Category: Civil Rights

Limited Disclosure of FISA Warrants to Internet Firms Approved

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Facebook and Microsoft have gotten permission to release total numbers of government requests for data, which both Facebook and Twitter have lambasted as inadequate.

It’s clear to me that this permission is intended more to conceal than reveal:

Facebook and Microsoft announced Friday that the U.S. government is allowing them to disclose U.S. national security-related requests they received, but lumped together with other law enforcement requests. Google pushed back against those conditions.

“Since this story was first reported, we’ve been in discussions with U.S. national security authorities urging them to allow more transparency and flexibility around national security-related orders we are required to comply with,” Ted Ullyot, Facebook’s general counsel, wrote in a blog post.

“We’re pleased that as a result of our discussions, we can now include in a transparency report all U.S. national security-related requests (including FISA as well as National Security Letters) — which until now no company has been permitted to do.”

The social-networking company reported that for the six months ending December 31, it had received between 9,000 and 10,000 user data requests from U.S. local, state and federal governments, including national security-related requests, Ullyot said. Between 18,000 and 19,000 Facebook user accounts were affected by the requests, he said.

This is quite literally the least the state security apparatus could approve, something which Google notes:

We have always believed that it’s important to differentiate between different types of government requests,” a Google spokesperson said in a statement. “We already publish criminal requests separately from National Security Letters. Lumping the two categories together would be a step back for users. Our request to the government is clear: to be able to publish aggregate numbers of national security requests, including FISA disclosures, separately.

It’s clear that this is an attempt to forestall transparency, and instead create the appearance of transparency, by the intelligence agencies and the Department of Justice.

It’s good news, because it’s clear that they, and the Obama administration, is in damage control mode, which would indicate that Google and Twitter will eventually be allowed greater disclosure.

At least, that is what I hope.

Won the Election and Should Have Been President

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Al Gore:

The National Security Agency’s blanket collection of US citizens’ phone records was “not really the American way”, Al Gore said on Friday, declaring that he believed the practice to be unlawful.

In his most expansive comments to date on the NSA revelations, the former vice-president was unsparing in his criticism of the surveillance apparatus, telling the Guardian security considerations should never overwhelm the basic rights of American citizens.

He also urged Barack Obama and Congress to review and amend the laws under which the NSA operated.

“I quite understand the viewpoint that many have expressed that they are fine with it and they just want to be safe but that is not really the American way,” Gore said in a telephone interview. “Benjamin Franklin famously wrote that those who would give up essential liberty to try to gain some temporary safety deserve neither liberty nor safety.”

There are some people who leave politics, and just cash in as a lobbyist (Evan Bayh comes to mind), and there are those who find freedom and grow.

Al Gore is one of the latter.

Let me offer a hearty f%$# you to the corrupt Supreme Court justices who mad the Bush administration happen.

The Word for This is Desperation………

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Yes, the NSA is now saying that it will provide information about how it’s rapacious thirst for our personal data stopped some terrorists at some point:

The National Security Agency (NSA) plans to release details of terrorist attacks thwarted by its controversial bulk surveillance of Americans’ communications data, a senior US senator said on Thursday.

Senator Dianne Feinstein (Democrat, California), the chairwoman of the Senate intelligence committee, said the NSA director, General Keith Alexander, would provide “the cases where this [surveillance] has stopped a terrorist attack, both here and in other places” as early as Monday.

Here is the important quote:

But the FBI director, Robert Mueller, forcefully defended the programs on Thursday to the House judiciary committee by saying the broad surveillance could have foiled the 9/11 attacks and averted “another Boston”.

But this program has been going on for years, and Boston happened.  Why didn’t it do it then?

They are trying to blow smoke up our ass.

Yes, James Clapper Perjured Himself Before Congress, and Should Be Both Fired and Prosecuted

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Fred Kaplan, who tends to be a font of conventional wisdom, is calling for Director of National Intelligence James Clapper to be fired:

If President Obama really does welcome a debate about the scope of the U.S. surveillance program, a good first step would be to fire Director of National Intelligence James Clapper.

 Back at an open congressional hearing on March 12, Sen. Ron Wyden (D-Ore.) asked Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper replied, “No sir … not wittingly.” As we all now know, he was lying.

 We also now know that Clapper knew he was lying. In an interview with NBC’s Andrea Mitchell that aired this past Sunday, Clapper was asked why he answered Wyden the way he did. He replied:

“I thought, though in retrospect, I was asked [a] ‘when are you going to … stop beating your wife’ kind of question, which is … not answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful, manner by saying, ‘No.’ ”

Let’s parse this passage. As a member of the Senate Intelligence Committee, Wyden had been briefed on the top-secret-plus programs that we now all know about. That is, he knew that he was putting Clapper in a box; He knew that the true answer to his question was “Yes,” but he also knew that Clapper would have a hard time saying so without making headlines.

There were actually some non-answer answers he could have given that didn’t rise to the level of lying to Congress, saying something like, “No one is perfect, but we do our best not to infringe on the privacy of the American public,” but he just perjured himself, and he did so because he simply did not did not care about telling the truth under oath.

FWIW, is obliquely saying the Clapper lied through his teeth as well:

Ron Wyden, a Democratic member of the Senate intelligence committee, revealed that he had given Clapper, the director of national intelligence, a day’s advance notice of a question about the extent of government surveillance at a congressional hearing in March.

 Clapper said earlier this week that he had misunderstood the question. When asked directly by Wyden in March whether the NSA was collecting any kind of data on “millions” of Americans, Clapper replied “no” and “not wittingly” – a claim undermined by the Guardian’s disclosures about NSA collection of millions of Americans’ phone records. Wyden also disclosed that he had given Clapper an opportunity in private to revise his answer, after the session.

 “One of the most important responsibilities a senator has is oversight of the intelligence community. This job cannot be done responsibly if senators aren’t getting straight answers to direct questions,” Wyden said in a Tuesday statement.

(emphasis mine)

Note that this makes this even worse, because Clapper did not just lie off the cuff. He was given 24 hours to come up with an appropriate answer, and then he was given the opportunity to revise his answer, and he just lied, because he knew that there would be absolutely no consequences for this.

With Barack Obama in the White House, and Eric Holder as Attorney General, he is probably right, but the statute of limitations is 5 years, so a new AG could file charges between January 2017 and May of 2018.

It won’t happen, but I can dream.

And in the Further Adventures of Epic Fails: NSA Edition

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Chinese artist and dissident Ai Weiwei, talking about the NSA telephone drift net says that the US is behaving like China:

Even though we know governments do all kinds of things I was shocked by the information about the US surveillance operation, Prism. To me, it’s abusively using government powers to interfere in individuals’ privacy. This is an important moment for international society to reconsider and protect individual rights.

I lived in the United States for 12 years. This abuse of state power goes totally against my understanding of what it means to be a civilised society, and it will be shocking for me if American citizens allow this to continue. The US has a great tradition of individualism and privacy and has long been a centre for free thinking and creativity as a result.

In our experience in China, basically there is no privacy at all – that is why China is far behind the world in important respects: even though it has become so rich, it trails behind in terms of passion, imagination and creativity.

Read the rest.

Hurray for the ACLU

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They have filed suit to get access to the FISA court orders authorizing the NSA drift netting of Americans’ communications data:

The ACLU and Yale Law School’s Media Freedom and Information Clinic filed a motion today with the Foreign Intelligence Surveillance Court (FISC), seeking the release of secret court opinions that permit the government to acquire Americans’ phone records en masse. The public has a right to know the legal justification for the government’s sweeping surveillance—but, until now, those judicial opinions have remained a heavily guarded secret.

 The ACLU filed its motion on the heels of last week’s disclosure of an order, issued under Section 215 of the Patriot Act, compelling a Verizon subsidiary to turn over call details for every domestic and international phone call placed on its network during a three-month period. Since then, media reports and statements by members of the congressional intelligence committees have made clear that this order belongs to a much larger surveillance program—covering all the major telephone companies—that has been in existence for the past seven years. When pressed about the program, members of Congress as well as executive officials have emphasized that this mass acquisition of Americans’ phone records was reviewed and approved by judges on the FISC.

 ………

 The release of these FISC opinions is the first step to an informed public discussion of the surveillance powers asserted by the government. It should not be able to shield such a radical and unprecedented intrusion on Americans’ privacy behind a secret court issuing secret legal interpretations of our laws.

I have a sense that they are going to have to fight like hell to get access to the legal opinions, because the filings will almost certainly reveal the low bar presented by the administration, and the low bar accepted by the judiciary, will make a travesty of their protestations of due process.

As Juan Cole pithily notes, “We Misunderstood Barack: He only wanted the Domestic Surveillance to be Made Legal, not to End It.

The idea that you take a blatantly lawless program of nearly unlimited surveillance powers (Bush/Yoo unitary executive), and slap on some due process and retain the same nearly unlimited power, and it’s OK, because the Obama administration is a bunch of good people*, normal checks and balances do not need to apply.

It can all be done in secret, with the approval of a secret court that you have to keep away from toilet paper, because they will sign anything, and the public will never know, and it’s all good.

It’s why I call him, “the Worst Constitutional Law Professor Ever™.”

*Now that Rahm Emanuel is afflicting the people of Chicago, anyway.

Why NSA Spying Matters

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John Judis was a relatively low level political activist, primarily concerned with the Vietnam war, in the 1960s

Well, he relates the systematic program of surveillance and harassment against him:

President Barack Obama has assured us that we need not be worried about the National Security Agency listening to our phone calls or monitoring our Internet use. The NSA’s programs, he said, represent “modest encroachments on privacy” that are “worth us doing” to protect the country from terrorists. Count me among those who are not reassured by Obama’s statement. I know better—from my schoolboy knowledge of the Constitution and from my own experience during the ’60s with unwarranted government surveillance.

I don’t usually like to base moral judgments on what the Constitution does or does not allow, but in this case, it makes sense to do so. The Constitution had two very different purposes: One was to create a functioning government; the other, forged in the wake of the American revolution, was to establish constraints that would prevent the abuse of state power. The First Amendment was designed to do the latter; and so was the Fourth, which prohibits “unreasonable searches and seizures.” The administration’s obsessive pursuit of press leaks threatens the First Amendment’s freedom of the press; and the NSA’s surveillance violates the Fourth Amendment’s ban on general warrants—on indiscriminate searches without probable cause.

………

 I had my own vague vision of what a socialist America would look like, but almost everything that I did was directed at immediate issues like ending the Vietnam War or later impeaching Richard Nixon. I was not a bomb thrower. I advocated running candidates in elections. I taught classes on Marx’s Capital and American history at a school we organized in Oakland. But during this period, I was under almost constant surveillance by the FBI and by other intelligence or police agencies. I received regular visits from the FBI (I told them I wouldn’t talk to them), and they also visited my parents and friends.

As my FBI file, which I later obtained, attested, my movements were being monitored even when I didn’t know it. (Most of it is, unfortunately, blacked out.) In organizing demonstrations, I encountered people who turned out to be government agents. I was pulled over by the police with guns drawn for no apparent reason. And I also received inquiries about my tax returns from the IRS even though I was living on about $3000 a year during much of this period. These inquiries, which to this day may or may not have had something to do with my politics, certainly make me sympathetic to the rightwing groups who were barraged by inquiries from the IRS—whether or not these inquiries were directed by higher-ups in the administration.

 ………

 Obama says that the debate over the NSA’s activities is “healthy for our democracy” and a “sign of maturity.” But I think it’s a sign of forgetfulness—of Constitutional amnesia—on the part of Obama and his Attorney General Eric Holder, not to mention the administration’s vaunted intelligence chiefs who want to divert attention from the subject of the leaks, which is their own behavior, onto the leaker. I am hoping Democrats as well as Republicans in Congress remind the administration what the Constitution was designed to do and what the original FISA legislation was meant to do, but judging from the performance of most congressional leaders so far, I am not holding my breath.

When people (like the contemptible Lawrence O’Donnell* this evening) say that they “feel safer” because they are much less likely to be observed in the vast morass of data, they do no not get it.

The question is what happens with all that information when someone in power, whether it be the President of the United States, or minor data entry clerk like Edward Snowden, or a law enforcement official like J. Edgar Hoover decides to make you their business.

You do not get lost in the haystack when they decide to come for you.

That’s why we have a 4th amendment.

*Seriously, he is so in the tank for Obama that he would endorse an order from Obama for O’Donnell’s own execution.

We Have a Name for the Hero

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The NSA leaker is Edward Snowden, who is now in hiding in Hong Kong:

The individual responsible for one of the most significant leaks in US political history is Edward Snowden, a 29-year-old former technical assistant for the CIA and current employee of the defence contractor Booz Allen Hamilton. Snowden has been working at the National Security Agency for the last four years as an employee of various outside contractors, including Booz Allen and Dell.

 The Guardian, after several days of interviews, is revealing his identity at his request. From the moment he decided to disclose numerous top-secret documents to the public, he was determined not to opt for the protection of anonymity. “I have no intention of hiding who I am because I know I have done nothing wrong,” he said.

 Snowden will go down in history as one of America’s most consequential whistleblowers, alongside Daniel Ellsberg and Bradley Manning. He is responsible for handing over material from one of the world’s most secretive organisations – the NSA.

 In a note accompanying the first set of documents he provided, he wrote: “I understand that I will be made to suffer for my actions,” but “I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant.”

 ………

 He has had “a very comfortable life” that included a salary of roughly $200,000, a girlfriend with whom he shared a home in Hawaii, a stable career, and a family he loves. “I’m willing to sacrifice all of that because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

 ………

 Having watched the Obama administration prosecute whistleblowers at a historically unprecedented rate, he fully expects the US government to attempt to use all its weight to punish him. “I am not afraid,” he said calmly, “because this is the choice I’ve made.”

 He predicts the government will launch an investigation and “say I have broken the Espionage Act and helped our enemies, but that can be used against anyone who points out how massive and invasive the system has become”.

 ………

 He left the CIA in 2009 in order to take his first job working for a private contractor that assigned him to a functioning NSA facility, stationed on a military base in Japan. It was then, he said, that he “watched as Obama advanced the very policies that I thought would be reined in”, and as a result, “I got hardened.”

 The primary lesson from this experience was that “you can’t wait around for someone else to act. I had been looking for leaders, but I realised that leadership is about being the first to act.”

They are going to try to destroy him, of course.

Note also that he wasn’t working for the NSA, he was a contractor at Booz Allen Hamilton. That means that information about this program was spread among dozens of entities (Booz Allen Hamilton was almost certainly one of many contractors), which means that any decent intelligence gathering operation, whether it be Russia, China, or a dude with Google and Lexis-Nexis would know about this.

It’s clear that this secrecy was not about concealing this from potential rivals or adversaries, but rather its goal was to conceal this from the American public.

Click for full size


Clapper Said No US Surveillance, but the US Ain’t Green

BTW, the Guardian has also revealed information about the global data mining operation, called Boundless Informant:

The National Security Agency has developed a powerful tool for recording and analysing where its intelligence comes from, raising questions about its repeated assurances to Congress that it cannot keep track of all the surveillance it performs on American communications.

 The Guardian has acquired top-secret documents about the NSA datamining tool, called Boundless Informant, that details and even maps by country the voluminous amount of information it collects from computer and telephone networks.

………

 At a hearing of the Senate intelligence committee In March this year, Democratic senator Ron Wyden asked James Clapper, the director of national intelligence: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

 “No sir,” replied Clapper.

 Judith Emmel, an NSA spokeswoman, told the Guardian in a response to the latest disclosures: “NSA has consistently reported – including to Congress – that we do not have the ability to determine with certainty the identity or location of all communicants within a given communication. That remains the case.”

The US ain’t green, the lowest level of surveillance, and James Clapper perjured himself before Congress, but there will be no consequences for this.

Meanwhile Congressman Peter King is calling for Snowden’s extradition:

There was no immediate reaction from the White House but Peter King, the chairman of the House homeland security subcommittee, called for Snowden’s extradition from Hong Kong. Snowden flew there 10 days ago to disclose top-secret documents and to give interviews to the Guardian.

 “If Edward Snowden did in fact leak the NSA data as he claims, the United States government must prosecute him to the fullest extent of the law and begin extradition proceedings at the earliest date,” King, a New York Republican, said in a written statement. “The United States must make it clear that no country should be granting this individual asylum. This is a matter of extraordinary consequence to American intelligence.”

It should be noted that Peter King openly and aggressively supported the IRA when it was a terrorist organization, and actually planting bombs.

By comparison, Snowden revealed the administration, and government, lies to, and spying on its own citizens.

If Snowden was seeing a psychiatrist, like Daniel Ellsburg, I fully expect Obama to pull out the Nixon playbook and stage a bag operation to steal his records.

Yes, We Are Being Watched

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Glenn Greenwald got a copy of a FISA court order requiring that Verizon turn over all phone call information for a 3 month period.  Members of Congress have revealed that this was in fact a renewal, and that this has been going on for 7 years.  Senator Udall stated that he has been trying reveal that this was going on for much of that time, but he had been stymied:

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.

 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.

And, BTW, they are also data mining all the major Internet providers:

The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.

 The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.

 The Guardian has verified the authenticity of the document, a 41-slide PowerPoint presentation – classified as top secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims “collection directly from the servers” of major US service providers.

 Although the presentation claims the program is run with the assistance of the companies, all those who responded to a Guardian request for comment on Thursday denied knowledge of any such program.

 ………

 A chart prepared by the NSA, contained within the top-secret document obtained by the Guardian, underscores the breadth of the data it is able to obtain: email, video and voice chat, videos, photos, voice-over-IP (Skype, for example) chats, file transfers, social networking details, and more.

 ………

 “Fisa was broken because it provided privacy protections to people who were not entitled to them,” the presentation claimed. “It took a Fisa court order to collect on foreigners overseas who were communicating with other foreigners overseas simply because the government was collecting off a wire in the United States. There were too many email accounts to be practical to seek Fisas for all.”

Because that whole Constitution is just so inconvenient.

BTW, the Washington Post also published an article about the PRISM program at the same time as the Guardian, and toward the end of their article, they have this tidbit:

Firsthand experience with these systems, and horror at their capabilities, is what drove a career intelligence officer to provide PowerPoint slides about PRISM and supporting materials to The Washington Post in order to expose what he believes to be a gross intrusion on privacy. “They quite literally can watch your ideas form as you type,” the officer said.

And in the world of conventional wisdom, the New York Times editorial board, has unleashed a can of whup ass on the Obama administration about this:

Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights.

Those reassurances have never been persuasive — whether on secret warrants to scoop up a news agency’s phone records or secret orders to kill an American suspected of terrorism — especially coming from a president who once promised transparency and accountability.

 The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.

………

 On Thursday, Representative Jim Sensenbrenner, Republican of Wisconsin, who introduced the Patriot Act in 2001, said that the National Security Agency overstepped its bounds by obtaining a secret order to collect phone log records from millions of Americans.

 “As the author of the Patriot Act, I am extremely troubled by the F.B.I.’s interpretation of this legislation,” he said in a statement. “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.” He added: “Seizing phone records of millions of innocent people is excessive and un-American.”

 Stunning use of the act shows, once again, why it needs to be sharply curtailed if not repealed.

Yes, I agree with what Sensenbrenner says, which is a complete mind f%$#.

BTW, it gets worse, because it looks like the NSA was getting credit card data as well:

The National Security Agency’s monitoring of Americans includes customer records from the three major phone networks as well as emails and Web searches, and the agency also has cataloged credit-card transactions, said people familiar with the agency’s activities.

 The disclosure this week of an order by a secret U.S. court for Verizon Communications Inc.’s phone records set off the latest public discussion of the program. But people familiar with the NSA’s operations said the initiative also encompasses phone-call data from AT&T Inc. and Sprint Nextel Corp. records from Internet-service providers and purchase information from credit-card providers.

BTW, Marcy Wheeler is spot on when she says that the only reason for all this secrecy is to prevent court challenges by making it impossible for a plaintiff to show standing:

The Administration wants you to believe that “all three branches” of government have signed off on this program (never mind that last year FISC did find part of this 215 collection illegal — that’s secret too).

But our court system is set up to be an antagonistic one, with both sides represented before a judge. The government has managed to avoid such antagonistic scrutiny of its data collection and mining programs — even in the al-Haramain case, where the charity had proof they had been the target of illegal, unwarranted surveillance — by ensuring no one could ever get standing to challenge the program in court. Most recently in Clapper v. Amnesty, SCOTUS held that the plaintiffs were just speculating when they argued they had changed their habits out of the assumption that they had been wiretapped.

This order might just provide someone standing. Any of Verizon’s business customers can now prove that their call data is, as we speak, being collected and turned over to the NSA. (Though I expect lots of bogus language about the difference between “collection” and “analysis.”)

That is what all the secrecy has been about. Undercutting separation of powers to ensure that the constitutionality of this program can never be challenged by American citizens.

It’s no big deal, says the Administration. But it’s sufficiently big of a deal that they have to short-circuit the most basic principle of our Constitution.

Also, read Bruce Schneier’s impassioned defense on whistle blowing.

As I have noted a number of times before, Barack Obama is showing himself to be the Worst ……… Constitutional ……… law ……… professor ……… ever.

Accountability in Free Trade, What a Concept

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Following a spate of horrific fatal disasters at Bangladeshi textile industry pressure is increasing end special trade status between that nation and the US:

After several deadly factory disasters in Bangladesh — including the collapse of an eight-story garment factory last month that left at least 1,127 people dead — labor advocates are stepping up pressure on the Obama administration, calling for it to convey its disapproval of working conditions in the country by revoking its special trade status.

But federal officials remain conflicted over the American government’s responsibility for safer labor conditions overseas, and in meetings in recent weeks they disagreed over what combination of carrots and sticks would work best to achieve this goal.

 Some officials, particularly in the State Department, say that if trade status is revoked, Washington will lose its leverage to pressure Bangladesh to improve building codes and labor rights. Labor advocates and officials from the Labor Department counter, however, that this leverage is lost anyway if the administration is never willing to use it.

 “By failing to take serious action before now even in the face of phenomenal, unprecedented death of workers, U.S. trade officials have already sent the wrong message to Bangladesh,” said Brian Campbell, policy and legal programs director of the International Labor Rights Forum, a workers advocacy group. “It’s time to send a strong signal.”

Mr. Campbell is right.

If you are not willing to have consequences to an employment regime that is corrupt and patently anti-worker (the factory owner has to approve before employees can join a union) because you fear losing leverage, then you never had any leverage to begin with.

If the US revokes the trade status, it is likely that the EU will as well, so this is a big deal, and a well deserved response.

This is not just poor pay and working conditions in Bangladesh, it is also that the state security apparatus murder labor organizers:

Last April, Aminul Islam, a prominent worker advocate, was found dead, his body bearing signs of torture. Reporters in Bangladesh said there was evidence that the government’s security forces might have been tied to the death. No one has yet been arrested. According to American diplomats and labor officials, there has been little progress in the investigation.

It’s not going to happen now, because the Obama administration is populated by “free market mousketeers”, who believe that lowered trade barriers created improved working conditions and worker protections (they don’t Bangladesh, QED), make everyone richer, and keep your daughter from dating that guy with the piercings and tattoos.

Speaking of Fails………

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How about that funny looking guy with the big ears?

You know, the one who ran against John McCain in 2008?

Well, there are reports that that he will nominate Bush Administration apparatchik James Comey as the next FBI director:

President Obama plans to nominate James B. Comey, a former senior Justice Department official in the George W. Bush administration, to replace Robert S. Mueller III as FBI director, according to two people with knowledge of the selection process.

 Comey, 52, was at the center of some of the most bruising debates over counterterrorism during the Bush administration and established a reputation as a fierce defender of the law and the integrity of the Justice Department regardless of the political pressures of the moment.

 The expected nomination of Comey, a Republican, was seen in some quarters as a bipartisan move by a president besieged by Republicans in Congress. But Chuck Hagel’s prior service as a Republican senator from Nebraska did not spare him from a bruising nomination battle for secretary of defense.

(emphasis mine)

Yes, more of the PPUS (Post Partisan Unity Schtick).  It does not work, and neither does starting the negotiation process with capitulation does a disservice to the basic morals on that Obama purports to believe it.

Notwithstanding the fact that he opposed one the most egregious excesses of the Cheney Bush administration, he is a bad guy, who has next to no interest in supporting civil rights, as the ACLU has observed:

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

WASHINGTON – Below is a statement from Anthony D. Romero, executive director of the American Civil Liberties Union, on President Obama’s reported plan to nominate James B. Comey as the next director of the Federal Bureau of Investigation.

“While the ACLU does not take official positions on nominations to appointed office, there are many questions regarding Comey’s record that deserve careful scrutiny from the Senate Judiciary Committee. As the second-highest ranked Justice Department official under John Ashcroft, Comey approved some of the worst abuses committed by the Bush administration. Specifically, the publicly available evidence indicates Comey signed off on enhanced interrogation techniques that constitute torture, including waterboarding. He also oversaw the indefinite detention without charge or trial of an American citizen picked up in the United States and then held for years in a military brig. Although Comey, despite tremendous pressure from the Bush White House, deserves credit for courageously stopping the reauthorization of a secret National Security Agency program, he reportedly approved programs that struck at the very core of who we all are as Americans.

“It’s critical that the Senate ensures that the men and women of the FBI know that they have a leader who will demand adherence to the rule of law and will hold those accountable who do not, wherever he or she may find them.”

Seeing the Obama administration’s consistently dismissive attitude towards civil rights (Worst Constitutional Law Professor Ever), they may see his role in the some of the worst excesses of the Bush administration, including torture, as a plus.

So, Now That We Have a Week of “Scandals”………

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The Obama administration has come out in favor of a media shield law that they had previously tried to delay and kill:

Under fire over the Justice Department’s use of a broad subpoena to obtain calling records of Associated Press reporters in connection with a leak investigation, the Obama administration sought on Wednesday to revive legislation that would provide greater protections to reporters in keeping their sources and communications confidential.

President Obama’s Senate liaison, Ed Pagano, on Wednesday morning called the office of Senator Charles E. Schumer, Democrat of New York, and asked him to reintroduce a version of a bill that he had pushed in 2009 called the Free Flow of Information Act, a White House official said.

The bill would create a federal media shield law, akin to ones most states already have, giving journalists some protections from penalties for refusing to identify confidential sources in federal law enforcement proceedings, and generally enabling journalists to ask a federal judge to quash subpoenas for their phone records.

………

The top Democrat on the committee, Representative John Conyers of Michigan, noted that he had sponsored a version of the Free Flow of Information Act that passed the House twice when it was under Democratic control. He said he would reintroduce his version, too, and he said he hoped that Republicans — who until recently had called for more aggressive investigations of leaks — would support it.

The version the Obama administration is seeking to revive, however, is the one that was chiefly sponsored by Mr. Schumer, which was negotiated between the newspaper industry and the White House. It was approved by the Senate Judiciary Committee in a bipartisan 15-to-4 vote in December 2009. But while it was awaiting a floor vote in 2010, a furor over leaking arose after WikiLeaks began publishing archives of secret government documents, and the bill never received a vote.

In a statement confirming that he would reintroduce the legislation, Mr. Schumer referred to the controversy over the subpoena of A.P. calling records, saying: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.”

So, they are supporting the fake bill that they and Chuck Schumer drew up a while ago in an attempt to kill Conyer’s real reform.

Same sh%$, different day.

Live in Obedient Fear, Citizen

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It turns out that the interrogation of  Dzhokhar Tsarnaev did not merely involve not notifying him of his Miranda rights.  It may also have involved ignoring specific requests for a lawyer:

Since Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

 Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

………

The primacy, and fundamental nature of the right to custodial interrogation counsel, however, was confirmed in the 1981 decision of Edwards v. Arizona, where the court held suspects have the right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, and that right cannot be invaded absent a clear and valid waiver. While it is true, under Berghuis v. Thompkins, a suspect must affirmatively invoke his right to counsel as opposed to simply standing silent, there is no authority for interrogators to simply ignore and frustrate, over an extended period, a suspect’s express request for counsel as appears to have occurred in Tsarnaev’s case.

You can be pretty sure that if the reports are accurate that Holder, and probably Obama, were aware of his request for counsel within minutes of his first request.

This is repulsive. 

These sorts of tactics are reminiscent of a police state.

Good

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The Boston Marathon bombing suspect has been formally arraigned in front of a Federal Judge:

The surviving suspect in the Boston Marathon bombings was charged Monday with “using a weapon of mass destruction” that resulted in three deaths, according to documents filed in federal court.

The suspect, Dzhokhar Tsarnaev, was charged by federal prosectors as he lay in a bed at Beth Israel Deaconess Medical Center, officials said.

In a criminal complaint unsealed Monday in United States District Court for the District of Massachusetts, Mr. Tsarnaev was charged with one count of “using and conspiring to use a weapon of mass destruction” against persons and property within the United States resulting in death, and one count of “malicious destruction of property by means of an explosive device resulting in death.”

If he is convicted, the charges could carry the death penalty.

During the bedside arraignment, a magistrate judge advised Mr. Tsarnaev of his rights and the charges against him, according to court papers.

(emphasis mine)

Credit where credit is due, Eric Holder and Barack Obama decided not to try and put this guy before a military tribunal.

I’m sure that Senator Lindsey Graham is having a bitchy hissy fit right now, and that makes me smile.

It’s Official: the SCOTUS’ Resident Troll Does Not Give a Sh%$!

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There really are not a whole bunch of formal rules for a sitting Supreme Court justice.

They are famously exempt from the ethics regulations that apply to other Federal judges.

That being said, there are a number of customs that have always been scrupulously observed.

One of them is not to make statements that appear to prejudge something that might come come before the court.

Well, Fat Tony just pissed on that one, and went one further, and made public statements on a case that is currently being decided by the court:

Supreme Court Justice Antonin Scalia told university students that key provisions of the Voting Rights Act had evolved from an emergency response to racial discrimination in 1965 to an “embedded” form of “racial preferment” that would likely continue indefinitely unless the court acts to end them.

Justice Scalia, speaking Monday night at the University of California Washington Center, elaborated on remarks he made in February during Supreme Court arguments over the act’s Section 5, which requires states and localities that historically discriminated against minority voters to obtain federal approval to change election procedures.

Section 5 functions as a racial entitlement because the federal government doesn’t take a similar interest in protecting the voting rights of white people from racial discrimination, Justice Scalia said.

Congress repeatedly has reauthorized the Voting Rights Act, most recently in 2006, when President George W. Bush signed a 25-year extension. At February arguments, Justice Scalia dismissed overwhelming congressional support for Section 5 as “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.”

Seriously. They heard the arguments, and they haven’t made a decision yet, and he is making public statements on this?

Is he nuts? Is it Alzheimer’s? Or maybe he realizes that he will never be Chief Justice, and he no longer gives a sh%$.

I do not know why he did this, nor do I care, but it is clear that he is no longer (if he ever was) fit to be a Supreme Court justice.