Dan Froomkin reports: A federal judge in Newark has thrown out a lawsuit against the New York Police Department for spying on New Jersey Muslims, saying if anyone was at fault, it was the Associated Press for telling people about it.
In his ruling Thursday, U.S. District Court Judge William J. Martini simultaneously demonstrated the willingness of the judiciary to give law enforcement alarming latitude in the name of fighting terror, greenlighted the targeting of Muslims based solely on their religious beliefs, and blamed the media for upsetting people by telling them what their government was doing.
The NYPD’s clandestine spying on daily life in Muslim communities in the region — with no probable cause, and nothing to show for it — was exposed in a Pulitzer-Prize winning series of stories by the AP. The stories described infiltration and surveillance of at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim student associations in New Jersey alone.
In a cursory, 10-page ruling issued before even hearing oral arguments, Martini essentially said that what the targets didn’t know didn’t hurt them: [Continue reading...]
Judge tosses Muslim spying suit against NYPD, says any damage was caused by reporters who exposed it
Cara Tabachnick writes: Kyam Livingston begged for help. After seven hours of lying on the floor of a jail cell, the 38-year-old mother of two died, her calls unheeded by the correction officers providing security for the approximately 15 female inmates at Brooklyn “central booking” jail this past summer, according to witnesses and court documents.
Witnesses told the family that she had died in the cell among fetid conditions before she was taken to Brooklyn Hospital Health Center on 21 July 2013 where Livingston was pronounced dead at 6:58am, according to police reports. A witness, registered nurse Aleah Holland, told The Daily News, that police at Central Booking ignored her complaints of stomach pains and diarrhea. She said that when she and other inmates banged on the bars calling for help, officers told them Livingston was an alcoholic.
No one knows what happened, and no one wants to say. The NYPD told the family that she died of a seizure, but her family says she never suffered from seizures. This October the family sued the city, the NYPD, and the Department of Corrections in an effort to force systemic change and “responsibility” for her death.
Livingston was one of the few hundred jail deaths that happen across the country. In 2011, (the latest available numbers) 885 inmates died (pdf) in the custody of local jails, the Justice Department’s Bureau of Justice Statistics reported. Notice I said jails. These are different from prisons. Prisons are for people who have been convicted of a crime and sentenced. There are roughly 3,000 jails nationwide and each facility is set up to process people that have been arrested before they are arraigned or go to trial. Some will serve a misdemeanor sentence (of under a year). The majority will be let go because the charges against them won’t stick as they move through the legal system. Others will remain in jails while waiting to go to trial too poor to make bail – yet to be convicted of anything. Regardless, they will be treated as criminals. [Continue reading...]
Tea Party activist Larry Klayman writes: Shortly after it was disclosed by then Guardian journalist Glenn Greenwald and NSA whistleblower Edward Snowden that the NSA was running roughshod over the constitutional rights of the American people, I filed two class action lawsuits, on behalf of myself and a client, Charles Strange, who lost his son, a NSA cryptologist, in the Afghan war. These lawsuits not only ask for large monetary damages, but also for an injunction against the US government spying on over 300 million citizens in violation of the Patriot and Foreign Intelligence Surveillance Acts.
The laws make it crystal clear that the NSA, CIA, FBI or any other American government agency can only eavesdrop on persons who are under investigation for being in contact with foreign terrorists, or who are under criminal investigation. What Greenwald, the Guardian and Snowden revealed was a massive ongoing NSA program that collects so-called metadata, which intrudes into the most intimate details of a person’s life, accessing the cell phone, internet and social media communications of nearly the entire US populace. It is, in effect, the biggest and most dangerous violation of constitutional rights in American history.
The obvious effect of this outrage is to chill the free speech, associational and due process rights of all Americans, as now they are under constant surveillance by a government that over 80% of the people, according to Pew Research polling, distrusts, after decades of scandal and corruption by our executive and legislative branches. [Continue reading...]
Michael Scherer writes: The National Security Agency began the week with a public relations coup: a favorable segment on the spy agency by the CBS News program 60 Minutes. The segment was authored by CBS correspondent John Miller, an intelligence community veteran and former public affairs officer for the Federal Bureau of Investigation, who failed to disclose to viewers that he was eyeing a return to his career in law enforcement when the episode aired, a fact that was first reported by the New York Post.
In the segment, Miller described the controversy over the NSA’s collection of telephone metadata as partly the result of confusion. “So you understand then, there might be a little confusion among Americans who read in the newspaper that the N.S.A. has vacuumed up, the records of the telephone calls of every man, woman and child in the United States for a period of years—that sounds like spying on Americans,” Miller said, in one of his questions to NSA Director Keith Alexander.
Miller’s apparent suggestion here, endorsed by Alexander, was that the collection of metadata phone records does not amount to domestic spying, because the records do not include the content of calls and the records are searched only when there is a suspected terrorist target. “Metadata has become one of the most important tools in the NSA’s arsenal,” said Miller.
This is precisely the message the NSA has been trying to get out, ever since its contractor, Edward Snowden, stole and released documents disclosing the once classified program. And there is a clear urgency to the NSA mission. The public relations war matters because Congress is now considering reform bills that could put an end to the program. Sometime next year, public polling about how American’s feel about their information being collected will play a role in determining the outcome of the debate.
But the NSA’s moment of glory was short-lived. Hours after the show aired, Federal District Judge Richard Leon, an appointee of George W. Bush, ruled that the very same program was likely unconstitutional under the Fourth Amendment, a fact that lead newscasts and newspapers on Tuesday. [Continue reading...]
The New York Times reports: A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.
Judge Richard J. Leon of the District of Columbia ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But the judge, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, a matter that he said could take at least six months. The case is the first in which a federal judge who is not on the Foreign Intelligence Surveillance Court, which authorized the once-secret program, has examined the bulk data collection on behalf of someone who is not a criminal defendant.
The Justice Department has said that 15 separate judges on the surveillance court have held on 35 occasions that the calling data program is legal. It also marks the first successful legal challenge brought against the program since it was revealed in June after leaks by the former N.S.A. contractor Edward J. Snowden.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures. [Continue reading...]
Sometimes a single story has a way of standing in for everything you need to know. In the case of the up-arming, up-armoring, and militarization of police forces across the country, there is such a story. Not the police, mind you, but the campus cops at Ohio State University now possess an MRAP; that is, a $500,000, 18-ton, mine-resistant, ambush-protected armored vehicle of a sort used in the Afghan War and, as Hunter Stuart of the Huffington Post reported, built to withstand “ballistic arms fire, mine fields, IEDs, and nuclear, biological, and chemical environments.” Sounds like just the thing for bouts of binge drinking and post-football-game shenanigans.
That MRAP came, like so much other equipment police departments are stocking up on — from tactical military vests, assault rifles, and grenade launchers to actual tanks and helicopters — as a freebie via a Pentagon-organized surplus military equipment program. As it happens, police departments across the country are getting MRAPs like OSU’s, including the Dakota County Sheriff’s Office in Minnesota. It’s received one of 18 such decommissioned military vehicles already being distributed around that state. So has Warren County which, like a number of counties in New York state, some quite rural, is now deploying Afghan War-grade vehicles. (Nationwide, rural counties have received a disproportionate percentage of the billions of dollars worth of surplus military equipment that has gone to the police in these years.)
When questioned on the utility of its new MRAP, Warren County Sheriff Bud York suggested, according to the Post-Star, the local newspaper, that “in an era of terrorist attacks on U.S. soil and mass killings in schools, police agencies need to be ready for whatever comes their way… The vehicle will also serve as a deterrent to drug dealers or others who might be contemplating a show of force.” So, breathe a sigh of relief, Warren County is ready for the next al-Qaeda-style show of force and, for those fretting about how to deal with such things, there are now 165 18-ton “deterrents” in the hands of local law enforcement around the country, with hundreds of requests still pending.
You can imagine just how useful an MRAP is likely to be if the next Adam Lanza busts into a school in Warren County, assault rifle in hand, or takes over a building at Ohio State University. But keep in mind that we all love bargains and that Warren County vehicle cost the department less than $10. (Yes, you read that right!) A cornucopia of such Pentagon “bargains” has, in the post-9/11 years, played its part in transforming the way the police imagine their jobs and in militarizing the very idea of policing in this country.
Just thinking about that MRAP at OSU makes me feel like I grew up in Neolithic America. After all, when I went to college in the early 1960s, campus cops were mooks in suits. Gun-less, they were there to enforce such crucial matters as “parietal hours.” (If you’re too young to know what they were, look it up.) At their worst, they faced what in those still civilianized (and sexist) days were called “panty raids,” but today would undoubtedly be seen as potential manifestations of a terrorist mentality. Now, if there is a sit-in or sit-down on campus, as infamously at the University of California, Davis, during the Occupy movement, expect that the demonstrators will be treated like enemies of the state and pepper-sprayed or perhaps Tased. And if there’s a bona fide student riot in town, the cops will now roll out an armored vehicle (as they did recently in Seattle).
By the way, don’t think it’s just the weaponry that’s militarizing the police. It’s a mentality as well that, like those weapons, is migrating home from our distant wars. It’s a sense that the U.S., too, is a “battlefield” and that, for instance, those highly militarized SWAT teams spreading to just about any community you want to mention are made up of “operators” (a “term of art” from the special operations community) ready to deal with threats to American life.
Embedding itself chillingly in our civilian world, that battlefield is proving mobile indeed. As Chase Madar wrote for TomDispatch the last time around, it leads now to the repeated handcuffing of six- and seven-year-olds in our schools as mini-criminals for offenses that once would have been dealt with by a teacher or principal, not a cop, and at school, not in jail or court. Today, Madar returns to explain just how this particular nightmare is spreading into every crevice of American life. Tom Engelhardt
The over-policing of America
Police overkill has entered the DNA of social policy
By Chase Madar
If all you’ve got is a hammer, then everything starts to look like a nail. And if police and prosecutors are your only tool, sooner or later everything and everyone will be treated as criminal. This is increasingly the American way of life, a path that involves “solving” social problems (and even some non-problems) by throwing cops at them, with generally disastrous results. Wall-to-wall criminal law encroaches ever more on everyday life as police power is applied in ways that would have been unthinkable just a generation ago.
By now, the militarization of the police has advanced to the point where “the War on Crime” and “the War on Drugs” are no longer metaphors but bland understatements. There is the proliferation of heavily armed SWAT teams, even in small towns; the use of shock-and-awe tactics to bust small-time bookies; the no-knock raids to recover trace amounts of drugs that often result in the killing of family dogs, if not family members; and in communities where drug treatment programs once were key, the waging of a drug version of counterinsurgency war. (All of this is ably reported on journalist Radley Balko’s blog and in his book, The Rise of the Warrior Cop.) But American over-policing involves far more than the widely reported up-armoring of your local precinct. It’s also the way police power has entered the DNA of social policy, turning just about every sphere of American life into a police matter.
The Washington Post reports: The National Security Agency is gathering nearly 5 billion records a day on the whereabouts of cellphones around the world, according to top-secret documents and interviews with U.S. intelligence officials, enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable.
The records feed a vast database that stores information about the locations of at least hundreds of millions of devices, according to the officials and the documents, which were provided by former NSA contractor Edward Snowden. New projects created to analyze that data have provided the intelligence community with what amounts to a mass surveillance tool. [Continue reading...]
How the NSA is tracking people right now (infographic)
Andrea Peterson writes: In conversations with The Washington Post over Barton Gellman and Ashkan Soltani’s recent story on cellphone location tracking, an intelligence agency lawyer told Gellman, “obviously there is no Fourth Amendment expectation in communications metadata.” But some experts say it’s far from obvious that the 1979 Supreme Court case on which the administration bases this view gives the government unfettered power to scoop up Americans’ cellphone location data. [Continue reading...]
Dawood Ahmed writes: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.” Some ascribe this quote to Nazi propagandist Joseph Goebbels; others say Hitler authored the idea. In Mein Kampf he did speak of the invention of a lie so “colossal” that few would believe that someone “could have the impudence to distort the truth so infamously”.
Whoever coined the idea, the point is this: controlling the narrative matters immensely.
Military prowess is not enough in this age. And the United States knows it. America’s “other army” – its less visible but equally potent cadre of skillful lawyers (in government and even in private institutions) – dutifully got busy crafting appropriate international law narratives for the War on Terror. They realized that winning the battle for defining “legality” on the world stage was critical.
This is something states in the developing world would do well to understand. And particularly, governments of countries that bear the brunt of US military interventions touted as “self-defense” and “counter-terrorism” – Pakistan, Yemen, Somalia, Afghanistan and Iraq. Such states need to build intellectual-professional capacity to counter precedent-setting international legal arguments strategically employed (or better said: deployed) against them.
No contemporary political discourse provides us with a clearer illustration of this than the heated debate about the (ill)legality of drones and targeted killings. [Continue reading...]
Ars Technica reports: Yet another Foreign Intelligence Surveillance Court (FISC) judge has blasted United States government and intelligence officials for disregarding the court’s guidelines for domestic surveillance of American e-mail metadata traffic, a program that ran for around a decade before ending in 2011.
“As noted above, [National Security Agency’s] record of compliance with these rules has been poor,” wrote Judge John D. Bates, in a 117-page opinion (PDF) whose date was redacted. The opinion is just one of a series of documents released and declassified late Monday evening by the Office of the Director of National Intelligence (ODNI).
“Most notably, NSA generally disregarded the special rules for disseminating United States person information outside of NSA until it was ordered to report such disseminations and certify to the FISC that the required approval had been approved. The government has provided no meaningful explanation why these violations occurred, but it seems likely that widespread ignorance of the rules was a contributing factor.” [Continue reading...]
Kenneth Roth writes: News that US intelligence services tapped the phones of allied leaders has generated understandable outrage in Europe. But far more significant is the American government’s practice of monitoring the communications of millions of ordinary people, who have no legal redress in the United States because they are foreigners.
Electronic surveillance has become easy. Authorities can reconstruct someone’s life with a simple request to their mobile phone provider, while the costs of storing and processing massive amounts of data have declined dramatically. We already live much of our lives through digital communications, and the trend will only accelerate, so we need swift reform, or the problems will escalate. The issue is not just our emails and mobile phones but also our calendars, address books and medical and banking records. Governments and corporations are increasingly able to track people’s location, associations and communications.
Existing legal frameworks were devised in an analogue age, when cross-border communication was rare and online communication and social media were unheard of. In that pre-internet age, surveillance techniques were labour-intensive and time-consuming, which helped to constrain arbitrary and abusive practices. The law has to catch up. [Continue reading...]
The Washington Post reports: The Justice Department on Friday informed a terrorism suspect in Colorado that it intends to use evidence against him gathered through the government’s warrantless surveillance program, a move that will likely lead to a constitutional challenge to the law.
It is the first time the government has informed a criminal defendant that it intends to use “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act.”
It is important because the Supreme Court last term declined to consider the constitutionality of the law amended five years ago because it said those who brought a lawsuit against it could not prove they had been subject to its provisions.
With the filing Friday, “it’s the first time since 2008 when the act was signed into law that the government has acknowledged the use of surveillance derived from the law in a criminal prosecution,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union.
Jaffer, who argued the previous case at the Supreme Court, said it was a “big deal” that “will undoubtedly set up a constitutional challenge to it.” [Continue reading...]
The Guardian reports: GCHQ is probably intercepting legally privileged communications between lawyers and their clients, according to a detailed claim filed on behalf of eight Libyans involved in politically sensitive compensation battles with the UK.
The accusation has been lodged with Britain’s most secret court, the investigatory powers tribunal (IPT), which examines complaints about the intelligence services and government use of covert surveillance. Most of its hearings are in private.
The allegation has emerged in the wake of the Guardian’s revelations about extensive monitoring by GCHQ of the internet and telephone calls, chiefly through its Tempora programme.
The system taps directly into fibre optic cables carrying the bulk of online exchanges transiting the UK and enables intelligence officials to screen vast quantities of data.
The eight Libyans, members of two families now living in the country’s capital, Tripoli, say they were victims of rendition. They claim they were kidnapped by MI6 and US intelligence agencies, forcibly returned to Colonel Muammar Gaddafi’s regime and tortured. At that time, in 2004, when Gaddafi relinquished his nuclear weapons programme, intelligence relations between Tripoli, London and Washington were close.
A landmark legal action between Abdel Belhaj, 47, and the UK government is due to be heard at the high court shortly to resolve the kidnap and torture allegations.
But lawyers working with the human rights group Reprieve fear their ability to fight the case will be undermined because their legal correspondence may be surreptitiously monitored. [Continue reading...]
The New York Times reports: A federal judge in Manhattan on Friday rejected a request that he appoint a lawyer to represent a terror suspect who was captured last weekend in Libya and was said to be undergoing interrogation while in military custody on a Navy ship in the Mediterranean Sea.
After that interrogation is over, the suspect, Nazih Abdul-Hamed al-Ruqai, is expected to be advised of his right to a lawyer and speedy court appearance, and would eventually be brought to Manhattan for criminal prosecution.
Mr. Ruqai, 49, who is better known as Abu Anas al-Libi, faces indictment in Federal District Court on conspiracy charges stemming from the 1998 bombings of two United States embassies in East Africa that killed 224 people.
On Tuesday, David E. Patton, the chief federal public defender in New York City, wrote to the judge overseeing cases stemming from that indictment, arguing that Mr. Ruqai was “a defendant in an indicted case before this court” and was entitled to be taken “without unnecessary delay” before a magistrate judge, where he would also have the right to counsel.
But on Friday, the judge, Lewis A. Kaplan, said that such a requirement was triggered only by a “federal criminal arrest.”
“The government denies that any federal criminal arrest has taken place,” he wrote, “and there is no evidence to the contrary.” As a result, Judge Kaplan wrote, there was “no proper basis” for the court to conclude that “the obligation to produce the defendant before it in this criminal case has come into existence.” [Continue reading...]
Sarah Stillman reports: On a bright Thursday afternoon in 2007, Jennifer Boatright, a waitress at a Houston bar-and-grill, drove with her two young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden, Henderson’s home town, near the Texas-Louisiana border. They made the trip every April, at the first signs of spring, to walk the local wildflower trails and spend time with Henderson’s father. This year, they’d decided to buy a used car in Linden, which had plenty for sale, and so they bundled their cash savings in their car’s center console. Just after dusk, they passed a sign that read “Welcome to Tenaha: A little town with BIG Potential!”
They pulled into a mini-mart for snacks. When they returned to the highway ten minutes later, Boatright, a honey-blond “Texas redneck from Lubbock,” by her own reckoning, and Henderson, who is Latino, noticed something strange. The same police car that their eleven-year-old had admired in the mini-mart parking lot was trailing them. Near the city limits, a tall, bull-shouldered officer named Barry Washington pulled them over.
He asked if Henderson knew that he’d been driving in the left lane for more than half a mile without passing.
No, Henderson replied. He said he’d moved into the left lane so that the police car could make its way onto the highway.
Were there any drugs in the car? When Henderson and Boatright said no, the officer asked if he and his partner could search the car.
The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)
The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later. Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services.
“Where are we?” Boatright remembers thinking. “Is this some kind of foreign country, where they’re selling people’s kids off?” Holding her sixteen-month-old on her hip, she broke down in tears.
Later, she learned that cash-for-freedom deals had become a point of pride for Tenaha, and that versions of the tactic were used across the country. “Be safe and keep up the good work,” the city marshal wrote to Washington, following a raft of complaints from out-of-town drivers who claimed that they had been stopped in Tenaha and stripped of cash, valuables, and, in at least one case, an infant child, without clear evidence of contraband.
Outraged by their experience in Tenaha, Jennifer Boatright and Ron Henderson helped to launch a class-action lawsuit challenging the abuse of a legal doctrine known as civil-asset forfeiture. “Have you looked it up?” Boatright asked me when I met her this spring at Houston’s H&H Saloon, where she runs Steak Night every Monday. She was standing at a mattress-size grill outside. “It’ll blow your mind.” [Continue reading...]
Marcy Darnovsky and Karuna Jaggar write: Most court cases involving patent law are corporate battles, with one company suing another for infringing on its intellectual property rights and, therefore, profits. Big companies fighting over big money can seem painfully irrelevant, especially when so many of us are simply struggling to get by.
But the case coming before the U.S. Supreme Court on Monday challenging two patents is a different animal, with enormous implications for both our health and shared humanity. The patents in question are on two human genes, BRCA1 and BRCA2, commonly referred to as the “breast cancer genes.”
We all have these genes in the cells of our bodies, but certain variants in some people significantly increase the risk of breast and ovarian cancer. Learning whether you have these risk-elevating mutations can be important because it gives you the opportunity to consider increased surveillance (such as cancer screenings and mammography) and even surgery to remove healthy organs.
The patents give one biotechnology company, Myriad Genetics Inc., sweeping control of the two genes. Myriad’s monopoly harms women’s health, impedes cancer research and raises important ethical questions about control over the human genome.
Myriad’s patents cover both the normal versions of the genes and all mutations and rearrangements within them. This monopoly has prevented other scientists and doctors from using the BRCA1 and BRCA2 genes in research, medicine, diagnosis and treatment.
With revenue from the patents approaching half a billion dollars a year, Myriad frequently restricts access to these genes. It sends cease-and-desist notices to prevent other researchers from working with them.
Myriad’s strict patent enforcement means its test is the only available one to determine whether a woman has a genetic variant that increases her risk of cancer. Women cannot get a second opinion about the results, even when faced with a decision about removing healthy organs to reduce their cancer risk. And too many women cannot even have the test because it is too expensive.
Furthermore, since Myriad’s test focuses on the variants that have already been identified, some women, especially women of color, are more likely to get ambiguous results. They are told they have a genetic variant but that Myriad doesn’t know whether it increases their risk of cancer.
The lawsuit before the Supreme Court next week has united women’s health organizations, research groups, genetic counselors and breast cancer patients. The American Civil Liberties Union and the Public Patent Foundation, the lead plaintiffs, make a straightforward argument (full disclosure: Breast Cancer Action is also a plaintiff; Center for Genetics and Society has signed several briefs): U.S. case law and patent statute plainly say that patents can be awarded only for human inventions.
Genes are not inventions but products of nature. You can’t patent the sun; you can’t patent a new species of insect you find in a forest; you can’t patent the speed of light. And you cannot patent human genes. [Continue reading...]