Category Archives: Fourth Amendment

A Terrible, Horrible, No Good, Very Bad Week

Crucial pieces of information are symbolically redacted on the cover of the newest release of George Orwell's “Nineteen Eighty-Four”.  Cover art by David Pearson.Here’s the thing: the NSA listening dumps have been an ongoing invasion of privacy since shortly after Bush finished reading My Pet Goat, or, to be precise, the day the Patriot Act passed.  As this dismal week draws to a close, the NSA  Verizon phone scandal was probably the least of our worries.

For example, late last week the Washington Post and Guardian dropped concurrent bombshell reports. Their subject was PRISM, a covert collaboration between the NSA, FBI, and nearly every tech company we rely on daily. Its stated purpose is “to monitor potentially valuable foreign communications that might pass through US servers”, but it appears to have gone far beyond that in practice.

When the NSA monitors phone records via Verizon, it’s only supposed to collect the metadata. To and from whom the calls were made, where the calls came from, and other generalized information. According to authorities the actual content of the calls was off-limits.
By contrast, PRISM allows full access not just to the fact that an email or chat was sent, but also the contents of those emails and chats. According to the Washington Post’s source, they can “literally watch you as you type.” The type of data that Prism collects includes:

“…audio and video chats, photographs, e-mails, documents, and connection logs… [Skype] can be monitored for audio when one end of the call is a conventional telephone, and for any combination of “audio, video, chat, and file transfers” when Skype users connect by computer alone. Google’s offerings include Gmail, voice and video chat, Google Drive files, photo libraries, and live surveillance of search terms.”

Did you get all that? Similar depth of access applies to Facebook, Microsoft, and the rest. This covers practically anything you’ve ever done online, up to and including Google searches as you type them.
So this new scandal, PRISM, makes the Verizon scandal look like a legal hang nail.

That about peaked my outrage meter for last week, until I heard about the anonymous hacker in Kentucky whose house was ransacked by the FBI because he had the temerity to reveal to the world what amounted to a cover up of a rape in Steubenville, Ohio. You might remember that story. Two high school football players were convicted of sexually assaulting a young girl at a party. The case gained national attention after the “hacktivist” group Anonymous leaked significant social media evidence implicating the assailants — including tweets, Instagram photos, and a 12-minute video of Steubenville high schoolers joking about the rape. But it turns out that working to expose those rapists may land one Anonymous hacker more time in prison than the rapists themselves.

Deric Lostutter, whose house was raided, confirmed he was KYAnonymous, the leader of KnightSec, the Anonymous offshoot that carried out “Operation Roll Red Roll,” which targeted Steubenville over the rape by two football players of the 16-year-old girl. In a few weeks in late 2012 he became a well-known figure in the Steubenville storyline, at one point giving an interview to CNN in a Guy Fawkes mask. (The two football players were found guilty of rape in March.)

In a statement posted on his website, Lostutter described the raid:

“As I open the door to greet the driver, approximately 12 F.B.I. Swat Team agents jumped out of the truck screaming for me to ‘Get The Fuck Down’ with m-16 assault rifles and full riot gear armed.”

He writes:

“This is my call to you, in the media, in the world of anonymous, who look to change the world to a free, transparent one, to my friends and family as well, to come to my aid, if you can find it in your heart, share my story, donate, buy a sticker, rally in the streets to demand the investigation against me be dismissed.”

Now I am not one to applaud online hacking in any form, but I’m having a tough time legitimizing our government secretly listening to every digitized byte of information on Earth, while at the same time viciously prosecuting similar behavior that tries to reveal a problem, rather than cover it up.

If our government is actually going to bother to sift every last inch of our digitized souls, you would think there might be a few leads out there about money laundering hedge fund managers who stash their gold in off shore bank accounts? Eh? Or, football players who brag about their rape victims in online forums with impunity until some hacker cooperative finally lays them out?

Instead, they prosecute the whistle blowers -KYanonymous, in this instance– but more broadly folks like Bradley Manning and Julian Assange who have the temerity to point out the subterfuge of government’s actions on a global scale.

Oh, that’s right. And Bradley Manning’s trial started this week, too.

From a quick perusal of stories, it appears our press is trying its hardest to fit the Manning trial into a narrative of how we should keep our data more secure and do better background checks on folks with top-secret clearance—emphasizing Manning’s ‘mental’ state, his gender confusion, his personal excesses, etc. Almost no word, of course, is given over to the actual horrific crimes—war crimes—that Manning exposed.

Slate was one of the few outlets that did a decent job summarizing those crimes:

• During the Iraq War, U.S. authorities failed to investigate hundreds of reports of abuse, torture, rape, and murder by Iraqi police and soldiers, according to thousands of field reports…

• There were 109,032 “violent deaths” recorded in Iraq between 2004 and 2009, including 66,081 civilians. Leaked records from the Afghan War separately revealed coalition troops’ alleged role in killing at least 195 civilians in unreported incidents, one reportedly involving U.S. service members machine-gunning a bus, wounding or killing 15 passengers…

• In Baghdad in 2007, a U.S. Army helicopter gunned down a group of civilians, including two Reuters news staff…

This last incident was the notorious video in which our helicopter pilots shot a group of civilians, murdering reporters and wounding two children in a van, to which our pilots quipped, “Well, it’s their fault for bringing their kids into a battle.”

So far as I can determine, not one of these folks has gone to jail, or had the FBI break down their doors in the dead of night, for that matter.

Commenting on Washington’s spying on journalists and members of the public, as well as his own treatment by US authorities, Julian Assange said:

“Over the last ten years the US justice system has suffered from a collapse, a calamitous collapse, in the rule of law.

“We see this in other areas as well — with how Bradley Manning has been treated in prison, with US drone strikes occurring — even on American citizens — with no due process.”

With regard to the war on whistle blowers, Matt Taibbi, in Rolling Stone, frames the larger point well: “If you can be punished for making public a crime, then the government doing the punishing is itself criminal.”

By the way, this week is also the anniversary of the publication of George Orwell’s prescient dystopia “1984”. Just saying.

The Rand Paul Filibuster & Bridging the Divide

"Really the great irony of this is that President Obama’s opinion on this is an extension of George Bush’s opinion.”~Rand Paul

For the record, I do not like Rand Paul. I think his libertarian ideology would see the better part of America holding gruel cups like Oliver Twist and begging for more porridge in miserable work houses built circa 1875 to further the blessings of the ever illusive ‘free’ market. The best that I can say about the man is that is he probably isn’t innately evil, he’s just deeply misguided. Like most Republicans he wants rich people to pay almost nothing in taxes, and he wants ‘big’ government to fail. In the infamous phrasing of Grover Norquist, he wants to drown big government in a bathtub—only, drowning ‘big’ government is an abstraction. What he’s really advocating is drowning hundreds of thousands of poor and vulnerable citizens.

But …..BUT….in this one instance, God help me, Rand Paul is right. Last night, he took to the floor of the U.S. Senate and filibustered John Brennan’s nomination to head the C.I.A. For the best of reasons –at least on its surface–which in the realm of politics is all you’re going to get:

“I rise today to begin to filibuster John Brennan’s nomination for the C.I.A.,” Mr. Paul began. “I will speak until I can no longer speak. I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”

Let me state categorically that this is a good thing. Habeas Corpus was trashed at the first passage of the Patriot Act and hasn’t been reinstated since–by either the Bush administration or the Obama administration. Anybody that slows our Executive Branch enough to decry the stripping of basic human rights that have been in place since the Magna Carta is doing a good thing. So kudos to Rand Paul for this filibuster.

And Progressives and Democrats and Democrats in name only should take notice. This is what Democracy looks like.

Maybe there’s a sweet spot here– a new ‘grand bargain’ so to speak. And it’s not really that complicated. On one side, don’t murder people without a fair trial  -especially not US citizens – just like we promised in the constitution. Roll back the creeping power of the Executive Branch that began with Nixon, really took wings with George W. Bush and has not slowed an iota under Obama. Reinstate Habeas Corpus, and maintain a standard trial by jury of peers for every citizen (again, just like we promised in the constitution). No more Executive executions, either here or abroad. Suspend the portion of the NDAA that provides for military detention of US citizens on US soil. On the other side, don’t trash our national economy in a childish tantrum. Republican economic policies (and neoliberal economic policies, in general, for that matter) are deeply dysfunctional and everybody knows it. Furthermore, implementing these wildly unpopular austerity measures flies in the face of the popular will—as dictatorial a move in its own right as invoking Executive privilege. The majority of Americans don’t like the austerity measures, don’t agree with the Republican policies and do not want their Social Security savings cut or their Medicare benefits revoked to further enable corporate welfare or tax breaks for millionaires. That’s what these last elections proved.

I’m not holding out much hope, but if our polarized country could agree on those two things: basic principles of fairness, really, maybe we could begin a long overdue national conversation about how to move forward in the 21st century.


1 Cop, 2 Cops, 3 Cops, 4 Cops

1 Cop, 2 Cops, 3 Cops, 4 Cops ~ by John Marshall

Movies that mock the police range from the Keystone Kops to Beverly Hills Cop, from Police Academy to Police Academies 2, 3, 4, 5, 6 and Mission to Moscow.

Films that satirize police states are few and far between (Sleeper, Brazil), usually depicting an exaggerated totalitarian system meant to warn us what could happen, but also to reassure us that we aren’t there yet.

Two current films take a different approach, showing characters living under police states that are exaggerated, but not that far removed from our Patriot Act-ruled present day.

What further distinguishes them is that they are not gritty indie films made for an audience of disaffected adults – they are extravaganzas aimed at children.

Now playing at a free speech zone near you are the 3D environmental manifesto The Lorax and the dystopian teen action film The Hunger Games.

What is truly frightening in both movies is the unspoken acceptance of repression as an everyday fact of life, by characters who look and sound just like we do (if a little stylized).

In The Lorax surveillance cameras are everywhere, making this the first cartoon that is as Orwellian as it is Seussian. Instead of The Cat in the Hat, there’s a robot tabby that keeps tabs on the innocent. (Its motto could be “I Can Spy All By Myself.”)

Bad-guy elected officials have been a cartoon staple forever, but here pint-sized O’Hare is not just mayor, he is also a corporation president, who profits handsomely by preventing citizens from having access to free, clean air (instead he sells it to them in plastic bottles).

O’Hare embodies, in one classic comic character, both a police state and the lack of a boundary between business and government that makes such a thing possible, and does so with buffoonery, slapstick and other low-comedy devices that paint the story’s highest authority figure as so obviously wrong that a child couldn’t miss it.

The authorities in The Hunger Games are also comic figures, but chilling ones. With their gaudy, garish costumes and exaggerated speaking styles, they are like a cross between Batman villains and Lady Gaga, but grotesquely inhuman.

Here humor is used not to relieve tension, but to increase it. When the chaperone Effie Trinkett (Elizabeth Banks) speaks to the potentially doomed Katniss Everdeen (Jennifer Lawrence), it’s in cheerful, proper tones, as if Mary Poppins had become an executioner.

On the other hand, Katniss’s stylist, Cinna (Lenny Kravitz) and mentor, Haymitch Abernathy (Woody Harrelson), both have a genuine sense of humor, which doesn’t serve them in a society so dead its members can only feel hope by watching child murder.

There are enough references in both The Lorax and The Hunger Games to contemporary culture to make it impossible to think you are watching visions of the future. Instead, you are watching commentaries on the present, both of which wield satire as a weapon.

Satire in The Lorax is no less blunt than in The Hunger Games; both are saying, in their own way, that cooperating with evil isn’t just wrong, it’s ridiculous.

Comedy has made similar warnings before.

The first film to parody Hitler was You Nazty Spy by The Three Stooges, which came out nine months before The Great Dictator by Charlie Chaplin.

Low comedians are often the first to see people in authority, from the mildly inflexible to the insanely evil, as comic figures.

However, no less a highbrow comedian than Woody Allen has said that only drama can deal with truth directly, that comedy can dance around a problem but can’t solve it.

Nevertheless, two films are dancing as fast as they can, teaching that a police state in any form is so ridiculous, a child couldn’t miss it.

But adults take more convincing, so Steve Guttenberg and Kim Cattrall should reunite for a movie even Effie Trinkett couldn’t deny – Police State Academy: No Shirt, No Shoes, No First Amendment Rights.


Thanks to APV’s friend and activist, John Marshall for today’s post.
John Marshall is a writer/comedian who has written for The Chris Rock Show (Emmy nomination), Politically Incorrect, Tough Crowd with Colin Quinn and the current version of The Electric Company. He has also written for Bazooka Joe comics. He contributes a political comedy blog to The Huffington Post.


Secret Laws and Hedges vs. Obama

To grasp the implications of the secret laws and overreach we’re dealing with in Hedges vs. Obama, start here:

The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)
By James Bamford
March 15, 2012

Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy.

Secret Laws

“When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” ~ Colorado Sen. Mark Udall, Senate Intelligence Committee

The refusal of government to define ill-defined terms in public law constitutes secret interpretations of the law – secret laws. The ACLU:

Our FOIA request was an effort to uncover more information about the way that the Justice Department has interpreted the statute, and the way that the FBI is using it. Because the Justice Department hasn’t produced any records in response to our request, we filed suit in October, 10 years to the day after President Bush signed the Patriot Act into law. We’ll file our opening brief in that case later this month. (3/15/2012)


Regarding that ACLU lawsuit and another filed by the New York Times, Oregon Sen. Ron Wyden and Sen. Mark Udall stated in a recent letter to Eric Holder, the chief attorney for an administration that promised us it would be the “most open and transparent in history”:

It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or “FISA Court”) has been acknowledged on multiple occasions by the Justice Department and other executive branch officials.

We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.


The “FBI is using Section 215 much more aggressively. It’s using it more often. And statements by Obama administration officials raise the distinct possibility that the government is using the provision to support entire surveillance programs.

As Wyden and Udall say, the secrecy surrounding the government’s use of new surveillance powers is unwarranted and fundamentally antidemocratic. The public should know, at least in general terms, how the government interprets its surveillance authority and how that authority is being used.”


Yesterday, Naomi Wolf posted her notes from the first of the NDAA hearings in the Hedges vs. Obama case. The transcript excerpts speak for themselves.

When our judges, journalists, peaceful protesters and fiction writers are subject to the questionable doublespeak from a lawyer representing our president in a dire case involving our individual liberty, the people’s job as the guardians of freedom requires attention. This was not easy to read:

NDAA hearing notes ~ Naomi Wolf
March 30, 2012

To me, secret laws are like drawing a line in the sand in front of a walking blind man. The expectation can only be that he will cross the line.