The National Defense Authorization Act
On December 31, 2011, President Obama signed the National Defense Authorization Act (NDAA) into law. Along with imposing new sanctions against Iran and allocating $662 billion in funding for the wars in Iraq and Afghanistan, the Act authorizes the military to detain, indefinitely and without trial, anyone it deems to be a terrorist or supporter of terrorism, including any U.S. citizen. The Act defines those subject to military detention as anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
The law’s vague definition of those subject to detention as well as its application to U.S. citizens has fueled widespread concern and condemnation. And while the Act’s sponsors claim the provision merely codifies powers that congress already approved shortly after 9/11 in the joint resolution entitled Authorization for Use of Military Force Against Terrorists (AUMF), the provision clearly broadens the definition of those subject to military detention. Where the AUMF allowed only for the detention and rendition of “enemy combatants,” the NDAA now introduces “associated forces” and anyone who has “committed a belligerent act” or “substantially supported” terrorism. Similarly, President Obama dismissed the indefinite detention provision as superfluous and “unnecessary,” yet at the same time the Senate voted to reject an amendment by Dianne Feinstein (D-Cal) that would have specifically excluded U.S. citizens from the provision.
While President Obama issued a signing statement saying he would not personally authorize the military to detain American citizens using the new law, the statement does not apply to subsequent administrations, nor is it legally binding. And given that the Obama administration recently defended the military assassination of U.S. citizen Anwar al-Awlaqi, can Obama’s promise even be trusted?
Also, the NDAA specifically redefines the “battlefield” in the War on Terror to include U.S. soil. Why now? Could the government be preparing the way to use the military to quell social unrest? Former New York Times war correspondent, Chris Hedges, who is suing the Obama administration over the NDAA’s indefinite detention provision, thinks it’s possible. “I suspect the real purpose of the bill is to thwart internal, domestic movements that threaten the corporate state,” he writes. “I spent many years in countries where the military had the power to arrest and detain citizens without charge. I have been in some of these jails. I have friends and colleagues who have ‘disappeared’ into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation.”
The militarization of police, the expansion of the State’s surveillance and security apparatus, and the broadening of the U.S. military’s role to include domestic operations against U.S. citizens will likely accelerate the growth of popular movements of protest and civil disobedience.
References & external links:http://www.washingtonpost.com/politics/obama-signs-defense-bill…
Six years after the White House first started running amok on the computer networks of its adversaries, US President Barack Obama has signed off on a top-secret order that finally offers blueprints for the Pentagon’s cyberwars.
Pres. Obama has autographed an executive order outlining protocol and procedures for the US military to take in the name of preventing cyberattacks from foreign countries, the Washington Post reports, once and for all providing instructions from the Oval Office on how to manage the hush-hush assaults against opposing nation-states that have all been confirmed by the White House while at the same time defending America from any possible harm from abroad.
According to Post’s sources, namely “officials who have seen the classified document and are not authorized to speak on the record,” Pres. Obama signed the paperwork in mid-October. Those authorities explain to the paper that the initiative in question, Presidential Policy Directive 20, “establishes a broad and strict set of standards to guide the operations of federal agencies in confronting threats in cyberspace.”
Confronting a threat may sound harmless, but begs to introduce a chicken-and-the-egg scenario that could have some very serious implications. The Post describes the directive as being “the most extensive White House effort to date to wrestle with what constitutes an ‘offensive’ and a ‘defensive’ action in the rapidly evolving world of cyberwar and cyberterrorism,” but the ambiguous order may very well allow the US to continue assaulting the networks of other nations, now with a given go-ahead from the commander-in-chief. Next in line, the Post says, will be rules of engagement straight from the Pentagon that will provide guidelines for when to carry out assaults outside the realm of what is considered ‘American’ in terms of cyberspace.
“What it does, really for the first time, is it explicitly talks about how we will use cyber operations,” one senior administration official tells the paper of the policy directive. “Network defense is what you’re doing inside your own networks. . . . Cyber operations is stuff outside that space, and recognizing that you could be doing that for what might be called defensive purposes.”
When The New York Times published an exposé on the White House’s so-called Olympics Games program earlier this year, the world became fully aware for once of America’s involvement in international cyberwar, but much to the chagrin of Washington. Officials including members of Pres. Obama’s national security team spoke on condition of anonymity to tell the Times that his predecessor, then-Pres. George W. Bush, began the program in 2006 to target Iran’s nuclear facilities and then passed it along to the current administration to continue under the leadership of the current commander-in-chief.
“From his first months in office,” David Sanger wrote for the Times, Pres. Obama “secretly ordered increasingly sophisticated attacks on the computer systems that run Iran’s main nuclear enrichment facilities, significantly expanding America’s first sustained use of cyberweapons.”
Congress has fought tooth-and-nail in the months since to plug any leaks that could potentially spill the beans regarding any further secrets with the potential of effecting national security, but those efforts appear unsuccessful given this week’s Post report on Presidential Police Directive 20.
Now take the example of Iran: according to the Post, Pres. Obama’s signature on last month’s directive means the US now has rules and regulations when it comes to protecting its own infrastructure from cyberattack, and can do so by means of launching what appear to be pre-emptive assaults of their own.
“It should enable people to arrive at more effective decisions,” a second senior administration official tells the Post. “In that sense, it’s an enormous step forward.”
That comment echoes US Defense Secretary Leon Panetta’s insistence earlier this year that “defense alone is not enough” in terms of keeping the country safe. But what it also seems to do is put on the books a presidential policy that equates an overzealous offense with a solid defense. While the US has cited Iranian hackers as the key players behind a recent attack on the websites of Capital One Financial Corp. and BB&T Corp., two of the biggest names in the American banking industry, the US has done little — on the record — to reveal any similar assaults from abroad. Instead, rather, it’s relied on fear-mongering to try and convince the country to accept a cybersecurity legislation that will assure American’s safety from foreign hackers, all for the small price of sacrificing their digital-age privacy.
While the Obama White House has failed to acknowledge the Olympic Games program or any involvement in the Stuxnet or Flames viruses linked to the initiative, computer researchers in both the US and Russia have tied Washington to the cripplingly malicious coding. Earlier this month, California-based Chevron, one of the world’s leaders in the oil sector, went public with claims that Stuxnet had infected — but not affected — their computers after the virus was unleashed.
The ability to slow down or speed up centrifuges in nuclear facilities from thousands of miles away made Stuxnet a virus that had very substantial powers. Refusing to speak of the Olympic Games program specifically, former CIA chief Michael Hayden told the Times, “This is the first attack of a major nature in which a cyberattack was used to effect physical destruction.”
According to the Post’s latest, though, future assaults by way of Stuxnet or similar worms could be considered by Washington as defense mechanisms to make sure Iran doesn’t retaliate for what America has long-been lashing out with. One source tells the Times that, before last month’s directive, severing any link between a US-computer and an overseas server by any means possible would be an act that would put America on the offensive. Now even a preemptive attack that disconnects other countries could be considered a defensive ploy according to the president.
“That was seen as something that was aggressive…particularly by some at the State Department,” one defense official tells the Post. With the signing of Pres. Obama’s latest order, though, the paper writes that the directive “effectively enables the military to act more aggressively to thwart cyberattacks on the nation’s web of government and private computer networks.”
It is thought that, through the directive, any systems linked even remotely with America’s can be fair game for an assault. Given the expansion of cloud computing and the ever-expanding interconnection of communities across the globe on the Web, though, that could essentially enable Uncle Sam’s cybersquad to get away with a whole new slew of tricks to try and topple adversaries of any kind that threaten the American way of life. When and where those actions are necessary, of course, remains another topic of discussion. Will those orders be signed in secrecy as well, though?
by Andrew P. Napolitano
In a less than reassuring twist, the U.S. government will argue that no one can sue to end one form of intelligence surveillance because nobody is safe from surveillance.
Suppose Big Brother is watching you. You in particular, and all your friends -- recording your phone conversations, reading your emails and instant messages -- all with the aim of finding something to use against you and your friends.
As my students would say, sucks to be you. It sucks badly enough, in fact, that you might be able to go into federal court and ask a judge to make the government explain why they're doing it, and maybe force them to get a warrant.
But suppose you find out that Big Brother is watching some other unnamed people. And those other people sound a lot like some of the people you sometimes work with. And if Big Brother really is watching those people, you need to watch what you say, or stop talking to those people altogether. But you don't know for sure.
It still sucks to be you. But does it suck enough that you can go to court to try to stop it?
That is the issue that will be argued Monday in front of the Supreme Court. The case is called Clapper v. Amnesty International. The underlying question is an important one in post-9/11 America: How extensively can the government eavesdrop on phone calls and emails by foreigners of "interest" to our intelligence agencies? And how much can such government surveillance legally impact American citizens seeking to communicate with people our government may dislike or suspect of unsavory deeds?
That issue, however, won't be squarely presented Monday. Instead, the case will turn on what courts call "standing to sue." This abstruse lawyers' question sometimes turns my con law students' thoughts to career change. But it is vitally important for understanding how the courts deal with constitutional claims. So let's try to break it down in non-soporific language.
Article III of the Constitution extends "the judicial power of the United States" to "cases and controversies." That means, courts have said over the years, that citizens can't sue just because they think the government has violated the Constitution; they must show that they personally have a remediable quarrel with the government -- that it particularly sucks to be them, and that a victory in court will make things better.
The basic questions behind "standing to sue" are twofold. First, how badly does it suck to be you? And, second, what do you expect the government to do about it? If the answer to the first question is "about the same as it sucks to be anybody else," you're out of court. Ditto if the answer to the second question is "nothing in particular."
Here are the facts in Clapper. During the 1960s and 70s, intelligence agencies engaged in widespread electronic eavesdropping on Americans when they decided that what they intercepted related to national security. The Supreme Court held in 1972 that this sort of warrantless spying on Americans violates the Fourth Amendment. The decision led to the enactment in 1978 of the Foreign Intelligence Surveillance Act. That law sharply limited government's power to eavesdrop on "United States persons," meaning individuals or organizations lawfully present in the country. At the same time, it set up a secret judicial body -- the Foreign Intelligence Surveillance Court (FISC) -- that can give the government permission to intercept communications that come from foreigners, foreign organizations, or foreign governments, if it can spell out why it needs the information. Even then, the government must undertake "minimization" proceedings to keep from gathering unnecessary information on "United States persons."
A group of lawyers, human rights groups, news media, and journalists filed suit in federal court, claiming that the surveillance laws impeded their ability to communicate with overseas contacts. The government responded, in essence, that paranoia could not establish standing.
The FISC has virtually never turned a government application down. Nonetheless, after 9/11, the Bush Administration refused to follow the Act's procedures and began a massive secret program of warrantless surveillance on communications abroad, including some to and from people in the United States. Once that program became public knowledge, the Administration sought Congressional authorization for this kind of spying. In 2008, Congress passed the FISA Amendments Act of 2008 (FAA).
As a result, the government no longer needs to specify the targets of its spying; it simply must file with the FISC a declaration that it needs to conduct surveillance, not on a given individual, but on a certain class of communications. The FISC does not review this filing; it simply makes sure the government has filled it out properly, and then issues a surveillance order. Government may still not "intentionally target" persons in the U.S. -- but it no longer has to designate a specific target at all, and it does not need to show that it has "probable cause" to spy on anyone in particular. It's a license for wholesale spying, as long as the communications involve one party in another country.
After FAA passed, a group of lawyers, human rights groups, news media, and journalists (including Pulitzer winner hris Hedges) filed suit in federal court. They are seeking a declaration that the new, looser procedures violate the Fourth Amendment.
After FAA's passage, they argued, it now really sucked to be them; if the FAA program was stopped, it would suck a lot less. That's because they had frequent confidential dealings with sources overseas -- clients seeking to communicate confidentially with their U.S. lawyers, human rights advocates and witnesses not eager to be known publicly for opposing oppressive regimes, and journalistic sources displeasing to the United States. After FAA, they charged, they had to assume that their phone calls and emails might be intercepted. As a result, they often had to travel abroad to meet with their clients or sources, or, if they could not, forgo communicating at all.
The government responded, in essence, that paranoia could not establish standing. True, intelligence agencies might be listening; but then again, they might be listening to other people entirely. If the plaintiffs got antsy and wanted to spend money to travel abroad rather than call or email, well, that wasn't an "injury in fact," just a choice by the plaintiffs themselves.
In a ground-breaking opinion, a panel of the Second Circuit held that the plaintiffs did have "standing to sue." The plaintiffs had suffered an "injury in fact" -- they had to spend money, a quintessential legal injury. The panel ordered the district court to hold a trial on the constitutional issue. But the government petitioned the Supreme Court to overturn the panel's order, and the court has granted review.
It's hard to believe that it has done so in order to affirm the Second Circuit. In the 1972 case of Laird v. Tatum, the Supreme Court refused to restrain the military from conducting surveillance on civilian groups in the U.S., because the plaintiffs claimed only that the program had a "chilling" effect on their freedom of expression. "Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm," Chief Justice Burger wrote. Laird was a 5-4 decision, but it would be hard to argue that the changing makeup of the court since 1972 has strengthened its commitment to civil liberties.
In addition, almost everyone agrees that federal courts don't exist in order to review any action the government takes just because someone doesn't like it. If there were no "standing" rules -- rules that prevent relatively frivolous suits -- government might be paralyzed, and the courts inundated, with abstract or ideological lawsuits. So some "standing" rule is needed; it's just hard to draw the line when deciding whether to apply it.
In this case, the government argues not only that the plaintiffs are paranoid, but also that winning the lawsuit wouldn't help soothe their paranoia. "The government has several alternative means of conducting foreign-intelligence collection targeting non-United States persons abroad and, as respondents describe them, respondents' contacts could be targets for surveillance by other countries," the government's brief explains -- meaning that the plaintiffs would (or should) continue to be equally paranoid even if they obtain an order striking down the FAA. The government has ways of finding things out, not to mention friends in other countries who will pass information along.
In other words: You're right. Big Brother is watching. Whatever the Court decides, Big Brother will still be watching. Big Brother may be watching you right now, and you may never know. Since 9/11, our national life has changed forever. Surveillance is the new normal.
Sucks to be all of us.
The US government insists that Americans don’t have the right to challenge a law that lets the National Security Agency eavesdrop on the intimate communications of anyone in the country, but all of that could now change as early as next week.
The Supreme Court will officially start their second session of the year on Monday, and first on the agenda is a matter that could eventually shatter the government’s ability to order wiretaps on the emails and phones of any US citizen without ever obtaining a warrant.
The Foreign Intelligence Surveillance Act (FISA) was put into place in the 1970s to install safeguards to keep Americans safe from unlawful eavesdropping. Following the terrorist attacks of September 11, though, the George W. Bush administration ordered amendments to the law that have ever since allowed the NSA to monitor the communications of any US citizen as long as the government suspects that they are corresponding with anyone outside of the country.
Last month, the US House of Representatives voted to reauthorize the 2008 FISA Amendment Act (FAA), but not without attracting criticism from some very concerned parties. The American Civil Liberties Union filed a legal brief warning, “Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals.”
Beside from the obvious opposition to the warrantless wiretapping of any American with no explanation, there’s another problem that has put the FAA in the spotlight. The Justice Department has insisted that Americans can’t challenge the eavesdropping provisions because no civilians can say with absolute certainty that they have been targeted by secret surveillance.
The reason Americans can’t prove they’ve been monitored, of course, is because the government won’t give them yes or no answer anytime they’ve been asked.
Each time the question comes up over who has been targeted, the government has defaulted to say that national security prohibits them from disclosing who’s been subjected to NSA spying, claiming state secret privilege to prevent disclosing even the bare bones of their wiretapping program. When two US senators asked the Office of the Inspector General of the Intelligence Community earlier this year, “how many people inside the United States have had their communications collected or reviewed under the authorities granted by section 702” of the FAA, the NSA fired back by saying even responding to that inquiry would be against their rules.
A “review of the sort suggested would itself violate the privacy of US persons,” Inspector General I. Charles McCullough wrote, adding that the request would be “beyond the capacity” of his office and that “dedicating sufficient additional resources would likely impede the NSA’s mission.”
“The overwhelming power of the state secrets privilege makes it nearly impossible for any US citizen to show that he or she was the subject of surveillance, while the inability to prove he or she has been spied on prevents any citizen from having standing to challenge the program,” Frank Matt explains the case this week for the Arab American Institute.
But although the NSA won’t come close to offering any details, the texts of the FISA amendments open up literally any American citizen to government surveillance as long as their emails, phone calls or instant messages are sent to someone abroad, whether it’s a cousin in Canada or an employee working overseas.
“Rather than target its surveillance power at a specific person thought to be the agent of a foreign power, the government can target its surveillance power at a group of people, a neighborhood, a country or a geographic region,” the ACLU insists.
Rep. Dennis Kucinich (D-Ohio) argued on the Hill last month against reauthorizing the FAA, telling his colleagues in Congress, “Everyone becomes suspect when big brother is listening.” Now before any Americans can try to say that the surveillance allowed under those 2008 amendments violate the US Constitution, they need to convince the court that they should be able to bring the matter up.
On Monday, the Supreme Court will hear oral arguments regarding Clapper v. Amnesty International, a case being fought to show that opponents of the FAA have a right to bring their suit up in Washington. Those that call the warrantless wiretapping illegal will have a hard case to fight, though, given that they can’t prove they’ve been watched.
“Unfortunately, the government has tried to block the courts from ever reaching that constitutionalissue, arguing that unless the plaintiffs can prove they will be monitored (which is impossible, since the list of who is monitored is classified), they cannot sue,” former NSA agents-turned-whistleblowers Bill Binney and J. Kirk Wiebe write in an op-ed published in Politico this week.
The US Second Circuit has already ruled in Clapper that the plaintiffs — attorneys, journalists and activists from human rights organizations — should be able to challenge the constitutionally of those amendments. Because those parties cannot prove that they’ve been personally subjected to the surveillance, though, it has been an uphill battle all the while.
The Brennan Center for Justice out of the New York University Law School notes, “given the nature of their professional work,” the Second Circuit previously ruled that the plaintiffs had “a reasonable fear that they were in fact subject to such surveillance and had to take costly steps to protect the confidentiality of their communications.” That’s enough, they say, to show that the plaintiffs “satisfied the required showing of a concrete injury resulting from the challenged amendments sufficient to establish standing to sue and reversed the contrary finding of the district court.”
“Because the identity of persons subject to surveillance is a government secret, it is highly unlikely that any US persons could ever show that they were in fact the subject of such surveillance. Accordingly, if the plaintiffs-respondents in this case do not have standing, it is likely that serious questions as to whethersurveillance conducted under the 2008 amendments violate the First and Fourth Amendments will escape review altogether,” the center adds.
On their part, the ACLU agrees that the plaintiffs have good reason to believe that they’ve been monitored under the 2008 amendments. “Some plaintiffs communicate with people who have been the targets of surveillance or other US government attention in the past,” the ACLU wrote in last month’s brief, specifically bringing up clients whose jobs require them to, for example, communicate with indigenous rights advocates in Columbia, or corresponds with former CIA detainees for human rights research.
The ACLU adds that an appeals court panel already agreed in 2011 that “plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct,” and the US Court of Appeals for the Second Circuit later refused the government’s attempts to reverse that decision. Now if the Supreme Court can come to the same conclusion, those plaintiffs — the ones who may or may not have ever been surveilled — can finally challenge the constitutionality of the FISA amendments.
“While it may seem like a minor step in the battle against the abuses of FISA, the outcome of this case could have profound implications for future civil liberties cases,” Frank Matt adds in his article this week. equating the government’s defense of the FAA as “Kafkaesque resistance.”
“Based on our combined six-plus decades of experience working at the NSA, we are sure there is only one just outcome,” Binney and Wiebe write to Politico. “The justices should let this case proceed, giving the courts the opportunity to determine whether the executive and legislative branches have gone too far.”
“The NSA cannot be trusted with this power. No agency should be.”