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American Anwar al-Awlaki has been dead for over four years now, but The New York Times is still giving substantial ink to the U.S. government's self-serving meme that Awlaki was an "operational" terrorist," even though we still don't know whether ISIS or AQAP is responsible for the recent attack on the satirical newspaper Charlie Hebdo offices in Paris.  

I called out New York Times reporter Scott Shane for carrying the government's water by pimping the "Awlaki was operational" narrative last year. Yesterday, Shane penned another lengthy article rehashing the U.S. government's post hoc justification for targeting and assassinating Awlaki without due process.

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Tech companies have taken a lot of heat for their cooperation with the National Security Agency's (NSA) broad mass surveillance programs, particularly PRISM.

Recently released Foreign Intelligence Surveillance Court (FISC) documents show that Yahoo fought a protracted legal battle to avoid complying with PRISM. WaPo reports:

The documents, roughly 1,500 pages worth, outline a secret and ultimately unsuccessful legal battle by Yahoo to resist the government’s demands.
In some cases, criticism of tech companies cooperation with surveillance is well-deserved, such as that of Microsoft, which complied with the program even before the adverse court ruling. The new details about Yahoo's losing battle tell us that - contrary to the constant drumbeat from surveillance state apologists that the NSA's surveillance is targeted - at least in this case, the government's surveillance demands were so broad that Yahoo commendably questioned the order's constitutionality and spent considerable legal resources contesting it.

Yahoo was forced to conduct its challenge completely in secret and, even more telling, deal with the government's punitive tactics for resisting compliance.
 

The government threatened Yahoo with the $250,000-a-day fine after the company had lost an initial round before the Foreign Intelligence Surveillance Court but was still pursuing an appeal. Faced with the fine, Yahoo began complying with the legal order as it continued with the appeal, which it lost several months later.
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More journalists have been attacked, threatened and detained in Ferguson, MO. Scott Olsen, the Getty photographer who brought us some of the most stirring images from the Ferguson protests, and The Intercept's Ryan Devereaux were arrested in Ferguson last night. Devereaux and fellow reporters were shouting "Press, Press, Press" when they were shot with bean bags and rubber pellets:  

Two German reporters were also arrested last night. Last night's arrests follow arrests late Sunday night of three other journalists on the order of a Missouri Highway Patrol Captain and the arrest of two reporters last week (Ryan Reilly of the Huffington Post and Wesley Lowery of the Washington Post, for not packing up their equipment fast enough.

These threats to the First Amendment in Ferguson spotlight a war on the press that the Obama administration. The natural outgrowth of the Obama administration's using the Espionage Act to bring a record number of prosecutions against so-called "leakers," who are usually really whistleblowers, the war on information and war on the press.  

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Last week The Intercept reported that the government's bloated "terrorist" watchlists would be more aptly named "innocents" watchlists:

Nearly half of the people on the U.S. government’s widely shared database of terrorist suspects are not connected to any known terrorist group . . .
and that:
Obama Administration has presided over an unprecedented expansion of the terrorist screening system. Since taking office, Obama has boosted the number of people on the no fly list more than ten-fold, to an all-time high of 47,000—surpassing the number of people barred from flying under George W. Bush.
Innocent people on the watchlists  - primarily from the American Muslim community - may have suspected what we now know as fact when they were barred from boarding flights. Thanks to aggressive investigative reporting from The Intercept and - equally if not more significant - the whistleblower who provided The Intercept with the evidence of government abuse, the fact that more non-terrorists than suspected terrorists is confirmed public knowledge.

As an alumnus of the selectee portion of the U.S. no-fly list, I am particularly interested in how the government puts names on the list, what criteria the government uses, how innocent names put on mistakenly or vengefully get off the list and what processes are in place to prevent abuses.

Thanks to the press and whistleblowers, the courts will finally have an opportunity to provide much needed oversight on the watchlists because the Council on American-Islamic Relations (CAIR) was finally able to challenge the watchlists:

Under the current administration we have witnessed an unprecedented expansion of the terrorist watch list, which dis-proportionally targets the American Muslim community and unfairly targets the American Muslim community. This morning (Thursday) CAIR Michigan filed a lawsuit – which for the first time challenges the governments broad and unchecked powers to secretly designate American Muslims to be added to the terrorist watch list without due process,” [CAIR Attorney Lena Masri]  said.
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The fallout over U.S. government espionage in Germany just got more serious. In a move uncommon among close allies the German government asked the CIA station chief to leave the country today.

As the Washington Post reports, this expulsion happened in the context of NSA surveillance of German citizens, and the uncovering of two CIA spies in Germany:

A day earlier, federal prosecutors in Germany said police had searched the office and apartment of an individual with ties to the country’s military who is suspected of working for U.S. intelligence. Those raids followed the arrest of an employee of Germany’s foreign intelligence services who was accused of selling secrets to the CIA.

Seibert said the request to have the CIA official leave was made “against the backdrop of the ongoing investigations of the Federal Prosecutor General as well as the questions pending for months about the activities of the US intelligence services in Germany, for which the Lower House of Parliament has also established a parliamentary inquiry committee.”

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Over the past year, the world learned that the National Security Agency (NSA) engages in costly, ineffective, mass surveillance collecting both metadata and content of communications of hundreds of millions of innocent people, including Americans. Thanks to whistleblower Edward Snowden and the aggressive, responsible investigative journalism from Glenn Greenwald, the public learned last night that who the NSA targets for surveillance is driven by First Amendment-protected activities of speech, association, and religious practice.

The National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans—including a political candidate and several civil rights activists, academics, and lawyers—under secretive procedures intended to target terrorists and foreign spies.

According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

(emphasis added)

Harkening back to its domestic spying roots of spying on civil rights leaders, the FBI and NSA have been specifically targeting people for surveillance based on their race, religion and constitutionally-protected speech. To put it more bluntly, would we be more outraged at the surveillance of a non-profit director, professors and civil rights leader if they were the Executive Director of NAACP or AIPAC or Professor Obama (back when he taught - and respected - Constitutional Law)?

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After delivering a well-deserved blow to the NSA’s 215 domestic surveillance program the Privacy and Civil Liberties Board (PCLOB) fell flat on its face this morning and released a report endorsing the NSA’s 702 program. The report is a massive fail at protecting privacy. In what should be considered a huge understatement the board reports:

…certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness. Such aspects include the unknown and potentially large scope of the incidental collection of U.S. persons’ communications, the use of “about” collection to acquire Internet communications that are neither to nor from the target of surveillance, and the use of queries to search for the communications of specific U.S. persons within the information that has been collected.
The board endorses the NSA’s practice of collecting information from the “telecommunications backbone” including telephone calls and internet communications. These are nothing less than a modern version of the British general warrants that the Revolutionary War was fought over. The board recommends a review of agency procedures to minimize the collection of U.S. persons information but, to quote the Supreme Court’s decision in Riley last week, “the Founders did not fight a revolution to gain the right to government agency protocols.”
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The Washington Post has a must-read article on how federal agency "secrecy agreements" can violate federal whistleblower protection laws:

The DOE wanted them to sign nondisclosure agreements that prevented them from reporting wrongdoing at the nation’s most contaminated nuclear facility without getting approval from an agency supervisor. The agreements also barred them from using any information for financial gain, a possible violation of federal whistleblower laws, which allow employees to collect reward money for reporting wrongdoing.
Beyond the conflicts with the whistleblower laws mentioned in the article these secrecy agreements also violate executive orders regarding national security and federal employees’ constitutional rights.

These types of omerta, mafia style loyalty oaths have become increasingly common at federal agencies, contractors, financial institutions. The WaPo article mentions restrictive agreements at Kellog Brown and Root (KBR) and International Relief and Development (IRD) both organizations that received billion dollar contracts for work in Iraq and Afghanistan respectively. The Securities and Exchange Commission (SEC) has expressed concern that corporations are now fighting tooth and nail to undermine the whistleblowing provisions of Dodd-Frank financial reform by forcing employees into restrictive and possibly illegal non-disclosure agreements.

These secrecy agreements serve one purpose – to hide wrong doing by intimidating employees and disincentivizing whistleblowing. As one federal whistleblower put it:

“The message was pretty clear: ‘Don’t say anything to anyone, or else.’”
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This week's release of the Justice Department Office of Legal Counsel’s memo justifying the assassination by drone of American citizen Anwar Al-Awlaki sheds a sliver of light on an incredibly opaque, legally dubious and morally questionable drone program. (I delve into the memo's terrifically poor legal reasoning here and here).

Al-Awlaki is just one victim among countless others of a program that the American people know almost nothing about. I say “countless others” because the public does not actually how many people have been wipes off the planet by U.S. drones. The numbers we hear in the media typically come from third-party sources such as the New American Foundation or the Bureau of Investigative Journalism, but the numbers generated by these sources hardly agree. As one reporter points out, the data of the New America Foundation conflicts with the Bureau of Investigative Journalism on drone strikes in Pakistan since 2004: while the NAF and BIJ report a similar number of total deaths, the civilian casualty rate from the NAF is estimated to be 8% - %15 while the BIJ reports a civilian casualty rate of 11% - 37%. A significant difference to be sure, and one that cannot be chalked up entirely to the government pushing a problematic definition of "militant" as anyone appearing to be an adult male in the kill zone in order to mask the number of civilians killed.

Regardless, both statistics are far greater than the government's misleading numbers. The Obama Administration has rarely commented on civilian casualties, but when government officials do comment they offer absurdly low estimates – sometimes suggesting that the number of civilians killed in Obama’s time in office is in the “single digits.”

While the Bureau of Investigative Journalism in particular makes a great effort to tally the drone deaths, they cannot overcome the government's efforts to keep the American people in the dark about how many people - and especially how many innocent people - are being killed in our name.

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In a 9-0 ruling written by Chief Justice Roberts, the Supreme Court ruled today that searches of cell phones require a warrant except in cases with exigent circumstances. In addition to being a clear victory for privacy advocates in the law enforcement sphere, the case has powerful ramifications for past, present, and future NSA programs.

Today’s ruling includes a number of significant hints at the Court's growing dissatisfaction with the government's willingness to trample privacy rights, (Marcy Wheeler’s twitter feed has a good rundown), but one line stands out. In Riley, the government suggested that law enforcement could develop “agency protocols” to ensure that cell phone searches are limited to local, rather than cloud data, an argument the Supreme Court tellingly, sharply rebuffed:

. . . the Founders did not fight a revolution to gain the right to government agency protocols.
NSA senior officials have touted internal agency limits on how and when NSA analysts can query the database as demonstrating the legality of NSA's un-targeted, mass surveillance operations. (Of course, the NSA has been caught violating such procedures multiple times ), but that’s another story.)  
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Yesterday, the Obama administration complied with a Court order requiring release of the Justice Department Office of Legal Counsel (OLC) memo justifying the assassination without charge or trial of American citizen Anwar Al-Awlaki. (My first impressions are here.)

The New York Times editorial board was correctly and commendably critical:

. . . the memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.
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After the Justice Department fought aggressively for years to keep it secret, a court order finally forced the Obama administration to release a substantial portion of the Justice Department Office of Legal Counsel (OLC) memorandum used as the basis for assassinating American citizen (Anwar al-Awlaki) without charge or trial.

You might remember OLC from its torture memo heyday, calling the Geneva conventions "quaint" and creating (completely artificial) extra-legal categories of "unlawful combatants" to avoid federal and international law. The Obama administration solidified OLC's legacy by refusing to hold accountable - professionally or legally - the attorneys who wrote the memos used as legal justification for George W. Bush-era atrocities of torture, detention and rendition. Following in the footsteps of torture memo authors John Yoo (now a tenured law professor) and Jay Bybee (now a federal judge), OLC Acting Assistant Attorney General David Barron signed the memo and rose to the federal bench.

Now on to the al-Awlaki memo (available here, starting on page 67). The first 11 pages are redacted. Now on to the the public portion of the al-Awlaki memo, which is absolutely cringe-worthy from a legal and human rights perspective.

Barron (and Marty Lederman, who reportedly co-authored the memo), surgically disable half a dozen federal and international laws, beginning with the federal murder statute.

The memo blesses al-Awlaki's killers as exempt from the federal murder statute under the "public authority" (read "government authority") justification, despite the fact that there is no case law permitting the government to use the "public authority" justification as a basis for getting away with killing U.S. citizens. It satisfies Barron and Lederman that a court has never said otherwise. But, for a court make such a ruling, a defendant would have to be charged with the murder and raise the "public authority" justification as a defense (an unlikely event here since the DOJ prosecutor would have to bring the charges based on conduct DOJ's OLC attorneys specifically approved). In reality (as opposed to wherever OLC is operating), the public authority justification has been litigated as a defense to criminal activity, but the OLC memo declines to discuss that case law because those cases involved private individuals charged with crimes whereas the memo is only discussing

specific conduct undertaken by government agencies pursuant to their authorizes.
What follows is eerily reminiscent of the torture memos, as Barron and Lederman rationalize killing al-Awlaki as "lawful conduct of war" authorized under the Authorization of Military Force (AUMF) to use force against al Qaeda. The world is the battlefield: the fact that
the contemplated DoD operation would occur in Yemen, a location that is far from the most active theater of combat . . . does not affect our conclusion.
The enemies are defined - sort of -
. . . DoD proposes to target a leader of AQAP, an organized enemy force that is either a component of al-Qaida or that is a co-belligerent of that central party to the conflict and engaged in hostilities against he United States as part of the same comprehensive armed conflict, in league with the principle enemy.

All of this purported legal analysis finishes with the constitutional "analysis," which, for an action taken unilaterally by the Executive Branch that undoubtedly implicated al-Awlaki's fundamental, inalienable rights enumerated in the First, Fourth, Fifth and Sixth Amendments, is relegated to a mere four of the memo's 41 pages.

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