Tag: FISA

The Guardian revealed that the National Security Agency seized millions of Verizon customers’ phone records through a secret court order. Then Glenn Greenwald and Ewen MacAskill exposed the top secret NSA PRISM program that program taps in to user data of Apple, Google and other US tech companies.

In 2001, Sen. Russ Feingold was the only vote in the Senate against the Patriot Act and warned us about this sort of data collection.

One provision that troubles me a great deal is a provision that permits the government under FISA to compel the production of records from any business regarding any person, if that information is sought in connection with an investigation of terrorism or espionage.

Now we’re not talking here about travel records pertaining to a terrorist suspect, which we all can see can be highly relevant to an investigation of a terrorist plot. FISA already gives the FBI the power to get airline, train, hotel, car rental and other records of a suspect.

But under this bill, the government can compel the disclosure of the personal records of anyone — perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called by — the target of the investigation.

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

In a statement to the press, he said that he found the NSA report “deeply troubling”:

In 2001, I first voted against the PATRIOT Act because much of it was simply an FBI wish list that included provisions allowing our government to go on fishing expeditions that collect information on virtually anyone.

Today’s report indicates that the government could be using FISA in an indiscriminate way that does not balance our legitimate concerns of national security with the necessity to preserve our fundamental civil rights. This is deeply troubling.  I hope today’s news will renew a serious conversation about how to protect the country while ensuring that the rights of law-abiding Americans are not violated.

After the passage the amended FISA in 2008, Sen. Feingold appeared on MSNBC’s The Rachel Maddow Show, discussing the vote that retroactively legalized warrantless wiretapping by the Bush administration.

This is the law that President Obama used to legally collect all the phone records and access the servers of nine US tech companies. It is well past time that it needs to be “fixed.”

American freedom is on the line:

A few months before he was first elected president in 2008, Barack Obama made a calculation that dismayed many of his ardent supporters but which he judged essential to maintain his drive to the White House. By backing President Bush’s bill granting the US government wide new surveillance powers – including legal immunity for telecoms companies which had co-operated with the Bush administration’s post-9/11 programme of wiretapping without warrants – Mr Obama stepped back from an issue that had initially helped to define his candidacy but was now judged to threaten his national security credentials. It was a big call. Even so, it seems unlikely that either supporters or critics, or even Mr Obama himself, ever believed that five years later a re-elected President Obama would oversee an administration that stands accused of routinely snooping into the phone records of millions of Americans.

Yet that is the situation at the heart of the Guardian’s exclusive story this week that America’s immense National Security Agency is doing just this on Mr Obama’s watch. [..]

Few Americans believe that they live in a police state; indeed many would be outraged at the suggestion. Yet the everyday fact that the police have the right to monitor the communications of all its citizens – in secret – is a classic hallmark of a state that fears freedom as well as championing it. Ironically, the Guardian’s revelations were published 69 years to the day since US and British soldiers launched the D-day invasion of Europe. The young Americans who fought their way up the Normandy beaches rightly believed they were helping free the world from a tyranny. They did not think that they were making it safe for their own rulers to take such sweeping powers as these over their descendants.

So much for electing a constitution scholar as president.

Originally posted at Voices on the Square

I’m so pissed i could spit, so consider this rant my virtual spitting.

I don’t care if the president is a registered Democrat – I’m not gonna play cutesy semantic games because of it. And I don’t care who started it – I’ve been pissed for a looong time about this. Now there is undeniable proof that all of our fears – fears that many of us were vocal about for more than a decade now – over what the Patriot Act could be used for are, in fact, well grounded and not some tin foil conspiracy theory. And don’t get me wrong – this is SPYING on the entire populace. Period. They may not have listened to your phone calls – YET – but they have no legitimate reason to have scooped them all up in the first place. None. This kind of overreach is EXACTLY the kind of thing (at least in spirit) the founders had in mind when they put that Fourth Amendment in the Bill of Rights.

I don’t care that technology makes it easy to do. We have a need for privacy and there is a pretty clear penumbra of privacy in the Bill of Rights. No need for privacy you say? How far do you think the Founders would have gotten if the British government did this kind of spying? How many slaves would have been able to be moved through the Underground Railroad if government had had this level of legal access to all communications?

Yeah – I don’t care if it was legal. 15 years ago it was not legal and would have been considered an affront to our Constitutionally guaranteed (a guarantee that seems quaint and antiquated now) civil liberties. That the Big Brother government has managed to tailor a law to allow them to legally get away with suspect behavior does not make it a good thing or an ethical thing. Tailoring a law to make behavior legal is what the Bush Admin did with torture. And lest we all forget – slavery was legal once too…

I don’t care if some companies have access to that information. My phone company has an interest in having my phone records – they bill me for them. The government on the other hand has no legitimate vested interest in my phone records. Marketing firms track my web surfing, fine. It bothers me, but they don’t have much power over me at all. Government on the other hand has an exponentially large amount of power over me and history is littered with examples of governments exercising that power in myriad negative ways. So yeah, companies have various facets of this info on me, but now government has the legality and apparently the want to have ALL of these various facets of information on me. Like a dossier, we all have our own private FBI file now – and not for bad or suspect behavior – just for simply existing in this country.

So our Big Brother government HAS to SPY on all of our phone calls in order to make us “safe”. God Orwell would be rolling over in his grave if he saw how much life was imitating art.

“[America’s intelligence gathering] capability at any time could be turned around on the American people and no American would have any privacy left. Such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.”

~Sen. Frank Church (D-ID), Meet the Press, August 17, 1975~

Just like the CIA has no clue who they are killing with their “targeted” drone strikes, the NSA has no clue whose data they are mining in the massive collection of Verizon phone records that was authorized in a FISA warrant under Section 215 of the Patriot Act. It was issued in early April shortly after the Boston Marathon Bombing.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

Thanks to Pres. Barack Obama and many Congressional Democrats, and as Alex Pareene at Salon points out, there is nothing we can do about it.

This order went through a FISA Court, according to the rules laid out explicitly by Congress (unlike the Bush administration’s abuses, which were only retroactively authorized). The order could’ve been isolated, or it could’ve been standard practice. We have no way of knowing. And it’s almost definitely not just Verizon. As Marc Ambinder says: “I would assume that these orders are typical and are issued by the FISC to other telephone companies, and possibly to companies that process e-mail as well.” (He also says the order is “at odds with statements from government officials who’ve insisted that the government does not collect all Americans’ phone records just because they can.”) An unnamed expert cited by the Washington Post says the order “appears to be a routine renewal of a similar order first issued by the same court in 2006.”

While the fact that the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primarily issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret. Now we know more. But the recent history of the U.S. and domestic surveillance suggests that knowing more won’t lead to doing anything about it.

This one cannot be laid solely at the feet of the Republicans. In fact, one of the chief supporters and architect of this latest bill is the senior Democratic Senator from California, Dianne Feinstein, who has criticized her fellow Democratic colleagues for not understanding the threat of terrorism. Today she has been all over the cable channels and traditional MSM defending this massive violation of the Fourth Amendment saying, “This is to ferret this out before it happens. It’s called protecting America.”

She handed out letters she and Sen. Saxby Chambliss (R-Ga.), the top Republican on the committee, wrote to their colleagues in 2010 and 2011 explaining how the program worked, and urging that they support it. Congress did so.

“This is nothing particularly new,” Chambliss said. “Every member of the United States Senate has been advised of this, and to my knowledge we have not had any citizen who has registered a complaint relative to the gathering of this information.” [..]

“I’m a Verizon customer,” Sen. Lindsey Graham (R-S.C.) said during an appearance on Fox News. “I don’t mind Verizon turning over records to the government if the government is going to make sure that they try to match up a known terrorist phone with somebody in the United States.”

How about protecting the Constitution, Senators?

Of course the White House is defending the warrant:

(T)he Obama administration, while declining to comment on the specific order, said the practice was “a critical tool in protecting the nation from terrorist threats to the United States”. [..]

“As we have publicly stated before, all three branches of government are involved in reviewing and authorising intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorises such collection. There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act.”

The administration stressed that the court order obtained by the Guardian relates to call data, and does not allow the government to listen in to anyone’s calls.

Senators Ron Wyden (D-OR), Mark Udall (D-CO) and Bob Corker (R-TN), who have been a vocal opponents of FISA and the Patriot Act, spoke out earlier:

“I have had significant concerns about the intelligence community over-collecting information about Americans’ telephone calls, emails, and other records,” said Sen. Jeff Merkley (D-Ore.), who has tried to change the law, along with Sen. Mark Udall (D-Colo.)

“The administration owes the American public an explanation of what authorities it thinks it has,” said Udall. [..]

“The fact that all of our calls are being gathered in that way — ordinary citizens throughout America — to me is troubling and there may be some explanation, but certainly we all as citizens are owed that, and we’re going to be demanding that,” said Sen. Bob Corker (R-Tenn.), noting that he, too, was a Verizon customer.

Even the chief architect of The Patriot Act, which many consider unconstitutional, Rep. Jim Sensengrenner (R-WI) considers this phone records grab troubling. In a letter to Attorney General Eric Holder, he stated:

As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation. While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. The Bureau’s broad application for phone records was made under the so-called business records provision of the Act.  I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.

Discussing The Guardian article by Glenn Greenwald, Amy Goodman on Democracy Now was joined by: William Binney, served in the National Security Agency almost 40 years, including a time as director of the NSA’s World Geopolitical and Military Analysis Reporting Group; Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights; and Thomas Drake, National Security Agency whistleblower who was charged with violating the Espionage Act by the Obama administration.

The domestic NSA-led Surveillance State which Frank Church so stridently warned about has obviously come to fruition.  

While Congress is stalled on the great fiscal myth negotiations, on thing that both houses are have agreed is unconstitutional, warrantless surveillance. This morning, the Senate extended Foreign Intelligence Surveillance Act (FISA) for another five years, rejecting amendments that would have reined in some of the worst abuses. The White House had pushed for a quick, “clean” reauthorization without any amendments before the bill’s Dec. 31 expiration date. The amended FISA was passed in 2008 to retroactively cover Bush-era domestic surveillance and give immunity to the telecommunication companies that participated.

Kevin Gosztola at FDL‘s Dissenter summarizes the amendments that were defeated:

the Senate voted on amendments put forward during the day’s debate: (Sen. Ron) Wyden’s oversight and transparency amendment, which would request a rough estimate or any information the NSA has on the collection of Americans’ communications; the (Sen Jeff) Merkley FISA Court Amendment, which would require FISA court rulings to be declassified in some way and released to the public; the (Patrick) Leahy Sunset Amendment, which would shorten the length of the law’s reauthorization to three years; and an amendment put forward by Sen. Rand Paul to “all US communications, whether sought by US intelligence agencies like the NSA or any government agency, are protected against unwarranted searches and seizures-even if they are held by third party email providers like Google.”

The Leahy Amendment failed to pass 38-52. The Senate voted on Merkley’s amendment immediately after. It failed to pass 37-54. Rand Paul’s amendment (which Feinstein said would’ve repealed the FISA Amendments Act) failed to pass.

The amendment by Sen Ron Wyden (D-OR) was defeated this morning.

Glenn Greenwald at The Guardian describes the Senate floor show by the Democratic Chair of the Senate Intelligence Committee Dianne Feinstein (D-CA) did her best blustering imitation of Vice President Dick Cheney’s fear mongering:

Feinstein insisted that one could support their amendments only if “you believe that no one is going to attack us”. She warned that their amendments would cause “another 9/11”. She rambled about Najibullah Zazi and his attempt to detonate a bomb on the New York City subway: as though a warrant requirement, let alone disclosure requirements for the eavesdropping program, would have prevented his detection. Having learned so well from Rudy Giuliani (and Harry Reid), she basically just screamed “Terrorist!” and “9/11” over and over until her time ran out, and then proudly sat down as though she had mounted rational arguments against the transparency and oversight amendments advocated by Wyden, Merkley, Udall and Paul.

Even more notably, Feinstein repeatedly argued that requiring even basic disclosure about the eavesdropping program – such as telling Americans how many of them are targeted by it – would, as she put it, “destroy the program”. But if “the program” is being conducted properly and lawfully, why would that kind of transparency kill the program? As the ACLU’s Richardson noted: “That Sen. Feinstein says public oversight will lead to the end of the program says a lot about the info that’s being hidden.” In response to her warnings that basic oversight and transparency would destroy the program, Mother Jones’ Adam Serwer similarly asked: “Why, if it’s all on the up and up?”

All of this was accomplished with the core Bush/Cheney tactic used over and over: they purposely waited until days before the law is set to expire to vote on its renewal, then told anyone who wants reforms that there is no time to consider them, and that anyone who attempted debate would cause the law to expire and risk a Terrorist attack. Over and over yesterday, Feinstein stressed that only “four days remained” before the law expires and that any attempts even to debate the law, let alone amend it, would leave the nation vulnerable.

President Obama was opposed to FISA before he voted for it as a senator. This is not the “change” we should be supporting.

Ben Franklin would be disgusted with President Obama and this congress.  

Yes, anything can happen, but with the latest open disdain for 47% of the people in this country by Mitt Romney, it’s looking like a safe bet that the President will be reelected. There’s also more time for Romney to say even more stupid shit. It’s almost like he’s running against himself, so I’m looking past the President”s very likely reelection onto life or death issues.

In this introspection I sadly conclude that there is just not enough differences in this campaign when to comes to the wars and the national security state; none of them will consider rolling it back even though that is what will ultimately make us safer. Destroying the 4th amendment did not make us safer one bit.

What makes us even less safe is the hate bred through what is called the collateral death of innocent civilians that we in this country and our horse race mindset can’t seem to understand. This is not something human beings just get over and why should they? Who are we to tell them to get over it? They literally can’t get over it, and this war is spilling blood in our name as jpmassar outlined the other day in his extremely important diary.

I Know You Don’t Want to Hear It, But We Have Blood On Our Hands. 8 Women Just Killed in Afghanistan

How many times must the cannonballs fly

Before they are forever banned?

“...precision aerial munitions… as well as precision fire from aircraft…”

At least eight women have died in a Nato air strike in Afghanistan’s eastern province of Laghman, local officials say. Nato has conceded that between five and eight civilians died as it targeted insurgents, and offered condolences.

Stellar Wind  is the open secret code name for certain information collection activities performed by the United States’ National Security Agency and revealed by Thomas M. Tamm to New York Times reporters James Risen and Eric Lichtblau. The operation was approved by President George W. Bush shortly after the September 11 attacks in 2001.

The program’s activities involve data mining of a large database of the communications of American citizens, including e-mail communications, phone conversations, financial transactions, and Internet activity.

There were internal disputes within the Justice Department about the legality of the program, because data is collected for large numbers of people, not just the subjects of Foreign Intelligence Surveillance Act (FISA) warrants. In March 2004, the Justice Department under Attorney General John Ashcroft ruled that the program was illegal. The day after the ruling, Ashcroft became critically ill with acute pancreatitis. President Bush sent White House counsel Alberto Gonzales and Chief of Staff Andrew Card Jr. to Ashcroft’s hospital bed, where Ashcroft lay semiconscious, to request that he sign a document reversing the Justice Department’s ruling. However, Ashcroft was incapable of signing the document. Bush then reauthorized the operation, over formal Justice Department objections. Federal Bureau of Investigation (FBI) director Robert Mueller, Acting Attorney General James Comey, and many prominent members of the Justice Department were prepared to resign over the matter. Valerie Caproni the FBI general counsel, said, “From my perspective, there was a very real likelihood of a collapse of government.” Bush subsequently reversed the authorization.

During the Bush Administration, the Stellar Wind cases were referred to by FBI agents as “pizza cases” because many seemingly suspicious cases turned out to be food takeout orders. Approximately 99 percent of the cases led nowhere, but 1 percent bore fruit. One of the known uses of this data was the creation of suspicious activity reports, or “SARS”, about people suspected of terrorist activities. It was one of these reports that revealed former NY governor Elliot Spitzer‘s use of prostitutes, even though he was not suspected of terrorist activities.

In March 2012 Wired Magazine published “The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)” talking about a new NSA facility and says “For the first time, a former NSA official has gone on the record to describe the program, codenamed Stellar Wind, in detail.” Naming the official William Binney a former NSA code breaker. Binney goes on to say that the NSA has highly secured rooms that tap into major switches, and satellite communications at AT&T and Verizon both. [4] The article suggests that the otherwise dispatched Stellar Wind is actually an active program.

To those who understand state surveillance as an abstraction, I will try to describe a little about how it has affected me. The United States apparently placed me on a “watch-list” in 2006 after I completed a film about the Iraq war. I have been detained at the border more than 40 times. Once, in 2011, when I was stopped at John F. Kennedy International Airport in New York and asserted my First Amendment right not to answer questions about my work, the border agent replied, “If you don’t answer our questions, we’ll find our answers on your electronics.”‘ As a filmmaker and journalist entrusted to protect the people who share information with me, it is becoming increasingly difficult for me to work in the United States. Although I take every effort to secure my material, I know the N.S.A. has technical abilities that are nearly impossible to defend against if you are targeted.

The 2008 amendments to the Foreign Intelligence Surveillance Act, which oversees the N.S.A. activities, are up for renewal in December. Two members of the Senate Select Committee on Intelligence, Senators Ron Wyden of Oregon and Mark Udall of Colorado, both Democrats, are trying to revise the amendments to insure greater privacy protections. They have been warning about “secret interpretations” of laws and backdoor “loopholes” that allow the government to collect our private communications. Thirteen senators have signed a letter expressing concern about a “loophole” in the law that permits the collection of United States data. The A.C.L.U. and other groups have also challenged the constitutionality of the law, and the Supreme Court will hear arguments in that case on Oct. 29.

Laura Poitras is a documentary filmmaker who has been nominated for an Academy Award and whose work was exhibited in the 2012 Whitney Biennial. She is working on a trilogy of films about post-9/11 America. This Op-Doc is adapted from a work in progress to be released in 2013.

This video is part of a series by independent filmmakers who have received grants from the BRITDOC Foundation and the Sundance Institute.

Who is watching the NSA?

IN March 2002, John M. Poindexter, a former national security adviser to President Ronald Reagan, sat down with Gen. Michael V. Hayden, the director of the National Security Agency. Mr. Poindexter sketched out a new Pentagon program called Total Information Awareness, that proposed to scan the world’s electronic information – including phone calls, e-mails and financial and travel records – looking for transactions associated with terrorist plots. The N.S.A., the government’s chief eavesdropper, routinely collected and analyzed such signals, so Mr. Poindexter thought the agency was an obvious place to test his ideas.

He never had much of a chance. When T.I.A.’s existence became public, it was denounced as the height of post-9/11 excess and ridiculed for its creepy name. Mr. Poindexter’s notorious role in the Iran-contra affair became a central focus of the debate. He resigned from government, and T.I.A. was dismantled in 2003.

But what Mr. Poindexter didn’t know was that the N.S.A. was already pursuing its own version of the program, and on a scale that he had only imagined. A decade later, the legacy of T.I.A. is quietly thriving at the N.S.A. It is more pervasive than most people think, and it operates with little accountability or restraint. [..]

Senator Ron Wyden (D-OR) and Mark Udall (D-CO) asked the NSA a simple question: how many persons inside the United States have been spied upon by the NSA? I. Charles McCullough, the Inspector General of the Office of the Director of National Intelligence, answer was that to answer that question would violate the privacy of citizens. In other words, they probably don’t know.

In July, in response to a request from Sen. Wyden, IG McCullough declassified three statements “one of which indicated that the FISA court agreed with Wyden that the government had “circumvented the spirit of the law.” Even the Wall Street Journal reported that this “represented the first time the government has acknowledged U.S. spy activities violated the Constitution since the passage of” the Amendments Act in 2008.

Whistleblowers like Mr. Binney, Thomas Drake, as well as, journalists like Ms. Poitras and James Risen put their reputations, freedom and lives on the line to warn us about the unregulated, unmonitored surveillance of the NSA. No one is watching the NSA but they are watching us.

The recent release of e-mails from STRATFOR, a right wing global intelligence company, and documents about the surveillance system Trapwire by Wikileaks, has become the talk of the web and Twitter. David Seaman, an up and coming new media advocate and host of The DL Show, explains everything you need to know about Trapwire:

Anyway, here’s what Trapwire is, according to Russian-state owned media network RT (apologies for citing “foreign media”… if we had a free press, I’d be citing something published here by an American media conglomerate): “Former senior intelligence officials have created a detailed surveillance system more accurate than modern facial recognition technology-and have installed it across the U.S. under the radar of most Americans, according to emails hacked by Anonymous.

Every few seconds, data picked up at surveillance points in major cities and landmarks across the United States are recorded digitally on the spot, then encrypted and instantaneously delivered to a fortified central database center at an undisclosed location to be aggregated with other intelligence. It’s part of a program called TrapWire and it’s the brainchild of the Abraxas, a Northern Virginia company staffed with elite from America’s intelligence community. [..]

So: those spooky new “circular” dark globe cameras installed in your neighborhood park, town, or city-they aren’t just passively monitoring. They’re plugged into Trapwire and they are potentially monitoring every single person via facial recognition. [..]

In related news, the Obama administration is fighting in federal court this week for the ability to imprison American citizens under NDAA’s indefinite detention provisions-and anyone else-without charge or trial, on suspicion alone.

So we have a widespread network of surveillance cameras across America monitoring us and reporting suspicious activity back to a centralized analysis center, mixed in with the ability to imprison people via military force on the basis of suspicious activity alone.

The Young Turks’ host Cenk Uygur breaks down what Trapwire is and why it is a danger to individual freedom.

Noah Shachtman at The Danger Room takes an in depth look at the “sleazy” connection of STRATFOR to Trapwire and the CIA:

On Nov. 4, 2009, Fred Burton, the vice president of the private intelligence firm Stratfor, co-wrote an essay on emerging terrorist threats and the means to stop them. Particularly impressive, Burton wrote, was a new software tool called Trapwire, which works “with camera systems to help detect patterns of preoperational surveillance … to help cut through the fog of noise and activity and draw attention to potential threats.” [..]

What his customers reading that November 2009 essay may not have realized was that Burton was also marketing them a product. On Aug. 17 of that year, Stratfor and Trapwire signed a contract (.pdf) giving Burton’s company an 8 percent referral fee for any business they send Trapwire’s way. The essay was partially a sales pitch – a fact that Burton neglected to mention. [..]

That’s a breach of trust and possibly worse, says Matthew Aid, author of Intel Wars: The Secret History of the Fight Against Terror. “It’s a conflict of interest.” [..]

Stratfor’s now-famous business partner, Trapwire Inc., began as a division of Abraxas Corporation, one of the more prominent intelligence contractors to crop up after the 9/11 attacks. Begun by Richard “Hollis” Helms, the former head of the CIA’s European division, the company grew so quickly that by 2005, Helms boasted it was “the largest aggregate of analytical counter-terrorism capabilities outside of the U.S. government.” The CIA began entrusting Abraxas with one of its most sensitive tasks: constructing false identities, front companies, and cover stories for agents traveling overseas. At one point, so many CIA employees were jumping ship for Abraxas that the director of the CIA asked it, and a handful of other firms, to stop recruiting in the agency cafeteria.

Today, contractors make up about one-third of the 845,000 people with top-secret security clearances in this country, the Washington Post estimates. It’s safe to assume that at least the same portion of the $80 billion annual intelligence budget goes to these outside firms. The Post counted 1,931 private companies in nearly 10,000 locations across America working on counterterrorism, homeland security and intelligence efforts.

TrapWire is already used in New York, Los Angeles, Las Vegas, Texas, DC, London, and other locales around the USA. Although a spokesperson from NYPD denies that they are using Trapwire, there are other companies that are doing the same surveillance that are just as sinister. Remember that NYPD has labeled people “professional agitators” for filming their activities but now they have a tool that can be used to shut down peaceful demonstration and association. It could be easily used to violate the First and Fourth Amendment rights of citizens wherever this type of surveillance is used.

Here are some of the good guys in Congress who are trying to protect our freedoms under the Fourth Amendment:

Merkley Introduces Bill to Prevent Warrantless Surveillance of Americans

Under amendments to FISA passed during the Bush administration, the intelligence agencies may conduct warrantless wiretapping, potentially collecting vast amounts of communications and data, so long as they reasonably believe the communications involve individuals who are located outside of the United States and who are not U.S. citizens. However, there are loopholes in the current statute that could permit the intelligence community to intentionally or unintentionally collect and store the communications of American citizens and others living in the U.S. and to mine data collected from Americans without a warrant.  National security agencies have not even released estimates of how often Americans’ communications are swept up by the warrantless wiretapping program.  [..]

“Keeping Americans safe versus protecting American’s privacy is a false choice. We have a moral and Constitutional duty to do both,” Merkley said. “We can ensure our government has the tools to spy on our enemies without giving it a license to intrude into the private lives of American citizens.  This bill will establish new safeguards to respect the principles of the Fourth Amendment protections from government intrusion without a warrant while ensuring that the intelligence community has the tools it needs to combat terrorism.” [..]

“This bill will give the FISA Amendments Act the overhaul it so desperately needs, restraining the government from unconstitutionally collecting and using vast amounts of data about innocent Americans,” said Michelle Richardson, ACLU Legislative Counsel. “These amendments would allow collection against foreigners to continue while better protecting Americans and should be considered a win-win for both the intelligence community and the Constitution.”  

Wyden Places Hold on FISA Amendments Act Extension

Warns that Loophole Gives Government the Ability to Circumvent Warrant Requirements to Spy on U.S. Citizens

Wyden identified two specific concerns that he believes Congress must address before agreeing to a long-term extension of FAA’s authorities.

The first pertains to the lack of information regarding the number of law-abiding American citizens who have had their communications collected and reviewed under the FISA Amendments Act authorities.  Last Summer, he and Senator Mark Udall asked the Administration for an estimate of the “number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act.”  The Office of the Director of National Intelligence responded that it was “not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.”  Nearly a year later, Congress has yet to receive an estimate of the number of Americans who have had their communications collected under FAA.  

“The purpose of this 2008 legislation was to give the government new authorities to collect the communications of people who are believed to be foreigners outside the United States, while still preserving the privacy of people inside the United States,”  Wyden explains in his hold statement.  “Before Congress votes to renew these authorities it is important to understand how they are working in practice.  In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act.”

Wyden’s second concern pertains to what he describes as the law’s inadequate protections against warrantless “back door” searches of Americans.

“I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act,” Wyden writes. “Then it is possible that this number could be quite large.  Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.“

David Kravets alerts us to a proposal (pdf) by Rep. Jerrold Nadler (D-NY) and  Rep. John Conyers Jr. (D-MI) that require the government to obtain a probable-cause warrant to access data stored in the cloud:

The law that the measure would amend is the Electronic Communications Privacy Act, which has seen few updates following President Ronald Reagan’s 1986 signature on the measure.

The proposal represents yet another attempt to rewrite legislation that generally grants the government wide powers to access Americans’ cloud-stored data without a probable-case showing. [..]

Adopted when CompuServe was king, ECPA allows the government to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed, as long as the content had been stored on a third-party server for 180 days or more. E-mail and other cloud-stored data younger than six months is protected by the warrant requirement, as is all data stored on a personal computer drive.

ECPA was adopted at a time when e-mail, for example, wasn’t stored on servers for a long time. Instead it was held there briefly on its way to the recipient’s inbox. E-mail more than six months old on a server was assumed abandoned, and that’s why the law allowed the government to get it without a warrant. At the time there wasn’t much of any e-mail for the government to target because a consumer’s hard drive – not the cloud – was their inbox.

But technology has evolved, and e-mail often remains stored on cloud servers indefinitely, in gigabytes upon gigabytes – meaning the authorities may access it without warrants if it’s older than six months.

The same rule also applies to content stored in the cloud. That includes files saved in Dropbox, communications in Facebook, and Google’s cloud-storage accounts. Such personal storage capabilities were nearly inconceivable when President Reagan signed the bill.

The proposal will probably never be even heard in the radical right wing House committee. Kravets notes that a similar proposal in the Senate by Sen. Patrick Leahy (D-VT) never even got a hearing in the Judiciary Committees that Leahy chairs.

While the Obama administration continues to carry out and expand the Bush/Cheney regime agenda and the obstructionist Republicans and Right wing Democrats unwittingly (or not) help him, there are some people who recognize that security and freedom are not mutually exclusive.

In 2005 while George W. Bush still sat in the Oval Office, James Bamford penned this article for the New York Times Week in Review titled The Agency That Could Be Big Brother. Mr. Bamford, the author of “Puzzle Palace” and “Body of Secrets: Anatomy of the Ultra-Secret National Security Agency“, wrote about the National Security Agency which was created in absolute secrecy in 1952 by President Harry S. Truman. This agency is now the largest of the security agencies surpassing the CIA and other spy organizations. And it is still growing. The agency now has sites all over the US and around the globe and we have no idea what their budget is or for that matter what they are doing with all that information. In 2005, controversy over whether the Pres. Bush broke the law when he secretly ordered the N.S.A. to bypass a special court (FISA) and conduct warrantless eavesdropping on American citizens had provoked some Democrats to call for his impeachment. Now today, Pres. Barack Obama, a Democrat, expands the NSA’a power and there is not silence, but support from the Democrats. We don’t even know how much is spent by the NSA since their budget is classified. Heh, Congress doesn’t know either. But I digress.

Columnist David Sirota wrote in the Seattle Times that the NSA now claims that “it can’t tell Congress about its activities violating the privacy of Americans because doing so might violate Americans’ privacy”.

In a letter to senators Ron Wyden, D-Ore., and Mark Udall, D-Colo., the agency wrote: “(A) review of the sort suggested would itself violate the privacy of U.S. persons.” [..]

So why would the NSA nonetheless refuse to provide one? Most likely because such an estimate would be a number so big as to become a political problem for the national-security establishment.

According to the nonpartisan Electronic Frontier Foundation, “The U.S. government, with assistance from major telecommunications carriers including AT&T, has engaged in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.”

That’s right, millions – and that’s merely what happened with one of many programs over the last decade.

Moving forward, Wired notes that the NSA is building the “Utah Data Center” – “a project of immense secrecy” designed “to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks.”

Appearing at the Socialism 2012 conference in Chicago, Salon.com contributing editor and civil rights lawyer, Glenn Greenwald gave a speech on Challenging the Surveillance State. Glen suggests that if you can’t watch all four videos the last one about the harms from ubiquitous surveillance is the most important one. He also points out FDL’s Kevin Gosztola’s excellent commentary and summation of the speech.

Where have all our freedoms gone? Have they eroded before our eyes because we failed to use them by demanding that our elected representatives protect the Constitution? Did irrational fear of an unseen enemy with no country, armed with a fanatical hatred scare us into allowing those freedoms to be abrogated? Apparently our current government from the executive to the judicial seem to think that the Constitution is a nice idea but its time has passed. We’re at war with “terror” and “terror” will never surrender. Law Professor Jonathan Turley, in an op-ed written shortly after President Obama signed the National Defense Authorization Act into law, enumerated the ten reasons the US is no loner the land of the free:

1. Assassination of U.S. citizens

Last year, President Obama went further than George W. Bush would have dared with the ordered assassination of a US citizen, Anwar al-Awlaqi. Just as the Bush administration justified torture, Pres. Obama justified targeted assassination of an American citizen without due process in a secret memo from administration lawyers. The administration cavalierly calling it “due process in war.” Yet, the US is hypocritical enough to criticize other countries for doing the same.

2. Indefinite detention

Under the NDAA the president can indefinitely detain a citizen that is suspected of terrorism and allow the military to hold them. While President Obama issued a signing statement saying that he would never do that, signing statement have no force of law and are not binding, either for Obama or any future president. Presidents have been known to change their minds, Obama does so on a regular basis.  

3. Arbitrary justice

The president decides who will be tried in the Federal courts or by a military tribunal, a system, as Prof. Turley points out, “that has been ridiculed around the world for lacking basic due process protections.” Yet countries like China and Egypt have rejected tribunals as an alternative to civilian courts.

Those first three reasons totally disregard the Fifth, Sixth and Eighth Amendments

4. Warrantless searches

Under the Patriot Act of 2001, and reinforced by Pres. Obama in 2011, the government can force companies and businesses to turn over citizens records, everything from finances to library records without a warrant and bar the company from telling the targets.

Fourth Amendment? What Fourth Amendment?

5. Secret evidence

The government under the guise of national security says it doesn’t have to show evidence it deems secret for national security thus forcing the dismissal of lawsuits brought against it for illegal detention and torture. This is how the Obama Justice Department has protected the war criminals from the Bush administration not only from civil liability but criminal prosecution for crimes against humanity. As Prof Turley describes, “This allows the government to claim secret legal arguments to support secret proceedings using secret evidence.”

Star Chamber?

6. War Crimes

Since 2009, the President Obama has refused to allow the prosecution of anyone responsible for waterboarding and torture. This in complete disregard of treaty obligations and the Nuremberg principles of international law. The Obama administration went so far as to pressure countries such as Spain to drop criminal investigations of war crimes committed by the Bush administration. Yet the US continues to reserve the right to prosecute war criminals in other countries. ”

“Do as I say not as I do” is the attitude that has fed the hatred of terrorists, as well as, disdain from countries like China when we criticize their human rights violations.

7. Secret court

The Foreign Intelligence Surveillance Court is the United States’ “secret court”, the “star chamber“, that operates in total secrecy. Created in 1978, the eleven judges of the U.S. Foreign Intelligence Surveillance Court (FIS) consider and rule on applications by federal law enforcement and intelligence agencies to conduct electronic surveillance anywhere within the United States. When FISA came up for renewal under the Bush administration it expanded its secret warrants to include individuals deemed to be aiding or abetting hostile foreign governments or organizations. Then Sen. Barack Obama said that he would filibuster the renewal unless certain portions of the bill were fixed to ensure that it did not violate the Constitution. Needless to say, Sen Obama not only did not filibuster the FISA, he voted for it, promising to “fix it” if he was elected president. That was a lie. In 2011, not only did President Obama not fix it, he expanded it to in include secret searches of individuals who are not part of an identifiable terrorist group.

8.  Immunity from judicial review

The Obama administration has pushed for, and granted, immunity of telecommunications companies that assist in warantless surveillance. Citizens who have had their privacy violated by the government no longer have redress.

9. Continual monitoring of citizens

So far the Obama administration has successfully defended in the courts its view that it has the right to use GPS to monitor every move of targeted citizens without securing any court order or review. The case, Jones v. United States, could overturn Katz v. United States which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” That 1967 decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

10. Extraordinary renditions

While the Obama administration has insisted that it no longer transfers persons into the custody of other countries where they could be held and tortured, it is still claiming the right to to order such transfers, including the possible transfer of U.S. citizens.

Prof. Turley goes in to quote those who are justifying these abuses as saying it’s all due to the times we in which we live. But as he so importantly notes in conclusion:

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”

Benjamin Franklin was more direct. In 1787, a Mrs. Powel confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got – a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”

Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely. [..]

Dishonesty from politicians is nothing new for Americans. The real question is whether we are lying to ourselves when we call this country the land of the free.

What was that “change” that was promised three years ago?