Senate Renews Patriot Act (Under A Different Name)

(This image of NSA spying is by Occupy, and was found at Daily Tech.)

For one whole day it was illegal for the American government to spy on its citizens, as the Patriot Act expired at the end of May -- but the United States Senate (in a bill already approved by the House of Representatives) decided constitutional rights weren't nearly as important as security (i.e., spying on Americans).

Yesterday, the Senate approved the new spying bill (with its name changed from the Patriot Act to the USA Freedom Act -- a misnomer if there ever was one) on a 67 to 32 vote. And the most embarrassing thing is that only two Democrats voted against the terrible bill -- Bernie Sanders of Vermont and Tammy Baldwin of Wisconsin. Every other Democrat voted to allow the NSA to continue its spying.

I know they are assuring us that they have fixed the bill, and the government will no longer be collecting massive amounts of data on Americans. But didn't they tell us the same thing when they passed the original Patriot Act? And that didn't seem to matter, since the NSA used the bill to spy on Americans. Why would it be different this time?

They tell us that the government would no longer be keeping the massive amounts of data being collected. That job would be turned over to private companies. What is the difference? The government can still access that data by asking a secret court for it (and if you think that secret court would turn the government down, then I have some ocean-front property here in Amarillo that I'll sell you real cheap).

I was tempted to congratulate the 30 Republicans who voted against the bill, but it turns out only a few of them voted that way to protect citizens rights -- most of them voted against the bill because they want a stronger bill, with more spying.

Either those in Congress are complete fools (and don't understand what they've done), or they just don't care about the constitutional rights of American citizens -- maybe both. It's time to replace most of these idiots -- in both parties.

(This cartoon image is by Stuart Carlson at carlsontoons.com.)

Green Party Says Snowden Couldn't Get A Fair Trial In U.S.

Most of the politicians in this country, of both parties, like to pose as though they are shocked about the massive spying on U.S. citizens done by the NSA, but the truth is that they are just embarrassed that the government (which they oversee) was caught doing it. If they were truly shocked at the spying and opposed to it, they would be lauding Edward Snowden as a hero instead of calling him a criminal and wanting to jail him. These politicians just want to string him up as an example to future whistleblowers who might be tempted to expose federal crimes to the people of this country. They say he would get a fair trial if he returned. I don't believe that -- and neither does the Green Party. Here's what Green Party Shadow Cabinet member Kevin Zeese had to say in an article released on July 8th:

Edward Snowden submitting to prosecution in the United States, would be like Alice going into the courtroom in Wonderland.

Alice stood before the King and Queen of Hearts who served as the judges. Knaves were chained on the ground before them. The jurors, Alice realizes are ‘stupid things.’ The first witness against her was the Mad Hatter who is as mad as the culture he represents. The guinea pigs who protest are immediately “suppressed” by having the mouths tied up and being put into a bag and sat on by the King so their protests cannot be heard. The most important evidence in the trial was secret, a poem for which the author is unknown and concludes:

For this must ever be a secret,
Kept from all the rest,
Between yourself and me.

Alice realized the courtroom; with the icons of a justice system – a judge, jury, witnesses – was really a sham that mocks a legitimate legal process.  To confirm her realization the King said after the meaningless secret poetry evidence, that it was “the most important piece of evidence” and “Let the jury consider their verdict.” The Queen retorts “No, no!  Sentence first; verdict afterwards.”

Last week former Secretary of State Hillary Clinton joined with the current Secretary of State John Kerry in urging Edward Snowden to come home and face prosecution. 

Clinton told The Guardian that he should “return knowing he would be held accountable and also able to present a defense.” When asked about whether he could really present a defense, Clinton said:

“In any case that I’m aware of as a former lawyer, he has a right to mount a defense. And he certainly has a right to launch both a legal defense and a public defense, which can of course affect the legal defense.”

In fact, under current U.S. law Snowden would face a criminal process with virtually no defense, a pre-ordained outcome and he would be silenced during the process. The law he would be charged under, the Espionage Act, provides for no real defense and the due process afforded would be inadequate resulting in an unfair trial and lengthy sentence.

On June 14th federal prosecutors in Alexandria, VA filed espionage charges against Edward Snowden. Snowden became the eighth person to be charged under the 1917 Espionage Act during the Obama presidency, more than double all previous presidents combined. As a result there is recent experience with how these cases are prosecuted. Under the three current felony charges Snowden faces up to 30 years in prison. The prosecutors could add additional charges when Snowden is indicted.

Recent court decisions, including the prosecution of Chelsea Manning, have interpreted the Espionage Act to not to require proof that the person accused intended to commit espionage. If the person intended to blow the whistle on illegal activity and was acting in the public interest, as in the case of Snowden and the NSA, that would not be a defense.

It would not be relevant that former U.S. intelligence officials had given Snowden an award for integrity in intelligence. The fact that a judge on the FISA surveillance court, David Saylor, acknowledged “The unauthorized disclosure . . . have engendered considerable public interest and debate…” Even the Director of National Intelligence, James Clapper, acknowledged “I think it’s clear that some of the conversations this has generated, some of the debate, actually needed to happen.” And, that the reporters who worked with Snowden to publish the documents won the top journalism award, the Pulitzer Prize for Public Service. All of this would not be relevant under the Espionage Act.

The jury would not be allowed to consider how the leaks were a public service, not espionage. Almost certainly, the judge in Snowden’s prosecution would not allow any arguments along those lines and exclude all such evidence. Unlike other criminal laws violation of the Espionage Act is a strict liability law -- there is no defense for a whistleblower who has admitted they leaked the documents, i.e. the fact of the leak is espionage even if the intent was to serve the public interest by exposing crimes by the government. As a result, even though Snowden was not a spy committing espionage -- in the traditional sense of the term as someone spying for a foreign enemy -- the law could still be applied to him. 

In addition, rather than due process allowing a legitimate defense as is required by the Constitution, his trial would rely on warped procedures that actually prevent the basics of a fair trial. It is very likely that Snowden would be denied bail and held in prison pending trial despite the constitution providing for a right to bail, especially since he fled the nation and sought political asylum in a foreign country. Being incarcerated pending trial makes mounting a defense very difficult and would result in communication with the public and the media being impossible. Clinton has it backward, unlike his current situation, where Snowden can explain himself and the importance of documents being released, he would be silenced.

As in the Manning and other national security cases, it is likely that much of the evidence in the trial will be classified as secret which will limit the number of people who can see it and result in the public and the media not being shown all of the evidence, despite the Constitution requiring a public trial.  As in the case of Chelsea Manning, large portions of the trial will be out of public view because the government will claim national security secrets will be breached if the trial were a completely public trial. This will keep the public uninformed of the real nature of the facts and in the dark when the inevitable conviction results. Pundits supporting the security state will say “well, you can’t criticize the verdict because you do not know what the judge and jury knew; you did not see all the evidence.”

Finally, the trial will be held in federal court in Alexandria, Virginia. This is where the grand jury has been based.  The jurisdiction of this court includes the Pentagon, Pentagon City, Crystal City and Rosslyn, areas concentrated with military, security and intelligence contractors as well as people working in the Pentagon and their relatives. The Alexandria federal court is known to be very much a pro-security state court in part because of the make-up of the jury pool. Is this the “impartial jury” the Constitution envisions?  Thus, it will be impossible for Snowden to get a fair trial. 

Why should Snowden submit to a judicial process that would so unfair and obviously unjust? Surely Clinton, a former lawyer, and Kerry are well aware that Snowden would be prosecuted in a phony Kangaroo court where the deck would be stacked against him and the process would be unfair, so their comments are false rhetoric, like Kerry calling on Snowden to “man-up,” comments designed to confuse the public. They know that what they are suggesting would result in Snowden facing an unfair prosecution with a pre-ordained conviction resulting in a lengthy sentence.

Should Edward Snowden submit to this mocking of legitimate trials, where there is no real due process or any opportunity to prove his innocence? That is what U.S. security state trials have become. A sham of justice, something that Edward Snowden should never submit to.

Repeal The Patriot Act And Stop Spying On U.S. Citizens

(The cartoon image above is by Nate Beeler in The Columbus Dispatch.)

"Too many people have been spied upon by too many Government agencies and too much information has been collected. The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power. . .

Governmental officials -- including those whose principal duty is to enforce the law --have violated or ignored the law over long periods of time and have advocated and defended their right to break the law.

The Constitutional system of checks and balances has not adequately controlled intelligence activities. Until recently the Executive branch has neither delineated the scope of permissible activities nor established procedures for supervising intelligence agencies. Congress has failed to exercise sufficient oversight, seldom questioning the use to which its appropriations were being put. Most domestic intelligence issues have not reached the courts, and in those cases when they have reached the courts, the judiciary has been reluctant to grapple with them."

Those words could be describing the massive government spying on its own citizens that the U.S. government is doing today, but they're actually from a report by the Church Committee in 1976 (U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities). The idea of the U.S. government illegally and unconstitutionally spying on American citizens is not new. The government has been doing that for decades now. The COINTELPRO program by the FBI back in the 60's and early 70's gathered information on over a million citizens -- and it was just one of many spying programs the government was engaging in.

But as egregious and unconstitutional as these programs were, they look like a drop in the bucket when compared to the massive spying on U.S. citizens that is currently happening. The federal intelligence and policing agencies saw a golden opportunity after the 9/11 tragedy in 2001, and they used that tragedy to con Congress and the American people into thinking more spying was needed to protect this country from "terrorism". Congress responded by passing the Patriot Act and the public accepted it -- both out of fear, and without realizing the awesome and unconstitutional power they were granting the government.

The government promised that they would not use these new powers to spy on American citizens, but just to gather information on foreign nationals who posed a danger to the United States. They lied. No government power ever goes unused, and they had been given the power to spy on (gather data on) hundreds of millions of people -- both citizens and non-citizens. And that's just what they did. They collected and stored data on untold millions of American citizens -- and they did it in secret and without getting a search warrant (as required by the Constitution). And most people were blissfully ignorant of this until it was exposed by Edward Snowden.

Now that the massive spying on citizens has been exposed, the government is trying to do a little public relations to repair their image. The president (and some members of Congress) recently revealed a plan to introduce legislation that would stop the government storage of this "meta-data", and would leave that storage to the various telecommunications companies (who supposedly could destroy it after some undetermined period of time). The idea is to convince American citizens that the massive spying is going to stop, but the truth is that the government will still have access (secretly) to all of the same information.

This proposed bill is akin to putting a band-aid on a bullet wound -- it might do a tiny bit of good, but it falls far short of fixing the problem and the patient (democracy) will probably still die. Much more needs to be done, and nothing less than a full repeal of the Patriot Act . Some will say that the law is needed to protect this country -- but you don't protect a democracy by turning it into a police state (where the government can spy on its citizens at will).

Public Is Not Buying In To Obama's NSA Spying Changes

(This caricature of President Obama is by DonkeyHotey.)

A few weeks ago Edward Snowden revealed the extent of the NSA's spying on American citizens. And while many didn't like what Snowden did, most Americans were shocked at the abuse by the NSA of the Patriot Act and the extent of their spying on American citizens (something we were assured would not happen when the law was passed).

Stung by the revelation of the massive spying, President Obama recently assured Americans that he was making changes to the program that would protect the privacy rights of Americans. Unfortunately, the "changes" proposed by the president amounted to nothing more than window dressing. The government will still have access to whatever information it wants, that access will still be secret, and citizens will not be able to know if or when they are being speed upon. In short, there is absolutely no reason to believe any privacy rights will be protected.

The president was just trying to soothe voters, while leaving the vast spying apparatus in tact. But the American people aren't as stupid as he evidently thought they were. The results of a new survey by the Pew Research Center (done between January 15th and 19th of 1,504 nationwide adults, with a margin of error of 2.9 points) shows a huge majority of the American public doesn't believe the proposed changes will do anything to protect citizen privacy rights.

Note also that this refusal to believe those changes will protect privacy rights crosses all political lines. Republicans (86%), Independents (78%), and Democrats (56%) all have significant majorities believing the changes will make no difference. And there is a vast 52 point difference between those in the public at large who say it will make no difference (73%) and those who think it will offer protection for rights (21%).

President Obama's attempt to reassure the public has failed. And even more important perhaps, it has also failed to stem the growing tide of opposition to the NSA spying program. Note in the chart below that opposition to the NSA spying has grown in the last few months in every demographic group. Personally, I hope this opposition continues to grow. Maybe then we can finally get rid of the odious (and unconstitutional) Patriot Act.

Edward Snowden - Heroic Whistleblower Or Traitor ?

(This image of Edward Snowden is from the flickr.com page of DonkeyHotey.)

A few months ago, Edward Snowden started releasing secret government information. That information confirmed what many has suspected -- that the U.S. government, through the NSA, was conducting a massive spying program on it's own citizens. This spying violated the constitutional rights of American citizens, and showed the government had lied when it said it would not use the Patriot Act to spy on Americans. It also showed the need for more safeguards in this technical age to protect citizen privacy.

After starting to release this information, Mr. Snowden had to leave this country to avoid being charged with a crime (and probably put in prison for the rest of his life). He currently is living in Russia. This poses a question that Americans should decide for themselves. Is Snowden a heroic whistleblower who should be praised, or is he a traitorous criminal who should be prosecuted?

I have made no secret of how I feel on this blog. I believe he is an American hero, who acted to defend the rights of American citizens. And it looks like I'm not alone in that belief. In a recent editorial at the New York Times, the editorial board of that newspaper came to the same conclusion. Here is some of what they said:

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

Mr. Snowden is currently charged in a criminal complaintwith two violations of the Espionage Act involving unauthorized communication of classified information, and a charge of theft of government property. Those three charges carry prison sentences of 10 years each, and when the case is presented to a grand jury for indictment, the government is virtually certain to add more charges, probably adding up to a life sentence that Mr. Snowden is understandably trying to avoid.

The president said in August that Mr. Snowden should come home to face those charges in court and suggested that if Mr. Snowden had wanted to avoid criminal charges he could have simply told his superiors about the abuses, acting, in other words, as a whistle-blower.

“If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistle-blower protection to the intelligence community for the first time,” Mr. Obama said at a news conference. “So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”

In fact, that executive order did not apply to contractors, only to intelligence employees, rendering its protections useless to Mr. Snowden. More important, Mr. Snowden told The Washington Post earlier this month that he did report his misgivings to two superiors at the agency, showing them the volume of data collected by the N.S.A., and that they took no action. (The N.S.A. says there is no evidence of this.) That’s almost certainly because the agency and its leaders don’t consider these collection programs to be an abuse and would never have acted on Mr. Snowden’s concerns.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not. Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government. That’s why Rick Ledgett, who leads the N.S.A.’s task force on the Snowden leaks, recently told CBS News that he would consider amnesty if Mr. Snowden would stop any additional leaks. And it’s why President Obama should tell his aides to begin finding a way to end Mr. Snowden’s vilification and give him an incentive to return home.

On Snowden & NSA Surveillance

I am one of those who think Edward Snowden is not a criminal, but a hero -- the same kind of hero that Daniel Ellsberg was years ago (when he released the Pentagon Papers). Both put their own freedom on the line to give Americans information about what their government was doing -- information that should never have been secret in the first place. Unfortunately, our mainstream media thinks the story is about the apprehension of Snowden, making the much more important story of massive NSA surveillance of the American people only of secondary importance. They are wrong, and should be ashamed of the direction of their coverage.

I am not the only person with that opinion. The best senator in the U.S. Senate, Bernie Sanders (I-Vermont), believes the government is using the hunt for Snowden to deflect the real issue -- the massive and unconstitutional spying of the NSA on the American people. And to reflect that opinion, he has posted a National Journal article by Ron Fournier on his website. Here is that article:

Is Edward Snowden a hero or a traitor? I don't care. You read right: I don't give a whit about the man who exposed two sweeping U.S. online surveillance programs, nor do I worry much about his verdict in the court of public opinion.

Why? Because it is the wrong question. The Snowden narrative matters mostly to White House officials trying to deflect attention from government overreach and deception, and to media executives in search of an easy storyline to serve a celebrity-obsessed audience.

For the rest of us, the questions seem to be:

• Are the two programs revealed by Snowden legal and constitutional?

• What else is the government doing to invade our privacy? Until a few days ago, paranoids were people who claimed Washington had cast a vast electronic net over our communications. Who isn't a bit paranoid now?

• Why did the U.S. government for years debunk what they called a myth about the National Security Agency seizing electronic data from millions of Americans?

• Why did the leader of the U.S. intelligence community mislead Congress in March by answering a question about the program in the "least untruthful manner" -- a phrase that would make George Orwell cringe.

• Why do Democratic lawmakers who criticized President Bush for exploiting the post-9/11 Patriot Act now defend President Obama for curbing civil liberties?

• Why do Republicans who defended Bush now chastise Obama for ruthlessly fighting terrorists?

• Rather than fierce oversight, why did the White House and congressional leaders restrict full knowledge of the programs to a few elites, and stage, for the rest of Congress, Potemkin briefings?

• Why does a secret federal court almost always side with the government's requests to seize information?

• Why didn't the president find a way before the leaks to tell the public in general terms what he was doing and why? Obama ran on a pledge of government transparency, opposed Bush-era surveillance tactics, and denounced the "false choice" between security and liberty.

No sane American would deny the president and the national security community the best tools to fight a fast-evolving and shadowy enemy. It would be foolish to demand full disclosure of programs that require secrecy. And most Americans, according to polls, are open to trading some privacy for security.

But before perpetuating and immortalizing the Surveillance State, we need to remember that the precedents set today apply to the next president -- and the ones that follow, perhaps men and women who aren't as dedicated to democratic institutions as both Bush and Obama are.

It would help if the Obama administration would stop misleading the public, eroding trust in government that is already at record lows. Four stories today suggest how badly the truth has been victimized.

Scott Shane and Jonathan Weisman of the New York Times documented how intelligence officials for years have denied the existence of programs revealed by Snowden: "Disclosures on N.S.A. Surveillance Put Awkward Light on Previous Denials."

"Awkward light" is a polite way of describing a lie.

Glenn Kessler slapped three Pinocchios on James Clapper, the director of National Intelligence who spoke a least-untruthful way: "Debates Over NSA Should be Free of Semantic Muddling."

Semantic muddling is a polite way of describing – well, you get it.

Jack Shafer of Reuters wrote an insightful piece that puts Snowden's actions into context with the government's self-serving leaks. "… He's done in the macro what the national security establishment does in the micro every day of the week to manage, manipulate and influence ongoing policy debates," Shafer wrote.

Finally, syndicated liberal columnist David Sirota challenged the views of "Permanent Washington" in an analysis arguing that NSA's actions are illegal and unconstitutional.

He called the Snowden case "a commentary on how political self-interest and partisanship now trumps everything else – even the law of the land."

Love him or hate him, we all owe Snowden our thanks for forcing upon the nation an important debate. But the debate shouldn't be about him. It should be about the gnawing questions his actions raised from the shadows.

In the end, fear and politics likely will prevail, as it has in America's past. Washington elites will close ranks to protect the Surveillance State, to trample out transparency and to mislead the public. Maybe we can talk first?