The New York Times did what they do best this week with a story on the National Security Agency’s once again overstepping its bounds with its surveillance of your phone calls and emails. The story goes that the NSA is continuing its sweeping collection of our communications and, contrary to previous reporting, it’s much more pervasive than we thought. That’s shocking!
Wait…no. IT TOTALLY ISN’T.
The Times wrote in April that the NSA was going outside even the sweeping powers granted to it in the FISA Amendments Act (FAA).
For those of you late to the game, the FAA was passed last July despite opposition from the ACLU and other privacy advocates. The law effectively legalized the unlawful warrantless surveillance program President Bush approved in late 2001. It also gave the government new spying powers, including the power to conduct dragnet surveillance of Americans’ international communications.
The FAA didn’t pass without controversy but clearly there wasn’t enough to stop members and President Obama from voting for it and in July of last year — as soon as the ink was dry from then-President Bush’s signature — the ACLU filed a federal lawsuit challenging the constitutionality of the FAA. Oral arguments in that case are scheduled for July 10 in the U.S. District Court for the Southern District of New York. Also on that date? A report is due on the what some refer to as the “Terrorist Surveillance Program” but what I call illegal and unconstitutional warrantless wiretapping of Americans.
In July of last year — as soon as the ink was dry from then-President Bush’s signature — the ACLU filed a federal lawsuit challenging the constitutionality of the FAA. Oral arguments in that case are scheduled for July 10 in the U.S. District Court for the Southern District of New York. Also on that date? A report is due on what some refer to as the “Terrorist Surveillance Program,” but what I call illegal and unconstitutional warrantless wiretapping of Americans.
The story of our government’s use of the NSA to spy on its own citizens is multifaceted and doesn’t seem to ever really die. And it won’t until we make sure there are rock-solid safeguards in place when it comes to our communications.
We’d like to think of our surveillance laws as a work in progress. Since the 111th Congress was gaveled in, we’ve been asking Congress to use this year and the upcoming expiring Patriot Act provisions to reevaluate the multitude of changes made to our surveillance laws over the last eight year — and frankly, before that.
Don’t forget that the FAA was intended to fix the absolute disaster that was the Protect America Act. Congress took nearly a year attempting to mop up that mistake and ended up not that far from where it started.
The reality is we need a thorough and holistic look at the laws that govern our privacy and our right to live our lives free from government intrusion. Here’s hoping the 111th Congress will do the right thing and make a commitment to restoring the chipped-away Fourth Amendment.
Here in D.C. we’ve had back-to-back hearings touching on the use of torture. Yesterday, the Senate Judiciary subcommittee held a hearing on torture that featured testimony from former FBI agent Ali Soufan, former State Department advisor and executive director of the 9/11 Commission Philip Zelikow, and several legal experts. The spotlights were firmly on Zelikow and Soufan, who testified to the committee from behind a curtained wall in place to protect his anonymity, as they have each been in the press recently for their opposition to torture. Here’s a little background.
Soufan’s testimony made several interesting points that, if are true, could help to show the torture debate in a new light. He claimed that after the capture of high-level Al Qaeda operative, Abu Zubaydah, he was able to glean more information with traditional interrogation techniques than the harsher techniques imposed on the prisoner after Soufan’s departure.
Also, according to Soufan, the CIA agents who witnessed "harsh interrogation techniques" made their opposition known. It was the introduction of a contractor hired by the CIA, James Mitchell (an expert in the military’s Survival, Evasion, Resistance and Escape, or SERE, program), that brought the brutal techniques. This means that CIA headquarters was ignoring or dismissing the reports from their agents in the field and started to implement their own ideas (or worse, an independent contractor’s) of what would work. Not good.
Next up was Attorney General Eric Holder who faced off with the House Judiciary Committee today in a general Department of Justice (DOJ) oversight hearing. Holder said some encouraging things on many of ACLU’s issues but still wouldn’t commit to naming an independent prosecutor to investigate the use of torture. Some interesting nuggets:
That’s the update, kids.
If nothing else, these hearings have proven that Congress isn’t done with the subject of torture — nor should it be. Unfortunately, as with most hearings on the abuses of the Bush administration, we’re left with more questions than answers. Did CIA agents really object to torture techniques like Soufan testified? How many more facts does the attorney general need to "gather" before appointing an independent prosecutor? Will the American public finally face the disturbing truth of our government’s actions in Iraq and Afghanistan? With any luck, the coming months will bring answers to all these questions and more. Maybe if we got that select committee…
The ACLU’s been raising the alarm about fusion centers for a while now and it finally seems that public is slowly catching up with us. These post-9/11 phenomena have been in the news lately for all the wrong reasons. Let’s catch you up.
In February, a "Prevention Awareness Bulletin" became public from a North Central Texas Fusion System. The bulletin warned of a conspiracy involving former Congresswoman Cynthia McKinney, Muslim rights groups, anti-war groups, the U.S. Treasury Department and — wait for it — hip-hop groups. The same month, a "Strategic Report" from the Missouri Information Analysis Center listed supporters of third party candidates like Ron Paul and Bob Barr as a threat, claiming they were a part of the "modern militia movement."
The latest disturbing news is out of a Virginia fusion center. A document, posted online last week details potential concerns and threats throughout the Old Dominion State, specifically mentioning the multicultural population surrounding a military base. The assessment advocates for the monitoring of First Amendment-protected activities of various religious and educational facilities and characterizes the student population at specific Virginia colleges as traditionally black.
Gross.
These three incidents are compelling examples of why fusion centers are kind of like law enforcement snowflakes. Snowflakes without oversight: No two fusion centers are exactly alike and there are no consistent standards for them to work within. It’s a problem.
After the ACLU testified before the House Homeland Security Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, we sent five letters to the Department of Homeland Security Privacy Officer asking for investigations into these three incidents plus a few more for good measure.
The last two months have given us more evidence than necessary that fusion centers need regulation.We’re asking Congress to step up to the plate and make sure the proper safeguards are put into place.
Otherwise, at this rate, we’ll be getting a new horrifying fusion center story every few weeks. Scared yet? Matt Bors thinks you should be.
Here in Washington it’s hard to escape the stimulus package debate. Especially if the TV in your office is set to C-SPAN. It’s an important debate and it turns out there are a few amendments that might be affecting those civil liberties we here at the ACLU Washington Legislative Office strive so hard to protect for you.
Last week, in the House version of the stimulus package, there was an amendment passed that secured privacy protections as a part of funding for health IT implementation. Nice, right?
Tonight’s round of votes in the Senate, however, will include an amendment to remove a provision of the bill that preserves constitutional safeguards by prohibiting federal funds for construction or repair of buildings used for worship and other religious purposes. In order to protect religious freedom, the Senate should vote down Sen. Jim DeMint’s (R-S.C.) amendment in order to protect the religious freedom of all those whose religious buildings aren’t eligible for federal funds. Here’s a Supreme Court decision that echoes our argument.
We’ve written a letter to the Senate urging a vote against the amendment. Cross your fingers for religious freedom, readers.
In other religious news, the Obama administration released a troubling Executive Order on the White House’s Office of Faith-Based and Neighborhood Partnerships. From our release:
President Barack Obama announced today that he is taking the unprecedented and troubling step of forming a federal advisory committee to be made up mostly of religious leaders. Also of great concern, President Obama will increase federal funds going to religious organizations without first changing the Bush-era rules allowing federally-funded religious organizations to apply religious hiring tests to employees.
Big day in religion, kids. Check this space for updates on the DeMint amendment vote.
UPDATE: DeMint amendment failed!
Stuart Taylor at the National Journal has some strong opinions on how President-elect Obama should tackle national security issues. So does the ACLU. It turns out we’re not exactly on the same page.
Allow me to shoot down a few of Taylor’s proposals. First up is group profiling. To advocate for profiling is to begin sliding down a perilously slippery slope, concerning both individual rights and national security. The practice alienates entire segments of the American public and has even been shunned by law enforcement professionals as ineffective. Well, bad news: that’s been proven useless too. Check out this report financed by DHS (and our release praising it).
Like Mr. Taylor, we are not national security experts but we are experts on the laws upon which this country was founded. You have to ask yourself this: who wins when we pit the Constitution against hypothetical threats? America was never meant to be a country that kidnapped, detained, surveilled, nor tortured. The threat that many choose to ignore is the threat to our ideals and national identity. The past eight years of horrific national security policy are a reflection of just that. Now, with a new Congress and new president, we get a shot to repair that damage (psst - here’s how we’d do it).
It’s true that the ACLU will be just as tough on President Obama as we were on President Bush. That’s exactly our job. The Constitution is not a suicide pact as Mr. Taylor states, but we’d argue that neither is it collateral damage.
Dear Senator,
In reply to your remarks on MSNBC this week in regard to telecom immunity being “a festering wound,” the ACLU would like to express its most enthusiastic feelings of agreement. It occurs to us, however, that you did vote for telecom immunity at both opportunities presented to you. (Remember? In February and July?) We are perplexed but also gladdened at your recent change of heart. And may we share this exciting news with you? It is within your very power to reverse this provision which so offends you. You, sir, can begin to heal this festering wound!
Love,
Us
(Seriously, though. Less talk and more rock, please. Congress can, in fact, repeal the telecom immunity provision. Just because the 110th caved in doesn’t mean the 111th can’t stand up. Put your money where your mouth is and let’s do this.)
In “are you serious?!” news, the Washington Post reported yesterday that a new group, the Future of Privacy Forum (FPF), has been formed to “help shape standards around how companies collect, store and use consumer data for business and advertising.” Who makes up this illustrious group? Ah, well. Your usual suspects — lawyers, privacy scholars and (wait for it)…corporate officials.
Talking Points Memo fleshes out the story and brings some much-needed skepticism to the Post’s take:
Corporations understand that stricter privacy regulations are coming, no matter what they do. So they’re trying to get out in front, by funding an advocacy group that appears to put them on the right side of the issue, but will almost certainly work to ensure that whatever reforms are put in place won’t be too onerous for internet companies.
TPM goes on to ask the Electronic Frontier Foundation (EFF) for their opinion on FPF. EFF’s response? “Um, who?”
If EFF wasn’t consulted and we weren’t consulted and neither of us had even heard of the group until their coming out party yesterday, what does that say about the agenda of the Future of Privacy Forum? Not to toot our own horn, but come on. If privacy scholars are being lined up to work with this group we would’ve heard about it — we do dabble in privacy work of our own. Just because the privacy community values privacy doesn’t necessarily mean we keep secrets.
Remember the FISA fight? The idea that there is now a group called the FUTURE OF PRIVACY FORUM being funded and led by corporations who sold out their customers’ phone records and conversations (aka “consumer data”) to the government without warrants or oversight would be funny if it weren’t so unspeakably bleak. First you get immunity. Now you want to set policy? Dude. The future of privacy is screwed.
You may remember that this past summer the Maryland State Police Department was caught conducting illegal surveillance on non-violent, anti-war protesters. Thanks to some intrepid activists and the ACLU of Maryland, the department’s abuses came to light through a Freedom of Information Act request. You may also remember that the ACLU testified at a hearing in front of Maryland state legislators on this very topic last month.
Well, look who’s actually doing something about it! Maryland’s Senators (Senator Barbara Mikulski and Benjamin Cardin — both Democrats) and my very own civil liberties husband, Senator Russell Feingold (D-Wis.). The trio sent a letter today to Attorney General Michael Mukasey, FBI Director Robert S. Mueller III, Homeland Security Secretary Michael Chertoff and the heads of both the National Security Agency and the National Counterterrorism Center asking that non-violent protestors be purged from all federal terrorism databases. As Suzanne said, “How reasonable!” A taste:
“While appropriate information sharing between federal counter-terrorism agencies and state and local law enforcement is critical to our national security, we trust you agree that Americans should not end up in federal terrorism databases as a result of participating in nonviolent anti-war, anti-death penalty, or pro-environment demonstrations. Such activities by the government could have a chilling effect of groups and individuals to ‘peaceably assemble, and to petition the government for redress of grievances.’”
Right?! Here’s hoping that the 111th Congress will be able to make progress on this issue under a new and, fingers-crossed, more cooperative administration. A girl can dream, right?
With things in Washington at a near standstill as everyone eagerly/anxiously awaits next week’s election, the ACLU’s Washington Legislative Office (WLO) has decided to use this time to look back at the last year in legislative battles.
Some memories are bittersweet, like our work on the Lily Ledbetter Act, and some are just bitter (FISA!). From legislation honoring Emmet Till to our work on bills that would ensure a federal reporters’ shield, the WLO has been up to our elbows in lawmaking this year.
I urge you to check out our wrap-up, and then pour a sip out on the sidewalk for the Fourth Amendment.
In just over two weeks both the ballots and the die will be cast for a new administration. Since we kind of saw this coming, the ACLU has been thinking a lot about what we want to see from the next administration. You probably guessed that it means the next guy moving into 1600 Pennsylvania will need to clean up after the former resident (and I think that it would be safe to say that the Bush administration did enough damage to warrant not getting its deposit back).
Our suggestions are broken up into actions for Day One, the First 100 Days and the First Year of any new administration. In total, it’s an exhaustive list of what the country would look like if we ran it. More to the point, it’s what the country would look like if we followed the lines of our country’s roadmap — the Constitution.
For starters, whoever wins on November 4 can close Guantánamo Bay, end the practice of extraordinary rendition and put a stop to all American use of torture his first day in office. Imagine getting all that done in one day (maybe even before lunch!). That’s the kind of power our new president will have. Frankly, it’d be a crying shame to waste it.
But it will take more than that to undo the damage that has been done. Our document is an 83-page list of bad policies, unfair rules, and other travesties that the next president will have the power to clean up. Just flipping through it really gives you a sense of just how much power the president has to change things, for good or ill.
Listen, it’s not that much to ask. After eight years of the Bush administration’s refusal to adhere to the rule of law and irresponsible policies there’s a lot of work to do but it needs to be done. Think of it like fixing the foundation on house after years of neglect. Rebuilding and reinforcing our Constitution will only make us safer and more resolute.
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