Below are the most recent civil liberties updates. For older updates, visit the ACLUm site here and our archive here.
A Post-9/11 Civil Liberties Update
Civil Liberties Update | December 29, 2011
A. EXECUTIVE ACTIONS
Building the National Security Surveillance State
• Potential for abuse of power ratcheted up as due process protections abandoned
• Militarized police crack down on Occupy movement
• Former police chief regrets his role in militarizing repression
• Extent of militarization detailed by Center for Investigative Reporting
• FBI says it has no documents relating to Occupy Wall Street
• Wall Street spies on Occupy Wall Street
• Hackers attack security firm; target supporters of NDAA
• Texas sheriff prepares to use drones for law enforcement
• Congressional ‘drone caucus’ pushing drone orders
• FBI profiling religious and ethnic groups
• FBI gathers intelligence under guise of community outreach
• From surveillance to entrapment: critics say FBI is targeting the vulnerable
• What can be done about ‘unlawful surveillance’?
• NYPD goes it alone in another terrorist prosecution as FBI shuns case
• ‘Underwear Bomber’ pleads guilty
• ‘4 Georgia men arrested in terror plot’
• ‘Homegrown terrorists’ convicted of material support
• White House launches new plan to prevent ‘violent extremism’
• FBI: animal rights activists can be prosecuted as terrorists
• Groups demand to know how Patriot Act is being used
• FBI demands for Internet records up; use of National Security Letters down
• OIG outlines challenges facing FBI and DOJ
• Should the FBI be able to hide the existence of FOIA documents? Lie under oath in court?
• Proposed change to FOIA rules would sanction lying
• Obama finally fills vacancies on Privacy Oversight Board
• Company offers ‘total information awareness’ analysis
• ‘The Surveillance Catalog’ documents $5 billion market that obliterates privacy
• Intelligence agency wants to build ‘data eye in the sky’
• DARPA supports research to detect ‘insider threats’
• CIA combs overseas tweets, Facebook entries, blogs, TV shows
• Army’s ‘digital enhancement team’ scans and contributes to social media
• DHS creating its own internal fusion center
• DHS testing ‘pre-crime’ program on volunteers
• ‘Security theater hits the road’: VIPR expands searches
• Muslim woman sues airlines for being taken off flight
• Fox News contributor reveals anti-Muslim fantasy
• 85-year-old woman strip searched at JFK
• TSA to consider three tier screening system
• Letting it all hang out: a strategy to defeat the spy system
• EU bars x-ray body scanners while TSA faces lawsuits
• Europe insists on privacy protections in new flight agreement
• Europe wants web companies to abide by its privacy rules
• Confidential data of medical patients posted online
Indefinite Detention, Military Commissions, Torture, Extrajudicial Killing
• Military holds Bradley Manning pre-trial hearing
• Al-Qaeda leadership shrinks
• Investigation underway into Newsweek drone article
• Drone assassination of American gets thumbs up from mainstream press
• Secret memo lays out legal rational for killing al-Awlaki
• ‘Who can’t America kill?’
• When will the drone strikes stop and the war be over?
• Virus infects US military drones; drones arms race on horizon
• Iran displays captured US spy drone
• Torture embraced by Republicans while Canada shields Bush and bars Begg
• US funds ‘systemic torture’ in Afghanistan
• Details of CIA prisons trickle out
• British court rules prisoner is held illegally by US forces
• Detainees in limbo in Guantanamo, possibly for life
• Habeas corpus rights reversed by appeals court
• Judge throws out torture lawsuit
• Military commissions resume with case of alleged Cole bomber tortured by CIA
• Former Guantanamo prosecutor shocked by Obama’s about face
• American citizens jailed under ‘Secure Communities’
• S-Comm data analyzed in report
• Santa Clara County narrows participation in S-Comm
• After 3-year investigation DOJ accuses Sheriff Arpaio of racial profiling
• Immigrants take huge risks to be re-united with US families
• Prosecutorial discretion used erratically under S-Comm
• New York stops transfer to ICE of immigrants in Rikers without criminal convictions
• Part of Alabama law blocked by appeals court
• Judge blocks parts of South Carolina’s anti-immigrant law
• Prime mover of anti-immigration law recalled in Arizona
• Raytheon wins ICE contract
• ‘Illegal immigration’ fastest growing federal offense
• Report charges Border Patrol with mission creep
• Republican candidates determined to ‘secure’ border
• Noncitizens given greater leeway to buy guns
B. IN THE US CONGRESS
• Congress uses confused language to endorse military detention
• Feinstein introduces bill to protect due process rights
• Intelligence Act does not include multi-year extension of FISA Amendments Act
• Cybersecurity bills introduced in House
• House holds its first hearing on ‘Secure Communities’
• Congressional letters condemn S-Comm
• Legal Workforce Act would expand use of E-Verify
C. IN THE COURTS
• Supreme Court hears arguments in GPS surveillance case
• Judge says no warrant needed for cell phone location data
• Feds can obtain Twitter data without a warrant
• Arizona immigration law on Supreme Court docket
• Supreme Court to rule on immigrant residence requirement
• ACLU asks appeals court to reinstate case of US ‘enemy combatant’
• Federal judge refuses to hold CIA in contempt for destroying tapes
• Holy Land Foundation appeal thrown out
D. IN THE COMMONWEALTH
• Jury finds Mehanna guilty in decision that puts First Amendment at risk
• Alleged terrorist called ‘ticking time bomb’ by government; mentally ill by family
• Bill of Rights Day protest encounters MBTA surveillance bus
• Hackers protest move against Occupy Boston
• ACLU challenges subpoena of Twitter accounts; court holds secret hearing and gags lawyers
• ACLU brings challenge to border search & seizure of electronic devices
• Markey wants investigation of Westboro data tracking firm
• Northeastern to host homeland security research
• Congressman slams behavioral profiling at Logan
• Data shows more ‘non criminals’ than serious criminals deported under S-Comm
• Death spurs anti-immigrant backlash and demand to expand S-Comm
• Lowell signs onto ‘Image’ program
A. EXECUTIVE ACTIONS
Building the National Security Surveillance State
• POTENTIAL FOR ABUSE OF POWER RATCHETED UP AS DUE PROCESS PROTECTIONS ABANDONED
On December 15, the 220th anniversary of the Bill of Rights, the US Senate joined the House and passed the reconciled version of the National Defense Authorization Act (NDAA) of 2012, which contains provisions that make indefinite detention in military custody – including for US citizens – a permanent part of US law, repudiating the due process protections articulated in the Fifth and Sixth Amendments (see In the Congress, below). After threatening to veto the Act, President Obama reversed course on December 14 – despite serious reservations expressed by the FBI, the Attorney General, the heads of intelligence agencies, the Secretary of State and even the Defense Department itself, which did not appear eager to take on new arrest, detention and domestic law enforcement responsibilities barred for the most part by the Posse Comitatus Act of 1878. In the name of fighting the ‘war on terror’ the President is now authorized to indefinitely detain anyone anywhere, including American citizens, without charge or trial. No longer is the scope of the 2001 presidential Authorization to Use Military Force (AUMF) limited to the nations, organizations or persons determined to have planned or aided the terrorist attacks of 9/11. Now anyone suspected of having “supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States” can be a target, and be held “without trial until the end of the hostilities” – however they are defined. Although the language concerning the indefinite detention of US citizens is muddled (permitting the White House to say a compromise had been reached), it appears that US citizens captured either abroad or at home are not (unlike foreign ‘suspects’) required to be held in military detention, but they can be (Glenn Greenwald, Salon, December 16). The New York Times (December 16) editorialized: “President Obama came into office pledging his dedication to the rule of law and to reversing the Bush-era policies. He has fallen far short….This week, he is poised to sign into law terrible new measures that will make indefinite detention and military trials a permanent part of American law….This is a complete political cave-in, one that reinforces the impression of a fumbling presidency….Mr. Obama, his spokesman said, is prepared to sign this law because it allows the executive to grant a waiver for a particular prisoner to be brought to trial in a civilian court. But the legislation’s ban on spending any money for civilian trials for any accused terrorist would make that waiver largely meaningless.” As well as opening the door to military detention and trial for American citizens, the NDAA makes it all but impossible to shut Guantanamo. Attorney General Holder confirmed on December 21 that the President would add a signing statement when he puts his signature on the bill, much as he did in late December when he signed another budget bill, HR 2055. That signing statement claimed that the section of the bill barring the use of money to transfer Guantanamo detainees to the United States and making it more difficult to transfer them to foreign countries was an infringement of executive power, as were other sections that interfered with his conduct of foreign policy in Afghanistan (New York Times, December 24).
• MILITARIZED POLICE CRACK DOWN ON OCCUPY MOVEMENT
Around the nation, people exercising their First Amendment rights by participating in Occupy encampments and demonstrations as well as journalists attempting to cover their protest activity have been confronted by police employing counterinsurgency tactics and armed with batons, military LRAD sound cannons, rubber bullets and large quantities of mace and pepper spray. On October 26, two tour Iraq war veteran Scott Olsen was critically injured when he was hit in a face with a tear gas canister. When people went to his aid, the police fired a flash-bang grenade at them. On November 18, two university police officers casually walked down a row of US Davis students sitting on the ground, pepper spraying them at close range. A video of the incident rapidly went viral. Robert Hass, a former US poet laureate, was clubbed by Berkeley police when he joined an Occupy demonstration and an 84-year-old woman was pepper sprayed in the face in Seattle. Given the timing of police raids and the similarity in tactics used to disrupt the Occupy movement in city after city, there has been speculation that the crackdown might have been coordinated. The Police Executive Research Forum (PERV), a private group with close ties to police departments and the DHS, had reportedly set up conference calls to discuss strategy with police chiefs in at least a dozen cities (San Francisco Bay Guardian, November 18). PERF Executive Director Chuck Wexler, who was also the chair of the DHS Secure Communities Task Force, admitted to coordinating calls on Democracy Now! on November 17 but denied that the purpose of the calls was to plan a simultaneous move against Occupy camps. The National Lawyers Guild, Truthout and other organizations have filed FOIA requests to try to find out what if any role federal agencies played in the crackdown while Naomi Wolf put together evidence of DHS involvement (“Naomi Wolf Versus Joshua Holland: Was There a Coordinated Federal Crackdown on Occupy Wall Street?” Alternet, December 1, 2011).
• FORMER POLICE CHIEF REGRETS HIS ROLE IN MILITARIZING REPRESSION
Over the decade, the line between civilian police and the army has been blurred by the transfer of surplus military gear to local police forces - including tanks, armored personnel carriers, Skywatch mobile observation towers, Blackhawk helicopters, M-16 rifles, grenade launchers, military robots, bulletproof helmets and night-vision goggles purchased with the help of DHS grants (AlterNet, November 22). Since the ‘1033 program’ under which the DOD gave leftover military gear to law enforcement was initiated in 1997 to give police tools to fight drugs and terrorism, “more than 17,000 agencies have taken in $2.6 billion worth of equipment for nearly free, paying only the cost of delivery” (Benjamin Carlson, “Battlefield Main Street,” The Daily.com, December 5). In 2011 alone, almost a half a billion dollars in military equipment was given away under the 1033 program and 2012 is expected to be a bumper year for police departments. Norman Stamper, the former police chief of Seattle who was in charge of the department during the paramilitary crackdown on WTO protesters in 1999, is now convinced that “my support for a militarized solution caused all hell to break loose” and was “a huge setback – for the protesters, my cops, the community.” He writes that “the paramilitary bureaucracy and the culture it engenders – a black-and-white world in which police unions serve above all to protect the brotherhood – is worse today than it was in the 1990s. Such agencies inevitably view protesters as the enemy….The counterproductive response to 9/11, in which the federal government began providing military equipment and training even to some of the smallest rural departments has fueled the militarization of police forces. Everyday policing is characterized by a SWAT mentality, every other 911 call a military mission. What emerges is a picture of a vital public-safety institution perpetually at war with its own people” (nationofchange.org, November 16).
• EXTENT OF MILITARIZATION DETAILED BY CENTER FOR INVESTIGATIVE REPORTING
Police forces around the country have been on a military gear “buying spree with the aid of more than $34 billion in federal government grants,” according to Andrew Becker and G.W. Schulz of the Center for Investigative Reporting, with no overall record being kept on how the funds were used (“Local police stockpile high tech, combat-ready gear,” americaswarwithin.org, December 21). The result is that “police departments around the US have transformed into small army-like forces.” As violent crime falls around the country, the number of SWAT teams with military armaments has proliferated, and now exceeds 1,650. The DHS awarded more than $2 billion in grants this year.
• FBI SAYS IT HAS NO DOCUMENTS RELATING TO OCCUPY WALL STREET
In response to a FOIA filed by Truthout to obtain documents held by the FBI relating to the Occupy movement, the FBI states that it can find no such records in its Central Records System. The denial was made in near record time – two weeks. Truthout then filed separate record requests with FBI field offices around the country. It has sent a similar FOIA request to the DHS (Jason Leopold, Truthout, November 22).
• WALL STREET SPIES ON OCCUPY WALL STREET
Goldman Sachs, Citigroup, the Federal Reserve and New York Stock Exchange reportedly have on site representatives in the $150 million high tech coordination center that is part of the ‘Lower Manhattan Security Initiative.’ They get to view the feeds fed into the center by the more than one thousand NYPD cameras as well as the 2,000 privately-owned cameras that keep lower Manhattan under surveillance. “In addition to video analytics which can, for example, track a person based on the color of their hat or jacket, insiders say the NYPD either has or is working on face recognition software which could track individuals based on facial features. The center is also equipped with live feeds from license plate readers” (Pam Martens, CounterPunch, October 20). Meanwhile, a Washington-based firm that lobbies for banks, Clark Lytle Geduldig and Cranford, has forwarded to the American Banking Association a $850,000 proposal to carry out opposition research into the background and political motives of protesters in order to “undermine their credibility in a profound way” (Reuters, November 19).
• HACKERS ATTACK SECURITY FIRM; TARGET SUPPORTERS OF NDAA
A branch of the ‘Anonymous’ hacking movement mined the confidential client list of Stratfor Global Intelligence, which included the Bank of America, Department of Defense and Apple Inc. It used stolen credit card information to transfer funds to such charities as Save the Children and the Red Cross and posted online part of the 200 gigabytes of data it claims to have in its possession (Boston Globe, December 26). Hactivists also announced they would make a public example of National Defense Authorization Act supporter Senator Robert Portman (R-OH), who received $272,853 from various lobbying groups pushing the NDAA. An Open Letter to Congress posted online declares “We’ve been watching you systematically destroy the rights of your own people, one law at a time….We are now here to undo your sordid life’s work in its entirety. No longer will your transgressions go unnoticed….The world will know of your violations against the rights of the citizens you were elected to represent” (rt.com, December 16).
• TEXAS SHERIFF PREPARES TO USE DRONES FOR LAW-ENFORCEMENT
The Sheriff of Montgomery County will soon be using an unmanned ShadowHawk drone purchased from Vanguard Defense Industries to hunt down criminals and find missing persons. Eventually it will be equipped to carry a Taser device or a bean bag gun. The ACLU of Texas has denounced the deployment as a violation of the Fourth Amendment. Early next year the FAA is expected to be releasing new rules for the use of small drones, making it likely that the devices will soon be widely taken up by police departments and other civilian agencies (LA Times, November 27). While the Association for Unmanned Vehicle Systems International says the commercial market has tremendous ‘untapped’ potential that will result in tens of thousands of new jobs, civil liberties groups warn of far-ranging consequences to privacy. On Bill of Rights Day (December 15) the ACLU issued a report, Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft (see www.aclu.org
• CONGRESSIONAL ‘DRONE CAUCUS’ PUSHING DRONE ORDERS
As military budgets stagnate, drone business is expected to more than double over the coming decade, thanks in part to the efforts of the Unmanned Systems Caucus, formed in 2009 and co-chaired by Howard McKeon (R-CA) and Henry Cuellar (D-TX). Caucus members “include a collection of border hawks, immigration hardliners, and leading congressional voices for the military contracting industry” (borderlinesblog, November 17). Over the past five years, drone purchases by the government have risen from $588 million to $1.3 billion, bringing huge profits to General Atomics, Lockheed Martin and Northrup Grumman, companies which contribute heavily to drone caucus members. The drone caucus lobbied the DHS to purchase three more military surveillance drones to patrol the border with Mexico. It will eventually deploy as many as 24 drones along the borders, up from their current seven (Latimes.com, October 27). The DHS is also intending to install military surveillance towers along the border with Mexico (NextGov.com, December 20).
• FBI PROFILING RELIGIOUS AND ETHNIC GROUPS
Heavily-redacted documents obtained by the ACLU reveal that the FBI is unconstitutionally targeting people based on their religion, race or national origin through a massive ethnic mapping project using Census data that the Bureau refers to as a ‘domain management program’ (Justin Elliot, Salon, October 22). The green light for racial profiling had been given in the revised 2008 FBI guidelines, which permit agents to engage in ‘assessments’ of individuals and groups without having any factual reason to do so. The documents indicate that communities have been ‘mapped’ according to crude racial stereotypes. According to the ACLU’s Michael German, a former FBI agent,
“This is racial and religious profiling on an industrial scale. Rather than just stopping an individual based on race, the FBI is identifying an entire community based on race and subjecting them to more intense scrutiny. There are many problems that exist with racial profiling: first that it’s unlawful, but also that it’s ineffective as a methodology because every dollar and every hour of an agent’s time that is spent investigating innocent people is completely wasted….If they’re alienating entire communities based on race and religion, that is going to be an entirely counter-productive methodology.”
• FBI GATHERS INTELLIGENCE UNDER GUISE OF COMMUNITY OUTREACH
Internal FBI documents obtained by the ACLU through FOIA litigation reveal that in California the FBI has been gathering Social Security numbers and other personal information – including political views – of people who attend community outreach meetings which are supposedly held to protect Muslims’ civil rights and enable the Bureau to be more responsive to community concerns. According to the ACLU, some of the heavily redacted documents violate the Privacy Act that bars the government from keeping information on protected First Amendment activity. The FBI says they can keep such information if it is necessary to their mission (Washington Post, December 1).
• FROM SURVEILLANCE TO ENTRAPMENT: CRITICS SAY FBI IS TARGETING THE VULNERABLE
Writing in the November 16 UK Guardian, Paul Harris documents a long list of ‘terrorism’ cases in which often mentally unstable and impoverished individuals are lured into bogus terror plots coordinated by paid FBI informants (who are frequently themselves criminals) or undercover agents (see In the Commonwealth, below). ‘Domain Management’ enables the FBI to understand the make up of Muslim communities and how to recruit informants to carry out its counterterrorism dragnet. “If suitable suspects are identified, FBI agents then run a sting, often creating a fake terror plot in which it helps supply weapons and targets. Then, dramatic arrests are made, press conferences held and lengthy convictions secured. But what is not clear is if many real, actual terrorists are involved.” Among the cases Harris describes are the Liberty City Seven, the Newburgh Four, the Fort Dix Five, and efforts to ensnare unwary Muslims mounted in southern California mosques by informant Craig Monteilh. According to Trevor Aaronson (Mother Jones, October 12), since 9/11 the FBI developed a roster of some 15,000 informants (there were only about 1,500 during the COINTELPRO period), and three times that many unofficial spies known in the Bureau as ‘hip pockets.’ Mother Jones and the Investigative Reporting Program at UC Berkeley investigated the prosecutions of 408 defendants in terrorism-related cases and found nearly half involved the use of informants, many of whom were paid as much as $100,000 for each assignment, and 158 were the result of sting operations, with the FBI operative instigating the terrorist action in 49 cases. All but three of the high-profile domestic terror plots since 9/11 (the Zazi subway plot case, the case of the Egyptian Hesham Hadayet who shot up the LA X ticket counter and the failed Times Square bombing) were FBI stings.
• WHAT CAN BE DONE ABOUT ‘UNLAWFUL SURVEILLANCE’?
The FBI is not alone in profiling entire communities. As we know from an AP investigation, the New York Police Department has built databases of information collected by plainclothes ‘rakers’ who spy on Muslims and ethnic communities generally. According to the October 7 Wall Street Journal, the NYPD has “maintained a list of 28 countries that, along with ‘American Black Muslim,’ it described as ‘ancestries of interest.’ Police also investigated hundreds of mosques and Muslim student groups and infiltrated dozens, often relying on undercover officers and informants. Even Muslim leaders who worked with the police and stood shoulder to shoulder with Mayor Michael Bloomberg were put under surveillance, documents show.” Over two dozen prominent Muslims announced a boycott of Mayor Bloomberg’s annual interfaith breakfast to protest the surveillance practices of the NYPD (Wall Street Journal, December 28). According to a December 23 report by AP’s Adam Goldman and Eileen Sullivan (“NYPD’s spying programs yielded only mixed results”), NYPD intelligence gathering may have had a few successes, but it failed to detect some plots and spent hundreds of millions of dollars to compile data on innocent people. But because of the broad new powers given law enforcement since 9/11 through the USA PATRIOT Act and other legislation and court decisions, the New York Civil Liberties Union says it is difficult to know how to challenge these surveillance practices in court (Chris Hawley, Associated Press, November 8). The high legal hurdles and prevailing fear about taking on the police have led New York activists to prioritize building a mass movement against the surveillance program. This, they say, could give some protection to targeted individuals who might then be emboldened to go to court even though they know the odds of winning are stacked against them. Peter Vallone, chair of the New York City Council’s Public Safety Committee, has stated that the Council doesn’t have the power to subpoena the NYPD for its intelligence records and cannot oversee its operations. He suggested that this was a task for the federal government, which has given the NYPD $1.6 billion since 9/11 (Wall Street Journal, October 7). There have been calls from the legal community for the Justice Department to investigate the NYPD’s spy program (Washington Post, October 19). In late December, 34 Members of Congress sent a letter to the Department of Justice and the House Judiciary Committee asking for more information about the CIA’s collaboration with the NYPD to monitor Muslims (Associated Press, December 21). New York Rep. Peter King has defended the NYPD, claiming that it thwarted “at least 14 attacks by Islamic terrorists” (Associated Press, December 23). On the same day, the CIA’s inspector general announced that the close partnership between the NYPD and CIA (which is not supposed to operate within the country) was not against the law.
• NYPD GOES IT ALONE IN ANOTHER TERRORIST PROSECUTION AS FBI SHUNS CASE
For the second time since May, the FBI has refused to get involved in a ‘terrorism’ case which the NYPD is prosecuting in state court. The FBI reportedly concluded that Jose Pimentel, the suspect accused of planning to bomb New York police stations and post offices, was mentally unstable and “didn’t have the predisposition or the ability to do anything on his own” (Associated Press, November 21). In addition, the Bureau claimed it was wary of the NYPD’s informant who “might have played too active a role in helping Mr. Pimentel” and smoked marijuana with him (New York Times, November 22). Pimentel, a naturalized American from the Dominican Republic, had been under surveillance for two years by the NYPD’s Intelligence Division, “but his efforts to make a pipe bomb did not develop until mid-October,” the criminal complaint states. The case has highlighted “tense relations between the Intelligence Division and the FBI.” Their rivalry is the subject of a Washington grand jury investigation.
• ‘UNDERWEAR BOMBER’ PLEADS GUILTY
The Detroit trial of Umar Farouk Abdulmutallab who was accused of attempting to bomb a Detroit-bound Northwest Airlines plane with explosives hidden in his underwear ended suddenly when he surprised prosecutors by agreeing to plead guilty to all charges against him (New York Times, October 13). Abdulmutallab, a Nigerian with alleged ties to al Qaeda, stated, “I attempted to use an explosive device…to save the lives of innocent Muslims, for US use of weapons of mass destruction on Muslim populations in Afghanistan, Iraq, Yemen and beyond.” As Republicans continued to condemn the Obama Administration for reading terrorists their Miranda rights, Administration officials said the result showed that the civilian court system works in terrorism cases. Abdulmutallab confessed when the plane landed in Detroit, before he was read his Miranda rights.
• ‘4 GEORGIA MEN ARRESTED IN TERROR PLOT’
What is unusual about this November 1 New York Times headline is the use of the word ‘terror’ to describe the planned activities of a militia group not involving Muslims. The four men wanted to make the toxin ricin and use it as well as guns and bombs to kill federal judges, IRS employees and ATF agents and in general spread terror “to save the country.” One of the men, 73-year-old Frederick Thomas, told an informant, “When it comes time to saving the Constitution, that means some people have got to die.”
• ‘HOMEGROWN TERRORISTS’ CONVICTED OF MATERIAL SUPPORT
On October 13, Omar Aly Hassan, Ziyad Yaghi (both US citizens) and Hysen Sherifi, a legal permanent US resident, were found guilty by a North Carolina jury of providing material support to terrorists in a case involving 750 hours of audio and video and three paid FBI informants. Similar to the Mehanna case in Boston (see In the Commonwealth, below), the evidence against the men turned on the discussion of violent jihad and travel abroad. The prosecutors stated that the men intended to attack the Quantico Marine base, but that was not specified in the audio recordings. A total of 8 men had been indicted in the case in 2009, several of whom testified for the government and will be sentenced later (LATimes.com, October 13).
• WHITE HOUSE LAUNCHES NEW PLAN TO PREVENT ‘VIOLENT EXTREMISM’
On December 8, the Obama Administration unveiled its “Strategic Implementation for Empowering Local Partners to Prevent Violent Extremism in the United States.” The plan was launched on the day that Rep. Peter King held his fourth “homegrown terrorism” hearing focused exclusively on Muslims. The idea is to “coordinate a whole-of-government approach to CVE” (Countering Violent Extremism) which will be taken up across government agencies, law enforcement, and private partnerships – with new DHS grants focusing on community involvement and fusing CVE into existing programs that address broader safety issues and violence prevention programs and research in 5 priority areas: 1. The role of Internet in ‘radicalization to violence’ 2. Single actor terrorism (‘lone wolves’); 3. Disengagement from violent extremism; 4. Non al-Qaeda related ‘radicalization to violence’; 5. Preoperational indicators. DHS along with the LAPD is developing a CVE curriculum for police and collaborating with the Bureau of Prisons. Ten years on from 9/11 the fear of ‘terrorism’ is being institutionalized at all levels of American society (http://www.whitehouse.gov/the-press-office/2011/12/08/strategic-implemen...
• FBI: ANIMAL RIGHTS ACTIVISTS CAN BE PROSECUTED AS TERRORISTS
Documents obtained by the Center for Constitutional Rights reveal that the FBI Joint Terrorism Task Force has kept files on animal rights’ activists who expose abuses on factory farms and recommended they be prosecuted as terrorists because they cause an “economic loss” to businesses (greenisthenewred.com, December 20).
• GROUPS DEMAND TO KNOW HOW PATRIOT ACT IS BEING USED
On October 26, the USA PATRIOT ACT turned 10 years old and the public is still in the dark about how its powers are being implemented. After Senators Ron Wyden and Mark Udall, both members of the Intelligence Committee, stated in a 2011 debate on the renewal of sunsetting PATRIOT Act provisions that the executive branch had “secretly interpreted” the PATRIOT Act and Americans would be stunned and angry to find out how it was being used, the ACLU and Electronic Freedom Foundation have filed suit against the Justice Department to get that information. In particular, they are demanding to know how Section 215 is being interpreted. It gives the government the power to order anyone to turn over any “tangible thing” related to an investigation (Wall Street Journal, October 26). That information is also being sought in a FOIA lawsuit filed by The New York Times and reporter Charlie Savage. Civil liberties groups are troubled by the use of other parts of the Act, including Section 213, the ‘sneak-and-peak’ provision which allows federal agents to secretly search a person’s home or office without notifying them that they have done so. According to the ACLU, less than 1 percent of ‘sneak-and-peak’ searches have taken place in terrorism investigations. The great majority are used in drug and immigration cases (Carrie Johnson, “As It Turns 10, Patriot Act Remains Controversial,” NPR, October 26).
• FBI DEMANDS FOR INTERNET RECORDS UP; USE OF NATIONAL SECURITY LETTERS DOWN
According to the October 27 Washington Post, Internet service providers are becoming increasingly reluctant to hand over details about their customers’ email and web browsing records in response to National Security Letters (NSLs) issued by the FBI without any judicial involvement. As a result, the FBI is increasingly forced to go to court to get warrants demanding this information. Four times as many requests for records were made in 2010 than in 2009. FBI complaints that the process has become too cumbersome has led Judiciary Committee chair Patrick Leahy to file a bill expanding the type of electronic information that can be obtained through NSLs.
• OIG OUTLINES CHALLENGES FACING FBI and DOJ
On November 8, the Office of the Inspector General of the Justice Department (under the leadership of Acting Director Cynthia Schnedar) issued its annual memo detailing the DOJ’s ‘top management and performance challenges.’ It states that the Department’s “management of such critical matters as information sharing and agency coordination can be substantially improved;” that it must undertake more effective cost cutting measures (an example of excess is the $121 million paid for 1,832 conferences in a two year period); that it must do more to find “the appropriate balance” between its counterterrorism function and protecting civil liberties and civil rights, citing in particular the FBI’s use of National Security Letters, Section 215 of the USA PATRIOT Act, the material witness warrant and intelligence gathering under the FISA Amendments Act of 2008. The memo raises questions about the effectiveness and cost overruns of various expensive IT programs, including the FBI’s Sentinel case management system and its development of “another difficult and costly IT project,” Next Generation Identification biometric information sharing system which will have a $1.2 billion price tag by the time it is fully functional in FY 2017. In terms of departmental integrity, the memo warns that the FBI must “continually ensure that its personnel are fully trained and are able to demonstrate that they take seriously the responsibility to act in accordance with the Constitution, laws, rules, policies, and procedures governing the FBI’s investigative activities” (www.mainjustice.com
• SHOULD THE FBI BE ABLE TO HIDE THE EXISTENCE OF FOIA DOCUMENTS? LIE UNDER OATH IN COURT?
The FBI did both things in a five-year-long FOIA suit brought by several Muslim groups in California that had sought documents relating to FBI surveillance and interrogation of their members. After two years during which the FBI produced only minimal records in response to their FOIA request, the groups went to court. That produced a few more heavily-redacted records, with the FBI claiming the redacted information was “outside the scope” of the FOIA request. When the California district court asked to see the full records in camera, it turned out that they were well within the scope of the request, and that there were in fact additional records which the FBI had claimed it did not have. The FBI also argued that “FOIA allows it to mislead the court where it believes revealing information would ‘compromise national security’” – an argument that the court did not buy (eff.org, November 21). On November 17, Judge Cormac Carney ordered the FBI to pay the legal fees of Muslim groups as a punishment for lying.
• PROPOSED CHANGE TO FOIA RULES WOULD SANCTION LYING
The Justice Department is now revising the rules regarding FOIA practice, which currently permit the government to withhold information while telling the requester that it can neither confirm nor deny the existence of the documents – the so-called Glomar denial. One proposal under consideration would instruct government agencies “to respond to the request as if the excluded records did not exist” (ProPublica, October 24). Comment period on the revision ended on October 19.
• OBAMA FINALLY FILLS VACANCIES ON PRIVACY OVERSIGHT BOARD
The Civil Liberties and Privacy Oversight Board, which has been in limbo since 2007, finally has five nominees. If confirmed, attorneys David Medine, Rachel Brand and former judge Patricia Wald will join Jim Dempsey and Elisebeth Collins Cook as Board members.
• COMPANY OFFERS ‘TOTAL INFORMATION AWARENESS’ ANALYSIS
Palantir, a company with roots in PayPal, is reportedly providing clients - including the Department of Defense, CIA, FBI, NYPD and LAPD - with data mining software to conduct ‘link-and-pattern’ analysis that enables intelligence services to locate ‘suspects,’ military Special Operations Forces to plan assaults, and banks to uncover fraud. “The company’s software pulls off one of the great computer science feats of the era: It combs through all available databases, identifying related pieces of information, and puts everything together in one place.” The company is planning to move into the fields of health care, retail, insurance and biotech (“Palantir, the War on Terror’s Secret Weapon: A Silicon Valley startup that collates threats has quietly become indispensable to the US intelligence community,” Bloomberg Businessweek, November 22).
• ‘THE SURVEILLANCE CATALOG’ DOCUMENTS $5 BILLION MARKET THAT OBLITERATES PRIVACY
The November 21 Wall Street Journal introduced readers to an online database it calls ‘The Surveillance Catalogue’ documenting the spyware being produced by companies world wide in what has become since 9/11 a kind of surveillance arms race to dominate “a new global market for off-the-shelf surveillance technology.” Among the gadgets it describes are hacking hardware and software that can be unleashed against hundreds of thousands of people simultaneously; software that monitors and can alter online communications; devices with the ability to gather and store massive amounts of information from social networking and other sites; technology that can capture tens of thousands of simultaneous conversations from fixed or cellular locations. Customers for the spy devices include law enforcement agencies and “dictatorships and oppressive regimes.”
• INTELLIGENCE AGENCY WANTS TO BUILD ‘DATA EYE IN THE SKY’
The Office of the Director of National Intelligence has a little-known unit called the Intelligence Advanced Research Projects Activity that is aiming to build an automated data collection system that will scan the Internet without human intervention. Starting by looking at ‘big data’ in 21 Latin American countries, the project with its Total Information Awareness overtones will seek patterns predicting future instability. A similar project based at the Pentagon’s DARPA is focused on identifying insurgent social networks in Afghanistan (New York Times, October 11).
• DARPA SUPPORTS RESEARCH TO DETECT ‘INSIDER THREATS’
The Army’s Defense Advanced Research Project Agency (DARPA) is back on the Total Information Awareness trail, this time with funding for researchers, including those from the University of Massachusetts, to develop an Anomaly Detection at Multiple Scales (ADAMS) system. It will use a suite of algorithms to analyze a huge amount of email, text messages, computer logins, instant messages, file transfers and other data to detect unusual activity or “anomalous behaviors” that should be further investigated (Homeland Security News Wire, November 11).
• CIA COMBS OVERSEAS TWEETS, FACEBOOK ENTRIES, BLOGS, TV SHOWS
According to the November 4 Associated Press, an anonymous industrial park houses the CIA’s Open Source Center where CIA analysts who refer to themselves as ‘ninja librarians’ look at as many as 5 million tweets a day, peruse the Internet including chat rooms, and monitor the overseas press, radio and television programs to get a sense of what the world is thinking and where trouble may be brewing. The AP was told “there is no effort to collect on Americans.”
• ARMY’S ‘DIGITAL ENHANCEMENT TEAM’ SCANS AND CONTRIBUTES TO SOCIAL MEDIA
Based in what they call ‘Tampa-stan, Florida,’ a team of native speakers of Arabic, Dari, Persian, Pashto, Urdu and Russian search the Internet for postings “containing lies, misinformation or just misperception” about US military operations and policy and add their own input (New York Times, November 18). The State Department has its own ‘Digital Outreach Team’ made up of people adept in foreign languages who engage extremists in online conversations. According to the New York Times, both teams are supposed to be transparent about representing US government views.
• DHS CREATING ITS OWN INTERNAL FUSION CENTER
The Department of Homeland Security is apparently not satisfied with the intelligence sharing arrangements put in place among a range of federal, state and local law enforcement agencies. It now wants its internal agencies, among them the TSA, Secret Service and ICE, to be able to access its own ‘Federated Information Sharing System’ and has awarded Raytheon a contract for this purpose (www.forbes.com
, November 29).
• DHS TESTING ‘PRE-CRIME’ PROGRAM ON VOLUNTEERS
According to information obtained by the Electronic Privacy Information Center (EPIC) and confirmed by CNET, the DHS’ Future Attribute Screening Technology (FAST) is being tried out on DHS employees with their permission. The FAST test uses sensors to “non-intrusively collect video images, audio recordings, and psychophysiological measurements from the employees,” with the aim of eventually being able to use algorithms to “detect cues indicative of mal-intent,” possibly as part of airport screening (CNET, October 7). Body movements, voice pitch changes, eye flicks and blink rates, body heat changes, breathing patterns as well as gender, age and occupation would all go into the ‘pre-crime’ calculus. Draper Laboratory in Cambridge MA has a contract to build elements of the system but the amount of the contract is blacked out in the EPIC documents.
• ‘SECURITY THEATER HITS THE ROAD’: VIPR EXPANDS SEARCHES
The TSA’s Visible Intermodal Prevention and Response (VIPR) is now being deployed at five weigh stations on Tennessee highways and two of the state’s bus stations. “Agents are recruiting truck drivers…into the First Observer Highway Security Program to say something if they see something” (Steven Taylor, www.poliblogger.com
, October 27).
• MUSLIM WOMAN SUES AIRLINES FOR BEING TAKEN OFF FLIGHT
Irim Abbasi, a US citizen who was wearing a hijab while seated on a Southwest Airlines plane preparing to take off from San Diego last March, was removed from the plane for saying “I have to go” on her cellphone. An attendant thought she said “it’s a go.” A graduate student at San Jose State, she is now suing the airline for discrimination (Los Angeles Times, October 5).
• FOX NEWS CONTRIBUTOR REVEALS ANTI-MUSLIM FANTASY
Radio host Dennis Miller told Fox’s Bill O’Reilly that “I just flew five hours from LA to New York next to [an] Islamic kid who was in his 30s. I couldn’t even watch the movie. I just fantasized [about] hitting him in the head with an elbow if he went up” (Daily Caller, November 16).
• WOMAN ARRESTED FOR READING THE BILL OF RIGHTS AT THE AIRPORT
T.P. Alexander, a retired Lieutenant Colonel in the US Air Force, read the Fourth Amendment when faced by the all-body scanning machine at Albuquerque International airport. She then offered to take the pat down. But instead she was removed from the line and threatened with arrest for “disrupting the screening process.” She began to read the First Amendment. At this point two police officers roughly removed her from the security area and dragged her to a holding cell. She was charged with disorderly conduct. Her detailed description of her interchange with the TSA agents and attempt to explain the importance of the Constitution (“’You are giving up your Constitutional rights for something that only has a 1 in 25 million chance of happening. Fifty times less than death by lightening or being struck by an asteroid” I call to the herd of passengers. They stare at me dazed”) was posted on Daily Kos on October 20.
• 85-YEAR-OLD WOMAN STRIP SEARCHED AT JFK
When Lenore Zimmerman, an elderly woman in a wheel chair, asked to be patted down rather than being put through a scanner that she feared might harm her defibrillator, she was made to go to a private room and remove her clothing. As a result, she missed her flight and had to wait a further 2 and one-half hours to get from New York’s JFK to Florida (Boston.com, December 3).
• TSA TO CONSIDER THREE TIER SCREENING SYSTEM
According to the December 21 New York Times, future screening at airports may involve three separate security lines: one for ‘known travelers’ who belong to a prescreening program; a second for ‘normal’ people; and a third ‘enhanced’ screening line for the ‘closely watched.’ The TSA might rely on ‘behavioral profiling’ to select people to go into the ‘closely watched’ line. Three thousand TSA agents have been trained in behavioral profiling techniques, and between 3 and 9 percent of passengers are now selected for enhanced screening based on behavioral analysis (see In the Commonwealth, below).
• LETTING IT ALL HANG OUT: A STRATEGY TO DEFEAT THE SPY SYSTEM
Back in 2002, Hasan Elahi, an American citizen who lived in Tampa, was questioned at length when he entered the country at Detroit airport. The questions focused on a storage unit he rented in Tampa where he held boxes of winter clothes and furniture. He answered the questions and thought that was the end of it. But a few weeks later, he was interviewed by an FBI agent in Tampa about the Detroit interview, and whether he had ever met anyone from Al Qaeda, Islamic Jihad, Hamas or Hezbollah. The questioning continued for six months and involved polygraphs. As he wrote in an October 29 New York Times op ed (“You Want to Track Me? Here You Go, FBI”), he then decided “I can watch myself better than you can, and I can get a level of detail that you will never have” and began sending the FBI extensive emails and photos and compiled a website about everything he was doing, the food he ate, the hotels where he stayed, the toilets he used…”There are 46,000 images on my site. I trust that the FBI has seen all of them. Agents know where I’ve bought my duck-flavored paste, or kimchi, laundry detergent and chitlins; because I told them everything…By putting everything about me out there, I am simultaneously telling everything and nothing about my life. Despite the barrage of information about me that is publicly available, I live a surprisingly private and anonymous life. In an era in which everything is archived and tracked, the best way to maintain privacy may be to give it up…if 300 million people started sending private information to federal agents, the government would need to hire as many as another 300 million people, possibly more, to keep up with the information and we’d have to redesign our entire intelligence system.”
• EU BARS X-RAY BODY SCANNERS WHILE TSA FACES LAWSUITS
Full-body scanners that use X-rays have been banned from Europe’s airports. At least 250 such scanners produced by Rapiscan (former DHS head Michael Chertoff’s company) are in use in US airports (including Logan). “As the TSA observes its 10th anniversary, it … faces lawsuits over the legality of its passenger searches, growing scrutiny of the cost-effectiveness of its screening measures, questions about security lapses and complaints that some agents continue to make travelers feel humiliated and harassed” (New York Times, November 21). The Electronic Privacy Information Center has brought a lawsuit against DHS trying to get the release of documents containing radiation test results.
• EUROPE INSISTS ON PRIVACY PROTECTIONS IN NEW FLIGHT AGREEMENT
In mid November, the European Commission (EC) signed off on a new agreement with the US governing the sharing of passenger information. Once it is endorsed by the individual countries of the EU and the European Parliament, it will replace the current agreement which the EC says violated the privacy rights of European travelers. Under the new agreement, the 19 pieces of data that airlines provide on passengers would go directly to the DHS, where personal identifiers would be masked after six months. The US would only be able to use the information for those crimes punishable by three years in prison. It could store data for 10 years for perpetrators of serious crimes and for 15 years in the case of terrorist suspects (USA Today, November 28). The new agreement gives passengers the right to have access to their records to correct information and also gives them judicial redress.
• EUROPE WANTS WEB COMPANIES TO ABIDE BY ITS PRIVACY RULES
European Justice Commissioner Viviane Reding plans to insert language Europe’s Data Protection Directive forcing companies like Google and Facebook to abide by its rules on data collection or face prosecution and fines (New York Times, November 10).
• CONFIDENTIAL DATA OF MEDICAL PATIENTS POSTED ONLINE
A spreadsheet of medical information relating to 20,000 Stanford Hospital emergency room patients was posted online by a billing contractor and remained there for nearly a year. “Breaches of private medical data have become distressingly commonplace, with two substantial ones disclosed in the last week alone.” (New York Times, October 6).
Indefinite Detention, Military Commissions, Torture, Extrajudicial Killing
• MILITARY HOLDS BRADLEY MANNING PRE-TRIAL HEARING
Beginning on December 16 at Fort Meade, Maryland, the Army conducted an evidentiary Article 32 hearing in the case involving 24-year-old Pfc. Bradley Manning, who faces a total of 22 charges including violating the Espionage Act and aiding the enemy for passing military documents and diplomatic cables to WikiLeaks. The military says it is not seeking the death penalty (‘aiding the enemy’ is a capital offense) but he could face life in prison. He has already been imprisoned for 19 months, much of it spent in harsh conditions. In a pre-trial submission, his civilian attorney, David Coombs, asked for ‘damage assessments’ filed by the Pentagon and State Department that he said demonstrates their view that the leaked information was “already commonly known due to previous public disclosures” and also videos showing the conditions to which Pfc. Manning was subjected in Quantico, Virginia (Washington Post, November 28). Attorney Coombs made public his protest that most of the witnesses he intended to call had been declined by the military (UK Guardian, December 16). During the hearing the defense argued that Manning was a troubled young man who should never have had access to classified material, that workplace security was notoriously lax and that the leaked documents did no harm to national security. The prosecution introduced e-mails that it said demonstrated that Manning had collaborated with Julian Assange to steal the documents (Washington Post, December 22). Whistleblower Daniel Ellsberg, who attended the hearing and was at one stage removed from the room for trying to speak to the defendant, believes that the prosecution is intent on forcing Manning to implicate Julian Assange (Deutsche Press-Agentur, December 23).
• Al-QAEDA LEADERSHIP SHRINKS
According to Greg Miller writing in the November 22 Washington Post, it appears to have been reduced to two figures, Ayman al-Zawahiri and Abu Yahya al-Libi, and that senior US officials now regard the organization as “operationally ineffective.” Miller states that “the group’s weakened condition has raised questions for the CIA about its deployment of personnel and resources. The agency’s station in Pakistan’s capital remains one of its largest in the world.”
• INVESTIGATION UNDERWAY INTO NEWSWEEK DRONE ARTICLE
The Justice Department is investigating whether a former CIA acting general counsel – John Rizzo – released classified information when he gave Newsweek information about how CIA officials chose suspects for their drone strikes and who signs off on carrying out their death sentences (National Journal, November 10). The February 13, 2011 Newsweek article, “Inside the Killing Machine,” revealed that lawyers in the CIA’s Counterterrorism Center compiled dossiers making the case that certain terrorist suspects “were ready for prime time” and requesting approval “for targeting for lethal operation.” Rizzo would then sign the document and add the word “concurred,” while the president himself never signed off on what was – in Rizzo’s words – “basically a hit list.” Under President Obama there have been four times the number of drone strikes as there were under Bush at their peak – 117 last year. Most of the strikes have taken place inside Pakistan (at least 60 this year) but the Obama Administration has also used them in Yemen, Somalia and Libya.
• DRONE ASSASSINATION OF AMERICAN GETS THUMBS UP FROM MAINSTREAM PRESS
After the Obama Administration on September 30 used a drone-fired missile to execute American-born Anwar al-Awlaki in Yemen, the mainstream press generally applauded. “A rare act, killing of al-Awlaki accords with sound legal rules,” was the headline of The Boston Globe’s October 1 editorial. Sounding a note that was echoed by the other major newspapers, the Globe took the government at its word that he was an al-Qaeda operative and therefore “subject to military force under the law passed after Sept. 11, 2001.” Not questioning the fact that al-Awlaki had never been charged or tried, the editorial continued: “There would be better reason to question the killing of a US citizen if there was any evidence that the government was doing so in a repeated or consistent fashion. Instead, the US killed a surpassingly dangerous terrorist who happened to be an American by birth.” The blogosphere was not so ready to applaud. Glenn Greenwald, for one, excoriated journalists “who are running around definitely asserting that Awlaki had an ‘operational role’ in Terrorist plots and had ‘taken up arms’ against the US even though they have no idea whether that’s actually true….What’s crucial to keep in mind is that nobody can see this ‘evidence’ which these anonymous government officials are claiming exists. It’s in their exclusive possession” (Salon, October 6). Greenwald reported that two weeks after the government killed al-Awlaki with a drone, it did the same thing to Abdulrahman al-Awlaki, his 16-year-old son (Salon, October 20).
• SECRET MEMO LAYS OUT LEGAL RATIONAL FOR KILLING AL-AWLAKI
So how does the Obama Administration justify setting aside the Bill of Rights, an executive order opposing assassinations and a federal law against murder? According to the October 9 New York Times, a 50-page secret legal memo written by two lawyers in the Office of Legal Counsel (David Barron and Martin Lederman) following deliberations involving top Administration lawyers concluded that al-Awlaki could be legally killed because of the conclusion of intelligence agencies that he posed a significant threat to Americans, was operationally involved with al Qaeda and it was not feasible to attempt to capture him. The fact that he was in Yemen, far from battleground in Afghanistan, was considered immaterial.
• ‘WHO CAN’T AMERICA KILL?’
Arthur S. Brisbane, the New York Times public editor, responded to his own question in these terms: “The answer, as a matter of law, is simply unknown right now. That is an extraordinary thing, arising out of the new tactics and technology in use in the American offensive against terrorists and their networks…There remains no clear accounting of the legal principles or the process the executive branch is applying to support secret killings by the CIA, which carries out strikes far from the battlefield – in this case against a native-born American. The CIA will not even acknowledge that the program exists. The administration invokes secrecy to shield the details while simultaneously deploying a campaign of leaks to build public support….This scenario can only get worse as the United States, moving to pull conventional military forces out of Afghanistan, comes to rely ever more on covert operations like the CIA drone strikes” (“The Secrets of Government Killing,” New York Times, October 9). Brisbane goes on to describe the vain efforts of the ACLU to force the government to disclose its legal rationale for the targeted killings and provide information about “collateral damage.” He concludes: “The public has a right to know, and assess, the legal rationale for these extraordinary and highly visible state killings. The public should have documented details concerning civilian casualties of the drone strikes. And The Times should do all it can to force this information out in the open.”
• WHEN WILL THE DRONE STRIKES STOP AND THE WAR BE OVER?
As the number of people killed in drone strikes during 2011 reached 532 (according to the count kept by Xinhua News Service) with an estimated 1,350 to 2,250 deaths in Pakistan alone over the last three years (Washington Post, December 20), Paul Miller, the National Security Council director for Afghanistan from 2007-2009, asked this question: “When, and under what conditions, will the US government stop using drones to bomb suspected terrorists around the world?” (Washington Post, November 17). In his view, “the US government simply cannot arrogate the right to wage an endless, global war against anyone it deems a threat to national security…the president must explain the precise conditions we are working toward that will constitute the end of the war against al-Qaeda and, upon meeting them, will halt the government’s efforts to kill people, including US citizens. The president’s authority to kill should be exceptional, not routine. Simply put, when is this war over?...I don’t know the exact answer. But I also don’t get the sense that the Obama administration is even asking the question, and that is most worrisome of all.” Two weeks later, CIA counsel Stephen Porter and Pentagon counsel Jeh Johnson told a national security conference that US citizens become legitimate military targets when they are at war with the US (Associated Press, December 1). Miller’s more far-ranging question remains unaddressed.
• VIRUS INFECTS US MILITARY DRONES; DRONES ARMS RACE ON HORIZON
The October 7 issue of Wired revealed that a virus of an unknown origin had been tracking the keystrokes involved in ‘flying’ pilotless drones. According to the October 9 UK Guardian, this kind of intrusion was to be expected in a military that depended so much on private contractors and in which an estimated 30 percent of the intelligence budget was outsourced. The October 9th New York Times featured a piece by Scott Shane headlined “Coming Soon: The Drone Arms Race” in which he predicted that soon China could be using killer drones to hunt minority Uighur Muslims it accuses of plotting terrorism and India will be using drones against terrorist suspects in Kashmir. “To date only the United States, Israel (against Hezbollah in Lebanon and Hamas in Gaza) and Britain (in Afghanistan) are known to have used drones for strikes. But American defense analysts count more than 50 countries that have built or bought unmanned aerial vehicles…and the number is rising every month.”
• IRAN DISPLAYS CAPTURED US SPY DRONE
Iran claims that it launched an electronic attack on the navigation system of a RQ-170 spy drone, causing it to land on December 4 in the northern part of the country. Iranian officials put the plane on display and responded incredulously to demands of the Obama Administration that they return the drone to the US (New York Times, December 15). Defense Secretary Leon Panetta says that drone flights over Iran will continue.
• TORTURE EMBRACED BY REPUBLICANS WHILE CANADA SHIELDS BUSH AND BARS BEGG
We know from the debates that among the Republican presidential candidates, only John Huntsman and Ron Paul are against the use of torture. We also know that at least one signatory to the Convention Against Torture, Canada, will not readily take steps to fulfill its treaty obligations and hold torturers accountable. In October, the attorney general of British Columbia threw out a case against George Bush for authorizing and overseeing the use of torture brought on behalf of four men who had been tortured while in US custody either at US bases in Afghanistan or in Guantanamo. The Center for Constitutional Rights and Canadian Centre for International Justice timed the case to coincide with Bush’s planned visit to British Columbia (IPS, October 27). Around the same time the Canadian government barred the entry of a former Guantanamo prisoner, Moazzam Begg, who was on an international speaking tour.
• US FUNDS ‘SYSTEMIC TORTURE’ IN AFGHANISTAN
The UN High Commissioner for Human Rights verified the “systemic torture” used by Afghan security forces trained and funded by the US. In theory, this should trigger the ‘Leahy Law’ that bars the US from giving funding, weapons or training to any foreign security forces that commit gross human rights violations. Such funding could continue if the Secretary of State issues a finding that “all necessary corrective steps have been taken” to induce the Afghan government to remedy the situation (Truthout, October 17).
• DETAILS OF CIA PRISONS TRICKLE OUT
One of those ‘black sites’ was in a busy residential neighborhood of Bucharest, Romania. A joint investigation by The Associated Press and German Public television has discovered the building (opened for use by the CIA in 2003) and much of what went on there, including torture (Matt Apuzzo, “Inside Romania’s Secret CIA Prison,” Associated Press, December 8). The site in Romania and a similar prison in Lithuania were closed in 2006, with many detainees being sent to Bagram and then Guantanamo.
• BRITISH COURT RULES PRISONER IS HELD ILLEGALLY BY US FORCES
The English Court of Appeal has issued a writ of habeas corpus requiring that Yunus Rahmatullah, a detainee captured by British troops in Iraq and handed over to Americans who moved him to Bagram prison in Afghanistan for seven years, be surrendered by the US to British authorities. Rahmatullah continues to be held without charges of any sort even after a US military review concluded that his detention was unnecessary. Article 49 of the Fourth Geneva Convention forbids prisoners from being transferred from occupied territory. As Scott Horton writes of the Iraq conflict in Harpers (December 19), the English Court of Appeal is upholding international law since “the end of the war has plain consequences under international humanitarian law – specifically, rules concerning the status of prisoners and their presumptive right to be set free unless they are guilty of criminal wrongdoing or present some clear, continuing threat. In America, by contrast, Republicans in Congress seem determined to muddy the legal waters with rhetoric, arguing that the country is at war with the tactic of terrorism or with some undefined group of shadowy enemies. As American military and intelligence leaders mark a triumph over Al Qaeda, the party of perpetual war recently proclaimed that the homeland was a battlefield and pushed for a militarization of the criminal-justice process involving terrorism cases.”
• DETAINEES IN LIMBO IN GUANTANAMO, POSSIBLY FOR LIFE
Thirty-two detainees who were supposed to be transferred out of Guantanamo after being ordered released by the courts or cleared for transfer by the Administration are stranded in the prison camp following Congressional restrictions attached to the 2011 National Defense Authorization Act, including an impossible-to-satisfy provision requiring the Secretary of Defense to certify that he will “ensure” that once freed, a detainee “cannot engage or re-engage in any terrorist activity” (Washington Post, November 8). The names of those cleared for transfer have not been released by the Administration although the detainees themselves and in some cases their families have been informed. Four British Members of Parliament are among those demanding the release of Shaker Aamer, a British resident, who was cleared for release two years ago and has never been permitted to return to the UK (Truthout, December 1). A further 48 detainees are likely to be indefinitely detained since they are presumed guilty but cannot be brought to trial for lack of evidence or the fact that the evidence against them has been tainted by torture. The majority of Kuwaiti MPs and thousands of other Kuwaitis have signed a petition to the US government asking it to put the remaining two Kuwaiti detainees on trial or immediately release them (CNN, October 17).
• HABEAS CORPUS RIGHTS REVERSED BY APPEALS COURT
After the US Supreme Court in 2008 found in the Boumediene case that non citizens at Guantanamo did have the right to habeas corpus, the Court of Appeals for the District Circuit has disregarded that ruling and thrown out habeas petitions that had been granted by the district court. A New York Times editorial (November 20) urged the Supreme Court to step in to save habeas corpus: “The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half….The appeals court has gone off on the wrong track. The justices need to reaffirm the right of prisoners in Guantanamo to seek justice in federal court and to explain firmly and clearly what that entails.” The editorial urges the Supreme Court to take the case of detainee Adnan Farhan Abdul Latif when his appeal reaches the justices around January 11, 2012 – which happens to be the 10th anniversary of Guantanamo. In rejecting the trial judge’s decision that Latif be released, the Appeals Court produced an opinion that was almost entirely redacted. In dissent, Judge David Tatel wrote that “It is hard to see what is left of the Supreme Court’s command in Boumediene” (New York Times, December 13).
• JUDGE THROWS OUT TORTURE LAWSUIT
Federal Judge Richard Leon dismissed a lawsuit brought by former Guantanamo detainee Abdul Rahim Abdul Razak al Janko seeking damages for alleged torture and other mistreatment. Al Janko reportedly tried to commit suicide 17 times while at the prison (Chicago Tribune, December 22).
• MILITARY COMMISSIONS RESUME WITH CASE OF ALLEGED COLE BOMBER TORTURED BY CIA
On November 9, Abd al-Rahim al-Nashiri was arraigned before a military commission in Guantanamo. He is facing the death penalty for being the alleged mastermind of the October 2000 raft bomb attack on the USS Cole that killed 17 Americans. The military judge, James L. Pohl, denied a defense request to make the prosecutors divulge whether al-Nashiri would still be detained if he is acquitted. The judge did agree with defense attorney Richard Kammen that attorney-client documents should not be read by prison officials when they searched his client’s cell. However, prison commander Rear Admiral David Woods subsequently issued new rules permitting the review of detainee legal mail (Wall Street Journal, December 28). The case is seen as a forerunner of the prosecution of Khalid Sheikh Mohammed because the government has admitted that both were waterboarded by the CIA. The proceedings were transmitted by a live feed to the Fort Meade army base in Maryland (New York Times, November 10).
• FORMER GUANTANAMO PROSECUTOR SHOCKED BY OBAMA’S ABOUT FACE
One of those baffled and disgusted by the Obama Administration’s resumption of military commissions is the former chief Guantanamo prosecutor, Colonel Morris Davis, who said it “seems like a third Bush term when it comes to national security” (Jason Leopold, Truthout, November 13). Col. Davis had resigned in October 2007 to protest the deep flaws in the military commission process and was subsequently fired from the Congressional Research Service for criticizing Obama for refusing to hold anyone in the Bush Administration accountable for torture. In his view, Obama established a “terrible precedent” by stating that he was only interested in looking forward, a decision that has “undermined whatever moral authority we had left.” He says he is “hugely disappointed” with Obama’s about face on his campaign promise to reject military commissions and was disgusted by the Pentagon’s new $500,000 military commission web site which is framed by the words ‘Fairness – Transparency – Justice’ (see http://www.mc.mil/
• AMERICAN CITIZENS JAILED UNDER ‘SECURE COMMUNITIES’
Americans have been detained by police under the ICE ‘Secure Communities’ program, either because of flaws in the ICE database or because police did not believe arrestees when they said they were US citizens (“Immigration Crackdown Snares Innocent Citizens,” New York Times, December 14). One American with no prior criminal record was arrested on a shoplifting charge when he apparently inadvertently dropped a bottle of cologne in a bag of purchased items. Held in a jail cell in Las Angeles on an immigration order for four days after showing his driver’s license and other legal identification, Antonio Montejano said, “I told every officer I was in front of that I’m an American citizen, and they didn’t believe me.” He continued to be held on an immigration detainer even after a criminal court judge canceled his fine and ordered the police to release him. He was finally freed after ACLU lawyers sent ICE his US passport and birth certificate. Similar cases involving American citizens victimized by ICE database mistakes or because they were dual citizens and entered the US using a passport from another country have been reported in various states around the country.
• S-COMM DATA ANALYZED IN REPORT
Secure Communities by the Numbers, a report from the Chief Justice Earl Warren Institute on Law and Social Policy at the Berkeley Law School, concludes from an examination of a random national sampling of data relating to ‘Secure Communities’ that Latinos comprise 93% of the individuals arrested through S-Comm although they are only 77% of the undocumented population. Some 39% of arrested individuals have US citizen spouses or children and an estimated 3,600 US citizens have been arrested by ICE through the program. “Overall, the findings point to a system in which individuals are pushed through rapidly, without appropriate checks or opportunities to challenge their detention and/or deportation.” The data used in the report was obtained through a FOIA lawsuit brought by the National Day Labor Organizing Network, the Center for Constitutional Rights and the Cardozo Immigration Justice Clinic (to read the report: http://uncoverthetruth.org/index.php?s=secure+communities+by+the+numbers
• SANTA CLARA COUNTY NARROWS PARTICIPATION IN S-COMM
In October, the Board of Supervisors of Santa Clara County, California voted to bar ICE agents from being given access to detained individuals and to prevent the County from expending time or resources responding to ICE enquiries unless the costs of doing so were reimbursed in advance. Under the County’s new policy, officials would only honor an ICE detainer that was issued after an individual was convicted of a crime (New America Media, October 18). Two months after the new policy was announced, ICE agents raided South Bay and arrested 63 undocumented residents who were newly released from jail. It is now seeking to deport them (MercuryNews.com, December 20).
• AFTER 3-YEAR INVESTIGATION DOJ ACCUSES SHERIFF ARPAIO OF RACIAL PROFILING
It is not clear why it took so long for the Department of Justice’s Civil Rights Division to conclude that Maricopa County, Arizona Sheriff Joe Arpaio had practiced racial profiling and pretextual arrests in targeting Latinos for arrest and deportation. On December 15, the day that the DOJ made public its findings that the sheriff had indulged in “unconstitutional policing” at every level and created a climate of bias against Latinos, the DHS suspended his participation in the 287(g) and Secure Communities programs. A December 17 New York Times editorial accused the DHS of long being “an ally and enabler of Mr. Arpaio” and wondered why it took Janet Napolitano so long to sever DHS ties with him. The DOJ found that the sheriff’s department used excessive force against Latinos, abused Latino inmates, and had failed to investigate over 400 reported sex crimes.
• IMMIGRANTS TAKE HUGE RISKS TO BE RE-UNITED WITH US FAMILIES
The October 3 New York Times featured extensive coverage of the hurdles faced by Mexican Immigrants who “repeatedly brave risks” to be re-united with spouses and children left behind after deportation proceedings (Damien Cave, “Crossing Over, and Over”). Over 1.1 million people have been deported under the Obama Administration and many have had deeply rooted lives in the United States. “For the Obama administration, these repeat offenders have become a high priority. Prosecutions for illegal re-entry have jumped by more than two-thirds since 2008. Officials say it is now the most prosecuted federal felony.”
• PROSECUTORIAL DISCRETION USED ERRATICALLY UNDER S-COMM
On June 17, ICE head John Morton promised that prosecutorial discretion would be exercised under ‘Secure Communities’ to put on hold the deportation of low-level offenders or immigrants with no criminal records and extensive roots in the US. According to a report released by the American Immigration Lawyers Association and the American Immigration Council, there is little sign of such discretion being exercised in a systematic way (New York Times, November 13). ICE agents have largely resisted the policy and are in need of training on the new guidelines, the report finds. After the report was made public, the Department of Homeland Security announced it was beginning a review of all deportation cases and initiating a nationwide training program aimed at speeding the deportation of convicted criminals and halting that of immigrants who have no criminal records. Immigrants who are allowed to remain in the US will “be in legal limbo, without any positive immigration status” (New York Times, November 17).
• NEW YORK STOPS TRANSFER TO ICE OF IMMIGRANTS IN RIKERS WITHOUT CRIMINAL CONVICTIONS
On November 22, the New York City Council passed a law endorsed by Mayor Bloomberg to prevent Rikers jail from honoring ICE detainers placed on inmates who would have no criminal convictions upon their release. Detainers are request forms asking for inmates to be held for ICE to take them into custody. In 2009 some 3,506 were issued on Rikers inmates, only 22 percent of which applied to people with felony records. Over half involved inmates with no prior convictions (New York Times, October 13). DHS documents confirm that “local law enforcement are not mandated to honor a detainer” and that “there is no penalty if they do not comply” (Huffington Post, October 31).
• PART OF ALABAMA LAW BLOCKED BY APPEALS COURT
The 11th Circuit Court of Appeals intervened to block temporarily public schools in Alabama from checking the immigration status of their students and to prevent police from bringing charges against immigrants who cannot prove their citizenship. Other portions of the draconian law remained in effect, and a final ruling is some months away (Washington Post, October 14). Alabama’s HB 56 is seen as the harshest of the six state anti-immigration laws passed recently. During the three weeks when the entire bill was operational large numbers of Latino workers and students vanished from their jobs and schools. For many African Americans, the discriminatory law signaled a human rights and civil rights crisis that represented “a giant step backwards” (Huffington Post, October 27). A November 28 New York Times editorial stated that “Alabama is waking up to the cost of its harsh immigration law,” as farmers watch their crops rot, local governments see their taxes disappear and poor towns suffer when the small businesses that are an “economic lifeline” shut down. The arrest of a visiting Mercedes-Benz manager who was taken to jail as a potential illegal immigrant for driving without his license seems to have shaken the business community. “For all the talk about clearing the way for unemployed Americans, there is no evidence that Alabamians in any significant numbers are rushing to fill the gap left by missing farm laborers and other low-wage immigrant workers….There is growing talk of revising or repealing the legislation. The sooner Alabama does so – and other states learn – the better.” In addition to its suit against Alabama, the federal government has sued Arizona, Utah and South Carolina and is considering challenges to the laws in Georgia and Indiana. Some 16 states rejected immigration bills that were similar to those passed in Arizona and Alabama. The Supreme Court will rule in the matter this term (see In the Courts, below).
• JUDGE BLOCKS PARTS OF SOUTH CAROLINA’S ANTI-IMMIGRANT LAW
In response to a lawsuit brought by the ACLU and other groups, Federal District Court Judge Richard Gergel has put on hold sections of a South Carolina act requiring police to check the immigration status of any suspect they think may be in the country illegally and making it a crime for someone to knowingly transport or harbor an undocumented person. The judge found the South Carolina legislature had encroached on the “traditionally predominate role of the federal government in the field of immigration” (New York Times, December 23). Republican Governor Nikki Haley is now looking for the Supreme Court to empower the states to pick up the slack on immigration matters “where Washington has failed.”
• PRIME MOVER OF ANTI-IMMIGRATION LAW RECALLED IN ARIZONA
Russell Pearce, the state legislator who spearheaded the push for Arizona’s SB 1070 anti-immigration law, was for years the state’s most powerful lawmaker. A former deputy of Sheriff Joe Arpaio who enjoyed the backing of the Tea Party, Pearce was replaced by a moderate Republican during the Arizona election (New York Times, November 10).
• RAYTHEON WINS ICE CONTRACT
The defense contractor Raytheon announced that it had won a contract to modernize ICE’s case management, and develop a system allowing information sharing across more than 100 databases (Press Release, November 14). The Web-enabled system will include the use of smartphones and other mobile devices.
• ‘ILLEGAL IMMIGRATION’ FASTEST GROWING FEDERAL OFFENSE
According to a report by the Bureau of Justice Statistics, the category of ‘illegal immigration’ accounted for 46% of all federal arrests during 2009, far ahead of the second largest category – drug arrests (17%). The statistics only reported cases where people were charged with violating a federal law – not when they were apprehended, detained and deported. A record number of 183,986 people were arrested for federal offenses in 2009 (Bureau of Justice Statistics Press Release, December 21).
• REPORT CHARGES BORDER PATROL WITH MISSION CREEP
The government has long claimed that using Border Patrol agents to board trains and buses in upstate New York and order passengers to produce IDs is a necessary component of ensuring border security. But a report produced by the ACLU and NYU’s Immigrant Rights Clinic reveals that only one percent of 2,743 people detained at Rochester Station between 2006-2009 had entered the country in the past three days. Three quarters had been in the country for at least a year, and a further 12 percent for more than 10 years. In the words of Justice Derailed, “The data paints a disturbing picture of an agency resorting to mission creep in order to increase arrest rates, without regard for the costs and consequences of its practices, including to its own mission to protect the border” (New York Times, November 9).
• REPUBLICAN CANDIDATES DETERMINED TO ‘SECURE’ THE BORDER
Michelle Bachmann wants a double wall or fence along the entire 2,000-mile border with Mexico while Herman Cain (when he was in the presidential race) called for that fence to be electrified and 20 feet tall. The $30 billion to build a fence along the entire border gave Rick Perry pause. Perry, who has been attacked by Mitt Romney for being “soft on illegal immigration,” recommended a combination of fencing, surveillance technology and “a lot of boots on the ground” (New York Times, October 20). So far, about 650 miles of hard fence have been built along the southern border. The cost of operating and maintaining that length of fence over a 20-year lifetime is estimated at $6.5 billion.
• NONCITIZENS GIVEN GREATER LEEWAY TO BUY GUNS
The Bureau of Alcohol, Tobacco, Firearms and Explosives is dropping a rule that required noncitizens to document that they had lived in a state for 90 days before they could purchase firearms. The Bureau decided that the regulation was inconsistent with the Drug Control Act (New York Times, December 23).
B. IN THE US CONGRESS
• CONGRESS USES CONFUSED LANGUAGE TO ENDORSE MILITARY DETENTION
After months of speculation and debate, the US Senate marked Bill of Rights Day (December 15) by passing the reconciled version of the National Defense Authorization Act. The $662 billion defense spending measure was crafted in secret by Democratic Senator Carl Levin (D-Mich), the chair of the Senate Armed Services Committee, and Republican John McCain (R-AZ). At the beginning of December, the Senate voted down by 55-45 a proposal of Intelligence Committee chair Dianne Feinstein to limit the military custody requirement to suspects captured outside of the United States. Although Senator Levin disputed the interpretation in a letter to the December 22 New York Times, the 1800-page NDAA authorizes the indefinite military detention of any ‘suspect’ anywhere in the world, including American citizens. This is done through Section 1021, which authorizes the President to detain persons who “substantially supported” forces “associated” with al-Qaeda or the Taliban that “are engaged in hostilities” against the US or its “coalition partners.” As Rep. Justin Amash, a conservative Michigan Republican, pointed out in a December 17 blog (redstate.com), “none of the quoted terms are defined. We do not know what constitutes substantial support, hostilities, or our coalition partners…Without knowing what qualifies as an associated force, no one can be sure they are safe from the government’s detention.” Section 1022, which requires the President to detain members of al-Qaeda, states that it “does not extend to citizens of the United States.” But given the broad language of the discretionary power given the president in Section 1021, it appears that although the President may not be required to subject American citizens to military detention, he does have the authority to do so if he so chooses. Language added to Section 1021 stating that nothing in the provision could be construed to alter Americans’ legal rights only further fudges the issue, given the existing muddle over what those rights were under the September 18, 2001 Authorization for the Use of Military Force (AUMF). In the words of Senator Lindsey Graham, “The statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland” (http://www.c-spanvideo.org/appearance/600840428
). Among its other provisions: the Act would ban transfers from Guantanamo and prevent the President from using funds to build or modify a prison in the US to enable Guantanamo to be closed. It also gives the Department of Defense the capability to “conduct offensive operations in cyberspace to defend our Nation, Allies and interests” (Section 954). Both Massachusetts Senators voted for the NDAA. The majority of the Massachusetts delegation voted against it in the House – the exceptions were Reps. Keating and Tsongas, and Rep. Lynch who did not cast a vote.
• FEINSTEIN INTRODUCES BILL TO PROTECT DUE PROCESS RIGHTS
Within hours of the passage of the NDAA, Senator Diane Feinstein (D-CA), chair of the Senate Intelligence Committee, introduced the Due Process Guarantee Act of 2011. It would “clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States.” Given her failure to amend the NDAA along these lines, it is by no means clear that this bill will be passed the Congress (New American, December 17).
• INTELLIGENCE ACT DOES NOT INCLUDE MULTI-YEAR EXTENSION OF FISA AMENDMENTS ACT
Thanks to the intervention of Senator Ron Wyden, who had demanded to know how many Americans had been affected by the warrantless wiretapping provisions of the FISA Amendments Act of 2008, a multi-year renewal of that Act was dropped from the largely classified Senate Intelligence Authorization Act of 2012, the third such Act to be passed since 2010. Intelligence Committee chair Dianne Feinstein announced that among other things, the Act increases oversight of Guantanamo transfers and the monitoring of detainees after they left the prison “as the Guantanamo recidivism rate rises to more than 27 percent” (Press Release, December 14).
• CYBERSECURITY BILLS INTRODUCED IN HOUSE
Two different bills have been introduced that bring together the government and private sector to combat cyber threats. HR 3523 was reported out of the House Intelligence Committee on December 1. It would encourage telecommunications and other companies to inform the government on a voluntary basis when their computer systems have been hacked. In response to privacy concerns, the bill was amended to stipulate that the government could not comb through data shared by private sector companies unless “at least one significant purpose” of the search was national security or cybersecurity. The Promoting and Enhancing CyberSecurity and Information Sharing (PRECISE) Act, put forward by the House Homeland Security Committee, would set up a quasi government National Information Sharing Organization made up of private and federal directors selected by the DHS to serve as a clearinghouse for cyber threat information (The Hill, December 16).
• HOUSE HOLDS ITS FIRST HEARING ON ‘SECURE COMMUNITIES’
On November 30, the House of Representatives Subcommittee on Immigration Policy and Enforcement held a hearing on the three-year-old ‘Secure Communities’ program. Democrats, including Rep. Sheila Jackson, asked ICE official Gary Meade about whether the program was contributing to racial profiling and undermining community policing. Former Sacramento police chief Arturo Venegas testified that it was. An appointed member of ICE’s Secure Communities Task Force, Venegas had resigned from the Task Force because it did not call for the immediate suspension of S-Comm. He was in turn questioned about his own immigration status by Rep. Peter King, who asked him when he entered the country and under what visa (Huffington Post, November 30). The committee also heard from Antonio Montejano, a US citizen who was jailed under S-Comm. He later told a press conference: "I felt completely powerless. I told every officer that I was an American citizen and nobody listened. I felt that the only reason they ignored me was because of the color of my skin, because I looked like I was from another country."
• CONGRESSIONAL LETTERS CONDEMN S-COMM
On November 17, 32 Members of Congress wrote a strongly-worded letter to President Obama urging him to “immediately stop Secure Communities. We cannot make our communities safer by tearing them apart.” No members of the Massachusetts delegation signed onto the letter. However, Rep. Michael Capuano spearheaded an effort to get his colleagues to express their concern about the program. On November 2, Reps. Markey, McGovern and Olver joined him in a letter sent to ICE Director John Morton. It urged Morton to reconsider his decision to terminate all existing S-Comm Memoranda of Agreement and to pay heed to local police officers who argue that the program jeopardizes public safety. “We think that a thorough review of Secure Communities will establish that some jurisdictions will want to participate and others to opt out. We believe that local and state governments should have that choice. The federal government ought not to compel the states, and states ought not to compel municipalities.”
• LEGAL WORKFORCE ACT WOULD EXPAND USE OF E-VERIFY
Rep. Lamar Smith (R-Texas), the head of the House Judiciary Committee, has been pushing to expand E-Verify nationally under the guise of a bill, the Legal Workforce Act (HR 2885), which he put forward as a jobs plan. The bill, with 72 co-sponsors, would require all employers in the nation to use the deeply flawed E-Verify system for new hires within two years of its inception, with the exception of the agricultural sector which had a 3-year window. A hearing was held on the bill on September 15 and a week later it was reported out of the Judiciary Committee. According to a 2010 report by the research group Westat, E-Verify failed to detect out-of-status workers 54 percent of the time because it was unable to detect identity fraud. It also flagged one percent of all legal applicants as unauthorized (Latimes.com, October 7).
C. IN THE COURTS
• SUPREME COURT HEARS ARGUMENTS IN GPS SURVEILLANCE CASE
On November 9, Justice Stephen Breyer invoked Orwell’s 1984 during oral arguments about whether police needed a warrant before placing a GPS device on the car of a DC nightclub owner and following it for a month. The device helped convict Antoine Jones of conspiracy to deal drugs, a decision later reversed by the Appeals Court which objected to the use of the tracking device without a valid warrant. Deputy Solicitor General Michael Dreeban argued for the Obama Administration that the device was no different from visual surveillance and that people have no expectation of privacy on public roads. He claimed there would be no constitutional violation if GPS devices were placed on the cars of all Supreme Court justices and they were tracked for a month (Washington Examiner, November 8). The decision in the case is expected to have far-ranging implications for privacy in the high tech age.
• JUDGE SAYS NO WARRANT NEEDED FOR CELL PHONE LOCATION DATA
In another Washington DC case involving tracking and warrants, US District Court Judge Royce Lambert of the DC Circuit reversed a magistrate judge’s ruling and paved the way for the government to obtain cell phone data without obtaining a warrant (LegalBlogofRights, October 13). The case concerned the investigation of an armed robbery of an armored truck.
• FEDS CAN OBTAIN TWITTER DATA WITHOUT A WARRANT
Federal district court judge Liam O’Grady has ruled in a case relating to WikiLeaks that Jacob Appelbaum, Birgitta Jonsdottir and Rop Gonggrijp – three WikiLeaks associates – had no expectation of privacy when they used Twitter and that the federal government did not need a warrant to obtain data from their Twitter accounts under the Electronic Communications Privacy Act which dates from 1986 and the 1994 Stored Communications Act (Wall Street Journal, November 10). The implications of the ruling are that the government should be able to collect information relating to Internet use without having probable cause and a warrant.
• ARIZONA IMMIGRATION LAW ON SUPREME COURT DOCKET
In mid December, the Supreme Court announced it would rule on the Arizona anti-immigration law. The US Court of Appeals for the Ninth Circuit had blocked four provisions of the law that it maintained were contrary to federal law and policies – among them the requirement that police determine the immigration status of anyone they stop or arrest (New York Times, December 13).
• SUPREME COURT TO RULE ON IMMIGRANT RESIDENCE REQUIREMENT
Can the period of time immigrants have legally resided in the US help satisfy residency requirements for their children? The Supreme Court has agreed to take two cases on appeal that concern efforts to deport young men who have not lived continuously within the US for at least seven years, five of them as lawful permanent residents, and are therefore not entitled to ask the government for leniency. The Ninth Circuit Court of Appeals had ruled those who entered the US as children could count their parents’ time within the country towards their own period of residency (New York Times, September 28).
• ACLU ASKS APPEALS COURT TO REINSTATE CASE OF US ‘ENEMY COMBATANT’
On October 26, the ACLU asked the US Court of Appeals for the Fourth Circuit to reinstate the lawsuit against former Defense Secretary Donald Rumsfeld and other government officials brought on behalf of Jose Padilla, a US citizen who was held without charges for four years in military isolation as an ‘enemy combatant.’ A federal judge in South Carolina had dismissed the lawsuit last February, saying that the federal officials had qualified immunity and the process of discovery could compromise national security (Charlotte Observer, October 26).
• FEDERAL JUDGE REFUSES TO HOLD CIA IN CONTEMPT FOR DESTROYING TAPES
US District Judge Alvin Hellerstein has ruled that the CIA cannot be held in contempt for its destruction of 92 videotapes, including those showing interrogations using ‘enhanced techniques,’ following an ACLU FOIA request. In 2009, the same judge ruled that because of national security concerns the CIA did not have to release hundreds of documents relating to the destruction of the videotapes (Associated Press, October 5).
• HOLY LAND FOUNDATION APPEAL THROWN OUT
A three-judge panel of the US Court of Appeals for the Fifth Circuit rejected the appeal brought on behalf of five trustees of the Texas-based Holy Land Foundation, once the largest Muslim charity in the US. It was raided in late 2001 with ‘material support’ charges brought in 2004. After the first trial ended in a hung jury in 2007, guilty verdicts were handed down in 2008, leading to sentences of up to 65 years for the men accused of sending funds to Palestinian aid distribution centers known ‘zakat committees’ (to which USAID also sent funds) that were construed as fronts for Hamas. Defense attorneys had condemned the government’s use of anonymous Israeli witnesses to get convictions during the second trial (Dallasnews, December 7). They are intending to ask the entire Appeals Court to review the case.
D. IN THE COMMONWEALTH
JURY FINDS MEHANNA GUILTY IN DECISION THAT PUTS FIRST AMENDMENT AT RISK
After a two month terrorism trial, a Boston US District Court jury deliberated ten hours and then found Sudbury resident Tarek Mehanna guilty of all seven charges of conspiring to provide material support to terrorists, to kill in a foreign country and lying to federal authorities. No evidence had been presented linking Mehanna to a terrorist group. Instead, the prosecution relied on scare tactics: playing 9/11 videos and constantly bringing in the name of Osama bin Laden. Mehanna, who reportedly had refused to become a government informant, has essentially been found guilty of engaging in activities protected by the First Amendment – translating and distributing ‘jihadist’ material – and traveling to Yemen. A key government witness against him, Kareem Abuzahra, was a friend who proposed obtaining weapons and carrying out a domestic terrorism attack – actions which Mehanna was opposed to. Abuzahra received immunity for his testimony while Mehanna faces life in prison when he is sentenced on April 12. If, on appeal, the verdict is upheld, the First Amendment will be seriously compromised and the right to dissent undermined. In the words of Mehanna’s defense attorney J.W. Carney Jr., “This case can’t help but send a message to people that if you support an unpopular cause, you’d better be looking over your shoulder because the federal government may be right behind you” (Boston Globe, December 22).
• ALLEGED TERRORIST CALLED ‘TICKING TIME BOMB’ BY GOVERNMENT; MENTALLY ILL BY FAMILY
Ashland resident Rezwan Ferdaus, a graduate of Northeastern University, has been charged with planning to launch three remote-controlled planes filled with explosives into Washington DC federal buildings. In a detention hearing, a defense lawyer claimed that the FBI ignored signs that he was mentally ill when it sent agents and an informant posing as Al Qaeda recruiters to befriend him and that “this case was orchestrated and fabricated by the government” (Boston Globe, October 4). The agents supplied him with the money to buy the planes, explosives, three grenades and six AK-47 assault rifles. The informant, known as Khalil, had two drug convictions, a robbery conviction (with a reduction in his sentence for serving as a government witness) and “difficulties” with heroin (WBUR, November 15). Ferdaus faces 100 years in prison if found guilty.
• BILL OF RIGHTS DAY PROTEST ENCOUNTERS MBTA SURVEILLANCE BUS
On December 15, a protest called by the ACLU of Massachusetts made its way from Dewey Square to the JFK Federal Building to denounce the National Defense Authorization Act and urge Obama to veto it. A week later, the Boston Bar added its voice to the demand that Obama veto the bill. During the lunchtime demonstration at the Federal Building, a very long, black bus pulled alongside the rally. It had four surveillance cameras on its roof, Plexiglas windows and the name ‘Civil Disturbance Unit’ written on its side. According to an old (November 23, 2007) Boston Globe article, the former passenger bus was refitted for $100,000 to serve as “a roving command post” for the MBTA’s 24-officer Civil Disturbance Unit, established in 2005, which also possesses “new body armor, shields, and an arsenal of tear gas and pepper-spray grenades.” The head of the MBTA police declared, “The vehicle shows that we’ve arrived, we’re here to take control, and that we’re in charge.” In the article David Abel writes: “Officials at the Boston Police Department declined to comment on whether the MBTA’s new unit complements their force or presents a problem by potentially creating future turf battles. Boston police, after a public feud with the Suffolk district attorney’s office, this fall lost their jurisdiction over homicide investigations on MBTA property to the State Police.”
• HACKERS PROTEST MOVE AGAINST OCCUPY BOSTON
In response to what it called “the unprovoked mass arrests and brutality experienced by those at Occupy Boston” when the police moved against the expansion of the Dewey Square encampment, Anonymous hacked the website of the Boston Police Patrolman’s Association and posted names, email addresses and passwords of nearly a thousand police officers online (Boston Globe, October 22). Around the country, about 40 police-related websites were also hacked. On December 15, five days after the police removed the last Occupy Boston campers, the names, home addresses, home phone numbers and salaries of 40 ranking members of the BPD were posted online.
• ACLU CHALLENGES SUBPOENA OF TWITTER ACCOUNT; COURT HOLDS SECRET HEARING AND GAGS LAWYERS
On December 14, the office of the Suffolk County Special Prosecutions Unit subpoenaed Twitter to provide information on certain Occupy Boston accounts. There was speculation that this action was connected to the hacking of police websites (http://privacysos.org/node/409
). On December 20, Twitter informed the five targets about the subpoenas. A blogger who goes by the name of Guido Fawkes is challenging the subpoena of his information with the help of the ACLU of Massachusetts (Boston Globe, December 29). After learning of the subpoena, Fawkes tweeted, “You cannot arrest an idea. You cannot subpoena a hashtag” – referring to the fact that the subpoena requested details on the @OccupyBoston Twitter account and for Twitter users of the hashtags #BostonPD and #dOxcak3. On December 29, a Suffolk Superior Court judge held a secret hearing over the objections of ACLU of Massachusetts lawyers, ordered them not to reveal anything that transpired and then impounded all documents and motions filed in the case.
• ACLU BRINGS CHALLENGE TO BORDER SEARCH & SEIZURE OF ELECTRONIC DEVICES
On December 20, the ACLU went to federal district court in Boston to challenge the treatment of David House, the co-founder of the Bradley Manning Support Network, when he was entering the country at Chicago’s O’Hare airport. He was questioned by ICE agents about his political beliefs and his computer, USB drive, video camera and cell phone were seized and detained for nearly seven weeks, with the information on them being copied and distributed to various federal agencies (ACLU Press Release, December 20). The ACLU argues that Mr. House was targeted solely on First Amendment grounds, and that the government has violated his First Amendment right to freedom of association and Fourth Amendment protection against unreasonable search and seizure, and that the Bill of Rights “does not completely evaporate when someone walks into an airport.”
• MARKEY WANTS INVESTIGATION OF WESTBORO DATA TRACKING FIRM
Rep. Markey has called for a privacy probe by the Federal Trade Commission of software made by Westboro-based Carrier IQ that has been installed on more than 140 million Android smartphones and older iPhones. The software secretly collects and stores user’s personal information, including text messages, location and even keystrokes (Boston Herald, December 2).
• NORTHEASTERN TO HOST HOMELAND SECURITY RESEARCH
An alumnus of Northeastern University, George Kostas, has given a $12 million donation for the development of an institute on its Burlingtom campus where scientists can “confront national security threats by conducting secure research in explosives detection, drone technology, cryptography and data security” (Boston Globe, October 9). Among the projects the institute will undertake is the development of a small remote-controlled quadrotor which can follow targets and track their facial expressions.
• CONGRESSMAN SLAMS BEHAVIORAL PROFILING AT LOGAN
Rep. John Mica, chair of the House Transportation and Infrastructure Committee, traveled to Boston to check out the TSA’s attempt to look for suspicious behavior by asking passengers routine questions (‘chat-downs’) and encountered a “mundane, intense bureaucratic exercise” and “a messy disappointment” (Boston Herald, October 26). Since August, 49 passengers out of 165,000 have refused to answer questions, opting to have their bags searched. A dozen people have been arrested, mainly for immigration violations or outstanding warrants. Chat-downs are an extension of SPOT (Screening of Passengers by Observation Techniques) which has resulted in no arrests of terrorists during a period when, according to a May 2010 Government Accountability Office report, 16 people later charged in terrorist plots passed unhindered at least 23 times through eight airports where SPOT officers worked.
• DATA SHOWS MORE ‘NON CRIMINALS’ THAN SERIOUS CRIMINALS DEPORTED UNDER S-COMM
The latest statistics from the official ICE website show that as of September 30, 2011, S-Comm was operational in 1595 jurisdictions in 44 states. In Massachusetts, where it was piloted by the Boston police and is only implemented in Suffolk County, 116 criminals convicted of serious (‘Level 1) offenses have been deported under the program, while 69 minor (‘Level 3) offenders and 188 ‘non criminals’ have been removed.
• DEATH SPURS ANTI-IMMIGRANT BACKLASH AND DEMAND TO EXPAND S-COMM
Despite evidence that S-Comm is sweeping far more widely than intended, the sheriffs of Worcester and Bristol County have expressed a desire to opt into the program and 12 Massachusetts legislators have filed “An Act to enhance community safety” to “address the strains placed on personal, municipal, and statewide finances as a result of illegal immigration.” A backlash against immigrants was fueled by the death of a man in Milford who was allegedly hit and killed by an undocumented immigrant from Ecuador who was driving while drunk and indicted for second degree murder on October 21. In Milford, foreign-born residents have been subjected to xenophobic hostility, including the smashing of their car windows and harassment on the streets (State House News Service, November 7).
• LOWELL SIGNS ONTO ‘IMAGE’ PROGRAM
The Lowell Housing Authority became the first public housing authority in the state to sign onto ICE’s voluntary ‘IMAGE’ program that is intended to prevent the employment of undocumented immigrants. The employment records of the Authority’s 100 employees will be scrutinized under the program (Lowell Sun, November 18).
ACLU of Massachusetts
(617) 482-3170 x 314