Newly-released FBI documents reveal that the FBI's "terrorist watchlist" – which now has "420,000 names, including about 8,000 Americans" – includes individuals who are not the subject of any investigation, and some who the courts have cleared of terrorism charges. This is the latest in a series of recent revelations about the FBI's increasing monitoring and investigation of potentially-innocent Americans.
In the United States, you are supposed to be assumed innocent. But on the watch list, you may be assumed guilty, even after the court dismisses your case.
Not only are we yet again expected to sacrifice our liberty, but the FBI is wasting precious national security resources maintaining a list of "terrorists" that includes individuals cleared by the courts. It does not serve national security for the FBI to track innocent people.
According to two members of the Senate Intelligence Committee, under Obama, we have a secret court (Foreign Intelligence Surveillance Court) issuing a secret interpretation of a law (Section 215 of the PATRIOT Act) that gives the Federal Bureau of Investigation (FBI) the power to collect information on individuals in secret.
Section 215 of the PATRIOT Act, known as the "business records" provision, allows law enforcement to obtain "any tangible thing" that is relevant to an international terrorism or espionage investigation. Section 215 allows collection of information on individuals who are not target of a criminal investigation or even suspected of criminal activity. And, Section 215 orders come with a gag order prohibiting the recipient – which could be your library, your bank, your credit card company, or any other private entity – from disclosing receipt of the order.
However, this is just what we know from reading the statute. Senators Ron Wyden (D-OR) and Mark Udall (D-CO) commendably sent a letter to Attorney General Eric Holder sharply criticizing the Justice Department's use of a secret interpretation of surveillance powers, and accusing the Justice Department of misleading the public:
. . . we have been concerned for some time that the U.S. government is relying on secret interpretations of surveillance authorities that - in our judgment - differ significantly from the public's understanding of what is permitted under U.S. law. . . . Justice Department officials have - on a number of occasions - made what we believe are misleading statements pertaining the government's interpretation of surveillance law.
This week provides both an example of the Justice Department's selective approaches to secrecy and an example of the Justice Department's alarming Fourth Amendment interpretations.
Today, The Washington Postreported on an New York lawsuit between two government contractors that has revealed significant details about the Central Intelligence Agency's (CIA) supposedly super-secret rendition program.
In past lawsuits, the Justice Department - under both George W. Bush and Obama - has obstructed accountability by claiming that the rendition program must remain secret. The Justice Department asserted the state secrets privilege and sought to dismiss a lawsuit brought by victims of the CIA's rendition program against those accused of kidnapping and torturing them. The Justice Department argued that it would reveal state secrets to even answer the complaint or allow the victims to proceed with the lawsuit based upon the mostly public information the victims already have.
Yet, in a suit over money between two government contractors, the Justice Department hasn't intervened or even bothered to contact the attorneys despite that the contractor billing suit has revealed:
. . . more than 1,500 pages from the trial and appeals court files appear to include sensitive material, such as logs of air-to-ground phone calls made from the plane. These logs show multiple calls to CIA headquarters; to the cell- and home phones of a senior CIA official involved in the rendition program; and to a government contractor, Falls Church-based DynCorp, that worked for the CIA.
National Security Agency (NSA) whistleblower Thomas Drake has been mentioned by name in editorials in all the major newspapers – the Washington Post (here and here), L.A. Times (here), and New York Timesyesterday, which is worth quoting:
Treating potentially embarrassing information as a state secret is the antithesis of healthy government.
The government’s penchant since Sept. 11, 2001, for operating in secrecy and hiding behind an executive branch “state secrets” doctrine has damaged our long-term national security and national character. It has, by sacrificing Americans’ general welfare and civil liberties, given rise to a persistent military-industrial-intelligence congressional surveillance complex.
Do not let Drake become a footnote in history. We have gone too far down the path of becoming a secrecy surveillance society, but it is not too late. Drake's case should be a turning point and his op-ed a rallying cry that our government can no longer hide its malfeasance behind the national security hysteria that has corrupted its institutions since 9/11.
An editorial in today's New York Times criticizes the Obama administration's use of the Espionage Act to go after whistleblowers and the government's use of secrecy to hide embarrassing, inappropriate or illegal government conduct.
The editorial focuses on a formal complaint filed with the Information Security Oversight Office (ISOO) by the former head of that office under the G.W. Bush administration, J. William Leonard:
A former top official in charge of ensuring that real secrets are kept secret has delivered a stunning repudiation of the Obama administration’s decision to use the Espionage Act against a whistle-blower attempting to expose government waste and abuse.
The Times hits the nail on the head, deftly explaining the larger significance of the Espionage Act prosecutions and underlying pervasive government secrecy:
Two years ago, President Obama ordered all agencies to review secret material by June 2012 with a goal of promoting more declassification. Unfortunately, the administration’s emphasis since then has all been in the opposite direction. Treating potentially embarrassing information as a state secret is the antithesis of healthy government.
J. William Leonard served in the George W. Bush administration as classification czar (head of the Information Security and Oversight Office). He worked with NSA whistleblower Thomas Drake's defense team as an expert on classification. He writes in today's L.A. Times that
. . . in my opinion, the classified information Drake was charged with having possessed illegally . . . never should have been classified in the first place.
The e-mail Leonard refers to is one of the allegedly classified documents Drake was accused of retaining at home – a charge that was dropped along with the rest of the felony charges when the prosecution's case imploded days before trial.
Having served as an expert witness for Drake's defense, I have read the email in question, and it clearly does not meet even the minimal criteria for classification, namely that it "reasonably could be expected to result in damage to the national security."
The following statement was made to the press by GAP client and National Security Agency whistleblower Thomas Drake on July 15, 2011, after he was sentenced to one year of probation and 240 hours of community service for his role in exposing gross wrongdoing and waste at the agency. A video clip from The Baltimore Sun is available here, which also features further comments by Drake, GAP National Security & Human Rights Director Jesselyn Radack, and protesters.
Today provides real closure for the ordeal I have endured from the indictment of April 2010 and the investigation of the past 5-plus years. The stakes could not have been higher, since I was originally charged by the government with a total of 10 felony counts that I never committed. Today's fair and appropriate sentence for a minor misdemeanor demonstrates that justice did prevail in the end, because truth does matter.
It is always a David vs. Goliath struggle when you are up against the government.
This outcome was not possible without the truly superb criminal defense attorneys who have so ably represented me these past 15 months. I am also most grateful that the Government Accountability Project -- provided crucial whistleblower advocacy and media outreach support during this time, while also serving as my voice when I did not have one. I am worried that the next target of such a witch-hunt will not be as fortunate.
NSA whistleblower Thomas Drake standing with GAP's Jesselyn Radack after the trial. Photo courtesy of the Baltimore Sun.
I went to the sentencing of former National Security Agency official Thomas Drake, who was charged with 10 felony counts and faced 35 years in prison for allegedly retaining allegedly classified information.
The case extravagantly collapsed as Drake pleaded guilty to a minor misdemeanor of "Exceeding Authorized Use of a Computer" and received a sentence of no jail time and no fine.
Besides the flop of the Obama administration's centerpiece "leak" prosecution, what really stood out to me were the strong words of Judge Richard Bennett, who called the government's handling of the case "unconscionable."
Intended to allow the U.S. to track guns to Mexican drug cartels by knowingly letting guns across the U.S./Mexico border (whose brilliant idea was that?), the now-abandoned "Fast and Furious" operation came under criticism after two guns linked to the operation resurfaced in an Arizona shootout that killed a U.S. Border Patrol Agent.
Reporting on Melson's interview with a bi-partisan group of congressional staffers in a letter to Attorney General Eric Holder, Senate Judiciary Committee ranking member Charles Grassley (R-IA) and House Committee on Oversight and Government Reform Chair Darrell Issa (R-CA) accuse the Justice Department of implementing an approach which "distorted the truth" and "obstructed our investigation." The letter accuses the Justice Department of
"effectively muzzl[ing]" ATF leadership while "DOJ sent over [to Congress] false denials and buried its head in the sand."