US claims it is illegal to challenge illegal spy statute in court

We are definitely living in Orwellian times, based on the following article from the Electronic Frontier Foundation, which I am reprinting in its entirety (it is licensed by Creative Commons): EFF Challenges National Security Letter Statute in Landmark Lawsuit Since the first national security letter statute was passed in 1986, the FBI has issued hundreds of thousands of such letters seeking private telecommunications and financial records of Americans without any prior approval from courts. Indeed, for the period between 2003 and 2006 alone, almost 200,000 requests for private customer information were sought pursuant to various NSL statutes. Prior to 2011, the constitutionality of this legal authority to investigate the records of Americans without court oversight had been challenged in court -- as far as we know -- exactly one time. EFF is today releasing FBI-redacted briefing from a major new ongoing case in which it is challenging one of the NSL statutes on behalf of a telecommunications company that received an NSL in 2011. Not only does this briefing show that the Department of Justice continues to strongly protect the FBI's NSL authority, it highlights a startlingly aggressive new tactic used by the Department of Justice: suing NSL recipients who challenge the FBI's authority, arguing that court challenges to such authority themselves amount to breaking the law. National security letter statutes -- five in all -- are controversial laws that allow the FBI to easily bypass courts and issue administrative letters on their own authority to telecommunications companies and financial institutions demanding information about their customers. The NSL statutes permit the FBI to permanently gag service providers from revealing the fact that the demand was made, preventing them from notifying either their customers or the public. While the statute has many deficiencies, one of the core constitutional issues (already recognized by one federal appeals court) is that it turns the First Amendment's procedural prior restraint doctrine on its head by allowing the FBI to issue a never-ending prior restraint on its own, then requiring the recipient service provider to undertake a legal challenge. Another fundamental problem with the NSL statutes is that courts are all but written out of any part of the process: the FBI can issue demands for records and gag provisions without court authorization, and recipient telecommunications and financial companies have no way to determine whether and how the government might be overreaching or otherwise abusing its authority. Not surprisingly, given these significant structural barriers, legal challenges are extraordinarily rare. EFF brought its challenge on behalf of its client in May of 2011, raising these and other fundamental due process and First Amendment concerns about the structure of these problematic statutes. In response, the Department of Justice promptly filed a civil complaint against the recipient, alleging that by "stat[ing] its objection to compliance with the provisions of" the NSL by "exercis[ing] its rights under" the NSL statute to challenge the NSL's legality, the recipient was "interfer[ing] with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security." While it ultimately agreed to a stay, temporarily suspending its suit against the recipient, the government has moved to compel disclosure of the subscriber information and to uphold the gag. The petition to set aside the NSL is currently pending before the United States District Court for the Northern District of California. Whether the recipient will be permitted to speak out about its specific experiences -- and whether the FBI will be permitted to issue NSLs, at least in one district -- should soon be known.

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Julian Assange seeks asylum from Ecuador

Julian Assange, facing imminent extradition to Sweden, has decided to seek asylum from Ecuador. Glenn Greenwald explains why this is an utterly rational decision for the creator of Wikileaks:

In 2010, a top official from that country offered Assange residency (though the Ecuadorian President backtracked after controversy ensued). Earlier this month, Assange interviewed that nation’s left-wing President, Rafael Correa, for his television program on RT. Among other things, Correa praised the transparency brought about by WikiLeaks’ release of diplomatic cables as being beneficial for Ecuador (“We have nothing to hide. If anything, the WikiLeaks [releases] have made us stronger”). President Correa also was quite critical of the U.S., explaining the reason he closed the American base in his country this way: “Would you accept a foreign military base in your country? It’s so simple, as I said that at the time, there is no problem in having a U.S. military base in Ecuador but ok, perfect - we can give permission for the intelligence base only if they allow us to install an Ecuadorian base in the United States, a military base. That’s it, no more problem.”
In this same article, Greenwald explains why Assange has no reason to expect fair treatment from Sweden or the United States. See also this post, indicating that the U.S. prosecution of Assange is an attack on democracy itself. The "crime" of Assange is that he has done, only better, what the New York Times does when it wins awards.

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Why is Jerry Sandusky News?

I was sitting in the barber chair this morning, where they had on some national news show that spent the entire time I was there discussing the ongoing trial of (alleged) pedophile Jerry Sandusky. I've been hearing about this on news stations for months. They are spending as long on the nightly news discussing this trial as they do on the collapse of the European economies or the coups in various major oil-producing nations. I am truly puzzled about the coverage. There are likely several pedophiles on trial any given day. Why are they not newsworthy? Is it because he is a coach? Many of them are. Was it because he was a winning coach? I just don't understand why this one (alleged) pedophile is as newsworthy as wars deposing dictators to replace them with democratically elected Islamist regimes. Are both events shaping the course of civilization?

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Ralph Nader on Obama’s drone wars

Ralph Nader asks why we aren't hearing an outcry by lawyers, whose duty it is to be the first responders when a politician shreds the Constitution.

The drones have killed civilians, families with small children, and even allied soldiers in this undeclared war based on secret “facts” and local grudges (getting even). These attacks are justified by secret legal memos claiming that the president, without any Congressional authorization, can without any limitations other than his say-so, target far and wide assassinations of any “suspected terrorist,” including American citizens. The bombings by Mr. Obama, as secret prosecutor, judge, jury and executioner, trample proper constitutional authority, separation of powers, and checks and balances and constitute repeated impeachable offenses. That is, if a pathetic Congress ever decided to uphold its constitutional responsibility, including and beyond Article I, section 8’s war-declaring powers. ... Sadly, the bulk of our profession, as individuals and through their bar associations, has remained quietly on the sidelines. They have turned away from their role as “first-responders” to protect the Constitution from its official violators. [The New York Times recently] reported that a weekly role of the president is to personally select and order a “kill list” of suspected terrorists or militants via drone strikes or other means. The reporters wrote that this personal role of Obama’s is “without precedent in presidential history.” Adversaries are pulling him into more and more countries – Pakistan, Yemen, Somalia and other territories.

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Democracy is attacked when the federal government prosecutes Wikileaks.

As Glenn Greenwald explains, an attack on Wikileaks is an attack on traditional investigative journalism.

A coalition of leading journalists and media outlets in Australia have explained: WikiLeaks “is doing what the media have always done: bringing to light material that governments would prefer to keep secret” and prosecuting them “would be unprecedented in the US, breaching the First Amendment protecting a free press“; they added: “To aggressively attempt to shut WikiLeaks down, to threaten to prosecute those who publish official leaks . . . is a serious threat to democracy.” The Committee to Protect Journalists sent a letter to Obama and Attorney General Eric Holder expressing “deep concern” over “reports about a potential WikiLeaks prosecution,” which “would threaten grave damage to the First Amendment’s protections of free speech and the press.” Although American journalists were reluctant at first to speak out, even they have come around to recognizing what a profound threat an Assange indictment would be to press freedoms, with The Washington Post Editorial Page denouncing any indictment on the ground that it “would criminalize the exchange of information and put at risk responsible media organizations,” and even editors of the Guardian and Keller himself — with whom Assange has feuded — are now vowing to defend Assange if he were to be prosecuted.
To take it a step further, an attack on investigative journalism is an invitation for the government to act unaccountably, in secret, which is absolutely in conflict with the notion that the U.S. government is being run by the citizens. To connect the dots, a federal criminal prosecution of Wikileaks is an attack on democracy. For more see this post, and see this article demonstrating that Wikileaks is doing nothing different than the New York Times when the Times is doing its job well.

Continue ReadingDemocracy is attacked when the federal government prosecutes Wikileaks.