mass protests, designated terrorists, dissidents, and other perceived homeland threats - their combined might and sophisticated technology charged with containing them. Already, constitutional freedoms have been seriously compromised on their way toward total abolition.

Moreover, "presidential power has grown relentlessly" after Bush claimed "unitary Executive" authority, what Chalmers Johnson called a "ball-faced assertion of presidential supremacy dressed up in legal mumbo jumbo," but it persists under Obama to rule by Executive Orders and other unilateral directives, unchecked by congressional approval.

McCoy said it "open(ed) the way to unchecked electronic (satellite, drone, biometric, and other type) surveillance, the endless detention of (uncharged) terror suspects (including US citizens), and a variety of inhumane forms of interrogation" after Bush made torture official US policy. It continues seamlessly, though quietly, under Obama more than ever hardening America's police state apparatus.

Big Brother now watches everyone, including with growing numbers of digital cameras monitoring streets, commercial areas, airports, highways, public and private transportation, government and office buildings, and shopping malls - virtually everywhere people congregate, work, reside, recreate, or inhabit for any reason. Anti-terrorist SWAT teams are ready to react against any suspected provocation or threat.

As a result, American democracy fundamentally changed. Always more illusion than reality, total surveillance reveals a harshness too ugly to hide, especially when sophisticated technologies target anyone for any reason, what McCoy calls "the stuff of dystopian science fiction."

Stephen Lendman lives in Chicago and can be reached at Email address removed. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

http://www.progressiveradionetwork.com/the-progressive-news-hour/ .

I was born in 1934, am a retired, progressive small businessman concerned about all the major national and world issues, committed to speak out and write about them.

The views expressed in this article are the sole responsibility of the author
and do not necessarily reflect those of this website or its editors.

We Must Close Down the National-Security State

February 20, 2011 at 23:15:20

We Must Close Down the National-Security State

By Steve Beckow (about the author)

opednews.com

Many people are concerned with a number of developments that are happening at the moment. They draw attention to TSA body scanners, surveillance technology, interference with the Internet, and other developments and are addressing the issues one by one.

But it seems to me that we overlook something more basic in approaching things this way. We overlook the primary issue.

Do you remember the Washington Post series perhaps last Spring or Summer in which they detailed the really huge growth and multiplication of personnel, organizations, and technologies which we could call for short the "national-security state"? The national-security state is the offspring of the military-industrial complex that President Eisenhower and President Kennedy warned us about.

TSA body scanners

This effusion of surveillance systems, Internet interference technologies, scanners and so on, it seems to me, is testimony to the tremendous growth, budgeting, staffing, and work of that very structure that the Washington Post described.

For many reasons, not the least of which is the security of the American people, but another compelling reason for which is the ending of a huge budget drain, we must close down the national- security state (NSS).

Now by that I don't mean closing down the military. We need a military until such time as we close down crime and reduce political friction in the world. We don't need all the military hardware we have but we need some. However, we do not need the larger entity, the NSS.

Just the other day, I listened to an economist on CNN say, whatever we do, we cannot reduce the defense dollar. Oh, no. I beg to differ. Whatever we do, we must reduce the defense dollar. It's not butter we need to spend less on. It's guns.

The whole notion of defense, the whole notion of a war on terror, of the need for so many aircraft carriers, fighter jets, surveillance systems, tanks, depleted-uranium weapons, on and on, all of it must go. All of it must end. And it must end because we the people say so.

This NSS, this national-security state, is itself the problem. There are no terrorists lurking under bushes here and there. There may be people defending themselves against our aggression. There also may be some dark groups which we ourselves have created through our bogus "war on terror," etc.

But the NSS is itself creating its enemies in order to keep its funding up and the citizens of the world in a state of confusion and we need to get honest about that and stop refusing to address it.

DU weapons

The national-security state, which has grown up since 9/11, which was itself engineered to provide a "new Pearl Harbor" that would spur the growth of the defense industry and the military, must be closed down. And, if it were, immediately prosperity would return to America and the threat of war would end on the planet.

Make that first on your list of issues please. It's time to stop talking about the nickels and dimes that are spent on social programs. If we want to save money, the way to do it is to close down the defense industry globally and with it the national-security state. When we do that - and we will - the money to send each child to university, to create a universal medicare system, to see that everyone is well fed, well sheltered, and well cared for will be there.

We are being myopic and we are allowing ourselves to be misled. The NSS has no future and we know it. It's the source of threat in the world and the source of our problems. I request that we refuse any longer to participate in the debate about austerity on any other grounds before the total closure of the national-security state is accomplished. Close the NSS down first and then let's take a second look at the state of the union.

Take action -- click here to contact your local newspaper or congress people:
We Must Close Down the National-Security State

Click here to see the most recent messages sent to congressional reps and local newspapers

The author is a former Member of the Immigration and Refugee Board of Canada and a member of Mensa Canada. He is the author of several Internet books and articles on gender persecution, cross-cultural spirituality, life after death, and the 2012 (more...)

The views expressed in this article are the sole responsibility of the author
and do not necessarily reflect those of this website or its editors.

Hillary Hypocrisy?

While the Secretary Calls for Free Speech, Veteran is Arrested and Abused Before Her Eyes for Exercising Free Speech

by Kevin Zeese / February 18th, 2011

On Tuesday, February 15th Secretary of State Hillary Clinton gave a speech on the importance of Freedom of Speech in the Internet age. She focused her attention on foreign countries and chided them for curtailing the speech of their citizens.

During that speech Ray McGovern, a veteran who also served for 27 years as a CIA analyst, exercised his freedom of speech by standing and silently turning his back on Secretary Clinton. He was protesting the ongoing wars, the treatment of Bradley Manning and the militarism of U.S. foreign policy. He did not shout at the Secretary of State or interrupt her speech. He merely stood in silence.

See video here.

McGovern’s action was a powerful one and it threatened the Secretary of State. Two police officers roughed him up, pulled him from the audience and arrested him. As you can see from the pictures, the 71 year old McGovern, was battered and bruised; indeed, his attorney reports he was left in jail bleeding.

McGovern is not just a former CIA analyst. He did the daily intelligence briefing for Presidents Ronald Reagan and George H.W. Bush. He also briefed the National Security Advisor, Joint Chiefs of Staff and the Cabinet on security matters. He has come to see that the current U.S. wars are about controlling natural resources, especially oil, positioning U.S. military bases in key areas and protecting the unusual alliance between the U.S. and Israel. So when he stood silently his speech was being heard.

And when Secretary of Clinton kept speaking about the importance of freedom of speech, as if nothing was occurring before her eyes, Ray McGovern’s voice became even louder. The hypocrisy of the United States became thunderous. Free speech was being snuffed out right before her eyes but she kept talking about freedom of speech, doing nothing to protect it while criticizing other countries, U.S. client states like Egypt and those enemies like Iran, for their failure to allow their people to speak freely.

On the same day that McGovern was roughed up and left bleeding by the police, independent journalist, Brandon Jourdan, returned from Haiti after being on assignment documenting the rebuilding of schools. When he returned to the United States, he was immediately detained, questioned about his travels and had all of his documents, computer, phone and camera flash drives searched and copied. This is the seventh time Jourdan says he has been subjected to lengthy searches in five years, and has been told by officials that he is “on a list.” Freedom of speech? Freedom of the press? Did Secretary of State Clinton say anything? No. She remained silent.

And on that same day, as he has for the last 8 months, Pfc Bradley Manning sits in solitary confinement, pre-trial torture, for the alleged crime of sharing with the media evidence of war crimes in Afghanistan and Iraq as well as crimes committed by agents of U.S. foreign policy. Included in the documents he is accused of leaking are diplomatic cables that show Secretary of State Clinton issuing a memorandum directing U.S. diplomats to spy, including illegally spying on UN diplomats. During his long pre-trial punishment has Secretary of State Clinton said anything about Pfc Manning’s illegal punishment before trial? No, she has remained silent.

Finally, a last example of many all of which I will not describe here, while Secretary of State Clinton was speaking, agents of the U.S. Department of Justice were trying to find a way to prosecute Julian Assange, the editor-in-chief of WikiLeaks. They claim this super-journalist, whose publication has released more classified documents than the Washington Post has in decades, is not a journalist. Some of the most recent publications of WikiLeaks helped to spark the revolution in Tunisia. And during the revolt in Egypt, WikiLeaks documents showed that Mubarak’s newly appointed Vice President, Omar Suleiman, was the choice of Israel to be Mubarak’s successor. This U.S. trained military and intelligence officer tortured people at the request of the United States. While Secretary of State Clinton has remained silent about the trumped up investigation of Assange, she did not remain silent about Suleiman. She made it clear, he was America’s choice as Mubarak’s successor.

Please write Secretary of State Clinton and urge her to put actions to her words. Urge her to stand up for freedom of speech in the United States. First, she should apologize for the treatment of Ray McGovern and seek to have the charges against him dropped. But, more importantly, she should ask that Bradley Manning be released for prison and the charges against him be dropped. His patriotic act of exposing war crimes and other criminal activity deserves plaudits from free speech loving Americans. Similarly, she should tell Attorney General Holder that the abusive investigation of Julian Assange and WikiLeaks should be halted. Secretary Clinton is at the center of numerous challenges to free speech in the United States. She could become a leader in reviving this first and foremost freedom in America, or she could remain silent. Click
here to urge her to put actions to her words.

Finally, Ray McGovern wrote me a day after his brutal ordeal saying: “The painful bruises are those for our country and its erstwhile ideals physically I hurt, but no broken bones, dislocated shoulders, or anything else that will not heal please pass word around.” If you share Ray’s concern for the direction of the United States, write Hillary Clinton and support efforts to change the direction of the country.

Kevin Zeese is executive director of Voters for Peace. Read other articles by Kevin, or visit Kevin's website.

This article was posted on Friday, February 18th, 2011 at 8:00am and is filed under Freedom of Speech, Police, Whistleblowing, Wikileaks.

FBI urges Congress to expand Internet wiretapping

FBI urges Congress to expand Internet wiretapping

By Eric W. Dolan
Thursday, February 17th, 2011 -- 9:39 pm

The FBI urged members of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security on Thursday to update the Communications Assistance to Law Enforcement Act (CALEA) and make it easier for authorities to eavesdrop on Internet.

The act was passed in 1994 and requires telecommunication companies to design their equipment and services to ensure that law enforcement and national security officials can monitor telephone and other communications whenever necessary.

"Over the years, through interpretation of the statute by the Federal Communications Commission, the reach of CALEA has been expanded to include facilities-based broadband internet access and Voice over Internet Protocol (VoIP) services that are fully inter-connected with the public switched telephone network," FBI General Counsel Valeria Caproni told the subcommittee.

"Although that expansion of coverage has been extremely helpful, CALEA does not cover popular Internet-based communications modalities such as webmail, social networking sites or peer-to-peer services."

"As a result, although the government may obtain a court order authorizing the collection of certain communications, it often serves that order on a provider who does not have an obligation under CALEA to be prepared to execute it," she explained. "Such providers may not have intercept capabilities in place at the time that they receive the order."

The proposal to expand CALEA would require companies involved in online communications to re-engineer their software so that law enforcement could easily access it.

In October 2010, the New York Times reported that the Obama administration was drafting new regulations to make it easier for authorities to eavesdrop on Internet and e-mail communications.

But, according to Caproni, "the Administration does not have a formal position at this time on whether any legislative changes are necessary."

Documents obtained by the Electronic Frontier Foundation through a Freedom of Information Act request show that the FBI and Justice Department have been working on amendments to CALEA since 2006 and have been lobbying Congress and the White House to support it.

"Though the administration claims this is just a technical fix, its request will actually change the structure of the Internet, providing the government with a master key to our online communications," Laura W. Murphy, Director of the ACLU Washington Legislative Office, said.

"The proposed changes will not only make it easier and cheaper for the government to invade our privacy, but also make the Internet more vulnerable to penetration from other sources."

AlterNet.org

CIVIL LIBERTIES

Tomdispatch.com / By Chase Madar

Why Bradley Manning Is a Patriot, Not a Criminal

Washington is clearly intent on destroying this young Army private and then putting him away until hell freezes over. It should not be this way.

February 10, 2011

To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

Editor's Note: The Obama administration came into office proclaiming "sunshine" policies. When some of the U.S. government's dirty laundry was laid out in the bright light of day by WikiLeaks, however, its officials responded in a knee-jerk, punitive manner in the case of Bradley Manning, now in extreme isolation in a Marine brig in Quantico, Virginia. The urge of the Obama administration and the U.S. military to break his will, to crush him, is unsettling, to say the least. Whatever happens to Julian Assange or WikiLeaks, Washington is clearly intent on destroying this young Army private and then putting him away until hell freezes over.

It should not be this way.

Today, thanks to lawyer and essayist Chase Madar, TomDispatch is making a long-planned gesture towards Manning, whose acts, aimed at revealing the worst this country had to offer in recent years, will someday make him a genuine American hero -- but that’s undoubtedly little consolation to him now. When it comes to America’s recent wars, its torture regimes, black sites, and extraordinary renditions, as well as the death and destruction visited on distant lands, blood is on many official American hands, but not on Manning’s. Those officials should be held accountable, not him.

With that in mind, TomDispatch offers its version of the defense of Bradley Manning. -- Tom Engelhardt

An Opening Statement for the Defense of Private Mannin

Bradley Manning, a 23-year-old from Crescent, Oklahoma, enlisted in the U.S. military in 2007 to give something back to his country and, he hoped, the world.

For the past seven months, Army Private First Class Manning has been held in solitary confinement in the Marine Corps brig in Quantico, Virginia. Twenty-five thousand other Americans are also in prolonged solitary confinement, but the conditions of Manning’s pre-trial detention have been sufficiently brutal for the United Nation’s Special Rapporteur on Torture to announce an investigation.

Pfc. Manning is alleged to have obtained documents, both classified and unclassified, from the Department of Defense and the State Department via the Internet and provided them to WikiLeaks. (That “alleged” is important because the federal informant who fingered Manning, Adrian Lamo, is a felon convicted of computer-hacking crimes. He was also involuntarily committed to a psychiatric institution in the month before he leveled his accusation. All of this makes him a less than reliable witness.) At any rate, the records allegedly downloaded by Manning revealed clear instances of war crimes committed by U.S. troops in Iraq and Afghanistan, widespread torture committed by the Iraqi authorities with the full knowledge of the U.S. military, previously unknown estimates of the number of Iraqi civilians killed at U.S. military checkpoints, and the massive Iraqi civilian death toll caused by the American invasion.

For bringing to light this critical but long-suppressed information, Pfc. Manning has been treated not as a whistleblower, but as a criminal and a spy. He is charged with violating not only Army regulations but also the Espionage Act of 1917, making him the fifth American to be charged under the act for leaking classified documents to the media. A court-martial will likely be convened in the spring or summer.

Politicians have called for Manning’s head, sometimes literally. And yet a strong legal defense for Pfc. Manning is not difficult to envision. Despite many remaining questions of fact, a legal defense can already be sketched out. What follows is an “opening statement” for the defense. It does not attempt to argue individual points of law in any exhaustive way. Rather, like any opening statement, it is an overview of the vital legal (and political) issues at stake, intended for an audience of ordinary citizens, not Judge Advocate General lawyers.

After all, it is the court of public opinion that ultimately decides what a government can and cannot get away with, legally or otherwise.

Opening Statement for the Defense of Bradley Manning, Soldier and Patriot

U.S. Army Private First Class Bradley Manning has done his duty. He has witnessed serious violations of the American military’s Uniform Code of Military Justice, violations of the rules in U.S. Army Field Manual 27-10, and violations of international law. He has brought these wrongdoings to light out of a profound sense of duty to his country, as a citizen and a soldier, and his patriotism has cost him dearly.

In 2005, General Peter Pace, Chairman of the Joint Chiefs of Staff, told reporters: “It is absolutely the responsibility of every U.S. service member [in Iraq], if they see inhumane treatment being conducted, to try to stop it.” This, in other words, was the obligation of every U.S. service member in Operation Iraqi Freedom; this remains the obligation of every U.S. service member in Operation Enduring Freedom in Afghanistan. It is a duty that Pfc. Manning has fulfilled.

Who is Pfc. Bradley Manning? He is a 23-year-old Private First Class in the U.S. Army. He was raised in Crescent, Oklahoma (population 1,281, according to the last census count). He enlisted in 2007. “He was basically really into America,” says a hometown friend. “He was proud of our successes as a country. He valued our freedom, but probably our economic freedom the most. I think he saw the U.S. as a force for good in the world.”

When Bradley Manning deployed to Iraq in October 2009, he thought that he’d be helping the Iraqi people build a free society after the long nightmare of Saddam Hussein. What he witnessed firsthand was quite another matter.

He soon found himself helping the Iraqi authorities detain civilians for distributing “anti-Iraqi literature” -- which turned out to be an investigative report into financial corruption in their own government entitled “Where does the money go?” The penalty for this “crime” in Iraq was not a slap on the wrist. Imprisonment and torture, as well as systematic abuse of prisoners, are widespread in the new Iraq. From the military’s own Sigacts (Significant Actions) reports, we have a multitude of credible accounts of Iraqi police and soldiers shooting prisoners, beating them to death, pulling out fingernails or teeth, cutting off fingers, burning with acid, torturing with electric shocks or the use of suffocation, and various kinds of sexual abuse including sodomization with gun barrels and forcing prisoners to perform sexual acts on guards and each other.

Manning had more than adequate reason to be concerned about handing over Iraqi citizens for likely torture simply for producing pamphlets about corruption in a government notorious for its corruptness.

Like any good soldier, Manning immediately took these concerns up the chain of command. And how did his superiors respond? His commanding officer told him to “shut up” and get back to rounding up more prisoners for the Iraqi Federal Police to treat however they cared to.

Now, you have already heard what the Chairman of the Joint Chiefs of Staff had to say about an American soldier’s duties when confronted with the torture and abuse of prisoners. Ever since our country signed and ratified the Geneva Conventions and the Convention against Torture, it has been the law of our land that handing over prisoners to a body that will torture them is a war crime. Nevertheless, between early 2009 and August of last year, our military handed over thousands of prisoners to the Iraqi authorities, knowing full well what would happen to many of them.

The next time Pfc. Manning encountered evidence of war crimes, he took a different course of action.

On the Secret Internet Protocol Router Network (SIPRNet) shared by the Departments of Defense and State Manning soon found irrefutable evidence of possible war crimes, including a now-infamous “Collateral Murder” video in which a U.S. Apache helicopter mowed down some 18 civilians, including two Reuters journalists, on a street in Baghdad on July 12, 2007. The world has now seen and been shocked by this video which Reuters is alleged to have had in its possession but had not yet made public. Manning is alleged to have leaked it to the whistleblower site WikiLeaks in April 2010.

Manning also found a video and an official report on American air strikes on the village of Granai in Afghanistan’s Farah Province (also known as “the Granai massacre”). According to the Afghan government, 140 civilians, including women and a large number of children, died in those strikes. He is alleged to have released that video as part of a tranche of some 92,000 military documents relating to our escalating war in Afghanistan -- already the longest war our nation has ever fought -- and Pakistan, where the war is steadily spreading. Manning is also alleged to have released to WikiLeaks some 392,000 documents regarding the Iraq War, many of which relate to the torture of prisoners, as well as some 251,000 State Department cables.

Now, in your judgment of Bradley Manning, please know that the stakes are indeed high, but not in the feverish way our political and media elites have been telling you from nearly every newspaper, channel, and website in the land. We will want you, a true jury of Manning’s military peers, to ask a few questions about what’s really been going on in this trial -- and in this country. After all, when we reward lawyers in the Justice Department who created memos that made torture legal with federal judgeships and regular newspaper columns, while locking lock up a whistle-blowing private, you have to ask: What country are we now living in?

This trial couldn’t be more important or your judgment more crucial. The honor of our country is very much at stake in how you decide. When we let the aerial slaughter of civilian noncombatants pass without comment or review, when a reported 92 children die from an American air strike on an Afghan village and 18 civilians are shot dead on a Baghdad street without the slightest accountability, except when it comes to locking up the private who ensured that we would know about these acts -- let me repeat -- the honor of your country and mine is at stake and at risk. Not the security of your country, though the prosecution will claim otherwise, but the honor of our country, and especially the honor of our military.

Pfc. Bradley Manning is one soldier who has done his duty. He has complied with it to the letter. Now you must do your duty as members of this jury and as soldiers.

Our Whistleblower Laws Protect Pfc. Manning

The prosecution will surely tell you that none of our existing whistleblower protection laws, interpreted narrowly, apply to Bradley Manning.

I say otherwise, and so will the experts we will call to the stand. You will hear from legal expert Jesselyn Radack, an attorney and former whistleblower who was purged, punished, and then vindicated for her courageous acts of disclosing illegal wrongdoing inside the Bush administration’s Department of Justice. Ms. Radack will explain to you why and how Bradley Manning is well protected by our current laws. After all, the Whistleblower Protection Act is designed to protect a government employee who exposes fraud, waste, abuse, or illegality to anyone inside or outside a government agency, including a member of the news media. This is well supported by case law. (See Horton v. Dep’t of Navy, 66. F3d 279, 282 (Fed. Cir. 1995)]. Isn’t that exactly what Pfc. Bradley Manning has done?

As a fallback argument, the prosecution is sure to suggest that WikiLeaks is not a real media entity in the way that the New York Times is. Any one of you who has ever gotten the news and information from the Internet knows otherwise.

The prosecution will also be eager to inform you that the Military Whistleblower Protection Act (MWPA) does not apply here. We, however, will prove to you that the act applies with great and particular force to Pfc. Manning. For one thing, the MWPA not only allows an even wider array of government officials to make disclosures of classified information, it also broadens the scope of what kinds of disclosure a soldier can make. It expressly allows disclosures of classified information by members of the armed forces if they have a “reasonable belief” that what is being disclosed offers evidence of a “violation of the law,” “an abuse of authority,” or “a substantial danger to public safety.” In other words, the purpose of the Military Whistleblower Protection Act is to protect soldiers just like Pfc. Manning who report on improper -- or in this case, patently illegal -- activities by other military personnel.

Now, there is no strict precedent, the prosecution will claim, for any of our whistleblower protection laws to apply to Pfc. Manning. But as we will make clear, there is no contrary precedent either. That’s because we’ve never seen a whistleblower disclosure as massive, vivid, and horrific as this one. We are in uncharted territory. If the plain language of these whistleblower protection laws is unclear, legal convention dictates that we look at the laws’ intent. Clearly Congress meant, and legislative history supports this, for the whistleblower protection laws to protect whistleblowers, not -- as this administration seems to think -- to prosecute them.

The progress of our common law is prudent, it is incremental, it is slow. But our common law is not dead. It does progress. Whether the common law will take that small step forward in the case of Pfc. Manning is your duty to decide. And your decision will have repercussions.

For if you convict Bradley Manning, then you are also clearing the way to try and possibly convict Army Specialist Joseph Darby, the whistleblower who leaked the Abu Ghraib photos and thereby ended acts of torture and abuse that were shaming our military and our nation. Now, Specialist Darby did not leak the photos of this disgrace up the chain of command or to the Army Inspector General as our whistleblower law envisions. Instead, he leaked it straight to the Army Criminal Investigative Division, and this path is not strictly what our whistleblower laws allow. Was Spc. Joseph Darby doing his duty as an honorable soldier when he exposed the torture and abuse at Abu Ghraib? Or was he just trying to damage the United States? Your verdict on Bradley Manning could reopen that question, and answer it anew.

If you convict Bradley Manning, you will also potentially be convicting the father of Army Specialist Adam Winfield. In February 2010, Winfield informed his father, Christopher Winfield, a marine veteran, via Facebook, of a homicidal “Kill Team” at Forward Operating Base Ramrod in Kandahar Province, Afghanistan, that was murdering civilians. Winfield’s father tried to sound the alarm via phone calls to the Army Inspector General’s 24-hour hotline, to Senator Bill Nelson, and even to members of his son’s command unit in Fort Lewis.

Both father and son went beyond the “proper” channels to stop the murder of innocent Afghan civilians. Spc. Winfield is now on trial for possible complicity in the “kill team” murders, but no charges have been filed against his father. Tell me, then: Is Winfield’s father guilty of damaging his country because he tried to warn the Army about a homicidal “kill team” in the ranks? Whether you like it or not, whether you care to or not, this is something you will decide when you render your judgment on Bradley Manning’s actions.

The Espionage Charges

The most outlandish entries on the overachieving charge sheet are those stemming from the Espionage Act of 1917. After all, Pfc. Manning is just the fifth American in 94 years to be charged under this archaic law with leaking government documents. (Of the five, only one has been convicted.)

The Espionage Act was never intended to be used in this way, as an extra punishment for citizens who disclose classified material, and that is why the government only carts it out when its case is exceptionally desperate.

In order for Espionage Act charges to stick, it is required that Pfc. Manning had the conscious intent -- take note of that crucial phrase -- to damage the United States or aid a foreign nation with his disclosures. Not surprisingly, given this, you are going to hear the prosecution spare no effort to portray the release of these cables as the gravest blow to America’s place in the world since Pearl Harbor.

I hope you’ll take this with more than a grain of salt. For where is the staggering fallout from all the supposed bombshells in these leaked documents? Months after the release of the State Department cables, not a single American ambassador has been recalled. Secretary of Defense Robert Gates, who commands far more budget and power than the Secretary of State, publicly insists that these leaks -- the Iraq War logs, the Afghan War Logs, and the diplomatic cables -- have not done any major harm. “Now I've heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer and so on,” said Gates. “I think those descriptions are fairly significantly overwrought.” Significantly overwrought? "Every other government in the world knows the United States government leaks like a sieve,” he added, “and it has for a long time."

So what happened to the biggest blow to American prestige since the 1968 Tet Offensive in Vietnam? And keep in mind that the Secretary of Defense is by no means the only official pooh-poohing the hype about the WikiLeaks apocalypse. One former head of policy planning at the State Department looked at the cables, shrugged, and said that the documents hold “little news,” and that they are “unlikely to do long-term damage.” A senior Pentagon spokesperson, Colonel David Lapan, confessed to reporters last September that there is zero evidence any of the Afghan informers named in the leaked documents have been injured by Taliban reprisals. Tell me, where is the Armageddon that this 23-year-old private has supposedly loosed on our American world?

Of course, there’s no denying that some members of our foreign policy elite have been mightily embarrassed by the State Department cables. Good. They deserve it.

Their fleeting embarrassment is nothing compared to the shame they have brought down on our country with their foolish deeds over the past decade, actions that range from the reckless and incompetent to the downright criminal. It’s no secret that America’s standing in the world has been severely damaged in these years, but ask yourself: Is this because of recent disclosures of civilian deaths and war crimes --most of which are surprising only to Americans -- along with diplomatic tittle-tattle?

I suggest to you that the damage to our nation, which couldn’t be more real, has come not from the disclosures of a young private, but from our foreign policy elite’s long pattern of foolish and destructive actions. After all, the invasion and occupation of Iraq have cost rivers of blood. The price tag for our current foreign wars has now officially soared above the trillion-dollar mark (and few doubt that, in the end, the real cost will run into the trillions of dollars). And don’t forget, the invasion of Iraq has inspired new waves of hatred and distrust of our country overseas, and has provided an adrenaline boost for Islamic terrorists.

Needless to say, our political, military, and media elites have not lined up to take responsibility for this series of self-inflicted wounds. Before they try to pin a nonexistent catastrophe on Pfc. Manning, they ought to take a long, hard look in the mirror and think about the real damage they’ve done to our nation, the world, and not least the overstretched, overstrained U.S. military.

Just imagine: if only someone like Bradley Manning had leaked conclusive documentation about Saddam Hussein’s supposedly deadly but nonexistent arsenal of weapons of mass destruction, the excuse for our invasion of Iraq. Such a disclosure would have profoundly embarrassed Washington’s foreign policy elite and in the atmosphere of early 2003, the media would undoubtedly have called for that whistleblower’s head, just as they’re doing now.

Such a leak, however, would have done a powerful load of good for our nation. Four thousand four hundred and thirty-six American soldiers would not be dead and thousands more would not be maimed, wounded, or suffering from PTSD. At the very least, more than 100,000, and probably hundreds of thousands, of Iraqi civilians would still be living. These are the consequences of policy-making by a secretive government that wants the American people to know nothing, and a media that is either unable or unwilling to do its job and report on facts, not government spin.

You all are old enough to have noticed that the health of our republic and the reputations of our ruling elites are not one and the same. In the best of times, they overlap. The past 10 years have not been the best of times. Those elites have led us into disaster after disaster, imperiling our already breached national security, straining our ruinous finances, and tearing to shreds our moral standing in the world. Don’t try to blame this state of affairs on Private Bradley Manning.

The Nuremberg Principles Mean Something in Our Courts

Our soldiers have a solemn duty not to obey illegal orders, and Pfc. Manning upheld this duty. General Peter Pace’s statement on a soldier’s overriding duty to stop the torture and abuse of prisoners, whatever his or her orders, is not just high-minded public relations; it’s the law of the land. More than 50 years ago, U.S. Army Field Manual 27-10 incorporated the Nuremberg Principles, among them Principle IV: “The fact that a person acted pursuant to an order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” This remains the law of our land and of our armed forces, too.

I suspect the prosecution will have other ideas. They will tell you that the Nuremberg Principles are great stuff for commencement addresses, but don’t actually mean anything in practical terms. They will tell you that the Nuremberg Principles are of use only to the Lisa Simpsons of the human-rights industry.

But know this: some 400,000 of your fellow soldiers died in the Second World War for the establishment of those principles. For that reason alone, they are something that you in the military ought to treat with the utmost seriousness.

And if the judge or prosecutor should tell you that the Nuremberg Principles don’t mean a thing in our courts, they would be flat wrong. Courts have taken the Nuremberg Principles to heart before, and more and more have done so in the past few years. In 2005, for example, Judge Lieutenant Commander Robert Klant took note of the Nuremberg principles in a sentencing hearing for Pablo Paredes, a Navy Petty Officer Third Class who refused redeployment to Iraq, and whose punishment was subsequently minimized.

Similarly, at his court martial in 2009, Sergeant Matthis Chiroux justified his refusal to redeploy to a war that he believed violated both national and international law, and was backed up by expert testimony on the Nuremberg Principles. The court martial granted Sgt. Chiroux a general discharge.

A long line of Supreme Court cases, from Mitchell v. Harmony in 1851 all the way back to Little v. Barreme in 1804, established that soldiers have a duty not to follow illegal orders. In short, it is a matter of record and established precedent that these Nuremberg Principles have meant something in our courts. Yours will not be the first court martial to apply these principles, fought for and won with American blood, nor will it be the last.

Whistleblowers Are Patriots Who Sacrifice for Their Country

Whistleblowers who attempt to rectify the disastrous policies of their nation are not criminals. They are patriots, and eventually are recognized as such. Bradley Manning is by no means the first American to serve his country in such a way.

Today, Daniel Ellsberg is famous as the leaker of the Pentagon Papers, a secret internal history ordered up by Secretary of Defense Robert McNamara himself that candidly recounted how a series of administrations systematically lied to the nation about the planning and prosecution of the Vietnam War. Ellsberg’s massive leak of these documents helped end that war and bring down a criminal administration. How criminal? Midway through Ellsberg’s trial in 1973, the Nixon administration offered the judge overseeing his treason trial the directorship of the FBI in an implicit quid pro quo, a maneuver of such brazen corruption as to shame any banana republic. The judge dismissed all the government’s charges with prejudice and now Daniel Ellsberg is a national hero.

Those born after a certain date may be forgiven for assuming that Ellsberg was some long-haired subversive of an “anti-American” stripe. In fact, he had been, like Bradley Manning, a model soldier.

At the Marine Corps Basic School in Quantico, Virginia, Ellsberg graduated first in a class of some 1,100 lieutenants. He served as a platoon leader and rifle company commander in the Marine 2nd Infantry Division for three years, and deferred his graduate studies so he could remain on active duty with his battalion during the Suez Crisis of 1956. (You will note that deferring graduate school in order to stay on active military duty is the exact opposite of what so many of our recent, and current, national leaders did in those decades.) After satisfying his Reserve Officer commitment, Ellsberg was discharged from the Corps as a first lieutenant, and leaving the military went on to a distinguished career in government.

Daniel Ellsberg was a model Marine, and later a model citizen. His courageous act of leaking classified information was only one more episode in a consistent record of patriotic service. When Ellsberg leaked the Pentagon Papers he did so out of the profoundest sense of duty, knowing full well, just like Bradley Manning today, that he might spend the rest of his life in jail.

Ellsberg calls Pfc. Manning his hero and he is a tireless defender of the brave Army private our government has locked away in solitary.

Vandals trash things without a care in their hearts, but real patriots like former Lt. Ellsberg and Pfc. Manning do their duty knowing that the privilege of living in a free society does not always come cheap.

“Frankly and in the Public View”: The American Tradition of Diplomacy

Today, Ellsberg himself is lionized, even by the U.S. government, as a national hero. The State Department recently put together a traveling roadshow of American documentary films to screen abroad, and front and center among them is an admiring movie about Ellsberg and the Pentagon Papers. But then it is only appropriate that the government recognize Ellsberg and his once-controversial disclosures as part and parcel of the American tradition.

After all, demands for more open and transparent diplomacy are as American as baseball and Hank Williams. World War I-era President Woodrow Wilson himself insisted on the abolition of secret treaties as part of his 14 points for the League of Nations; in fact, it’s the very first point: “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.”

How can foreign policy be democratic if the most serious decisions and facts -- alliances, death tolls, assessments of the leaders and governments we are bankrolling with our tax dollars -- are all kept as official secrets? The “Bricker Amendment” was an attempt by congressional Republicans in the 1950s to require Senate approval of U.S. treaties, in large part to open up public debate about foreign affairs. The late Senator Daniel Patrick Moynihan, a Democrat who served as representative to the U.N. for Republican President Richard Nixon, was also a severe critic of government secrecy and the habitual over-classification of state documents. These American statesmen knew that if foreign policy is crafted in secret, without the oxygen and sunlight of vigorous public debate, disaster and dysfunction would result.

For the past 10 years, we have had exactly such disaster and dysfunction as our foreign policy. Our leaders have plunged us into a dark world of secrecy and lies. Tell me: Is this Private Bradley Manning’s fault?

Let me be clear as I bring this opening statement to a close: for all the complexities this case holds, your job will in the end prove a simple and basic one. It’s your task not to let our leaders, or the prosecution, pin the horrendous state of affairs into which this country has been thrown on Pfc. Manning. I am confident that you will see him for the patriot he is, a young man with a moral backbone whose goal was not self-aggrandizement or profit or even attention and glory. His urge was to shine a bright light on his own country’s wrongdoing and, in that way, bring it, bring us, back to our nobler national traditions.

It is Pfc. Manning, not our fearless national leaders, who has sacrificed much to restore the rule of law and a minimal level of public oversight to American foreign and military policy. “Frankly and in the public view”: this once would have been called a reasonable description of the American character, something that set us apart from the Austro-Hungarian Empire, Otto von Bismarck’s Prussia, or Imperial Japan. Whether our government has any responsibility to conduct its affairs frankly and in the public view in 2011 and beyond -- this is something else you will decide in your judgment on Pfc. Manning.

As soldiers, you know well that most Americans have insulated themselves from the last decade’s foreign-policy disasters. Even as we spend a trillion dollars on foreign wars, our taxes are cut. If you’re making decent money, the odds are it’s not your kids, grandchildren, brothers, or sisters who are off fighting, killing, and dying in our foreign wars. Most Americans, thanks in part to the media, have little idea of what you and your peers have lived through, the weight you have shouldered.

This is not true of Pfc. Bradley Manning. He came face to face with this disaster. He saw, and participated in, the roundup of Iraqi civilians to be tortured by their own national police force. Tell me honestly: Was this what Operation Iraqi Freedom was supposed to accomplish? Is this why you, his jury of peers, enlisted in the military?

Pfc. Manning saw this misery and rampant illegality with his own two eyes, and then, online, he discovered more of the same -- much, much more -- and he did something about it, knowing full well the penalty. “I wouldn’t mind going to prison for the rest of my life, or being executed so much, if it wasn’t for the possibility of having pictures of me […] plastered all over the world press,” he confided to the informant who betrayed him. Manning knew the stakes and the risks when he leaked these documents, but still he loyally performed his duty, both to the United States Army and to his country.

As one of Manning’s childhood friends from Crescent, Oklahoma, has testified, “He wanted to serve his country.” It’s up to you to decide whether he did.

You have a duty as a fully informed jury of free citizens. You are not an assortment of rubber stamps pulled out of a judge’s desk drawer. You are as important a part of this court as the judge, prosecutor, and the accused himself.

Whichever way you decide in your verdict, you will not face the consequences Bradley Manning already endures, but your judgment will have great consequences, not just for him, but for the honor and future of the country you have taken an oath to serve.

Now, go and do your duty.

Chase Madar is an attorney in New York and a member of the National Lawyers Guild. He writes for TomDispatch, the American Conservative magazine, Le Monde Diplomatique, and the London Review of Books. (To listen to Timothy MacBain’s latest TomCast video interview in which Chase Madar explores Manning’s case and his defense, click here, or download it to your iPod here.)

AlterNet.org

AlterNet / By Julianne Escobedo Shepherd

The FBI Has Been Violating Your Liberties in Ways That May Shock You

As Congress seeks to renew the Patriot Act, new information exposes egregious FBI violations.

February 3, 2011 |

Last week, Senate Judiciary Chairman Patrick Leahy, D-VT, introduced legislation to extend the Patriot Act past its February 28 expiration date to December 2013. Though the extension once again saves some of the most nefarious, First-Amendment trampling provisions of the act -- roving wiretaps, secret access to third-party records, the hunting of targets unafilliated with foreign powers -- Leahy released a statement assuring us that the new extension will increase citizen protections.

“It will promote transparency and expand privacy and civil liberties safeguards in current law,” he said in a statement. “It increases judicial oversight of government surveillance powers that capture information on Americans. This is a package of reforms that all Americans should support.” The expanded bill would require the Department of Justice to issue public reports and generally expand oversight.

But will token rights-preserving provisions matter if the FBI refuses to comply?

Over the last decade, the FBI has been found to violate the Constitution countless times under the guise of the Patriot Act, including a 2007 scandal that led FBI head Robert Mueller to publicly apologize for the preponderance of security abuses, misconduct and violation of civil liberties on his watch. We’ve known since its enactment in 2001 that the Patriot Act, with its gross expansion of law enforcement power and murky reporting requirements, was just a rulebook waiting to be spoiled.

But according to a new report released by the Electronic Frontier Foundation (EFF), the FBI’s violations go far beyond what has been reported.

Since July 2009, EFF has been involved in litigation with seven different federal agencies for ignoring EFF’s requests for information submitted in 2008. In December 2009, the CIA, NSA, Department of Defense, Department of Homeland Security, Department of Justice, Office of the Director of National Intelligence, and Department of State were ordered by the Court to comply with EFF’s requests under the Freedom of Information Act, though it did not receive the complete papers from the FBI until October 2010.

The resulting 2,500-page document consists of FBI reports to the citizen-run Intelligence Oversight Board during the years 2001-2008. Consistently, documents released from the IOB reveal investigations of abuse that often have not been reported to Congress or the Department of Justice as required. But EFF’s analysis, pored over for several months, illuminates exactly how, when and why these investigations happened, and the results are shocking.

First, the numbers: EFF found that, since 9/11, the FBI has been responsible for up to 40,000 violations. Most often, said violations included bucking guidelines for internal oversight, abusing the National Security Letters and trampling on the Fourth Amendment. This, in tandem with the IOB’s weakened capacity for oversight under President George W. Bush, has resulted in nothing short of disaster. In 2008, Bush revoked the IOB’s right to refer violations to the Attorney General, and eliminated the agency’s requirement to report quarterly to the IOB. As EFF found, "The FBI’s disregard for its own internal oversight requirements and the Bureau’s failure to timely report violations to the IOB undermined the safeguards established to protect civil liberties violations from occurring." While the Obama administration restored a few of those changes, it still has not provided the proper transparency needed for a true citizen-protective oversight board or fully disclosed its makeup.

Some of the more egregious abuses, according to EFF’s report:

• Private entities such as phone companies, banks and Internet providers assisted the FBI’s National Security Letters abuse with alarming frequency, turning over information without valid legal justification in more than half of all case.
• Between 2001-2008, the average time between when a violation was committed, and when it was reported to the IOB, was 2.5 years.
• During that same time frame, the FBI was found to have submitted false or inaccurate documents to courts, used "improper evidence" to obtain subpoenas, and accessed password-protected documents without a warrant.

This is government spying, in no uncertain terms.

In his bill to renew the Patriot Act, Senator Leahy called for "a higher standard" from the government, including "a statement of facts showing reasonable grounds to believe the tangible things are relevant to an authorized investigation and pertain to (a) an agent of a foreign power, (b) the activities of a suspected agent, or (c) an individual in contact with or known to a suspected agent of foreign power."

Lip service is mighty, but without true reform to the articles like Lone Wolf, It’s likely the FBI won’t stop stampeding our rights anytime soon.

Read the full report at the EFF.

Julianne Escobedo Shepherd is an associate editor at AlterNet and a Brooklyn-based freelance writer and editor. Formerly the executive editor of The FADER, her work has appeared in VIBE, SPIN, New York Times and various other magazines and websites.

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Patterns of Misconduct: FBI Intelligence Violations from 2001 - 2008

Table Of Contents

1. Executive Summary
2. Introduction
3. The Intelligence Oversight Board
4. FBI Intelligence Violations Reported to the IOB
1. Violations of Internal Oversight Guidelines
2. Abuse of National Security Letters
3. Violations of the Constitution, FISA, and Other Legal Authorities
5. Total Number of Violations from 2001 - 2008
6. Conclusion
7. References

Executive Summary

In a review of nearly 2,500 pages of documents released by the Federal Bureau of Investigation as a result of litigation under the Freedom of Information Act, EFF uncovered alarming trends in the Bureau’s intelligence investigation practices. The documents consist of reports made by the FBI to the Intelligence Oversight Board of violations committed during intelligence investigations from 2001 to 2008. The documents suggest that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed. In particular, EFF’s analysis provides new insight into:

Number of Violations Committed by the FBI

• From 2001 to 2008, the FBI reported to the IOB approximately 800 violations of laws, Executive Orders, or other regulations governing intelligence investigations, although this number likely significantly under-represents the number of violations that actually occurred.
• From 2001 to 2008, the FBI investigated, at minimum, 7000 potential violations of laws, Executive Orders, or other regulations governing intelligence investigations.
• Based on the proportion of violations reported to the IOB and the FBI’s own statements regarding the number of NSL violations that occurred, the actual number of violations that may have occurred from 2001 to 2008 could approach 40,000 possible violations of law, Executive Order, or other regulations governing intelligence investigations.1

Substantial Delays in the Intelligence Oversight Process

• From 2001 to 2008, both FBI and IOB oversight of intelligence activities was delayed and likely ineffectual; on average, 2.5 years elapsed between a violation’s occurrence and its eventual reporting to the IOB.

Type and Frequency of FBI Intelligence Violations

• From 2001 to 2008, of the nearly 800 violations reported to the IOB:
• over one-third involved FBI violation of rules governing internal oversight of intelligence investigations.
• nearly one-third involved FBI abuse, misuse, or careless use of the Bureau’s National Security Letter authority.
• almost one-fifth involved an FBI violation of the Constitution, the Foreign Intelligence Surveillance Act, or other laws governing criminal investigations or intelligence gathering activities.
• From 2001 to 2008, in nearly half of all NSL violations, third-parties to whom NSLs were issued — phone companies, internet service providers, financial institutions, and credit agencies —contributed in some way to the FBI’s unauthorized receipt of personal information.
• From 2001 to 2008, the FBI engaged in a number of flagrant legal violations, including:
• submitting false or inaccurate declarations to courts.
• using improper evidence to obtain federal grand jury subpoenas.
• accessing password protected documents without a warrant.

Introduction

EFF’s analysis of recently disclosed documents provides new insights into the Federal Bureau of Investigation’s unlawful surveillance of Americans during intelligence investigations conducted between 2001 and 2008.

In response to EFF FOIA requests issued in 2008 and 2009, the FBI released reports of violations made to the Intelligence Oversight Board (IOB) — an independent, civilian intelligence-monitoring board that reports to the President on the legality of foreign and domestic intelligence operations. The nearly 2,500 pages of documents EFF received include FBI reports to the IOB from 2001 to 2008. The reports catalog 768 specific violations arising from FBI monitoring of U.S. citizens, resident aliens, and non-residents.

Following a series of government investigations into FBI intelligence abuses, EFF submitted FOIA requests in an effort to obtain the FBI’s IOB reports. In 2007, the Department of Justice, Office of Inspector General released a report (pdf) documenting the FBI’s abuse of its National Security Letter (NSL) authority:2 the report found, in an audit of only 10% of national security investigations, that the FBI may have committed as many as 3000 NSL violations and had failed to report many of those violations to the IOB.3 A 2008 OIG report (pdf) confirmed and expanded the earlier report’s findings and critically assessed the steps taken by the FBI to address the abuse of NSLs.4

Following the second OIG report in 2008, EFF submitted FOIA requests to eleven federal agencies and agency components requesting all reports of intelligence violations made to the IOB from 2001 to 2008. EFF submitted subsequent requests the following year for violations reported to the IOB from 2008 to 2009. In July 2009, after many agencies failed to respond to the request, EFF filed suit against seven defendants — including the CIA, NSA, Department of Defense, Department of Homeland Security, Department of Justice, Office of the Director of National Intelligence, and Department of State — demanding the agencies comply with the law and produce the requested documents. In December 2009, the Court ordered the agencies to begin processing EFF’s request. In July 2010, two years after EFF’s initial FOIA request, the FBI began its release of documents. Over three separate installments in July, August, and October 2010, the FBI released nearly 2,500 pages of documents related to reports of intelligence violations to the IOB.

The documents released to EFF constitute the most complete picture of post-9/11 FBI intelligence abuses available to the public. Among other findings, EFF’s analysis of the documents shows that, from 2001 to 2008, significant delays occurred in the reporting of FBI violations to the IOB. The analysis also provides new insights into the type and frequency of violations committed by the Bureau. Most violations fell into one of three broad categories: first, FBI failure to comply with oversight guidelines; second, abuse of the FBI’s authority to issue National Security Letters; and, third, the FBI’s failure to carry out investigations within the bounds of the Constitution or other federal statutes governing intelligence-gathering. Finally, EFF’s analysis concludes that the FBI may have committed as many as 40,000 violations in the 10 years since the attacks of 9/11.

The Intelligence Oversight Board

The Intelligence Oversight Board "was created in 1976 by President Ford in response to recommendations made by the Rockefeller Commission calling for a Presidential-level body with specific oversight responsibilities for the legality and propriety of US intelligence activities.”5 The Commission’s recommendations came in the wake of a series of congressional reports that revealed illegal and abusive intelligence activities targeting American and foreign citizens. These reports found that intelligence agencies had intercepted and read Americans’ mail, performed surveillance on civil rights leaders and other dissidents, and had orchestrated assassination attempts on foreign leaders.

In light of the Commission’s recommendation, President Ford established the IOB to provide an independent review of intelligence activities to better safeguard citizens’ civil liberties against these types of abusive practices. The IOB consists of five civilian members, all with top-level security clearances, selected by the President to serve on the IOB from the larger intelligence-monitoring body, the President’s Intelligence Advisory Board (PIAB).6 The IOB’s mission is to "oversee the Intelligence Community’s compliance with the Constitution and all applicable laws, Executive Orders, and Presidential Directives."7 The IOB must then report to the President those violations the Board believes "may be unlawful or contrary to an Executive Order or presidential directive." 8 Since its creation, the vast majority of the IOB’s reports and investigations have remained secret.

Slight modifications to the IOB’s authority and structure have occurred since its creation in 1976, but the IOB’s oversight capacity remained largely unchanged for nearly 30 years. In the years following the attacks of 9/11, however, the Board’s role within the intelligence community was diminished in several ways. First, from 2001 to 2003, President Bush failed to appoint advisers to serve on the IOB.9 Even when advisers were appointed, however, the IOB continued to provide little real oversight: the IOB did not forward a single instance of intelligence misconduct to the Attorney General until 2006, despite having received notice of several hundred violations.10 Further, in 2008, President Bush significantly weakened the IOB’s oversight capacity by removing its ability to refer violations to the Attorney General for criminal investigation.11 President Bush also removed the IOB’s authority to oversee intelligence agency general counsel and eliminated the requirement for quarterly agency reporting to the IOB.12

EFF’s analysis of FBI reports to the IOB confirms the perceived inefficacy of the IOB’s oversight from 2001 to 2008. Significant delays between violations occurring and their eventual reporting rendered the IOB’s oversight capacity entirely impotent. On average, nearly two-and-a-half years passed between the occurrence of an FBI intelligence violation and its eventual reporting to the IOB. When a violation was reported within the FBI internally, on average, six months still passed before the Bureau reported the violation to the IOB, despite the Bureau’s requirement to report IOB violations on a quarterly basis. In light of these significant gaps between the occurrence of a violation and its eventual reporting to the IOB, it seems unlikely that the IOB diligently fulfilled its intelligence oversight responsibilities for most of the past decade.

After taking office, President Obama rolled back some of the Bush Administration’s changes to the IOB’s authority, but the function and effectiveness of the Board still remains in question. In an October 2009 executive order, President Obama largely reversed the changes made to the IOB’s oversight authority, and nine appointments have been made to the larger President’s Intelligence Advisory Board.13 Nevertheless, the White House has not disclosed the composition or membership, if any, of the IOB, which continues to call into question the legitimacy of current intelligence oversight efforts.

FBI Intelligence Violations Reported to the IOB

As noted above, in EFF’s review of nearly 2,500 pages of documents released by the FBI, EFF uncovered alarming trends in the Bureau’s intelligence investigation practices from 2001 to 2008. The documents suggest the FBI’s intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed. Broadly, these documents show that the FBI most frequently committed three types of intelligence violations — violations of internal oversight guidelines for conducting investigations; violations stemming from the abuse of National Security Letters; and violations of the Fourth Amendment, Foreign Intelligence Surveillance Act (FISA), and other laws governing intelligence investigations. Also, based on statements made by government officials and the proportion of violations occurring in the released reports, EFF estimates the FBI may have committed as many as 40,000 intelligence investigation violations over the past ten years.

Violations of Internal Oversight Guidelines

The first category of violation occurring with the most frequency involved the FBI’s failure to comply with internal oversight guidelines for conducting investigations. This type of violation ultimately resulted in investigations occurring without any meaningful oversight from either FBI Headquarters or the IOB. Of the reports filed with the IOB, violations of oversight guidelines accounted for over a third of all FBI violations.

The Attorney General Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (NSIG)14(pdf) set forth various reporting rules, investigative requirements, and classification regulations for FBI agents to follow when conducting intelligence investigations.15 Originally issued in 1976 in the wake of the Church Committee’s revelations of frequent and serious FBI violations of citizens’ rights, the Guidelines task the Attorney General with ensuring that all government intelligence operations occur with sufficient oversight and within the bounds of the Constitution and other federal laws.16 For example, the NSIG requires that, upon initiating a new intelligence investigation, an agent report the investigation to FBI Headquarters within a specified period. Other guidelines set requirements for annual reporting of investigations, for information sharing practices between agencies, and — depending on the stage of the investigation and the level of internal authorization — for the investigative techniques FBI agents may use. Broadly, the Guidelines are intended to protect American citizens’ constitutional rights from intrusive and overreaching intelligence investigations.

In 2006, Department of Justice Inspector General Glenn Fine reported to Congress on FBI compliance with the Attorney General’s Guidelines for Domestic Investigations, a distinct set of guidelines from the NSIG governing FBI domestic investigations.17 The OIG investigation revealed "significant non-compliance with the Guidelines."18 EFF’s analysis demonstrates that the FBI's non-compliance extends to the NSIG, as well: the FBI frequently violated its own internal oversight protocols for national security and intelligence investigations. These violations ranged from a failure to submit notification of the investigation of a US person to FBI Headquarters for three years,


...to a failure to report a violation within 14 days of its discovery,

...to continuing to investigate a US person when the authority to do so had expired:

In all cases involving violations of the NSIG, though, the FBI only reported to the IOB when it determined the agency’s ability to supervise the investigation had been "substantially impaired."

In a 2005 Washington Post article, a senior FBI official dismissed the severity of this type of violation, noting that the "vast majority of the potential [violations] reported have to do with administrative timelines and time frames for renewing orders."19 But these guidelines are much more than mere "administrative timelines": the NSIG exists in order to prevent intelligence agencies from invoking "national security" to monitor citizens engaging in constitutionally protected activities — exactly the type of monitoring the FBI was engaging in at the time (pdf).20

Taken together, the FBI’s disregard for its own internal oversight requirements and the Bureau’s failure to timely report violations to the IOB undermined the safeguards established to protect civil liberties violations from occurring — the precise object of both the NSIG and the IOB.

Abuse of National Security Letters

In the reports disclosed to EFF, the second type of violation occurring with the most frequency involved FBI abuse of National Security Letters. These violations accounted for almost one-third of all reported violations. National Security Letters, or NSLs, are secret administrative subpoenas used by the FBI to obtain records from third-parties without any judicial review.21 While NSLs have existed since the late-1970s, the USA PATRIOT Act greatly expanded the intelligence community’s authority to issue NSLs. During the course of a terrorism or counterintelligence investigation, NSLs can be used to obtain just three types of records: (1) subscriber and "toll billing information" from telephone companies and "electronic communications services;"22 (2) financial records from banks and other financial institutions;23 and (3) consumer identifying information and the identity of financial institutions from credit bureaus.24

The FBI's systemic abuse of NSLs has been well-documented — both by Justice Department investigations and through litigation and scrutiny of FBI practices by EFF. As noted above, in reports from 2007 and 2008, the Inspector General found that, between 2003 to 2006, the FBI may have committed as many as 6,400 violations of the FBI’s NSL authority.25 According to the 2008 Report(pdf), from 2003 to 2006, the FBI issued nearly 200,000 NSL requests; almost 60% of the 49,425 requests issued in 2006 were for investigations of U.S. citizens or legal aliens.26

Earlier scrutiny of FBI practices by EFF also revealed abuses of the Bureau’s NSL authority. Documents obtained in a response to a 2007 EFF FOIA request showed that the FBI issued an NSL to North Carolina State University to obtain educational records, in clear violation of the FBI’s statutory authority.27 EFF also filed a lawsuit challenging the legality of an NSL issued by the FBI to the Internet Archive.28 The government formally withdrew the NSL request in 2008.

Analysis of the FBI’s IOB reports released to EFF show that the Bureau committed violations involving NSLs for telephone and electronic communications records twice as often as it did for financial and credit records. While the FBI has publicly disclosed the total number of NSLs issued annually,29 the Bureau has refused to release the frequency with which the three individual types of NSLs were issued. However, if the rate at which the FBI’s NSL violations occurred is an indicator of the frequency with which the three types of requests were issued, then, on average, the FBI likely issued approximately 25,000 NSL requests for telephone and electronic communications records, 12,500 requests for financial records, and 12,500 requests for credit information annually from 2003 to 2006.

Perhaps most startling, however, was the frequency with which companies receiving NSLs — phone companies, internet providers, banks, or credit bureaus — contributed to the FBI’s NSL abuse. In over half of all NSL violations reviewed by EFF, the private entity receiving the NSL either provided more information than requested or turned over information without receiving a valid legal justification from the FBI. Companies were all too willing to comply with the FBI’s requests, and — in many cases — the Bureau readily incorporated the over-produced information into its investigatory databases.

For example, in a violation reported in 2006, the FBI requested email header information for two email addresses used by a U.S. person:

In response, the email service provider returned two CDs containing the full content of all emails in the accounts. The FBI eventually (and properly) sequestered the CDs, notified the email provider of the overproduction, and re-issued an NSL for the originally requested header information; but, in response to the second NSL, the email provider again provided the FBI with the full content of all emails in the accounts.

Compounding the service providers’ problematic over-disclosure, the scope of the FBI’s authority to issue NSLs for electronic transactional records rests on unsettled and unclear legal grounds. The FBI’s NSL authority under the Electronic Communications Privacy Act (ECPA) allows the government to issue NSLs to traditional telephone service providers for non-content subscriber information and toll billing records — essentially, the name, address, length of service, and local and long distance call records.30 ECPA also provides the authority to issue NSLs for "electronic communications transactional records." However, the exact scope of this remains unclear: according to the DOJ, "electronic communications transactional records" include "those categories of information parallel to . . . toll billing records for ordinary telephone service."31 What, exactly, "those categories of information" constitute — possibly including, for example, email "header" information, IP addresses, URLs, or other information — remains unclear.

Third-parties not only willingly cooperated with FBI NSLs when the legal justification was unclear, however: they responded to NSLs without any legal justification at all. In one instance, when requesting financial records from a bank under the Right to Financial Privacy Act, the FBI used language and statutory citations from ECPA — a statute entirely unrelated to financial records — for its legal authority; nevertheless, the financial institution complied with the FBI’s legally deficient request:

In another series of violations, the FBI improperly requested and received full credit reports on subjects of counterintelligence investigations:

The Fair Credit Reporting Act, the statute providing FBI authority to request credit information using an NSL, however, only provides that authority in terrorism investigations.32 In other violations, the FBI failed to certify, as required by statute, that the NSL was relevant to a terrorism investigation and not being used to investigate constitutionally protected activities:

Again, despite the deficiency of the request, the third-party complied with the FBI’s NSL.

The FBI’s abuse of its NSL power has garnered much of the attention in the debate over the FBI’s abusive intelligence practices. What has not received as much attention, however, is the unwillingness of companies and organizations to guard their clients’ and users’ sensitive, personal information in the face of these NSL requests — whether the request was legally justifiable or not. Undeniably, if the FBI had complied with the law, the vast majority of NSL violations would never have occurred. Nevertheless, many of the businesses and organizations with which Americans trust their most private information are not applying any scrutiny to unjustifiable requests from the FBI and are not responding to valid requests in a responsible manner.

Violations of the Constitution, FISA, and Other Legal Authorities

The third category of FBI intelligence violations reported to the IOB, accounting for almost 20% of all reports, are violations of the Constitution, the Foreign Intelligence Surveillance Act (FISA), and other federal laws governing criminal investigations and intelligence-gathering activities. The first two types of intelligence violations committed by the FBI — violations of the NSIG and NSL abuse — were readily susceptible to categorization: these violations occurred with great frequency, and the violations were often repetitive and largely similar. On the other hand, violations falling into the third category were, in general, unique, and often flagrant, violations of a variety of legal authorities.

Violations falling into this third category were consistently the most brazen and egregious violations. For example, in two separate incidents, the FBI reported to the IOB that its agents had made false statements in written declarations to courts:


Another reported violation involved the FBI’s use of improper evidence to obtain grand jury subpoenas:

Other violations involved FBI’s use of a target’s username and password to access and download account information,

...and a warrantless search of password-protected files:

Of the reports reviewed by EFF, however, this type of violation was also generally the most redacted. One four-page report (on average, most reports are only one or two paragraphs) is almost entirely redacted,

with the exception of one paragraph that notes the "scope of [the FBI agent’s] alleged offenses" warranted reporting to the IOB: the three pages detailing the offenses, however, are entirely redacted:

Moreover, solely from the documents provided to EFF, it is evident that the FBI is withholding information on an inconsistent and arbitrary basis. For example, one IOB report, which details the issuance of NSLs without proper authority in the wake of the attacks on September 11th, was inadvertently included twice in the FBI’s document release: one is nearly entirely redacted; the other, almost entirely free from redactions:

Numerous documents throughout the FBI’s release provide similar evidence of the agency’s inconsistent and arbitrary practice of redacting and withholding documents.

While the reports documenting the FBI’s abuse of the Constitution, FISA, and other intelligence laws are troubling, EFF’s analysis is necessarily incomplete: it is impossible to know the severity of the FBI’s legal violations until the Bureau stops concealing its most serious violations behind a wall of arbitrary secrecy.

Total Number of Violations from 2001 to 2008

Both the frequency and type of violations revealed in the FBI’s release to EFF are staggering. At a minimum, these documents already demonstrate the need for greater accountability and improved oversight mechanisms for American intelligence agencies. Yet, at the same time, the FBI continues to withhold critical information on the circumstances, rate of occurrence, and severity of these violations. And, if past experience is any guide, it is likely that the FBI is either withholding or failing to report many violations altogether.

In the absence of robust auditing and full disclosure from the Bureau, the only method for approximating the scope of the FBI’s abusive intelligence practices is to extrapolate from information contained within these releases and public statements made by government officials. The IOB reports, themselves, provide some insight into the sheer number of FBI intelligence violations. In previous litigation, EFF fought the FBI to release the IOB matter numbers that accompany every IOB report. While not every IOB "matter" is ultimately reported to the IOB, the numbers provide some indication of the number of violations investigated by the FBI. Based on IOB matter numbers on the reports released to EFF, it is clear that, at minimum, the FBI investigated approximately 7,000 instances of alleged misconduct from 2001 to 2008.

The actual number of violations that occurred from 2001 to 2008, however, is likely much higher. The Inspector General has acknowledged that as many as 6,400 potential NSL violations may have occurred between 2003-2006;33 if the proportion of violations released to EFF is representative of all FBI intelligence violations during that time period, then the number of total violations during that four year time-period may have topped 17,000 — or an average of 4,250 serious intelligence violations per year. In the ten years since 2001, that total could approach 40,000 possible violations.34

Conclusion

From 2001 to 2008, the FBI frequently and flagrantly violated laws intended to check abusive intelligence investigations of American citizens. While many hoped the era of abusive FBI practices would end with the Bush Administration, there is little evidence that President Obama has taken significant measures to change past intelligence abuses. Two years into his term, the President has not publicly disclosed any appointments to the IOB, and his campaign promise of unprecedented transparency within the executive branch has gone largely unfulfilled — especially within the intelligence community.

Congress, however, has an opportunity to remedy these abuses: portions of the USA PATRIOT Act expire in late February, and a bill has already been introduced in the House of Representatives to reauthorize it.35 Instead of simply rubber-stamping the intelligence community’s continuing abuse of Americans’ civil liberties, Congress should seize this opportunity to investigate the practices of the FBI and other intelligence agencies, and to demand greater accountability, disclosure, and reporting from these agencies. Until then, the FBI’s pattern of misconduct will undoubtedly continue.

1. 1. This figure is an estimate based, first, on the fact that a significant number of FBI violations went unreported, both internally and to the IOB; second, this estimate assumes the sample of violations reported to the IOB and released to EFF is representative of all violations that occurred from 2001-2011, including those that went unreported; third, the estimate assumes violations occurred at the same rate over time. In the reports released to EFF, roughly 33% were violations of the NSIG, 33% were NSL violations, and 20% were other violations (the remaining percentage of violations was too heavily redacted to categorize). The estimate is based on an extrapolation from the OIG’s estimate that 6,400 NSL violations occurred from 2003-2006. In the absence of robust FBI auditing and thorough oversight, however, estimates are the only reasonable method to approximate the scope of the FBI’s investigatory misconduct.
2. 2. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION’S USE OF NATIONAL SECURITY LETTERS (March 2007).
3. 3. See R. Jeffrey Smith, FBI Violations May Number 3,000, Official Says, WASH. POST, Mar. 21, 2007.
4. 4. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006 (March 2008). Even before the OIG’s official acknowledgement of FBI investigative abuses, EFF, other civil liberties organizations, and members of the media had documented numerous instances of improper government intelligence activities in the years following 9/11. For example, in 2005, a FOIA request seeking information about violations related to 13 national security investigations revealed numerous instances of FBI misconduct stemming from the Bureau’s newly expanded powers under the USA PATRIOT Act.
5. 5. President’s Intelligence Advisory Board and Intelligence Oversight Board, PIAB History, http://www.whitehouse.gov/administration/eop/piab/history.
6. 6. Id.
7. 7. President’s Intelligence Advisory Board and Intelligence Oversight Board, About the PIAB, http://www.whitehouse.gov/administration/eop/piab/about.
8. 8. See, e.g., Exec. Order No. 13462 (Feb. 29, 2008), available at http://www.fas.org/irp/offdocs/eo/eo-13462.htm.
9. 9. John Solomon, In Intelligence World, a Mute Watchdog, WASH. POST, Jul. 15, 2007, available at https://www.washingtonpost.com/wp-dyn/content/article/2007/07/14/AR2007071400862.html.
10. 10. Id.
11. 11. Charlie Savage, President Weakens Espionage Oversight, BOS. GLOBE, Mar.14, 2008, available at http://www.boston.com/news/nation/washington/articles/2008/03/14/president_weakens_espionage_oversight/?page=full.
12. 12. Id.
13. 13. Charlie Savage, Obama Order Strengthens Spy Oversight, N.Y. TIMES, Oct. 29, 2009, at A16, available at https://www.nytimes.com/2009/10/30/us/politics/30intel.html.
14. 14. A previous version of the NSIG, the Attorney General’s Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Collection ("FCIG") is referenced in some of the documents released from earlier years. The NSIG replaced the FCIG in October 2003.
15. 15. A partially declassified version of the guidelines is available at http://www.fas.org/irp/agency/doj/fbi/nsiguidelines.pdf.
16. 16. See ELECTRONIC PRIVACY INFORMATION CENTER, THE ATTORNEY GENERAL’S GUIDELINES, available at http://epic.org/privacy/fbi/.
17. 17. The FBI operates under two separate sets of guidelines issued by the Attorney General: one for domestic investigations, one for national security and intelligence investigations. For a thorough treatment of the gradual expansion of the Attorney General’s Domestic Guidelines, see EMILY BERMAN, BRENNAN CENTER FOR JUSTICE, DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS (2011), available at http://www.brennancenter.org/content/resource/domestic_intelligence_new_powers_new_risks/.
18. 18. Oversight of the Federal Bureau of Investigation: Hearing Before the Sen. Comm. on the Judiciary (May 2, 2006) (statement of Glenn A. Fine, Inspector General, U.S. Department of Justice), available at http://www.justice.gov/oig/testimony/0605.htm.
19. 19. Dan Eggen, FBI Papers Indicate Intelligence Violations, WASH. POST, Oct. 24, 2005, available at https://www.washingtonpost.com/wp-dyn/content/article/2005/10/23/AR2005102301352.
20. 20. See, e.g., DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S INVESTIGATIONS OF CERTAIN DOMESTIC ADVOCACY GROUPS (September 2010), available at http://www.justice.gov/oig/special/s1009r.pdf (describing FBI surveillance of various American advocacy groups from 2001 to 2006).
21. 21. See Electronic Frontier Foundation, National Security Letters, https://www.eff.org/issues/national-security-letters.
22. 22. 18 U.S.C. § 2709.
23. 23. 12 U.S.C. § 3414.
24. 24. FBI has the authority to issue three different, but related, NSLs to credit agencies — an NSL pursuant to 15U.S.C. § 1681(u)(a) for the names of financial institutions with which the subject has an account; an NSL pursuant to 15 U.S.C. 1681(u)(b) for consumer identifying information; and an NSL pursuant to 15 U.S.C. § 1681(v) for a full credit report. The FBI may only request a full credit report while investigating international terrorism cases.
25. 25. See Jason Ryan, FBI Search Abuses Could Number Thousands, ABC NEWS, Apr. 16, 2008, available at http://abcnews.go.com/TheLaw/DOJ/story?id=4661216&page=1.
26. 26. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006 (March 2008), available at http://www.justice.gov/oig/special/s0803b/final.pdf.
27. 27. See Electronic Frontier Foundation, Report on the Improper Use of an NSL to NC State University, https://www.eff.org/issues/foia/report-nsl-ncstate.
28. 28. See Electronic Frontier Foundation, Internet Archive v. Mukasey, https://www.eff.org/cases/archive-v-mukasey.
29. 29. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006 (March 2008), available at http://www.justice.gov/oig/special/s0803b/final.pdf.
30. 30. See 18 U.S.C. § 2709(a).
31. 31. See Department of Justice, Office of Legal Counsel, Requests for Information under the Electronic Communications Privacy Act (November 2008) at 3 n. 3, available at http://www.fas.org/irp/agency/doj/olc/ecpa.pdf.
32. 32. See 15 U.S.C. § 1681(v).
33. 33. See Jason Ryan, FBI Search Abuses Could Number Thousands, ABC NEWS, Apr. 16, 2008, available at http://abcnews.go.com/TheLaw/DOJ/story?id=4661216&page=1.
34. 34. This figure is an estimate based, first, on the fact that a significant number of FBI violations went unreported, both internally and to the IOB; second, this estimate assumes the sample of violations reported to the IOB and released to EFF is representative of all violations that occurred from 2001-2011, including those that went unreported; third, the estimate assumes violations occurred at the same rate over time. In the reports released to EFF, roughly 33% were violations of the NSIG, 33% were NSL violations, and 20% were other violations (the remaining percentage of violations was too heavily redacted to categorize). The estimate is based on an extrapolation from the OIG’s estimate that 6,400 NSL violations occurred from 2003-2006. In the absence of robust FBI auditing and thorough oversight, however, estimates are the only reasonable method to approximate the scope of the FBI’s investigatory misconduct.
35. 35. H.R. 67, To extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 29, 2012 (introduced Jan. 5, 2011), available at http://www.thomas.gov/cgi-bin/query/z?c112:H.R.67.

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