Seven of 39 detainees who were subject to the most aggressive interrogation techniques provided no intelligence at all, while information obtained from the others preceded the harsh treatment, according to the report. Credit: Fahim Siddiqi/IPS

By Jim Lobe
WASHINGTON, Dec 10 2014 (IPS)

Tuesday’s release by the Senate Intelligence Committee of its long-awaited report on the torture by the Central Intelligence Agency (CIA) of detainees in the so-called “war on terror” does not go far enough, according to major U.S. human rights groups.

While welcoming the report’s release, the subject of months of intensive negotiations and sometimes furious negotiations between the Senate Committee’s majority and both the CIA and the administration of President Barack Obama, the groups said additional steps were needed to ensure that U.S. officials never again engage in the kind of torture detailed in the report."Their actions destroyed trust in clinicians, undermined the integrity of their professions, and damaged the United States’ human rights record, which can only be corrected through accountability." -- Donna McKay of PHR

“This should be the beginning of a process, not the end,” said Anthony Romero, executive director of the American Civil Liberties Union (ACLU). “The report should shock President Obama and Congress into action, to make sure that torture and cruelty are never used again.”

He called, among other steps, for the appointment of a special prosecutor to hold the “architects and perpetrators” of what the George W. Bush administration called “enhanced interrogation techniques” (EITs) accountable and for Congress to assert its control over the CIA, “which in this report sounds more like a rogue paramilitary group than the intelligence gathering agency that it’s supposed to be.”

He was joined by London-based Amnesty International which noted that the declassified information provided in the report constituted “a reminder to the world of the utter failure of the USA to end the impunity enjoyed by those who authorised and used torture and other ill-treatment.

“This is a wake-up call to the USA; they must disclose the full truth about the human rights violations, hold perpetrators accountable and ensure justice for the victims,” said Amnesty’s Latin America director, Erika Guevara.

The Senate Committee’s report, actually a 524-page, partially-redacted summary of a still-classified 6,300-page report on the treatment of at least 119 terrorist suspects detained in secret locations overseas, accused the CIA not only of engaging in torture that was “brutal and far worse” than has previously been reported, but also of regularly misleading the White House and Congress both about what it was doing and the purported value of the intelligence it derived from those practices.

Water-boarding, for example, was used against detainees more often and in more of the CIA’s “black sites” than previously known; sleep deprivation was used for up to a week at a time against some suspects; others received “rectal feeding” or “hydration’; and still others were forced to stand on broken feet or legs.

In at least one case, a detainee was frozen to death; in the case of Abu Zubayda, an alleged “high-value” Al Qaeda detainee who was subject to dozens of water-boardings, the treatment was so brutal, several CIA officers asked to be transferred if it did not stop.

While the CIA officers and former Bush administration officials, notably former Vice President Dick Cheney, have long insisted that key information – including intelligence that eventually led to the killing of Osama bin Laden — was obtained from EITs, the report concluded that these techniques were ineffective.

Seven of 39 detainees who were subject to the most aggressive EITs provided no intelligence at all, while information obtained from the others preceded the harsh treatment, according to the report, which relied on the CIA’s own cables and reports.

In some cases, detainees subjected to EITs gave misinformation about “terrorist threats” which did not actually exist, the report found. Of the 119 known detainees subject to EITs, at least 26 should never have been held, it said.

Intelligence Committee Chairwoman Dianne Feinstein, who fought hard for months to release the report over the CIA’s fierce objections, wrote in its Forward that, in the aftermath of the 9/11 Al Qaeda attacks, “she could understand the CIA’s impulse to consider the use of every possible tool to gather intelligence and remove terrorists from the battlefield, and CIA was encouraged by political leaders and the public to do whatever it could to prevent another attack.”

“Nevertheless, such pressure, fear and expectation of further terrorist plots do not justify, temper or excuse improper actions taken by individuals or organizations in the name of national security,” according to Feinstein.

For his part, CIA director John Brennan, a career CIA officer appointed by Obama whose role in the Bush administration’s detention programme remains cloudy, “acknowledge(d) that the detention and interrogation program had shortcomings and that the Agency made mistakes.”

“The most serious problems occurred early on and stemmed from the fact that the Agency was unprepared and lacked the core competencies required to carry out an unprecedented, worldwide program of detaining and interrogating suspected al-Qa’ida and affiliated terrorists.”

But he also defended the EITs, insisting that “interrogations of detainees on whom EITs were used did produce intelligence that helped thwart attack plans, capture terrorists, and save lives.” A fact sheet released by the CIA claimed, as an example, that one detainee, after undergoing EITs, identified bin Laden’s courier, which subsequently led the CIA to the Al Qaeda chief’s location.

With several notable exceptions, Republicans also defended the CIA and the Bush administration’s orders to permit EITs. Indeed, the Intelligence Committee’s Republican members released a minority report that noted that the majority of staff had not interviewed any CIA officers directly involved in the programme.

“There is no reason whatsoever for this report to ever be published,” said the Committee’s ranking Republican, Sen. Saxby Chambliss. “This is purely a partisan tactic” which he said was designed to attack the Bush administration. Republicans also warned that the report’s release would endanger U.S. service personnel and citizens abroad by fuelling anti-American sentiment, especially in the Muslim world.

But Sen. John McCain, who was himself tortured as a prisoner of war in the Vietnam war, defended the report, calling it “a thorough and thoughtful study of practices that I believe not only failed their purpose …but actually damaged our security interests, as well as our reputation as a force for good in the world.”

McCain has championed efforts to pass legislation outlawing torture, particularly because Obama’s 2009 executive orders prohibiting such practices could be reversed by a future president.

Passage of such a law – whose prospects appear virtually nil in light of Republican control of both houses of Congress for the next two years – is one of the demands, along with release of the full report, of most human-rights groups here.

“The Obama administration and Congress should work together to build a durable consensus against torture by pursuing legislation that demonstrates bipartisan unity and fidelity to our ideals,” said Elisa Massimino, director of Human Rights First.

Many groups, however, want Obama to go further by prosecuting those responsible for the EIT programme, a step that his administration made clear from the outset it was loathe to do.

“We renew our demand for accountability for those individuals responsible for the CIA torture programme,” said Baher Azmy, the legal director of the Center for Constitutional Rights, which has represented a number of detainees at Guantanamo, including Abu Zubaydah, in U.S. courts. “They should be prosecuted in U.S. courts; and, if our government continues to refuse to hold them accountable, they must be pursued internationally under principles of universal jurisdiction.”

“The report shows the repeated claims that harsh measures were needed to protect Americans are utter fiction,” according to Human Rights Watch executive director Kenneth Roth. “Unless this important truth-telling process leads to prosecution of the officials responsible, torture will remain a ‘policy option’ for future presidents.”

Noting that health professionals, including doctors and psychologists also played a role in the EITs, Physicians for Human Rights (PHR) also called for legal accountability. “For more than a decade, the U.S. government has been lying about its use of torture,” said Donna McKay, PHR’s executive director.

“The report confirms that health professionals used their skills to break the minds and bodies of detainees. Their actions destroyed trust in clinicians, undermined the integrity of their professions, and damaged the United States’ human rights record, which can only be corrected through accountability,” she said.

Jim Lobe’s blog on U.S. foreign policy can be read at Lobelog.com. He can be contacted at ipsnoram@ips.org

Edited by Kitty Stapp

President Barack Obama is expected to issue an executive order on employment discrimination in coming weeks. Credit: Bigstock

By Julia Hotz
WASHINGTON, Jul 9 2014 (IPS)

Civil rights groups across the United States have withdrawn their support from a major legislative proposal that would outlaw workplace discrimination against sexual minorities, warning that recent legal developments could exempt companies on religious grounds.

Five major legal advocacy groups are arguing that the legislation, known as the Employment Non-Discrimination Act (ENDA), does not allow for total workplace protection. Rather, it “provides religiously affiliated organizations – including hospitals, nursing homes and universities – with a blank check to engage in workplace discrimination against LGBT people,” the groups note in a joint statement released Tuesday.“[LGBT people] want to be judged in the same way any other employee is judged: Can we do the work? If we can, we should be free from discriminatory treatment that targets us because of who we are.” -- Kate Kendell

Previously, the groups, which include the American Civil Liberties Union (ACLU) and prominent gay rights organisations, had supported ENDA. But their turnaround comes a week after the U.S. Supreme Court handed down a contentious decision, known as Burwell v. Hobby Lobby, which allows private companies to withhold contraceptive coverage from their employees based on religious preferences.

“What we’ve seen in last week’s Supreme Court decision is a really concerted effort on the part of LGBT opponents to broadly endorse rights to discriminate,” Ian Thompson, a Washington representative of the ACLU, told IPS.

It is “unacceptable”, he noted, to “allow taxpayer-funded discrimination under the clause of religious exemption.”

It is significant to note that this religious exemption clause has always been included within ENDA. However, while the clause has long been a controversial component of the legislation, it is the provocative nature of the Supreme Court’s Hobby Lobby ruling that has encouraged legal advocacy groups to reject ENDA entirely.

Lucas Rivers, a prominent LGBT activist working in the U.S government, told IPS that “strong withdrawal [from ENDA] in the wake of the Hobby Lobby decision is the right move, as the Supreme Court’s decision has opened up doors to employment discrimination, whether it be women and their rights or gays and their rights.”

Yet other organisations have been voicing opposition to ENDA for much longer.

“We have been disturbed by the exemption in ENDA for years, and that concern has been very public,” Kate Kendell of the National Center for Lesbian Rights (NCLR), an advocacy group, told IPS.

Kendell also notes that “[the NCLR] has received unanimous expressions of support from [the LGBT community]. Our community is bright – they get that the provision in ENDA would provide those who oppose our equality a license to discriminate.”

Kendell is careful to note that her organisation’s dispute is not with the legitimacy of religious belief.

“Our nation respects and accommodates a wide variety of religious faiths, a quality we fully embrace. But it is not acceptable for some to use religion as a bludgeon to do harm to others,” she says.

“[LGBT people] want to be judged in the same way any other employee is judged: Can we do the work? If we can, we should be free from discriminatory treatment that targets us because of who we are.”

Kendall says she’s uncertain about the future of ENDA, but expresses confidence that a stronger bill can eventually be drawn up.

“We don’t know what we can get unless we fight for it,” she says. “If we combine forces and lobby for better language, I have no doubt we can get a better bill.”

Urgent need

Still, some prominent groups do remain committed to ENDA.

The Human Rights Campaign, the country’s largest LGBT rights group, stated on Wednesday that it will continue to support ENDA for a “very simple reason … it will guarantee millions of lesbian, gay, bisexual and transgender people in all 50 states explicit, reliable protections from discrimination in the workplace.”

In regards to the bill’s religious exemption clause, the group says it is urging its allies in Congress to recognise that LGBT people “do not have the luxury of waiting for these protections,” while an “urgent need” for equality persists.

Meanwhile, some U.S. legislators have been looking for ways to directly counter the recent Supreme Court ruling in Burwell v. Hobby Lobby. New legislation, announced Wednesday, would seek to expressly forbid private companies from using religious exemption to deny employee contraception “or any other vital health service required by federal law”.

Although the new bill would have no direct impact on workplace discrimination for LGBT individuals, the proposal’s sponsors see it as a significant step towards separating religious preferences from employees’ fundamental rights.

“Particularly in light of the recent Hobby Lobby decision, we must be more careful than ever to ensure that religious liberty, a cherished American value intended to shield individuals from government interference, is not wielded as a sword against employees who may not share their employers’ religious beliefs,” Jerrold Nadler, a member of the U.S. House of Representatives and one of the new bill’s co-sponsors, said Wednesday.

President Barack Obama is expected to issue an executive order on employment discrimination in coming weeks. As such, a similar fight is now brewing of that mandate’s details.

On Tuesday, a group of 100 progressive religious leaders urged the president to exclude any religious exemption from the order. Instead, the groups called on the president to remain committed to the principle of equality under the Constitution.

“If contractors were allowed to selectively follow employment or other laws according to their religious beliefs, we would quickly create an untenable morass of legal disputes,” the letter states.

“Furthermore, if selective exemptions to the executive order were permitted, the people who would suffer most would be the people who always suffer most when discrimination is allowed: the individuals and communities that are already marginalized.”

Some civil rights groups have applauded the letter. The ACLU’s Thompson told IPS that the move was “incredibly important” in the context of the broader equality debate.

“It shows is that religious leaders and faith organisations do not speak with simply one voice on these issues,” he says. “Rather, it shows that there are two sides to the faith community, and it is very helpful for the community’s pro-equality voices to come forward.”

The number of prisoners aged 55 and older nearly quadrupled between 1995 and 2010, marking a 218 percent increase in just 15 years. Credit: Bigstock

By Kanya D'Almeida
NEW YORK, Feb 26 2014 (IPS)

A nurse helps an old man up from his chair. Holding onto her arms, he steps blindly forward, trusting her to lead him to his spot at the lunch table.

One man breathes through a respirator. Another gropes on the nightstand for his dentures. Yet another calls out to a passing doctor that he cannot remember his own name.“I’m 69 years old. Without my cane I can’t stand. What do they expect me to do? Crawl through [the metal detector] on my hands and knees?”

This may sound like a typical day at a home for the elderly but several independent investigations describe such scenes being played out in a much more unlikely place: in prisons across the United States that are now home to thousands of senior citizens.

Due to unhealthy conditions prior to and during prison terms, the National Institute of Corrections (NIC) considers inmates over the age of 50 to be “aging”. By this calculation, there are some 246,600 elderly inmates in state and federal joints, a number that is expected to jump to nearly 400,000 by the year 2030, according to the American Civil Liberties Union (ACLU).

A Human Rights Watch report entitled ‘Old Behind Bars’ says the number of prisoners aged 55 and older nearly quadrupled between 1995 and 2010, marking a 218 percent increase in just 15 years.

With over 16 percent of the national prison population falling into the “aging” category, experts say the U.S. prison system is beginning to resemble a gigantic geriatrics ward, at massive economic and humanitarian costs to  society.

Low risks, high costs

Jamie Fellner, senior advisor of the U.S. Programme at Human Rights Watch, told IPS that “tough on crime” laws of the 1980s and 1990s resulted in a surge of decades-long sentences for crimes that hitherto carried no more than 10 to 15 years of jail time.

“When you have people serving life sentences, they’re going to die in prison, just like people serving 20-, 30- and 40-year sentences are inevitably going to grow old behind bars,” Fellner said.

Other sources, including a recent report by the Pew Center Charitable Trust, suggest that 1970s-era federal laws such as mandatory minimum provisions, “three-strikes-and-you’re-out” legislation, and heavy parole restrictions have also contributed to the spike in graying inmates.

Whatever the reasons, experts are agreed that the cost of imprisoning anyone over the age of 50 is astronomical. An ACLU report entitled ‘At America’s Expense’ found that, while it cost just 34,135 dollars a year to house the average prisoner, elderly inmates incurred almost double the expenses, reaching 69,000 dollars per prisoner annually.

Taxpayers shell out over 16 billion dollars every year to keep aging prisoners behind bars, an amount that exceeds the annual budget of the Department of Energy and even surpasses the Department of Education’s spending on improving elementary and secondary schools.

Such stark figures have pushed advocates to ask two fundamental questions that prison officials and the Justice Department seem reluctant to address: What is the purpose of incarcerating the elderly, and is there an alternative?

According to Laura Whitehorn, a political activist who spent 14 years in prison and now works on a New York-based campaign known as Release Aging People in Prison (RAPP), the extremely low recidivism rate for people over the age of 50 makes a strong case for expediting their release.

For instance, just seven percent of New York state prisoners released at ages 50-64 reoffended, a number that fell to just four percent for inmates over the age of 65. In comparison, the recidivism rate for all age groups hovers at close to 40 percent.

Furthermore, prisoners who have served considerable time could be huge assets to their communities, Whitehorn told IPS.

“The reason the prison advocacy movement is so vibrant now is because most organisations have several to many formerly incarcerated people on their staffs, providing keen ideas for what has to change in order to get us out of the current pit of perpetual punishment and the damage caused by the prison system.

“This is how we came up with the slogan ‘If the Risk is Low, Let Them Go’,” Whitehorn said, adding that, too often, parole boards look at the original sentence rather than a prisoner’s likelihood of reoffending when considering early release.

She recounted the recent case of an 86-year-old man who has served 40 years of a life sentence for a felony committed in the 1970s. Although he suffers from asthma, cancer and a neuromuscular disorder that confines him to a wheelchair, his parole board denied him release last year on the grounds that he was “likely” to reoffend.

Fellner told IPS that she interviewed a prisoner in Mississippi who was so old he had to stick the letters L and R on his shoes to remind him which went on the correct foot. “Do we really consider these people a threat to society?” she asked.

Punitive philosophy

Fellner says the architecture of prisons was developed for the prototypical “tough young criminal”, resulting in institutions that are not easily navigable by infirm or disabled inmates. This inability is sometimes perceived as an unwillingness to cooperate with guards, earning elderly inmates punishments or longer sentences.

A senior citizen at a Pennsylvania state penitentiary told IPS under condition of anonymity that he was forced to spend a week in solitary confinement for refusing to pass through the metal detector without his cane.

“I’m 69 years old,” he said. “Without my cane I can’t stand. What do they expect me to do? Crawl through on my hands and knees?”

Officials at various institutions across the country are now questioning the necessity of keeping geriatrics locked up. Even Burl Cain, the warden at Louisiana State Penitentiary of Angola, recently told the ACLU it was a “shame” that his staff buried more inmates than they released out the front gates.

Of Louisiana’s 5,300 prisoners, 4,000 are serving life without parole, while 1,200 are over the age of 60.

Still, the decision to release elderly inmates is not up to prison officials alone. According to Fellner, the U.S. incarceration system is governed by a highly punitive philosophy that, coupled with strong lobbying by organisations representing the families of victims, makes it tough to effect substantial changes.

“Personal, professional and institutional party politics all make it very difficult to take steps on behalf of someone who has committed a crime,” she said.

“It’s a risk that few politicians are willing to take. Even President Obama only commuted eight citizens this year – there are 200,000 federal inmates and he could only find eight who were eligible for clemency? Despite some important progress, this work is still very much in the margins.”

After more than two years of fighting to prevent their release, the Department of Justice has released numerous documents related to domestic spying on U.S. citizens by the U.S. National Security Agency (NSA) and the previously-secret court opinions that authorised the NSA’s controversial programmes to go forward.

On the evening of Sep. 10, the Justice Department released the documents to the American Civil Liberties Union and the Electronic Frontier Foundation (EFF), which had sued to force their release. Both organisations also have separate litigation against the NSA challenging its domestic spying programmes altogether.“They fought tooth and nail to keep this information from getting out to the public." -- Trevor Timm of EFF

The director of national intelligence, James Clapper, has also published the documents on the DNI website.

At issue is a telephony metadata programme, through which the NSA collects so-called “metadata” regarding every U.S. phonecall. The programme was revealed earlier this year by whistleblower Edward Snowden, who is currently living in Russia under the status of political asylum.

Some of the most significant documents that are part of the release are rulings by the Foreign Intelligence Surveillance Court (FISC) that authorised the telephony metadata programme to move forward over the last several years.

The document release “reveals a few things”, Trevor Timm, a policy analyst for EFF, told IPS.

“First the NSA admitted to the court [FISC] in 2009 it had not a single person in the NSA who was able to adequately understand their surveillance system, which is an extraordinary admission because… the surveillance system exists solely because the court authorised it based on the NSA’s explanations,” he said.

“This shows NSA is in charge of itself. They could get away with anything and not tell the court and there would be no repercussions or way for anybody to find out it,” Timm said.

On Jul. 19, the court ordered the Justice Department to meet with the parties seeking access to the FISC records and other records, to negotiate the voluntary release of as many records as possible.

According to EFF, some records have still not been released, but at least this has narrowed the scope of the records dispute remaining before the courts.

EFF is still waiting on at least one crucial FISC opinion that has yet to be released, specifically regarding the court’s interpretation of the word “relevant”. The word “relevant” appears in Section 215 of the amended Patriot Act and is the NSA’s justification for collecting all U.S. telephony metadata. The NSA argues every citizens’ metadata is relevant to national security.

“We still think we’re going to get that [document]. That will have the most direct effect on the lawsuit [challenging the programme],” Timm said.

In responding to the Jul. 19 court order, the Justice Department said it was able to release more records than it had been previously because of an Aug. 9 directive by President Barack Obama to release “as much information about these programmes as possible”.

However, EFF disputes the notion that the government has released the information voluntarily.

“The presidential directive was not the reason they started releasing information. It’s because the Court ordered them to start releasing information,” Timm said. “Because of the presidential directive, those negotiations turned out better than they normally would have.”

“They fought tooth and nail to keep this information from getting out to the public. They wouldn’t even tell us the number of pages involved. They said if we release even one word of this, it would cause significant and articulable harm to national security,” Timm said.

“Since the Snowden revelations, that’s been… [revealed] as ridiculous. Basically they’re just implementing public laws and explaining the legal standards for which they carry out these laws – this stuff should’ve been public years ago,” Timm said.

In January 2009, the NSA revealed to the court that it had failed to follow its own procedures to minimise the use of citizens’ constitutionally protected private information. The NSA had violated court orders on numerous occasions in which it queried citizens’ information without any suspicion of a connection to terrorism.

The NSA had a list of approximately 18,000 phone numbers that they had been not just collecting but using, but they only had reasonable suspicion of terrorist links for around 2,000 of them.

A Mar. 3, 2009 order, by FISC Judge Reggie B. Walton, obtained by the organisations, describes a federal agency run amok.

“The court at first authorised the collection of bulk metadata in 2006,” Patrick Toomey, attorney and national security fellow at the American Civil Liberties Union’s National Security Project, told IPS.

“In 2009 it describes the restrictions, the very rigorous restrictions that the court imposed on the use of this phone record metadata, and it describes the ways the government had defied or failed to comply with those restrictions.

“The most disturbing point probably that came out of these documents was the extent of the government’s failure to comply with the court order,” Toomey said.

The NSA argues there is no expectation of privacy for metadata under the Fourth Amendment because it is owned by the phone companies.

“They’ve clung to a case from 1970s that allowed law enforcement to collect one phone call for one person,” Timm said, referring to Smith v. Maryland, a 1979 case decided by the Supreme Court.

Collecting the telephony metadata of all U.S. residents is “not exactly what the U.S. Supreme Court intended or knew could happen when that decision was made,” Timm said.

The NSA has also argued that it is not violating citizens’ rights by merely collecting and storing citizens’ telephone metadata because it only uses the information when it needs to.

But the American Civil Liberties Union disagrees with that logic. “It doesn’t matter what the government does with the information. For Fourth Amendment and privacy purposes, the government has taken for itself information that discloses personal details, political, religious, even medical,” Toomey said.

“If the government took your diary and promised not to read it, it would still be a search, and not just because of your property interest in the paper,” Toomey said.

James Bimen Associates of Virginia and Harris Corporation of Florida have contracts with the U.S. Federal Bureau of Investigation (FBI) to hack into computers and phones of surveillance targets, according to Chris Soghoian, principal technologist at the American Civil Liberties Union’s Speech, Privacy and Technology Project.

“Bimen and Harris employees actively hack into target computers for the FBI,” Soghoian told CorpWatch.

James Bimen Associates did not return phone calls asking for comment. Jaime O’Keefe, a spokesman for Harris, and Jennifer Shearer, an FBI spokeswoman, both declined to comment for this story.

However, the FBI has not denied these capabilities. The agency “hires people who have hacking skill, and they purchase tools that are capable of doing these things,” a former official in the FBI’s cyber division told the Wall Street Journal recently. “When you do, it’s because you don’t have any other choice.”

Soghoian verified the information from other sources, after uncovering the information from Freedom of Information Act requests filed by the Electronic Freedom Foundation (EFF) and other publicly available information.

“The government doesn’t have the resources to directly monitor every American or let alone every foreigner but they want to read the communications of every foreigner and they want to collect information on every American,” explains Soghoian. “What do you do when you don’t have the manpower to collect everyone’s communications?”

The answer, he says, is spy software. This is not unprecedented among government agencies. For example, the U.S. Food and Drug Administration (FDA) bought commercial products from a company named SpectorSoft in Florida to track five staff whom they suspected of whistleblowing in 2009.

The software allowed them to capture “screen images from the government laptops of five scientists as they were being used at work or at home, tracked their keystrokes, intercepted their personal e-mails, copied the documents on their personal thumb drives and even followed their messages line by line as they were being drafted,” the New York Times reported last year.

Other companies like Gamma International from Germany and Hacking Team from Italy have also been aggressively marketing their products for purchase by local police officers. A number of national governments like Egypt and Mexico have also reportedly bought such systems that allow them to listen to regular phone and Skype conversations and read email.

But what agencies like the FBI are now worried about is that individuals are “going dark” by using freely available encryption software to prevent their email and phone conversations to be captured by law enforcement agencies.

In order to combat this, Soghoian says the FBI wanted custom designed products, so they turned to a little known internal team named the “Remote Operations Unit” inside the Operational Technology Division, which set up a project called “Going Dark”.

Eric Chuang, the head of the Remote Operations Unit in Quantico, Virginia, who has a doctorate in clinical psychology from Indiana University of Pennsylvania, and a law degree from Temple University in Philadelphia, was put in charge of this task.

Bimen Associates, which has its headquarters in McLean, Virginia, near the headquarters of the Central Intelligence Agency, provided custom designed software tools developed exclusively for the FBI to crack encrypted conversations, says Soghoian. Agency staff and contractors access computers of suspects remotely to install this software to allow them to watch everything that the target types or says.

In February 2008, Bimen Associates hired Amanda Hemmila, a former U.S. Air Force computer technician, who was working on an online undergraduate degree in computer science with Grantham University in Missouri, to help test their new software.

Hemmila’s LinkedIn resume says that she was responsible for “building, testing, deploying, maintaining and tracking software kits and hardware deployed from the Remote Operations Unit Deployment Operations Center” as well as training them in “processing and viewing software and providing End User phone support.” She also helped write policies, guidance and training material to keep the software secret.

After spending a little over a year at Bimen Associates, Hemmila returned to her studies and graduated in 2012. A few months after she left, Mark Muller, who had an undergraduate degree in information technology from George Mason university, went to work for Bimen Associates in Quantico.

Muller says he wrote up the standard operating procedures for the FBI to use proprietary company software “we use to gain access to criminal subject machines in the field.”

He also conducted “pre-deployment meetings with the FBI agents and management to coordinate details of a case and implement an operational plan to track a subject(s).” After the agents completed monitoring of a target, Muller says he archived information on “previous implant(s) installed on subject’s machine, if any, as a knowledge base for the field agents.”

Bimen Associates does not appear to be a big or well known intelligence contractor – the only public contract that the company has been awarded lists zero income – but it is well connected.

Jerry Menchhoff, president of Bimen Associates, has been with the company since it was founded in 1998, after working for Booz Allen Hamilton, a company famous for two other employees – James Clapper and Michael McConnell, both of whom have worked as U.S. director of national intelligence, the top spy job in the country.

(Booz also made the news more recently when Edward Snowden, another former employee, blew the whistle on the surveillance activities of the U.S. National Security Agency).

The other company that supplies tracking software to the FBI is Melbourne, Florida-based Harris Corporation, which has been awarded almost seven million dollars in contracts by the agency since 2001, mostly for radio communication equipment. In 1999 Harris designed the software for the agency’s National Crime Information Centre database that keeps track of criminal histories, fugitives, missing persons, and stolen property.

Harris made it into the news a couple of years ago when the Wall Street Journal revealed that the company was selling a gadget called a “Stingray” to the FBI that allows the agency to track cellphone locations of users without their knowledge.

At the time Sherry Sabol, chief of the Science & Technology Office for the FBI’s Office of General Counsel, refused to provide any background on the subject because she said that information about Stingrays and related technology was “considered Law Enforcement Sensitive, since its public release could harm law enforcement efforts by compromising future use of the equipment.”

However, legal depositions by FBI agents, together with contract data dating back to 2002, confirmed the existence of the Stingray.

The big question is whether or not the FBI obtains warrants before using tracking software. In the case of the Stingray, the agency claimed that it was okay to use such devices without obtaining a warrant, on the grounds that it was like tracking down phone numbers, which the U.S. Supreme Court has ruled is permissible.

But privacy advocates say that tracking the “metadata” of phone and computer communications and the information on it involves a far greater invasion of privacy, and should require a warrant from a judge. (This discussion is still ongoing in the courts, notably after a U.S. court ruled it was okay for the government to track cell phone location data without a warrant).

Soghoian believes there needs to be a public debate on the use and potential misuse of these tools.

“There hasn’t been a (Congressional) debate about the FBI getting into the hacking business,” Soghoian told attendees at DEFCON, an annual hacker convention that took place earlier this month in Las Vegas. “People should understand that local cops are going to be hacking into surveillance targets. Particularly for dragnet searches where they want to do a keyword search or a social network analysis, you need everyone’s communications.”

Pratap Chatterjee is executive director of CorpWatch. This story originally appeared on CorpWatch.org.

The U.S. government argues there is no expectation of privacy for so-called metadata collected by the NSA. Credit: Zofeen Ebrahim/IPS

By Matthew Charles Cardinale
ATLANTA, Georgia, Jul 19 2013 (IPS)

A wide variety of individuals and organisations have filed lawsuits challenging the National Security Agency (NSA) and other federal agencies and officials for conducting a massive, dragnet spying operation on U.S. citizens that was recently confirmed by whistleblower Edward Snowden.

At least three ongoing lawsuits are challenging the NSA’s practice of indiscriminately collecting and storing information related to all phone calls to and from U.S. citizens – referred to as “telephony metadata” by the government – as in violation of several protections guaranteed under the constitution."Metadata is extraordinarily important. You could make a pretty clear map of your political views, your religious affiliations." -- Rebecca Jeschke of the Electronic Frontier Foundation

In addition, at least one lawsuit challenges the NSA’s PRISM programme, which collects a variety of multimedia communications of non-U.S. citizens that are handled by U.S.-based companies such as Facebook, Google, MSN and Yahoo.

Snowden, a former contractor for Booz Allen Hamilton, a computer technology consulting firm that works with the NSA, revealed the NSA programmes in interviews with several publications, including the Guardian newspaper in the United Kingdom, which was the first to begin publishing related documents on Jun. 6.

Snowden has been stuck at an airport terminal in Russia for several weeks and is currently seeking asylum there, as he has said he fears he would be wrongfully prosecuted, tortured, or even killed by the U.S. government.

One of the latest lawsuits to challenge the telephonic spying programme, First Unitarian Church of Los Angeles, et al., v. National Security Agency, et al., was filed on Tuesday.

The plaintiffs “are organisations with members with First Amendment rights to freedom of association,” Rebecca Jeschke, a digital rights analyst with the Electronic Frontier Foundation, told IPS. “CALGUNS [a California-based gun rights advocacy group] is scared people won’t call their hotline.

“We have the First Unitarian Church as a plaintiff. They are concerned people won’t use the services they have, because they’re afraid they’re going to be associated with other services they have. Metadata is extraordinarily important. You could make a pretty clear map of your political views, your religious affiliations,” Jeschke said.

The government admits the telephonic spying programme collects the phone numbers, time and date, and durations of all U.S. phonecalls.

The plaintiffs argue the programme is a violation of the First Amendment because it has a chilling effect on the rights to free speech, assembly, practice of religion, and to petition the government for a redress of grievances; the Fourth Amendment right to be free from unreasonable searches and seizures; the Fifth Amendment right to due process; and various federal statutes related to electronic surveillance.

The federal government has said it collects and stores the metadata for several years – in order to preserve it – but only uses it when it decides there is a national security reason to search the information.

The government also argues there is no expectation of privacy for metadata under the Fourth Amendment because it is owned by the phone companies.

“The Fourth Amendment question is in part going to turn on the scope of search and the reasonableness. Accessing metadata for persons for which some level of suspicion [exists] is one thing, accessing metadata for everybody is a different matter,” Prof. Gerry Weber, an adjunct professor at Emory School of Law specialising in constitutional law, told IPS.

“This is all an evolving technology area, where the Supreme Court has generally been hit or miss. They’re dealing with new electronic technologies as they come,” Weber said.

On Jun. 9, Larry Klayman, the former chairman of Judicial Watch, and two other citizens filed a federal class action lawsuit challenging the telephonic surveillance programme.

On Jun. 11, the American Civil Liberties Union (ACLU) also sued over the telephonic spying programme.

The ACLU had previously sued the NSA in 2008, challenging the constitutionality of the Foreign Intelligence Surveillance Act (FISA) of 1978 Amendments Act of 2008 – which the government has used as part of its secret legal justification for its programme – but their complaint was dismissed by the U.S. Supreme Court in February 2013 on the grounds that the ACLU could not prove it had been monitored by the government.

However, given the recent revelations, and given that the ACLU is a Verizon subscriber, the organisation should now have standing.

Verizon, a phone service provider, was subject to a previously-secret court order dated Apr. 25 by U.S. Foreign Intelligence Surveillance Court Judge Roger Vinson compelling it to turn over customers’ phone records to the NSA.

But advocates are confident that Verizon is not the only participant.

“The director of National Intelligence, James Clapper, acknowledged the Verizon order was part of a large programme from the NSA. It would be surprising if it were only Verizon. That’s [just] the document that’s leaked. We do have intelligence officials saying it was a wide-ranging programme… ‘broad in scope,’” Jeschke said.

Klayman has also sued over the multi-media eavesdropping programme, PRISM.

In addition, the Electronic Privacy Information Center (EPIC) filed a Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari, with the Supreme Court on Jul. 8. The petition asks the court to vacate the Apr. 25 order by the FISA Court that had compelled Verizon to send telephony metadata to the NSA.

In addition to arguments similar to those made in the other cases, the petition also argues the NSA telephonic spying programme violates attorney-client privilege, and is a violation of separation of powers because the NSA is also collecting phone records of Congress and the judiciary.

Meanwhile, in separate, ongoing class action litigation the EFF has had against the NSA since 2008, Jewel v. NSA, a federal judge last week rejected a motion by the federal government to dismiss the suit. That case alleged ongoing, dragnet surveillance by the NSA on millions of U.S. citizens, even years prior to Snowden’s revelations.

“We’ve asked this case to be associated with Jewel v. NSA. There were other leaks. The fact that this programme was ongoing was something that many people were aware of before these leaks came out – it’s just the documents from the FISA Court confirmed it,” Jeschke said.

A whistleblower with AT&T, who had wired a room that he believed was for the government to track U.S. citizens’ phonecalls, came to EFF in 2006.

“He realised he was wiring up Big Brother and came to us,” Jeschke said.

Meanwhile, in a U.S. House Judiciary Committee hearing this week on the NSA spying programmes, members of Congress of both parties told representatives of the NSA and the Federal Bureau of Investigation that they believe the administration has abused the authority granted to it by Congress.

Rep. Jim Sensenbrenner, a powerful Republican from Wisconsin, warned that if the administration did not stop collecting the phone records of U.S. citizens indiscriminately, that a provision, Section 215 of the Patriot Act, known as the business records provision, will expire, and that there will not be enough votes in Congress to renew it.

Guantanamo captives in January 2002. Credit: US Navy/public domain

By Carey L. Biron
WASHINGTON, Jul 9 2013 (IPS)

A federal judge here has taken the unusual step of formally calling on President Barack Obama to halt the forcible feeding of dozens of hunger-striking detainees at the Guantanamo Bay Naval Base in Cuba, warning that the practice appears to contravene international law.

But District Court Judge Gladys Kessler said the court system lacks jurisdiction to stop the force-feedings, which have been ongoing since February and currently affect around 45 inmates twice a day. The case had been brought on an emergency basis on behalf of a Syrian detainee, Abu Wa’el Dhiab, who wanted the force-feedings to be stopped for Ramadan.[Obama] has the power to address the hunger strike – he could end it tomorrow by starting to free prisoners his own government has cleared for release.” -- Cori Crider of Reprieve

During the month of Ramadan, which started Tuesday in much of the world, most practicing Muslims are required to fast during the daytime. Three similar motions by other detainees are still pending.

“It is important to stress that this is an issue now of life and death: people are being force-fed and their lives are on the line,” Jamil Dakwar, director of the Human Rights Program at the American Civil Liberties Union (ACLU), a watchdog and legal advocacy group, told IPS.

“Their continuous indefinite detention is a now matter of urgency and should not left to political wrangling. We do think the president has the authority to end not only the continuous indefinite detention but also the cruel, inhumane force-feeding at Guantanamo.”

On Monday, Judge Kessler noted that the courts are legally barred from considering the conditions of detention of anyone the United States has “properly detained as an enemy combatant”.

Yet “there is an individual who does have the authority to address the issue,” she wrote in her decision. “[T]he President of the United States, as Commander-in-Chief, has the authority – and power – to directly address the issue of force-feeding of the detainees at GuantanamoBay.”

In May, more than a dozen human rights groups wrote to U.S. Defence Secretary Chuck Hagel, requesting that he “order the immediate and permanent cessation of all force-feeding of Guantanamo prisoners … capable of forming a rational judgment as to the consequences of refusing food.”

Force-feeding factory

Judge Kessler also outlined a forceful legal and ethical case for why the president should intervene.

“[The] Petitioner has set out in great detail … what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights, which prohibits torture or cruel, inhumane, and degrading treatment,” Judge Kessler noted, referencing an argument the United Nations and others have made.

“[I]t is perfectly clear … that force-feeding is a painful, humiliating, and degrading process.”

Also on Monday, the U.S. musician and activist Yasiim Bey (formerly known as Mos Def) released a graphic video of himself being force-fed. The clip, produced in conjunction with Reprieve, a legal rights organisation representing Abu Wa’el Dhiab, has since gone viral.

“The judge’s ruling leaves Obama with nowhere to hide,” Cori Crider, Guantanamo attorney and strategic director at Reprieve, said Tuesday. “He has the power to address the hunger strike – he could end it tomorrow by starting to free prisoners his own government has cleared for release.”

On Tuesday, U.S. military personnel at GuantanamoBay confirmed that Muslim detainees required to undergo force-feeding would be fed only when the sun is down, in accordance with religious diktat during Ramadan.

Yet the Pentagon has been careful to state that detainees are receiving such treatment as an “accommodation, not a right”, a reference to the fact that detainees continue to be legally exempt from U.S. protections that take into account religious belief.

“It is really outrageous that Guantanamo commanders are offering this supposedly religious gesture to accommodate Guantanamo detainees’ Ramadan fasting by rearranging the schedule of the force-feedings,” the ACLU’s Dakwar says.

“This adds insult to injury. It’s unacceptable to have the force-feedings in the first place, and therefore it’s beyond the pale to do so after the daily Ramadan fasting.”

Lawyers for Reprieve, meanwhile, have expressed concern that that the night-time force-feeding schedule could pose dangers to detainees’ health.

There will be “just 10 hours and 44 minutes [between sunset and sunrise] for respondents to implement two force-feedings of 45 detainees for up to an hour of feeding time and four hours of total observation time per detainee”, Crider and others warn in a brief filed on Jul. 5.

“[Even] if this can even be achieved, GuantanamoBay will become a veritable force-feeding factory.”

Obama legacy?

According to the U.S. military, 106 of the 166 detainees at Guantanamo are currently considered to be on hunger strike, protesting what they see as their indefinite detention after many have remained imprisoned without charge after a dozen years. Of these, military officials view 45 detainees to be so weak as to necessitate forceful feedings.

Importantly, nearly all of those receiving force-feedings – including Abu Wa’el Dhiab – have been cleared for release, many for several years. But they remain trapped in a legal limbo due to U.S. laws prohibiting the transfer of some detainees, particularly Yemenis, back to their homeland.

Still, many rights groups have increasingly noted that President Obama has powers available that could alleviate key issues in this process.

Indeed, President Obama himself has expressed sentiments similar to Judge Kessler’s, but has repeatedly insinuated that his hands are tied. In May, during a major national security speech in which he suggested that the U.S. government would begin winding down the “war on terror”, including reviving a push to close Guantanamo, the president directly criticised the force-feedings at the detention centre.

“Look at the current situation, where we are force-feeding detainees who are holding a hunger strike,” the president stated on May 23. “Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.”

Yet on Monday, Obama’s Department of Justice refused to halt the Ramadan force-feedings. And on Tuesday, White House spokesperson Jay Carney was noncommittal on Judge Kessler’s verdict, again trying to spread responsibility for the situation to Congress.

“The president made clear in April, and I think it holds true today, that we don’t want these individuals to die, and the action being taken is to prevent that from happening,” Carney said.

“[H]e calls on Congress to work with him to ensure that we can lift the moratorium on detainee transfers to Yemen … But the long-term goal here has been … we need to close this facility because it’s in our [national security] interest to do so.”

The Supreme Court has struck down requirements demanding proof of citizenship during voter registration. Credit: Korean Resource Centre/CC by 2.0

By Cydney Hargis
WASHINGTON, Jun 17 2013 (IPS)

In a landmark decision, the U.S. Supreme Court on Monday struck down voter application requirements demanding proof of citizenship, making it much easier for naturalised citizens to register to vote.

The decision looked at the National Voter Registration Act of 1993, which does not require proof of citizenship, as well as state-level legislation in the western state of Arizona. In a 7-2 decision, the nine Supreme Court justices ruled the state’s voting requirement, which has been in effect for two years, unconstitutional.

“The anti-immigration sentiment [in Arizona] is unconstitutional and people aren’t going to tolerate it,” Petra Falcon, executive director of Promise Arizona, an Arizona-based immigrant advocacy group, told IPS. “We need decision-makers that appreciate the diversity in our communities.”

The 1993 Voter Registration Act, known as the “Motor Voter” law, requires applicants to sign an oath, punishable as perjury, stating that they are U.S. citizens. But it does not require any proof.

“It’s extremely inadequate,” Arizona Attorney General Thomas Horne, who argued the case before the Supreme Court, said of the 1993 legislation in March. “It’s essentially an honour system. It does not do the job.”

Yet others have applauded the Motor Voter law, with civil liberties advocates suggesting that the legislation significantly eased voter registration by issuing a standard registration form nationwide.

Arizona went a step further, however, by requiring all first-time applicants to provide citizenship in the form of a birth certificate, a passport or naturalisation documents, without which the application would be rejected.

Several other states, including Alabama, Georgia, Kansas and Tennessee, have similar requirements, and Monday’s ruling will now directly affect those laws.

“This decision reaffirms the principle that states may not undermine this critical law’s effectiveness by adding burdens not required under federal law,” Laughlin McDonald, director emeritus of the American Civil Liberties Union (ACLU) Voting Rights Project, said Monday.

“The court has taken a vital step in ensuring the ballot remains free, fair and accessible for all citizens,” McDonald added.

Those opposed to Proposition 200, as Arizona’s law was called, highlighted the enormous problem it creates for naturalised citizens. Using a naturalisation document as proof of citizenship requires applicants to register in person as opposed to through the mail, because federal law prohibits the copying of naturalisation documents.

The ACLU estimates that about 13 million people in the United States lack documentation to prove their citizenship. It also estimates that 31,000 Arizona residents who attempted to register during the two years the law has been in effect were denied, 90 percent of them born in the United States. And in two years in a single Arizona county, community voter registration reportedly dropped by 44 percent.

Advocates say Thursday’s ruling offers the opportunity to start healing some of those wounds.

“Justice is on our side,” Falcon told IPS. “We are working towards rebuilding a united Arizona and one Arizona, rather than a divided Arizona.”

Attempts to tighten requirements

Justice Antonin Scalia, who wrote the majority opinion, emphasised that Arizona is allowed to ask the federal government to include the extra documents as a state-specific voter-registration requirement. He also noted that states can take the federal government to court if it refuses to do so.

State officials can also check other information on the voter registration form and refuse to register the applicant if it turns out they are not citizens.

Conservatives’ response to the ruling has already been fierce.

“This hole in federal statutory laws allows non-citizens to register and thereby encourages voter fraud,” Senator Ted Cruz, from Texas, said Monday. Cruz also announced that he would file an amendment to currently pending immigration legislation to allow states to require identification before registering voters.

Monday’s decision comes as voting rights activists eagerly await another race-based voting case before the Supreme Court. This case deals with a section of the Voting Rights Act of 1965 that requires states with a history of discrimination, including Arizona, to receive clearance from the Justice Department before they change their voting laws.

That decision is expected within days.

Arizona has been in the vanguard of a new spate of conservative-led state governments attempting to crack down on illegal immigration. Last year, the Supreme Court also decided that a number of laws in Arizona were unconstitutional.

Yet the most controversial one, a law requiring police officers to check the immigration status of anyone they suspect of being an illegal immigrant, was allowed to stand. Critics say the court’s decision greenlighted racial profiling.

“This is a country of immigrants but also of U.S. values,” said Falcon. “We want to embrace those values rather than run away from them and abuse them.”

The United States has the highest incarceration rate in the world, locking up about 750 people per 100,000 residents. Credit: Bigstock

By Carey L. Biron
WASHINGTON, Jun 14 2013 (IPS)

A Congressional task force started work Friday to review the massive U.S. federal penal code and cull statutes deemed to be overlapping, ineffective or otherwise unnecessary.

The bipartisan House Committee on the Judiciary Over-Criminalisation Task Force will also come up with recommendations for broader reforms of the criminal justice system, the first time such reforms have been discussed in two decades.

In recent years, some efforts to look at ways to tame the penal code and rein in the country’s record-high prison population have been scuppered by political wrangling.

Nonetheless, the task for has received broad support from across the political spectrum, uniting conservatives afraid of government overreach and liberals concerned with the criminalisation of minor offenses and “prison state” tactics.

“The Judiciary Committee is one of the most partisan committees in the Congress, so conservatives and progressives agreeing that it is timely and important to take a look at the criminal justice system – this is a tremendous opportunity,” Jennifer Bellamy, legislative counsel with the Washington legislative office of the American Civil Liberties Union (ACLU), an advocacy group, told IPS.

“This is also the first time that we’ve had this type of re-examination since the 1980s, so it’s a pretty huge undertaking.”

In introductory remarks on Friday, task force members noted that recent decades have seen Congress massively expand the number of federal offences.

“Federal offences increased by about 30 percent between 1980 and 2004, so that we’ve averaged almost one new crime a week over the past few decades,” Representative Bobby Scott said Friday.

“In the 4,500 provisions of the federal criminal code, there are an estimated 300,000 or more federal regulations that can be enforced with criminal penalties. But far too many of these criminal offenscs and regulations lack the adequate criminal intent…requirement to protect the innocent.”

The lack of adequate “intent” requirements for many statutes is blamed for allowing for the criminalisation of innocent people or those who unknowingly break certain laws. Other laws are seen as overly broad, particularly given the relatively recent rise in crimes that carry mandatory minimum punishments."An individual's fate often hinges on not the actual offence but the authority that prosecutes them."
-- Bobby Scott

“The bottom line is that an individual’s fate often hinges on not the actual offence but the authority that prosecutes them…including car-jacking and drug offenses,” Scott continued. “An unforeseen consequence of this over-criminalisation and over-federalisation has been over-incarceration, with an explosion in the U.S. prison population.”

The number of federal prisoners in the United States has increased by almost 800 percent over the past three decades, to almost 220,000 today. According to a February report by the Congressional Research Service, the Congress’s main research wing, that build-up is “historically unprecedented”.

It also means that the United States today has both the largest number of people in prison and the highest rate of incarceration of any country – locking up some 750 people per 100,000 residents, seven times the international average, and inordinately affecting minorities.

Not only have those numbers created a massive budgetary drain, but scholars have suggested that this level of incarceration is dangerous for society at large. According to landmark research by the Pew Centre on the States, a research group, any incarceration rate over 500 per 100,000 actually produces more crime by affecting families and vesting people with criminal records.

Meanwhile, states are locking up African-Americans at an average rate of 2,200 per 100,000. According to a major report on racism that the U.S. State Department sent to the United Nations on Thursday, African-American men remain 6.4 times more likely to be incarcerated than white men.

State models

A significant amount of the work – and potential – for the new task force will simply be in disentangling federal from state statutes. On a broader level, advocates are hoping that the process will result in an effort to redefine the role of the federal government in prosecuting criminal activity.

“The states have historically had responsibility for prosecutions, and it’s only fairly recently that the federal government has become increasingly involved,” the ACLU’s Bellamy said.

“It’s quite difficult politically for policymakers to step back and admit that an issue is already being adequately handled at the state level. But this process is now an opportunity to do that.”

States in recent years have become cauldrons of innovative – and bipartisan – thinking on criminal justice-related reforms. Motivated to a great extent by the fiscal challenges that have cropped up since the economic downturn, state governments have been increasingly tackling policies that have led to high levels of incarceration.

Juvenile detention and drugs sentencing have constituted two particular focuses, and the latter could now form a central part of the task force conversation. Federal drug policy is widely acknowledged as a leading driver for the current high incarceration rates, accounting for roughly half of the federal prisons population.

The last Congressional attempt to address over-criminalisation, in 2011, failed because conservatives worried that it could lead to lighter punishments for marijuana-related offences. Yet some advocates suggest drugs law could today provide fruitful middle ground.

“In recent years, we have seen the left and right coming together to critique excessive federal intervention in the drug war and the often wasteful and unnecessary incarceration,” Marc Mauer, executive director of the Sentencing Project, an advocacy group, told IPS.

“So there should be a lot of potential for common ground around drug policy and mandatory sentencing. Either way, it is a very intriguing development that we have bipartisan interest around these issues, though it remains to be seen what set of issues receives priority.”

The task force is expected to hold open meetings for the next six months, aimed at coming up with a final set of reforms recommendations that would then move through Congress as a normal law.

For the moment, however, some critics note that Congressional lawmaking is proceeding as normal.

“Less than 24 hours before this morning’s… hearing, the House Judiciary Committee heard testimony on a new immigration bill that expands the federal criminal code, creates a crime without including an intent requirement, and establishes new and expands existing mandatory minimum sentencing provisions,” Julie Stewart, president of Families Against Mandatory Minimums, an advocacy group, said Friday.

“If House Judiciary Committee leaders think we have too many federal crime laws, and that these laws are vague and duplicative, then they should stop passing them. They really don’t need expert witnesses to find the cause of over-criminalisation. They need a mirror.”

The National Security Agency has access to data from numerous telephone and internet companies. Credit: Ed Yourdon/CC by 2.0

By George Gao
UNITED NATIONS, Jun 12 2013 (IPS)

Edward Snowden, 29, left behind a comfortable lifestyle in Hawaii as a private contractor for the Pentagon’s National Security Agency (NSA) because he did not want to help create an “architecture for oppression” for fellow citizens.

Snowden blew the whistle on a series of invasive activities that the NSA conducts domestically and internationally under the banner of “national security” – activities that intensified after Al Qaeda attacks against the United States on Sep. 11, 2001.

The NSA has access to a variety of online and telephone metadata banks, including from Verizon Communications, a leading telephone provider. Verizon metadata displays the duration of phone calls, the location of callers, the phone numbers being connected and the dates phone calls were made, according to the Guardian.

The NSA also collects data from AT&T and Sprint Nextel, as well as from credit card transactions, according to the Wall Street Journal.

Through its “Prism” programme, the NSA has direct access to central data from nine major internet companies – Google, Yahoo, Microsoft, Facebook, AOL, Apple, PalTalk, Skype and YouTube – including access to U.S. citizens’ email content and chat logs, reported the Guardian and the Washington Post, the recipients of the documents leaked by Snowden.

The NSA revelations have prompted civil society demands for the U.N. Human Rights Council to address privacy rights in the face of increased state surveillance worldwide. They also underscore the warnings of a Jun. 4 report by U.N. Special Rapporteur Frank La Rue that addressed the increasing use of such surveillance.

“National laws regulating what constitutes the necessary, legitimate and proportional state involvement in communications surveillance are often inadequate or simply do not exist,” said La Rue."The surveillance being undertaken by the NSA...is a breach of international guarantees of freedom of expression."
-- Toby Mendel,

La Rue’s report noted that surveillance technologies are developing much faster than legal frameworks can adapt to regulate them. It cautioned specifically against the U.S.’s Foreign Intelligence Surveillance Act (FISA), which paved the way for NSA activities.

The report argued that unfettered state access to surveillance technologies could compromise human rights to privacy and freedom of expression, as protected by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which the United States has adopted and ratified, respectively.

The report warned too against the use of “an amorphous concept of national security” as a reason to invade people’s rights to privacy and freedom of expression, arguing that such an invasion potentially “threatens the foundations of a democratic society”.

La Rue’s report followed a 2012 global survey on Internet privacy and freedom of expression produced by the United Nations Educational, Scientific and Cultural Organization (UNESCO).

The UNESCO report noted that the right to communicate anonymously strengthens political accountability and encourages people to speak out in the public interest without fear of reprisal.

“The surveillance being undertaken by the NSA, if the [news] reports are correct, is a breach of international guarantees of freedom of expression,” said Toby Mendel, co-author of the UNESCO report and executive director of the Centre for Law and Democracy in Canada.

“The idea that the NSA is tracking vast volumes of communication data, potentially based on little or no evidence of a crime having been committed, will exert a significant chilling effect on all kinds of communications,” he told IPS.

Mendel also noted that the within the European Union, companies are being asked to store communication tracking data for up to two years for potential government use, with some protective barriers.

EU countries expressed initial outrage over the NSA’s activities, according to the Associated Press, with some officials promising to raise the issue of surveillance with the U.S. government. But analysts argue that under the surface, the EU benefits from NSA intelligence without having to do the dirty work itself.

Later this month, the U.N. Human Rights Committee will review the U.S. government’s compliance with the ICCPR and may highlight the U.S.’s surveillance program, according to Allison Frankel at the American Civil Liberties Union’s (ACLU) human rights programme.

Meanwhile, the ACLU and the New York Civil Liberties Union (NYCLU) filed a lawsuit against U.S. President Barack Obama’s administration.

“Those programmes…constitute unreasonable intrusions into American’s private lives that’s protected by the Fourth Amendment [on search and seizure],” said Brett Kaufman, the national security fellow at ACLU’s National Security Project.

What is most disturbing, Kaufman told IPS, is that NSA activities were approved by all three branches of the U.S. government – Congress and the judiciary, as well as the executive – without appropriate input from U.S. citizens.

“In a democracy, the authority for this kind of intrusion into privacy must come from the people themselves,” he said.

Jun. 10 polls from the Pew Research Centre in Washington – conducted after the NSA leaks – shows that U.S. public perception of government surveillance has not changed much since 2001 and 2006, with 56 percent accepting NSA phone monitoring and 45 accepting email intrusions.

Jun. 12 polls from Gallup, however, show a 53 percent public disapproval rating of NSA surveillance activities.

Snowden’s leaked NSA documents may only show the tip of the iceberg of U.S. government surveillance activities.

Ryan Calo, an assistant professor at the University of Washington School of Law in Seattle and an expert on privacy issues, said that limited, public knowledge of NSA surveillance may take a psychological toll on some U.S. citizens.

“I believe the resulting discomfort and fear – the state of oblique awareness without really knowing the details – constitutes a form of privacy harm,” he told IPS.

Calo described a privacy “Catch-22” that is often the case in attempts to hold secretive government agencies accountable. “The courts won’t let you challenge secret surveillance because you cannot confirm it exists,” he said.

Such was the case in Clapper v. Amnesty International when the plaintiffs, including the ACLU, could not prove that they had been monitored by the NSA. But the ACLU, in its status as a Verizon customer, may now have the standing necessary to renew its lawsuit.

Asked by the Guardian about his actions, risks and sacrifices, Snowden said, “You can get up every day. You can go to work. You can collect your large paycheck for relatively little work against the public interest and go to sleep at night after watching your shows.”

“But if you realise that that’s the world you helped create, and it’s going to get worse with the next generation…to extend the capabilities of this sort of architecture of repression, you realise that you might be willing to accept any risk…so long as the public gets to make their own decisions about how that’s applied,” he said.

The U.S. federal prison system’s use of solitary confinement and other forms of “segregated housing” has increased substantially over the past five years, according to new data released by the U.S. Congress’s official independent watchdog.

Inmates are held in solitary confinement for around 23 hours a day, often for months or even years at a time. Credit: Bigstock

Inmates are held in solitary confinement for around 23 hours a day, often for months or even years at a time, the Government Accountability Office (GAO) is warning in a major new report. More damningly, the country’s federal prisons authorities have failed to carry out studies on the effects of this practice.

“[The Bureau of Prisons] has not assessed the impact of segregated housing on institutional safety or the impacts of long-term segregation on inmates,” the report, released Friday, states.

“…[W]ithout an assessment of the impact of segregation on institutional safety or study of the long-term impact of segregated housing on inmates, [the bureau] cannot determine the extent to which segregated housing achieves its stated purpose to protect inmates, staff and the general public.”

From 2008 through February this year, the total number of U.S. inmates in segregated housing rose by around 17 percent, to nearly 12,500 people, the GAO states. During the same period, the number of inmates under the federal Bureau of Prisons increased by just six percent.

Critics say the lack of assessment is potentially dangerous for society at large. After all, a broad body of global research – stretching back centuries – has been resounding in its findings on the deleterious impact of social seclusion on the human psyche.

“For almost all people, sustained social isolation is very damaging, causing extreme suffering that can lead to permanent psychiatric damage,” David Fathi, director of the National Prison Project at the American Civil Liberties Union (ACLU), a watchdog group, told IPS.

“Solitary confinement is clearly very damaging and counter-productive. But we also know that people who have been in solitary confinement have higher recidivism rates than comparable prisoners, particularly those that have been released directly after their solitary confinement.”

There’s an argument to be made, Fathi says, that solitary confinement has direct negative ramifications for the rest of society.

Historically unprecedented

The U.S. Bureau of Prisons operates with relatively little public oversight, with journalists typically not allowed into its most sensitive installations. It is answerable to Congress, however, and the new GAO report, compiled at the request of three members of Congress, thus offers unique insight into some of the functioning of this massive system.

The U.S. prison system is by far the world’s largest. In a January report by the official Congressional Research Service (CRS), the number of people incarcerated in the U.S. was found to have grown by almost 800 percent over the past three decades, to around 219,000.

That’s 716 out of every 100,000 people, indicative of a growth rate the CRS said was “historically unprecedented”.

According to the new GAO report, around seven percent of those inmates are kept in segregated housing, which Fathi says makes the United States an “egregious global outlier in this area – there is no other country of any description that has made long-term solitary confinement such an integral part of its prison system.”

Still, the question of why this practice has become so integrated – which the new report doesn’t delve into – is harder to discern.

“A lot of corrections people think that solitary confinement promotes prison safety, and overall I think it just reflects an unthinking response,” Fathi says.

“Solitary confinement is where prisoners who are problematic or difficult to manage or just plain different tend to end up. In addition, this tends to be a one-way ratchet – it’s relatively easy to get in but difficult to get out.”

Others point to how overstretched the crowded U.S. prison system has become, noting that solitary confinement has become an important if questionable method of dealing with inmates with special needs.

“Problems with overcrowded prisons force officials to be more strategic with how they deal with vulnerable populations, particularly those who are mentally ill – there are just not enough resources,” Nicole Porter, director of advocacy for the Sentencing Project, an advocacy group, told IPS.

“We don’t accept that as good correctional policy, of course, but these are pressures that correctional officers have to deal with. Isolating prisoners becomes one way to address inmates with particular vulnerabilities.”

This approach came in for some high-profile criticism late last week. On Friday, a federal investigation found that a state prison in Pennsylvania was misusing solitary confinement, keeping prisoners with serious mental problems segregated for upwards of 23 hours a day, often for years.

According to Justice Department officials, the practice violated the inmates’ constitutional rights, and a probe has now been expanded to the entire state.

States leading

Each of the GAO’s four recommendations deals with strengthening the Bureau of Prisons’s monitoring and assessment on these issues, including specifically studying the impact of long-term segregation.

Porter says it is unsurprising that the Bureau of Prisons has failed to undertake any long-term studies on the effects of solitary confinement, as “Doing so would open them up to having to actually do something about it.”

According to the GAO, however, the bureau has “agreed with these recommendations and reported it would take actions to address them”. Further, in January prisons officials authorised a study on segregated housing and at the time was also considering “conducting mental health case reviews for inmates held in [segregated housing] for more than 12 continuous months”.

While observers are welcoming these steps, it remains to be seen how independent and rigorous those assessments are.

At the same time, however, significant changes are already taking place in the state-level prison systems, the recent Pennsylvania findings notwithstanding. Three states – Colorado, Maine and Mississippi – have recently cut down dramatically on their use of solitary confinement, and other states are reportedly taking keen notice.

“In the last few years, we’re seeing a sea change at the state level,” the ACLU’s Fathi says.

“This is partly a result of concern about the effects of solitary, but also partly about cost, as solitary confinement costs two to three times as much per prisoner even as an ordinary maximum security prison. So far, none of these three states have reported any adverse impact on prison safety.”

While the Bureau of Prisons was long seen as a leader and innovator, Fathi says it is now “very much on the wrong side of history” on this issue.

Under CISPA, anybody whose computer became targeted by a virus - meaning most, if not all, computers - would be subject to having their information released. Credit: Danilo Valladares/IPS

By Matthew Charles Cardinale
ATLANTA, Georgia, Apr 30 2013 (IPS)

For the second year in a row, activists have successfully defeated a proposal to allow Internet companies to provide customers’ private information to government agencies and each other without risking violation of privacy laws and agreements.

The Cyber Intelligence Sharing and Protection Act (CISPA), HR 624, passed the U.S. House on Apr. 18 in a 288-127 vote. Most Republicans and just under half of Democrats supported the measure."While the bill’s sponsors talk about China hacking in or a terrorist organisation taking down the grid, they’re writing legislation that’s much broader." -- ACLU's Michelle Richardson

CISPA had been referred to the Senate Intelligence Committee, but the Senate was unable to support the House version and had yet to come up with its own proposal.

CISPA is not expected to resurface again as a single comprehensive bill on cybersecurity, but will likely be taken up as multiple pieces of legislation dealing with different aspects of cybersecurity.

President Barack Obama announced his opposition to, and threatened to veto, CISPA, both before the House Committee vote and again after it.

“The Administration still seeks additional improvements and if the bill, as currently crafted, were presented to the President, his senior advisors would recommend that he veto the bill,” the White House wrote in a policy statement dated Apr. 16.

“Importantly, the Committee removed the broad national security exemption, which significantly weakened the restrictions on how this information could be used by the government,” the White House wrote.

According to the American Civil Liberties Union (ACLU), that is one of several improvements – although, in the group’s opinion, still inadequate – that were made to the bill in the House Permanent Select Committee on Intelligence.

As for the purposes for which the information could be released or used, “They had this catch-all, for national security purposes, that wasn’t defined. Based on how the government has defined national security in the past, with the Patriot Act, we thought that was a very big loophole, so they sort of struck that out altogether,” Michelle Richardson, legislative counsel for the ACLU, told IPS.

The White House echoed many of the same concerns raised by such advocacy groups as the ACLU, the Campaign for Liberty, Demand Progress, Democrats.com, a progressive organisation not affiliated with the Democratic Party, and the Electronic Frontier Foundation, as well as the Libertarian Party of the U.S.

Demand Progress sent out a petition to its 1.5 million members and around 200,000 signed a petition opposing CISPA, co-founder David Segal told IPS. Demand Progress is a civil liberties advocacy group co-founded in 2010 by Segal and the late Aaron Swartz.

Swartz is an Internet activist who committed suicide in January 2013 after being threatened with federal prison time for releasing copywrite-protected academic journal articles from the website JSTOR to the public for free.

Demand Progress first began organising in 2010 around the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), two other bills dealing with government regulation of online freedom that were defeated in January 2012.

However, Segal says there has been a crucial difference between the organising efforts around SOPA and PIPA, which had to do with the government’s ability to block certain websites, and CISPA, which has to do with the government’s ability to obtain private information.

“The opposition to SOPA was so severe, we haven’t had to worry for the last year. This one [CISPA], the military-industrial complex, corporations, including web platforms that were against SOPA, are for CISPA, explicitly or tacitly,” Segal said, referring to companies like Amazon.com and Google.

“Those platforms, for the most part, are not opposing CISPA, or are supporting it. It gives them greater immunity from users if they share users’ information with the government,” he said.

The ACLU noted additional improvements were made to the bill in House committee, but still called it “scary”.

“They did say that the government does need to promulgate minimisation procedures, the idea that there would be an overarching set of rules to limit the sharing and use of personal data,” Richardson said.

“It’s also fixed to say as far as private is concerned, if you receive information from another company, you can only use it for cybersecurity purposes. They could have used it for marketing, or sold it to data-brokers,” she said.

Even with the changes, the CISPA proposal was “really scary because cybersecurity truly does affect us all. While the bill’s sponsors talk about China hacking in or a terrorist organisation taking down the grid, they’re writing legislation that’s much broader and encompassing bad acts on the Internet, phishing scams, and malware,” she said.

Anybody whose computer became targeted by a virus – meaning most, if not all, computers – would be subject to having their information released.

“I have started those Viagra [spam] emails, I keep getting through my work account. You could get a Nigerian Prince [scam] email. You’re on Facebook and there’s those viruses that say, ‘Oh my God, you have to watch these videos.’ All of these are everyday, just basic crimes, all of those things also implicated by this bill,” she said.

Richardson said that because the proposed law did not mandate that private companies turn over the information – and instead only provided legal protections for companies that would choose to voluntarily do so – the bill was an attempt to circumvent the Fourth Amendment to the constitution, which protects U.S. citizens from warrantless searches and seizures.

The ACLU further outlines their concerns regarding CISPA in a series of blog posts.

Segal also has raised concerns about the recent bombing in Boston, Massachusetts, being used by some as a backdrop to rush CISPA through Congress with little or no public debate.

“Some number of people who supported the legislation were invoking the bombings. It was up for a vote anyway, it was pre-scheduled. Some people were swayed to vote for it, because of the atmospherics of the bombing and they were called by other people in Congress,” Segal said.