May 2004

ACLU Suit Uncovers The Secrets of Secret Surveillance

Filed under: Imported

Everyone knows by now (or should) that the Patriot Act allows the FBI to conduct surveillance on Internet and email usage. Using so-called National Security Letters (NSLs), the FBI directs Internet Service Providers (ISPs) to provide passwords and identifying information that will allow the government to target people who are plotting terrorism or who are otherwise potentially "dangerous" to national security. I am sure that many of you reading this (and I, of course) have the government in our computers.

The same mechanism of NSLs is used to obtain information from librarians, health care providers, and business records of invididuals and entities. The party from whom the government demands information is forbidden from telling the client that the FBI is being provided information. And the target of the investigation won't know about it until or if he or she is arrested for crime or detained without a charge (say, as a material witness).

Until now, we did not know much about how the government goes about this procedure. Now we do. Thanks to a suit filed by the American Civil Liberties Union (ACLU) in New York in behalf of an unnamed ISP. The government has tried mightily to keep the entire suit under seal, but the federal judge has allowed the ACLU to release some information about the case.

Following is a report on the case, with some interesting heretofore unknown details.  Never has the ACLU needed your financial support more. Clearly, it is the only thing standing between us and our fascist government. Read the briefs and supporting documents in the case.

The American Civil Liberties Union (ACLU) yesterday released more information about the heavily censored legal challenge it is bringing against the government's use of a controversial provision of the USA PATRIOT Act that allows the FBI to obtain from businesses sensitive personal information about their clients. Among the documents unsealed today is a declaration by the ACLU's anonymous client in the case, the president and sole employee of an unnamed Internet Service Provider (ISP), referred to only as "John Doe." John Doe is prohibited by law from revealing his identity to the public, even as he confronts the federal government over the very section of the Patriot Act that forces him to remain anonymous.

In his statement, Doe explains that his business provides access to the Internet, email accounts and space on the Web where people can post their own sites or store electronic files. He says some of his clients "are individuals and political associations that engage in controversial political speech," and that some "communicate anonymously or pseudonymously," which allows them "to discuss embarrassing, sensitive or controversial subjects without fear of retaliation or reprisal."

Doe and the ACLU are asking the court to deem unconstitutional the government's use of National Security Letters (NSLs), which allow FBI agents to demand, with no judicial oversight, personal information about clients of Internet Service Providers.

"I believe that the government may be abusing its power by targeting people with unpopular views," Doe writes. "I am challenging the constitutionality of the NSL provision in an effort to protect all of my clients' interests."

In a memorandum to the court, the ACLU wrote that the statute allowing the broad use of National Security Letters gives the FBI "unchecked authority" to require businesses to reveal "a broad array of sensitive information, including information about the First Amendment activities of ordinary Americans who are not suspected of any wrongdoing."

The memorandum continues: "The statute does not require the FBI to seek judicial authorization before demanding the disclosure of sensitive information, and it does not specify any means by which a person served with an NSL can challenge the NSLs validity before complying with it. In other words, the FBI issues NSLs without judicial oversight of any kind."

ACLU lawyers and their client are also disputing a section of the law that prohibits an entity that receives a National Security Letter request for information from telling anyone about the request. Ironically, this gag order is the same rule that prohibits the ACLU and John Doe from talking about many aspects of their case.

The ACLU challenge of the National Security Letters and the gag rule has been wrapped in secrecy since it was filed in early April this year. The civil liberties organization has been locked in constant disagreements with the government over how much can be revealed about the case. The group was not even allowed to announce the existence of the suit for over two weeks, and even after negotiating the right to publicize the case, has been subjectto numerous restrictions on the kinds of information it can disclose.

Numerous words, sentences and entire sections of the documents related to the suit, which are posted on the group's website, remain blacked out.

Assistant Attorney General for Legal Policy Daniel Bryant defended the gag order last week at a House Judiciary subcommittee hearing, saying it prevents people from interrupting terrorism investigations. But critics saythe secrecy rule is designed to keep the public in the dark about thegovernment's invasion into people's constitutionally protected privacy.

"It is particularly troubling," writes ACLU Executive Director Anthony Romero in a statement to the court, "that while the ACLU ... [has] been gagged from discussing the NSL power, President Bush and representatives of the FBI and Justice Department are engaged in a public campaign in supportof the Patriot Act. The gag provision silences those who are most likely to oppose the Patriot Act. [We] believe we have the right to inform the public of a great deal of the information the gag is suppressing."

In filings with the court, Both Romero and Doe described the self-censorship they had been forced to engage in when asked by others about the National Security Letters in general or the case in particular.

"The government has now prohibited the disclosure of my name and my company's name in connection with the case," said Doe. "They have provided no further clarification about what I can and cannot say." He says that he has found it difficult to have normal conversations. "[I] used to discuss topics related to politics and current events, but now I feel wary when Icommunicate ... I have steered clear of numerous topics of conversation as I am afraid.... The gag has put me in a very compromising situation, as I do not want to be dishonest in my communications [words blacked out] but also do not want to violate the gag."

Romero said that not only is the gag order affecting how he and other staff at the ACLU can talk about the case, but it is having an impact on the broader activities of the organization, which has been actively engaged in educating and organizing against the Patriot Act since the law's inception in late 2001.

"[T]he scope of the gag in this case, and the refusal of the government to clarify what is prohibited, is intolerable," he writes. "The gag has severely disrupted our ordinary course of business... More importantly, the public and even members of Congress are denied non-sensitive information essential to public and legislative debate that is at the heart of democratic self-governance."

Posted by Elaine Cassel at May 29, 2004 9:41 AM

Ninth Circuit Judges to Ashcroft: Leave Oregon Alone

Filed under: Imported

The Ninth Circuit Court of Appeals handed Attorney General John Ashcroft a stinging rebuke yesterday for trying to prosecute Oregon doctors for implementing that state's voter-approved assisted suicide law. Thinking that he knows more about the practice of medicine than doctors do, and of course that he knows better how to regulate doctors than the Oregon Board of Medicine, three years ago Ashcroft said he was going to begin prosecuting Oregon doctors for prescribing a cocktail of drugs that allow a terminally ill patient to die with dignity.

The U.S. District Court early on injoined him from prosecuting doctors under federal law (Ashcroft argued that prescibing such medications violated the federal Drug Enforcement Act, as such use of drugs was not an appropriate "medical" use) before they ruled against him. Now the appellate court followed suit, and hopefully put to rest this latest travesty of justice from an attorney general who, like his boss in the Oval Office, considers himself above the law.

Read more about the decision.

Posted by Elaine Cassel at May 27, 2004 3:49 PM

Lynne Stewart Trial Jury Selection Underway

Filed under: Imported

Jury selection in the trial of attorney Lynne Stewart began on May 19, with opening arguments scheduled for June 21. Federal prosecutors convinced the judge that the jurors will be anonymous, with the names known only, presumably, to the judge. Certainly the defense team or the defendant won't know their names, but I am taking bets that the prosecutors will.

Juror anonymity, which the government says it needs after the debacle in the recent hung jury in the Tyco case, is just the first step to secret trials--which the government already has successfully engineered in the case of deportations of immigrants post-September 11, 2001 and in several "terrorist" trials (some of which are so secret they don't even appear on a court docket anywhere).

Stewart was interviewed on Amy Goodman's Democracy Now on May 19. Listen to the interview. Then read the article setting out the new charges she is facing. Recall that last year, Judge Koetel dismissed the terrorism charges against her. Not to be deterred, the government filed new terrorism charges, more vague and troublesome than the first. Call it Ashcroft's revenge. Also, you can read more background on the Stewart case by linking to the articles and court filings on this page.

Defense: Sheikh's Lawyer Lacked Notice Her Actions Violated the Law

Mark Hamblett
New York Law Journal
04-12-2004


The latest charges accusing attorney Lynne Stewart of providing material support and resources to a foreign terrorist group should be dismissed because she could not have known her actions were illegal, according to her defense lawyer, Michael Tigar.

In oral arguments on Friday before Southern District of New York Judge John G. Koeltl, Tigar said Stewart's prison communications with her client, Islamic Group spiritual leader Sheikh Omar Abdel Rahman, could not be penalized because she lacked proper notice that her actions would violate the material support law.

For the government, prosecutor Robin Baker expressed confidence that the statute as applied to Stewart was not unconstitutionally vague.

A similar case against Stewart was dismissed in July on grounds of vagueness. Now the government has brought new charges -- based on exactly the same actions -- that by nature are harder to prove. To win a conviction the prosecution must show that Stewart intended to give assistance to members of a terrorist conspiracy. She is not charged with conspiracy herself. The charges stem from her contacts with Sheikh Abdel Rahman.

Stewart was first indicted in 2002 for providing material support for terrorism. That charge was based on her actions both inside the federal prison where the sheikh is serving a life sentence for seditious conspiracy against the United States, and outside the prison in statements to the media.

The indictment alleged that Stewart assisted terrorists by helping the sheikh communicate with his followers in Islamic Group, and she did so by violating a promise to abide by so-called special administrative measures, which isolated the sheikh from the outside world.

Stewart was accused of two specific kinds of acts.

One was telling the sheikh's followers -- in a public announcement on the courthouse steps -- that he was withdrawing his support for a moratorium on acts of terror by the group against the Egyptian government.

The other involved her behavior in visits to the sheikh in prison. She was accused of making noise to conceal the fact that he was exchanging information with an interpreter.

The interpreter, Mohammed Yousry, is a co-defendant of Stewart.

A third defendant, Ahmed Abdel Sattar, who sent and received messages from the sheikh, was charged with two counts of providing material support to a terror group.

In July, Judge Koeltl found unconstitutionally vague charges that Stewart assisted Islamic Group by providing communications equipment and "personnel." The "personnel" were the three defendants, which Koeltl said she could not have known. Those charges were dismissed on the ground that the statute, 18 U.S.C. 2339(B), was unconstitutionally vague as applied.

The government responded with a superseding indictment under a different section, 18 U.S.C. 2339(A), based on exactly the same acts.

Stewart was again accused of conspiring to provide material support and providing material support to Islamic Group. She was again accused of providing "personnel" to the outlaw group. This time, the sheikh himself was the "personnel."

In the new indictment, Sattar was not charged with providing material support. He was, however, charged with conspiracy to kill and kidnap persons in a foreign country.

That charge is key to the reconfigured accusations against Stewart because of the differences between the two statutes.

The one being used now, § 2339(A), was passed in 1994 after the 1993 bombing of the World Trade Center. It defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes. The violent crime alleged to have been furthered by Stewart's support is one that Sattar is alleged to have been planning.

The first indictment was under a law passed in 1996 aimed at making it easier to obtain a conviction. That law, § 2339(B), does not require intent. It requires only that the defendant give aid or support to a group that has been designated as a terrorist organization by the secretary of state.

"It was intentionally drafted so there is no defense along the lines of 'I gave money to Hamas, but I didn't want them to use the money for guns, I wanted them to use the money for an orphanage,'" said professor Robert M. Chesney of Wake Forest University Law School. "Congress wrote the statute with the idea that these organizations are so tainted by political acts of violence against civilians that any act that boosts the organization is harmful."

The statute the government is now using against Stewart is "a more narrow crime, a more difficult crime to prove," Chesney said.

"The new charges against Ms. Stewart will be harder to prove," he said. "It's a traditional conspiracy or aiding and abetting case."

For Tigar, the new charges still fail for vagueness and overbreadth.

THE JUDGE'S ATTITUDE

But as he continued to press this argument on Friday, Judge Koeltl seemed to agree with the government that the addition of the element of knowledge of the outcome may spare the government the problem of vagueness that doomed the material support charges last year.

The judge focused on the "much higher specific intent" required by § 2339(A). He disagreed when Tigar framed the charges under that section as requiring little more than "the knowledge of the existence of a conspiracy."

"No, it is not simply knowledge of a conspiracy to kill," the judge said. "It is knowing that resources are to be used in carrying out specific violations -- and under (2339)B, all you have to do is knowingly provide something."

Baker relied on the government's memorandum and offered no oral argument on the issue of intent Friday, save to say that she agreed with the court that the current prosecution sets a "rigorous" standard for the government.

The government's memorandum says, "It is ironic that Stewart, by making her as-applied vagueness challenge, professes to have lacked notice that the conduct at issue in Counts Four and Five -- enabling an otherwise-isolated terrorist leader to resume such activities -- could constitute the provision, concealment, and disguisement of material support and resources to terrorist activity.

"The SAMs expressly put Stewart on notice," it says, referring to the special administrative measures.

The new charges also prompted the defendants to accuse the government of vindictive prosecution.

Barry Fallick, representing Sattar, said that, under the old indictment, Sattar faced a sentence of 30 years in prison. Now he faces a potential life sentence for conspiracy.

"The ante has been upped," Fallick told Judge Koeltl, adding that prosecutors offered no new discovery in regards to the new charges and do not claim that additional time gave them the opportunity to review the facts more thoroughly.

Judge Koeltl said the 2nd U.S. Circuit Court of Appeals has "rejected the view that prosecutors must bring all the charges possible in the first indictment."

He again noted that the "level of proof the government has taken on the second time is much greater" than under the charges in the first indictment.

Fallick answered that the higher burden on the new charges "can not be used as an escape hatch" by the government because the government had created "a presumption of vindictiveness" in bringing the superseding indictment.

The second indictment was also different, Tigar argued in his memorandum.

"Unlike the first indictment, the superceding indictment represents a wide-ranging attack on all aspects of the professional legal services that Lynne Stewart provided during the course of representing Sheikh Abdel Rahman," Tigar wrote.

He asked the court how a lawyer such as Stewart could conscientiously provide legal services to the sheikh without knowing what is actually forbidden by the statute.

Baker responded on Friday that Stewart's role as a lawyer was irrelevant to the charges.

In their memorandum, Baker and her colleagues insisted, "This case does not involve federal imposition of rules of conduct for lawyers, but federal enforcement of generally-applicable anti-terrorism laws."

"This case does not involve infringement upon lawyer autonomy and democratic rights, but the infringement upon the safety of people around the world by a person who happens to practice law, and her co-conspirators," they state.

Posted by Elaine Cassel at May 20, 2004 6:41 AM

The Other War--One Year Later

Filed under: Imported

A year ago, I started writing about the Bush Administration's war on civil liberties. Having just completed a book on the topic (The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, Lawrence Hill Books, September 2004), I am mentally and emotionally exhausted from keeping up with the bad news on many fronts. And, for the past month, engrossed in the tedious copy-editing and other end-of-stage publication details, I have been unable to write about developments in this war. But I have not stopped keeping up with the news.

The reports of torture and abuse at Abu Ghraib prison should come as no surprise to one who has kept up with the shenanigans of the government whose motto could be, "no law but our own."  Indeed, mandates (not mere approval or benign ignorance) for torture in order to gain information (about what has not been made clear) are the direct result of an administration that, quite literally, will trample over any law, no matter how sacred. Geneva Conventions, Bill of Rights, what's the difference?  The shocking attempts to minimize such horrors in a country the Bush cronies are supposedly liberating should bring to mind Nazi occupations. Oh, I realize that what Bush is doing in Iraq is a far cry from loading Jews in train cars, but hey, the occupation is in its early stages

Speaking of loading people in train cars, the Washington Post last week finally reported on imprisonment abroad of thousands of people, American citizens and others, who are being held by the CIA in what is politely known as a "rendition." These "detainees" are in no way protected by any law whatsoever.  I have been in touch with one family whose son is imprisoned in Saudi Arabia. He is American citizen, a resident of Virginia, and a student at a Saudi university. Last June, he was seized by Saudi law enforcement as he prepared to come home for the summer. Though the U.S. government denies publicly even knowing that he is there, sources tell me that he was held initially because he "knew" some of the men charged as the Alexandria 11, those notorious Muslim men about to be sentenced for 50 to 100 years for playing paintball, supposedly in preparation for "jihad."  The Saudis deny that they have the man. Contacts from him to his family confirm that he is indeed imprisoned there. American lawyers are helpless to do anything for him, and no Saudi lawyer dare even attempt to visit him (so I am told by a Saudi lawyer).

Well, how about the fact that thousands of Americans are disappearing like this, and being held out of reach of family, attorneys, or courts? Does that make you think a little harder about blowing this off as not Nazi-esque?  Maybe you ought to keep this in mind as you make summer travel plans, especially if they take you across the Atlantic. Last week, the European Union announced that the airlines of EU countries would share complete passenger information with American law enforcement prior to airline departures. The government (or one of its tens of thousands of contractors who work without complete immunity from federal law or oversight if they are contracted by the Department of Homeland Security) will scan the lists and take action against any people whose names are the same or similar to those on its "terrorist" watch list. Note that I said the names are the same or similar. Not that the identities are. Big difference, don't you think?

What kind of action is taken against those whose names are the same or similar?  Either detentions abroad (from hours to days) to detentions in the US upon landing (federal agents board planes, handcuff you, and take you away for interrogation, denying you a call to your family, let alone a lawyer).  If you are very, very unlucky, you, too, could be "rendered" abroad, taken from say an airport in Paris to Syria (yes, Syria is one of the most popular countries for sending our own or other citizens for torture and interrogation) where you won't be heard from again unless you are very, very lucky.

What I have been cataloging here are cases when there will be no intervention by any court whatsoever. There cannot be. But the war on civil liberties at home has, finally, some courts taking notice. Actually, lately a judge or two has acted like a judge.

What looked like a slam-dunk win for the government's prosecution of Zacarias Moussaoui turned sour last week when the 4^th Circuit Court of Appeals in Richmond that handed Alexandria, Virginia prosecutors such a big win (the appellate court overruled U.S. District Judge Leonie Brinkema who said Moussaoui should either be allowed to question al-Qaeda witnesses or he could not face the death penalty) has called the chief federal prosecutors to a special hearing in Richmond. Seems the prosecutors in the Moussaoui case told the court that they were not involved in interrogating these al-Qaeda witnesses that Moussaoui and his lawyers wanted access to—that's why the court said it was alright that Moussaoui's lawyers could not examine them. Supposedly, the witnesses' "testimony" was gathered by "impartial sources" (as impartial as CIA interrogators who torture people for information can be). But when Moussaoui's lawyers produced evidence that the prosecutors were boasting that they were involved with the witnesses in developing other cases, the 4^th Circuit, surely the most faithful handmaidens of Bush, were upset.  Ashcroft says that his lawyers "look forward" to clarifying the issue with the judges. Maybe, just maybe, these prosecutors have been court lying one time too many.

And in New York City, a federal judge told Ashcroft's soldiers that its interpretation that the Patriot Act does not allow the ACLU to publicize anything about its case against the government, including that it even has such a case, is a bit too-far fetched even for a judge that also wants to give the President his "due" in fighting the war on terror.  Several skirmishes in the past week ended up with the ACLU being able to let some information trickle down to the public. Ironically, the substance of the litigation is the power of the government under the Patriot Act to secretly gain information about you and me from a host of sources—information-gathering that we can never be privy to—not ever.

Speaking of the Patriot Act, there has been some lukewarm interest in scaling back its most egregious provisions (like the one attacked by the ACLU suit). Bush made it clear he wants all of the provisions made permanent that were set to expire in 2005. But four Republicans, including Sen. Butch Otter (R-Idaho) and Sen. Larry Craig (R-Idaho) have sponsored legislation that would place greater restrictions on roving wire taps, require law-enforcement officials to notify the targets of "sneak and peek" searches within seven days after a search, restrict the use of nationwide search warrants and amend the section of the Patriot Act that allow for secret searches of library and bookstore records.  Of course, just how these errant Republicans will hold firm to their convictions when the White House puts the heat on them remains to be seen. But at least, there is a slight break in the ranks that have let an administration dead-set on running the country—indeed, the world—by its own rules rum amok.

Looking ahead to the immediate future, the Supreme Court will be handing down opinions within the next month that will determine the future of our liberty—up to a point. For if the Court rules against the administration in the cases dealing with the prisoners at Guantanamo Bay and the American prisoners held without due-process, Jose Padilla and Yaser Hamdi, do you really expect Bush and Rumsfeld to obey a Supreme Court order? I certainly don't. People suggest that a constitutional crisis will result. I don't buy that either. A crisis means people care, people revolt. Did we object when the justices took over the Florida 2000 presidential election and thus put its man in the Oval Office? Oh, there was some ranting and raving but it all died down. If Bush disobeys the Supreme Court, that would be an impeachable offense. But would this Congress impeach? Not hardly.

Would it hurt his reelection chances if Bush thumbs his nose at the court? I doubt that—for he has enough hard line supporters who buy his "my way or no way" and "no law but my law" approach to carry the vote. After all, arrogance and flaunting the law are, essentially, an American trait. Think wild West, slaughtering Indians, slaughtering Buffalos, lynchings, etc. When Bush expressed his pseudo-outrage at the Abu Ghraib abuses, saying this is not representative of America, whom was he kidding?  America is, at its core, violent, abusive, arrogant, and, when it chooses to be (and no one is big enough to stop us) lawless. And if admiration for the President's arrogance and flagrant violation of law doesn't carry election day, then Diebold machines will kick in and do their job. Diebold "we promise to deliver the vote for Bush" are the machines most Americans will be using to cast their "preference" for President (please don't call it a vote).

So, a year after I started writing about this "other war," where are we? Some Americans are a little more aware of what our government is doing to us, some congressmen and women are a little concerned, and a few judges are taking names and making notes. Would anything be different under John Kerry's rule? I doubt it. I tend to agree with Nader (though I do not support Nader)that Kerry is, in terms of Bush and civil liberties, a distinction without much of a difference. I think he or anyone else that replaces Bush (someday) will appreciate the precedence of the Bush years that sanctioned an adminisration making up the rules as it goes along and ignoring the courts and the Congress. Who wouldn't want that power? The Bill of Rights didn't make it into the Constitution (it was later ratified as the first ten amendments), leading Virginian George Mason to leave the constitutional convention in disgust. He saw that the founding fathers wanted power for themselves, not power to the people.

The Bill of Rights—or any other law—only has meaning if it is obeyed and enforced. Bush had demonstrated that one can trample on the Bill of Rights with impunity.  That is not a trend that we will see reversed in our lifetimes.

Posted by Elaine Cassel at May 16, 2004 10:12 AM

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