Monthly Archives: July 2017

NSA Surveillance | American Civil Liberties Union

Posted: July 25, 2017 at 11:55 am

The National Security Agencys mass surveillance has greatly expanded in the years since September 11, 2001. Disclosures have shown that, until recently, the government regularly tracked the calls of hundreds of millions of Americans. Today, it continues to spy on a vast but unknown number of Americans international calls, text messages, web-browsing activities, and emails.

The governments surveillance programs have infiltrated most of the communications technologies we have come to rely on. They are largely enabled by a problematic law passed by Congress the FISA Amendments Act (FAA), which is set to expire this year along with Executive Order 12,333, the primary authority invoked by the NSA to conduct surveillance outside of the United States. The Patriot Act has also made it easier for the government to spy on Americans right here at home over the past 15 years. Although the Foreign Intelligence Surveillance Court oversees some of the governments surveillance activities, it operates in near-total secrecy through one-sided procedures that heavily favor the government.

Our Constitution and democratic system demand that government be transparent and accountable to the people, not the other way around. History has shown that powerful, secret surveillance tools will almost certainly be abused for political ends.

The ACLU has been at the forefront of the struggle to rein in the surveillance superstructure, which strikes at the core of our rights to privacy, free speech, and association.

The FISA Amendments Act of 2008 (FAA) gives the NSA almost unchecked power to monitor Americans international phone calls, text messages, and emails under the guise of targeting foreigners abroad. The ACLU has long warned that one provision of the statute, Section 702, would be used to eavesdrop on Americans private communications. In June 2013, The Guardian published documents provided by whistleblower Edward Snowden confirming the massive scale of this international dragnet. Recent disclosures also show that an unknown number of purely domestic communications are monitored, that the rules that supposedly protect Americans' privacy are weak and riddled with exceptions, and that virtually every email that goes into or out of the United States is scanned for suspicious keywords.

In 2008, less than an hour after President Bush signed the FAA into law, the ACLU filed a lawsuit challenging its constitutionality. The case, Amnesty v. Clapper, was filed on behalf of a broad coalition of attorneys and organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with individuals located abroad. But in a 54 ruling handed down in February 2013, the Supreme Court held that the ACLU plaintiffs did not have standing to sue because they could not prove their communications had actually been surveilled under the law.

In March 2015, the ACLU filed Wikimedia Foundation v. NSA, a lawsuit challenging Upstream surveillance under the FAA. Through Upstream surveillance, the U.S. government copies and searches the contents of almost all international and many domestic text-based internet communications. The suit was brought on behalf of nine educational, legal, human rights, and media organizations, including the Wikimedia Foundation, operator of one of the most-visited websites on the internet. Collectively, the plaintiffs engage in more than a trillion sensitive internet communications every year, and each has been profoundly harmed by NSA surveillance.

Executive Order 12,333, signed by President Reagan in 1981 and modified many times since, is the authority primarily relied upon by the intelligence agencies to gather foreign intelligence outside of the United States. Recent disclosures indicate that the U.S. government operates a host of large-scale programs under EO 12333, many of which appear to involve the collection of vast quantities of Americans information. These programs have included, for example, the NSAs collection of billions of cellphone location records each day; its recording of every single cellphone call into, out of, and within at least two countries; and its surreptitious interception of data from Google and Yahoo user accounts as that information travels between those companies data centers located abroad.

In December 2013, the ACLU, along with the Media Freedom Information Access Clinic at Yale Law School, filed a Freedom of Information Act lawsuit demanding that the government release information about its use of EO 12,333 to conduct surveillance of Americans communications.

For many years, the government claimed sweeping authority under the Patriot Act to collect a record of every single phone call made by every single American "on an ongoing daily basis." This program not only exceeded the authority given to the government by Congress, but it violated the right of privacy protected by the Fourth Amendment, and the rights of free speech and association protected by the First Amendment. For this reason, the ACLU challenged the government's collection of our phone records under Section 215 of the Patriot Act just days after the program was revealed in June 2013 by The Guardian. In May 2015, a court of appeals found that the phone records program violated Section 215, and Congress allowed the provision to expire in June of that year. The program was reformed by the USA Freedom Act, which passed days later.

To bring greater transparency to the NSA's surveillance under the Patriot Act, the ACLU filed two motions with the secretive FISC asking it to release to the public its opinions authorizing the bulk collection of Americans' data by the NSA.

Our earlier work to reform the Patriot Act includes a number of successful challenges to the government's use of and secrecy surrounding National Security Letters.

The ACLU has long fought to bring greater transparency and public access to the FISC the secretive court that oversees the governments surveillance programs. When the FISC was first established in 1978, it primarily assessed individual surveillance applications to determine whether there was probable cause to believe a specific surveillance target was an agent of a foreign power. In recent years, however, the FISCs responsibilities have changed dramatically, and the FISC today oversees sweeping surveillance programs and assesses their constitutionality all without any public participation or review.

The ACLU has been advocating and petitioning for access to the FISC for more than a decade, working with Congress and the executive branch, and appearing before the court itself to push for greater transparency. Days after the courts Section 215 order was published in the press in June 2013, we filed a motion seeking access to the secret judicial opinions underlying the NSA's mass call tracking program. We have since filed two other access motions in the FISC, seeking significant legal opinions authorizing bulk collection and those interpreting the governments secret surveillance powers in the years after 9/11. We also signed a brief filed in the FISC in support of the First Amendment rights of the recipients of FISC orders, such as telephone and internet companies, to release information about the type and volume of national security requests they receive from the NSA and the FBI.

Secret law has no place in a democracy. Under the First Amendment, the public has a qualified right of access to FISC opinions concerning the scope, meaning, or constitutionality of the surveillance laws, and that right clearly applies to legal opinions interpreting Americans' bedrock constitutional rights. We all have a right to know, at least in general terms, what kinds of information the government is collecting about innocent Americans, on what scale, and based on what legal theory.

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Should NSA and CYBERCOM Split? The Legal and Policy Hurdles as They Developed Over the Past Year – Lawfare (blog)

Posted: at 11:55 am

In light of Michael Sulmeyers excellent recent piece on splitting NSA and CYBERCOM, which ran at War on the Rocks last week, I want to pull together some of the key legal and policy developments of the past year in a single narrative. My aim is to put them in context with each other in a way that will provide useful background for those new to this issue, while also putting a spotlight on the deconfliction-of-equities issue that the split proposal raises. My apologies that this is a longer-than-normal post (I did not have time to be shorter!).

1. July 2016 Reports of DOD frustration over pace of anti-ISIS cyber operations

In July 2016, the Washington Post (Ellen Nakashima & Missy Ryan) reported on CYBERCOMs efforts to disrupt the Islamic States online activities (internal communications, external propaganda, financing, etc.), emphasizing the view of DOD leadership that CYBERCOM was underperforming:

An unprecedented Pentagon cyber-offensive against the Islamic State has gotten off to a slow start, officials said, frustrating Pentagon leaders and threatening to undermine efforts to counter the militant groups sophisticated use of technology for recruiting, operations and propaganda.

But defense officials said the command is still working to put the right staff in place and has not yet developed a full suite of malware and other tools tailored to attack an adversary dramatically different from the nation-states Cybercom was created to fight.

Although officials declined to detail current operations, they said that cyberattacks occurring under the new task force might, for instance, disrupt a payment system, identify a communications platform used by Islamic State members and knock it out, or bring down Dabiq, the Islamic States online magazine.

The report is an excellent snapshot of several distinct challenges the military use of computer network operations can pose.

One such challenge is operational capacity. The story suggests that CYBERCOM simply did not have the right personnel and the right exploits on hand for this particular mission, at least at the start. Thats a problem that can be fixed, and the report details the steps DOD began taking in 2016 to do just that.

Another challenge is the need to have an effective process for deconfliction between intelligence-collection and operational-effect equities. As the article summarized the issue:

Whenever the military undertakes a cyber-operation to disrupt a network, the intelligence community may risk losing an opportunity to monitor communications on that network. So military cybersecurity officials have worked to better coordinate their target selection and operations with intelligence officials.

This is not a novel tension, in the abstract. For as long as there has been signals intelligence, there have been tensions of this kind. When one side has access to the others communications, there will always be tension between the temptation to exploit that access for operational effect (with the opportunity cost of risking loss of that access going forward as the enemy realizes it has been monitored) and the temptation to instead exploit it for indirect intelligence advantage (with the opportunity cost of forgoing direct operational advantage in at least some cases). World War II provides famous examples. And so one might fairly ask: is there anything really different about computer network operations, warranting special attention to the topic in this setting?

Perhaps. In this domain there is much more overlap between the means of collection and the means of carrying out a disruptive operations. Indeed, those means often will be the exact same: a particular exploit providing access to an enemy device, network, etc. It seems to me that this ensures that the tension between collection and operational equities will arise with greater frequency, and less room for workarounds, than in more familiar settings.

Having mentioned both the operational capacity concern and the competing-equities concern, now is a good time to emphasize the significance of the status-quo for NSA and CYBERCOM: the dual-hatted commander. Whereas more familiar, traditional scenarios involving tension between collection and operational equities usually involve distinct underlying institutions and commanders, the status quo with respect to computer network operations has always (well, the past seven years) involved the dual-hatting of NSAs director and CYBERCOMs commander.

This model in theory ensures that neither institution has a home-field advantage, and maximizes the chance that the key decisionmaker (yes, there can be important decisions both below and above the dual-hat, but the dual-hat is obviously in the key position) fully buys into and fully grasps the importance of each institutions mission.

Of course, it is possible that the dual-hat might tilt one direction to an unfair or undesirable degree. And it is possible that some might perceive such a tilt even when there isnt one. As 2016 wore on, questions of this kind began to appear in public, and by September the media was reporting that DNI Clapper and SecDef Carter both were in favor of splitting up the dual-hat. It was not the first time this topic had come up, to be sure; President Obama had considered ordering a split in 2013 (during the aftermath of the Snowden controversy), but had not taken that step at least in part out of concern about CYBERCOMs independent operational capacity. Now the idea appeared to have momentum.

A report from Ellen Nakashima in the Washington Post that same month suggested that this momentum was in part a product of CYBERCOMs operational maturation, but also in significant part driven by the perception that Admiral Rogers, the current dual-hat, favored collection equities to an undue extent:

Whether or not its true, the perception with Secretary Carter and [top aides] has become that the intelligence agency has been winning out at the expense of [cyber] war efforts, said one senior military official.

(See also this report by the New York Times, stating that frustration along these same lines contributed to the effort to get President Obama to remove Admiral Rogers in late 2016.)

The Washington Post report also highlighted concerns that splitting NSA and CYBERCOM at the leadership level might actually weaken rather than empower CYBERCOM, as NSA inevitably would become free to withhold from CYBERCOM at least some exploits or other forms of access so that sources would not be lost:

Cyber Commands mission, their primary focus, is to degrade or destroy, the former official said. NSAs is exploit [to gather intelligence] only. So without having one person as the leader for both, the bureaucratic walls will go up and youll find NSA not cooperating with Cyber Command to give them the information theyll need to be successful.

2. December 2016 Congress puts on the brakes

Against this backdrop, Congress intervened in late 2016 to slow down the Obama administrations move to split the dual-hat. Section 1642 of the NDAA FY17, enacted in late December, provides that NSA and CYBERCOM must continue to share a dual-hatted director/commander unless and until the Secretary of Defense and the Chairman of the Joint Chiefs of Staff jointly certify to certain Congressional committees (SASC & HASC; SSCI & HPSCI; and the Appropriations Committees) that separation will not pose unacceptable risks to CYBERCOMs effectiveness, and that the following six conditions are met:

(i) Robust operational infrastructure has been deployed that is sufficient to meet the unique cyber mission needs of the United States Cyber Command and the National Security Agency, respectively.

(ii) Robust command and control systems and processes have been established for planning, deconflicting, and executing military cyber operations.

(iii) The tools and weapons used in cyber operations are sufficient for achieving required effects.

(iv) Capabilities have been established to enable intelligence collection and operational preparation of the environment for cyber operations.

(v) Capabilities have been established to train cyber operations personnel, test cyber capabilities, and rehearse cyber missions.

(vi) The cyber mission force has achieved full operational capability.

Section 1642(b)(2)(C) (emphasis added). President Obamas signing statement criticized Congress for imposing this requirement, but did not include a claim that it was unconstitutional. It remains the law at this time.

3. Early 2017 Complications in the War Against the Islamic State

While lawmakers and policymakers wrestled with the pros and cons of splitting NSA and CYBERCOM, computer network operations against the Islamic State continued to accelerate.

Along the way, however, new problems emerged.

As Ellen Nakashima of the Washington Post reported in May 2017, CYBERCOM by late 2016 had encountered a new set of challenges in its enhanced effort to shut down ISIS sites and platforms: third-country effects.

A secret global operation by the Pentagon late last year to sabotage the Islamic States online videos and propaganda sparked fierce debate inside the government over whether it was necessary to notify countries that are home to computer hosting services used by the extremist group, including U.S. allies in Europe. Cybercom developed the campaign under pressure from then-Defense Secretary Ashton B. Carter, who wanted the command to raise its game against the Islamic State. But when the CIA, State Department and FBI got wind of the plan to conduct operations inside the borders of other countries without telling them, officials at the agencies immediately became concerned that the campaign could undermine cooperation with those countries on law enforcement, intelligence and counterterrorism. The issue took the Obama National Security Council weeks to address

This article highlights a third significant challenge associated with computer network operations: attacking the enemys online presence often requires, or at least risks, some degree of impact on servers located in other countries. Third-country impact involves both legal and policy challenges, and as the quote above illustrates it also brings into play otherwise-unrelated equities of other agencies. Thus, the competing-equities tension is not just a clash between collection and operational equities, but in some cases many others as well. The dual-hat command structure is primarily an answer only to the former, not the latter.

Meanwhile, a sobering reality about the utility of cyberattacks on Islamic State communications began to become clear: the effects often did not last. This was the thrust of an important piece by David Sanger and Eric Schmitt in the New York Times in June 2017:

[S]ince they began training their arsenal of cyberweapons on internet use by the Islamic State, the results have been a consistent disappointment, American officials say. [It] has become clear that recruitment efforts and communications hubs reappear almost as quickly as they are torn down. In general, there was some sense of disappointment in the overall ability for cyberoperations to land a major blow against ISIS," or the Islamic State, said Joshua Geltzer, who was the senior director for counterterrorism at the National Security Council until March. "This is just much harder in practice than people think..."

This suggested that the military equities that some felt had been undervalued by Admiral Rogers in the past were less weighty than proponents had assumed. Nonetheless, momentum towards separationand concern that the dual-hat unduly favors collection equitiescontinues.

In mid-July, reports emerged that the Pentagon had submitted to the Trump administration a plan for effectuating the split, with some of the accompanying commentary continuing to advance the argument that NSA holds CYBERCOM back to an improper extent:

The goal, [unnamed U.S. officials] said, is to give U.S. Cyber Command more autonomy, freeing it from any constraints that stem from working alongside the NSA, which is responsible for monitoring and collecting telephone, internet and other intelligence data from around the world a responsibility that can sometimes clash with military operations against enemy forces.

Meanwhile, however, Congress is in the midst of producing the next NDAA, and it may impose a further hurdleone that wont prevent the split, but may well slow it down considerably.

4. Congress reengages

In mid-July, the House passed H.R. 2810, which includes a section addressing the potential NSA/CYBERCOM split. Section 1655 requires the SecDef to provide SASC, HASC, SSCI, and HPSCI with a report on DODs progress in addressing the issues that must be certified to Congress before NSA and CYBERCOM may be split (under the terms of section 1642 of NDAA FY17). That report must address:

(1) Metrics and milestones for meeting the conditions described in subsection (b)(2)(C) of such section 1642.

(2) Identification of any challenges to meeting such conditions.

(3) Identification of entities or persons requiring additional resources as a result of any decision to terminate the dual-hat arrangement.

(4) Identification of any updates to statutory authorities needed as a result of any decision to terminate the dual-hat arrangement.

Meanwhile, the Senates NDAAFY18 draft (S.1519) has begun its trek through that chamber, and it includes a requirement (section 1627) that the commander of CYBERCOM report to SASC and HASC on the costs associated with meeting the conditions needed to enable NSA and CYBERCOM to split. As the SASC Committee Report accompanying the bill explains:

The committee believes any decision to separate Cyber Command and the National Security Agency should be conditions-based. The committee also believes that the funding associated with separating the dual-hat arrangement will be a multiyear sustained effort. The committee notes that the fiscal year 2018 budget request failed to include the funding necessary to resource the separation of the dual-hat arrangement. The committee looks to Cyber Command to estimate the funding required to meet the conditions identified in section 1642(b) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114328) and intends to closely monitor future budget submissions and the cost, schedule, and performance of key cyber programs to ensure that Cyber Command is appropriately resourced prior to any decision to end the dual-hat arrangement.

5. What is the bottom line in light of all this?

* The statutory obstacles to a split of the dual-hat, from the current NDAA, are not onerous. The certifications required by section 1642 of NDAA FY17 can be dealt with easily enough given the high level of generality with which they are framed, once the political will is there to carry out the separation. It sounds as if the will is there, and that the only real hurdle is specifying something realistic in terms of the requirement that the cyber mission force reach full operational capacity.

* Deconfliction and Competing-Equities Tensions remain a significant issue that needs to be addressed very carefully. Yes, section 1642 of NDAA FY17 requires a certification on deconfliction, but as just noted the requirement is framed at a high-level of generality. People need to focus on the fact that a main driver of the effort to split NSA and CYBERCOM has been the perception that Admiral Rogers gives collection equities too much weightbut that he may well have been quite right to do so. And people also need to focus on the converse risk: that NSA might pull back on cooperation with CYBERCOM to an undesirable degree, post-split, in order to preserve the means of its collection. All of this can be managed, and its not obvious that the current dual-hat solution is the only way to do it. But there needs to be a credible process of some kind, if not the dual-hat. Its not clear that the certification requirement under section 1642 actually will compel sufficient consideration of this issue.

* Section 1627 of NDAA FY18, if it is enacted as SASC has proposed, will be a more serious hurdle. Budgets matter, and it is likely that the correct answer to the budget question posed by that section will involve a substantial need. That money then needs to be found and appropriated. Probably it should be and no doubt it will be. But it will take time for all this to grind out. Possibly this delay would track the time needed in any event to produce a credible claim that the cyber mission force has reached full operational capacity.

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Former prosecutors join accused NSA leaker’s legal defense team – MyAJC

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A former top U.S. Justice Department official and a former federal prosecutor have joined Reality Winners legal defense team in the National Security Agency leak investigation.

Joe Whitley, who served as the acting associate U.S. attorney general during the Reagan and George H.W. Bush administrations, is a partner with the Atlanta law firm of Baker Donelson. He also worked as the U.S. Department of Homeland Securitys general counsel and served as a federal prosecutor in Georgia. Joining Whitley is Matthew Chester, a former assistant U.S. attorney who works for the same law firm in New Orleans.

They are teaming up with John Bell and Titus Nichols of Bell & Brigham in Augusta. The attorneys joined the case after First Look Media, the parent company of The Intercept online news outlet, announced this month that it would help Winners legal defense. First Look said its Press Freedom Defense Fund would provide $50,000 in matching funds to Stand With Reality, a nonprofit campaign to support Winners case through advocacy and fundraising.

RELATED:Owner of The Intercept assisting accused NSA leakers legal defense

The U.S. Justice Department has accused Winner of leaking to The Intercept a top-secret NSA report about Russias meddling in the 2016 presidential election. The Intercept published the report, which says Russian military intelligence officials tried to hack into the U.S. voting system just before last Novembers election.

A federal grand jury has indicted Winner, 25, on a single count of "willful retention and transmission of national defense information. She faces up to 10 years in prison and $250,000 in fines. Winner, who is being held in the Lincoln County Jail, has pleaded not guilty to the charge.

Winners mother, Billie Winner-Davis, released a statement to Stand With Reality about the new attorneys joining her daughters defense team.

I am very excited about Mr. Whitley joining Realitys defense team, she said, as he appears to have extensive experience. His background with homeland security should be helpful.

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Two new attorneys join accused NSA leaker’s defense team | The … – The Augusta Chronicle

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Two additional attorneys have joined Reality Leigh Winners defense team in the espionage prosecution in U.S. District Court in Augusta.

U.S. Magistrate Court Judge Brian K. Epps granted Joe Dally Whitley and Matthew Scott Chester permission to to be admitted to practice in the Southern District of Georgia to help defend Winner, 25.

Winner has pleaded not guilty to a single count of willful retention and transmission of national defense information. She is accused of copying a secret document while at work for National Security Agency contractor Pluribus at Fort Gordon and sending it anonymously to online news publication The Intercept. She has been held without bond since her arrest June 3.

Two days later, The Intercept published an in-depth article about a NSA analysis of Russias attempts to meddle in the presidential election, a subject now under scrutiny by the Senate and House intelligence committees and a special prosecutor investigating possible collusion between Russia and people supportive of Trumps campaign.

A tentative trial date for Winner is the week of Oct. 23.

The newest members of the defense team are both former federal prosecutors with the national law firm Baker Donelson.

Whitley of Atlanta served in the Department of Justice under Presidents Reagan and George H.W. Bush, serving as the acting associate attorney general, the number three position at the DOJ for a time. After 9/11, George W. Bush selected Whitley to serve as the first general counsel for the U.S. Department of Homeland Security. Whitley also previously served as the U.S. Attorney in the Northern District of Georgia. At Baker Donelson, Whitley specializes in complex civil and criminal cases, according to the firms website.

Chester works in the Baker Donelson office in New Orleans. He previously served as an assistant U.S. attorney in the New Orleans office where he prosecuted white collar crimes and public corruption cases.

In 2015, he was awarded the Department of Justices Superior Performance in Litigation award for his work on the prosecution team that helped convict New Orleans Mayor Ray Nagin of charges that included bribery, wire fraud and tax evasion. Nagin is serving a 10-year prison term. Chester now also serves as an adjunct faculty member at Tulane University School of Law where he graduated cum laude in 2004.

Reach Sandy Hodson at (706) 823-3226 or sandy.hodson@augustachronicle.com.

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Chinese media now trains gun on NSA Ajit Doval, calls him ‘main schemer’ – Economic Times

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BEIJING: Ahead of NSA Ajit Doval's visit, China's state media struck two different notes with the China Daily hopeful of a peaceful resolution to the deadlock with India while the Global Times said the "main schemer's" trip wouldn't sway Beijing.

In its editorial, 'It's never too late for India to mend its way', China Daily pressed for exploring ways to avoid confrontation.

The Global Times editorial, 'Doval visit won't sway China over border standoff', said Beijing would not talk until Indian troops were withdrawn.

Doval is to visit China for a meeting of NSAs from BRICS countries - Brazil, Russia, India, China and South Africa - on July 27-28. He is expected to discuss the standoff with his Chinese counterpart Yang Jiechi.

Both officials are also the Special Representatives of their countries for the boundary talks.

The military standoff began on June 16 after the Chinese army tried to build a road near the Bhutan trijunction. India has protested the construction of the road, fearing it would allow China to cut India's access to its northeastern states.

"There are still hopes that the deadlock can be resolved peacefully, which serves both countries' best interests," the China Daily said. Doval's visit is "hoped" to "carry on that slight shift in India's previously bellicose stance", it said, referring to Foreign Secretary S Jaishankar's recent comments that both the countries should not let their "differences become disputes".

"The two sides need to explore ways to avoid confrontation. It would be damaging to both countries and regional stability if India cannot use its reason and wisdom to avoid the military collision both countries are currently on course for," it said.

But The Global Times, part of the Communist Party's publication group, said in its editorial that Beijing will not "talk" until Indian troops were withdrawn.

"As Doval is believed to be one of the main schemers behind the current border standoff between Chinese and Indian troops, the Indian media is pinning high hopes on the trip to settle the ongoing dispute," the daily said.

"New Delhi should give up its illusions, and Doval's Beijing visit is most certainly not an opportunity to settle the standoff in accordance with India's will," it said. It added that India should not take lightly yesterday's comments by the Chinese Defence ministry that New Delhi should not "harbour any illusions" and withdraw troops.

The two editorials come a day after the Chinese Foreign Ministry hinted that a bilateral meeting between Doval and Yang could happen on the sidelines of a BRICS NSAs' meet.

India has maintained that both the countries withdraw troops from the disputed area and resolve the issue through talks.

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Labor Dept partners with NSA in St Johnsbury to find workers – Vermont Biz

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Vermont Business Magazine The Vermont Department of Labor has partnered with NSA Industries, LLC in St. Johnsbury in an effort to fill the companys available positions with skilled, available talent. On Wednesday, July 26, 2017, NSA will open its doors from 4 pm 7 pm for an onsite recruitment event for the general public. NSAs facility is located at 210 Pierce Road, St Johnsbury.

Founded in 1982, NSA specializes in machining, sheet metal fabrication, engineering and logistics. The company currently employs over 200 individuals and is looking to hire machine operators, assemblers, testers/inspectors and welders, as well as a variety of other positions.

This event displays our desire to actively work with employers to assist them in finding the talent they need to be competitive in todays economy. Additionally, this job fair provides another opportunity for the displaced workers in the Northeast Kingdom to find meaningful employment, said Michael Harrington, Deputy Commissioner for the Vermont Department of Labor.

Wednesdays job fair is open to all interested individuals, and the Vermont Department of Labor will be onsite to provide support services, including application assistance.

For a complete list of jobs available at NSA or across the State, visit: http://www.nsaindustries.com or http://www.vermontjoblink.com.

Source: Vermont Department of Labor 7.24.2017

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Libor and London Whale Cases Show Hurdles With Foreign Defendants – New York Times

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The prosecution of two Rabobank traders from London, Anthony Allen and Anthony Conti, ran afoul of the Fifth Amendment privilege against self-incrimination. The United States Court of Appeals for the Second Circuit in Manhattan tossed out their convictions and, in a rare step, dismissed the indictment against them because the government used tainted testimony from its main witness.

The Financial Conduct Authority in England first started looking at Libor manipulation at Rabobank. Under British law, an individual working for a bank under investigation can be required to answer questions or face imprisonment for refusing to comply with the request. In exchange, the statements cannot be used directly against the person at a subsequent proceeding, although they can be used to develop new leads in a case

The British regulator dropped its investigation after Mr. Allen and Mr. Conti testified, and then prosecutors in the fraud section in the Justice Department took up the case, filing charges against the two men in 2014.

Mr. Allen and Mr. Conti were convicted after a trial on conspiracy and wire fraud charges involving their role in manipulating the submissions made by Rabobank that were used to set Libor. The governments theory was that they accommodated requests from the banks derivatives traders rather than making a good-faith estimate of the actual borrowing rate for that day. Evidence included a response to a traders request, I am fast turning into your Libor bitch!!! not a helpful comment.

Even with questionable messages, however, prosecutors needed a witness to explain what was taking place inside the bank and that the defendants knew they were acting improperly. That turned out to be Paul Robson, a co-worker subject of a Financial Conduct Authority enforcement action in Britain who also pleaded guilty in the United States for his role in the Libor manipulation.

Mr. Robson proved to be an effective witness, providing what the Second Circuit described as significant testimony against the two defendants, stating in court that the Libor submissions were nonsense and a charade.

The problem was that he carefully reviewed the defendants immunized statements to the Financial Conduct Authority and the appeals court found that the knowledge gained from them helped shape his testimony. It noted that Mr. Robsons own statement to the British authorities was toxic to the governments case because he later changed the description of the roles of Mr. Allen and Mr. Conti in setting Libor to reflect what they said.

The crucial legal issue was whether a grant of immunity by a foreign government in requiring testimony should be treated the same as if a witness received that protection from an American court. The Second Circuit was quite clear in its answer: The Fifth Amendments prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

The protection afforded under United States law is broader than in Britain, prohibiting any indirect use of an immunized statement to aid the prosecution. The Second Circuit concluded that Mr. Robsons testimony was tainted by what he read, even though prosecutors never introduced the statements in court.

Thus, any use of the statements against the defendants at their trial, like having a witness review it to assist in giving testimony, is a violation of their Fifth Amendment rights that can require reversal of a conviction. The cornerstone case for that proposition is United States v. North, a decision overturning the conviction of Oliver L. North because his immunized testimony before Congress in the Iran-contra hearings affected the recollection of a witness at his criminal trial.

The Second Circuit also dismissed the indictment because it found that the grand jury indirectly received Mr. Robsons views on the defendants involvement in manipulating Libor through the testimony of a F.B.I. agent, so the decision to indict the two men was also tainted by the immunized statements.

The appeals court had no sympathy for the governments complaint that applying the constitutional protection would make it more difficult to work with foreign governments to prosecute cases involving cross-border violations. The practical outcome of our holding today is that the risk of error in coordination falls on the U.S. government (should it seek to prosecute foreign individuals), rather than on the subjects and targets of cross-border investigations, the judges wrote.

Although prosecutors can seek a new indictment and a second trial, they may not use Mr. Robson or any other witness who might have reviewed the immunized statements made by Mr. Allen and Mr. Conti. That most likely means the case is over because there does not appear to be enough evidence, beyond some questionable messages, to show their intent to manipulate Libor submissions.

The decision will present a significant challenge to the Justice Department in pursuing fraud cases in which it works with foreign prosecutors and regulators to gather evidence. Many nations, especially in Europe, require those involved in the financial services sector to provide testimony during an investigation, and now any use of that power to gather evidence could make it more difficult to prove charges in the United States.

Prosecutors in this country are well aware of the potential pitfalls of prosecuting someone granted immunity because it requires showing that every piece of evidence to be used at trial is untainted by the immunized statements. Future investigations of international wrongdoing will have to avoid tripping the Fifth Amendment protection if a target is required to provide a statement.

The fallout from the Second Circuits decision is already being felt in the prosecution of two former Deutsche Bank traders accused of manipulating Libor. One of the defendants was compelled by the Financial Conduct Authority to testify and has asked that the court to scrutinize whether his statements have tainted the governments evidence.

Even if there are no Fifth Amendment issues, when the reliability of a crucial cooperating witness is open to question, the governments case can go straight down the drain.

The New York Times reported that the prosecution of two former JPMorgan Chase traders, Javier Martin-Artajo and Julien Grout, involved in transactions that culminated in 2012 in over $6 billion in losses for the bank, ended last Friday when the Justice Department announced it was dropping the case. Called a nolle prosequi motion, which means to be unwilling to pursue, prosecutors told the Federal District Court in Manhattan that Bruno Iksil, the major witness involved in the trades, who received the nickname London Whale for the outsize bets, was no longer a reliable witness.

Mr. Iksil created a website called London Whale Marionette to give his version of what happened, stating that this account looks quite different from the testimonies that I gave to the authorities. His admission that previous statements may not be accurate was certain to provide defense lawyers fodder for cross-examination to undermine his credibility if the case went to trial.

Whether that was ever going to happen was another question about the case. The Justice Department acknowledged in its motion that it was unable to extradite the two defendants from their home countries, Spain and France, so long as they stayed away from a nation that would send them to the United States.

Blaming Mr. Iksils commentary as the reason for dismissal could be a convenient face-saving means to drop a prosecution that was never going to reach the courtroom. The indictment of Mr. Martin-Artajo and Mr. Grout had languished since 2013, and the charges never reached anyone in JPMorgans senior management, despite Mr. Iksils claims that those well above him encouraged the risky trading. The bank paid out $920 million to settle multiple civil investigations of how it reported its losses.

The demise of the Libor and London Whale prosecutions shows how difficult it is for federal prosecutors to pursue charges in cases that reach across markets and involve defendants acting largely outside the United States.

One byproduct may be that the Justice Department will be more hesitant when it seeks to hold individuals responsible for misconduct by global financial companies, raising the prospect of even less accountability for corporate wrongdoing.

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Seven Observations About Jared Kushner’s Statement – Foreign Policy (blog)

Posted: at 11:54 am

It is always an important moment the first time in a scandal when we get to hear from the scandals subjects not the allegations against them but their responses to those allegations, not the obligatory comments, no-comments, or denials in the story itself but the subjects own version of the story. These moments are particularly clarifying when that story comes not in the form of some impulsive reaction say, an angry presidential tweet but instead as a carefully prepared presentation, one put together by competent counsel based on an extensive review of the record available to the subject. Such a presentation can be particularly useful when criminal consequences will attach to any knowing lies within it; this can happen either because the subject gives the statement under oath or because he or she gives it under circumstances in which false statements are otherwise barred by federal law.

In such situations, and Jared Kushers statement on Monday presents one such situation, we can with reasonable confidence make a few working, though always rebuttable, presumptions:

These are the presumptions with which the careful reader should peruse Kushners 11-page statement given today to congressional committees. The document reflects his lawyers review of a large volume of emails, phone records, calendar entries, and other documents available to them. It also reflects his memory. It is carefully prepared. And he could face prosecution if any of it is knowingly and intentionally false on a material point.

Kushners statement responds more confidently and convincingly on some allegations than on others. And in at least one major area, the statement maintains a conspicuous silence. Given that Kushners discussions with the committee on Monday, and others today, were closed, we do not know whether it held up well under questioning. But based on the document alone, here are seven observations about Kushners conduct we think are safe to tentatively advance at this stage.

The first notable feature of the document is that Kushner released it at all. Lawyers who believe their clients have potentially serious criminal exposure generally do not let them make public statements to congressional committees, particularly not public statements rife with firm factual claims the record may come to contradict. The very existence of this statement, in other words, is itself a show of confidence to some degree that Kusher whatever problems he might have is not in the sort of legal jeopardy which counsels silence. That he was apparently willing to answer questions about these matters from the Senate Intelligence Committee on Monday and the House Intelligence Committee today without asserting his Fifth Amendment rights further suggests his attorneys feel relatively good about their legal position.

Second, Kushner shows particular confidence on matters related to his meetings with Russians during the campaign. He describes what purports to be all of his contacts, certain or possible, with Russian government officials, and disputes some alleged contacts with Russian Ambassador Sergey Kislyak reported by Reuters. He treats all of the contacts as trivial, incidental interactions. As he will be in rather grave potential jeopardy if any evidence of more serious interactions emerges, its probably reasonable to expect that he and his lawyers are fairly certain that no more serious interactions will come to light. Notably, Kushner only disavows other contacts or any collusion with a narrow category of individuals those who were or seemed like they might be representatives of the Russian government. The statement thus leaves some ambiguity about contacts with figures whom a reasonable person in Kushners position might be understand as cutouts.

Third, to minimize his own contacts with Russian government representatives, Kushner rather casually throws his brother-in-law Donald Trump Jr. under the bus on the subject of the now-infamous meeting at Trump Tower with the Russian lawyer peddling dirt on Hillary Clinton on behalf of the Russian government. In Kushners version of the story, he arrived late and left early thereby conveniently missing all of the untoward stuff about the dirt; he didnt read the relevant emails, nor the subject line; and when his lawyers discovered the matter, he disclosed it:

I arrived at the meeting a little late. When I got there, the person who has since been identified as a Russian attorney was talking about the issue of a ban on U.S. adoptions of Russian children. I had no idea why that topic was being raised and quickly determined that my time was not well-spent at this meeting. Reviewing emails recently confirmed my memory that the meeting was a waste of our time and that, in looking for a polite way to leave and get back to my work, I actually emailed an assistant from the meeting after I had been there for ten or so minutes and wrote Can u pls call me on my cell? Need excuse to get out of meeting. I had not met the attorney before the meeting nor spoken with her since. I thought nothing more of this short meeting until it came to my attention recently. I did not read or recall this email exchange before it was shown to me by my lawyers when reviewing documents for submission to the committees. No part of the meeting I attended included anything about the campaign, there was no follow up to the meeting that I am aware of, I do not recall how many people were there (or their names), and I have no knowledge of any documents being offered or accepted. Finally, after seeing the email, I disclosed this meeting prior to it being reported in the press on a supplement to my security clearance form, even if that was not required as meeting the definitions of the form.

This strategy of exculpating himself at the expense of his fellows shows up also, albeit in a softer way, during his discussion of his transition contacts with Russian actors. In his account of the December 1 meeting with Kislyak and Lt. Gen. Michael Flynn at Trump Tower, he writes that:

[A]fter pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day [emphasis in original].

Note here that in the bolded passage, Kushner is not denying that a relationship existed before Election Day. He is merely contending that there is strong evidence that he was not aware of any relationship that existed before Election Day. He makes a similar move right at the end of the statement, where he declares that I did not collude, nor know of anyone else in the campaign who colluded, with any foreign government. This is Kushners code for saying that he knows he did nothing wrong but cannot and will not vouch for anyone else. A reasonable reader should conclude that these statements might be stronger were Kusher more confident of the behavior of his fellows.

Fourth, Kushners account of the back-channel communications system he proposed to Kislyak during the campaign is more damaging to himself. But again, the fact that hes willing to talk about it suggests that he does not fear criminal charges related to the subject. And, indeed, his explanation is at least a little bit less bizarre than the news stories that suggested he had proposed a secret ongoing line of communications to get around U.S. intelligence. In Kushners telling:

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his generals. He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. Nothing else occurred. I did not suggest a secret back channel. I did not suggest an on-going secret form of communication for then or for when the administration took office. I did not raise the possibility of using the embassy or any other Russian facility for any purpose other than this one possible conversation in the transition period. We did not discuss sanctions.

To be clear, Kushner is admitting here a gross impropriety. The right approach in this situation would have been to call the State Department and ask how to handle a sensitive communication from Russian generals who couldnt travel to the United States. Proposing the solution he advanced here could not have been better calculated to raise the hairs on the necks of FBI counterintelligence investigators.

Nor does Kushers statement address the substantive concerns about his being willing to have such talks at all during the transition period. For the relevant period, President Barack Obama was still the commander-in-chief. Holding talks with foreign governments regarding ongoing military engagements without any input from or visibility to the Department of Defense is highly unusual during a transition period. It violates the fundamental rule that the country has one president at a time. Recall that much of the scandal regarding Flynns contacts with Kislyak stemmed from concerns that he might have been working to undermine the sanctions policy of the sitting U.S. president.

If Kushner appreciates in retrospect the impropriety, he does not say so, but he and his lawyers have clearly decided to absorb the criticism he will and should face for it. They also appear to have decided that there was nothing criminal in the impropriety, and thus it is better to put out there so he can take the heat and move on.

Fifth, Kushners explanation of his meeting with a Russian banker close to Putin, by contrast, is actually reassuring. There has been a lot of speculation that this meeting was really about Kushners business. This had a menacing edge because the banker in question, Sergey Gorkov, is known to be close to Putin, so the idea of his lending money to Kushner or doing business with him raised obvious national security concerns much as the payments to Flynn continue to.

But on this point, Kushner claims that Gorkov appeared not in his capacity as a banker but as an emissary from the Russian president and that they did not discuss business matters at all:

My assistant reported that the Ambassador had requested that I meet with a person named Sergey Gorkov who he said was a banker and someone with a direct line to the Russian President who could give insight into how Putin was viewing the new administration and best ways to work together. I agreed to meet Mr. Gorkov because the Ambassador has been so insistent, said he had a direct relationship with the President, and because Mr. Gorkov was only in New York for a couple days. I made room on my schedule for the meeting that occurred the next day, on December 13.

The meeting with Mr. Gorkov lasted twenty to twenty-five minutes. He introduced himself and gave me two gifts one was a piece of art from Nvgorod, the village where my grandparents were from in Belarus, and the other was a bag of dirt from that same village. (Any notion that I tried to conceal this meeting or that I took it thinking it was in my capacity as a businessman is false. In fact, I gave my assistant these gifts to formally register them with the transition office). After that, he told me a little about his bank and made some statements about the Russian economy. He said that he was friendly with President Putin, expressed disappointment with U.S.-Russia relations under President Obama and hopes for a better relationship in the future. As I did at the meeting with Ambassador Kislyak, I expressed the same sentiments I had with other foreign officials I met. There were no specific policies discussed. We had no discussion about the sanctions imposed by the Obama Administration. At no time was there any discussion about my companies, business transactions, real estate projects, loans, banking arrangements or any private business of any kind. At the end of the short meeting, we thanked each other and I went on to other meetings. I did not know or have any contact with Mr. Gorkov before that meeting, and I have had no reason to connect with him since.

Sixth, Kushners account of his security clearance forms describes, at best, a terribly careless process. In his account, he didnt lie on his SF-86 form. An underling submitted it prematurely before it contained not just Russian but any foreign contact information. He then quickly notified the transition office that it needed to be supplemented but took many months to do so completely.

This is remarkably bad management. The Trump administration blames LAffaire Russe on media obsessions and bias, but at least as far as Kushner goes and this by his own account its largely a function of his failure over time to correct his own errors. After all, had each incremental development in the scandal not contradicted his SF-86 (assuming, of course, that his underlying narrative is accurate) the scandal would never have developed as it has. Kushner Met with Russian Ambassador as Disclosed on His Clearance Forms just isnt much of a headline.

The degree of carelessness with which Kushner apparently approached his SF-86 also reveals the perils of nepotism. Of course, mistakes happen. But most people fill out the SF-86 as if their job depends on getting it right. This is because for most people, their jobs do depend on their getting it right. Evidently, that assumption does not hold when youre married to the presidents daughter. Kusher showed the care of an individual confident he would not face any consequences for many errors uncorrected over a long period of time, and indeed, he hasnt.

Finally, theres at least one big area that is not discussed at all in Kushners statement. That is the question of the Trump campaigns and Cambridge Analyticas use of data analytics to target voters and the apparent micro-targeting of voters in key swing states by Russian trolls and bots. This is a matter of ongoing concern to the Senate Intelligence Committee, as Vice Chairman Mark Warner said recently on CBSs Face the Nation:

John Dickerson (host): You- Another area that it appears youre interested in is the data operation of the Trump campaign, which Jared Kushner was overseeing. Explain that. And is that, again, another extrapolation? Or do you have some evidence for that inquiry?

Sen. Mark Warner: Well, we do know that there was a series of Russian trolls, paid individuals, who worked for the Russian services that were trying to interfere and put fake news out. We also know they created whats called bots. In effect, internet robots that actually could interfere as well.

The question we have is: Did they somehow get information from some of the Trump campaign efforts to target that interference? We dont know that for sure. But what we do want to know is Id like to talk to the folks with Cambridge Analytica. Id like to talk to some of the folks from the Trump digital campaign.

We do know as well that Facebook, for example, that denied any responsibility during our election, by the time the French elections took place this past spring, they literally took down 30,000 fake sites. So they have in effect got religion about the need to police fake news.

We also know that Twitter its been reported that literally 8% of the Twitter accounts are fake. So those accounts can be manipulated as well. Id like not to re-litigate 2016. But I think the whole role of these social media platforms, in terms of disseminating fake news, is a policy question that were going to have to address.

Kushner did nothing to reassure on this point for reasons that are unclear.

All in all, Kushner did himself some good with this statement. Without seeing how he held up under examination from skeptical senators, it is hard to know how much good. But narrowing the field of contested facts is critical to isolating the signal from the noise in this sprawling scandal. Kushners statement is one small step in that direction. Putting an end to LAffaire Russe will take many more, much larger steps from many other people including President Donald Trump himself.

Photo credit:YURI GRIPAS/AFP/Getty Images

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Who killed Nicole Brown Simpson and Ron Goldman? – CBS News

Posted: at 11:54 am

O.J. Simpson will serve the remainder of his prison time in protected custody. Officials changed his status for safety reasons after a parole board voted unanimously last week to approve his release.

Simpson could walk out as soon as October 1, after serving nine years for armed robbery in Nevada.

65 Photos

From football fields to Hollywood to courtrooms, see O.J. through the years

In 1995, he was acquitted of the murders of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman.

CBS News correspondent Jericka Duncan reports the case is still an open investigation for the Los Angeles Police Department.

A reported 13.5 million people tuned into Simpson's parole hearing last week. That's far fewer than the estimated 150 million people who watched his 1995 acquittal.

Still, it shows the O.J. obsession lives on, as well as the debate over who killed Nicole Brown and Goldman.

"I'd just like to get back to my family and friends and believe it or not, I do have some real friends," Simpson said in court last week.

It's unclear what life outside prison will look like for Simpson. But one thing is certain it'll be a world well acquainted with his past.

"People will always want to be a part of the O.J. case," Loyola Law School professor Laurie Levinson said. "They'll always be looking for evidence that the LAPD missed. That's because it's a mystery that to some has not been solved."

28 Photos

On October 3, 1995 "The Trial of the Century" ended with the acquittal of former football star O.J. Simpson for double-murder - Where are all the...

A string of TV films this past year reignited America's fascination with Simpson's acquittal.

"The word 'open' for an investigation can mean so many things," Levinson said. "It may simply mean that because O.J. was acquitted, and they've never found another murderer, there's no reason to shut it down."

Immediately following the 1995 verdict, Simpson vowed to find justice for his ex-wife in a statement read by his son, Jason: "I will pursue as my primary goal in life, the killer or killer who slaughtered Nicole and Mr. Goldman."

But no additional arrests were made. Simpson went on to release what was called a fictional account of the crime entitled, "If I did it." That book caused former Simpson trial juror Lionel Cryer to have a change of heart.

"The book was the turning point for me to go to the feeling that he probably did kill those people," Cryer said.

Simpson has repeatedly maintained his innocence. Last year, there appeared to be a possible break in the case when a knife was reportedly discovered on the property Simpson once owned. But the tip led nowhere, leaving the case largely where it was in the 1990s.

"O.J. cannot be tried again because of double jeopardy, but he certainly can be questioned," Levinson said. "In fact, he doesn't have Fifth Amendment protection anymore."

The LAPD wouldn't provide any additional details in the case. Legal experts say there are plenty of challenges that go with investigating a crime that is more than 20 years old. Among them, the fact that prosecutors are dealing with decades-old evidence and memories.

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Section 702 Surveillance Authority: No Extension Unless Fourth Amendment Honored – HuffPost

Posted: at 11:53 am

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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