Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger
When the Patriot Act was signed into law back in 2001, there was significant discussion about and distrust in the broad powers granted to the FBI and other intelligence gathering agencies. I won’t go into the uproar that ensued back then, but I do want to discuss the latest events pertaining to the infamous Section 215 of the Patriot Act. Section 215 of the Patriot Act is the section that has been dubbed as the “business records” provision of the Act. In the last few days, two United States Senators reconfirmed their concern over the possible misuse of the broad powers granted to the government in Section 215. Senator Ron Wyden and Senator Mark Udall have made public their recent letter to Attorney General Holder expressing their grave concerns on just how Section 215 is being interpreted and used to spy on Americans.
“It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or “FISA Court”) has been acknowledged on multiple occasions by the Justice Department and other executive branch officials. We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.
As we have said before, we believe that it is entirely legitimate for government agencies to keep certain information secret. Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected any more than early Americans expected George Washington to tell them his plans for observing troop movements at Yorktown. However, in a democratic society — in which the government derives its power from the consent of the people — citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to know how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don’t think that government officials should be writing secret law.” ACLU The full text of the letter can be found here.
What is amazing to me is not that the government is spying on us, but that they have no qualms in spying on us using any and all legal and maybe not so legal measures as hinted at by Senators Wyden and Udall. If I understand the concern of the Senators and the ACLU, the issue revolves around how the Justice Department is interpreting Section 215 and how easily the Feds can spy on Americans without any showing of actual criminal behavior on the citizen’s part.
“This isn’t the first time the ACLU has sought information about the government’s use of this provision. Back in 2002, we filed a FOIA suit that eventually resulted in the release of a few hundred documents — including this, this, and this. But now the FBI is using Section 215 much more aggressively. It’s using it more often. And statements by Obama administration officials raise the distinct possibility that the government is using the provision to support entire surveillance programs.
As Wyden and Udall say, the secrecy surrounding the government’s use of new surveillance powers is unwarranted and fundamentally antidemocratic. The public should know, at least in general terms, how the government interprets its surveillance authority and how that authority is being used.” ACLU
The linked articles in the above quote from the ACLU hint that intelligence experts believe that Section 215 is being misused to allow the government to obtain massive amounts of geolocation information obtained from cell phones. Of course, unless the government discloses just how they are interpreting Section 215 in their dealings with the Foreign Intelligence Surveillance Court (FISA), we may never know. However, when United States Senators are publicly nervous about the use of this allegedly misguided data collection process, then we should probably be really worried.
If the government is “stretching” the logical interpretation of the language in Section 215 to allow for massive date collection programs, what good is the FISA court if they are rubber stamping this type of alleged program? What happened to the Obama Administration’s promise to be more transparent than past administrations when it came to their dealings with the Patriot Act and the FISA court?
We should not be surprised at the government’s “handling” of these Section 215 matters since Senator Durbin and then Senator Feingold went on record in the Senate with their grave concerns over misuse of Section 215 powers.
“Section 215 has been repeatedly abused On October 1, 2009, Senator Feingold made several statements regarding abuses of Section 215 during a Senate Judiciary Committee markup hearing: “I remain concerned that critical information about the implementation of the Patriot Act remains classified. Information that I believe, would have a significant impact on the debate….. There is also information about the use of Section 215 orders that I believe Congress and the American People deserve to know. It is unfortunate that we cannot discuss this information today Mr Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting.I want to specifically disagree with Senator Kyle’s statement that just the fact that there haven’t been abuses of the other provisions which are Sunsetted. That is not my view of Section 215. I believe section 215 has been misused as well.” Likewise, after the Senate rejected several reforms of Section 215 powers in 2009, Senator Durbin told his colleagues that: “[T]he real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will whether ask our actions today meet the test of a democratic society: transparency, accountability, and fidelity to the rule of law and our Constitution.” ‘ Paranoia
I only wish that I had Senator Durbin’s confidence that the cloak of secrecy will ever be lifted. Do you think the government should be required to disclose the Office of Legal Counsel memos that reportedly have authorized this over broad interpretation of Section 215? If the government is allowed to spy on Americans who are not subjects of criminal or terror investigations, have the Fourth and Fifth Amendments been essentially neutered? Is there any hope of the Patriot Act being brought under control, especially when so much of its use is hidden under the National Security label? What do you think should be done?
Reprisal, reprisal, reprisal. Wait, they’ve just started.
They are competing to see which governor comes up with the best cranking of civil rights law. We won’t get to see the award ceremony. Only on CCTV for exclusive group. Top one percent.
OT every baby is DNA’d at birth here. But requires extraordinary measures to be used in criminal cases.
Does NY have an adultery law? How many have violated that. All of you? (rising intpnation)
rafflaw, Thanks for the additional information. What do think about DNA collection for misdemeanor arrests? (I wonder if this is a part of Cuomo’s strategy to position himself for 2016 as a “tough on crime” guy…)
Thanks anon nurse. This was done recently at another mass arrest for OWS. It is astounding that it wasn’t front page news everywhere!
Andrew Cuomo’s “All Crimes DNA” Law: Yay Or Nay?
by James King Tue., Mar. 20 2012
http://blogs.villagevoice.com/runninscared/2012/03/andrew_cuomos_a.php
Excerpt:
Governor Andrew Cuomo made it official yesterday: anyone convicted of any felony or penal law misdemeanor will have their DNA entered into a government databank.
There are obvious pros and cons to the new law — on the positive side, having more DNA samples in the state’s database will increase law enforcement’s chances of solving crimes where there is DNA evidence. On the cons side, the law is a bit big brother-y — especially when you look at some of the “crimes” that would give the government the right to someone’s DNA.
Click here for a list of some of the more ridiculous crimes that would now give the government the right to take your DNA (spoil alert: being too loud in church, adultery, and fortune telling are some of the crimes on the list.
Additionally, Civil rights groups argue that the law goes too far, and that it opens the door for potential error and fraud at state crime labs.
OT:
http://blogs.villagevoice.com/runninscared/2012/03/as_occupy_arres.php
As Occupy Arrestees Arraigned, Iris Scans Affect Bail
By Nick Pinto
Mar. 19 2012 at 5:00 AM
Excerpt:
Refuse to have your iris photographed, and your bail could go up.
The first of the more than 70 Occupy Wall Street protesters arrested Saturday afternoon and evening were arraigned yesterday in Manhattan Criminal Court.
Exhausted by a night and day in jail and shaken by the violence of the police response to Occupy Wall Street’s six-month anniversary celebration, many burst into tears of relief when they were finally released to the friendly welcome of the movement’s Jail Support team.
Unlike many of the other defendants with whom they shared cells, the protesters could feel confident that they would soon be released — Occupy posts bail for those arrested during movement actions.
But protesters and their legal advisers were surprised yesterday to learn that the size of their bail was being affected by whether defendants were willing to have the distinctive patterns of their irises photographed and logged into a database. (end of excerpt)
tanis118 1, March 20, 2012 at 8:45 am
As I understood the FISA Court, its purpose is to review *specific*, particular affidavits for search, arrest, or wiretap warrants in camera & then grant them or not; either way, the result would be classified.
But PRECEDENTS & case law–no, no, no, that is much more sweeping & probably unconstitutional. What if FISA judges issue a classified ruling that warrantless wiretaps are legal? How would a potential litigant even know that they might be victimized? How would they know to file for a writ of certioarari, and with whom would they file it? Would a FISA judge refuse to submit to the authority of the Supreme Court itself b/c its justices lack security clearance? Then what of Article III, Sec. 2: “The judicial power [of the S.C.] shall extend to *all* cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which *shall be made*” (emphasis added)?
To me, FISA making classified case law is no better than military tribunals for Americans & terror suspects being unable to see the evidnd3e against them oe confront their accusers. Extraordinary measures may be needed, even proper, but only if FISA is a check, not a rubber stamp.
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Agreed.
Further on the Greenwald point:
What gives a counsel, albeit to the Prez, the right to have a binding interpretation of the law?
For my money, feel any memos by the counsel should be reviewed by appropriate court—-you to judge which.
It ain’t legal unless signed off by a court other than FISA.
BTW, fisa means fart in swedish, yeah, really. fisa is usually used for soundless ones however.
Two great links anon nurse! The Greenwald one is too true.
March 19, 2012
D.C. Circuit Weighs U.S. Citizen’s Torture Suit Against Rumsfeld
http://legaltimes.typepad.com/blt/2012/03/dc-circuit-weighs-us-citizens-torture-suit-against-rumsfeld-.html
A little OT, but connected, if one is aware of what it currently taking place domestically:
Tuesday, Mar 20, 2012
“Ironies in American justice and political cheerleading”
by Glenn Greenwald
http://www.salon.com/2012/03/20/ironies_in_american_justice_and_political_cheerleading/singleton/
Excerpt:
A reader reminded me of this yesterday and it’s really quite something: in July, 2009, NBC‘s Chuck Todd went on Morning Joe to defend President Obama’s decision to shield all Bush officials from prosecution for torture, arguing that because Bush got his lawyers to say he could torture, it was legal. I interviewed/debated Todd a couple of days later about those views, but before I did, I wrote a reply to the argument he made on television. When doing so, I tried to think of the most extreme tyrannical and lawless power possible which a President could hypothetically assert, in order to reveal the invalidity of Todd’s reasoning, and this is what I wrote:
I’d like to ask Chuck Todd: if Bush had John Yoo write a memo opining that it was perfectly legal for Bush to deploy hit squads within the U.S. to assassinate American citizens without any due process, would it be wrong to investigate and prosecute that, too, on the ground that everyone had permission slips from a DOJ lawyer and that’s just what lawyers do?
The current President has, of course, obtained his own DOJ permission slip to assassinate American citizens without due process. Since that permission slip is too secret for us to see, we do not know whether the authorized assassination power is confined to foreign soil or extends to the U.S., although once one embraces the Bush-Cheney-Yoo theory that the entire world is a “battlefield,” there is no coherent way to limit those asserted powers to foreign soil. In any event, the real point here is that our government has become so radical and warped that it outstrips one’s ability to create absurd hypothetical powers to test the validity of a principle: before you blink your eyes, you find that your hypothetical has become reality. (and the article continues)
———
So the question posed by Greenwald to Todd was this:
“I’d like to ask Chuck Todd: if Bush had John Yoo write a memo opining that it was perfectly legal for Bush to deploy hit squads within the U.S. to assassinate American citizens without any due process, would it be wrong to investigate and prosecute that, too, on the ground that everyone had permission slips from a DOJ lawyer and that’s just what lawyers do?”
Something akin to this is going on domestically. People are being targeted and systematically terrorized in their communities without due process of law. To paraphrase Thomas Drake: “This is not the country we want to keep”, for ourselves or our children and grandchildren.
As I understood the FISA Court, its purpose is to review *specific*, particular affidavits for search, arrest, or wiretap warrants in camera & then grant them or not; either way, the result would be classified.
But PRECEDENTS & case law–no, no, no, that is much more sweeping & probably unconstitutional. What if FISA judges issue a classified ruling that warrantless wiretaps are legal? How would a potential litigant even know that they might be victimized? How would they know to file for a writ of certioarari, and with whom would they file it? Would a FISA judge refuse to submit to the authority of the Supreme Court itself b/c its justices lack security clearance? Then what of Article III, Sec. 2: “The judicial power [of the S.C.] shall extend to *all* cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which *shall be made*” (emphasis added)?
To me, FISA making classified case law is no better than military tribunals for Americans & terror suspects being unable to see the evidnd3e against them oe confront their accusers. Extraordinary measures may be needed, even proper, but only if FISA is a check, not a rubber stamp.
Dredd,
Have we not been in accord in this. I posted it, you posted it. We both see it as war preparation. Thanks fo the Huff link anyway.
Saw (where?) a claim that Israel using our tech, made a creuse missile, sold it to China, who sold their version to Iran, which are threatening US war ships in Hormuz straits.
Heard of it?
A buck is a buck as some say.
Bron,
I asked several questions, which one are you referring to?
idealist707 1, March 19, 2012 at 1:47 pm
Dredd,
Did I promise a “secret shocking interpretation of DOJ?????
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Not that I recall.
Anyway, here is a shocking interpretation in accord with mine, from a generally main stream blog source.
rafflaw:
you have to ask that question?
True enough, Dredd.
anon nurse 1, March 19, 2012 at 1:31 pm
“The arc of the moral universe is long, but it bends towards justice”
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Tru dat.
Problem is, if we “continyah ta continyah” (LBJ) as we are, we will most certainly not like that justice as much as we let on.
Dredd,
that shocker was promised by the two senators referring to the publics reaction if they would know what they knew—but were forbidden to reveal.
And they were asking what else does DoJ have secret about DoJ interpretation of the P act which the senators don’t know of and the ACLU wants to know about——I think.
Dredd,
Did I promise a “secret shocking interpretation of DOJ?????
Am confused. As for nitpicking that’s all am good for.
The two senators letter to DoJ is a shock enough.
got a video from FoX by judge napolitano where he condemns with explicit facts the P act as the greatest act against the big C. since 1776.
He said, I believe that the P must have taken over 5 years to prepare, as it contained short changes to the wording of over 200 existing laws.
And it was released 3 hours before it was voted on. No congressman could have read it before voting. And only 3 voted no, I believe he said.
Don’t watch fox, but a link on P got me to his video clip.