Posts Tagged ‘Constitution Crisis’

Change. Uh huh.

LINK

The Bush administration has been planning since last spring to issue a final burst of federal regulations just before leaving office. It was recently announced that over 90 new regulations would be finalized before November 22 — 60 days prior to the end of Bush’s term — making them difficult, though not impossible, for President Obama to reverse.

Although many of the regulations have to do with energy and the environment, MSNBC’s Rachel Maddow noted on Tuesday that there’s also “one that’ll kick opponents of the Patriot Act right in the teeth.”

The proposed regulation “would allow state and local law enforcement agencies to collect intelligence on individuals and organizations even if the information is unrelated to any criminal matter,” Maddow explained. She added, “Even if they weren’t already watching you — they soon could be.”

Read Full Article Here

Information that would reveal a violation of the law may be properly classified as long as it is not deliberately classified for the purpose of concealing the violation, a federal judge indicated this week.

That view, in a ruling (pdf) against the ACLU by DC District Judge Royce C. Lamberth, all but nullifies one of the principal limitations on national security secrecy contained in the executive order on classification policy.

In section 1.7 of executive order 12958, as amended, on “classification limitations and prohibitions,” the President directed that “In no case shall information be classified in order to … conceal violations of law….”

The ACLU cited this provision in a recent FOIA lawsuit to argue that transcripts of detainee tribunal hearings could not be properly classified under the executive order if they revealed evidence of prisoner abuse or other illegal conduct.  The court rejected that argument.

“Plaintiffs [ACLU] claim that some material was improperly classified because it may contain evidence that the government has violated the law,” Judge Lamberth wrote in an October 29 ruling.  “But plaintiffs misapprehend the Executive Order,” he wrote  (at page 6). “Executive Order 12958 prohibits classifying information ‘in order to … conceal violations of the law.’  However, there is no indication that these materials were classified ‘in order to’ conceal violations of the law….”

In other words, according to Judge Lambert, classifiers actually may conceal violations of the law as long as such concealment is not the specific purpose of the classification.

This narrow understanding of the executive order converts an important guarantee of the integrity of the classification process into an empty rhetorical gesture.

Under Judge Lamberth’s interpretation, the executive order provision limiting classification of violations of the law is not a limitation on the types of information that may be classified at all, but rather an unverifiable limitation on the classifier’s intention.  The provision is not concerned with the consequences of classification (i.e., the fact that criminal activity will be concealed from public knowledge) but instead focuses on the mental state of the classifier.  Did he or she specifically intend to conceal violations of the law?  If not, the classification may proceed, even if concealment is the inevitable result.  And since the classifier’s mental state is unknowable by others or may itself be concealed, the executive order’s limitation is deprived is of significant meaning.

In the past, the limitation on classification of violations of the law was construed more broadly as a public assurance that classification would not be used to conceal criminal activity by the government.  (It was never understood to require publication of information about third-party crimes collected through classified intelligence or law enforcement methods.)

In 2004, the Federation of American Scientists cited the provision in a complaint (pdf) filed with the Information Security Oversight Office (ISOO), contending that the Taguba report (pdf, classified SECRET) that found evidence of criminal abuses at Abu Ghraib prison was improperly classified.  ISOO, led by then-director J. William Leonard, undertook an investigation into the propriety of the report’s classification and reported some noteworthy results (pdf).  Not only was the Taguba report released in declassified form, but the Pentagon undertook a Department-wide initiative to improve classification training, management and oversight. The “motivation” in the mind of the classifier never came up.

The Secretary of Defense himself also issued a Department-wide memorandum (pdf) to remind classifiers of their responsibility to exercise classification authority properly, and he specifically cited the prohibition on classifying criminal activity.  In his September 16, 2004 memo, Defense Secretary Donald Rumsfeld paraphrased the executive order limitation as follows:  “It is important to state that classifiers shall not… use classification to conceal violations of law….”

Interestingly, Secretary Rumsfeld did not use the phrase “in order to” which Judge Lamberth singled out to justify his interpretation of the order as a prohibition only on deliberate concealment.  The Rumsfeld paraphrase seems to reflect the prior understanding that classification should not be used “so as to” conceal violations of the law, regardless of the intentions of the classifier.

But if violations of the law may in fact be classified, then it is important for Americans to know that. If Judge Lamberth has made it easier for classifiers to conceal violations of the law, he also put the public on notice that this is how the national security classification system now functions.

ars technica:

Longtime Ars readers know that I’ve had my own problems in the “Constitution-free zone” that exists in US airports, but an aggressive new ACLU campaign highlights a fact of which I was previously unaware: the Constitution-free zone that exists a US borders and airports actually extends 100 air miles inland and encompasses two-thirds of the country’s population. The US Border Patrol can set up checkpoints anywhere in this region and question citizens.

The Fourth Amendment to the Constitution contains a border-related exception to unreasonable search and seizure laws, permitting searches at border checkpoints that wouldn’t be permitted elsewhere. But federal statute 8 CFR 287.1 (a)(1-3) defines the border zone for enforcement purposes as encompassing an area within 100 miles of the actual border, with the possibility of extending it further under certain circumstances. This means that the US Border Patrol could conceivably set up random checkpoints asking travelers for a passport in places like Columbus, Ohio; Houston; or anywhere in the state of Florida. And, in fact, it appears that it has been doing exactly this.

Papers, please

In 2003, the Seattle Times reported on random “spot checks” of cars and luggage that border patrol agents were performing on US citizens who were taking the ferry between Washington State and the San Juan islands. Because most of the passengers on these ferries had not actually crossed an international border, the ACLU advised them at the time not to answer any questions asked of them by federal agents.

In the intervening years, the ACLU has been collecting other reports of such inland “border” checkpoints, and has built its new “Constitution-Free Zone” campaign around them. Unfortunately for the ACLU, few of the folks who have been subject to search at such checkpoints have actually come forward with complaints, but the ones who did speak up have compelling and troubling stories.

Take the story of Vince Peppard from San Diego, who crossed the border to buy tiles at a discount store in Mexico. Upon crossing back into the US, he was subject to the usual check at the border, but on driving further inland he was stopped a second checkpoint, where agents asked to search his car.

Peppard, a member of the ACLU, refused the search, at which point he was questioned repeatedly, and eventually escorted from his car while the agents searched it. Segments of Peppard’s account of the incident, which the ACLU has posted in video form on their site, would almost be funny if the issue weren’t so serious.

“He starts looking at the passport and the driver’s license,” says Peppard, “and he goes to my wife, ‘Where were you born?’ because she has an accent, but she’s a US citizen. And so she says, ‘I was born in Syria,’ and he goes, ‘Ah! A Syrian!’ like he’d hit the jackpot or something.”

Peppard then goes a little overboard in expressing worry that he may be stopped and asked for his passport at Home Depot or in other random locations, but he finishes off the clip with a concern that may not be so far-fetched. Specifically, Peppard worries that, because he has talked to the ACLU and has filed a complaint with the Border Patrol, he may be singled out for further harassment at border checkpoints.

Ultimately, one wonders just how far the Feds will push this internal checkpoint idea in a non-emergency situation; given the likely reaction to citizens being asked to show papers on a mass scale, it seems unlikely that the government will truly install checkpoints north of Columbus and begin screening in large numbers. But vigilance, as the saying goes, is the price of freedom, which is why the ACLU and its allies intend to challenge the practice before we have a chance to find out.

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ACLU:

Using data provided by the U.S. Census Bureau, the ACLU has determined that nearly 2/3 of the entire US population (197.4 million people) live within 100 miles of the US land and coastal borders.

The government is assuming extraordinary powers to stop and search individuals within this zone. This is not just about the border: This ” Constitution-Free Zone” includes most of the nation’s largest metropolitan areas.

We urge you to call on Congress to hold hearings on and pass legislation to end these egregious violations of Americans’ civil rights.

LEARN MORE
> Fact Sheet on Border “Constitution-free Zone”
> Border Security Technologies
> Remarks of Craig Johnson
> Constitution-Free Zone: The Numbers

In the News

“Homeland Security Assuming Broad Powers, Turning Vast Swaths of U.S. into “Constitution-Free Zone”,” ACLU Blog of Rights, October 22, 2008.  Online>

“ACLU Assails 100-Mile Border Zone as ‘Constitution-Free’,” Wired (Blog,) October 22, 2008. Online>

“Expanded Powers to Search Travelers at Border Detailed,” The Washington Post, September 23, 2008.  Online>

“Citizens’ Border Crossings Tracked, Data From Checkpoints to be Kept for 15 years,” The Washington Post, August 20, 2008. Online>

“Ferry worker denounces Anacortes patrol agent,” Associated Press, June 19, 2008. Online>

“Checkpoint Sticks In Forks’ Craw,” The Seattle Times, March 21, 2007. Online>

CNN:

Canada has CSIS — the Canadian Security Intelligence Service.

Now Congress is asking: Should the U.S. have its own domestic intelligence agency?

On Monday, at the request of Congress, the RAND Corporation outlined the pros and cons of establishing a domestic intelligence agency. It also discussed different ways to organize a new entity, either as part of an existing department or as a new agency.

But there’s one thing you won’t find in the report — a recommendation on what to do.

“We were not asked to make a recommendation, and this assessment does not do so,” the report says.

Instead, says RAND’s Gregory Treverton, the report provides a “framework” for policymakers to use when deciding whether and how to reorganize counter-intelligence efforts at home.

RAND is a nonprofit think tank seeking to help improve policy and decision making through objective research and analysis.

Collecting intelligence domestically always has been a sensitive issue, at least partially because of episodic abuses by the government, notably against civil rights leaders, unions, antiwar organizations or even communists and hate groups.

But the September 11, 2001, terrorist attacks renewed calls for increased domestic intelligence to prevent future attacks. Critics said that in the lead-up to the attacks, the FBI devalued counterterrorism agents and failed to heed signs that an attack was imminent.

“If you didn’t carry a gun, you didn’t count so much,” Treverton said.

After the attacks, the FBI moved to transform its primary mission from law enforcement to counterterrorism intelligence and prevention. It now focuses on terrorism through its National Security Branch and the National Counterterrorism Center.

The RAND report focuses on two options to the current system.

In one, a new agency would be created using intelligence agencies from the FBI, Department of Homeland Security and intelligence community. A second option is to create an “agency within an agency” in the FBI or DHS.

The first option would result in an organization with a clear, unambiguous mission, and might be able to draw on a more diverse recruitment pool, such as linguists and historians who are not normally attracted to law enforcement. On the flip side, such massive reorganizations typically involve political compromises that could affect its performance.

The second option — an “agency within an agency” — could involve less short-term disruption, but could be hindered by a “lack of clarity of a single mission,” the report says.

RAND also suggests a range of actions short of reorganization that could improve domestic intelligence gathering, such as increasing resources, improving leadership and changing bureaucratic cultures.

The report does not assess the FBI’s performance since 9/11, Treverton said, but he believes Congress should seek an independent assessment.

A panel of experts that RAND convened guessed that the probability of a terrorist attack had decreased about one-third since the September 11, 2001. But “they were not enthusiastic about alternatives” to current counterterrorism organizations.

In a cautionary note, the report says that while public acceptance of domestic intelligence activities is imperative, public attitudes about what is considered acceptable “can both be fragile and shift significantly over time.”

“Public demand for domestic intelligence is driven by the perceived threat, and those perceptions can change much more rapidly than the threat itself,” the report says. For instance, immediately after the 9/11 attacks, 49 percent of people surveyed were worried “a great deal” about more attacks. Two years later, that had dropped to 25 percent.