Topic: Law and Civil Liberties

Remembering Esequiel Hernandez

Tonight PBS is airing a documentary about Esequiel Hernandez. Hernandez was a high school student who was shot and killed by U.S. Marines on the Mexican border in 1997. The soldiers were on an anti-drug mission. After the killing, all military personnel were removed from the border, but President Bush ordered troops back to the border shortly after 9/11. For a 3 minute clip/preview, go here.

For more about the role of the military in the homeland, go here. For more about the militarization of police tactics, go here.

Telco Immunity Is Just the Icing on the FISA Bill

I’ve got an in-depth piece at Ars Technica examining the provisions of the FISA “compromise” that the Senate will vote on this week. Most of the media coverage has focused on the telecom immunity question, but I thought it was important to dig into the law’s other provisions, which are potentially more important in the long run. Sadly, but not unexpectedly, the news isn’t good:

When it comes to judicial oversight of domestic-to-foreign calls, the legislation the House passed last month is an unambiguous victory for the White House and a defeat for civil libertarians. The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on “authorizations” of surveillance programs “targeting people reasonably believed to be located outside the United States.” The government is required to submit a “certification” to the FISA court describing the surveillance plan and the “minimization” procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to “identify the specific facilities, places, premises, or property” at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA’s discretion and unreviewed by a judge. Moreover, the judge’s review of the government’s “certification” is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification “contains all the required elements,” that the targeting procedures are “reasonably designed” to target foreigners, and that minimization procedures have been established.

Crucially, there appears to be no limit to the breadth of “authorizations” the government might issue. So, for example, a single “authorization” might cover the interception of all international traffic passing through AT&T’s San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly “targeted” at foreigners.

The House legislation also drastically extends the timeline for reviewing surveillance activities, potentially allowing the government to commence eavesdropping and then drag out judicial review for months. Under existing law, the government must obtain judicial approval within 72 hours of the start of emergency wiretapping. In contrast, the judicial review of “certifications” can stretch out as long as four months. After beginning eavesdropping, the government has a week to submit its “certification” to the FISA court, which has 30 days to review the application. If the judge finds problems with the certification, the government can continue eavesdropping for another 30 days before it is required to comply with the order. And the government can buy still more time by filing an appeal to the FISA Court of Review. The appeals court may take as long as 60 days to make its decision, and the government will often be allowed to continue eavesdropping throughout the process of judicial review. This means that in many cases, the government will have completed its spying activities long before the courts reach a decision on its legality.

I point out that after a 2002 court decision, there are now few restrictions on coordination between intelligence-gathering and law enforcement agencies. So while the NSA wouldn’t be able to specifically target American citizens for surveillance, it could follow suggestions from the FBI to tailor its filters to intercept evidence of American citizens engaged in, say, tax evasion or Internet gambling. Terrorism would need to be a “significant purpose” of the surveillance, but if these “intelligence gathering” activities can be designed to also catch a significant number of domestic criminals, so much the better!

It’s also important to remember that, as I write over at the Technology Liberation Front, the FBI has a long history of engaging in illegal wiretapping even when doing so is expressly prohibited by statute. The same is true of the NSA. Therefore, it’s sheer fantasy to imagine that the executive branch won’t exploit every loophole available to it. Federal spying agencies will do what they’ve always done: push the law to the breaking point in pursuit of more sweeping spying powers, and maybe break the law outright. This is why judicial oversight is so important, and why it’s so disturbing to see Congress replace traditional warrants with “certifications” that can cover broad eavesdropping programs. That will make abuses of power much easier to carry out and much harder for judges to monitor.

“Vascular Restraint”

Tennessee Bureau of Investigation is looking into an officer’s chokehold.  The choke was not used against a violent individual.  It was used against a young man who was already in handcuffs.  Suspicion of marijuana possession.  The young man quickly faints.

Video clip here.  For more on the drug war, go here.  For more about doublespeak, go here.

Passport Snooping Scandal Grows

From the Washington Post:

Government workers repeatedly snooped without authorization inside the electronic passport records of entertainers, athletes and other high-profile Americans, a State Department audit has found. One celebrity’s records were breached 356 times by more than six dozen people.

The Inspector General compiled a list of popular and interesting people, then examined the number of accesses to their files.

As the investigation continues down the chain — and it should — it is very likely to find that ordinary citizens’ data was accessed too — not out of curiosity, but for the purposes of committing identity theft. More than 20,000 people in the State Department and Department of Homeland Security had access to the electronic system that maintained the passport records. There’s a bad seed or two in any group that size.

The IG has issued numerous recommendations for improvement, likely things that should have been implemented long ago. But know one thing: Security risks like this are an inseparable product of government policies that collect personal information in databases and then make it widely accessible. Proponents of national ID systems like REAL ID and the nationwide government background check system envisioned by E-Verify may dream about them being secure, but it’s just a dream.

More on passport snooping here and here.

When the Police ‘Take the Fifth’

Local incident here in the DC suburb of Prince George’s County:  The police are trying to solve a murder, but they can’t get useful information from certain key witnesses–even though those witnesses are themselves law enforcement officers. 

It sounds quite odd until you hear the additional details.  The murder victim was suspected of killing a police officer in the line of duty.  Seems like police vigilantism.  Marc Fisher has a good column about the death of Ron White here.  And the Washington Post has an editorial here.

This incident provides me with a rare opportunity to criticize the Supreme Court for carrying a provision of the Bill of Rights too far.  To briefly digress, never accept the blithe assertion that “sometimes the courts mistakenly expand the government’s powers and sometimes the courts mistakenly expand the constitutional rights of individuals.”  That’s true, but very misleading because it sounds as if it all evens out in the end.  Not true.

In Garrity v. New Jersey, the Supreme Court said police officers could “take the Fifth” with respect to internal investigations into police misconduct.  Now police officers, like anyone else, can “take the Fifth” when threatened with arrest and prosecution.  However, they should not be able to take the Fifth when they are threatened with the loss of their job.  Or, to be more precise, they can invoke the Fifth if they choose, but the police chief can then respond by demanding that they turn in their badges.  The dissenting opinion in Garrity contains this quote from one Judge Jerome Frank:

 “ ‘Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but … they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them.’ Christal v. Police Commission of San Francisco.

Oliver Wendell Holmes once said, men may have the right to remain silent, but they do not have the constitutional right to be police officers.  Holmes was right and Garrity was wrong. 

Returning now to the apparent murder of Ron White in his jail cell, the silence of the correctional officers is simply inexcusable.  County officials should give these officers an ultimatum: You have 24 hours to come forward and tell us what you know.  Anyone who remains silent will be discharged.  And, note well, the criminal investigation will continue in any event.  The local police union will object, but let it.  Garrity was decided by a narrow, 5-4 vote.  It was incorrectly decided and ought to be overturned.  This case could be the perfect vehicle for accomplishing just that.

Under current law, citizens can lose their jobs and risk jail for refusing to cooperate with private investigators.  It is perverse for the law to permit a double standard for state employees–especially the police.  One would think that the law would hold the police to a higher standard here.

Post Editorial on FISA

Disturbed that a public outcry over retroactive immunity for telecommunications companies might snarl the FISA “compromise” in the Senate, this Washington Post editorial calls the debate: “A particularly disturbing example of the Internet tail wagging the legislative dog.”

Others might call it democracy.

The editorial goes on:

No one can claim with certainty that his or her communications were monitored. The likelihood of prevailing – or even getting very far – with such lawsuits is low. The litigation seems aimed as much at using the tools of discovery to dislodge information about what the administration actually did as it is at redressing unknown injuries.

Leaving aside the question of whether uncertainty about whether someone is listening to your calls isn’t itself a harm sufficient for standing, you have to wonder why the Post thinks that dislodging information about an illegal wiretapping programs is nefarious.

It goes on to discuss the telecoms:

Punishing them by forcing them to endure the cost and hassle of lawsuits would be counterproductive to securing such cooperation in the future, while offering little prospect of a useful outcome.

Preventing their cooperation in future illegal activity at the behest the President seems like a useful outcome to me.