Wednesday, June 12, 2013







Starting with The War on the First Amendment, the ACLU announces they are fighting back against government intrusion:

CONTACT: 212-549-2666,

NEW YORK – The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.

"This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens," said Jameel Jaffer, ACLU deputy legal director. "It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy."

The ACLU is a customer of Verizon Business Network Services, which was the recipient of a secret FISA Court order published by The Guardian last week. The order required the company to "turn over on 'an ongoing daily basis' phone call details" such as who calls are placed to and from, and when those calls are made. The lawsuit argues that the government's blanket seizure of and ability to search the ACLU's phone records compromises sensitive information about its work, undermining the organization's ability to engage in legitimate communications with clients, journalists, advocacy partners, and others.

"The crux of the government's justification for the program is the chilling logic that it can collect everyone's data now and ask questions later," said Alex Abdo, a staff attorney for the ACLU's National Security Project. "The Constitution does not permit the suspicionless surveillance of every person in the country."

The ACLU's 2008 lawsuit challenging the constitutionality of the FISA Amendments Act, which authorized the so-called "warrantless wiretapping program," was dismissed 5–4 by the Supreme Court in February on the grounds that the plaintiffs could not prove that they had been monitored. ACLU attorneys working on today's complaint said they do not expect the issue of standing to be a problem in this case because of the FISA Court order revealed last week.

Yesterday, the ACLU and Yale Law School's Media Freedom and Information Access Clinic filed a motion with the FISA Court, requesting that it to publish its opinions on the meaning, scope, and constitutionality of Patriot Act Section 215. The ACLU is also currently litigating a Freedom of Information Act lawsuit, filed in October 2011, demanding that the Justice Department release information about the government's use and interpretation of Section 215.

"There needs to be a bright line on where intelligence gathering stops," said NYCLU executive director Donna Lieberman. "If we don't say this is too far, when is too far?"

Attorneys on the case are Jaffer and Abdo along with Brett Max Kaufman and Patrick Toomey of the ACLU, and Arthur N. Eisenberg and Christopher T. Dunn of the NYCLU.

An interactive graphic examining the secret FISA Court order revealed last week is available here.

Today's complaint is at:

You can also refer to Brett Max Kaufman's ACLU Blog of Rights' postMartha Neil (American Bar Association Journal) terms the filing "the first step in a process that could eventually lead to a U.S. Supreme Court ruling on the legality of a sweeping telephone records review revealed last week by a former National Security Agency contractor, the American Civil Liberties Union on Tuesday sued the Obama administration over its "dragnet" collection of domestic phone-call information."

Some members of Congress are also objecting to the dragnet.  Jeff Mapes (The Oregonian) reports on Senator Ron Wyden's objections and notes this March 12th Senate Intelligence Committee hearing exchange between Wyden and Director of National Intelligence James Clapper:

Senator Ron Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

James Clapper:  No, sir.

Senator Ron Wyden: It does not?

James Clapper: Not wittingly.  There are cases where they could, inadvertently perhaps, collect, but not wittingly."

So he lied to Congress, the people's representatives.  Then, on Sunday, he lied about lying in an interview with Andrea Mitchell for NBC's Today:

ANDREA MITCHELL: Senator Wyden made quite a lot out of your exchange with him last March during the hearings. Can you explain what you meant when you said that there was not data collection on millions of Americans?

JAMES CLAPPER: First-- as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked-- "When are you going to start-- stop beating your wife" kind of question, which is meaning not-- answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no. And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers-- of those books in that metaphorical library-- to me, collection of U.S. persons' data would mean taking the book off the shelf and opening it up and reading it.

ANDREA MITCHELL: Taking the contents?

JAMES CLAPPER: Exactly. That's what I meant. Now--

ANDREA MITCHELL: You did not mean archiving the telephone numbers?


ANDREA MITCHELL: Let me ask you about the content--

JAMES CLAPPER: And this has to do with of course somewhat of a semantic, perhaps some would say too-- too cute by half. But it is-- there are honest differences on the semantics of what-- when someone says "collection" to me, that has a specific meaning, which may have a different meaning to him.

Oh, so the question caught him by surprise and he misunderstood?  Senator Ron Wyden's office issued the following today:

Washington, D.C. – U.S. Senator Ron Wyden (D-Ore.) issued the following statement regarding statements made by the Director of National Intelligence James Clapper about collection on Americans. Wyden is a senior member of the Senate Intelligence Committee.

“One of the most important responsibilities a Senator has is oversight of the intelligence community.  This job cannot be done responsibly if Senators aren’t getting straight answers to direct questions. When NSA Director Alexander failed to clarify previous public statements about domestic surveillance, it was necessary to put the question to the Director of National Intelligence.  So that he would be prepared to answer, I sent the question to Director Clapper’s office a day in advance.  After the hearing was over my staff and I gave his office a chance to amend his answer.  Now public hearings are needed to address the recent disclosures and the American people have the right to expect straight answers from the intelligence leadership to the questions asked by their representatives.”

Clapper knew the question going into hearing, knew it 24 hours before.  After he lied to the Senate Committee, Wyden  and his staff provided Clapper with "a chance to amend his answer."  He did not take them up on that but let his lie stand.  Then he went on Today and lied to the American people about lying.  Lying to Congress is also know as "perjury" and that's true regardless of whether or not you are sworn in before your testimony.  Perjuring yourself before Congress is a crime.  It's hard to understand how someone who commits a crime -- one of the most offensive in a democracy (lying to the people's representatives) -- can remain a government official -- an appointee who has now lost the public's trust.

Fred Kaplan (Slate) offers, "But it's hard to have meaningful oversight when an official in charge of the program lies so blatantly in one of the rare open hearings on the subject.  (Wyden, who had been briefed on the program, knew that Clapper was lying, but he couldn't say so without violating the terms of his security clearance.)  And so, again, if President Obama really welcomes an open debate on this subject, James Clapper has disqualified himself from participation in it.  He has to go."  Andrew Rosenthal (New York Times' Taking Note blog, Rosenthal is the paper's editorial page editor) also calls out the lying and notes that the issue also came up in a Senate Judiciary Committee hearing (open hearing) back in 2006 when Alberto Gonzales (then the US Attorney General) was testifying and that Gonzales responded, "The programs and activities you ask about, to the extent that they exist, would be highly classified."  Rosenthal obsevers, "You have to wonder about giving a position of vast responsibility to someone who can beat Mr. Gonzales in dishonesty."

His dishonesty is contagious in the administration.  White House press secretary Jay Carney declared at yesterday's press conference:

It's entirely appropriate for a program to exist to look at foreign data and foreign -- potential foreign terrorist.  But there are procedures in place as the Director made clear, as the president made clear -- both at the congressional, executive and legisl -- and  judicial levels -- that provide oversight of these programs.

Clearly, that is not the case. There is no true Congressional oversight if Congress is being lied to.  And, clearly, Congress was lied to last March.

It's not even just the lying.  It's also the disrespect, the mocking of the American people by Clapper.  He not only lied to Congress, he not only lied to Today, he also lied to National Journal (where he claimed Wyden asked him about e-mails).  But the lies from Clapper -- and more importantly, the disrespect -- just never stops.  Andrea Mitchell explained in their interview that "when Americans woke up and learned because of these leaks that every single telephone call in this United States, as well as elsewhere, but every call made by these telephone companies that they collect is archived, the numbers, just the numbers, and the duration of these calls.  People were astounded by that.  They had no idea.  They felt invaded."  To which James Clapper responded, "I understand that. But first let me say that I and everyone in the intelligence community all -- who are also citizens -- who also care very deeply about our-our privacy and civil liberties -- I certainly do." 

Americans "felt invaded," Andrea explained and he responded he understood and that he cares "deeply" about this issue.  Today Emily Heil (Washington Post) reports:

Addressing the audience at a black-tie banquet on Friday night honoring Michael Hayden, the former CIA and National Security Agency chief, Clapper managed to muster some humor about government snooping, according to Government Executive’s account of the event.
"Some of you expressed surprise that I showed up," he told the crowd, according to GovExec. "So many e-mails to read!"

Americans felt invaded and he's cracking jokes about it.  He's cracking jokes about it in public. Someone that stupid should not be in charge of National Intelligence.

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