Discussing Citizens United with Larry Lessig: Via Salon: Glenn Greenwald.

Just in case readers here forgot how angry they were with me for my partial defense of the Citizens United decision, permit me to risk once again provoking the hornets' nest by recommending this 20-minute discussion I had on Monday night with Harvard Law Professor Larry Lessig on The Young Turks.  At The Huffington Post, Lessig wrote this response to the arguments I made about the case, and we had what I thought was a very constructive and enlightening discussion of the relevant issues:

Read Original Article:(Via Salon: Glenn Greenwald.)

The backfiring of the surveillance state: Via Salon: Glenn Greenwald.

(updated below - Update II)

Every debate over expanded government surveillance power is invariably framed as one of "security v. privacy and civil liberties" -- as though it's a given that increasing the Government's surveillance authorities will "make us safer."  But it has long been clear that the opposite is true.  As numerous experts (such as Rep. Rush Holt) have attempted, with futility, to explain, expanding the scope of raw intelligence data collected by our national security agencies invariably impedes rather than bolsters efforts to detect terrorist plots.  This is true for two reasons:  (1) eliminating strict content limits on what can be surveilled (along with enforcement safeguards, such as judicial warrants) means that government agents spend substantial time scrutinizing and sorting through communications and other information that have nothing to do with terrorism; and (2) increasing the quantity of what is collected makes it more difficult to find information relevant to actual terrorism plots.  As Rep. Holt put it when arguing against the obliteration of FISA safeguards and massive expansion of warrantless eavesdropping power which a bipartisan Congress effectuated last year: [ Read more ... ]

Court: Feds Can Hide Alleged Spying on Gitmo Lawyers: Via Threat Level.

A federal appeals court on Wednesday upheld the government’s refusal to admit or deny it has documents related to warrantless eavesdropping on Guantanamo Bay detainees and their lawyers.

In doing so, the 2nd U.S. Circuit Court of Appeals accepted a little-known defense called the Glomar doctrine. The doctrine, the court ruled, allows the National Security Agency to refuse to acknowledge to the lawyers suing under the Freedom of Information Act that there are any documents responsive to allegations their clients had been or are being targeted under the Terrorist Surveillance Program adopted following the 2001 terror attacks.

“Confirming or denying the mere existence of specific records in a general surveillance program would logically be both confirming or denying that the NSA was targeting a specific individual and confirming or denying that the NSA is conducting a general surveillance program,” (.pdf) the New York-based appellate court wrote Wednesday. [ Read more ... ]

CRS Report: Primer on Federal Wiretapping Law: Via CDT - Center for Democracy & Technology..

CRS Report of the Month
# 98-326

The Congressional Research Service (CRS) has a new report entitled Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping.  It is a great primer for those interested in the issue.  [ Read more ... ]

Lawsuit Challenging Unconstitutional Spying Should Be Reinstated, Says ACLU: Via American Civil Liberties Union.

FISA Amendments Act Must Be Subject To Judicial Review

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The American Civil Liberties Union filed a brief late Wednesday arguing that its lawsuit challenging an unconstitutional government spying law should be reinstated. The ACLU and the New York Civil Liberties Union filed the landmark lawsuit in July 2008 to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls by the millions, without a warrant and without suspicion of any kind.

"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," said Jameel Jaffer, Director of the ACLU National Security Project. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws." [ Read more ... ]

House Patriot Act Bill Draws Broad Support On Account of National Security Letter Fix: Via CDT - PolicyBeta.

A coalition of 20 civil liberties organizations, including the Center for Democracy & Technology, released a letter today endorsing H.R. 3845, the USA Patriot Amendments Act. The bill was introduced by the Chairman of the House Judiciary Committee, Rep. John Conyers (D-MI) and Subcommittee Chairs Rep. Jerrold Nadler (D-NY) and Rep. Bobby Scott (D-VA). The Senate version of the legislation, the PATRIOT Act Sunset Extension Act, S. 1692, has not drawn a similar level of support in the civil liberties community, largely because of the different ways the bills deal with National Security Letters. CDT has prepared a chart that compares the two bills.

An NSL is a simple form document issued by the FBI and other intelligence agencies that requires Internet Service Providers, banks and other financial institutions, and credit agencies to turn over records about their customers. There is no judicial authorization; the letters are issued when the agency seeking the records decides that they are relevant to its own investigation. The letters are usually accompanied by a “gag” order that, with limited exceptions, bars anyone from disclosing that information was sought or obtained with an NSL. Two Inspector General reports have found widespread abuse and misuse of NSLs. [ Read more ... ]

House Considers Limiting Patriot Act Spy Powers: Via Threat Level.

Powerful House members are proposing sweeping reforms to U.S. surveillance law that puts them on a collision course with pro-domestic spying legislation in the Senate.

The proposals (.pdf) come as key provisions of the Patriot Act are set to expire at year’s end. The act, hastily adopted six weeks after the 2001 terror attacks, greatly expanded the government’s ability to spy on Americans in the name of national security.

Lawmakers are taking the expiration as an opportunity to revisit a number of surveillance provisions, including elements of the Patriot Act that aren’t set to expire, including a 2008 law that granted legal immunity to phone companies that cooperated with the Bush administration’s warrantless wiretapping of Americans. [ Read more ... ]

'War on Terror' II: Via The Nation.

We know the rules by now, the strange conventions and stilted Kabuki scripts that govern our cartoon facsimile of a national security debate. The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place. Conservatives hit the panic button on the right-wing noise machine anyway, keeping the delicate ecosystem in balance by creating the false impression that something has changed. We've watched the formula play out with Guantánamo Bay, torture prosecutions and the invocation of "state secrets." We appear to be on the verge of doing the same with national security surveillance. [ Read more ... ]

Breaking News: House of Representatives Enters PATRIOT Fray With Two New Surveillance Reform Bills: Via EFF.org Updates.

This afternoon, leaders in the House of Representatives introduced their own USA PATRIOT Act reform bill, responding to the disappointing PATRIOT renewal bill approved by the Senate Judiciary Committee two weeks ago. The new bill — the USA Patriot Amendments Act of 2009 (HR 3845) — was introduced by House Judiciary Committee Chairman John Conyers, Jr.; Constitution, Civil Rights, and Civil Liberties Subcommittee Chairman Jerrold Nadler; and Crime, Terrorism, and Homeland Security Subcommittee Chairman Bobby Scott.

The text of the bill is available here [PDF]; a section-by-section summary of the bill is available here [PDF]. Based on EFF's initial review, the new bill is a significant improvement over the deeply flawed Senate bill, containing a substantial number of significant new checks and balances to the government's spying authorities under the PATRIOT Act — much like Senator Feingold's JUSTICE Act in the Senate, which was supported by EFF. [ Read more ... ]

Once Again, Government Moves to Delay Release of Telecom Lobbying Documents: Via EFF.org Updates.

This evening, the Director of National Intelligence and the Department of Justice filed yet another emergency motion with the Ninth Circuit, asking for a stay of the deadline to release telecom immunity lobbying documents, less than 24 hours before the documents are due to be released to the public.

Almost simultaneously, a report appeared on Politico.com, claiming that the government will be releasing some documents, while fighting in court to hide the remainder. Despite this report, the government's motion seeks to delay disclosure of all the documents, and no new documents have been released just yet.

For those following this saga, this is deja vu all over again. [ Read more ... ]

Federal Court Denies Government Attempt to Delay Release of Telecom Records. Again.: Via EFF.org Updates.

Today a federal district court denied the government's latest emergency motion asking for a 30-day stay in last Friday's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. The new deadline is October 16, at 4 p.m. Pacific time. We sought the records pursuant to the Freedom of Information Act.

On September 24, Judge Jeffrey White had ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009. Last week, the agencies asked him to postpone his order while the government de [ Read more ... ]

The Ghost of Patriot Past: Via CDT - PolicyBeta.

It seems like the debate over health care reform has sucked all the oxygen out of the public dialog, as if nothing else were happening here in Washington. Think again. Perhaps one of the most significant “behind the scenes” actions happened late last week when the Obama Administration failed to support significant changes to the Patriot Act that would have given Americans stronger civil liberties protections.

More disturbing, it appears that the Administration took an active part in opposing changes supported by civil liberties groups, such as CDT, that would have gone a long way toward correcting several flaws in the Patriot Act. [ Read more ... ]

Telephone Company Is Arm of Government, Feds Admit in Spy Suit: Via Threat Level.

The Department of Justice has finally admitted it in court papers: The  nation’s telecom companies are an arm of the government — at least when it comes to secret spying.

Fortunately, a judge says that relationship isn’t enough to squash a rights group’s open records request for communications between the nation’s telecoms and the feds.

The Electronic Frontier Foundation wanted to see what role telecom lobbying of Justice Department played when the government began its year-long, and ultimately successful, push to win retroactive immunity for AT&T and others being sued for unlawfully spying on American citizens.

The feds argued that the documents showing consultation over the controversial telecom immunity proposal weren’t subject to the Freedom of Information Act since they were protected as “intra-agency” records: [ Read more ... ]

Round-Up of Reactions to Yesterday's PATRIOT Vote: Via EFF.org Updates.

Yesterday, as the Senate Judiciary Committee voted to recommend and send to the Senate floor a USA PATRIOT Act renewal bill lacking critical civil liberties reforms, EFF's reaction was much the same as Senator Feingold's, as he expressed in his post-vote blog post at Daily Kos.

Feingold, one of only three Democrats to vote against the bill and a sponsor of the PATRIOT reform bill the JUSTICE Act, was left scratching his head over how a Democratic super-majority with a Democratic Administration could so thoroughly fail at reforming the PATRIOT Act, a law long maligned by Democrats as an affront to civil liberties. He closed by posing a choice to his Democratic colleagues: "In the end...Democrats have to decide if they are going to stand up for the rights of the American people or allow the FBI to write our laws." [ Read more ... ]

The joint Post/Obama defense of the Patriot Act and FISA: Via Salon: Glenn Greenwald.

(updated below - Update II)

The Washington Post's Anne Kornblut today produces an extreme piece of government-serving, stenographic "journalism," publishing a dubious administration press release masquerading as a lengthy news article on Obama's approach to Terrorism and civil liberties.  The Post depicts Obama as heavily and heroically engaged in disrupting the alleged Najibullah Zazi domestic terrorist plot and -- repeatedly highlighting that success -- claims "the White House has been charting a delicate course as it attempts to turn the page on Bush-era anti-terrorism policies," whereby "the Obama administration is increasingly confident that it has struck a balance between protecting civil liberties, honoring international law and safeguarding the country."  Here are all of Kornblut's cited sources for the article -- every last one of them -- in the order she cites them:

Obama aides pointed . . . administration officials said . . . a senior administration official said . . . officials said . . . a senior administration official said . . . senior Obama officials stressed . . . a senior administration official said . . . aides said . . . officials said . . . one senior administration official said. . . . one senior official said. . . . The official said . . . a senior administration official said . . . a senior administration official said . . . administration officials said . . . . a senior official said.

Not a single named person is cited, and there's not a syllable of quoted dissent in any of it.  Virtually every sentence in the long article does nothing but praise Obama and depict him as stalwartly safeguarding America's civil liberties (unlike Bush did) [ Read more ... ]

Obama Sides with Republicans; PATRIOT Act Renewal Bill Passes Senate Judiciary Committee Minus Critical Civil Liberties Reforms: Via EFF.org Updates.

Well, it looks like most of the Senators on the Senate Judiciary Committee weren't swayed by this morning's New York Times editorial, which cited this morning's Committee meeting to consider USA PATRIOT Act renewal as a "critical chance to add missing civil liberties and privacy protections, address known abuses and trim excesses that contribute nothing to making America safer." Instead, the Committee just passed a bill to renew all of the PATRIOT powers that were set to expire at the end of the year, with only a handful of the original reforms that were first proposed by Senators Feingold and Durbin's JUSTICE Act and Committee Chairman Leahy's original PATRIOT renewal bill.

Instead of adding more protections to the bill, as EFF and the Times have been urging (along with many other Americans who have been organizing Facebook and Twitter activism around PATRIOT reform), the Committee this morning voted to accept seven Republican amendments to the USA PATRIOT Act Sunset Extension Act to remove the few civil liberties protections left in the bill after it was already watered down at last Thursday's Committee meeting. Surprisingly and disappointingly, most of those amendments were recommended to their Republican sponsors by the Obama Administration. [ Read more ... ]

Senators Vote to Renew Patriot Act Spy Powers: Via Threat Level.

A deeply divided Senate committee on Thursday forwarded legislation to the full Senate that reauthorizes three expiring provisions of the Patriot Act hastily adopted in the wake of the 2001 terror attacks.

The measures greatly expanded the government’s ability to spy on Americans in the name of national security.

Thursday’s 11-8 vote by the Senate Judiciary Committee came as lawmakers struggled to beat a looming deadline. The three provisions expire at year’s end.

During more than two hours of sometimes heated debate among the powerful Senate Judiciary Committee, some lawmakers accused one another of caving to intelligence officials who wanted to expand their powers while other senators said the renewal was necessary to protect against looming, and classified, terror threats. [ Read more ... ]

Congress Is Losing Its Chance To Reform The Patriot Act: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

(Originally posted on Huffington Post.)

Tomorrow the Senate Judiciary Committee will continue its debate over a bill that reauthorizes three Patriot Act provisions due to expire on December 31. The bill, The USA PATRIOT Act Sunset Extension Act, includes minor tweaks to the Patriot Act but does not go nearly far enough to thoroughly protect the Fourth Amendment rights of Americans.

The Patriot Act is a reactionary law. It was passed 45 days after 9/11 with virtually no debate and granted the government sweeping surveillance powers including the ability to conduct secret searches of Americans’ homes without warrants or even the presence of the resident.

Easily one of the most dangerous powers handed over in the Patriot Act was the expansion of the National Security Letters (NSL) statute which allows the government to demand a huge variety of our information (medical records, tax records, books we borrow from the library, etc.) from recipients like Internet service providers (ISP), financial institutions, and libraries without any proper judicial oversight. Oh, and it contains a gag order for recipients. The Department of Justice Office of the Inspector General has released two consecutive reports in the last several years detailing the FBI’s flagrant and systemic misuse of the NSL statute. [ Read more ... ]

Fact Check on FOX News' Misleading PATRIOT Act Reporting: Via EFF.org Updates.

Unfortunately, it appears that the only television news network that's been regularly covering the PATRIOT Act renewal process in Congress has been FOX News, and their coverage has seemed a lot more like pro-PATRIOT propaganda than unbiased news reporting. Fortunately, Julian Sanchez of The Cato Institute has been fact-checking them closely, in this detailed blog post and in this illuminating video: [ Read more ... ]

Terrorism Case Shows Range Of Investigators' Tools: Via NPR - National Public Radio.

Investigators in the terrorism case against Najibullah Zazi claim to have amassed stacks of evidence against the former Denver-area shuttle bus driver.

[...]

Officials say FBI agents in Denver and New York had been tracking Zazi for some time — and experts analyzing the case say the way law enforcement gathered evidence against Zazi and possible co-conspirators may be a textbook case of how to conduct a terrorism investigation. The FBI used a blend of wiretaps and subpoenas, search warrants and local police, among other things, to build its case.

"I think what's striking about the Zazi case is not so much that new tools were being used, but that old tools were being used in a comprehensive fashion," [ Read more ... ]

Tip of the Hat, Wag of the Finger: PATRIOT Edition: Via EFF.org Updates.

Yesterday's Senate Judiciary mark-up of legislation to renew expiring provisions of the USA PATRIOT Act was extremely disheartening--in particular because of many committee Democrats' failure to support new civil liberties reforms to PATRIOT(see our summary here). Those Senators who failed to stand foursquare behind Americans' right to privacy against government spying should be on notice that Americans who care about civil liberties are very disappointed; those that did stand up for our rights deserve our vocal thanks.

Our first wag of the finger goes to Senators Leahy and Feinstein. We expressed our disappointment with Senator Leahy last week when instead of sponsoring the Feingold/Durbin JUSTICE Act he introduced his own PATRIOT renewal bill with much fewer surveillance reforms. Most notably, that bill did not contain any reforms to last year's FISA Amendments Act, which is an even graver threat to Americans' privacy than PATRIOT. [ Read more ... ]

Salon Radio: Patriot Act and FISA reforms: Via Salon: Glenn Greenwald.

(updated below - Update II)

When Congress enacted the Patriot Act in the wake of the 9/11 attacks, it provided for a four-year expiration date for some of the more controversial provisions.  In 2005, when it was time for Congress to decide if those should be extended, the Bush administration insisted that none of those powers had been abused yet (like everything) they were critical to fighting Terrorism.  As a result, the Congress thus overwhelmingly voted to extend them for four more years, though this time they required the issuance of a report from the Inspector General of the Justice Depratment to determine if there had, in fact, been any abuses.  Unsurprisingly, the IG's Report that issued in 2007 and 2008 documented extreme abuse at the FBI with many of those powers.  Moreover, it was recently revealed that, far more often than not, federal law enforcement agencies use these powers (including the pernicious "sneak and peek" searches) in cases having nothing whatsoever to do with Terrorism. [ Read more ... ]

The Government Isn’t Above the Law: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

Or at least it shouldn’t be. Today we filed an appeal of our lawsuit challenging the constitutionality of the FISA Amendments Act (FAA), the law passed last summer that essentially legalized former President Bush’s warrantless wiretapping of Americans’ international phone calls and emails. In August, U.S. District Court Judge John G. Koeltl for the Southern District of New York dismissed our case on "standing" grounds, ruling that the plaintiffs — among them journalists, lawyers and nongovernmental organizations who engage in sensitive international communication which they have reason to fear will be intercepted by the government — did not have the right to challenge the new surveillance law because they could not prove that their own communications had been monitored under it. [ Read more ... ]

Lawmakers Cave to FBI in Patriot Act Debate: Via Threat Level.

Powerful Senate leaders on Thursday bowed to FBI concerns that adding privacy protections to an expiring provision of the Patriot Act could jeopardize “ongoing” terror investigations.

The Patriot Act was adopted six weeks after the 2001 terror attacks, and greatly expanded the government’s power to intrude into the private lives of Americans in the course of anti-terror and criminal investigations. Three provisions are expiring at year’s end.

During a Senate Judiciary Committee hearing, Sen. Patrick Leahy, the committee chairman,  and Sen. Dianne Feinstein (D-California) introduced last-minute changes (.pdf) that would strip away some of the privacy protections Leahy had espoused just the week before. The Vermont Democrat said his own, original proposal of last week could jeopardize ongoing terror investigations.

“All of us are mindful that threats against American safety are real and continuing,” Leahy said at the hearing . “I’m trying to introduce balances on both sides.” [ Read more ... ]

PATRIOT Act Debate Must Include Reform of Last Year's FISA Amendments Act: Via EFF.org Updates.

Today, the American Constitution Society's blog, ACSblog, was gracious enough to let EFF's Kevin Bankston guest blog about the current debate over renewal of the USA PATRIOT Act. Kevin took the opportunity to highlight the need for Congress to revisit the broad surveillance authority granted by last year's FISA Amendments Act (FAA) when it considers reforming the PATRIOT Act. Kevin argues that "from a civil liberties perspective, focusing on reforming the PATRIOT Act without also considering FAA reform is like rearranging deck chairs on the Titanic." The entire blog post is here.

The Senate Judiciary Committee is planning to consider PATRIOT renewal and reform Thursday. It's important to let your Senators know that you support both PATRIOT reform and FAA reform, including repeal of the immunity for telcos like AT&T that assisted in the National Security Agency's warrantless wiretapping program. If you haven't already, please visit our action center and contact your Senators now!

Read Original Article:(Via EFF.org Updates.)