Colbert on the Spyvate Sector

Why is it that a couple of comedians are our best political commentators?

Brandon Mayfield Gets Hosed By The 9th Circuit

As Fatster noticed, the Ninth Circuit has ruled against Brandon Mayfield on his attempt to hold the PATRIOT Act declared unconstitutional under the Fourth Amendment.

Mayfield was a former suspect in the 2004 Madrid train bombings. After the Madrid bombings, the Spanish National Police (“SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The SNP submitted digital photographs of the fingerprints to Interpol Madrid, which subsequently transmitted them to the FBI in Quantico, Virginia. The FBI searched fingerprints in its system and, among other possibilities, produced Mayfield, an US citizen and lawyer from the Portland Oregon area, as an alleged match. FBI surveillance agents began to watch Mayfield and follow him and members of his family when they traveled to and from the mosque, Mayfield’s law office, the children’s schools, and other family activities. The FBI also applied to the Foreign Intelligence Security Court (“FISC”) for authorization to surreptitiously place electronic listening devices in the Mayfield family home; searched the home while nobody was there; obtained private and protected information about the Mayfields from third parties; searched Mayfield’s law offices; and placed wiretaps on his office and home phones. The application for the FISC order was personally approved by John Ashcroft, then the Attorney General of the United States.

The Spanish SNP, however, looked at the FBI evidence and found it lacking evidentiary credibility. In spite of this fact, the FBI submitted an affidavit to a US Federal court, stating that experts considered the identification of Mayfield 100% positive, intentionally failing to advise that the SNP had reached a diametrically opposite conclusion. As a result, Mayfield was arrested and held on a material witness warrant, and the public informed of his identity and supposed involvement in the bombings. Over two weeks later, the SNP conclusively matched the fingerprint to an unrelated Algerian citizen and Mayfield was absolved. Mayfield sued the US Government under numerous theories including that the PATRIOT Act was unconstitutional under the Fourth Amendment. The government, being in an egregiously bad position, settled with Mayfield and even allowed the unusual provision that he could maintain the Fourth Amendment challenge to PATRIOT, but could only obtain declaratory relief, not monetary damages.

Mayfield pressed his complaint seeking a declaration that PATRIOT was unconstitutional under his stipulated facts, and the District Court of Oregon, in denying the government’s motion to dismiss and granting Mayfield’s motion for summary judgment, agreed with Mayfield and ruled in his favor. The government appealed to the 9th Circuit arguing that the trial court had no jurisdiction because Mayfield had already been compensated, that the court erred in finding PATRIOT unconstitutional and that other matters, in totality, placed the matter outside of the court’s power to award redress. These arguments were proffered by the government in spite of it having knowingly and specifically agreeing that Mayfield intended to raise and argue said issues and agreeing in their unusual settlement agreement to let him do so.

The usually enlightened 9th Circuit, this time took it upon itself to contrive and contort a way Read more

In Honor of Obama’s Nobel “Peace Through War” Prize, Donate to the ACLU

I was going to make this pitch somewhat differently. But as the jist of Obama’s “Peace through War” speech has sunk in today, I’ve just gotten more and more frustrated.

First some background. As Glenn points out, the ACLU is in a whole bunch of hurt right now after their biggest single donor told them that cash flow issues prevent him from donating for the foreseeable future.

As The New York Times reported yesterday, the ACLU this year, largely without warning, lost its single largest source of funding as a result of the financial crisis.  The loss of that individual donor, who had been contributing $20 million per year, was a major blow to the organization, “punching a 25 percent hole in its annual operating budget and forcing cutbacks in operations.”  That loss came on top of substantial fundraising losses last year from the financial crisis and the Madoff fraud, which had already forced the group to lay-off numerous employees and cut back substantially on its activities.  The lost donor made clear yesterday that he continues to support the ACLU’s work emphatically but is simply now financially unable to continue his support.

I agree with Glenn that the ACLU has been utterly critical over the last decade in fighting to sustain our Constitution and the rule of law. But this funding set-back puts their ability to maintain their leadership position on these issues in jeopardy. And it sure looks to me like we’re going to continue to need their services in the coming years.

So if you can afford to do so at all, please consider supporting ACLU.

Eric Schmidt: PATRIOT Means You Have No Privacy

When Gawker posted a clip of Eric Schmidt telling Maria Bartiromo that you shouldn’t do anything you want to keep private…

I think judgment matters. If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place. If you really need that kind of privacy, the reality is that search engines — including Google — do retain this information for some time and it’s important, for example, that we are all subject in the United States to the Patriot Act and it is possible that all that information could be made available to the authorities.

… Gawker focused on the hypocrisy of Schmidt making such a statement.

That’s what the Google CEO told Maria Bartiromo during CNBC’s big Google special last night, an extraordinary pronouncement for such a secretive guy.

The generous explanation for Schmidt’s statement is that he’s revolutionized his thinking since 2005, when he blacklisted CNET for publishing info about him gleaned from Google searches, including salary, neighborhood, hobbies and political donations.

But I’m rather more interested in Schmidt’s focus on the PATRIOT Act:

we are all subject in the United States to the Patriot Act and it is possible that all that information could be made available to the authorities

This is the CEO of Google–a company that, four years ago, fought to avoid letting Alberto Gonzales get its searches in the name of preventing pornography–telling you that everything you do on Google “could be made available” to the authorities. Which I presume means it is being made available…

Conyers v. Obama: The “Demeaning Team”

I wasn’t going to post on this–I was going to let John Conyers and Barack Obama to have their public spat in peace.

According to [John Conyers], the president picked up the phone several weeks ago to  find out why  Conyers was “demeaning” him.
Obama’s decision to challenge Conyers highlights a sensitivity to criticism the president has taken on the left.

Conyers’s critical remarks, many of which have been reported on the liberal-leaning Huffington Post, appear to have irritated the president, known for his calm demeanor.

Conyers, the second-longest-serving member of the House, said, “[Obama] called me and told me that he heard that I was demeaning him and I had to explain to him that it wasn’t anything personal, it was an honest difference on the issues. And he said, ‘Well, let’s talk about it.’”

[snip]

“I’ve been saying I don’t agree with him on Afghanistan, I think he screwed up on healthcare reform, on Guantánamo and kicking Greg off,” Conyers said, referring to the departure of former White House counsel Greg Craig.

[snip]

The liberal Conyers has been an outspoken proponent of a single-payer healthcare system and a critic of U.S. involvement in the wars in Afghanistan and Iraq.

He has also been at odds with White House policy on extending expiring  provisions of the Patriot Act, crafting legislation that is to the left of the Senate’s version.

But I thought it worthwhile to elaborate on what the Hill said about Conyers’ support for Obama–which reminds that Conyers was the first CBC member to endorse Obama.

Conyers played a pretty important role in the way Michigan’s Clusterfuck of a primary worked out. Read more

The New SWIFT Agreement

Last night I went to bed before I looked at the new SWIFT Agreement giving the US access to all of Europe’s finance data to track for terrorists. Here’s that agreement and here’s a Q&A document about what the agreement does. The agreement is instructive both for what it suggests about the negotiations between the US and EU, but also for what it suggests about the protections the US is willing to grant citizens of other countries that it is not extending to its own citizens.

This is a temporary extension

This is not a permanent agreement. This is a 9 month extension of the SWIFT agreement from February 1 of next year for nine months, meaning the new EU government will begin negotiations on a proposed new agreement immediately.

in July of this year the 27 Member States of the European Union unanimously gave the EU Presidency a mandate to negotiate an agreement with the United States to ensure the transfer of the data and thereby the continuation of the TFTP. In July, it was not known when or indeed whether the Lisbon Treaty would come into force. Accordingly, the mandate is based on the legal mechanism of the EU Treaty which will cease to exist on 1 December when the Lisbon Treaty enters into force. To ensure that the European Parliament is able to exercise its new powers under the new Treaty in this regard, the envisaged Agreement is for a maximum duration of 9 months. The Commission will come forward with a new proposed mandate in early 2010 for a subsequent agreement based on the Lisbon Treaty. [my emphasis]

Note that “maximum duration” language. I’m guessing the US is going to try to bulldoze an agreement through ASAP, presumably before the new government (or, more importantly, activists) settles in.

The envisaged Agreement has a short duration in order to ensure that the European Parliament’s new powers under the Lisbon Treaty will apply to any possible longer term agreement which might replace the envisaged Agreement.

It’ll be interesting to see whether this agreement gets better, or worse, in the coming months.

The agreement claims the data is not used for data-mining

Here’s what the agreement claims the US does with this data.

The [Terrorist Finance Tracking Program] does not involve data mining or any other type of algorithmic or automated profiling or computer filtering. The U.S. Treasury shall ensure the protection of personal data by means of the following safeguards, which shall be applied without discrimination, in particular on the basis of nationality or country of residence.

(a) Provided data shall be processed exclusively for the prevention, investigation, detection, or prosecution of terrorism or its financing;

(b) All searches of Provided Data shall be based upon pre-existing information or evidence which demonstrates a reason to believe that the subject of the search has a nexus to terrorism or its financing;

(c) Each individual TFTP search of Provided Data shall be narrowly tailored, shall demonstrate a reason to believe that the subject of the search has a nexus to terrorism or its financing, and shall be logged, including such nexus to terrorism or its financing required to initiate the search;

(d) Provided data shall be maintained in a secure physical environment, stored separately from any other data, with high-level systems and physical intrusion controls to prevent unauthorized access to the data;

(e) Access to Provided Data shall be limited to analysts investigating terrorism or its financing and to persons involved in the technical support, management, and oversight of the TFTP;

Read more

All Yurp’s Data Belongs to US

Remember how the Germans were trying to delay agreement on a deal giving the US access to European bank data until there was time for a debate?

They caved.

In a little noticed information note released last week, the EU said it had agreed that Europeans would be compelled to release the information to the CIA “as a matter of urgency”. The records will be kept in a US database for five years before being deleted.

Critics say the system is “lopsided” because there is no reciprocal arrangement under which the UK authorities can easily access the bank accounts of US citizens in America.

They also say the plan to sift through cross-border and domestic EU bank accounts gives US intelligence more scope to consult our bank accounts than is granted to law enforcement agencies in the UK or the rest of Europe.

[snip]

According to the EU information note, the United States can request “general data sets” under the scheme based on broad categories including “relevant message types, geography and perceived terrorism threats”.

And yes, scribe told me so.

Of course, if you think the CIA is not also collecting such “general data sets” in the US, you’re nuts. We just get more details about it when it happens in Europe.

Sprint’s 50 Million Customers Have Been Geo-Tracked 8 Million Times–in the Last Year

Chris Soghoian caught a remarkable admission at a surveillance conference in October. Sprint’s Manager of Electronic Surveillance revealed that law enforcement has used Sprint’s geotracking function 8 million times in the thirteen months prior to his comment.

Sprint Nextel provided law enforcement agencies with its customers’ (GPS) location information over 8 million times between September 2008 and October 2009. This massive disclosure of sensitive customer information was made possible due to the roll-out by Sprint of a new, special web portal for law enforcement officers.

The evidence documenting this surveillance program comes in the form of an audio recording of Sprint’s Manager of Electronic Surveillance, who described it during a panel discussion at a wiretapping and interception industry conference, held in Washington DC in October of 2009.

[snip]

[M]y major concern is the volume of requests. We have a lot of things that are automated but that’s just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don’t know how we’ll handle the millions and millions of requests that are going to come in.

Now, as he documents in extensive detail, using cell phone location to get the geolocation of someone is just one of a number of uses of legal surveillance techniques that is eluding public reporting.

But that’s by design. Even assuming many of these uses of Sprint’s geo-tracking capabilities are multiple requests for the same person, there are a whole lot of people whose physical location is being tracked.

Probably a bunch of people who bought acetone and hyrdogen peroxide for home improvement uses.

Anyway, click through for a bunch more numbers and discussion, as well as MP3s of this admission.

Holder Signals Approval (Preference?) for SJC Bill

Just days after the House Judiciary Committee passed a PATRIOT Act Reauthorization bill that actually improved on PATRIOT, Eric Holder has decided to write Pat Leahy and DiFi to tell them how much he likes their bill.

Holder spends a lot of time boasting of the “provisions designed to enhance statutory protections for civil liberties and privacy, ” including provisions that the Administration gutted, courtesy of Jeff Sessions: “authorization for court-imposed minimization requirements for information obtained via pen register or trap and trace orders in exceptional cases.” Had the Committee been left to its Democratic majority, those minimization requirements would have been standard, not exceptional.

To this extent, Holder’s letter seems designed to signal his preference for the Senate bill over the House Judiciary bill.

But the Senate’s worse bill is not good enough for Holder. He makes demands for things that–apparently–they didn’t get to Jeff Sessions in time for him to submit.

While we are very please to be able to support the bill, we do have some concerns that we are working with the Committee to address before the measure reaches the floor. In particular, we are working with the Committee on provisions regarding procedures for the collection, use, and storage of information obtained through NSLs; certain public reporting and audit requirements; and provisions to ensure a smooth transition to the new law.

Which I take to mean there’s too much preventing the DOJ from creating a permanent database of material collected pursuant to NSL authority. And DOJ wants to avoid admitting how much of this data collection is actually going on, so they’re trying to limit the audits and IG reports.

So apparently, the worse Senate bill isn’t bad enough for Eric Holder yet. And it sounds like Pat Leahy continues to work to give Holder and Obama precisely the crappy bill they want.

Lieberman’s Hunt for a Lone Wolf?

Jim White has two important diaries on Joe Lieberman’s promise to hold hearings on the attack on Fort Hood. In the first, Jim notes that such a hearing will whip up anti-Muslim hysteria. In the second, Jim raises concerns about Nidal Hasan’s interrogation.

I think both of Jim’s diaries raise important concerns. But I’d like to add a third to the list: that Lieberman will use this case to advocate for expanded authorities under the PATRIOT Act.

Check out how Lieberman describes Hasan:

WALLACE: A lot of people are wondering — you talk about all the statements he made. There were a lot of warning signs out there. I know hindsight is 20/20, but were there enough signs that — enough red flags that authorities should have stepped in?

LIEBERMAN: Well, that’s a very important question. And I would say, Chris, that while the Army and the FBI are conducting the criminal investigation about exactly what happened and what Dr. Hasan should be charged with, the U.S. Army — the Department of Defense has a real obligation to convene an independent investigation to go back and look at whether warning signs were missed, both of his — the stress he was under, but also the statements that he was making which really could lead people to believe that Dr. Hasan had become an Islamist extremist.

A couple of years ago, after a two-year investigation, my committee put out a report that said the new face of terrorism in America would not just be the attacks as 9/11, organized abroad and sending people in here. It would be people within this country, home- grown terrorists, self-radicalized, often over the Internet, going to jihadist Web sites.

And there’s concern from what we know now about Hasan that, in fact, that’s exactly what he was, a self-radicalized home-grown terrorist. [my emphasis]

Even while Lieberman feigns an attempt not to jump to conclusions, he seems interested in holding a hearing precisely because he sees Hasan as a self-radicalized terrorist.

Cato’s Julian Sanchez had a piece a few weeks ago talking about the problems with the Lone Wolf provision.

The extraordinary tools available to investigators under the Foreign Intelligence Surveillance Act (FISA), passed over 30 years ago in response to revelations of endemic executive abuse of spying powers, were originally designed to cover only “agents of foreign powers.” The PATRIOT Act’s “lone wolf” provision severed that necessary link for the first time, authorizing FISA spying within the United States on any “non-U.S. person” who “engages in international terrorism or activities in preparation therefor,” and allowing the statute’s definition of an “agent of a foreign power” to apply to suspects who, well, aren’t. Justice Department officials say they’ve never used that power, but they’d like to keep it the arsenal just in case.

[snip]

Courts have generally been extraordinarily deferential to the executive in the realm of foreign intelligence, and have suggested that the Fourth Amendment’s protections against warrantless searches apply only weakly, if at all, in this context. But when it comes to domestic national security investigations, a unanimous Supreme Court has ruled that the usual restrictions remain largely intact. The court clearly saw the involvement of a “foreign power” as providing the distinction between the world of the criminal law’s Fourth Amendment protections and the hazy arena where the executive enjoys far greater latitude. The “lone wolf” provision recklessly blurs that line, defying the common sense meaning of an “agent of a foreign power,” and giving investigations that belong in the first world a dubious statutory foothold in the second.

But here’s one of the biggest concerns: as Julian’s piece makes clear, the Lone Wolf provision would not, currently, apply to Hasan. It applies only to non-US persons, not to US citizens like Hasan.

Which is where I worry that Lieberman is going with this. The House Judiciary bill (but not the Senate one) allows the Lone Wolf provision to sunset because of the legal concerns that Julian raises in his piece. But if a hawk like Lieberman showcases what he has pre-determined to be a self-radicalizing terrorist, it might provide just the thing people like Lieberman need to further chip away at civil liberties of US persons.

I’m not saying this guy shouldn’t have been investigated–he clearly should have. But it’s not clear that we need to expose all citizens to snooping expeditions to keep ourselves safe.

Update, from ABC: US intelligence was aware months ago that Hasan had tried to contact al Qaeda.

Update: Note Isikoff’s source explicitly called this a Lone Wolf attack.

To some in law enforcement  – including the one who spoke to Newsweek — the purchase of the high-powered gun, the Internet writing and Hasan’s alleged shouting of “Allah U Akbar” (Arabic for “God is Great”) during the attack – suggest that the Fort Hood shooting should be viewed more as a terrorist act by a “lone wolf” Muslim extremist than as the work of a troubled physician who “snapped” under pressure.

Isikoff is notoriously well sourced in FBI. So I guess that’s where this is going.

Update: Spencer asks a question a few below have asked: why didn’t our crack data mining program alert the right people to Hasan?

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