Justice Dept. Details Patriot Act Cases - Page 2 - Big Big Forums

Jolie Rouge · 09-27-2004, 05:19 PM

Spy Imagery Agency Watching Inside U.S.
By KATHERINE PFLEGER SHRADER

BETHESDA, Md. (AP) - In the name of homeland security, America's spy imagery agency is keeping a close eye, close to home. It's watching America. Since the Sept. 11 attacks, about 100 employees of a little-known branch of the Defense Department called the National Geospatial-Intelligence Agency - and some of the country's most sophisticated aerial imaging equipment - have focused on observing what's going on in the United States.

Their work brushes up against the fine line between protecting the public and performing illegal government spying on Americans.

Roughly twice a month, the agency is called upon to help with the security of events inside the United States. Even more routinely, it is asked to help prepare imagery and related information to protect against possible attacks on critical sites.

For instance, the agency has modified basic maps of the nation's capital to highlight the location of hospitals, linking them to data on the number of beds or the burn unit in each. To secure the Ronald Reagan funeral procession, the agency merged aerial photographs and 3D images, allowing security planners to virtually walk, drive or fly through the Simi Valley, Calif., route.

The agency is especially watchful of big events or targets that might attract terrorists - political conventions, for example, or nuclear power plants.

Everyone agrees that the domestic mission of the NGA has increased dramatically in the wake of Sept. 11, even though laws and carefully crafted regulations are in place to prevent government surveillance aimed at Americans.

The agency is not interested in information on U.S. citizens, stresses Americas office director Bert Beaulieu. ``We couldn't care less about individuals and people and companies,'' he said.

But that's not good enough for secrecy expert Steven Aftergood, who oversees a project on government secrecy for the Federation of American Scientists. ``What it all boils down to is 'Trust us. Our intentions are good,''' he said.

Adds Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington: ``As a general matter, when there are systems of public surveillance, there needs to be public oversight.''

Geospatial intelligence is the science of combining imagery, such as satellite pictures, to physically depict features or activities happening anywhere on the planet.

Outside the United States, it can be a powerful tool for war planners who may use imagery to measure soil wetness to determine if tanks could travel an area. It can help weapons proliferation experts look for ground disturbances that can indicate new underground bunkers.

Before Sept. 11, the NGA's domestic work often meant things like lending a hand during natural disasters by supplying pictures of wildfires and floods. But now the agency's new Americas Office has been called on to assemble visual information on more than 130 urban areas, among scores of other assignments, including maps of the national mall, the country's high-voltage transmission lines and disaster exercises.

Sometimes, agency officials may cooperate with private groups, such as hotel security offices, to get access to video footage of lobbies and hallways. That footage can then be connected with other types of maps used to secure events - or to take action, if a hostage situation or other catastrophe happens.

The level of detail varies widely, depending on the threat and what the FBI or another agency needs. ``In most cases, it's not intrusive,'' said the NGA's associate general counsel, Laura Jennings. ``It is information to help secure an event and to have people prepared to respond should there be an attack, or to analyze the area where a threat has been made.''

According to Executive Order 12333, signed by President Reagan in 1981, members of the U.S. intelligence community can collect, retain and pass along information about U.S. companies or people only in certain cases.

Information that is publicly available or collected with the consent of the individual is fair game, as is information acquired by overhead reconnaissance not directed at specific people or companies.

The NGA says it has aggressive internal oversight and its employees go through annual training on what is and isn't allowed. ``If they deviated from their own rules, how would it be discovered?'' asks secrecy expert Aftergood. ``I am not satisfied that they have an answer to that question.''

One oversight committee in Congress noticed after Sept. 11 that an intelligence agency was snapping pictures of the United States, said a congressional aide, speaking on condition of anonymity. A staff member is now monitoring the issue, and the aide said so far problems have not been spotted. But Aftergood notes that while intelligence budgets have increased dramatically in the last five years, congressional oversight budgets have not.

Even the agency concedes gray areas do emerge.

Generally, for example, intelligence resources can't be used for law enforcement purposes. So the FBI or another agency could use an NGA-produced aerial photograph to solve a domestic crime. But the NGA couldn't take actions to target a specific individual, such as highlight a suspect's home, unless the information was linked directly to a national security issue. Agency officials call that ``passive assistance'' and say certain legal tests must be met.

Law enforcement officials occasionally ask if the agency has information that could provide evidence about a crime - say, for example, whether a white truck was at a location at a certain time, Beaulieu said hypothetically. ``Yes, we will do a check,'' he said. ``But I can't remember a single case where we actually even had an image for that day.''

Jennings concedes that toeing such fine lines can be difficult. ``We look, we check, and it just so happens that we haven't had a situation where there is a smoking gun,'' she said. ``We would analyze each one, case by case.''

``Everybody wants to do the right thing and provide the information that is appropriate without overstepping their authority,'' she later added.

The NGA says it is working to build trust - with the public and with private companies.

Before Sept. 11, for instance, chemical plants and other critical sites weren't as cooperative as they are today, out of fear that aerial photographs might be shared with federal environmental regulators. NGA officials say the Homeland Security Department has been careful to protect proprietary information.

What if NGA analysts were to see an environmental crime?

``I don't think any of my people know enough to know an environmental crime,'' Beaulieu said.

09/26/04 22:34

http://cnn.netscape.cnn.com/news/sto...2234410448.htm

Jolie Rouge · 09-29-2004, 05:14 PM

Patriot Act takes a hit
Wednesday, September 29, 2004 Posted: 1:38 PM EDT

NEW YORK (Reuters) -- Part of the Patriot Act, a central plank of the Bush Administration's war on terror, was ruled unconstitutional by a federal judge Wednesday.

U.S. District Judge Victor Marreo ruled in favor of the American Civil Liberties Union, which challenged the power the FBI has to demand confidential financial records from companies as part of terrorism investigations.

The ruling was the latest blow to the Bush administration's anti-terrorism policies.

In June, the U.S. Supreme Court ruled that terror suspects being held in places like Guantanamo Bay can use the American judicial system to challenge their confinement. That ruling was a defeat for the president's assertion of sweeping powers to hold "enemy combatants" indefinitely after the September 11, 2001, attacks.

The ACLU sued the Department of Justice, arguing that part of the Patriot legislation violated the constitution because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards.

The judge agreed, stating that the provision "effectively bars or substantially deters any judicial challenge."

Under the provision, the FBI did not have to show a judge a compelling need for the records and it did not have to specify any process that would allow a recipient to fight the demand for confidential information.

http://www.cnn.com/2004/LAW/09/29/pa...eut/index.html

Jolie Rouge · 11-19-2004, 07:00 PM

YOUR RIGHTS, THEIR RIGHTS
Mon Nov 15, 6:04 PM ET
By William F. Buckley Jr.

We hear the clamor in the matter of the Patriot Act and other measures especially associated with retiring Attorney General John Ashcroft. Just rubbing a hand lightly over U.S. history reminds us that these questions arose in the past, notoriously with the Alien and Sedition Acts of 1798. Abraham Lincoln liked to have his own way when pressures were rife, and of course he suspended habeas corpus, to the dismay of members of his own Cabinet and the judge who gave us Dred Scott.

Somebody should do something about that situation? Well, somebody is doing something, not surprisingly, under the auspices of Harvard University. They have going there something called the Harvard Long-Term Legal Strategy Project. Its co-directors are the scholars Philip Heymann and Juliette Kayyem.

A few people have been sent drafts of the project's tentative findings with, however, a warning that direct quotations are as yet forbidden -- a warning so direly repeated on each of 11 pages that one wonders if a bolt of lightning would come down on any transgressor. But without direct quotation from the project's summaries, we can usefully study the divisions in the questions being posed.

There are 10 recommendations in the report, which "seeks to find balance between competing concerns." The thinking is done logically. Under "Coercive Interrogation," for instance, one sees: "National security viewpoint," which is elaborated, but in the forbidden language. There follows: "Democratic freedoms viewpoint" -- which the imaginative reader can easily supply -- and then "Recommendations."

We move on to questions of Detentions; Military Commissions; Targeted Killing; Communications of U.S. Persons or Others within the United States Intercepted During the Targeting of Foreign Persons Abroad; Information Collection; Identification of Individuals and Collection of Information for Federal Files; Surveillance of Religious and Political Meetings; Distinctions Based on Group Membership (Profiling); and Oversight of Extraordinary Measures.

I take a single liberty and give the text of Information Collection, "National security viewpoint." We read:

Quote:

"There is no constitutional right to privacy of information that an individual has freely furnished to such parties as credit card, electronic communications or car rental companies. That information can provide a trail of activities that, if identified, would reveal a likely terrorist plan. For example, the following pattern discoverable from such records would be highly suspicious: a recent arrival from Yemen accompanied by prompt rental of a crop duster airplane and purchase of equipment or material that would not be useful for crops but would be useful to spread anthrax. We should not forgo this opportunity to 'connect the dots' in time."

Yeah. Let's not let that one get away.

Two points, in the welter of discussion about individual rights and corporate obligations, are worth stressing.

There is wide resistance, in the libertarian fold (in which I count myself), to expediting individual identification by means other than those we already have.

There are those who find this inexplicable. We are a nation of people who acquiesce in passport numbers (I was playfully given, years ago, No. 1234567). You can't easily mount a case against them without renouncing the very idea of passports. And of course there is the Social Security number. My liege William Safire some time back declared that he would not write out his Social Security number on random forms, which does not answer the question: Why not? What clerical sycophancy is involved in owning up to your name?

And then there is the grand question that stands athwart such efforts as Harvard's to codify the separation of powers between the collectivity and the individual. It is: Everything ultimately depends on judgment. There can be (and there should be) rules against targeting chiefs of state. But there are imaginable times when the failure to squeeze the trigger at just that moment -- say, when Col. Amin is signaling the bomber pilot with the nuclear bomb headed for Jerusalem -- would have worse consequences.

The moral artist tells you more than any committee of Harvard scholars, however distinguished. It is not true that rules are made to be broken. But it is true that breaking the rules can be lifesaving.

http://story.news.yahoo.com/news?tmp...htstheirrights

Jolie Rouge · 02-02-2005, 01:22 AM

Ashcroft delivers parting shot to foes on sentencing, Patriot Act
From Terry Frieden -- CNN Washington Bureau
Tuesday, February 1, 2005 Posted: 4:05 PM EST (2105 GMT)

WASHINGTON (CNN) -- In a stinging parting shot at administration critics, Attorney General John Ashcroft on Tuesday warned of serious threats to public safety and security if Congress fails to restore stiff sentencing guidelines and does not renew portions of the Patriot Act.

In his final hours in office, Ashcroft delivered the hard-hitting remarks notable as much for his characteristic stark language as for his uncompromising message. He was especially blunt in his view of the 5-4 Supreme Court decision that dealt a blow to federal sentencing guidelines. "Last month's Supreme Court ruling that federal judges are not bound by sentencing guidelines is a retreat from justice that may put the public's safety in jeopardy," Ashcroft declared. "Which of our daughters, wives and husbands -- are we willing to sacrifice to return to revolving door justice."

Ashcroft demanded Congress "reinstitute tough sentences and certain justice for criminals".

The attorney general issued equally dire predictions if Congress allows provisions of the Patriot Act to expire later this year. The Justice Department points to the Patriot Act as providing key tools in the war on terrorism.

Ashcroft credited tough prosecution and long sentences for the continuing decline in the rate of violent crime in the United States. "Criminals can't commit crimes from behind prison walls," he said.

Ashcroft declined to identify by name foes he termed "cynics and defeatists," but provoked laughter when he criticized the New York Times for its reaction to declining crime rates. "The New York Times annually sums up this resistance to reality when it runs a story wondering with violent crime at an all-time low why so many people are in prison," he said.

Ashcroft's final speech was loudly applauded by the audience in the auditorium of the staunchly conservative Heritage Foundation in Washington. Ashcroft was introduced by the organization's chief legal strategist, former Attorney General Ed Meese, as a man who "served with dignity, integrity and excellence."

Ashcroft noted that Tuesday marks the fourth anniversary of his swearing in as the nation's chief law enforcement official. He said his resignation will be effective the moment his designated successor, Alberto Gonzales, is confirmed by the Senate, which could come Thursday.

http://www.cnn.com/2005/ALLPOLITICS/...ing/index.html

Jolie Rouge · 02-14-2005, 05:20 PM

Bush urges renewal of Patriot Act
Monday, February 14, 2005

WASHINGTON (AP) -- President Bush on Monday urged Congress to reauthorize the USA Patriot Act, the Justice Department's widely criticized anti-terrorism law. "We must not allow the passage of time or the illusion of safety to weaken our resolve in this new war" on terrorism, Bush said at a swearing-in ceremony for Attorney General Alberto Gonzales at the Justice Department.

The president also argued that the Senate must give his nominees for the federal bench up-or-down votes without delay to fill vacancies in the courts.

The Patriot Act, passed in the wake of the September 11, 2001, terrorist attacks, bolstered FBI surveillance and law-enforcement powers in terror cases, increased use of material witness warrants to hold suspects incommunicado for months, and allowed secret proceedings in immigration cases.

Civil liberties groups and privacy advocates lambasted the law because they said it undermines freedom. But Bush said the act "has been vital to our success in tracking terrorists and disrupting their plans."

He noted that many key elements of the law are set to expire at the end of the year and said Congress must act quickly to renew it.

The Patriot Act was pushed by Gonzales' predecessor, John Ashcroft, who was in the audience as Gonzales took his oath from Supreme Court Justice Sandra Day O'Connor.

Bush lauded Ashcroft's tireless efforts to make America safer as he oversaw a drop in violent crime besides his counterterrorism work.

Gonzales, who served as White House counsel during the last four years, said he would be a part of Bush's team but his first allegiance will be to the Constitution. "I am confident that in the days and years ahead we in the department will work together tirelessly to address terrorism and other threats to our nation and to confront injustice with integrity and devotion to our highest ideals," Gonzales said.

http://www.cnn.com/2005/ALLPOLITICS/....ap/index.html

Jolie Rouge · 06-02-2005, 12:07 AM

Patriot Act must be reined in
By Anita Ramasastry
FindLaw columnist -- Special to CNN.com
Wednesday, June 1, 2005

http://www.cnn.com/2005/LAW/06/01/ra...ct2/index.html

(FINDLAW) -- The U.S. Senate Intelligence Committee is considering a draft bill that would reauthorize some of the most controversial provisions of the U.S. Patriot Act. The bill is called the Patriot Reauthorization Act (PAREA).

The reasons why these provisions are controversial -- that they trample on Fourth Amendment and privacy rights -- are reasons not to renew them. At a minimum, if they must be renewed, it must be renewed with a "sunset" provision, allowing Congress to once again consider whether they are necessary

In addition to reauthorizing these provisions, the bill, if enacted into law, would expand the government's power to secretly --- and without getting a court's approval -- demand people's private records, even though the people aren't suspected of terrorist acts.

Overall, the result of PAREA becoming law would be to further enlarge the government's surveillance powers -- without any requirement that it link individuals to particular suspected crimes before using these powers. Yet the government has not made a compelling case that such extraordinarily broad powers are necessary.

The proposal, which is likely to be considered in a closed-door meeting of the Senate Intelligence Committee, should be rejected or dramatically modified to require independent judicial review prior to subpoena issuance.

Nightmare with tiny changes

One of the controversial Patriot Act provisions PAREA would make permanent is Section 215. This section allows intelligence investigators to demand all kinds of records about citizens, even though they are not suspected of spying or terrorism.

It allows the FBI to gain records or other "tangible items" from any person or organization, if the FBI claims a link to an ongoing terrorist or foreign intelligence investigation. Secrecy is the key here: Section 215 gags those who receive an order to produce such records

Before Patriot, the FBI had access to only a few types of records: those belonging to hotels, motels, car and truck rental agencies, and storage rental facilities. But Section 215 allows the FBI to seek any tangible item -- "including books, records, papers, documents, and other items" -- regardless of who holds it. This could include sensitive medical records or membership lists from clubs or religious organizations.

Also, before the Patriot Act, the FBI had to present to the Foreign Intelligence Surveillance Act (FISA) court "specific and particularly facts giving reason to believe that the person to whom the records pertain[ed]" was an agent of a foreign power. But now the FBI need not show a link between the people whose records it is accessing, and any crime -- let alone a crime of terrorism.

Granted, Section 211 of PAREA would now require that the items that the government seeks are "relevant" to that investigation. But with reasonable minds disagreeing about what is "relevant," the addition of this word means little.

Surely, lists of people who worship at a particular mosque may be relevant to an investigation of possible terrorist connections of one among the worshippers. But is each member's identity relevant? The whole point of the law is that innocent non-uspects can be subjected to searches; that the search must, at least, be "relevant" to the investigation provides little reassurance..

A much more palatable amendment than Section 211, is the one provided in the bipartisan Security and Freedom Enhancement Act (SAFE Act). The SAFE Act is meant to curtail some of the more intrusive portions of the Patriot Act while recognizing the importance of the government's need for strong investigative tools.

It would modify Section 215 to require the FBI to establish "specific and particularly facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power."

In layman's terms, the SAFE Act would require that the government would have to establish that individual suspects were in fact connected to spying or terrorism.

And granted, PAREA would also require semi-annual reporting for orders that relate to booksellers, firearm purchases, medical records and tax information --presumably because such records are especially sensitive or personal.

That's a good idea - but what about the sensitive, personal information relating to membership in religious, political or social organizations? Why is this information left out of the reporting requirement? Certainly, what gun one buys is less private than where one chooses to worship!

Erosion of the Fourth Amendment

PAREA would also make permanent another controversial Patriot Act provision: Section 218. Section 218 allows the government to obtain search warrants using the FISA court, without having to respect Fourth Amendment standards -- even when the evidence may be later used in a criminal prosecution that has nothing to do with foreign intelligence.

Before the Patriot Act, the U.S. government kept our justice system in a state of equilibrium by creating a wall. This sacred division separated, on the one hand, criminal law enforcement (where individual suspicion of criminal activity was required to investigate) and, on the other, foreign intelligence (where data was sought broadly, to help prevent terrorism that might occur in the future.).

But under the wall has been broken down.

From 1978 until the Patriot Act was passed, the FISA court's power to issue secret warrants was limited solely to intelligence-gathering, with a view toward preventing espionage and terrorism. Thus, to procure such a warrant, the government had to convince the FISA court there was "probable cause" that the surveillance target was a foreign power or an agent of a foreign power.

Meanwhile, in other federal courts, and in and state courts, under the Fourth Amendment, a warrant to intercept a communication, or a search warrant, had to be based on "probable cause" to believe that a crime has been or is being committed.

Now, as a result of Section 218, intelligence gathering need only be "a significant purpose" of FISA-authorized surveillance. This amounts to an end run around Americans' Fourth Amendment rights, because another purpose of the surveillance could well be domestic law enforcement.

And it has been: Not just CIA agents, but FBI agents as well -- or even state law enforcement, cooperating with the CIA and FBI -- have used FISA's secrecy and its lower legal standards for warrants and wiretaps.

This "significant purpose" standard should be removed, or clearly limited by the requirement of a nexus to terrorism on the domestic side. But that is not what PAREA does.

Indeed, Section 203 of PAREA not only will make Section 218 permanent, it will also broaden the section. It states that that "foreign intelligence information" includes a need to gather information for criminal law enforcement related to terrorism.

What counts as "law enforcement related to terrorism"? "International terrorism" need not be involved, according to PAREA's sponsors' memorandum summarizing the bill. It is enough if the law enforcement involves "sabotage, clandestine activities and other grave hostile acts."

Broader secret subpoena powers

In addition to making these provisions permanent, PAREA Section 213 would also introduce a new type of "administrative" -- read: not court-approved -- subpoena in national security cases. The government could use such subpoenas to secretly demand all sorts of records from businesses and other institutions, without first receiving a court's permission.

All that would be required would be for the investigators themselves to declare that the material they seek is needed as part of a national security investigation.

But that leaves room for exactly the kind of excessive prosecutorial zeal that inspires the typical Fourth Amendment requirement of a "neutral magistrate." Judges provide important checks and balances in the criminal justice system, especially in the federal system, where life tenure guarantees their independence.

With the new PAREA subpoenas, a person may be investigated and never know that he was a government target. Without his knowledge, the results of the search may go into his dossier.

In the context of anti-terrorism efforts, these no-probable-cause searches may well target searchees based on race, national origin, or religion. Yet because they are secret, they may never be challenged in court. And the possibility these searches may occur will doubtless chill free speech -- when any public remark may lead to a secret search on one's private documents, for which there is no recourse or remedy.

(( continues ))

Jolie Rouge · 06-02-2005, 12:11 AM

Challenges

As a safeguard, PAREA proposes to allow the third party from whom the records are sought -- say, your Internet Service Provider (ISP) -- to challenge the administrative subpoena in court. But there's no guarantee the ISP would bother to do so.

Going to court is costly, and if the third-parties don't bother, the customer will never know. (Indeed, the business is prohibited from notifying its customer of the existence of the subpoena.)

PAREA should be rejected, or substantially modified to allow review by a neutral judge (a federal judge, not an administrative judge).

The government has obtained a broad range of powers in intelligence investigations -- especially against foreigners, but also against U.S. citizens. Given the secrecy with which these investigations are conducted, their wide scope, and the lack of checks and balances, independent judicial review --requiring a factual premise and particularized suspicion for a subpoena to be authorized -- are the very minimum required to safeguard our liberty.

Anita Ramasastry is a FindLaw columnist and an associate professor of law at the University of Washington School of Law in Seattle and a director of the Shidler Center for Law, Commerce and Technology.

http://www.cnn.com/2005/LAW/06/01/r...act2/index.html

Jolie Rouge · 09-19-2009, 12:12 AM

Feingold Moves to Strike Material Support Law
By The Investigative Project on Terrorism (IPT)

http://counterterrorismblog.org/2009...rike_mater.php

As we reported on the IPT blog earlier this week, Congress is set to debate the reauthorization of several provisions of the PATRIOT Act next week. While that discussion will focus on three of the more controversial provisions of the much maligned law, some members of Congress are more interested in seeking expansive overhaul, effectively gutting the PATRIOT Act. Friday, Senator Russ Feingold introduced the JUSTICE Act, a bill proposing wide ranging amendments to this critical counter-terrorism tool.

Among the provisions in the JUSTICE Act is an amendment to 18 U.S.C. § 2339B, commonly referred to as the “material support” statute. If the amendment suggested by Senator Feingold is approved, the “new” statute will read in part:

[quote]“Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, knowing or intending that the material support or resources will be used in carrying out terrorist activity…[shall violate the statute].” [quote]

Under current law, federal prosecutors must show that an individual provided financial, logistical, or other resources to a terrorist organization, whether or not they intended the donation to support violence. In announcing this change, Senator Feingold explained that the revision would require “that a person must know or intend that support provided will be used for terrorist activity.” In reality, this amendment would eviscerate the statute—stripping the government of a valuable tool in the fight against the support structure of international terrorist organizations. The fact is that the italicized portion above is a tremendous departure from Congressional intent, long standing judicial precedent, and common sense.

Supporters of this type of amendment often argue that terrorist groups are also engaged in charitable, humanitarian, educational, and political activities, and that donors should be able to promote these lawful activities. Each time this argument has been put forth in a federal court, it has been quickly dismissed. As the Court of Appeals for the Ninth Circuit explained in Humanitarian Law Project v. Reno:

Quote:

“all material support given to such organizations aids their unlawful goals. Money is fungible; giving support intended to aid an organization’s peaceful activities frees up resources that can be used for terrorist acts.”

The argument that there are multiple “wings” in terrorist organizations has been repeatedly rejected. When it was enacted, the material support statute was intended to make these groups radioactive—in the words of Andrew McCarthy—“an entity that merits only our contempt, not our contributions.” Senator Feingold and any other members who would support the proposed amendment to Section 2339B must remember that any support given to a terrorist organization furthers their violent acts. Requiring federal prosecutors to show that a defendant specifically intended to support acts of terrorism would make it almost impossible to shut down networks of individuals who are complicit in these acts of violence.