Back when SCOTUS Justice Sam Alito wrote the opinion booting the ACLU-argued challenge to Section 702, he said the plaintiffs’ worries — that the US government was collecting their international communications under Section 702 — were too speculative to give them standing to challenge the constitutionality of the statute.
In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.
The named plaintiff in that suit — the NGO wildly speculating that the US government was reading its international communication with human rights victims and others — was Amnesty International.
Today, UK’s Investigatory Powers Tribunal informed Amnesty International that unnamed UK government agencies have been intercepting their communications.
In a shocking revelation, the UK’s Investigatory Powers Tribunal (IPT) today notified Amnesty International that UK government agencies had spied on the organization by intercepting, accessing and storing its communications.
“After 18 months of litigation and all the denials and subterfuge that entailed, we now have confirmation that we were in fact subjected to UK government mass surveillance. It’s outrageous that what has been often presented as being the domain of despotic rulers has been occurring on British soil, by the British government,” said Salil Shetty, Amnesty International’s Secretary General.
Admittedly, this doesn’t confirm that Amnesty has been swept up in 702 collection, but given the likelihood that one of the agencies, plural, that has intercepted Amnesty’s communications is GCHQ, and given the broad sharing between it and its Five Eyes partner NSA, it is almost certain NSA has those communications as well (if they didn’t actually collect some of them).
Amnesty is trying to gain clarity from the US on whether it, too, has spied on the NGO.
But, predictably, Amnesty had a better idea of what a threat the government posed for its work than Sammy Alito did.
This weekend is the Grand Prix of Bahrain at the International Circuit in Sakhir, Bahrain. Three years ago I wrote about the local protests in Bahrain seeking some modicum of civil liberties and fair treatment. Instead there was a violent crackdown by the tyrannical ruling Khalifa family leading to bloodied protestors and dead bodies near the track.
There is no good reason, save for greed, that Formula One is in Bahrain this weekend but, nevertheless, there it is.
What might the journalists report on were they allowed in Bahrain? Maybe the petrol bomb attack members of the Force India racing team were caught up in. The incident so shook the team that it withdrew from the second practice session and at least one team member left the country due to safety concerns.
How is this occurring? Why is the race still being sanctioned? Money and hegemony.
F1 Grand Prix is big money. Really big money.
Big money and the mighty US war machine are a potent combination and, between the two of them, are permitting the disgrace occurring this weekend in Bahrain. It is a stain on international human rights, and it is a stain on Formula One. F1 and Ecclestone cravenly hide behind the false premise that they are a business and would be allowing themselves to be politicized if they were to cancel the Bahrain Grand Prix again.
The USA war machine is, obviously, the Fifth Fleet, which is based in Bahrain. That, too, is of big money and logistical importance to US Mideast hegemony. Same as the huge race sanctioning fee Bernie Ecclestone and F1 is important to their bottom line. By last report, F1 charged over $40 million as the sanctioning fee for the Bahrain race, which is far more lucrative a piece of income than many of the traditional grand prix in Europe and elsewhere. It is raw greed.
So, after canceling the 2011 race under duress, and showcasing the civil liberty atrocities of the Khalifas and their regime in 2012, there has been a lot of progress, right? There is so little mention of strife now that it must be better, right?
Sure Bernie Ecclestone put some lip gloss on the money pig:
Formula One has long-insisted this is none of its business. “We’re not here, or we don’t go anywhere, to judge how a country is run,” Bernie Ecclestone pointed out two years ago. The damning Amnesty report, however, was preceded by another announcement with considerably less fanfare. In it the group Americans for Democracy on Human Rights in Bahrain said that it had concluded an agreement with F1 that the sport would begin a policy of analysing the human rights impact it might have on host nations. “Formula One Group has committed to taking a number of further steps to strengthen its processes in relation to human rights,” it read.
But there is the Amnesty report, and as laid out in the Guardian article from yesterday linked above, it is not pretty. The same denial of speech and liberty, not to mention brutal oppression still maintains in Bahrain.
Worse yet, it is clear that the presence of Formula One in Bahrain doesn’t just ignore the brutal problems, it is a significant cause of them:
He does not believe this was an isolated event. “Many journalists come to cover F1 and maybe that’s why they arrested my father,” he says, adding that it was part of a wider crackdown that has occurred in areas where there are regular protests. “If you go to the villages, you will see them surrounded by police, any gathering of six or seven people chanting will be attacked with tear gas or Kevlar bullets or birdshot; the government are not allowing any protests to happen there.”
While there are human rights issues in other countries the sport visits, the activists claim that, unlike in China for example, it is Formula One’s very presence in Bahrain that makes the situation worse. Maryam al-Khawaja, the co-director of the Gulf Centre for Human Rights who is living in Denmark having been sentenced to one year in prison in absentia for allegedly assaulting a police officer, describes the reforms since 2011 as both a smokescreen and a whitewash.
“The problem is that the F1 isn’t just being used as part of that whitewash, the F1 actually causes human rights violations in Bahrain,” she says. “Right before the race we have the government going on an arrest spree to try and prevent protest. We have protesters cracked down on during the F1 and the violence that is used is usually more than what we see for the rest of the year. F1 causes human rights violations and for that reason it should not come to Bahrain.”
That would be exactly consistent with reports from the ground in Bahrain in 2012. Nothing has changed. And nothing will change so long as powerful entities like Formula One and the US Government will blindly sanction such oppression to further their own interests.
As to the race itself, practice was as expected with the Mercedes and Ferraris leading the rest of the pack. Qualifying just concluded, however, and there was a bit of a shakeup at the top. Lewis Hamilton took his fourth pole to open the season, but Vettel took P2 followed by Rosberg and Raikkonen in the second row. No front row lockout for Mercedes as they have become expected to lately. The rest of the top 10 in order are Bottas, Massa, Ricciardo, Hulkenberg, Sainz and Grosjean.
Will the Ferrari and Williams cars have anything for Hamilton and Rosberg in the actual race? We shall see, but they are getting ever closer.
Also, baseball has started the regular season, and the Tigers and Royals look awesome so far; the Giants not so much. The NBA playoffs are starting and the NFL draft is nearly upon us.
Consider this a full Trash Talk and discuss anything you wish. And don’t be a dick like Lewis Hamilton and spray champagne into unsuspecting girl’s eardrums.
Barack Obama faces a huge amount of pressure during the current meltdown of Iraq because he withdrew all US military forces from the country. As I have pointed out in countless posts, the single controlling factor for that withdrawal was that Iraq refused to provide criminal immunity to US troops who remained in Iraq past December 31, 2011.
A very similar scenario is playing out now in Afghanistan. Hamid Karzai has refused to sign the Bilateral Security Agreement that will provide criminal immunity to US troops remaining beyond the end of this year. Both Abdullah Abdullah and Ashraf Ghani have stated that they will sign the BSA immediately upon taking office, but the recount of their runoff election remains mired in dysfunction over how to eliminate fraudulent votes. John Kerry has visited twice to get the candidates to cease sparring, but dysfunction has quickly ensued after both visits. Meanwhile, the clock ticks ever closer to expiration of the current agreement providing immunity.
All along, the US framing for insisting on criminal immunity for troops is based on avoiding the chaos of soldiers facing false charges that might be brought through a court system that lacks the safeguards of the US court system or even the US military courts. But a report (pdf) released Friday by Amnesty International provides solid evidence that the US has failed, on multiple verified occasions, to take any action to pursue those responsible for clear war crimes in Afghanistan. That stands out to me as the real reason the US insists on criminal immunity.
Amnesty sums up their findings in the press release accompanying the report:
Focusing primarily on air strikes and night raids carried out by US forces, including Special Operations Forces, Left in the Dark finds that even apparent war crimes have gone uninvestigated and unpunished.
“Thousands of Afghans have been killed or injured by US forces since the invasion, but the victims and their families have little chance of redress. The US military justice system almost always fails to hold its soldiers accountable for unlawful killings and other abuses,” said Richard Bennett, Amnesty International’s Asia Pacific Director.
“None of the cases that we looked into – involving more than 140 civilian deaths – were prosecuted by the US military. Evidence of possible war crimes and unlawful killings has seemingly been ignored.”
The description continues:
Two of the case studies — involving a Special Operations Forces raid on a house in Paktia province in 2010, and enforced disappearances, torture, and killings in Nerkh and Maidan Shahr districts, Wardak province, in November 2012 to February 2013 — involve abundant and compelling evidence of war crimes. No one has been criminally prosecuted for either of the incidents.
Qandi Agha, a former detainee held by US Special Forces in Nerkh in late 2012, spoke of the daily torture sessions he endured. “Four people beat me with cables. They tied my legs together and beat the soles of my feet with a wooden stick. They punched me in the face and kicked me. They hit my head on the floor.” He also said he was dunked in a barrel of water and given electrical shocks.
Agha said that both US and Afghan forces participated in the torture sessions. He also said that four of the eight prisoners held with him were killed while he was in US custody, including one person, Sayed Muhammed, whose killing he witnessed.
Of course, the US claims that while it wants troops immune from prosecution in Afghanistan under trumped up charges, crimes will be investigated by US authorities. The Amnesty report puts that lie to rest. Again, from the press release:
Of the scores of witnesses, victims and family members Amnesty International spoke to when researching this report, only two people said that they had been interviewed by US military investigators. In many of the cases covered in the report, US military or NATO spokespeople would announce that an investigation was being carried out, but would not release any further information about the progress of the investigation or its findings – leaving victims and family members in the dark.
“We urge the US military to immediately investigate all the cases documented in our report, and all other cases where civilians have been killed. The victims and their family members deserve justice,” said Richard Bennett.
Yeah, I’m sure the military will get right on that. Sometime in the next century or two.
The report provides three recommendations to the government of Afghanistan:
Create a credible, independent mechanism to monitor, investigate and report publicly on civilian deaths and injuries caused by the ANSF, and to ensure timely and effective remedies. This mechanism should include detailed procedures for recording casualties, receiving claims, conducting investigations, carrying out disciplinary measures including prosecutions where warranted, and ensuring reparation, including restitution, compensation, and rehabilitation.
Ensure that accountability for civilian casualties is guaranteed in any future bilateral security agreements signed with NATO and the United States, including by requiring that international forces provide a regular accounting of any incidents of civilian casualties, the results of investigations into such incidents, and the progress of any related prosecutions. Such agreements should exclude any provision that might infringe upon Afghanistan’s obligations under the Rome Statute of the International Criminal Court.
Continue to press the US and NATO authorities to take meaningful steps to enhance civilian protection, investigate reports of civilian casualties, and prosecute violations of international humanitarian law that result in civilian casualties.
Those recommendations are terrific, but they are completely meaningless when applied to what is really happening in Afghanistan. None of the good things in that list have any chance of even making it into the language of the already negotiated BSA, and even if they did, no enforcement of it would ever be allowed. After all, the US is the country that even has passed a law allowing use of military force to “rescue” any citizen facing charges in the ICC. It doesn’t matter whether George W. Bush or Barack Obama is the Commander in Chief, the US military will go wherever it wants, kill whoever it wants, and allow the vast majority of its crimes to go without consequence.
That is the particular freedom they hate us for.
Last fall, a leaked document showed that Bahrain intended to make a huge purchase of tear gas. In response, Bahrain Watch and a number of other human rights groups organized a movement around the Stop the Shipment campaign. The movement gained many human rights, foreign policy and celebrity supporters. Once it became clear that Bahrain was focusing on South Korea as the source for the tear gas, the campaign also focused there, sending hundreds of thousands of emails to South Korean companies and government officials.
Today, that effort has proven successful:
South Korea has ordered companies to suspend tear gas exports to Bahrain amid pressure from human rights groups, officials said Wednesday.
The state-run Defense Acquisition Program Administration instructed two companies not to ship tear gas to the Gulf state after they inquired about possible exports, agency officials said.
It turns out that the shipment was going to be even bigger than the leaked document suggested. From Bahrain Watch’s press release:
The shipment was believed to comprise in excess of 1.6 million rounds of tear gas based on a leaked tender document from a source close to Bahrain’s Ministry of Interior. However, in today’s Financial Times article DaeKwang’s CEO said that as part of the deal, which was worth USD $28 million, the Bahraini government was planning to buy 3 million tear gas canisters – around 4 canisters for each Bahraini citizen. DAPA’s decision to cease exports means that this tear gas will not reach Bahrain.
Wow. Four tear gas canisters for each citizen of the country. The press release continues, giving us the horrific details of violent repression of Bahrain’s citizens:
South Korea joins other countries including the United States and United Kingdom, who have already stopped tear gas exports to Bahrain due to human rights concerns. Since 2011, at least 39 deaths in Bahrain have been linked to misuse of tear gas, according to data compiled by Physicians for Human Rights (PHR). The deaths include 14 year old Ali Jawad al-Shaikh who was shot in the back of his neck with a tear gas canister, and 15 year old Sayed Hashim Saeed, also shot in his neck with a tear gas canister at close range. No police officer or other government official in Bahrain has been held accountable for these or any other abuses due to the systematic misuse of tear gas, despite serious concerns raised by the United Nations Human Rights Council and the well-documented accounts that described the Bahraini government’s use of tear gas as “unnecessary, indiscriminate” and “lethal”.
Even though the US no longer exports tear gas to Bahrain, a US export leads many of Bahrain’s most repressive actions. John Timoney now heads Bahrain’s efforts to “reform” its police tactics. Shortly after he arrived there, Bahrain banned all protests and the death toll continued to mount. [Will Ray Kelly join Timoney soon? It would seem like such a natural fit for him.]
Stopping the tear gas shipment is a major victory for human rights in Bahrain, but Bahrain’s government continues its violent repression in many ways beyond tear gas. From Amnesty International’s 2013 report on Bahrain, we have this on incarceration of teens: Continue reading
On October 24, 2012, Nabila Rehman, who was eight years old at the time, was helping her grandmother pick vegetables in the family’s garden in North Waziristan. Here is her description of what happened next:
Remarkably, Pakistan’s government has now indirectly called Nabila’s grandmother, Mamana Bibi, a terrorist. That is because the government has released new figures, radically revising downward their estimate of civilians killed in US drone strikes in Pakistan. They must be calling Bibi a terrorist, because the figures claim that there were zero civilian casualties in 2012. Amnesty International provides many more details (pdf) on the strike that killed Bibi and on another strike in 2012 that killed eighteen civilian workers.
Here is Declan Walsh writing in the New York Times on the new figures from Pakistan:
In a surprise move, Pakistan’s government on Wednesday sharply revised downward its official estimate of civilian casualties caused by American drone strikes in the tribal belt, highlighting again the contentious nature of statistics about the covert C.I.A. campaign.
The Ministry of Defense released figures to lawmakers saying that 67 civilians were among 2,227 people killed in 317 drone strikes since 2008. The remainder of those killed were Islamist militants, the ministry said.
Recently, a United Nations special rapporteur on human rights and counterterrorism, Ben Emmerson, said that the Pakistani government had reported at least 400 civilian deaths since the drone campaign started in 2004.
In an email, Mr. Emmerson noted that the revised figures were “strikingly at odds” with those he had been given earlier by the Pakistani Foreign Ministry and said he would be writing to the government seeking clarification.
“It is essential that the government of Pakistan now clarify the true position,” he said.
BBC gives us the directly comparable figures from The Bureau for Investigative Journalism:
The latest figures released by Pakistan differ dramatically from previous estimates, but no explanation was given for the apparent discrepancy.
London’s Bureau of Investigative Journalism, which researches Pakistan drone strikes, told the BBC it estimated based on reports that between 308 and 789 civilians had died since 1 January 2008 (of between 2,371 and 3,433 total deaths).
Since 2008 then, Pakistan has now revised their civilian death toll estimate down to 67 during a period when TBIJ documents a minimum of 308 civilian deaths and as many as 789. Somehow, Pakistan has reclassified several hundred deaths from civilian to terrorist. And among them is Mamana Bibi, who is now a terrorist okra-picking grandmother. [That one hits me especially hard; I have fond memories of my grousing about how itchy the okra plants were when I picked okra with my grandfather in his garden.]
A group of 10 human rights groups have written President Obama a letter calling for him to fulfill his State of the Union promise of more openness about drone and/or targeted killing.
The letter calls for obvious sorts of transparency (including the public release of all CIA, DOD, and DOJ documents pertaining to drone and/or targeted killing, as well as sharing of information Congress needs to conduct oversight) and warns that several of the interpretations adopted by the US (for example, its overly broad definition of imminence) don’t abide by international law.
But I’m most interested in this passage:
Judicial review is a central pillar of checks and balances. It is essential for accountability and transparency. Yet, the administration’s position is that judicial review is “not appropriate” in targeted killings cases and it has invoked broad interpretations of the political question and immunity doctrines, Bivens special factors, and the state secrets privilege to obstruct litigation.
We do not believe that accountability and transparency will be improved by recent proposals to establish a FISA-like court to sanction lethal targeting operations. On the contrary, a special targeted killing court would give a veneer of judicial review to decisions to launch lethal strikes without offering a meaningful check on executive power. Instead, we urge the administration to cease making broad claims of non-justiciability or political question, to prevent cases alleging human rights or constitutional violations from being heard on their merits. [my emphasis; footnotes removed]
That all 10 groups — including ACLU, Amnesty International, Center for Constitutional Rights, Human Rights First, Human Rights Watch, and Open Society Foundations, as well as some smaller institutions — would agree on this point makes a powerful statement. It denies the Administration of whatever sanction it hoped a drone and/or targeted killing court might give to their extrajudicial killing program.
The Administration is still more likely to be influenced by increased reporting on the lies they’ve been telling about the program than even these human rights groups. But it is important to see this unified statement undercutting the Administration’s (and Dianne Feinstein’s) efforts to make this program look better by burying it in a secret court.
While the US enters its eleventh year of maintaining the Guantanamo Prison that Barack Obama pledged to close by the end of 2009, Pakistan now finds itself in the glare of international condemnation for its own practice of indefinite detention without charges. Just last month, Amnesty International released a report (pdf) in which they pointed out widespread torture and abuse in Pakistan’s tribal areas while prisoners are held by the military and intelligence agency without charges:
Amnesty International research shows that, rather than seeking to apply and strengthen the human rights safeguards of Pakistan’s ordinary criminal justice system in the Tribal Areas, the Pakistani authorities are applying old and new security laws that authorise prolonged, arbitrary, preventive detention by the Armed Forces, and breach international human rights law. The Actions (in Aid of Civil Power) Regulations 2011 (AACPR) in particular, along with the century-old Frontier Crimes Regulation 1901 (FCR),5 provide a framework for widespread human rights violations to occur with impunity.
Both the AACPR and FCR come into play in a case argued today in Pakistan’s Supreme Court. From Reuters, we learn that although this case addresses just 11 men (now 7 due to four deaths, more on that later), the government now admits that over 700 are being held without charges:
Pakistan is holding 700 suspected Islamist militants without charge under a law that has come under fire from human rights groups, its attorney general said on Thursday.
The admission marked the first time that the strategic U.S. ally detailed how many militants it is holding in the tribal areas of the northwest under the Actions in Aid of Civil Power Regulations law.
“There is a military operation in Waziristan. Under the law we cannot try these 700 people, nor can we release them, unless the operation is over,” Attorney General Irfan Qadir told the Supreme Court, referring to a tribal area near the Afghan border.
The Reuters report, however, seems to miss the mark on several important issues in this story. First, Reuters says the case is about “seven suspected militants held without charge since May 2010”. Both Dawn and the Express Tribune point out in their stories today that the case originated with 11 men. Here is how Dawn describes that part of the background:
The 11 prisoners in the said case went missing from the gate of Rawalpindi’s Adiyala Jail on May 29, 2010 after they had been acquitted of terrorism charges pertaining to their alleged involvement in the October 2009 attacks on the Army General Headquarters and the Inter-Services Intelligence’s (ISI) Hamza Camp in the garrison town.
Later, four of the 11 died in mysterious circumstances. The Supreme Court forced the ISI and military intelligence to produce the remaining seven men in court on February 13 — an unprecedented move. The men, all in deteriorating health, were sent to the Lady Reading Hospital in Peshawar on court orders. After five of them recovered, they were shifted to an internment centre in Parachinar.
The other point that Reuters seems to miss comes when Reuters says of the men that the “Supreme Court is calling for their release” while it appears on closer reading of the Pakistani press that the “release” is from military detention into the hands of civilian authorities who would then try the men. Here is the Express Tribune: Continue reading
On Tuesday, Bahrain banned all public protests in its continued effort to clamp down on a protest movement that began in February of last year. The State Department issued a weak condemnation of this move on Wednesday, although it is not clear just how the condemnation was delivered to Bahraini authorities. Remarkably, Retired Vice Admiral Douglas Katz, who is a previous commander of the Navy’s Fifth Fleet (which is based in Bahrain) penned an Op-Ed in The Hill on Monday, in which he made a miserable attempt to put a positive spin on US support for the repressive regime in Bahrain. In a rare moment of honesty, Katz did at least admit that the US must put up with Bahrain in order to assure the continued flow of oil from the Middle East.
The New York Times brought us word of the crackdown on protests:
Citing recent episodes of violence, the government of Bahrain on Tuesday banned all public rallies and demonstrations, a move that drew swift condemnation from human rights groups and opposition activists who said it was intended solely to stifle criticism of the ruling monarchy in the tiny Persian Gulf nation.
The Times article provides some context for the current development:
Since the beginning of the Arab uprisings almost two years ago, Bahrain’s government has struggled to contain the protests, which are focused on the ruling Sunni monarchy’s chokehold on political power and fed by persistent complaints by the island nation’s majority Shiite population of systematic, apartheidlike discrimination.
Backed by powerful allies, including Saudi Arabia and the United States, Bahrain’s government, its critics charge, has faced little pressure to change. The Fifth Fleet of the United States Navy is anchored in Bahrain.
The first few months of the protests saw an incredibly harsh response from Bahraini forces. The State Department’s May 24, 2012 Human Rights Report on Bahrain contains a summary of the information from the Bahrain Independent Commission of Inquiry (BICI), which was commissioned in June of 2011 and issued its report the following November:
There were a number of reports that government security forces committed arbitrary or unlawful killings. The BICI report attributed 19 civilian deaths in the spring to security forces; of these it attributed 14 to the Ministry of Interior (MOI), three to the Bahrain Defense Force (BDF), one to the Bahrain National Security Agency (BNSA), and one to an unnamed security agency. Thirteen of these deaths were due to the use of firearms, five to torture in custody, and one to physical injuries as the result of beating. Of the 14 deaths attributable to the MOI, the BICI concluded that nine resulted from excessive use of force and three from mistreatment in custody; there was not enough evidence to determine cause of death in the other two cases. Of the five persons whose deaths resulted from torture, three died in MOI custody, one four days after being released from MOI custody, and one at the BDF Hospital after being transferred from BNSA custody (see section 1.c., Prison and Detention Center Conditions). The BICI report also discussed 11 deaths that took place beyond the February-March period covered by its report, for which it did not assign responsibility. It noted, however, that the deaths may have been the result of incidents related to protest activity or excessive use of force by security forces (see also section 2.b., Freedom of Assembly). Local human rights organizations maintained that six additional deaths were linked indirectly to clashes between protesters and security forces, particularly due to exposure to tear gas.
Among the moves to “reform” Bahrain’s security apparatus after the initial violent repression of the protests, Bahrain brought in former New York, Philadelphia and Miami Police Chief John Timoney. The Guardian covered the announcement: Continue reading
As I noted yesterday, the Administration appealed the 2nd Circuit Decision granting review of the FISA Amendments Act to the Supreme Court last week. I wanted to talk about their argument in more detail here.
Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.
Third, if the Court affirms (or denies certiorari), this case could very well finally settle the question whether the Fourth Amendment’s Warrant Clause includes a “foreign intelligence surveillance exception,” as the FISA Court of Review held in the In re Directives decision in 2008. That’s because on the merits, 50 U.S.C. § 1881a(b)(5) mandates that the authorized surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment, explication of the (as yet unclear) Fourth Amendment principles that govern in such cases would necessarily circumscribe the government’s authority under this provision going forward (especially if In re Directives is not followed…).
I would go further and say that this case will determine whether there is what I’ll call a database-and-mining exception allowing the government to collect domestic data to which no reasonable suspicion attaches, store it, data mine it, and based on the results of that data mining use the data itself to establish cause for further surveillance. Thus, it will have an impact not just for this warrantless wiretapping application, but also for things like Secret PATRIOT, in which the government is collecting US person geolocation data in an effort to be able to pinpoint the locations of alleged terrorists, not to mention the more general databases collecting things like who buys hydrogen peroxide.
I make a distinction between foreign intelligence surveillance and “database-and-mining” exceptions because the government is, in fact, conducting domestic surveillance under these programs and using it to collect intelligence on US persons (indeed, when asked about Secret PATRIOT earlier this month, James Clapper invoked “foreign or domestic” intelligence in the context of Secret PATRIOT). The government has managed to hide that fact thus far by blatantly misleading the FISA Court of Review in In re Directives and doing so (to a lesser degree) here.
In In re Directives, the government misled the court in two ways. First, according to Russ Feingold, the government didn’t reveal (and the company challenging the order didn’t have access to) information about how the targeting is used. The amendments he tried to pass–and which Mike McConnell and Michael Mukasey issued veto threats in response to–suggest some of the problems Feingold foresaw and the intelligence community refused to fix: reverse targeting, inclusion of US person data in larger data mining samples, and the retention and use of improperly collected information.
The government even more blatantly misled the FISCR with regards to what it did with US person data.
The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions to not render those acquisitions unlawful.9 [citations omitted] The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.
9 The petitioner has not charged that the Executive Branch is surveilling overseas persons in order intentionally to surveil persons in the United States. Because the issue is not before us, we do not pass on the legitimacy vel non of such a practice.
The notion that the government doesn’t have this US person data in a database is farcical at this point, as the graphic above showing the relative size of the NSA’s data center in UT–which I snipped from this larger ACLU graphic–makes clear (though the government’s unwillingness to be legally bound to segregate US person data made that clear, as well). Continue reading
On Friday, the government appealed the 2nd Circuit’s decision that Amnesty International and other NGOs and individuals have standing to challenge the FISA Amendments Act. I’ll have a post on the implications of their substantive argument shortly. But in the meantime, I wanted to note what they’re not even addressing.
The image to the left is a fragment of the government’s references to statutes and regulation mentioned in its brief; it’s the part of the list referring to the part of the FAA in question. As you can see, it almost–but not quite–lists every clause of the law.
One clause notably missing from the almost-sequential list above is 1881a(b)(4), which reads,
[An acquisition authorized under subsection (a)] may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;
And while it mentions clauses that refer back to this restriction (for example, 1881a(c)(1), 1881a(d), 1881a(g)(2)(A)(i), etc), it never goes back and includes this language–the requirement that the government not intentionally acquire communications that are located entirely within the US–in its argument. (There are other clauses the brief ignores, a number of which pertain to oversight of the certifications the government has made; I may return to these at a future time.)
Or, to put it another way, the government never admits that the FAA permits the purportedly unintentional collection of entirely domestic communication.
And yet that is a part of this lawsuit. The original complaint in this suit invoked this clause:
An acquisition under section 702(a) may not … “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States
Moreover, the Attorney General and the DNI may acquire purely domestic communications as long as there is uncertainly about the location of one party to the communications.
And the 2nd Circuit opinion (authored by Gerard Lynch) referenced this clause:
“Targeting procedures” are procedures designed to ensure that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and is designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”
In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;
Under the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.
But the government has not asserted, and the statute does not clearly state, that the FISC may rely on these assessments to revoke earlier surveillance authorizations.
Now, to some degree, the government might argue it ignored the clause prohibiting intentional–but not accidental–targeting of domestic communications because the plaintiffs’ primary basis for establishing standing is their frequent communication with likely targets overseas. As I’ll show, the government wants to make this case about a particular definition of a target, and key to that argument is a claim that it is impossible for the plaintiffs to be targets.
Yet therein lies one of the key problems with their argument, given that 1881a(b)(4) only prohibits the plaintiffs from being intentional targets; the FAA very pointedly did not prohibit the government from keeping US person information it “unintentionally” collected. In fact, Mike McConnell and Michael Mukasey started issuing veto threats when Russ Feingold tried to restrict the ongoing use of domestic communications identified as such after the fact.
Finally, in the one case that approved this kind of collection (though under the Protect America Act, not the FAA) used targeting procedures to substitute for particularity required under the Fourth Amendment. Under PAA, those procedures were not mapped out by law; under FAA they are, partly in the clause the government wants to ignore.
And yet, remarkably, the government doesn’t want that clause to be part of its discussion with SCOTUS. Seeing as how even the FISA Court of Review finds that substitute for particularity–the targeting procedures–to be a key part of compliance with the Fourth Amendment, you’d think that would be relevant.