Warrants issued by a secret FISA court provide the NSA with a HUGE loophole into domestic surveillance

The top secret rules that allow NSA to use US data without a warrant

http://www.guardian.co.uk/world/2013/jun/20/fisa-court-nsa-without-warrant?utm_source=TomDispatch&utm_campaign=da428c9bac-TD_Solnit6_25_2013&utm_medium=email&utm_term=0_1e41682ade-da428c9bac-308837965

Fisa court submissions show broad scope of procedures governing NSA's surveillance of Americans' communication

• Document one: procedures used by NSA to target non-US persons
• Document two: procedures used by NSA to minimise data collected from US persons

Glenn Greenwald and James Ball

guardian.co.uk, Thursday 20 June 2013 23.59 BST

The documents show that discretion as to who is actually targeted lies directly with the NSA's analysts. 

Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information "inadvertently" collected from domestic US communications without a warrant.

The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target "non-US persons" under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.

The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.

The procedures cover only part of the NSA's surveillance of domestic US communications. The bulk collection of domestic call records, as first revealed by the Guardian earlier this month, takes place under rolling court orders issued on the basis of a legal interpretation of a different authority, section 215 of the Patriot Act.

The Fisa court's oversight role has been referenced many times by Barack Obama and senior intelligence officials as they have sought to reassure the public about surveillance, but the procedures approved by the court have never before been publicly disclosed.

The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.

However, alongside those provisions, the Fisa court-approved policies allow the NSA to:

• Keep data that could potentially contain details of US persons for up to five years;

• Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;

• Preserve "foreign intelligence information" contained within attorney-client communications;

• Access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants.

The documents also show that discretion as to who is actually targeted under the NSA's foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.

Since the Guardian first revealed the extent of the NSA's collection of US communications, there have been repeated calls for the legal basis of the programs to be released. On Thursday, two US congressmen introduced a bill compelling the Obama administration to declassify the secret legal justifications for NSA surveillance.

The disclosure bill, sponsored by Adam Schiff, a California Democrat, and Todd Rokita, an Indiana Republican, is a complement to one proposed in the Senate last week. It would "increase the transparency of the Fisa Court and the state of the law in this area," Schiff told the Guardian. "It would give the public a better understanding of the safeguards, as well as the scope of these programs."

Section 702 of the Fisa Amendments Act (FAA), which was renewed for five years last December, is the authority under which the NSA is allowed to collect large-scale data, including foreign communications and also communications between the US and other countries, provided the target is overseas.

FAA warrants are issued by the Fisa court for up to 12 months at a time, and authorise the collection of bulk information – some of which can include communications of US citizens, or people inside the US. To intentionally target either of those groups requires an individual warrant.

One-paragraph order

One such warrant seen by the Guardian shows that they do not contain detailed legal rulings or explanation. 

Instead, the one-paragraph order, signed by a Fisa court judge in 2010, declares that the procedures submitted by the attorney general on behalf of the NSA are consistent with US law and the fourth amendment.

Those procedures state that the "NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person".

It includes information that the NSA analyst uses to make this determination – including IP addresses, statements made by the potential target, and other information in the NSA databases, which can include public information and data collected by other agencies.

Where the NSA has no specific information on a person's location, analysts are free to presume they are overseas, the document continues.

"In the absence of specific information regarding whether a target is a United States person," it states "a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person."

If it later appears that a target is in fact located in the US, analysts are permitted to look at the content of messages, or listen to phone calls, to establish if this is indeed the case.

Referring to steps taken to prevent intentional collection of telephone content of those inside the US, the document states: "NSA analysts may analyze content for indications that a foreign target has entered or intends to enter the United States. Such content analysis will be conducted according to analytic and intelligence requirements and priorities."

Details set out in the "minimization procedures", regularly referred to in House and Senate hearings, as well as public statements in recent weeks, also raise questions as to the extent of monitoring of US citizens and residents.

NSA minimization procedures signed by Holder in 2009 set out that once a target is confirmed to be within the US, interception must stop immediately. However, these circumstances do not apply to large-scale data where the NSA claims it is unable to filter US communications from non-US ones.

The NSA is empowered to retain data for up to five years and the policy states "communications which may be retained include electronic communications acquired because of limitations on the NSA's ability to filter communications".

Even if upon examination a communication is found to be domestic – entirely within the US – the NSA can appeal to its director to keep what it has found if it contains "significant foreign intelligence information", "evidence of a crime", "technical data base information" (such as encrypted communications), or "information pertaining to a threat of serious harm to life or property".

Domestic communications containing none of the above must be destroyed. Communications in which one party was outside the US, but the other is a US-person, are permitted for retention under FAA rules.

The minimization procedure adds that these can be disseminated to other agencies or friendly governments if the US person is anonymised, or including the US person's identity under certain criteria.

Holder's 'minimization procedure' says once a target is confirmed to be in the US, interception of communication must stop. 

A separate section of the same document notes that as soon as any intercepted communications are determined to have been between someone under US criminal indictment and their attorney, surveillance must stop. However, the material collected can be retained, if it is useful, though in a segregated database:

"The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein," the document states.

In practice, much of the decision-making appears to lie with NSA analysts, rather than the Fisa court or senior officials.

A transcript of a 2008 briefing on FAA from the NSA's general counsel sets out how much discretion NSA analysts possess when it comes to the specifics of targeting, and making decisions on who they believe is a non-US person. Referring to a situation where there has been a suggestion a target is within the US.

"Once again, the standard here is a reasonable belief that your target is outside the United States. What does that mean when you get information that might lead you to believe the contrary? It means you can't ignore it. 

You can't turn a blind eye to somebody saying: 'Hey, I think so and so is in the United States.' You can't ignore that. Does it mean you have to completely turn off collection the minute you hear that? No, it means you have to do some sort of investigation: 'Is that guy right? Is my target here?" he says.

"But, if everything else you have says 'no' (he talked yesterday, I saw him on TV yesterday, even, depending on the target, he was in Baghdad) you can still continue targeting but you have to keep that in mind. You can't put it aside. You have to investigate it and, once again, with that new information in mind, what is your reasonable belief about your target's location?"

The broad nature of the court's oversight role, and the discretion given to NSA analysts, sheds light on responses from the administration and internet companies to the Guardian's disclosure of the PRISM program. They have stated that the content of online communications is turned over to the NSA only pursuant to a court order. But except when a US citizen is specifically targeted, the court orders used by the NSA to obtain that information as part of Prism are these general FAA orders, not individualized warrants specific to any individual.

Once armed with these general orders, the NSA is empowered to compel telephone and internet companies to turn over to it the communications of any individual identified by the NSA. The Fisa court plays no role in the selection of those individuals, nor does it monitor who is selected by the NSA.

The NSA's ability to collect and retain the communications of people in the US, even without a warrant, has fuelled congressional demands for an estimate of how many Americans have been caught up in surveillance.

Two US senators, Ron Wyden and Mark Udall – both members of the Senate intelligence committee – have been seeking this information since 2011, but senior White House and intelligence officials have repeatedly insisted that the agency is unable to gather such statistics.

Supreme Injustices

http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html?_r=0

WASHINGTON — The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, ruling that Congress had not provided adequate justification for subjecting nine states, mostly in the South, to federal oversight.

Stephen Crowley/The New York Times

Wade Henderson, president and C.E.O. of the Leadership Conference on Civil and Human Rights, criticized the decision on Tuesday.

“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Chief Justice Roberts said that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. When the law was last renewed, in 2006, Congress relied on data from decades before. The chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the federal authorities.

The court did not strike down Section 5, which sets out the pre-clearance requirement itself. But without Section 4, which determines which states are covered, Section 5 is without significance — unless Congress chooses to pass a new bill for determining which states would be covered.

The Voting Rights Act of 1965 was one of the towering legislative achievements of the civil rights movement. Its central provision, Section 5, requires many state and local governments, mostly in the South, to obtain permission from the Justice Department or a federal court in Washington before making changes in laws that affect voting.

That means jurisdictions covered by Section 5 must get federal approval before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts.

The Supreme Court had repeatedly upheld the law, saying that Section 5’s “preclearance requirement” was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks.

Critics of Section 5 say it is a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified. They point to high voter registration rates among blacks and the re-election of a black president as proof that the provision is no longer needed.

Civil rights leaders, on the other hand, say the law played an important role in the 2012 election, with courts relying on it to block voter identification requirements and cutbacks on early voting.

Section 5 was originally set to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.

In 2012, a divided three-judge panel of the United States Court of Appeals for the District of Columbia rejected a challenge to the law filed by Shelby County, Ala. Judge David S. Tatel, writing for the majority, acknowledged that “the extraordinary federalism costs imposed by Section 5 raise substantial constitutional concerns,” and he added that the record compiled by Congress to justify the law’s renewal was “by no means unambiguous.”

“But Congress drew reasonable conclusions from the extensive evidence it gathered,” he went on. The constitutional amendments ratified after the Civil War, he said, “entrust Congress with ensuring that the right to vote — surely among the most important guarantees of political liberty in the Constitution — is not abridged on account of race. In this context, we owe much deference to the considered judgment of the people’s elected representatives.”

The dissenting member of the panel, Judge Stephen F. Williams, surveyed recent evidence concerning registration and turnout, the election of black officials, the use of federal election observers and suits under another part of the law.

Some of that evidence, he said, “suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination,” while other evidence indicates that the formula, “though not completely perverse, is a remarkably bad fit with Congress’s concerns.”

“Given the drastic remedy imposed on covered jurisdictions by Section 5,” he wrote, “I do not believe that such equivocal evidence can sustain the scheme.”

The Supreme Court had once before considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question, and it seemed to give Congress an opportunity to make adjustments. Congress did not respond.

Who are the True Patriots?

from an article by Robert Scheer

http://www.truthdig.com/report/item/the_good_germans_in_government_20130625/

What a disgrace. The U.S. government, cheered on by much of the media, launches an international manhunt to capture a young American whose crime is that he dared challenge the excess of state power. Read the Fourth Amendment to the U.S. Constitution and tell me that Edward Snowden is not a hero in the mold of those who founded this republic. Check out the Nuremberg war crime trials and ponder our current contempt for the importance of individual conscience as a civic obligation.

Yes, Snowden has admitted that he violated the terms of his employment at Booz Allen Hamilton, which has the power to grant security clearances as well as profiting mightily from spying on the American taxpayers who pay to be spied on without ever being told that is where their tax dollars are going. Snowden violated the law in the same way that Daniel Ellsberg did when, as a RAND Corporation employee, he leaked the damning Pentagon Papers study of the Vietnam War that the taxpayers had paid for but were not allowed to read. 

In both instances, violating a government order was mandated by the principle that the United States trumpeted before the world in the Nuremberg war crime trials of German officers and officials. As Principle IV of what came to be known as the Nuremberg Code states: “The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

That is a heavy obligation, and the question we should be asking is not why do folks like Ellsberg, Snowden and Bradley Manning do the right thing, but rather why aren’t we bringing charges against the many others with access to such damning data of government malfeasance who remain silent?

Is there an international manhunt being organized to bring to justice Dick Cheney, the then-vice president who seized upon the pain and fear of 9/11 to make lying to the public the bedrock of American foreign policy? This traitor to the central integrity of a representative democracy dares condemn Snowden as a “traitor” and suggest that he is a spy for China because he took temporary refuge in Hong Kong.

The Chinese government, which incidentally does much to finance our massive military budget, was embarrassed by the example of Snowden and was quick to send him on his way. Not so ordinary folk in Hong Kong, who clearly demonstrated their support of the man as an exponent of individual conscience. 

So too did Albert Ho, who volunteered his considerable legal skills in support of Snowden, risking the ire of Hong Kong officials. Ho, whom The New York Times describes as “a longtime campaigner for full democracy [in Hong Kong], to the irritation of government leaders of the territory,” is an example of the true democrats around the world who support Snowden, contradicting Cheney’s smear.

But U.S. Democrats have also been quick to join the shoot-the-messenger craze, ignoring the immense significance of Snowden’s revelations. Take Sen. Dianne Feinstein of California. [...] After years of covering up for the intelligence bureaucracy, Feinstein is now chairman of the Senate Intelligence Committee, and clearly for some time has been in a position to know the inconvenient truths that Snowden and others before him have revealed.

Did she know that the NSA had granted Booz Allen Hamilton such extensive access to our telephone and Internet records? Did she grasp that the revolving door between Booz Allen and the NSA meant that this was a double-dealing process involving high officials swapping out between the government and the war profiteers? Did she know that the security system administered by Booz Allen was so lax that young Snowden was given vast access to what she now feels was very sensitive data? Or that private companies like Booz Allen were able to hand out “top security” clearances to their employees, and that there now are 1.4 million Americans with that status?

As with her past cover-ups of government lying going back to the phony weapons of mass destruction claims made to justify the Iraq War, Feinstein, like so many in the government, specializes in plausible deniability. 

She smugly assumes the stance of the all-knowing expert on claimed intelligence success while pretending to be shocked at the egregious failures. She claims not to have known of the extent of the invasion of our privacy and at the same time says she is assured that the information gained “has disrupted plots, prevented terrorist attacks. ...” If so, why did she not come clean with the American public and say this is what we are doing to you and why?

Instead, Feinstein failed horribly in the central obligation of a public servant to inform the public and now serves as prosecutor, judge and jury in convicting Snowden hours after his name was in the news: “He violated the oath, he violated the law. It’s treason,” she said.

Treason is a word that dictators love to hurl at dissidents, and when both Cheney and Feinstein bring it back into favor, you know that courageous whistle-blowers like Snowden are not the enemy.

talk at Jan van Eyck, part 2

Video streaming by Ustream

talk at Jan van Eyck, part 1

Video streaming by Ustream

A new center of the resistance in Greece

http://socialistworker.org/2013/06/24/new-center-of-greek-resistance

[...]

On the grounds, it looks like the bitter lessons were learned from the struggle against the government strike-break this year, when there was a lack of organized solidarity--plus there is the expertise learned from the "squares movement" in spring 2011. There is a massive physical presence to defend the strikers and the occupied building against the police, co-existing with outdoor assemblies, large discussions, collective kitchens and so on.

Of course, the center of the struggle is Athens, but the picture is the same in Thessaloniki, in the occupied building of the local ET3, which broadcasts programs about social struggles, or in any town there is an occupied ERT radio station that tries to continue broadcasting.

The issue of ERT had become a focal point of the struggle. Dozens and dozens of solidarity statements have been issued by unions and are read out at the occupied building. The shutdown was so provocative that even mainstream international media declared their solidarity with ERT--some French newspapers, for example, published with black front pages. Support demonstrations have been organized in London, Paris and other European cities.

There have also been solidarity strike actions. Under enormous pressure, leaders of the two major union confederations were forced to declare a 24-hour general strike on Thursday, June 13. The strike demonstration was called for outside ERT, instead of the traditional route to Syntagma Square in front of parliament, so tens of thousands of people were gathered outside the occupation. Media workers were on an indefinite strike for days, allowing only the broadcasting of the ERT program.

Many media barons organized scab operations and managed to publish their newspapers. As a response, striking journalists published the union's strike issue--a tactic used for the first time during a strike in 1975.

The most spectacular aspect, outside of the occupation in Athens, has been the unity in action among all the left-wing forces. There were thousands of demonstrators in the yard, but the heart of the mobilization was left-wing activists.

For the first time in years, you could see the party flags of SYRIZA and ANTARSYA, of the Communist Party-affiliated unions and of the anarcho-syndicalists and anti-authoritarians, waving side by side. Members of SYRIZA, ANTARSYA, the Communist Party and the anarchist movement were standing shoulder to shoulder to protect the occupation.

[...]

arctic ice tipping point

avaaz.org

Scientist Julienne Stroeve has studied Arctic ice for decades. Every summer she travels north to measure how much ice has melted. She knows that climate change is melting the ice fast, but on her last trip, she couldn't believe what she saw. Vast areas of Arctic ice have disappeared, beyond our worst expectations.

This is what the experts warned us about. As the earth warms, it creates many "tipping points" that accelerate the warming out of control. Warming thaws the Arctic sea ice, destroying the giant white 'mirror' that reflects heat back into space, which massively heats up the ocean, and melts more ice, and so on. We spin out of control. Already this year -- storms, temperatures -- everything is off the charts.

[...]