Ben Schreckinger at POLITICO has a story out today that every American concerned about the current political climate in our country should read. With the lede of “Trump Protesters Plan to Build ‘Tea Party’ of the Left,” Schreckinger quotes several progressive activists, including former Occupy Wall Street veteran Micah White. It’s worth quoting White in full, because his comments will absolutely draw the attention of officials at the FBI and DHS:
American activists are finally starting to understand that protest is broken. The people cannot attain sovereignty over their governments by collective protest in the streets. There are only two ways to achieve sovereignty in this world: Win elections or win wars. Now that street protest is not an option, we will see the Trump resistance split into these two fronts. Some will pursue the strategy of using social movements to [win] elections while others go down the dark path of '70s guerrilla insurrection. I advocate winning elections.
Without question, the Founders would agree with much of what White says. American colonists spent over a decade trying to get Crown authorities to understand that every new tax or regulation imposed on them without their consent was creating resentments and opposition to British rule that, if not resolved peacefully, would lead to armed conflict.
Some in Parliament understood the dangers and sympathized with Americans—but not enough. It’s worth remembering that the Continental Congress was formed almost a full year before the Declaration of Independence was issued. The warning signs were there, but George III doubled-down on repression rather than negotiate with the colonists. The rest, as they say, is history. The question raised by White’s comments and the rest of Schreckinger’s piece is whether that history is about to repeat itself, this time with the federal government in the lead role of political oppressor.
The Guardian has a story out today outlining--to the extent that the Clinton campaign would do so--what the ex-Secretary of State would do vis a vis national security policy if she becomes the next occupant of the Oval Office. For those concerned with our out-of-control, post-9/11 Surveillance State, these three paragraphs should give you pause:
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Domestically, the “principles” of Clinton’s intelligence surge, according to senior campaign advisers, indicate a preference for targeted spying over bulk data collection, expanding local law enforcement’s access to intelligence and enlisting tech companies to aid in thwarting extremism.
The campaign speaks of “balancing acts” between civil liberties and security, a departure from both liberal and conservative arguments that tend to diminish conflict between the two priorities. Asked to illustrate what Clinton means by “appropriate safeguards” that need to apply to intelligence collection in the US, the campaign holds out a 2015 reform that split the civil liberties community as a model for any new constraints on intelligence authorities.
The USA Freedom Act, a compromise that constrained but did not entirely end bulk phone records collection, “strikes the right balance”, Rosenberger said. “So those kinds of principles and protections offer something of a guideline for where any new proposals she put forth would be likely to fall.”
The public relations and legal battle between the Federal Bureau of Investigation and Apple over the company's use of encryption has put the focus on executive branch surveillance in a way not seen since Edward Snowden's revelations almost three years ago. However, as the historical record demonstrates, the FBI's domestic spying on the American public dates almost from the Bureau's creation in July 1908. In the years that followed the FBI's birth, other federal agencies--some civilian, some military--initiated their own warrantless domestic surveillance operations. Throughout this period, Congress was more frequently aiding and abetting this surveillance and repression, rather than preventing it or reining it in.
As the showdown between Apple and the FBI illustrates, what has changed is the technology used to accomplish the surveillance--technology that now gives federal law enforcement and intelligence agencies the ability to surreptitiously access the computers, smartphones, and even home appliances of tens of millions of Americans.
Today, the Cato Institute is launching a timeline that chronicles the history and implications of these developments: American Big Brother: A Century of Political Surveillance and Repression.
Too often, federal domestic surveillance of citizens was a prelude to government actions aimed at subverting civil society organizations opposed to American involvement in foreign wars, aiding conscientious objectors, advancing civil rights and political autonomy for people of color, the creation of labor unions, and even surveillance of candidates running for or holding office--including members of Congress and presidential contenders.
As political scientist Robert Justin Goldstein noted in his 1978 book, Political Repression in Modern America: 1870-1976, "American social scientists have not seriously considered political repression as one important factor which helps explain the narrowness of the American political spectrum..." Put differently, through the use of surveillance, agent provocateur's, and outright violence, federal officials often decided what political views were or were not permissible to hold and practice in the American political system.
Yesterday, in a case called Hassan v. The City of New York, the Third Circuit Court of Appeals reinstated a lawsuit accusing New York City of violating the 1st and 14th Amendment rights of Muslim-Americans in New Jersey under a sprawling and ineffective NYPD surveillance dragnet.
The ruling overturns a decision by the United States District Court for the District of New Jersey dismissing the suit for lack of standing and for failing to state a claim.
In layman’s terms: the district court, without a trial or the presentation of evidence, ruled that the plaintiffs weren’t harmed unjustifiably, that they hadn’t alleged sufficient wrongdoing by the police, and that they had no right to sue. The Third Circuit ruling rejects those determinations and the case will now move forward at the district court.
An Associated Press investigation uncovered the NYPD program in 2011 and detailed the immense breadth of the NYPD’s surveillance efforts against the Muslim community in several states. Police officers and informants infiltrated dozens of mosques. Police installed surveillance cameras so that Muslim-owned businesses, places of worship, and residences in New Jersey could be surveilled remotely. The NYPD even sent undercover officers to infiltrate Muslim student organizations at out-of-state universities such as Yale and the University of Pennsylvania, including one field trip to go whitewater rafting. Those agents recorded the names of the students, how often they prayed, and what they talked about. The NYPD is alleged to have “generated reports on every mosque within 100 miles of New York City.”
Despite the cost and the seemingly boundless geographic and jurisdictional scope of the spying program, there is little evidence of success. In fact, the now-defunct "Demographics Unit," a central component of the program, generated no convictions or, according to one agent deposition, even any tangible leads in more than a decade of operation.
National Journal has a new piece out today that highlights the continuing controversy over the Federal Aviation Administration's failure thus far to publish a final rule governing the operation of drones in domestic airspace (FAA's current unmanned aerial system (UAS) guidance can be found here). One thing the FAA will not be doing is wading into the commercial sector privacy debate over drones; it has punted that issue to the National Telecommunications and Information Administration (NTIA). But what about federal agencies and their use of UASs?
Federal domestic UAS use has a checkered history.
In December 2014, the Department of Homeland Security's Inspector General issued a report blasting the Customs and Border Protection (CBP) drone program as waste:
- The unmanned aircraft did not meeting the CBP Office of Air and Marine (OAM) goal of being airborne 16 hours a day, every day of the year; in FY 2013, the aircraft were airborne 22 percent of the anticipated number of hours.
- Compared to CBP’s total number of apprehensions, OAM attributed relatively few to unmanned aircraft operations.
- OAM could not demonstrate that the unmanned aircraft have reduced the cost of border surveillance.
- OAM expected the unmanned aircraft would be able to respond to motion sensor alerts and thus reduce the need for USBP response, but the IG found few instances of this having occurred.
In a ruling certain to profoundly shape the ongoing debate over surveillance reform in Congress, the U.S. Court of Appeals for the Second Circuit today held that the National Security Agency's indiscriminate collection of Americans' telephone calling records exceeds the legal authority granted by the Patriot Act's controversial section 215, which is set to expire at the end of this month. Legislation to reform and constrain that authority, the USA Freedom Act, has drawn broad bipartisan support, but Senate Majority Leader Mitch McConnell has stubbornly pressed ahead with a bill to reauthorize §215 without any changes. But the Second Circuit ruling gives even defenders of the NSA program powerful reasons to support reform.
McConnell and other reform opponents have consistently insisted, in defiance of overwhelming evidence, that the NSA program is an essential tool in the fight against terrorism, and that any reform would hinder efforts to keep Americans safe—a claim rejected even by the leaders of the intelligence community. (Talk about being more Catholic than the Pope!) Now, however, a federal appellate court has clearly said that no amount of contortion can stretch the language of §215 into a justification for NSA's massive database—which means it's no longer clear that a simple reauthorization would preserve the program. Ironically, if McConnell is determined to salvage some version of this ineffective program, his best hope may now be... the USA Freedom Act!
The Freedom Act would, in line with the Second Circuit opinion, bar the use of §215 and related authorities to indiscriminately collect records in bulk, requiring that a "specific selection term," like a phone number, be used to identify the records sought by the government. It also, however, creates a separate streamlined process that would allow call records databases already retained by telephone companies to be rapidly searched and cross-referenced, allowing NSA to more quickly obtain the specific information it seeks about terror suspects and their associates without placing everyone's phone records in the government's hands. If the Second Circuit's ruling is upheld, NSA will likely have to cease bulk collection even if Congress does reauthorize §215. That makes passage of the Freedom Act the best way to guarantee preservation of the rapid search capability McConnell seems to think is so important—though, of course, the government will retain the ability to obtain specific phone records (albeit less quickly) under either scenario. With this ruling, in short, the arguments against reform have gone from feeble to completely unsustainable.
At first glance, the USA Today headline seemed like many others in the nearly two years since Edward Snowden’s explosive revelations: U.S. secretly tracked billions of calls for decades. And while the program essentials were the same—the secret collection of the telephone metadata of every American– there were two key differences between this story and the hundreds before it on this topic. The offending government entity was the Drug Enforcement Administration, and the warrantless surveillance program was launched during the first Bush administration.
Justice Department officials told Reuters that, “All of the information has been deleted.” “The agency is no longer collecting bulk telephony metadata from U.S. service providers.” However, DoJ provided no actual proof of the alleged data destruction, and the DoJ Inspector General only recently began an inquiry into the program. While it now seems fairly clear that the DEA’s “USTO” metadata collection program served as a model for the NSA telephony metadata program conducted under Sec. 215 of the PATRIOT Act, what is also clear is that Americans are now confronting a government surveillance apparatus that is truly vast. As Ryan Gallagher of The Intercept noted, this particular DEA mass surveillance program is just one of several undertaken by the agency over the past three decades.
How many other such programs exist at other federal agencies, whether inside or outside of the U.S. intelligence community? And how far back do such programs go? How many members of Congress knew, and for how long? Was this DEA program concealed from the agency’s inspector general for two decades, or did the IG simply fail to investigate the program year after year out of apathy or indifference?
If the past is any guide at all—and the surveillance scandals of the 1960s and 1970s are a very good guide—we are once again confronting a level of government over‐reach that calls for a comprehensive, public accounting.
In is new book, Democracy in the Dark, former Church Committee chief counsel Fritz Schwartz notes that “…too much is kept secret not to protect America but to keep illegal or embarrassing conduct from Americans…the Church Committee also found that every president from Franklin Roosevelt to Richard Nixon had secretly abused their powers.” For the paperback edition of his book, Schwartz is going to have to add more American chief executives to his list.