Jan 13 2014

TSA thinks Congress can override international treaties

Dismissing formal objections filed by the Identity Project and other organizations, the TSA has decided to go ahead with its “Pre-Check” (Pre-Crime) scheme to collect and use even more comprehensive secret dossiers about travelers as part of the inputs to the TSA “black box” that decides whether you are allowed to fly, and if so, how intrusively you and your luggage will be searched as a condition of exercising your right to travel.

In the TSA’s initial proposal and request for comments, it stated the outcome of its “public consultation” as a fait accompli. The “notice and comment” process was a sham, and  the TSA brushed off our objections.

Most of the analysis accompanying the “final rule” exempting the new data elements in TSA files about travelers from the Privacy Act was devoted to why the TSA isn’t even pretending to consult the public about its procedures for deciding who to search and how intrusively.  “No new substantive burden or impediment for any traveler has been created,” the TSA claims, by requiring submission to more intrusive search as a condition of travel. You don’t find having your genitals groped a burden or your body viewed as though naked a “burden”, do you? If so, you must have deserved the TSA’s suspicion in the first place.  And as long as most people find it a convenience, it’s OK if others’ rights are denied:

Contrary to some commenters’ assertion that the TSA PreCheckTM Application Program infringes upon an individual’s right to travel, this program will provide an added convenience to the majority of the traveling public.

Most disturbingly, the TSA had this to say in response to our objections to the Pre-Check pre-crime scheme based on the First Amendment to the Constitution and the International Covenant on Civil and Political Rights:

Several commenters objected that the TSA PreCheckTM Application Program violates the U.S. Constitution or international treaty. DHS disagrees with the commenters as to the Constitutionality of the program, and notes that the treaty cited by an advocacy group expressly contradicts the position taken by the commenter by excluding requirements provided by law or necessary for national security from the treaty’s proscription.

So the TSA claims that the ICCPR permits exceptions either allowed by national law OR necessary for national security.  The ICCPR says no such thing.  Any exceptions to Article 12 of the ICCPR must be provided by law  necessary for national security (i.e. actually effective and the least restriction such alternative, which the TSA hasn’t shown) AND must be consistent with the other provisions of the treaty (such as Article 17 on the right to privacy).

This is not a new (false) claim by the DHS about the relationship of international treaties to US law. The DHS made the same claims in response to some of our previous complaints of violations of the ICCPR, as we pointed out in an (as yet unanswered) letter requesting review of those responses.

In claiming to believe that Congress can override international treaty obligations, the TSA demonstrates its disregard for the Constitution, which makes treaties as much “the law of the land” as is the Constitution itself, above any power of derogation by statute. In its failure to understand the ICCPR and the basic heirarchy of Constitutional and treaty law, the TSA also evinces its failure to fulfill the orders of the President for it and all other agencies to, “maintain a current awareness of United States international human rights obligations that are relevant to their functions and … perform such functions so as to respect and implement those obligations fully.”

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Jan 07 2014

Where is the Citizens’ Commission to Investigate the DHS?

“Democracy needs whistleblowers. That’s why I broke into the FBI in 1971,” begins an op-ed by Bonnie Raines, one of the members of the previously-anonymous “Citizens’ Commission to Investigate the FBI” who took the spotlight today through public appearances and interviews and the publication of a new book about their 1971 action, The Burglary, by former Washington Post reporter Betty Medsger.

The Citizens’ Commission — Bonnie Raines, her husband John Raines, Keith Forsyth, Bob Williamson, the late William Davidon, the pseudonymous “Ron Durst” and “Sarah Smith”, and their eighth still-unnamed collaborator, referred to in the book as “Janet Fessenden” — broke into a relatively minor but also relatively poorly secured FBI office near Philadelphia, stole “probably about six big suitcases” full of documents, and sent copies of those documents revealing FBI political surveillance and “dirty tricks” to various reporters and publications.

The Complete Collection of Political Documents Ripped-Off from the F.B.I. Office in Media, Pa., March 8, 1971” was eventually published in full a year later by the War Resisters League as a special double issue of WIN Magazine. These documents included the first public appearance of the FBI code-word “COINTELPRO“.  The documents, damning the FBI and J. Edgar Hoover in their own words, and the exposure of COINTELPRO, unseated Hoover and the FBI from their “untouchable” pedestals of public respect and secret power, prompted the Church Commission hearings, and led to executive orders and legislation at least purporting to reign in FBI political surveillance and meddling in non-criminal political activities.

Daniel Ellsberg (who praises the new book, The Burglary, as “a masterpiece”) has spoken repeatedly over the years of his desire to learn the identities of the members of the Citizens’ Commission, so that he could thank them personally for their whistleblowing. Today we are finally able to give the members of the Citizens’ Commission, named and unnamed, the credit they have long deserved for their courage and commitment in service to the causes of truth and justice.

But members of the Citizens’ Commission identified themselves publicly today not to claim their rightful place in the pantheon of muckraking heroes who have taken personal risks to expose government misconduct (entitled though they are to do so) but in order to call attention to the continuing need for more actions like theirs, and to the righteousness of whistleblowers like Edward Snowden who have taken such actions more recently.

The Citizens’ Commission weren’t “leakers”.  They were outsiders tapping into the sewage pipe of government secrets from the outside, not insiders “leaking” secrets from within the apparatus of government surveillance and subversion.  It’s important to distinguish them from insiders like Edward Snowden, Chelsea Manning, Dan Ellsberg, and Tony Russo.

As the name of the “Citizens’ Commission to Investigate the FBI” itself quite accurately reflects, its members acted as independent investigators and investigative journalists, not “leakers”.  They were the “hackers” of their time, carrying out their hacks with disguises, crowbars, and photocopiers rather than with code.

That makes the courage and commitment of the Citizens’ Commission all the more noteworthy. Ellsberg, Snowden, and Manning were all in positions of privileged access to closely-held information. The knowledge of that unusual privilege could, for people of conscience, translate itself into a greater sense of obligation to act on one’s knowledge. The members of the Citizens’ Commission, on the other hand, started out with no special knowledge and no special access. They did something that any member of the public could have done.

“But there was absolutely no one in Washington — senators, congressmen, even the president — who dared hold J. Edgar Hoover to accountability,“ John Raines told the New York Times. “It became pretty obvious to us that if we don’t do it, nobody will.”

In their press conference today, members of the Citizens’ Commission reminded reporters that the government made the same claims about the documents they stole from the FBI and gave to journalists as it has made recently about the documents taken from the NSA and passed on to journalists by Edward Snowden. In both cases, the government tried to persuade newspapers not to publish the documents, and justified criminal investigations of the thefts or leaks, on the basis of claims that the documents contained critical information that could jeopardize national security if revealed to the public.

“Within days of our action, the government was spreading stories that the documents included things like locations of missile silos and so forth,” Keith Forsyth of the Citizens’ Commission points out.

“That was a complete fabrication,” Forsyth says, based on his knowledge of documents the Citizens’ Commission eventually burned — pertaining to ordinary criminal matters rather than specifically political activities — as well as the political documents they released to the news media.  Forsyth says he’ll believe Snowden has released information genuinely damaging to national security if the government produces an actual example of such a disclosure in the material Snowden has given to the press.

We should be equally skeptical of contemporary DHS claims about the “sensitivity” and need for secrecy of information about its operations.  One of the lessons we draw from the FBI response to the actions of the Citizens’ Commission is that such claims are typically made primarily to protect government officials against public accountability, not to protect the public against private crime or threats from abroad.

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Jan 06 2014

Judge in “no-fly” case denies plaintiff & her lawyers access to evidence

In a written order on December 30th, Judge William Alsup ruled that neither Dr. Rahinah Ibrahim nor her lawyers will be allowed an opportunity to see the secret classified evidence most recently submitted by the government in its defense against Dr. Ibrahim’s lawsuit challenging her wrongful (the government admits) inclusion on the “no-fly” list.

Judge Alsup found that only if Dr. Ibrahim attended the trial would she have been entitled to remain in the courtroom and hear what was said during the portions of the trial that were closed to the public and the press.  Of course, Dr. Ibrahim was prevented from attending by the government defendants, who twice denied her applications for visas for that purpose)

And it was too late, Judge Alsup also ruled, for any of Dr. Ibrahim’s attorneys to apply for security clearances which might (if the government defendants in their discretion granted any such clearances) allow them to see the government’s secret ex parte, in camera submissions to the judge. Of course, Dr. Ibrahim’s lawyers had not previously anticipated needing clearances, since Judge Alsup had earlier rejected all the government’s proffered classified filings.

Judge Alsup’s order concludes:

The action will proceed without the benefit of classified information provided to plaintiff’s counsel.

That makes clear that Dr. Ibrahim and her lawyers won’t be allowed to see the government’s classified submissions, but seems to leave open the question of whether Judge Alsup himself will consider them in reaching his findings of fact and conclusions of law, or will again refuse to do so.