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Forum Post: Indefinite Surveillance: Say Hello to the National Defense Authorization Act of 2014

Posted 10 years ago on June 20, 2013, 5:45 p.m. EST by LeoYo (5909)
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Indefinite Surveillance: Say Hello to the National Defense Authorization Act of 2014

Tuesday, 18 June 2013 19:42 By Stephen Benavides, Truthout | News Analysis

http://truth-out.org/news/item/17070-indefinite-surveillance-say-hello-to-the-national-defense-authorization-act-of-2014

Passed in 1978, the Foreign Intelligence Surveillance Act (FISA) set the groundwork for surveillance, collection, and analysis of intelligence gathered from foreign powers and agents of foreign powers, up to and including any individual residing within the U.S., who were suspected of involvement in potential terrorist activity. On October 26, 2001, a little over a month after 9/11, President George W. Bush signed the USA Patriot Act into law. Two provisions, Sec. 206, permitting government to obtain secret court orders allowing roving wiretaps without requiring identification of the person, organization, or facility to be surveyed, and Sec. 215 authorizing government to access and obtain “any tangible thing” relevant to a terrorist investigation, transformed foreign intelligence into domestic intelligence.

NDAA 2014 builds on the powers granted by both the Patriot Act and FISA by allowing unrestricted analysis and research of captured records pertaining to any organization or individual “now or once hostile to the United States”. Under the Patriot Act, the ability to obtain “any tangible thing” eliminated any expectation of privacy. Under NDAA 2014 Sec. 1061(g)(1), an overly vague definition of captured records enhances government power and guarantees indefinite surveillance.

On May 22, 2013 the Subcommittee on Intelligence, Emerging Threats and Capabilities, one of several Armed Services Committees, met to discuss the National Defense Authorization Act (NDAA) for Fiscal Year 2014. The main subject of the hearing was Sec. 1061, otherwise known as Enhancement of Capacity of the United States Government to Analyze Captured Records. This enhancement provision of NDAA 2014 would effectively create a new intelligence agency, one with the authority to analyze information gained under the Patriot Act, FISA, and known spying programs such as PRISM.

Sec. 1061(a) authorizes the Secretary of Defense to "establish a center to be known as the 'Conflict Records Research Center'" (Center). The main purpose of the center, according to the bill text, is to create a "digital research database," one with the capability to "translate" and facilitate research on "records captured from countries, organizations and individuals, now or once hostile to the United States." The authorization also says the Center will conduct research and analysis to "increase the understanding of factors related to international relations, counterterrorism and conventional and unconventional warfare, and ultimately, enhance national security."

In order to make the Center run, and to accomplish such an incredibly broad scope of "research," the Secretary of Defense needs the Director of National Intelligence (DNI) to cooperate in coordinating "information exchanges important to the leadership of the United States Government." That coordination would require participation of all 16 member agencies and departments of the U.S. Intelligence Community. This would leave James Clapper, the man accused of lying to Congress about the National Security Agency's (NSA) domestic spying program known as PRISM, in de facto direction of another federal surveillance and data analysis agency. And while the Center would be officially directed and overseen by the Secretary of Defense, without unfettered access to secret and top secret information, the Center would become completely ineffective. These information exchanges would most likely include data and records generated by the mass surveillance of everyday people under PRISM, as well as surveillance of those identified as "potential terrorists" or " high value targets" by any one of those 16 intelligence agencies now in operation.

The proposed Center's information exchanges rely on captured government records. Under the NDAA 2014, Sec. 1061(g)(1), a captured record is defined as "a document, audio file, video file, audio file, video file, or other material captured during combat operations from countries, organizations, or individuals, now or once hostile to the United States." But considering that the 2001 Authorization to Use Military Force (AUMF) allows the War on Terror to exist in a perpetual and permanent state of combat operations and that the American public is already existing under an expansive surveillance state, any record may qualify as a "captured record." Thus, any captured document, audio file, video file, or other material could potentially be submitted to this new intelligence agency for research and analysis, all in the name of national security and counterterrorism, as deemed appropriate by the swelling government surveillance class.

The NDAA 2014 enhancement provision extends and consolidates the government's authority to further gather and analyze records and data captured during any national security or terrorist related investigation, not just combat operations. But it does so without creating any explicit restriction against violating an individual's right to privacy, conducting unwarranted searches and seizures, or violating due process for individuals as guaranteed by the Constitution. That's eerily similar to the NDAA 2013 Sec. 1021, which codified the indefinite military detention of American citizens without requiring they be charged with a specific crime or given a trial. Under NDAA 2013, Sec. 1021 allowed the military detention of civilians without a writ of habeas corpus, when a person "was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Under NDAA 2014, anyone is now subject to surveillance, not based on support of al-Qaeda or its associated forces, but based merely upon whether or not an individual is, or once was hostile to the U.S. The question of what constitutes “hostility”, is left completely unanswered.

The new enhancement provision, as well as the previous NDAA's indefinite detention mandate, goes to show how far the legislation has strayed from its stated purpose. According to House Armed Services Committee Chairman Buck McKeon (R-California), the NDAA "authorizes funding for military activities of the Department of Defense, for military construction, for defense activities of the Department of Energy, to prescribe military personnel strengths, and for other purposes."

Instead, the NDAA has become the vehicle for the Executive Branch and Department of Defense to bypass Congress and legislate away any perceived right, liberty, or privilege that conflicts with permanent war and indefinite surveillance.

In 2012, in an attempt to stop that "indefinite detention" provision, Sen. Dianne Feinstein (D-California) introduced an amendment that would have prohibited the government from detaining citizens indefinitely using military force. That proposed law, otherwise known as the Feinstein Amendment easily passed the Senate floor, but was later removed by Senate Armed Services Committee Chairman Carl Levin (D-Michigan). After removal of the only specific language that would guarantee the US government would be prohibited from interpreting the Act illegally, President Obama, also a Democrat, signed NDAA 2013 into law.

If passed in its current state, NDAA 2014 would authorize approximately $552 billion in total defense spending, with $86 billion going directly to war spending. This amount exceeds what is allowed under the automatic austerity measures that went into effect as of March 1, 2013. According to a report released in April 2013 by the Center for Strategic and Budgetary Assessments, if personnel, operation and maintenance costs continue to rise, they may consume the whole of the defense budget by 2024, drying up funds for construction, procuring weapons, or military family housing. Any program created by the Enhancement Provision of NDAA 2014 would necessarily burden an already overwhelmed working class that has been hardest hit by austerity measures.

While the NSA swears that no citizen was spied on under PRISM, the very fact that cell phone metadata and online activity was gathered from millions of individuals guarantees that information was taken illegally from innocent people. We're told that the government is attempting to minimize the amount of information captured from Americans, and that all of that information is being kept in specialized and restricted servers in order to protect our constitutional rights. But that's difficult to believe when the Department of Justice is currently fighting the release of a secret Foreign Intelligence Surveillance Act (FISA) Court opinion that details unconstitutional government surveillance.

If indefinite detention became the primary reason for opposing NDAA 2013, then the enhanced provision authorizing unlimited indefinite surveillance may fuel the most outrage against NDAA 2014. If passed in its current state, NDAA 2014 will further guarantee that people exist not only under indefinite detention and permanent war, but also under indefinite surveillance by its government.

Copyright, Truthout.

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[-] 4 points by LeoYo (5909) 10 years ago

Remember When the Patriot Act Debate Was All About Library Records?

Thursday, 20 June 2013 10:23 By Justin Elliott, ProPublica | Report

http://truth-out.org/news/item/17099-remember-when-the-patriot-act-debate-was-all-about-library-records

In the months following the October 2001, passage of the Patriot Act, there was a heated public debate about the very provision of the law that we now know the government is using to vacuum up phone records of American citizens on a massive scale.

“A chilling intrusion” declared one op-ed in the Baltimore Sun. But the consternation didn’t focus on anything like the mass collection of phone records.

Instead, the debate centered on something else: library records. Salon ran a picture of a virtual Uncle Sam gazing at a startled library patron under the headline, “He knows what you’ve been checking out.” In one of many similar stories, the San Francisco Chronicle warned, “FBI checking out Americans' reading habits.”

The concern stemmed from the Patriot Act’s Section 215, which, in the case of a terrorism investigation, allows the FBI to ask a secret court to order production of “any tangible things” from a third party like a person or business. The law said this could include records, papers, documents, or books.

Civil liberties groups and librarians’ associations, which have long been fiercely protective of reader privacy, quickly raised fears of the FBI using that authority to snoop on circulation records.

The section even became known as the “library provision.”

Yet as the Guardian and others revealed this month, the government has invoked the same provision to collect metadata on phone traffic of the majority of all Americans — a far larger intrusion than anything civil libertarians warned about in their initial response.

“A person might uncharitably think of us as lacking in imagination,” says Lee Tien, a longtime attorney with the Electronic Frontier Foundation.

In a speech before casting the sole dissenting vote in the Senate against the Patriot Act, Sen. Russ Feingold did zero in on Section 215 as “an enormous expansion of authority” with “minimal judicial supervision.”

But even Feingold did not conceive of the provision being used for bulk data collection, merely mentioning the possibility of individualized cases — for example, compelling “a library to release circulation records.”

Civil liberties advocates said in interviews there is a simple reason for the disconnect: In the period immediately after the Patriot Act passed, few if any observers believed Section 215 could authorize any kind of ongoing, large-scale collection of phone data.

They argue that only a radical and incorrect interpretation of the law allows the mass surveillance program the NSA has erected on the foundation of Section 215. The ACLU contends in a lawsuit filed last week that Section 215 does not legitimately authorize the metadata program.

The reason libraries became a focal point, Tien says, is that, “People could see that those kinds of records were very seriously connected to First Amendment activity and the librarians were going to war on it.”

Even before the Patriot Act passed, the American Library Association warned members of Congress that the business records provision under consideration would “eviscerate long-standing state laws and place the confidentiality of all library users at risk.”

“The library groups have a very well-informed and active lobby,” says Elizabeth Goiten, who co-directs the Brennan Center’s Liberty and National Security Program.

So has the government ever used Section 215 to get library records? We don’t know.

Testifying before Congress in March 2011, a Justice Department official said Section 215 “has never been used against a library to obtain circulation records.”

But as with so much else about the Patriot Act, how often or even whether the government has obtained library records is secret. Section 215 imposes a gag order on people or businesses who are compelled to produce records.

The FBI has also used a separate Patriot Act provision, issuing what is known as a national security letter, to seek library patron records. One such episode prompted a successful court challenge by Connecticut librarians in 2005-06.

The government itself didn’t get around to using Section 215 to vacuum up phone metadata until five years after the Patriot Act passed, in 2006, according to a new Washington Post report. The government had been sweeping up metadata since after 9/11 but apparently was doing so without a court order.

USA Today revealed that warrantless surveillance in 2006. Around the same time, according to the Post, the telecoms asked the NSA to get a court order for the data, believing that it would offer them more protection.

On May 24, 2006 two weeks after the USA Today report, the secret Foreign Intelligence Surveillance Court decided to redefine relevant business records under Section 215 “as the entirety of a telephone company’s call database,” according to the Post.

Kate Martin, director of the Center for National Security Studies, says that she has for years worried about bulk collection of metadata, but believed the government might be justifying it using other provisions in the Patriot Act.

“It was a really novel idea on the part of the government that they could use 215 to get bulk phone records,” she says.

As part of the Patriot Act reauthorization of 2006, Congress changed some of the wording in Section 215. But because the government’s interpretation of the law is still secret, it’s not clear whether the changes made any difference in the court’s ultimate authorization of the metadata program.

This piece was reprinted by Truthout with permission or license.

[-] 1 points by Whiterose (6) 10 years ago

I for one am extremely worried. We are breaking new ground on a "Brave New World." what the he'll is going right now. The of the head NSA lies blatantly openly to congress and it's all good in the hood. I mean congress got it's panties in a twist when Martha Stewart lied and held extensive hearings on Roger Clemens but the head of the largest and most scary arm of the federal government lies to congress and no one says a word. This feels different to me, more like a repressive regime where dissent is frowned upon. I feel like I'm watching a movie, but it's actually happening.