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NSA’s Bulk Collection of Phone Records Is Illegal, Appeals Court Says

….The panel rejected the government’s argument that the ACLU lacked standing because it couldn’t prove that any one person’s records, sitting in a searchable database, had been reviewed by government officials. But whether it’s a machine or a person doing the searching doesn’t matter, Lynch wrote:

[T]he government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.

This could become an important precedent in a legal review of the NSA’s ability to automatically turn voice into text, which I disclosed on Tuesday, based on more documents from the Snowden archive.

The court’s rebuttal of the government’s argument that Congress wanted bulk collection kept secret from the public is quietly blistering:

The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information.

The court did not officially rule on whether the program is unconstitutional, because it ruled it illegal on a statutory basis. But, Lynch wrote: “The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding.”

The primary author of the Patriot Act, Rep. Jim Sensenbrenner, R-Wisc., has said that neither he nor anyone else imagined the law would be used for bulk domestic surveillance. “How can every call that every American makes or receives be relevant to a specific investigation?” Sensenbrenner asked, shortly after Snowden revealed the program.

And as Lynch wrote in the opinion: “Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware.”

In a concurring opinion, Judge Robert D. Sack wrote:

Considering the issue of advocacy in the context of deliberations involving alleged state secrets, and, more broadly, the “leak” by Edward Snowden that led to this litigation, calls to mind the disclosures by Daniel Ellsberg that gave rise to the legendary “Pentagon Papers” litigation

…

(full article by Dan Froomkin on The Intercept, here)

Court Rules NSA Bulk Data Collection Was Never Authorized by Congress

As Americans wait for Congress to decide next month whether to renew the Patriot Act and the vast NSA metadata surveillance program it’s made possible, a panel of three appellate judges has made the decision on its own: The Patriot Act, they’ve now ruled, was never written to authorize the sort of sweeping surveillance the NSA interpreted it to allow.

The United States Court of Appeals for the Second Circuit ruled on Thursday that the bulk collection of Americans’ phone metadata by the NSA wasn’t in fact authorized by section 215 of the Patriot Act, as the intelligence community has argued since the program was first revealed in the leaks of Edward Snowden two years ago. The ruling doesn’t immediately halt the domestic phone records surveillance program. But if it’s not overturned by a higher court it could signal the program’s end—and it at least forces Congress to choose whether it wishes to explicitly authorize the program when the Patriot Act comes up for renewal on June 1st.

“We hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” the ruling reads. “We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.”

The ruling comes as the latest surprise development in a lawsuit from the American Civil Liberties Union against the Office of the Director of National Intelligence that immediately followed Edward Snowden’s revelations of the NSA’s mass domestic surveillance under the 215 section’s purported authorization. The lawsuit had been dismissed by a lower court in 2013, but the three appellate judges overruled decision.

Since it was first revealed, the 215 metadata surveillance program has been under attack from privacy advocates, and even the White House has said it’s exploring alternatives to the current system of collecting every American’s phone records. In a statement responding to the ruling, a spokesperson for the National Security Council writes that it’s already looking at a replacement for the program. “The President has been clear that he believes we should end the Section 215 bulk telephony metadata program as it currently exists by creating an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data,” writes the NSC’s assistant press secretary Ned Price. “We continue to work closely with members of Congress from both parties to do just that.”

But the new court ruling will nonetheless have real significance for Congress’s upcoming decision as to whether and how to reform the Patriot Act. A reform bill known as the USA Freedom Act, which would limit the 215 metadata collection, has advanced in the House. But that bill has been opposed by Republicans.

Now, says Cato Institute privacy researcher Julian Sanchez, reform is almost inevitable. “This changes the calculus. You now have a federal appellate court saying that the statute in its current form does not authorize this program. If the program needs to continue, it may not be allowed under a straight reauthorization,” Sanchez says. “If your goal is to preserve this program, reform becomes the surest way to preserve some version of it.”

(Full article by Andy Greenberg at Wired)

Obama’s Petulant WWII Snub of Russia

Russia will celebrate the Allied victory over Nazism on Saturday without U.S. President Obama and other Western leaders present, as they demean the extraordinary sacrifice of the Russian people in winning World War II – a gesture intended to humiliate President Putin.

by Ray McGovern

President Barack Obama’s decision to join other Western leaders in snubbing Russia’s weekend celebration of the 70th anniversary of Victory in Europe looks more like pouting than statesmanship, especially in the context of the U.S. mainstream media’s recent anti-historical effort to downplay Russia’s crucial role in defeating Nazism.

Though designed to isolate Russia because it had the audacity to object to the Western-engineered coup d’état in Ukraine on Feb. 22, 2014, this snub of Russia’s President Vladimir Putin – like the economic sanctions against Russia – is likely to backfire on the U.S. and its European allies by strengthening ties between Russia and the emerging Asian giants of China and India.

Notably, the dignitaries who will show up at this important commemoration include the presidents of China and India, representing a huge chunk of humanity, who came to show respect for the time seven decades ago when the inhumanity of the Nazi regime was defeated – largely by Russia’s stanching the advance of Hitler’s armies, at a cost of 20 to 30 million lives.

Obama’s boycott is part of a crass attempt to belittle Russia and to cram history itself into an anti-Putin, anti-Russian alternative narrative. It is difficult to see how Obama and his friends could have come up with a pettier and more gratuitous insult to the Russian people.

(full article here)

The War on Terror: A False Promise for National Security

by Coleen Rowley
(published in International Journal of Intelligence Ethics, Fall/Winter 2013, Vol 4, Number 2, link here)

“Terrorism is the war of the poor, and war is the terrorism of the rich.” –Sir Peter Ustinov

“War is a lie.” –David Swanson

As you might guess—and to put it mildly—I’ve long been a non-believer in the “war on terror.” I’m really pleased to take full advantage of this invitation to write what I think.

It is important for students to know the objective facts of “the war” that U.S. officials decided their generation would grow up and be saddled with. It is the basic premise of the “war on terror,” that I and many others have constantly tried to expose as faulty and disastrous. It seems we may be at the point now of watching perplexed as the little boy did when the foolish emperor was conned into parading naked. The naked emperor did not know what to do but to continue his prideful march, trying to ignore the boy’s yelling and the crowd’s subsequent snickers.

It is easy to see constant confirmation of the above quotes–fundamental wisdoms making clearer the terrible consequences and costs of this war. Terrorism and war are nothing but the flip sides of each other. Gandhi, Martin Luther King Jr. and many other modern-day ethicists and foreign policy observers have observed that violence only begets violence.

That’s also what the Defense Science Board Task Force concluded in 2004. Donald Rumsfeld had directed this Board to review the impact which the Bush-Cheney Administration’s policies — specifically the wars in Iraq and Afghanistan — were having on terrorism and Islamic radicalism. The resulting report in September 2004 vigorously condemned the Bush/Cheney approach as entirely counter-productive, i.e., as worsening the terrorist threat those policies purportedly sought to reduce. The Task Force began by noting the “underlying sources of threats to America’s national security”: namely, the “negative attitudes” towards the U.S. in the Muslim world and “the conditions that create them.” What most exacerbates anti-American sentiment, and therefore the threat of Terrorism? “American direct intervention in the Muslim world” — through our “one sided support in favor of Israel”; support for Islamic tyrannies in places like Egypt and Saudi Arabia; and, most of all, “the American occupation of Iraq and Afghanistan.”

It is axiomatic that terrorism and war will therefore always work in sync and serve to ratchet up, not reduce, the other. This, of course, guarantees no end, just ever increasing conflict, leading to our “global war on terrorism” being aptly re-named “the long” or “the perpetual” war. American citizens may grow weary of it, especially as the costs and the blowback increase, but the Military Industrial Complex and its little brother, the National Security Surveillance Complex, could not have hit upon a better, more self-sustaining profit formula. Dwight Eisenhower was so correct to warn about this.

Since the Bush-Cheney Administration’s initial launching of this war in the form of a military assault upon Afghanistan—as a response to 9-11, which essentially occurred before an encyclopedia could be written and even before any real truth had trickled out about why and how the attacks on the World Trade Center and the Pentagon had even occurred, it is noted in this publication that the “war on terror” and terrorism have already perhaps taken about two million lives. It has spread to countries around the world, which the U.S. now refers to as “the global battlefield.” Accordingly, newspapers including the Washington Post, report that groups like “Al Qaeda in the Peninsula” have tripled or quadrupled their numbers since the US began its latest form of warfare, its drone bombing in Yemen. Sectarian hatreds, sparked by US invasions and toppling of regimes, have spread violence like wildfire. Understandably, polls in the countries comprising the ever expanding global battlefield show increasing hatred of Americans. This indicates the “global battlefield” will probably only grow larger. It already encompasses the United States proper as the search for “homegrown terrorists” and “insider threats” has effectively replaced the old mantra of “we’re fighting them over there so we don’t have to fight them here.”

The attempted “legalizing” of previously unconstitutional tactics such as warrantless monitoring and personal data collection about American citizens, torture and abusive interrogation as well as drone assassinations were and still are predicated upon the “war powers” in the original “Authorization to Use Military Force.” Worse of all, our government’s declaring war and departing from the rule of law, in many people’s eyes, caused our country to lower itself to the level of the terrorists. Ironically, the declaring of “war” instead of sticking to well-established concepts of criminal justice enhanced the legitimacy and raised the image of the terrorists from mere criminals to a loftier, nation-state status.

Paul R. Pillar, who spent 28 years at the Central Intelligence Agency and rose to be one of the agency’s top analysts, recently wrote about another downside of the precedent set by our “playing of the terrorism card”:

Of course, many dictators and crackdown artists would shout the T-word as a justification for their actions regardless of what the United States does or says. “Terrorist” is an all-purpose pejorative. But the fact that the United States has made the subject such a preoccupation following one event 12 years ago has unquestionably increased the value of this particular card.
Anything that is an obvious preoccupation of the superpower lends credibility to others claiming the same priorities. Invoking the issue also can serve as an appeal for support or at least tolerance from the superpower itself.

The playing of the terrorism card in this manner is in turn but one of the many ways in which the drastic swing of the pendulum of American political priorities in September 2001 still confounds much else the United States is doing, or trying to do, both foreign and domestic.

To be clear, I’ve been a non-believer from the start. In my “whistleblower memo” of May 21, 2002, I even put “war against terrorism” in quotes because no one I knew at the time considered it to even be a real war. We thought it was only being used as a strong metaphor like the “war on drugs” or the “war on poverty.” At that time, people were still hopeful that the “Powell Doctrine” would set strict limits on all (real) post-Vietnam wars. The Powell Doctrine stated that a list of questions all had to be answered affirmatively before military action is taken by the United States:

1. Is a vital national security interest threatened?
2. Do we have a clear attainable objective?
3. Have the risks and costs been fully and frankly analyzed?
4. Have all other non-violent policy means been fully exhausted?
5. Is there a plausible exit strategy to avoid endless entanglement?
6. Have the consequences of our action been fully considered?
7. Is the action supported by the American people?
8. Do we have genuine broad international support?

But none of these questions were asked before the “war on terror” was declared. The hope of the existence of any such limits went totally up in smoke when Colin Powell himself helped destroy his name-sake doctrine, testifying dishonestly to the United Nations in February 2003, by exaggerating and concocting evidence of “weapons of mass destruction” to justify Bush-Cheney’s ensuing pre-emptive (and all too real) war on Iraq. The decision to launch a pre-emptive invasion of a country that had nothing to do with 9-11 terrorism, prompted me to write a second whistleblower letter to the FBI Director. (Among other things, Robert Mueller had to know Iraq bore no connection to 9-11, that there was no proof for Vice President Dick Cheney constantly falsely pointing to 9-11 hijacker Mohammed Atta having met with Iraqi intelligence.) My warning about how this next “war,” the next step of the “war on terror” would turn out to be counter-productive fell on deaf years as by that time, the war propaganda had succeeded in getting 70% of the American public to believe, without a shred of evidence, that Saddam was behind the 9-11 attacks! Talk about an example of “war is a lie!”

By that time, the ethics training I and other FBI legal counsel happened to have presented just one week before 9-11 “not to puff, shade, skew, massage, tailor or firm up statements of fact” was obviously long forgotten. Truth had become the first casualty of the “war on terror” as in all wars. None of the various unethical and illegal actions that quickly took the U.S. not only to hot wars on Afghanistan and Iraq but also to “the dark side”: i.e. warrantless monitoring; massive data collections; kidnapping renditions; creation of black sites; indefinite detention of captured prisoners at Guantanamo and elsewhere; declaring that the Geneva Conventions didn’t apply; use of various “enhanced interrogation” torture and abusive tactics; depriving detainees of their rights to attorney, due process and to habeas corpus; the costly hiring of millions of “top secret cleared” employees through private contractors and more recently the widespread use of drone assassinations throughout the world far from conventional battlefields—bears any connection to the problems and failures that the 9-11 Commission and other official 9-11 investigations concluded had allowed the attacks to occur. The official conclusions about the factors and real reasons for 9-11, however, came way too late, years after almost all of the kneejerk “dark side” actions had begun.

It was eventually determined there were real failures to share information, not only within agencies and between intelligence agencies but also, and most importantly, with the public. Failures to even read important pre 9-11 intelligence memos, let alone share important intelligence, were identified. But as far as I can tell (noting that I’ve been retired since the end of 2004), none of those failures were ever remedied. If anything, the official excuse for not reading or acting on memos addressed to the top, that “you can’t get a sip from a firehose” was made thousands of times worse by the initiation of “total information awareness” type massive data collection programs and by hugely increasing the use of secret classifications to compartmentalize and keep even more information secret. “Secret intelligence” is nothing but a dangerous contradiction of terms.

The various unethical, illegal responses not only had nothing to do with fixing the pre 9-11 lapses, but they made matters worse pragmatically as well as caused the U.S. to lose the moral high ground. Adopting the “law of war” and departing from judicial “due process” also meant dropping (or greatly reducing) the need for evidentiary showings. Open judicial processes inherently guarantee more accuracy, than for example, instituting bounty systems to capture foreigners who just happened to be in the wrong place at the wrong time but whom it was easy to label “the worst of the worst” and then detain indefinitely at Guantanamo. Guantanamo was selected deliberately so as to be outside the reach of American law. Accuracy was also sacrificed in allowing the CIA to make ex parte decisions to kidnap and torture other suspects, some of whom turned out to be totally innocent. The same ex parte decisional authority later impaired the CIA’s and Pentagon’s drone “kill list” once the faultiness of their prior “capture process” became public knowledge, leading to ramping up the “kill” prong of “kill or capture.”

Even a strong proponent of military drones, journalist Mark Bowden (author of Blackhawk Down), in his recent sales pitch for “The Killing Machines” in The Atlantic felt the need to temper some of his praise for President Obama’s drone killing program by admitting that an increasing lack of judiciousness was counterproductive:

As U.S. intelligence analysis improved, the number of targets proliferated. Even some of the program’s supporters feared it was growing out of control. The definition of a legitimate target and the methods employed to track such a target were increasingly suspect. Relying on other countries’ intelligence agencies for help, the U.S. was sometimes manipulated into striking people who it believed were terrorist leaders but who may not have been, or implicated in practices that violate American values.

Reporters and academics at work in zones where Predator strikes had become common warned of a large backlash. Gregory Johnsen, a scholar of Near East studies at Princeton University, documented the phenomenon in a recent book about Yemen titled The Last Refuge. He showed that drone attacks in Yemen tended to have the opposite of their intended effect, particularly when people other than extremists were killed or hurt. Drones hadn’t whittled al-Qaeda down, Johnsen argued; the organization had grown threefold there. “US strikes and particularly those that kill civilians—be they men or women—are sowing the seeds of future generations of terrorists,” he wrote on his blog late last year.

(However Bowden credits John Brennan, Harold Koh and others with re-establishing “judiciousness” in the “rigorous vetting” that goes into CIA and Pentagon officials’ selecting drone bombing victims which nonetheless remains secret and obviously ex parte. But can “judiciousness” ever be established in the absence of judicial process?)

One of the burning issues that got a lot of attention at conferences that I attended was about whether it was ethical to use torture to interrogate terrorist suspects. A number of those attending, including some of the academics who self-identified as “utilitarian ethicists” gave presentations and wrote papers that answered in the affirmative, that it was ethical to use torture to gain information to find a “ticking time bomb” or otherwise thwart terrorism. Obviously the “act utilitarian” fictional plots of Jack Bauer “24” type TV shows which concocted happy outcomes predicated upon use of unethical, illegal means had swayed many. I recall constantly raising my hand, based on my FBI experience, to try and refute other attendees’ deluded notions that torture “works” to obtain reliable information on a timely basis to save lives.

The most well-established “due process” principles of criminal justice that are embodied in the Bill of Rights have evolved and stood the test of time for a reason: simply because they generally work. Laws prohibiting “dark side” methods: torture, coerced confessions, warrantless search and arbitrary detainment ensure the highest degree of reliability and are thus most effective or “rule utilitarian.” Anyone who comes onto the scene, subscribing to a “1% solution” that the ends justify the means (even if it only works 1% of the time but doesn’t work as a rule), and who claims that centuries of pre-existing legal principles must give way and be redrawn and re-balanced against the demands of “security,” should therefore always be viewed with extreme suspicion. Yet The One Percent Doctrine (the title of journalist Ron Suskind’s book) was exactly what former Vice President Dick Cheney and others publicly vowed with little objection.

If you don’t care about the truth and pragmatic facts, it’s not that hard to concoct happy outcomes where practicing torture and abuse is what leads to finding Bin Laden; where massive data collection of information about billions of innocent citizens helps detect and thwart terrorist plots; where surgical drone bombing kills only the high level terrorists; where bending the constitutional and international rule of law due to a state of war and fear-inspired emergency “because the Constitution is not a suicide pact”; where bombing the village saves it, etc., but these are all simply different versions of highly discredited “act utilitarianism.” It is also why Jan Goldman’s encyclopedia is valuable, because it contains actual facts as opposed to fiction.

No one in their right mind would take a new drug that the FDA (Food and Drug Administration) found to be only 1% effective, hoping beyond hope, that they would prove to be the exception to the rule, and especially if the testing revealed terrible, longer-range side effects. But the “war on terror” uses propaganda to effectively push Western people’s emotional buttons: mostly fear, hate, greed, false pride and blind loyalty (in that order) to produce an irrational collective mindset to get people to go along. Since 9/11, no more than 50 Americans have died due to Islamic terrorism outside of the war zones in Iraq and Afghanistan. And even then, almost all of these 50 victims have been military, CIA or other US government personnel. By contrast, the U.S. appears to lead the world in domestic mass shootings, the senselessness of which serves to naturally terrorize us but which are almost never categorized as “domestic terrorism” despite taking several times the number of American civilian lives as international terrorism. These mass shootings are variously described as spree killings (i.e. the snipers that terrorized Washington DC after 9-11), “going postal” workplace retribution, school shootings, cases where the shooter suffered from serious mental illness or military veterans suffering from PTSD. By further contrast, in that same period since 9-11, over 450,000 people in the U.S. died in (mostly preventable) car accidents and about 180,000 died as a result of violent crime. Over two million in the U.S. may have died due to preventable medical errors or improper use of medications. Even bee stings, which I admit are pretty scary, kill many times more Americans (between 50 and 100 per year) than terrorism and bathtub accidents still more (300 some drown in U.S. bathtubs per year).

“Nothing so effectively robs the mind of its ability to think or to act as fear,” observed Edmund Burke. To Burke’s observation, I would add that fear can rob us—and mankind in general—of our ability to adhere to ethical and legal norms. After all, didn’t some famous Nazi once explain that all you have to do to get people to go to war is to tell them they are being attacked? And that this fear-mongering technique works the same in any country, even in a democracy? Pressing the United States citizenry’s buttons in this manner has certainly worked thus far to manipulate most into supporting or at least going along with the “war on terror” especially when it was believed this “long” or “perpetual” war only targeted others, not U.S. citizens. But it has also opened Pandora’s Box. And it most assuredly has not made us any safer. Quite the opposite is true as one now sees the growing backlash across economic, diplomatic, environmental and even domestic security spectrums, given the increasing militarism of both police and violent criminal actors inside the U.S. Clearly we have opened a Pandora’s Box. Americans now need to get a grip to recover some of their critical thinking skills just as FDR wisely counseled at the outset of World War II. The ethical and legal principles that have stood the test of time, whether described as based on the inherent reciprocity of international law or simply “the Golden Rule,” to properly balance human freedom and security, should never have been so carelessly and recklessly tossed away.

The Lasting Pain from Vietnam Silence

Exclusive: Many reflections on America’s final days in Vietnam miss the point, pondering whether the war could have been won or lamenting the fate of U.S. collaborators left behind. The bigger questions are why did the U.S. go to war and why wasn’t the bloodletting stopped sooner, as ex-CIA analyst Ray McGovern reflects.

By Ray McGovern

Ecclesiastes says there is a time to be silent and a time to speak. The fortieth anniversary of the ugly end of the U.S. adventure in Vietnam is a time to speak – and especially of the squandered opportunities that existed earlier in the war to blow the whistle and stop the killing.

While my friend Daniel Ellsberg’s leak of the Pentagon Papers in 1971 eventually helped to end the war, Ellsberg is the first to admit that he waited too long to reveal the unconscionable deceit that brought death and injury to millions.

(Scene from the Vietnam War)

I regret that, at first out of naiveté and then cowardice, I waited even longer – until my own truth-telling no longer really mattered for the bloodshed in Vietnam. My hope is that there may be a chance this reminiscence might matter now – if only as a painful example of what I could and should have done, had I the courage back then. Opportunities to blow the whistle in time now confront a new generation of intelligence analysts – whether they work on Iraq, Syria, Afghanistan, ISIS or Iran.

(Full article on Consortiumnews.)