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On intolerance for free speech, it’s time for millennials to lead – Washington Examiner

Posted on July 26, 2017 by Danzig

Earlier this month, Americans came together to celebrate the founding of this nation with fireworks and sparklers.

Though the United States is still a relatively young country, it has undergone dramatic changes from what it once was in 1776. Not only have we drastically industrialized and expanded our landscape beyond the original 13 colonies, but our political culture and climate has also undergone its own transformations. Our Founding Fathers wisely prepared us for tackling tyrannical leaders, preventing government overreach, and protecting our personal liberty.

Yet, they failed to avoid the development of political echo chambers.

This is not to say these men had not anticipated the possibility of our country developing a divisive political culture. In fact, John Adams communicated his fears of our democracy splitting into a two-party system, "concerting measures in opposition of each other." He even went as far as to call this the "greatest political evil under our constitution."

It's not hard to see why Adams held such passionate distaste for political parties. Lately, our democracy has amounted to pointing fingers and name calling from the echo chambers we've created. But the effects of these biased bubbles pour into other aspects of life. According to a Rasmussen survey, 40 percent of voters claimed the 2016 election negatively affected a personal relationship with a friend or family member. We've even seen students escalate to violent protests on college campuses against classmates they disagree with.

With the power of technology, we can retreat into our echo chambers on social media platforms. We can delete, block, and report dissent away. It becomes easier and easier to control what messages and ideas we hear behind our screens. This encourages the idea that tolerance is optional. That you can cut off relationships because you disagree with the other person; furthermore, you can segregate people in groups based on said opinions.

Intolerance of differing ideas is not the way to achieve positive social change. Intolerance only begets negative outcomes.

At Young Americans for Liberty, we strive to foster a culture of tolerance and respect. Disagreement is inevitable; how one addresses disagreement and differing perspectives is the key to success. I discourage everyone to stray away from trying to belittle our philosophical opponents on social media, that ultimately create opposing echo chambers and do not yield a positive result.

The message of liberty is a positive one. We are driven to action grounded in the principles of free markets, individual liberty, and limited government.

Every July we host our national convention that draws hundreds of students from multiple political, economic, and social backgrounds to engage in these ideas. Given their varying backgrounds, these students are bound to disagree with one another on the nuances of liberty. We even stage debates between people of different beliefs who nonetheless believe in the same overarching principles. I assure you, the overall theme is siding with more freedom, and less government intervention.

So what's our plan to combat big-government ideology among youths? I can tell you this: When a socialist comes to campus to speak, you won't see YAL members burning the campus to the ground or throwing rocks through windows. Through robust, campus activism and outreach efforts, YAL members are working hard to present the ideas of liberty in a powerful, peaceful manner to win the hearts and minds of the next generation.

Cliff Maloney Jr. is president of Young Americans for Liberty, a non-profit, youth organization based in Arlington, Va., that boasts more than 900 college chapters across the country.

If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.

Claremont McKenna Defends Free Speech Other Universities … – National Review

Posted on July 26, 2017 by Danzig

Imagine if radical campus activists had to face the consequences of their actions. Imagine if they could no longer suppress and shut down speakers with impunity. Imagine if a college administrator grew a backbone and defended his institution from the barbarians at the gates.

Were not there yet. But Claremont McKenna College, a prominent liberal-arts school in Southern California, is at least taking action. The school has suspended five students who led attempts to shut down a college-sponsored lecture by Heather Mac Donald, the pro-police conservative commentator, in April. Three will be suspended for a full year, while two will be suspended for a semester. Two more will be placed on conduct probation.

The students, along with many others from the Claremont colleges and outside the university, blockaded the lecture hall where Mac Donald was set to speak, forcing the event to be moved and livestreamed from a secret location. In a statement, Claremont McKenna explained that the blockade breached institutional values of freedom of expression and assembly and deprived many of the opportunity to gather, hear the speaker, and engage with questions and comments.

Claremont McKenna should be applauded, first for inviting Mac Donald to speak, and second for taking a stand in defense of the idea of the university. It could have taken the easy way out, slapping all the protest leaders on the wrists with a mandatory course or probation to put an end to the story. Thats what Middlebury College did when its students shut down an event featuring Charles Murray, the libertarian social scientist, and in the process assaulted Professor Allison Stranger, who ended up with a concussion.

In fact, nobody ever seems to get punished for preventing the free exchange of ideas on a college campus. Unwilling to anger student radicals and their defenders in the media, college administrators routinely back down. They appease the crocodile, hoping that he will be grateful for the schools leniency and perhaps eat it last.

But appeasement has not worked. All across the country, student activists have become emboldened, trusting that they can do whatever they want, so long as they claim the moral high ground. After all, they only have to label a conservative as a white supremacist and they are free to take over campus and suppress her views. Their schools are too weak and fearful to stop them.

This is a sick state of affairs that should not continue. Claremont McKenna has shown that it is possible to take a stand. There is no reason why schools cannot suspend students who shut down campus speeches. Repeat offenders should be expelled. Anyone who participates in a violent protest should also be expelled. All schools should join Claremont McKenna in endorsing the University of Chicagos Principles of Free Expression, which declare that the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

If, after that, a few radicals still seek to break the rules, let them suffer the consequences of satisfying their confused consciences. The rest of the student body the ones who dont want to spend the year back home with their parents will get the message: You can speak and protest all you want, but you cannot prevent someone else from speaking.

If conservative protesters force a Marxist student organization to cancel its speaker event, they should also be suspended. This is about more than protecting conservative speakers or viewpoint diversity. It is not even best framed as a matter of free speech. It is, quite simply, about repelling a growing assault on the idea of the university. In silencing lecturers and suppressing ideas, the students behind this assault place free inquiry within ever-more-circumscribed boundaries, necessarily perverting the pursuit of the truth that has always been academias sacred mission. If criticism of Black Lives Matter is out of bounds, for example, then what will separate the academy from the public square? Only the lack of personal responsibility.

Allan Bloom, that great defender of the university, explained its mission far better than I can:

The question that every young person asks, Who am I?, the powerful urge to follow the Delphic command, Know thyself, which is born in each of us, means in the first place What is man? And in our chronic lack of certainty, this comes down to knowing the alternative answers and thinking about them. Liberal education provides access to these alternatives, many of which go against the grain of our nature or our times. The liberally educated person is one who is able to resist the easy and preferred answers, not because he is obstinate but because he knows others worthy of consideration.

Bloom wrote thatliberal education puts everything at risk and requires students who are able to risk everything. But as he surely knew, it also requires courage on the part of teachers and administrators. Teachers must create a classroom that can bring students into contact with the alternative answers, and administrators must set and enforce rules that sustain teachers and students in their proper purpose.

In suspending students who deliberately shut down a campus speech, Claremont McKenna has stood up in defense of free speech and of itself. Let others follow.

READ MORE: BDS, Hypocrisy, and our Barren Public Sphere Be Very Worried about the Future of Free Expression Anti-Free-Speech Radicals Never Give Up

Elliot Kaufman is an editorial intern at National Review.

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Claremont McKenna Defends Free Speech Other Universities ... - National Review

Why an Effort to Thwart Some Boycotts of Israel Fails the Free-Speech Test – The Atlantic

Posted on July 26, 2017 by Danzig

Like disputes over abortion, the death penalty, and drug prohibition, the conflict between Israel and Palestine divides Americans into polarized camps of mutual distrust. If any consensus is possible on those issues, it is that there is nothing like a consensus, and that the attendant conflict is better handled through politics than violence.

Yet dozens of members of Congress have backed confusingly worded legislation that would impose new restrictions on American citizens who want to participate in boycotts against Israel, if they originate with an international organization like the UN or the EU. The bill thus seems to risk excluding some would-be boycotters from normal politics by criminalizing some expressions of dissent as a serious felony.

One neednt favor Boycott, Divest, Sanctions, the most prominent boycott campaign targeting Israel, to believe that criminalizing boycotts is deeply illiberal.

Say that BDS is the best path to securing equitable peace in the Middle East. Or say that targeting Israel for a boycott, alone among countries that abuse human rights, is inconsistent, wrongheaded, and unlikely to help Palestinians. The merits dont matter here. Americans have a right to adopt even mistaken positions, to engage in even ill-advised activism, and to stop dealing with even laudable entities.

Just how bad the new proposal is depends on how its least-clear language is interpreted. Domestically conceived boycotts of Israel would definitely remain legal.

But according to the ACLU, the law would punish individuals for no reason other than their political beliefs by expanding the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, which prohibit U.S. persons from complying with a foreign governments request to boycott a country friendly to the U.S.

The ACLU analysis argues that:

the bill would amend those laws to bar U.S. persons from supporting boycotts against Israel, including its settlements in the Palestinian Occupied Territories, conducted by international governmental organizations, such as the United Nations and the European Union. It would also broaden the law to include penalties for simply requesting information about such boycotts. Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison. We take no position for or against the effort to boycott Israel or any foreign country. However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.

At National Review, Noah Daponte-Smith mostly agreed. This proposed legislation is indeed unconstitutional and unconscionable, an abridgment of the right to free speech, which is quasi-sacred in American life and enshrined in the founding document of our government, he complained. The senators who currently support it should be, quite frankly, ashamed of themselves, he added. They have lost sight of one of the founding principles of American government, allowing it to be overshadowed by the spectral world of the IsraeliPalestinian dispute.

Other analysts took issue with the ACLUs reading.

Haaretz reports that two of the bills original bipartisan co-sponsors, Senator Ben Cardin and Representative Rob Portman, insist its critics are overstating what it actually forbids:

They wrote that the bills critics misunderstood its language and that despite the ACLUs warnings, no U.S. citizen will face legal penalties for supporting a boycott of Israel under the new legislation. The two congressman explained in their letter that the most controversial part of the bill the one detailing the criminal penalties for participating in boycotts of Israel was in fact an expansion of a law, enacted in 1977, prohibiting U.S. companies from taking part in state-led boycotts of Israel.

That bill was adopted in order to counter the Arab boycott of Israel. The new bill adds a new component to it, stipulating that the penalties for participating in a state-led boycott of Israel will also extend to participation in boycotts led by international governmental organizations such as the United Nations and the European Union.

The newspaper added, Not all of the bills critics are convinced. The language is confusing and doesnt clearly state what Cardin and Portman wrote in their letter, one Democratic staffer told Haaretz, adding that it wouldnt surprise me if a large number of Democrats will ask to amend this, making it much more clear that citizens expressing support for boycotts will not be punished for their political opinion.

The bill strikes me as constitutionally suspect even if Cardin and Portman are correct that only companies, not individuals, will be targeted for participating in some boycotts. If a U.S. citizen owns a chain of Mediterranean restaurants, or a plastic-widget factory, or a freight-forwarding service, and declines to do company business with a foreign country, in support of a UN-led boycott against what she regards as human-rights abuses there, it would be an outrage to punish her as a felon.

Another analysis worth considering, The US anti-BDS bill may be bad, but not as bad as some critics say by David Schraub at Jewish Telegraphic Agency, argues that although the ACLU is mistaken in some of the concerns that it expresses, the bill nevertheless poses a significant risk of chilling speech because whether or not Israel boycotters are doing so because they personally find the nation terrible versus because they wish to support a U.N. declaration that Israel is terrible will often be quite blurry. In any event, its not clear why that should be legally dispositive.

He concludes, laws can be bad without being apocalyptic and inadvisable without being unconstitutional. Discussions of Israel/Palestine, in particular, suffer from a marked propensity from people on all sides to abandon care and perspective This bill does not do the more outrageous things it stands accused of. That does not mean it is well-drafted, necessary or worth the tempest it is stirring up.

See the article here:

Why an Effort to Thwart Some Boycotts of Israel Fails the Free-Speech Test - The Atlantic

How Does a Chinese Sex Expert Become a Free Speech Advocate? – The Diplomat

Posted on July 26, 2017 by Danzig

Under Chinas increasingly harsh control on information, a Chinese female sexologist called on Chinese citizens to fight against censorship

By Charlotte Gao for The Diplomat

July 26, 2017

Li Yinhe, 65, Chinas leading sociologist on sex and family as well as an activist for LGBT rights, has become a role model of courage and rationality for many Chinese netizens. Against Chinas increasingly harsh control on information, Li has been constantly calling on all Chinese citizens to fight against censorship with moderate and rational argument.

As The Diplomat reported, the Chinese governments clampdown on internet activities has become increasingly harsh. Particularly in recent months, a large number of online accounts have been deactivated by hidden online censors for unknown reasons. WeChat and Weibo are the two most scrutinized social media platforms.

Faced with such grim atmosphere online, most Chinese intellectuals choose to stay silent. Against the odds, Li surprisingly published a long article on her personal Weibo account on July 9 criticizing Chinas censorship and calling for its abolition.

In her nearly 2000-word article under the title of Why should we completely abolish censorship, Li argued that the censorship of books, newspapers, online contents, films and television programs is against the Chinese Constitution and is one of the most critical problems in todays society.

She continued her reasoning:

Then why are some topics are forbidden from discussion? Its for sure that [the government] must have done something wrong but refuse to admit. However, refusing to admit the truth cant change the historical fact itself. It does not work but makes people see the lack of moral courage

She further contended that freedom of speech is written into the Chinese Constitution. Yet, its the 21st century and Chinese people are still fighting for this right.

Finally, she appealed to all Chinese citizens to resist censorship, exercise freedom of speech, work for the complete abolition of censorship, and safeguard the dignity of the Chinese Constitution.

Within hours, the long and powerful article garnered thousands of thumbs-up and reposts. Unsurprisingly, the popularity also led to the articles removal. Li is now reportedly banned from posting anything on her Weibo account for three months.

However, Li didnt stop her exercise of free speech. Several days later, she published another long article on her WeChat account, commenting on her ban on Weibo. She argued that her ban has just become a new piece of evidence to show Chinas lack of freedom of speech.

Although her new article was also deleted, her constant resistance has moved numerous Chinese netizens. What moved people most is not what she said as it is common sense but her gentle tone, rational reasoning, moderate wording and, most importantly, her courage.

Consequently, many Chinese netizens have been inspired to publish long articles to praise Lis behavior and character on various online platforms, despite the fact that their articles about Li have also been deleted.

Charlotte Gao holds a MA degree in Asian Studies. Her research interests center around East Asian topics. She has worked in the past as a news editor, reporter, and writer for multiple traditional, online, and new media outlets.

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How Does a Chinese Sex Expert Become a Free Speech Advocate? - The Diplomat

The right to be forgotten issue gives Trump a chance to use America First for a good cause: Freedom of speech – American Enterprise Institute

Posted on July 26, 2017 by Danzig

Another round has begun in the battle between Google (and other internet companies) and the European Union over the misbegotten right to be forgotten. Frances supreme administrative court has just bucked the issueup to Europes top court, the European Court of Justice (ECJ). A decision, which will have far-reaching consequences for freedom of speech and the flow of accurate information on the internet, could take up to two years. But well before that, the Trump administration should intervene to make clear that the US will defend Americas leading internet companies and freedom of speech on the internet.

To review briefly, this all began in 2014 when the ECJruled that EU citizens had the right to demand that Google and other service providers expunge information that allegedly was out of date, inflammatory, or no longer relevant (although accurate). ThisforcedGoogle, which accounts for 90 percent of the EU internet search market, to bear the burden in cost and resources of removing links to search results from not only the country from which the request had come but also searches conducted in other EU domains. At this time in 2017, the company hasremovedsome 43 percent of individual privacy takedown requests, equivalent to 800,000 links to digital content.

A pedestrian walks past the Google offices in Cambridge, Massachusetts, U.S., June 27, 2017. REUTERS/Brian Snyder

In September 2015, the French national data protection agency went a step further anddemandedthat offending links be removed fromallsearch results worldwide. Google balked at this extraterritorial demand and subsequently received a $115,000 fine in March 2016. Google then appealed the ruling to Frances supreme administrative court, the Council of State, which last week pushed the whole set of questions back up to the ECJ.

Although it complied with the ECJs original mandate, Google has been steadfast in challenging the rationale behind the right to be forgotten doctrine and now the more outrageous worldwide extraterritorial expansion. Itargued from the outsetthat we believe that no one country should have the authority to control what content someone in a second country can access. . . . If the [French courts] proposed approach were to be embraced as the standard for internet regulation, we would find ourselves in a race to the bottom. In the end, the internet would only be as free as the worlds least-free place.

It is impossible to predict what the ECJ will decide but one ominous precedent illustrates Europes arrogant extraterritorial ambitions. Some years ago, the EU, backed by a tortuous, even ludicrous opinion by the ECJ, attempted to extend its internal carbon tax for airplanes beyond its borders. Thus, Asian airlines including a growing number of Chinese flights would pay the tax for not only miles chalked up over the EU but also the entire flight back and forth from Beijing, Seoul, or Tokyo. The ECJ claimed preposterously that the rules were merely an extension of EU internal regulations. Others, including the US, protested, but China went further and acted. It threatened quietly to shift future airline orders heavily away from Airbus and toward archrival Boeing. The incidentculminated in a humiliating retreatfor Europes top political officials and no further attempt to tax airline emissions beyond EU borders.

It is not to argue here that the US should emulate Beijing with overt direct trade or investment threats. However, two alternate courses of action should be adopted. First, as I argued to no avail during the Obama administration, the Trump administration should intervene actively in the court appeal certainly through a public expression of support for Google and possibly with a friend of the court brief. Down the road, the EU has expressed a strong desire torevive negotiationsfor a Trans-Atlantic Trade and Investment Partnership (TTIP) to link two of the worlds strongest economies and trading powers. The Trump administration should respond affirmatively to such overtures, with the stipulation that the EUs continued demand for extraterritorial internet information removal is a deal breaker.

The bottom line is that the issues involved here clearly transcend Googles business model and competitive position in the EU. As I havewritten previously, At stake is the future of free data flows and the accessibility of accurate, public information through the entire internet.

So how about it, Mr. President? Time to finally use America First! for a good cause: free speech on the internet. It has a good ring to it.

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The right to be forgotten issue gives Trump a chance to use America First for a good cause: Freedom of speech - American Enterprise Institute

Tree Man, Deformities and an Argument for Atheism – Patheos (blog)

Posted on July 26, 2017 by Danzig

If truth be told, oftentimes when lying in bed at night with my better half, well put on some trashy TV whilst I tap away furiously at my keyboard. Some of the TV that we watch isnt of the highest cerebral quality, but is entertaining in its own manner. For example, we might watchEmbarrassing BodiesorBody Bizarre,TV shows that document the abnormal bodies and health issues of otherwise normal people (in the case ofEmbarrassing Bodies), and that document truly amazing and challenging abnormalities in the bodies of some very unlucky people on Earth (Body Bizarre).

This is the sort of thing I mean:

Other such episodes have any other number of staggering natural occurrences:

The thing is, any data in the world, in the universe, needs to be explicable in terms of ones worldview. My worldview is naturalism, and these physical abnormalities are easily explained within such a paradigm. Science works to understand them, and then hopefully cure them (not always with success). In a sense, the Problem of Evil (or why there is so much suffering in the world) is answered by the simple naturalistic mantra of shit happens. But with theists, every instance of suffering must be rationalised away with reference to an OmniGod. If God is all loving, powerful and knowing, then how can people like this exist?

I am not, here, being prejudiced about the physical look or situation of these people in the sense of the judgement of the last sentence of these people shouldnt exist. What I am questuoning is that given Gods fathomless love, how can he stack the cards so much against certain people? Sometimes, such harshness, such terrible hands of cards that are dealt to our fellow humans can be so bad that it causes such people to rise to the challenge and arguably become greater, more worthy people as a result. That said, I guarantee that almost every one of them, to a person, would swap their body for a typical body given half the chance. Would you rather have those warty protrusions or the body you presently have (assuming you dont already have the warty protrusions of Tree Man)?

The point here is that, given the existence of OmniGod, it seems that life is desperately unfair. We could talk about this in any number of contexts: neurological disorders, diseases, poverty, IQ or whatever. The world is full of people who are dealt, in the sheer luck (or lack thereof) of their birth, wildly different hands. How do we explain these really challenging and often pretty terrible bodily scenarios in light of an OmniGod? If these bodies were great, then why do we not all have them? If they are terrible, then why do people have them at all? We can explain them without recourse to any post hoc or ad hoc rationalisation with naturalism, but with theism, we have this perpetual headache.

If these bodytypes are sub-optimal (and you could take this to a much finer detail of differentiating myself from another normal body type that differs only in smaller scaled things, but still presents at least some non-zero degree of unfairness), then God is unfair in stacking the cards in favour of one person against another. Peoples suffering appears to be a thing of random chance, determined by where and how they are born, or some other variable outside of their control.

Unfairness, as previously mentioned, can be instantiated in many different contexts. But here we can take away any ideas of mind (though the mind is affected quite considerably in the sorts of cases above) and look at simple physical differences as instantiating unfairness. We dont need to talk about what sin they may have done, and whatpunishment they may have deserved. These are birth defects, often, dealt out to the unborn.

Simply put, God is unfair, and this is yet another way of showing it.

See the article here:

Tree Man, Deformities and an Argument for Atheism - Patheos (blog)

Arts Center hosts reading from ‘Thank God for Atheists’ Aug. 1 – The Laconia Daily Sun

Posted on July 26, 2017 by Danzig

CENTER SANDWICH In a special presentation, Tuesday, Aug. 1, at 7:30 p.m., The Arts Center at 12 Main in Center Sandwich will feature the Rev. Marshall Davis reading from his new book, "Thank God for Atheists: What Christians Can Learn from the New Atheism." Over the last many years, Davis has published several books and essays on faith, including "A Christian Version of the Tao Te Ching," "Excusing God: A Critique of Christian Solutions to the Problem of Suffering & Evil" and "More Than a Purpose: An Evangelical Response to Rich Warren and the Megachurch Movement." He also writes a blogspot, Spiritual Reflections, Meditations on Culture, Art, Religion and Spirituality. Recently retired as pastor of The Community Church of Sandwich, Davis is a deep and eclectic thinker, who brings his informed perspective to a wide range of topics essential to living an examined life.

Regarding "Thank God for Atheists," Amazon.com reports, "Warning! This book may be dangerous to your faith! This book is not for the faint of heart. This is not a work of Christian apologetics designed to arm the believer with biblical and theological strategies to counter humanist arguments. It is not designed to buttress your Christian faith against attacks from atheists and other unbelievers.

"On the contrary, this book takes the claims of atheists seriously. It listens to the arguments of atheists against the existence of God, and it comes to the conclusion that in a number of areas, atheists are right and Christians are wrong. For that reason it may actually undermine your faith. So please, if you are a Christian, think twice before you read it.

"Drawing upon the writings of the 21st century New Atheists, as well as previous generations of atheists, the author explores the most convincing arguments that atheists make against theism. His conclusion is that the New Atheists have important things to say to todays Christians. He goes so far as to say that atheists are Gods prophets to the Church today, sent by God to purify the Church by proclaiming hard truths that Christians are not willing to hear.

This book examines the weaknesses and vulnerabilities of Christianity as exposed by the New Atheism. It also explores the responses of Christian apologists who oppose the New Atheism. In the last section of the book, Davis reimagines Christianity in the light of reason, evidence, science and historical criticism."

Admission is free, but donations are welcome and support the arts, the Arts Center, and Advice To The Players, Sandwich's Shakespeare Company. Please feel free to bring your copy of "Thank God for Atheists" (or any book of Davis') if you would like him to sign it for you.

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Arts Center hosts reading from 'Thank God for Atheists' Aug. 1 - The Laconia Daily Sun

Salvaging Hubble – New Scientist

Posted on July 26, 2017 by Danzig

The illustrious Hubble Space Telescope will eventually re-enter Earths atmosphere and be destroyed or so I understand. Could it be returned to Earth safely and put in a museum? If so, what would be the cheapest way to do it?

(Continued)

Our apologies to Sam Palasciano whose earlier submission to this question on 3 June contained an error introduced by us Ed

Hubbles primary mirror weighs roughly 1800 pounds or 800 kilograms, not 450 as the article stated. This could be significant if someone wanted to seriously pursue this question.

However, I would much rather someone came up with a way of extending the life of the Hubble telescope in orbit. The replacement Webb Telescope, as I understand it, operates at different wavelengths. Hubble was designed to have a more useful operating window, including both ultraviolet and infrared, an advantage that will be lost when it is closed down.

Sam Palasciano, Oceanside, California, US

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Salvaging Hubble - New Scientist

NATO Deputy Secretary General and US Special Representative Kurt Volker hold talks on Ukraine – NATO HQ (press release)

Posted on July 26, 2017 by Danzig

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NATO Deputy Secretary General and US Special Representative Kurt Volker hold talks on Ukraine - NATO HQ (press release)

Russia to Raise Firepower in South to Neuter NATO Air ‘Threat’ – Newsweek

Posted on July 26, 2017 by Danzig

Russias Defense Ministry has vowed to increaseits firepower in its southern regions near Ukraine and the Black Sea, in response to U.K. jets in Romania.

The Royal Air Force (RAF) currently runs patrols on behalf of NATO ally Romania, with four Typhoon jets deployed near the Romanian port city of Constanta. London made the deployment in April, just as the U.S. deployed two of the worlds most advanced warplanes, the F-22. One of the RAFs jets scrambledon Tuesday to track a group of Russian bombersflying across the Black Sea.

Related: How do the new U.S. sanctions on Russia work, and why is Europe worried?

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The tailing was at such a distance that the Russian Ministry of Defense claimed it did not even see the Typhoon, though Defense Minister Sergei Shoigu announced on Wednesday at a conference of military officials that Russia needed to beef up measures in the region regardless.

Under these circumstances, Russia is forced to take symmetrical measures for neutralizing the emerging threat for national security, conducting actions for strategic containment and raising the battle capabilities of Russias Southern Military District, Shoigu said.

Shoigu did not say what the measures would be but usedthe recentU.S.-lead Sea Breeze drill conducted with Ukraineas a reason why Russia needed to reinforce further. NATO has repeatedly denied its limited multinational reassurance measures are intended to be aggressive towardRussia.

Over the last half a year the Southern Military District received over 600 units of combat equipment, Shoigu said, state news agency Itar-Tass reported. The battle training of the staff and the preparation of the military authority is being perfected constantly.

He indicated that the high rate of exerciseswould continue.

The Black Sea and the Southern Military District is currently one of the crucial areas for Russia, which borderstwo nations on whose territory it has deployed troopsUkraine and Georgia.

Three NATO states sit on an extensive share of the Black Sea coastline. As ties between Russia and the NATO alliance have soured over Crimea, Black Sea waters have seen a handful of tense encounters between Russian and Western personnel.

Among the more spectacular was a near miss between a U.S. aircraft and a Russian jet jumping to escort it, getting within 10 feet for the U.S. jet.

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Russia to Raise Firepower in South to Neuter NATO Air 'Threat' - Newsweek

NATO(-member) in Name Only? – The American Interest

Posted on July 26, 2017 by Danzig

Several developments this week demonstrate the continued deterioration of Turkeys relationships with traditional Western allies. The most shocking of the stories began to unfold when the state-owned Anadolu News Agency disclosed classified information about the whereabouts of soldiers from the United States and Europe who are fighting ISIS. As Al-Monitor noted:

The reportrevealedcrucial information on some of the US bases and on French and American soldiers in the region. The article and a detailed map appeared in AAs English version on July 18. On July 19, the leak spread to international media outlets. The US military told the press that publishing such sensitive informationwas professionally irresponsible.

Although President Recep Tayyip Erdoans chief foreign policy advisor, Ibrahim Kalin, denied any government involvement in the revelations about secret bases, the unwillingness of the president to remove the story from the webpages his ministries control speaks volumes. The Turkish state has indirectly sanctioned the dispersal of highly sensitive information that endangers the lives of American and European soldiers.

U.S. support for the Syrian Kurds remains the proximate reason for this tit for tat undertaken by the Turkish side. But there are more fundamental factors is Erdoans turn against the West. His governments once cavalier interest in pursuing EU membership has turned to outright hostility; he has revived neo-Ottoman foreign policy goals that turn Turkey to the east and the Islamic world; and he has domestically discredited Kemalism as a governing philosophy.

These large trends portend difficulties for the functioning of Europes web of alliances. As Article 10 of the North Atlantic Treaty notes the Parties may by unanimous agreement, invite any other European Stateto accede Turkey will not in the near future play ball on a controversial enlargement. This reality lends credence to President Trumps often crude avowal that NATO has in some important respects become obsolete. Meanwhile a new, assertive, but not very capable power is freelancing around the already fragmented Middle East and the Caucasus. The EU, having failed to bring Turkey into the fold when it was willing, must now learn to live with a hostile and aggressive new power on its fragile southeastern frontier.

Meanwhile, in the latest development of the ongoing saga of acrimony between Germany and Turkey, NATO itself has decided to step in and de-escalate things between its two feuding member states.The current dispute, whichbegana week ago with the arbitrary detention of a German human rights activist in Turkey, has snowballed with astonishing speed.Reutersreports:

The mediation offer by NATO chief Jens Stoltenberg, announcedon Monday, came as Ankara itself sought to limit the economic fallout from thedamaging row with Berlin, dropping a request for Germany to help it investigate hundreds of German companies it said could have links to terrorism.

Readers may need to fight the urge to rub their eyes at that sentence. An argument over a single German detainee has caused a cascade of disputes, with the German Finance Minister Wolfgang Schaublethreatening to curtail investment in Turkey, and Ankara returning the favor bysubmittingto Interpol a list of 700 German companies Turkish authorities supposedly suspect of financing terrorism.Then came the further retaliatory action taken by Turkey with regard to Germanys military. The same Reuters article notes:

Adding to tensions is Turkeys refusal to let German members of parliament visit soldiers stationed at two air bases []

This has already led Germany to move troops involved in the campaign against Islamic State from Turkeys Incirlik base to Jordan. The risk of further decampments has sparked deep concern in NATO and now prompted it to intervene.

Yes, Germany is willing to move its troops out of NATO due to an inter-member political conflict which it cannot resolve. It would prefer to keep them in Jordan, a country which, on the whole, has shown itself to be a much more dependable ally in the fight against ISIS than the mercurial and self-serving Turkey.What more damming signal could there be for a defense alliance in distress than the inability of its members to coperate with each other on mutual defense?

After a few days of these increased tensions, Turkey capitulated in part, caving to economic pressure by retracting its list of terrorism-supporting companies. (It went even further to try to save face, saying the submission of the list to Interpol had arose from a simple communications problem.)

This suggests that Europe may still hold some leverage over Turkey, despite its Presidents growing unpredictability.Whatever Erdoans self-serving geopolitical machinations lead him to do, he cannot change the fact of his countrys economic interdependence with Europe.Yet the days when NATO could command the loyalty of its members, necessitating that they handle disputes with co-parties discreetly, are long past. Its ranks may continue to fill with members in name only.

Excerpt from:

NATO(-member) in Name Only? - The American Interest

RAF Typhoons scrambled to see off two Russian jets racing towards … – The Sun

Posted on July 26, 2017 by Danzig

Fighter jet raced towards Moscow's TU-22 Backfire bombers off the coast of Romania

THE RAF this morning scrambled one of its fighter jets to intercept two Russian bombers in the Black Sea.

A British Typhoon raced towards Moscows TU-22 Backfire bombers as they approached Nato airspace off the coast of Romania.

PA:Press Association

The supersonic Brit jet - capable of reaching speeds of 1,500mph - was based atMihail Kogalniceanu Air Base on the western Black Sea coast.

Russia and Ukraine occupy the northern extreme of the sea.

The jets did not come close enough to see each other and the Russian aircraft departed southwards.

Wing Commander Lewis Cunningham, Officer Commanding 3(F) Squadron said It worked as we would have expected it to.

"We took down the details, ran to the aircraft and I took off within the prescribed timeline.

He added: Its satisfying. We spotted that there was something happening and then very quickly the phone call came and we were running out of the door.

Wing Commander Andrew Coe, Commanding Officer of 135 Expeditionary Air Wing based in Romania, said: This was a routine operation and is no different to what NATO aircraft do in other areas on a regular basis."

Russian and RAF jets have tracked each other several times in recent years - with Vladimir Putin's air force launching several sabre-rattling runs around the UK.

Getty Images

In February, RAF top guns intercepted two nuclear-capable Russian Blackjack bombers as they skirted the west coast of Scotland and Ireland.

On the way they were met by two of Britains supersonic Typhoon jets scrambled from two Scottish bases.

At the time ann RAF spokesperson said:We can confirm that quick reaction alert Typhoon aircraft from RAF Lossiemouth and RAF Coningsby scrambled to monitor two Blackjack bombers while they were in the UK area of interest.

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RAF Typhoons scrambled to see off two Russian jets racing towards ... - The Sun

Macedonia’s New Leaders Set Sights on NATO, EU Membership – Voice of America

Posted on July 26, 2017 by Danzig

Macedonia's defense minister reaffirmed her government's commitment to joining NATO and the European Union, saying in an interview that the nation's new government fully understands that success or failure is in its own hands.

"Nobody will bring it to us," Defense Minister Radmila Sekerinska told VOA's Macedonian service. "We need to work toward it, to be accountable for the progress. And the international community's support will follow."

In office since May 31, the government of Prime Minister Zoran Zaev has placed its highest priority on reforms aimed at preparing Macedonia for integration into the Euro-Atlantic community. European Union leaders have declared their readiness to work with the new government, and the Zaev cabinet has responded with an agenda listing concrete reform priorities.

At the same time, there is a renewed push to resolve a long-running dispute with Greece, which has opposed NATO membership for Macedonia as long as it shares the name of a neighboring Greek province.

Political life has largely stabilized in the former Yugoslav republic since supporters of the previous conservative government stormed the parliament three months ago to try to prevent the transfer of power to Zaev's Social Democratic party.

Sekerinska was brutally attacked in front of news cameras during the incident, but she said in the interview that her government is looking to the future, not the past.

"We have to make up for the time lost during the tenure of the previous leadership. We cannot expect anybody to be more ambitious and more interested in Macedonia becoming a NATO member than Macedonia itself," she said.

Sekerinska listed media freedom, civil society, rule of law and judiciary reforms among the areas in the most urgent need of improvement. "That is a huge task, but we need to show that we are serious about NATO."

Sekerinska said she is looking forward to U.S. Vice President Mike Pence's scheduled visit to the region next week as an opportunity for Macedonia, in a co-host role, to build closer ties with "the most important strategic partner."

"This is a very important sign that the United States, the key player in NATO, considers the Western Balkans a zone they can support and invest in."

Asked whether the new government is concerned about Russian influence in Macedonia, Sekerinska said its priority is to "reach out and build relations with other countries."

"However, our message to them, including to the Russian Federation, is that while we are interested in having close bilateral relations, the strategic decisions will ultimately come from the Macedonian institutions and the citizens of Macedonia," she said.

"Joining NATO and the EU is our goal, based on the broadest consensus in the country, and these questions have been decided, and will be decided, only by the citizens of this country."

As one of the top recruiting centers for the Islamic State group, Macedonia is plagued with a growing risk of terrorism and violent extremism. Sekerinska said the threat is universal and requires intelligence-sharing among the countries.

"Macedonia can certainly contribute in securing the region's stability, but to do that effectively, we need to refocus the institutions designed to fight these threats. In recent years, they were misused for political assignments, to fight the opposition, instead of working on the job they were designed to do," she said.

While acknowledging that will take time, Sekerinska said the new government is determined to become a partner in the fight against today's global threats.

Continue reading here:

Macedonia's New Leaders Set Sights on NATO, EU Membership - Voice of America

Newly declassified memos detail extent of improper Obama-era … – The Hill

Posted on July 26, 2017 by Danzig

The National Security Agency and FBI violated specific civil liberty protections during the Obama administrationby improperly searching and disseminating raw intelligence on Americans or failing to promptly delete unauthorized intercepts, according to newly declassified memos that provide some of the richest detail to date on the spy agencies ability to obey their own rules.

The memos reviewed by The Hill were publicly released on July 11 through Freedom of Information Act litigation by the American Civil Liberties Union.

They detail specific violations that the NSA or FBI disclosed to the Foreign Intelligence Surveillance Court or the Justice Department's national security division during President Obamas tenure between 2009 and 2016. The intelligence community isn't due to report on compliance issues for 2017, the first year under the Trump administration, until next spring.

Quite simply, a compliance program that never finds an incident is not a robust compliance program, said Michael Halbig, theNSAs chief spokesman. The National Security Agency has in place a strong compliance program that identifies incidents, reports them to external overseers, and then develops appropriate solutions to remedy any incidents.

But critics say the memos undercut the intelligence communitys claim that it has robust protections for Americans incidentally intercepted under the program.

Americans should be alarmed that theNSAisvacuuming up their emails and phone calls without a warrant, said Patrick ToomeyPat ToomeyNewly declassified memos detail extent of improper Obama-era NSA spying Overnight Tech: FCC won't fine Colbert over Trump joke | Trump budget slashes science funding | Net neutrality comment period opens Appeals court decision keeps lawsuit against NSA surveillance alive MORE, an ACLU staff attorney in New York who helped pursue the FOIA litigation.TheNSAclaims it has rules to protectour privacy, but it turns out those rules are weak, full of loopholes, andviolated again and again.

Section 702 empowers the NSA to spy on foreign powers and to retain and use certain intercepted data that was incidentally collected on Americans under strict privacy protections. Wrongly collected information is supposed to be immediately destroyed.

The Hill reviewed the new ACLU documents as well as compliance memos released by the NSA inspector general and identified more than 90 incidents where violations specifically cited an impact on Americans. Many incidents involved multiple persons, multiple violations or extended periods of time.

For instance, thegovernment admitted improperly searching the NSAs foreign intercept data on multiple occasions, including one instance in which ananalyst ran the same search query about an American every work day for a period between 2013 and 2014.

There also were several instances in which Americans unmasked names were improperly shared inside the intelligence community without being redacted, a violation of the so-called minimization procedures that Obama loosened in 2011that are supposed to protect Americans' identity from disclosure when they are intercepted without a warrant.Numerous times improperly unmasked information about Americans had to be recalled and purged after the fact, the memos stated.

CIA and FBI received unminimized data from many Section 702-tasked facilities and at times are thus required to conduct similar purges, one report noted.

NSAissued a report which included the name of a United States person whose identity was not foreign intelligence, said one typical incident report from 2015, which said theNSAeventually discovered the error and recalled the information.

Likewise, the FBI disclosed three instances between December 2013 and February 2014 of improper disseminations of U.S. persons identities.

TheNSAalso admitted it was slow in some cases to notify fellow intelligence agencies when it wrongly disseminated information about Americans. The law requires a notificationwithin five days, but some took as long as 131 business days and the average was 19 days, the memos show.

U.S. intelligence officials directly familiar with the violations told The Hill that the memos confirm that the intelligence agencies have routinely policed, fixed and self-disclosed to the nation's intelligence court thousands of minor procedural and more serious privacy infractions that have impacted both Americans and foreigners alike since the warrantless spying program was created by Congress in late 2008.

Alexander Joel, who leads the Office of Civil Liberties, Privacy and Transparency under the director of national intelligence, said the documents chronicle episodes that have been reported to Congress and the Foreign Intelligence Surveillance Court for years in real time and are a tribute to the multiple layers of oversight inside the intelligence community.

We take every compliance incident very seriously and continually strive to improve compliance through our oversight regime and as evidence by our reporting requirements to the FISC and Congress, he told The Hill. That said, we believe that, particularly when compared with the overall level of activity, the compliance incident rate is very low.

The FBI said it believes it has adequate oversight to protect Americans' privacy, while signaling it will be pushing Congress hard this fall to renew the Section 702 law before it expires.

"The FBIs mission is to protect the American people and uphold the Constitution of the United States," the bureau said in a statement to The Hill. "When Congress enacted Section 702, it built in comprehensive oversight and compliance procedures that involve all three branches of government. These procedures are robust and effective in identifying compliance incidents. The documents released on July 11, 2017 clearly show the FBIs extensive efforts to follow the law, and to identify, report, and remedy compliance matters.

"Section 702 is vital to the safety and security of the American people. It is one of the most valuable tools the Intelligence Community has, and therefore, is used with the utmost care by the men and women of the FBI so as to not jeopardize future utility. As such, we continually evaluate our internal policies and procedures to further reduce the number of these compliance matters."

The new documents show that theNSAhas, on occasion, exempted itself from its legal obligation to destroy all domestic communications that were improperly intercepted.

Under the law, theNSAis supposed to destroy any intercept if it determines the data was domestically gathered, meaning someone was intercepted on U.S. soil without a warrant when the agency thought they were still overseas. The NSA, however, has said previously it created destruction waivers to keep such intercepts in certain cases.

The new documents confirm theNSAhas in fact issued such waivers and that it uncovered in 2012 a significant violation in which the waivers were improperly used and the infraction was slow to be reported to the court.

In light of related filings being presented to the Court at the same time this incident was discovered and the significance of the incident, DOJ should have reported this incident under the our immediate notification process, then-Assistant Attorney General Lisa Monaco wrote the FISA court in Aug. 28, 2012, about the episode, according to one memo released through FOIA.

TheNSAdeclined to say how often destruction waivers are given. But Joel, of the Office of the Director of National Intelligence, said the Foreign Intelligence Surveillance Court has supervised such waivers and affirmed they are consistent with the Fourth Amendment of the Constitution and the statutory requirements of Section 702.

Other violations cited in the memos:

In annual and quarterly compliance reports that have been released in recent years, U.S. intelligence agencies have estimated the number of Section 702 violations has averaged between 0.3 percent and 0.6 percent of the total number of taskings. A tasking is an intelligence term that reflects a request to intercept a specific phone number or email address.

The NSA now targets more than 100,000 individuals a year under Section 702 for foreign spying, and some individual targets get multiple taskings, officials said.

The actual number of compliance incidents remains classified but from the publicly available data it is irrefutable that the number is in the thousands since Section 702 was fully implemented by 2009, said a senior U.S. official with direct knowledge, who spoke only on condition of anonymity.

The increasing transparency on Section 702 violations is having an impact on both critics and supporters of a law that is up for renewal in Congress at the end of this year. Of concern are the instances in which Americans data is incidentally collected and then misused.

Retired House Intelligence Committee Chairman Pete Hoekstra, a Republican who strongly supported the NSA warrantless spying program when it started under President George W. Bush, said he now fears it has now become too big and intrusive.

If I were still in Congress today, I might vote with the people today to shut the program down or curtail it, Hoekstra, who has been tapped by Trump to be ambassador to the Netherlands, said in an interview.

One percent or less sounds great, but the truth is 1percent of my credit card charges dont come back wrong every month. And in my mind one percent is pretty sloppy when it can impact Americans privacy.

This story was updated at 10:38 a.m.

Here is the original post:

Newly declassified memos detail extent of improper Obama-era ... - The Hill

Cain: President Trump is reasserting results; Declassified memos reveal Obama admin. NSA privacy violations – Fox News

Posted on July 26, 2017 by Danzig

This is a rush transcript from "Hannity," July 25, 2017. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: This is a "Fox News Alert." And we are broadcasting from the swamp in Washington, D.C. And welcome to "Hannity."

A brand-new bombshell from The Hill's John Solomon reveals the depth of the Obama era NSA spying and civil liberties violations. John Solomon, along with Circa News's Sara Carter -- they will join us tonight on this explosive story.

Also, the president has just landed at Joint Base Andrews. And earlier tonight, he took his message directly to you, the American people. He had a rally in Youngstown, Ohio, where he pushed his agenda and took on his critics. And that is the subject of tonight's very important transitional "Opening Monologue."

All right, during tonight's massive rally in Ohio, President Trump issued an urgent call, pushing Congress to finally get rid of ObamaCare and to replace it with something that actually works for you, the American people. It's time for these guys in the swamp, in the sewer here in D.C. to get to work. Take a look.

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: We're now one step closer to liberating our citizens from this ObamaCare nightmare!

(CHEERS AND APPLAUSE)

TRUMP: And delivering great health care for the American people. We're going to do that, too. The Senate is working not only to repeal ObamaCare but to deliver great health care for the American people. Any senator who votes against repeal and replace is telling America that they are fine with the "Obama care" nightmare! And I predict they'll have a lot of problems.

(END VIDEO CLIP)

HANNITY: And I predict he's right. But repealing and replacing "Obama care" is not the only urgent task on the president's agenda. Now, listen to the president earlier tonight reassuring the American people that building the wall on our southern border is not just an empty campaign promise. Watch this.

(BEGIN VIDEO CLIP)

TRUMP: After spending billion dollars defending other nations' borders, we are finally defending our borders!

(CHEERS AND APPLAUSE)

TRUMP: Don't even think about it. We will build the wall.

(CHEERS AND APPLAUSE)

TRUMP: Don't even think about it.

I watch the media as they say, Well, he just had some fun during the campaign on the wall. That wasn't fun, folks! We're building that wall. And walls do work. And we're going to have great people come into our country, but we're not going to put ourselves through the problems that we've had for so many years!

(END VIDEO CLIP)

HANNITY: Is Congress listening? Now, the president also promised to drive out violent cartel-linked gangs and to put an end finally to sanctuary cities once and for all. Take a listen.

(BEGIN VIDEO CLIP)

TRUMP: The predators and criminal aliens who poison our communities with drugs and prey on innocent young people, these beautiful, beautiful innocent young people, will find no safe haven anywhere in our country. And that is why my administration is launching a nationwide crackdown on sanctuary cities!

(CHEERS AND APPLAUSE)

TRUMP: American cities should be sanctuaries for law-abiding Americans, for people that look up to the law, for people that respect the law, not for criminals and gang members that we want the hell out of our country!

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

HANNITY: Now, the president also spoke about lowering taxes in tonight's speech. Please lower taxes. Please stop burdening us! Watch this.

(BEGIN VIDEO CLIP)

TRUMP: My administration is working every single day to heed and honor the will of the voters. That includes working on one of the biggest tax cuts in American history. And actually, if I get what I want, it will be the single biggest tax cut in American history!

(CHEERS AND APPLAUSE)

TRUMP: We have the highest taxes anywhere in the world, and this will really bring them down to one of the lowest. And we really have no choice. We will have growth. We will have everything that we've dreamed of having. It's time to let Americans keep more of their own money. It's time to bring new companies to our shores and to create a new era of growth, prosperity and wealth!

(END VIDEO CLIP)

HANNITY: What a great idea. Let's get Americans back to work, back in the labor force, and of course, out of poverty and off of food stamps. Republicans, what do you stand for?

Now, the president's rally didn't just include plans for the future. He also touted a long list of accomplishments. Now, despite what the left- wing mainstream establishment media is reporting -- well, the president -- he has been very busy the last six months, working on trying to push through his bold agenda despite pretty much zero help from any Democrats, and frankly, weak Republicans.

And here's the president talking about what he has accomplished so far these last six months.

(BEGIN VIDEO CLIP)

TRUMP: Our 2nd Amendment is very, very sound again. That would have been gonzo. It would have been gone.

We've eliminated burdensome regulations at record speed, and many, many more are coming off. And boy, have we put those coal miners and coal back on the map. You've seen that, huh?

(CHEERS AND APPLAUSE)

TRUMP: We've achieved a historic increase in defense spending to get our troops the support they so richly deserve. We have signed new legislation to hold federal workers accountable for the care they provide to our great, great veterans!

(CHEERS AND APPLAUSE)

TRUMP: To protect American jobs and workers, I withdrew the United States from both the Trans-Pacific Partnership potential disaster...

(CHEERS AND APPLAUSE)

TRUMP: ... and the job-killing Paris climate accord. Believe me.

Unemployment last month hit a 16-year low. Since my election, we've added much more than one million jobs!

(END VIDEO CLIP)

HANNITY: Believe it or not, you're never going to hear that in mainstream media. And what you just heard is only a fraction of what the president has actually accomplished.

Also tonight, in true Trump fashion, the president fought back against his critics, the best part of the speech. Watch this.

(BEGIN VIDEO CLIP)

TRUMP: Sometimes they say, He doesn't act presidential.

(BOOS)

TRUMP: And I say, Hey, look, great schools, smart guy. It's so easy to act presidential, but that's not going to get it done. In fact, I said it's much easier, by the way, to act presidential than what we're doing here tonight! Believe me. And I said...

(CHEERS AND APPLAUSE)

TRUMP: And I said, with the exception of the late, great Abraham Lincoln, I can be more presidential than any president that's ever held this office! That I can tell you.

(END VIDEO CLIP)

HANNITY: Do we really want a president who just acts? Now, tonight, the president sent a very important message that will reverberate across America and into the swamp and sewer that is Washington, D.C., where I am tonight.

And the president's not going to sit idly by and watch Congress fumble his agenda. He's going to take his message again and again directly to you, the American people. It's time to put pressure on lawmakers to finally do their job and get something done.

Here with reaction, author of the book "Putin's Gambit," Fox Business host, our sister network, Lou Dobbs is with us.

You know, every time the president goes directly to the American people, you see the reaction. There is not one iota's difference before the campaign. And every agenda item he has, which helped a lot of these senators and congressmen get elected, is supported by those crowds. What is Washington not getting? What are Republicans not getting?

LOU DOBBS, FOX BUSINESS: Just about everything, as you know, Sean. The president today was -- you know, as you say, this rally today was just like every rally that he carried out as a candidate for president. The love in the room for the president was palpable.

He is watching -- he doesn't need any extra energy, but he's drawing great energy from these people who are his supporters. They are also the people for whom he is working, not K Street, the lobbyists, the billion-dollar donors that expect to have the federal government heel and certainly the leadership of the Republican Party. They're so accustomed to them heeling to their every order and beck and call.

He is frustrating the establishment. That's what we're watching, is a conflict between this president, the status quo, and frankly, the defenders of the status quo, whether they're Republicans or Democrats. And he is winning, winning and winning. And the people in that room in Youngstown, Ohio, all 7,000 of them, know that very well, as do tens of millions of other Americans.

HANNITY: But Lou, if the Republicans don't do their part -- this is a seven-year promise to replace, replace "Obama care." They needed Mike Pence for the motion to proceed today...

DOBBS: Right.

HANNITY: ... which doesn't give me a whole lot of confidence that they're going to get this whole thing done or done in a way that they had promised for seven years. And think I think you got an economic plan so we can get Americans...

DOBBS: Right.

HANNITY: ... out of poverty, off of food stamps...

DOBBS: No, you're right.

HANNITY: ... back to work and get the border built and funded. And I don't think Congress realizes they will pay the price if they don't get the job done.

DOBBS: That is the sub-text here. You're exactly right again, Sean. This is -- this threat that is looming is for every one of those congressmen who are hesitant and hesitating to support this president and his agenda, and particularly the leadership, the speaker and the majority leader of the Senate, Ryan and Mitch McConnell. They had better deliver this time because it will be fundamentally a question of the survival of the Republican Party.

Donald Trump is -- what he was saying in Youngstown, Ohio, in my opinion, in addition to everything else that was so terrific about the economy, about turning this country around, he's serving notice that those are Trump Democrats in Youngstown, Ohio, which he lost by 3 points. But four years earlier, Barack Obama won that county by 27 points!

These are his people. And you heard Gino (ph), the man he brought up on the stage, and the chants for Gino from the crowd because he was talking about how much this president is loved by the forgotten man and woman. And all of those people in Youngstown represent much of the bread basket, where they've lost a third of the population of Youngstown, Ohio, their factories once one of the top steel producing cities in the country. And it's -- it's remarkable the notice that he served. And I guarantee you -- I don't know whether McConnell and Ryan got it, but I can guarantee you Schumer and Pelosi get it, and they're worried to death.

HANNITY: Yes. And by the way, a better way...

DOBBS: Oh, yes.

HANNITY: They -- there's no way for them, and especially after eight years of failure. Lou Dobbs, I know you stayed late for us tonight. As always, thanks you for being with us.

DOBBS: Great to be with you, Sean. Thanks.

HANNITY: And here now with more reaction to the president's rally in Youngstown, Ohio, we have Fox News contributor Herman Cain. One of the things -- I noticed that Chuck Grassley in the Senate is saying, Wait a minute. If outside interference from a foreign country is a big deal -- Russia, Russia, Russia -- OK, we've got evidence of collusion with Ukraine and influence in the election, as well. Also, we have the Uranium One deal. And then I look at House conservatives. They're pushing for a probe of Comey and Clinton and I know others are talking about Loretta Lynch.

The part of me is torn, Herman Cain, Mr. 999, positive ideas -- it's torn because it's not fair what we've been seeing, but the agenda the president talked about, repeal, replace and schools and borders and listing his accomplishments and Gorsuch -- at the end of the day, I suspect if he succeeds, that will push Republicans over the top in 2018 and 2020. I'm torn what to do.

HERMAN CAIN, FOX NEWS CONTRIBUTOR: But many of them don't realize that. Sean, that speech in Ohio reminded me of the three rallies I attended in Georgia, where I helped to introduce this president. He is re-asserting results, results, results. That's why he got the reaction from the crowd that he got. The Democrats are all about resist, resist, resist, and it's not resonating with people.

Hip, hip, hooray that he's taking his message directly to the people because the mainstream media's not going to do it. So he's doing it himself. And I think that helps to re-energize those people that voted for him because of exactly the things he is able to do, even despite the pushback by RINOs, Republicans in name only, and Democrats.

HANNITY: We learned that in spite of, what, 60 to 68 votes, repeal and replace -- Herman, we're on the radio. We were telling our audience those are showboats because if they really wanted to repeal and replace in those votes, they would have used the constitutional authority and the power of the purse, and they never did it. And the one guy that tried to use it, Ted Cruz, was excoriated by the Republican Party. So we knew they were showboats.

But on repeal and replace now, we learned 100 House Republicans had no intention of keeping that promise. And now you see the Senate just for the motion to proceed needing Mike Pence. This does not bode well, in my mind.

CAIN: You're right, Sean. Here's the deal. They thought that the American people were going to have very short memories. That's what they still think. What this president is doing is reminding the American people of what these Republicans promised.

And I got to tell you, last night on your show, you challenged your viewers to do exactly what I challenge my listeners to do, send e-mails, make phone calls and let them know that you are paying attention. That's the only thing that gets their attention. That's what gets results.

And with the president giving the kind of patriotic, pressable (ph) results-oriented speech that he's given today, it reminds people that, Yes, if I send that e-mail, if I make that phone call to my representative or to my senators, it will make a difference. I think this is great for the direction that this president is trying to go.

HANNITY: All right, Herman Cain, always good to see you. We appreciate it.

All right, we got...

CAIN: Thank you.

HANNITY: ... a busy breaking news night tonight here. "Hannity" in D.C. In a mini monologue, we will lay out the scandals Congress and the DOJ should be investigating and we'll get reaction, Monica Crowley, Geraldo Rivera.

And also tonight...

(BEGIN VIDEO CLIP)

TRUMP: I'm here this evening to cut through the fake news filter and to speak straight to the American people!

(END VIDEO CLIP)

HANNITY: President Trump calling out the fake news media at tonight's rally in Ohio. Mercedes Schlapp, Lanny Davis, Larry Elder will join us with reaction.

And tonight, a "Hannity" investigation. An explosive new report by The Hill's John Solomon. It is about the Obama administration's NSA spying and civil liberties violations you need to know about. John Solomon, Sara Carter join us as we continue from the sewer and the swamp that is Washington, D.C.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: Your future is what I'm fighting for each and every day. Here is just a small sample what have we accomplished in just our first six months in office. And I'll say this, and you know, they always like to say, Well, I don't know. But I think that with few exceptions, no president has done anywhere near what we've done in his first six months.

(CHEERS AND APPLAUSE)

TRUMP: Not even close.

Cain: President Trump is reasserting results; Declassified memos reveal Obama admin. NSA privacy violations - Fox News

New Docs Show Obama-Era NSA Spied On Americans Without Warrants – The Daily Caller

Posted on July 26, 2017 by Danzig

TheNSA and the FBI under the Obama administration infringed upon foundational civil liberties manytimes over several years, according to recently declassified documents reviewed by The Daily Caller News Foundation.

The memos which were originally obtained by the American Civil Liberties Union (ACLU) through Freedom of Information Act litigation detail the improprieties, specifically the massive, indiscriminate surveillance of peoples communications. They were first reported on by The Hill.

The NSA intercepted hundreds of thousands of peoples personal information, including email addresses and phone numbers, throughout then-President Barack Obamas tenure. It was ostensibly empowered by Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows federal intelligence agencies to collect data on foreigners without a warrant. Due to the broad powers enumerated in the law and the inherent makeup of surveillance, the electronic communications of law abiding Americans are often picked up as well. Operators of the surveillance are required to immediately destroy any information that isnot part of the intended target, but often fail to do so. They are also officiallyobligated to keep the scope of the interception to a fewpieces of data, not a haphazardamount, and to ensure that a person who is inappropriatelyswept up in a warrant isnt identified.

According to section 3(b)(5) of NSAs Section 702 minimization procedures, computer selection terms used for scanning, such as telephone numbers, key words or phrases, or other discriminators, will be limited to those selection terms reasonably likely to return foreign intelligence information,' reads a formerly top secret NSA quarterly FISA compliance report from March 2015.

NSA reported that on [redacted] 2014, an analyst conducted an overly broad search against data acquired from multiple authorities including Section 702. NSA advises that the analyst realized his error immediately, canceled the query, and deleted the corresponding results, the memo reads, adding that the analyst was once again reminded of the FISA requirements. This specific outlined incident wasjust one of many listedin just one of the many quarterly reports issued by the NSA, signifying the extent of violations.

Several consequential improper disclosures have occurred in recent months, including the unmasking of elected officials like former national security adviser Mike Flynn, subsequently causing morelawmakers to question its validity than before.(RELATED: Will The GOP Remake Surveillance Laws After Trump Leaks?)

Our countrys founders required the government to get a warrant before searching Americans private papers, ACLU Staff Attorney Patrick Toomey told TheDCNF. The same holds true for Americans phone calls, emails, and internet browsing today, whether a person is communicating with a friend around the corner or a family member around the world. The NSA should not be spying on us.

The agency claims that of course some incidental surveillance will occur, and errors only happenless than 1 percent of the time.

Quite simply, a compliance program that never finds an incident is not a robust compliance program, said Michael T. Halbig, the NSAs chief spokesman, according to The Hill. The National Security Agency has in place a strong compliance program that identifies incidents, reports them to external overseers, and then develops appropriate solutions to remedy any incidents.

Stewart Baker, the first assistant secretary for policy at the U.S. Department of Homeland Security under President George W. Bush, told TheDCNF that its difficultto authorize Section 702 without enablingthe collection of Americans communications. He provides a telling example of a hypotheticalemail address like [emailprotected] in whichit doesnt explicitly show if Mahmoud, who may be conversing with nefarious Yemeni nationals, is an American or not.

Baker asserts that if the NSA knew that Mahmoud was an American, it would usually mask' his email address with some label like USPerson No. 1 email address.

Section 702 is an effective program that cant really work if we try to exclude Americans communications, Baker continued, adding that the unmasking provisions could be tightened up and they were effectively loosened as part of the sharing imperative arising from 9/11.

OneNSA analyst, for example, conducted the same search query about a particular American every work day for months.

The NSA announced in April that it stopped the practice of scooping communications American citizens have with foreign surveillance targets. But it is not clear how it will do so if it continues implementing surveillance under Section 702 of FISA, which is set to expire at the end of the year.

The content of our emails and texts contains incredibly personal information about our work, our families, and our most intimate thoughts, Michelle Richardson of the Center for Democracy Technology, a nonprofit, said in a statement provided toTheDCNF. The NSA should never have been vacuuming up all of these communications, many of which involved Americans, without a warrant. While we welcome the voluntary stopping of this practice, its clear that Section 702 must be reformed so that the government cannot collect this information in the future.

Not everyone is interested in reforming the surveillance measure, though. Spearheaded by Sen. Tom Cotton of Arkansas, a large group of Republican senators introduced legislation in Juneto indefinitely extend the statute for national security purposes.

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New Docs Show Obama-Era NSA Spied On Americans Without Warrants - The Daily Caller

NSA Ajit Doval in Beijing amid standoff as China demands Indian troop withdrawal – Hindustan Times

Posted on July 26, 2017 by Danzig

Indias National Security Adviser Ajit Doval arrived in Beijing on Wednesday afternoon for a multilateral security meet but the focus will be on his bilateral interactions with the Chinese leadership against the backdrop of the military standoff near the Sikkim border.

Doval will meet President Xi Jinping with his counterparts from BRICS (Brazil, Russia, India, China, South Africa) countries on Friday. Security officials from BRICS states are meeting to discuss issues such as counter-terrorism and cyber-security in the run-up to the groupings summit to be held in Chinas Xiamen city in September.

But the focus will be on whether Dovals meetings with Chinese officials, including state councillor Yang Jiechi, will help to resolve or at least ease - the tensions in Donglang, where the standoff is now into its second month.

The BRICS-related meetings, including the meeting with Xi, are slated for Friday but Chinese and Indian officials here were tight-lipped about Dovals schedule.

Beijing on Wednesday repeated its precondition for any dialogue with India to resolve the standoff: New Delhi has to withdraw its troops from Donglang, which is under Beijings control but claimed by Thimphu.

Chinese foreign minister Wang Yi has blamed India for the face-off and importantly chose a foreign country, Thailand, to air his strong views on the situation. Wang told reporters in Bangkok this week the problem was very straightforward and even Indian officials publicly said that Chinese soldiers didnt enter the Indian territory.

This meant, he indicated, the Indian side admitted (crossing) into Chinese territory. The resolution of the problem is very simple, he said: Indian troops have to go out.

India has said it acted in coordination with Bhutan to block the construction of a road by Chinese troops at Donglang as it would alter the status quo and have serious implications for national security.

On Monday, Chinas foreign ministry spokesperson Lu Kang indicated Doval is likely to meet Yang in Beijing but ruled out a discussion on the Donglang standoff.

As far as we know, in previous meetings, usually it is arranged for the heads of delegations to hold (bilateral) meetings to exchange views on bilateral relations and other international issues, Lu had said.

He had added: The crux now is Indian border troops illegally stayed on Chinas territory. Once again, we urge India to pull back to the Indian side of the boundary. I want to stress that this is the precondition for any meaningful talks between the two sides.

Dovals visit is part of the build-up for the BRICS Summit to be held in Xiamen city in the first week of September, which will be attended by Prime Minister Narendra Modi.

If the standoff between India and China isnt resolved by then, it will cast a shadow of uncertainty over the summit and might put a question mark on the idea of BRICS.

For now, the multilateral element of the BRICS security summit will be on display this week.

On Friday, the five heads of security delegations from the BRICS states will meet to discuss global governance, counter-terrorism, cyber security, energy security, international and regional hotspots, and national security and development.

Besides Doval and Yang, minister of state security David Mahlobo of South Africa, Minister Sergio Etchegoyen of the Office of Institutional Security of the Presidency of Brazil and Russias Security Council Secretary Nikolai Patrushev will attend the meeting.

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NSA Ajit Doval in Beijing amid standoff as China demands Indian troop withdrawal - Hindustan Times

Fifth Amendment Prohibits Use of Compelled Foreign Testimony in US Criminal Trials – Lexology (registration)

Posted on July 26, 2017 by Danzig

The Second Circuit held in United States v. Allen, an appeal arising from the first U.S. prosecution in connection with the LIBOR manipulation scandal, that it violates a defendants Fifth Amendment privilege against self-incrimination to present an investigating grand or a trial jury with testimony that the defendant was compelled to give to foreign officials, regardless of whether the compelled testimony was presented directly or through another witness.

On July 19, the U.S. Court of Appeals for the Second Circuit vacated the conviction of two former London-based bankers, Anthony Allen and Anthony Conti, who were convicted in October 2015 on multiple counts of bank and wire fraud in connection with a scheme to manipulate the London Interbank Offered Rate (LIBOR). See United States v. Allen, Crim. No. 16-939 (2d Cir. July 19, 2017). Witnesses for the U.S. Department of Justice (DOJ) before both the grand and trial juries had been exposed to inculpatory testimony that the defendants were compelled to give against themselves by the UK government pursuant to UK law, and the Court of Appeals held that using that compelled testimony violated the defendants Fifth Amendment right against self-incrimination. The Second Circuit further held that the DOJ failed to carry its heavy burden under the U.S. Supreme Courts decision in United States v. Kastigar, 406 U.S. 441 (1972), to show that the testimony introduced before the grand and trial juries did not derive from the defendants compelled testimony. Because the prosecution failed to carry its Kastigar burden, and using the compelled testimony was not harmless error, the Second Circuit reversed the convictions and dismissed the indictments.

Alleged LIBOR Manipulation

Allen and Conti worked at Coperatieve Centrale RaiffeisenBoerenleenbank B.A. (Rabobank), a Dutch bank. During the 2000s, Rabobank was one of 16 banks that submitted its borrowing rates for U.S. dollars and Japanese yen on a daily basis to the British Bankers Association (BBA), the entity that calculated the LIBOR. The LIBOR is a series of daily benchmark rates at which banks can borrow funds in various currencies for various time periods. For each currency for which it calculated the LIBOR, the BBA accepted rates the banks submitted, discarded certain high and low submissions, and averaged the remaining submissions. Many financial transactions, including interest rate swaps, are tied to the LIBOR on a particular date, and those transactions are either profitable or not depending on the LIBOR in the relevant currency for the relevant time period on the relevant date, called the fixing date.

Allen and Conti each had, at various times and with varying frequency, responsibility for Rabobanks rate submissions to the BBA. Neither Rabobank nor the UK government had any policies concerning the submission of rates used to derive the LIBOR. Like a number of other banks that submitted their borrowing rates to the BBA, Rabobank was a party to a large number of LIBOR-tied transactions.

The prosecutions evidence at trial, which the Court of Appeals reviewed in detail, showed that the defendants received requests from Rabobank traders who had taken LIBOR-tied positions in transactions that would either make or lose money for the bank depending on the LIBOR. The Court of Appeals wrote, The Governments theory of the case was that these trader requests were dictated by the traders (and thus Rabobanks) interest in having LIBOR be higher or lower on particular dates based on the transactions that the trader had entered or positions they held.

The defendants conceded that it was inappropriate to base Rabobanks LIBOR submissions on rates that would benefit Rabobank, rather than on market-based evidence of the range of reasonable rates that fairly represented the rate at which Rabobank could borrow in dollars or yen for various intervals on that day. The defendants position at trial was that, although they received requests from traders for higher or lower submissions to the BBA, they did not honor those requests.

Financial Conduct Authoritys Investigation and Aborted Prosecution

The UKs Financial Conduct Authority (FCA) worked in parallel with officials from the DOJ to investigate allegations of LIBOR manipulation and to interview individuals, including the defendants, in 2013. It was undisputed in the proceedings before the Court of Appeals that defendants Allen and Conti were compelled, on pain of imprisonment, to testify before the FCA. The FCA offered the defendants direct use immunity for their compelled testimony, but not derivative use immunity, according to the court. In other words, the FCA could not use the defendants statements against them at trial (i.e., no direct use), but could introduce evidence against them that it obtained based on their compelled statements (i.e., derivative use).

In contrast, when the DOJ seeks to compel a witness to testify over the witnesss invocation of his or her Fifth Amendment privilege against self-incrimination, the immunity order that is entered confers both direct and derivative use immunity. To avoid having the DOJs LIBOR investigation tainted by compelled testimony, the DOJ and the FCA interrogated witnesses on different days, with the DOJ interviewing first.

The FCA and the DOJ also investigated a Rabobank employee with rate submission responsibilities, Paul Robson, whom the FCA later charged with criminal conduct for his role in manipulating the LIBOR. As part of its pre-trial process in the UK, the FCA disclosed to Robson the compelled testimony that Allen and Conti had given. The Second Circuit stated that Robson closely reviewed that testimony, annotating it and taking several pages of notes. The FCA later abandoned its prosecution of Robson, and the DOJ picked up where the FCA left off.

In April 2014, a grand jury in the Southern District of New York indicted Robson and two other individuals but not Allen and Conti charging them with wire fraud, among other things. Robson proffered, signed a cooperation agreement, and pled guilty in summer 2014. Although Robson did not testify before the grand jury, information he provided to the DOJ was presented to the grand jury through an FBI agent. The grand jury subsequently indicted Allen and Conti, charging them with wire and bank fraud charges.

Allen and Conti waived extradition and filed a motion under Kastigar to suppress Robsons testimony at trial. The trial court deferred the Kastigar hearing until after trial. Robson testified at trial, and the jury convicted the defendants on all charges.

At the post-trial Kastigar hearing, Robson explained that he had been exposed to the defendants compelled testimony before the FCA. The trial court found, however, that Robsons statement that he had independent knowledge of the facts he presented at trial (and that had been presented to the grand jury through an FBI agent) was an independent source within the meaning of Kastigar.

Court of Appeals Holds Fifth Amendment Self-Incrimination Privilege Applies to Foreign-Compelled Testimony

The Court of Appeals held that the Fifth Amendments privilege against self-incrimination requires that a defendants statement to a foreign government official be voluntary before it can be admitted in a U.S. trial. The Second Circuit emphasized repeatedly that the self-incrimination privilege is a personal trial right that is absolute. As a result, in the courts opinion, the self-incrimination privilege applies to bar the admission in U.S. trials of a defendants compelled statements to a foreign government official even when, as in this case, the foreign government official acted pursuant to the foreign nations legal process in obtaining those statements. In short, if a sovereign power compelled the defendant to testify under the cruel trilemma of self-accusation, perjury or contempt, the statement cannot be used in a U.S. court to indict the defendant or obtain a conviction. The Court of Appeals was unwilling to countenance the DOJs position in the case, which would remove all impediment to introducing the defendants foreign compelled testimony, as in, the court wrote, Your honor, we offer Government Exhibit 1, the defendants compelled testimony.

The Second Circuit considered misplaced the U.S. governments concern that a foreign government might attempt to sabotage U.S. prosecutions by compelling and then broadcasting a defendants testimony to potential witnesses. The court quoted a speech by former Assistant Attorney General for the Criminal Division Leslie Caldwell, who spoke of the DOJs efforts to coordinate with its counterparts abroad in investigating and prosecuting crime. The court noted that the DOJ was aware of its burden to avoid using compelled testimony as reflected by the interview scheduling system used in this case. The court also left open the possibility that there may be a different result if the foreign power appeared to be attempting to undermine a U.S. prosecution, noting that it would call into question whether the testimony obtained was really involuntary.

Having defined the defendants Fifth Amendment rights, the court concluded that the government violated their privilege against self-incrimination by introducing Robsons testimony at trial and to the grand jury through an FBI agent. Relying on Kastigar, the court explained that the privilege against self-incrimination applies not only to the testimony itself but to evidence derived from that testimony. The court noted that, when a defendant has been compelled to testify and is later prosecuted, the trial court will convene a hearing, a so-called Kastigar hearing, at which the prosecution must carry the heavy, albeit not insurmountable, burden that the evidence it will introduce was derived from legitimate independent sources. Typically, the prosecution meets this burden with canned testimony, that is, testimony the witness gave before he or she was tainted by exposure to the compelled testimony.

At the Kastigar hearing before the trial court in the Allen case, the exact opposite happened: Robson admitted that his testimony to the FCA was very different from the testimony he gave in the United States after reviewing the testimony of Allen and Conti. The Second Circuit held that the Kastigar hearing actually proved Robson had been tainted by the defendants compelled testimony to the FCA. The court concluded that the presentation of the tainted evidence to the grand and trial juries was not harmless, and it both vacated the conviction and dismissed the indictment against the defendants.

Implications

The Second Circuit explained that cross-border prosecutions are on the rise and observed that the DOJ is detailing its prosecutors to foreign investigators, including INTERPOL and the FCA. The court understood that, in the governments view, witness testimony is often the key to unraveling international financial crime. Although the court would not presume to know exactly what this brave new world of international criminal enforcement will entail, it was certain that these developments abroad need not affect the fairness of our trials at home.

Indeed, earlier this year, the DOJs Antitrust Division issued a Division Update, explaining that international cooperation on investigations of cartels was a top a priority and it was exploring bi-, tri- and multilateral agreements to foster greater international cooperation. Additionally, at a recent speech in Brazil, Acting Principal Deputy Assistant Attorney General for the Criminal Division, Trevor N. McFadden stated that cooperation with our foreign partners has become a hallmark of our work and observed that reciprocity in information sharing is a vital tool in the modern prosecutors toolbox.

Indeed, recent settlements and investigations show that the DOJ is actively coordinating its efforts with the FCA and other foreign investigators. For example, earlier this year, State Street Corporation announced that it had reached a settlement with the DOJ concerning allegations it overcharged certain clients, an allegation first disclosed to the FCA in 2011. Also, in April, it was reported that the DOJ and the FCA are collaborating in an investigation into whether individuals at Barclays Bank engaged in civil or criminal misconduct in attempting to unmask a whistleblower. And the U.S. Attorneys Office for the Southern District of New York, the office that prosecuted Allen and Conti, announced late last year that it had charged several individuals with wire and securities fraud, identify theft and computer hacking following an investigation conducted in concert with Lahav 433, the cyber unit of the Israeli National Police, which, like the FCA, can legally compel witness testimony.

This international cooperation also is occurring among government regulators with civil remedies at their disposal. For example, when the SEC announced the filing of a Foreign Corrupt Practices Act complaint against executives at investment firm Och-Ziff Capital Management Group in January 2017, the SEC thanked the FCA and financial regulators in Guernsey, Jersey, Malta, Cyprus, Gibraltar and Switzerland for assisting in the investigation that led to the complaint.

Given the increase in cross-border investigations involving cooperation between U.S. and foreign law enforcement and regulatory authorities, practitioners representing defendants who have been interrogated abroad should investigate the possibility that compelled testimony was disseminated to witnesses the DOJ put before the grand jury or will call at trial. While the fact pattern in Allen is somewhat unique, there is a significant tactical advantage to identifying whether any witnesses were exposed to the compelled testimony and forcing the prosecution to carry its heavy burden under Kastigar of showing its evidence is untainted.

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Fifth Amendment Prohibits Use of Compelled Foreign Testimony in US Criminal Trials - Lexology (registration)

US Second Circuit Finds Testimony Compelled by UK Regulators to … – The National Law Review

Posted on July 26, 2017 by Danzig

Creating a potential new impediment for collaboration between UK and US investigators, the Court of Appeals for the Second Circuit in New York recently held that evidence derived from compelled testimony cannot be used in a criminal case in the United States, even if the testimony was lawfully obtained in the foreign jurisdiction. In overturning the convictions of two former Rabobank traders charged with manipulation of the London Interbank Offered Rate, the Second Circuit in United States v. Allen[1] adopted a broad view of the Fifth Amendment right against involuntary self-incrimination as it applies to statements made to foreign regulators and law enforcement. The decision will make it more likely that compelled statements made to investigators in the UK and elsewhere will be inadmissible against criminal defendants in the US.

The case arose out of parallel investigations conducted by the UKs Financial Conduct Authority (FCA) and the US Department of Justice (DoJ) into alleged manipulation of the London Interbank Offered Rate (LIBOR) by employees of Rabobank.

In 2013, two former Rabobank traders and UK citizens, Anthony Allen and Anthony Conti, were interviewed by the FCA pursuant to its statutory authority to compel interviews (when such power is exercised the individual under investigation may be subject to a fine and/or imprisonment for non-compliance).[2] Each provided statements regarding their roles in setting LIBOR while at Rabobank, and the FCA showed their testimony transcripts to a third trader, Paul Robson. The FCA ultimately stayed its investigation and any enforcement action of Rabobank employees, including Robson, while the DoJ pursued criminal charges against them.

The following year, Robson was indicted in the US on wire fraud charges. He subsequently pled guilty and entered into a cooperation agreement with the DoJ, providing evidence and testimony against other Rabobank employees. Several months later, Allen and Conti were indicted on multiple counts of wire fraud and conspiracy to commit wire fraud and bank fraud based on evidence Robson had provided to US authorities.

At trial, Allen and Conti sought to supress Robsons testimony under the US Supreme Courts ruling in Kastigar v. United States,[3] which found that if a witness is compelled to testify, he must be granted immunity from use of the compelled testimony in subsequent criminal proceedings (so-called direct use immunity) and immunity from use of evidence derived from the testimony (so-called derivative use immunity). The DoJ contended that, in constructing the case against the defendants, the prosecution took steps to avoid the direct use of their compelled testimony, including conducting interviews independent of those conducted by the FCA. The district court sided with the prosecution, finding that Robsons review of Allen and Contis testimony to the FCA did not taint the evidence that he later provided because the DoJ had demonstrated an independent source for such evidence namely, Robsons personal experience and observations.[4] Allen and Conti were each convicted and sentenced, respectively, to two years and one year and a days imprisonment.

On appeal, Allen and Conti argued that their Fifth Amendment rights were violated when the DoJ used tainted evidence from Robson which was, in essence, derived from their own compelled testimony to the FCA. The DoJs position was that the Fifth Amendment did not apply to testimony compelled by a foreign government, which was the equivalent of statements made to a private sector employer under the threat of termination. Alternately, the DoJ argued that the evidence provided by Robson was untainted by the compelled testimony of Allen and Conti. The Second Circuit rejected the DoJs positions and unanimously reversed the convictions, holding that in order to be admissible, incriminating statements obtained by foreign officials must have been made voluntarily and cannot have been compelled, even if obtained in full compliance with the laws of the foreign government.

The protection against self-incrimination in the US is generally broader than that pertaining in the UK. The Fifth Amendment to the US Constitution states, No person...shall be compelled in any criminal case to be a witness against himself.... Courts in the US do not require every procedural step to be adhered to in order to ensure the admissibility of statements for example, foreign police officers are not required to provide Miranda warnings to inform defendants overseas of their constitutional right to remain silent.[5] However, the Second Circuits decision in Allen reinforces the decision already reached by several other circuits throughout the US that a statement must be voluntary and cannot be compelled if it is to be admissible in a criminal trial. This requirement applies regardless of whether the statement was compelled in accordance with the laws of the foreign country. In the words of Judge Jos Cabranes, who wrote the unanimous opinion in Allen, the right not to testify against oneself at trial is absolute.

In the UK, the common law and statutory protection of the privilege against self-incrimination protects a person from being compelled to produce documents or provide information which may incriminate the individual in criminal proceedings or expose him to a penalty for commission of a crime (akin to direct use immunity in the US).[6] However, this protection is not absolute; it is common for regulators to exercise their statutory investigatory powers to conduct interviews which may lead to a person being compelled to disclose incriminating information. Compelled statements obtained by the FCA may not be directly used as evidence against the accused in certain types of criminal proceedings, but this does not mean that the individual is shielded from providing the requested information, or from declining to answer questions.[7] Rather the FCA is restricted in dealing with the information in certain ways.

In addition, information derived from such compelled statements may be admissible in criminal proceedings in limited circumstances including where the accused asks a question in relation to, or adduces evidence in relation to, the compelled evidence. The FCA may also provide a copy of the transcript of a compelled interview to a co-defendant in a criminal prosecution (which is not unusual and indeed occurred when Robson was provided with the transcripts of Conti and Allens interviews), and use such a transcript to cross-examine the co-defendant. Failure to comply with an FCA statutory request for an interview or to cooperate and answer questions may be dealt with as if the individual were in contempt of court, and the penalty may include a term of imprisonment, a fine, or both.[8] Answering questions in such an interview with deliberately false or misleading information is also a criminal offence.[9]

The UKs Serious Fraud Office also has the power to compel individuals to answer questions pursuant to section 2 of the Criminal Justice Act 1987. However, answers provided during such interviews are generally not admissible against the interviewee in most types of criminal proceedings.[10]

The Second Circuits decision in Allen introduces several new obstacles that must be considered when US and overseas investigators and prosecutors seek to collaborate. US federal prosecutors will need to carefully coordinate investigative approaches with overseas regulators, and be wary of any compelled testimony obtained by foreign governments. If foreign testimony is compelled, US prosecutors will need to meet the heavy burden under Kastigar to demonstrate that evidence it seeks to use in a criminal proceeding was clearly derived from independent sources. Time will tell how significant a burden the Allen decision places on the trend in recent years for US, UK, and other international investigators to work together, particularly on cross-border white collar prosecutions.

[1] United States v. Allen et al., No. 16-898 (2nd Cir. July 19, 2017).

[2] Pursuant to section 171 of the Financial Services and Markets Act 2000 (FSMA) an investigator of the FCA (as defined in section 167 of FSMA), has the power to compel a person under investigation, or any person connected with the person under investigation, to attend an interview before the investigator or otherwise produce information required for the investigation. If a person so compelled fails to comply with such a request, the investigator may seek that the request be certified to the court, after which the court may sanction that person as if in contempt of court for non-compliance (provided there was no reasonable excuse for non-compliance). The penalty for contempt of court may include a term of imprisonment, a fine, or both. See section 177 of FSMA.

[3] 406 U.S. 441 (1972).

[4] Under Kastigar, where a witness who has invoked the Fifth Amendment is nonetheless compelled to testify, a Kastigar hearing is conducted at which the prosecution must demonstrate its case is not based on tainted compelled testimony.

[5] See, e.g., United States v. Martindale, 790 F.2d 1129, 1131-32 (4th Cir. 1986) (holding that defendants statement to British officers at Scotland Yard was admissible despite the officers failure to provide Miranda warnings).

[6] See section 14(1) of the Civil Evidence Act 1968, which applies to incrimination and penalties for domestic criminal offences only. However, an English court may exercise discretion and apply the protection where there is a risk of incrimination under foreign criminal law. See Arab Monetary Fund v Hashim [1989] 1 WLR 565as referred to inCompagnie Noga v Australia and New Zealand Banking Group Ltd [2007] EWHC 85 (Comm).

[7] See section 174 of FSMA.

[8] See section 177 of FSMA.

[9] See section 177(4) of FSMA, which provides that a person who knowingly or recklessly provides false or misleading material information to a regulator pursuant to a FSMA statutory request to provide information, will be guilty of an offence, and liable on summary conviction to a term of imprisonment not exceeding six months or a fine not exceeding the statutory maximum, or if convicted on indictment he or she will be liable to a term of imprisonment not exceeding two years, or a fine, or both.

[10] See section 2(8) of Criminal Justice Act 1987.

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US Second Circuit Finds Testimony Compelled by UK Regulators to ... - The National Law Review

Section 702 Surveillance Authority: No Extension Unless Fourth … – HuffPost

Posted on July 26, 2017 by Danzig

Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FAA) authorizes the government to seize and search the international communications of American citizens without probable cause or warrants in violation of the Fourth Amendment. Section 702 should not be extended beyond its current expiration date of December 31, 2017 unless Congress cures its constitutional infirmity.

Members of Congress are bound by oath or affirmation to uphold and defend the Constitution period, with no commas, semicolons, or question marks. The 9/11 murderous abominations changed nothing on that score. The Supreme Court admonished in Ex Parte Milligan:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism

As a cornerstone of our liberty-centered constitutional universe, the Fourth Amendment makes citizen privacy the rule and government encroachments the exception. Warrants issued by neutral magistrates based upon probable cause with particularized evidence that crime is afoot are ordinarily required to justify government invasions of privacy. In the narrow circumstances that excuse warrants, a government search or seizure must still satisfy a standard of reasonableness. Justice Louis D. Brandeis elaborated in Olmstead v. United States (dissenting):

The makers of our Constitutionsought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The American Revolution was ignited by opposition to hated British Writs of Assistance or general search warrants that empowered every petty colonial official to rummage through homes or businesses in search of smuggled goods. An address by William Pitt the Elder to the British Parliament thundered throughout the colonies, and epitomized the spirit of the Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

Speaking through Justice Antonin Scalia, the Supreme Court decreed in Kyllo v. United States that the Fourth Amendment today should be interpreted should be adapted to secure that degree of privacy against government that existed when the Fourth Amendment was adopted notwithstanding staggering advances in technology. At that time, government encroachments on privacy were minimal. Federal criminal laws were few. Investigations were minimal. And no intelligence community existed to snoop on Americans to gather foreign intelligence.

Section 702 authorizes invasions of citizen privacy orders of magnitude beyond the degree of privacy that existed when the Fourth Amendment was ratified in 1791. It empowers the National Security Agency singly or in conjunction with sister intelligence agencies to intercept, store, and search the international communications of U.S. persons with a targeted communicant reasonably thought to be located outside the United States and in possession of foreign intelligence information.

The Foreign Intelligence Surveillance Court (FISC) does not review each discrete NSA interception to insure the target is a foreigner outside the United States or that the communications intercepted relate to foreign intelligence, including international terrorism. Instead, the FISC simply approves annually surveillance procedures that the Attorney General and Director of National Intelligence certify are calculated to target only foreigners located abroad for foreign intelligence purposes. The latter is broadly defined to include any information that relates to the foreign affairs of the United States.

The government has employed section 702 to collect more than 250 million Internet transactions annually as of 2011, which includes communications between two foreigners as well as those involving a U.S. person. According to an affidavit of Bill Binney, former high level NSA official and perhaps the foremost expert in the world on electronic surveillance:

When I was at the NSA, each analyst was theoretically required to review 40,000 to 50,000 questionable records each day. The analyst gets overwhelmed, and the actual known targets -- from the metadata analysis -- get ignoredThe NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant.

The intelligence community is clueless as to how many of the 250 million annual Internet warrantless interceptions under section 702 involve the international communications of U.S. persons. But the Fourth Amendment vice does not cease after the seizures. The communications are typically stored for at least five years and searched without warrants or probable cause for either to discover foreign intelligence or evidence of crimea second Fourth Amendment transgression.

Supreme Court decisions establish that the government must obtain a warrant that satisfies the Fourth Amendment to intercept or search the contents of communications of U.S. persons for either criminal justice or domestic security purposes. The High Court has not approved an exception when the communications are seized and searched pursuant to section 702 for law enforcement or foreign intelligence purposes.

Title III wiretap orders under the Omnibus Crime Control Act is vastly less intrusive on privacy. They require a warrant that satisfies the Fourth Amendment by specifying the phone line to be tapped, the conversations to be seized, and the crime under investigation. Moreover, reasonable measures must be taken by the government to avoid recording innocent conversations. And the targets of the warrants and their communicants are typically notified of the wiretap within 90 days of its termination to enable them to challenge its legality.

In contrast, surveillance under section 702 does not require a warrant. It does not require probable cause. It does not require suspicion of criminality. It is not confined to communications involving only foreign powers or their agents. There is no mechanism for monitoring the seizure of the communications to exclude those portions irrelevant to foreign intelligence. And the communicants whose conversations are intercepted, stored, and searched are not notified of the invasions of privacy unless they are lead to a criminal prosecution. In the vast majority of cases, U.S. persons will never learn that the privacy of their international communications had been compromised.

Even if no warrant were required under the Fourth Amendment for the seizure, storage, and search of the international communications of U.S. persons under section 702, it would still fail the reasonableness test. While the government interest in national security is of the highest order, section 702 sweeps far more broadly to include anything relevant to the foreign policy of the United States, for example, the emission of greenhouse gases or free trade agreements. It also authorizes searches of citizen communications for crimes unrelated to national security and not based on probable cause. And as Bill Binneys affidavit underscored, the stupendous volume of communications capture by section 702 cripples the NSAs ability to separate the wheat from the chaff.

Proponents of extending section 702 argue that government officials have refrained from using its alarming powers to oppress U.S. persons. But as Thomas Jefferson advised, In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. Moreover, Justice Brandeis correctly taught that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

In sum, section 702 should not be extended unless it requires a warrant to seize or search international communications of U.S. persons based upon probable cause to believe they contain evidence of international terrorism and with particularity describe the means of seizing or searching the communications. Further, U.S. persons should be notified within 90 days of any interception or search.

The Fourth Amendment is too important to be left to the intelligence community.

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Section 702 Surveillance Authority: No Extension Unless Fourth ... - HuffPost

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