I would suggest that people encourage Mr. Ashcroft to take a few moments to reacquaint himself with the writings of the likes of James Madison, Benjamin Franklin and Thomas Paine, all figures of pre-eminent importance in regards to the founding of our republic. This would hopefully help Mr. Ashcroft to renew his appreciation for some of the principles of individual liberty and the purposes of Constitutional safeguards established by this nation’s crafters. These were done in order to offset the abuses of governmental power that inevitably come when too much power is concentrated in the hands of too few, and is no longer accountable to open view of the governed themselves.

In light of this, I believe Mr. Ashcroft’s attempts to circumvent the US Constitution through illegal legislation with the markedly Orwellian title of “Patriot Act” should not be considered acceptable by anyone, least of all by a public servant sworn to protect and defend the US Constitution (and not the privileges and political positions of ones friends and former business associates).

We do not need to turn America into the new Oceania, in perpetual pursuit of the ever-elusive Emmanuel Goldstein, or whatever phantoms he and his fellow Christian Jihaders can exploit in order to cow our nation into submissive fear. This fear can thus be much too easily exploited by those no longer held unaccountable to the will of the people.

As Thomas Paine said, those who wield power who hold themselves accountable to nobody should not be trusted by any body. Ashcroft’s efforts to establish more and more police powers without any direct accountability to the branches of govt. which our Constitution so clearly defines as having authority over, is un-American on the face of it. Such powers that he proposes with “Patriot Act II” (if you thought the first one was a winner, wait till you see the sequel!) are contradictory to the very nature of the republic which he claims to defend. I for one will not personally accept this administration’s efforts to ‘destroy the village of democracy in order to save it’.

So I would suggest he take his modern version of the Alien & Sedition Acts and put it in the File 13 of history where it belongs. This current effort on behalf of Mr. Ashcroft and the administration that he works for will one day be considered as big a blight on our national character as it’s antecedents, such as the Alien & Sedition Acts are considered today).

To paraphrase Bill Maher, perhaps now that Arnold The Terminator is an American public official, we can get him to translate the Patriot Act for us from it’s original German, and then have it shipped off to the leaders of Iran or China where Herr Ashcroft’s efforts would be much more at home and appreciated.

Originally posted November 2003

Take My Privacy, Please!
By Ted Koppel
The New York Times
Originally posted June 13, 2005

The Patriot Act - brilliant! Its critics would have preferred a less stirring title, perhaps something along the lines of the Enhanced Snooping, Library and Hospital Database Seizure Act. But then who, even right after 9/11, would have voted for that?

Precisely. He who names it and frames it, claims it. The Patriot Act, however, may turn out to be among the lesser threats to our individual and collective privacy.

There is no end to what we will endure, support, pay for and promote if only it makes our lives easier, promises to save us money, appears to enhance our security and comes to us in a warm, cuddly and altogether nonthreatening package. To wit: OnStar, the subscription vehicle tracking and assistance system. Part of its mission statement, as found on the OnStar Web site, is the creation of “safety, security and peace of mind for drivers and passengers with thoughtful wireless services that are always there, always ready.” You’ve surely seen or heard their commercials, one of which goes like this:

Announcer The following is an OnStar conversation. (Ring)
OnStar OnStar emergency, this is Dwight.
Driver (crying) Yes, yes??!
OnStar Are there any injuries, ma’am?
Driver My leg hurts, my arm hurts.
OnStar O.K. I do understand. I will be contacting emergency services.
Announcer If your airbags deploy, OnStar receives a signal and calls to check on you.
(Ring)
Emergency Services Police.
OnStar This is Dwight with OnStar. I’d like to report a vehicle crash with airbag deployment on West 106th Street.
Emergency Services We’ll send police and E.M.S. out there.
Driver (crying) I’m so scared!
OnStar O.K., I’m here with you, ma’am; you needn’t be scared.

Well, maybe just a little scared. Tell us again how Dwight knows just where the accident took place. Oh, right! It’s those thoughtful wireless services that are always there. Always, as in any time a driver gets into an OnStar-equipped vehicle. OnStar insists that it would disclose the whereabouts of a subscriber’s vehicle only after being presented with a criminal court order or after the vehicle has been reported stolen. That’s certainly a relief. I wouldn’t want to think that anyone but Dwight knows where I am whenever I’m traveling in my car.

Of course, E-ZPass and most other toll-collecting systems already know whenever a customer passes through one of their scanners. That’s because of radio frequency identification technology. In return for the convenience of zipping through toll booths, you need to have in your car a wireless device. This tag contains information about your account, permitting E-ZPass to deduct the necessary toll - and to note when your car whisked through that particular toll booth. They wouldn’t share that information with anyone, either; that is, unless they had to.

The State Department plans to use radio frequency identification technology in all new American passports by the end of 2005. The department wants to be sure that we all move through immigration quickly and efficiently when we return from overseas. Privacy advocates have suggested that hackers could tap into the information stored on these tags, or that terrorists might be able to use them to pinpoint American tourists in a crowd. The State Department assures us that both concerns are unfounded, and that it will allow privacy advocates to review test results this summer.

Radio frequency identification technology has been used for about 15 years now to reunite lost pets with their owners. Applied Digital Solutions, for example, manufactures the VeriChip, a tiny, implantable device that holds a small amount of data. Animal shelters can scan the chip for the name and phone number of the lost pet’s owner. The product is now referred to as the HomeAgain Microchip Identification System.
Useful? Sure. Indeed, it’s not much of a leap to suggest that one day, the VeriChip might be routinely implanted under the skin of, let’s say, an Alzheimer’s patient. The Food and Drug Administration approved the VeriChip for use in people last October. An Applied Digital Solutions spokesman estimates that about 1,000 people have already had a VeriChip implanted, usually in the right triceps. At the moment, it doesn’t carry much information, just an identification number that health care providers can use to tap into a patient’s medical history. A Barcelona nightclub also uses it to admit customers with a qualifying code to enter a V.I.P. room where drinks are automatically put on their bill. Possible variations on the theme are staggering.

And how about all the information collected by popular devices like TiVo, the digital video recorder that enables you to watch and store an entire season’s worth of favorite programs at your own convenience? It also lets you electronically mark the programs you favor, allowing TiVo to suggest similar programs for your viewing pleasure. In February, TiVo announced the most frequently played and replayed commercial moment during the Super Bowl (it involves a wardrobe malfunction, but believe me, you don’t want to know), drawing on aggregated data from a sample of 10,000 anonymous TiVo households. No one is suggesting that TiVo tracks what each subscriber records and replays. But could they, if they needed to? That’s unclear, although TiVo does have a privacy policy. “Your privacy,” it says in part, “is very important to us. Due to factors beyond our control, however, we cannot fully ensure that your user information will not be disclosed to third parties.”

Unexpected and unfortunate things happen, of course, even to the most reputable and best-run organizations. Only last February, the Bank of America Corporation notified federal investigators that it had lost computer backup tapes containing personal information about 1.2 million federal government employees, including some senators. In April, LexisNexis unintentionally gave outsiders access to the personal files (addresses, Social Security numbers, drivers license information) of as many as 310,000 people. In May, Time Warner revealed that an outside storage company had misplaced data stored on computer backup tapes on 600,000 current and former employees. That same month, United Parcel Service picked up a box of computer tapes in New Jersey from CitiFinancial, the consumer finance subsidiary of Citigroup, that contained the names, addresses, Social Security numbers, account numbers, payment histories and other details on small personal loans made to an estimated 3.9 million customers. The box is still missing.

Whoops!

CitiFinancial correctly informed its own customers and, inevitably, the rest of the world about the security breach. Would they have done so entirely on their own? That is less clear. In July 2003, California started requiring companies to inform customers living in the state of any breach in security that compromises personally identifiable information. Six other states have passed similar legislation.
No such legislation exists on the federal stage, however - only discretionary guidelines for financial institutions about whether and how they should inform their customers with respect to breaches in the security of their personal information.

Both the House and Senate are now considering federal legislation similar to the California law. It’s a start but not nearly enough. We need mandatory clarity and transparency; not just with regard to the services that these miracles of microchip and satellite technology offer but also the degree to which companies share and exchange their harvest of private data.

We cannot even begin to control the growing army of businesses and industries that monitor what we buy, what we watch on television, where we drive, the debts we pay or fail to pay, our marriages and divorces, our litigations, our health and tax records and all else that may or may not yet exist on some computer tape, if we don’t fully understand everything we’re signing up for when we avail ourselves of one of these services.

Ted Koppel was the anchor and managing editor of the ABC program “Nightline.”

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

True Patriots Act
By Richard A. Kaye
The Los Angeles Times

July 3rd, 2005

You shouldn’t have to surrender your liberties to prove you love the red, white and blue.

Given today’s war-on-terrorism rhetoric, it’s no surprise that patriotism dominates U.S. political discussions. Some of the more controversial parts of the Patriot Act are up for renewal, and the House of Representatives, after questioning a handful of its provisions, has approved the document. The debate on the merits of the act invariably has focused on the keen divide between the value of civil liberties and the imperatives of national security. Liberals worry about the Orwellian nature of the Patriot Act, while conservatives stress the necessary sacrifices in personal freedom required in the age of terrorism.
But something vital has been lost in this debate - namely, the disturbingly limited way in which many public officials define patriotism. Exactly when and how did patriotic feeling get defined in such reactive, negative terms? Since when does being patriotic require not so much a commitment to positive ideals and actions but, rather, to gestures that encourage an atmosphere of fearful watchfulness, xenophobia and the surrender of our freedoms?

Defenders of the Patriot Act insist that patriotism entails giving up some individual privacy to guard against the possibility of a terrorist attack from within or without. But patriotism also concerns a love of privacy and free speech and, not least important, a spirited willingness to defend those ideals.

Patriotism consists of multiple, positive actions on behalf of the United States - registering voters, working in an AIDS hospice, volunteering at a disadvantaged school or raising questions about the Bush administration’s full-throttle militarism. Almost no one today discusses the idea of national service that would require young people of different ethnicities and economic backgrounds to come together for community projects, not military ones. The most disturbing aspect of the New Patriotism is its suggestion that dissent about the war in Iraq - or even a simple questioning of progress there - is unpatriotic.

Patriotism was not always so jingoistically defined. As the Princeton political scientist Maurizio Viroli argues in “For Love of Country,” it was once a positive public virtue. According to the civic republican tradition (a tradition that includes thinkers as diverse as Machiavelli and Rousseau), patriotism was love not so much of country but of its republican forms and their traditions.

In Viroli’s account, the good patriot makes sacrifices, works hard to preserve republican values and participates in civic life. This version of patriotism emphasizes positive freedom - our ability to act on our own behalf for the sake of the freedom of the republic - as opposed to negative liberty - passively allowing the state to protect us and in the process rob us of our liberties. The patriot works aggressively to defend the freedoms that make a people a republic.

The specter of a passive citizenry surrendering its rights is sadly pertinent - as is the danger of not distinguishing between patriotism and nationalism. Patriotism, in the tradition outlined by Viroli, is an activist, participatory ideal. By contrast, nationalism is largely symbolic, and at its worst mere spectacle. (Witness the attempt by Congress to draft a constitutional amendment criminalizing flag burning.)

American historians remind us of those more enlightened moments in our history when patriotic feeling entailed a range of populist causes. Gordon S. Wood and Bernard Bailyn have separately documented the ways in which the Founding Fathers drew on classical republican ideals as they forged the ideology of a new nation.

Michael Kazin distinguished between patriotic sentiment and nationalistic passion. In “The Populist Persuasion,” he wrote, “[In the] late 1930s, under the aegis of the New Deal, institutional patriotism was flourishing: the opening of the Jefferson Memorial and the National Archives (displaying immaculately preserved copies of the Constitution and the Declaration of Independence) and WPA’s sponsorship of historic guides and murals all connoted a sunny view of the American prospect.”

We should reflect on these earlier traditions in American history. Although appeals to patriotism are almost always used for repressive purposes, a patriotic position should not be simply grounded in a citizen’s reflexive acceptance of fear and surveillance. It is also an active involvement in civic life.

There is always a negative side to patriotism in wartime. But in the climate created by the various “wars” in which the United States is involved today, there is no positive side - no higher task or mission is offered to people for which they can make real sacrifices. Other than spy on our neighbors and wrap oneself in the flag, our government asks little from its citizenry (it even is letting its citizens pay less in taxes and declines to establish a military draft).

Generating a culture of nervous suspicion, the Patriot Act outlandishly distorts an American tradition of patriotic thinking and action.

Richard A. Kaye is an associate professor of English at Hunter College.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Feds Say Banks Overreport Data
By Scot J. Paltrow
The Wall Street Journal

2004: Banks filed 689,414 suspicious-activity reports The government’s use of the Patriot Act to force financial institutions to report suspicious transactions has resulted in an avalanche of unwanted paper and computer tapes that officials who collect the data say is undermining efforts to detect money flowing to terrorists.
The government’s money-laundering crackdown in the past two years has ensnared a handful of banks that were fined for failing to report suspect transactions. This has prompted executives to file more “suspicious-activity reports” - the majority of which involve activity that isn’t suspicious at all, government and banking officials say.

This defensive filing by banks is clogging the database of the Treasury Department’s Financial Crimes Enforcement Network, which collects the reports, say current and former officials of the network, also known as FinCEN. In 2004, 689,414 suspicious-activity reports were filed, up from 507,217 in 2003 and 281,373 in 2002, FinCEN data show. In the first half of this year, roughly 400,000 reports were filed.

The volume indicates that banks’ tactic for avoiding regulatory scrutiny is “to file more reports, regardless of whether the conduct or transaction identified is suspicious,” said FinCEN Director William J. Fox in an April report. These defensive filings “have little value, degrade the valuable reports in the database and implicate privacy concerns.” Law-enforcement and intelligence officials can get detailed information about individuals from the database without having to request and justify subpoenas.

Banks have been required to file suspicious-activity reports since a 1992 amendment to the Bank Secrecy Act aimed at catching money launderers and drug smugglers. The Patriot Act expanded the requirement to include looking for signs of terrorist financial activity and increased banks’ responsibility for monitoring their customers. It also extended suspicious-activity reporting requirements to brokerage firms, casinos and firms that cash checks or transfer money overseas.

Money-laundering laws also require banks to file currency-transaction reports on any deposit or withdrawal of more than $10,000 in cash. They file about 13.6 million of these reports a year, a number that has stayed consistent because these reports don’t involve judgment calls.

The increased volume of suspicious-activity reports “is bad for the war on terrorism,” said Steve Bartlett, who heads the Financial Services Roundtable, a financial-services trade group. But “until some alterations are made in the system, I believe defensive filings will get worse.”

FinCEN collects the reports, but it has no control over the five federal agencies that regulate financial institutions. Those agencies employ nearly 10,000 bank examiners trained to avoid overlooking any shred of evidence suggesting terrorist activity.

Running afoul of regulators carries risks. In January, Riggs Bank in Washington pleaded guilty to a criminal count of not filing proper suspicious-activity reports involving foreign officials and was fined $16 million; it since has been bought by PNC Financial Services Group Inc. AmSouth Bancorp. of Birmingham, Ala., last year agreed to pay $50 million to avoid criminal charges in a deferred-prosecution deal with the Justice Department for failing to file suspicious-activity reports, including on some transactions used in an alleged Ponzi scheme.

So while FinCEN presses banks to be more selective, the banks say they are being pressured by regulators to report anything that technical criteria suggest may be suspicious, rather than analyzing transactions individually. FinCEN data show that some file reports simply because a customer made heavy use of an ATM or received or sent international wire transfers, or because the bank didn’t know the source of deposited money.

FinCEN and Federal Bureau of Investigation officials say that despite the vast amount of chaff among the wheat, the database is useful when law-enforcement agencies already have someone under scrutiny because they can tap it for more information.

But a main purpose of the Patriot Act provisions was to call attention to suspicious individuals in the first place _ a goal complicated by the volume of defensive filings. Mr. Fox says FinCEN’s 90 analysts can’t examine each report individually, so they use computer searches to ferret out the most promising reports. FinCEN officials estimate that of the 1.1 million reports filed since the Sept. 11, 2001, terrorist attacks, about 5,000 suggested possible terrorist activity.

Reports that FinCEN deems truly suspicious are passed on to law-enforcement agencies. In fiscal 2004, FinCEN passed on 878 reports, involving 136 individuals or businesses. Through the first week of June, it had passed on 543 reports, involving 96 individuals or businesses. It is unknown how many of these led to formal investigations or prosecutions.

Stuart Levey, the Treasury’s undersecretary for terrorism and financial intelligence, said in a May speech to bankers that he was “constantly receiving examples” of criminal investigations started in response to suspicious-activity reports and currency-transaction filings, and “we have indications that terrorist groups like al Qaeda and Hamas are feeling the pressure and are hurting for money.” But in written testimony for a House hearing several days later, Mr. Levey acknowledged uncertainty: “Al Qaeda does not release financial statements, and we will never know precisely how much money intended for terrorists never reached their hands due to our efforts.”

Outmoded filing systems also have hampered FinCEN. Just over 40 percent of the suspicious-activity reports are filed on paper. A further 21 percent come on computer tapes that must be reformatted before being entered into FinCEN’s database. The rest come via an up-to-date Internet-based system. Some experts question the value of the enterprise. Peter Djinis, a former FinCEN associate director, said sums transferred by the 9/11 terrorists were so small that most would have fallen below the radar screen of the current system.

The 9/11 Commission, in its July 2004 final report, reached a similar conclusion: “If a particular funding source had dried up, al Qaeda could have easily tapped a different source or diverted funds from another project to fund an operation that cost $400,000-$500,000 over nearly two years.” It added, “Nothing (the plotters) did would have led the banks to suspect criminal behavior, let alone a terrorist plot to commit mass murder.”

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Government Collected Airline Passenger Data
The Associated Press
June 20th, 2005

Washington - The federal agency in charge of aviation security collected extensive personal information about airline passengers even though Congress forbade it and officials said they wouldn’t do it, according to documents obtained Monday by The Associated Press.
The Transportation Security Administration bought and is storing details about U.S. citizens who flew on commercial airlines in June 2004 as part of a test of a terrorist screening program called Secure Flight, the documents indicate.

“TSA is losing the public’s trust,” said Tim Sparapani, a privacy lawyer with the American Civil Liberties Union. “They have a repeated, consistent problem with doing one thing and then saying they did another.”

Secure Flight and its predecessor, CAPPS II, have been criticized for secretly obtaining personal information about airline passengers and failing to do enough to protect it.

The TSA and several airlines were embarrassed last year when it was revealed that airlines gave personal information on 12 million passengers to the government without the travelers’ permission or knowledge. An inspector general’s report found TSA misled the public about its role in acquiring the data.

Class-action lawsuits have been brought against airlines and government contractors for sharing their passengers’ information. As a result, airlines agreed to turn over passenger data for testing only after they were ordered to do so by the government in November.

According to the documents, which will be published in the Federal Register this week, the TSA gave the data, known as passenger name records, to its contractor, Virginia-based EagleForce Associates. Passenger name records can include a variety of information, including name, address, phone number and credit card information.

EagleForce then compared the passenger name records with commercial data from three contractors that included first, last and middle names, home address and phone number, birth date, name suffix, second surname, spouse first name, gender, second address, third address, ZIP code and latitude and longitude of address. The reason for the comparison was to find out if the passenger name record data was accurate, according to the TSA.

EagleForce then produced CD-ROMs containing the information — except for latitude and longitude and spouse’s first name — “and provided those CD-ROMs to TSA for use in watch list match testing,” the documents said. TSA now stores that data.

According to previous official notices, TSA had said it would not store commercial data about airline passengers.

The Privacy Act of 1974 prohibits the government from keeping a secret database. It also requires agencies to make official statements on the impact of their record keeping on privacy.

The TSA revealed its use of commercial data in a revised Privacy Act statement to be published Wednesday in the Federal Register.

“This is like creating an FBI file, not just some simple check, and then they’re storing the data,” said Sparapani, the ACLU attorney.

TSA spokesman Mark Hatfield said the program was being developed with a commitment to privacy, and that it was routine to change Privacy Act statements during testing.

“Secure Flight is built on an airtight privacy platform, and the GAO (Government Accountability Office) and Congress are providing close oversight every step of the way,” Hatfield said. “The purpose of the testing is to define what the program will ultimately look like.”

The TSA said it is protecting the data from theft and carefully restricting access to it.

Congress said no money could be spent to test such an identity verification system “until TSA has developed measures to determine the impact of such verification on aviation security and the Government Accountability Office has reported on its evaluation of the measures.” That language was part of the Homeland Security Department spending bill, which became law Oct. 18.

The GAO issued its report on Secure Flight testing on March 28. The report gave the TSA a failing grade, saying the program hadn’t met nine of 10 criteria that Congress said it must meet before being implemented.

Hatfield said appropriate congressional committees were briefed in December on the contract awarded to EagleForce on Feb. 22.

But Bruce Schneier, a security expert who serves on the TSA-appointed oversight panel for Secure Flight, said the agency was explicitly told not to try to verify passengers’ identity with commercial data.

“They’re doing what they want and they’re working around any rules that exist,” Schneier said.

Last week, the Homeland Security Department’s chief privacy officer, Nuala O’Connor Kelly, announced she’s conducting an investigation of the TSA’s use of commercial data for Secure Flight testing.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Terror-Level Infringement?
By Paul Rapp
Metroland Magazine (Albany, NY)

June 2nd, 2005

Since Sept. 11, 2001, most folks agree in principle that we ought to be on a heightened state of alert. There are bad people who want to get us: They’ve shown they can do it, and stopping them before they do it again is a good thing.
And when we tell the government to circle the wagons, it’s to be expected that mistakes will be made. There will be overreaching, and rights will get stepped on. It’s inevitable. But it is the citizens’ job to tell the government when it has gone too far, because the government isn’t equipped to stop itself. Like a nasty fungus or a bad roommate, the government will expand to fill any available space. Along the way, the government will gobble up everything in sight- including fundamental rights-until somebody stands up to the inertia and says “stop that.”

This column is supposed to be about intellectual-property issues, so why am I harping about the “war on terror”? Because the two things have become joined.

Last week, a multilevel governmental strike force, apparently led by the Department of Homeland Security, shut down the Elite Torrents Web site, where bit- torrent-based peer-to-peer file trading was taking place. (Bit torrent is a new and superfast peer-to-peer networking technology.) If you go to www.elitetorrents.org, you will see, between the official seals of the Department of Homeland Security and the FBI, the following message: THIS SITE HAS BEEN PERMANENTLY SHUT DOWN BY THE FEDERAL BUREAU OF INVESTIGATION AND U.S. CUSTOMS AND IMMIGRATION ENFORCEMENT. Those running the Elite Torrents site are being criminally prosecuted by the Federal Department of Justice.

Maybe I’m missing something here, and I hope that I am, but the Department of Homeland Security (according to its Web site, www.dms.gov) “has three primary missions: Prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimize the damage from potential attacks and natural disasters.” And Elite Torrents was allowing the free distribution of copyrighted materials over the ‘Net. According to news reports, Elite Torrents made the new Star Wars movie Revenge of the Sith available six hours before the movie’s premiere, and was responsible for more than 10,000 downloads of the movie before the site was shut down.

One of these days I’ll discuss the legal ins and outs of file sharing over the Web, but suffice it to say that right now in this country, downloading free music, movies, and software without the copyright owners’ permission is a lot more illegal than legal, and it’s likely to stay that way. So the folks running Elite Torrents should have had an inkling that posting new movies-especially Revenge of the Sith-for free download on the Web would bring the wrath of the Motion Picture Association of America (MPAA) raining down upon them. The MPAA has always been super-aggressive against piracy and counterfeit goods, and of course it’s going to be absolutely tenacious as technology begins to allow for the quick and easy transfer of movie-sized files on the Web.

But the Department of Homeland Security? What are they doing here? Shouldn’t they be doing things like making sure some fanatic doesn’t bazooka a chemical plant or fly another plane into a building? Are we supposed to feel safer because geeky college kids can’t download pirated Star Wars movies any more?

What’s particularly distressing here is that we’re talking about the movement of information. OK, pirated information, but information all the same, and fairly benign information at that. Yeah, piracy’s a bad thing, and infringement can often be a bad thing, but frankly, not always. There are civil penalties for piracy and infringement, and if the activities are bad and systematic enough, there are criminal penalties as well. There have always been policies and processes to punish bad guys.

But it appears that the resources that are supposed to be used to keep the country safe are being used instead to keep the information industry happy and profitable. And beefed-up laws and mandates that were supposed to be used against enemies of the state-you know, the freakin’ evildoers-are being used against, at best, high-tech common criminals.

Dwight D. Eisenhower wasn’t a flaming liberal, and nobody ever accused him of being unpatriotic. Eisenhower warned in 1961, in his last speech as president, that the titans of national defense and of business, if allowed to run together, could nibble away at normal citizens’ basic liberties until the liberties were all gone:

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military- industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

“We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Early Version of New Patriot Act Gives Administration Everything It Asks For, GOP Aides Say
By Mark Sherman
The Associated Press

May 18th, 2005

Washington - The chairman of the Senate Intelligence Committee is working on a bill that would renew the Patriot Act and expand government powers in the name of fighting terrorism, letting the FBI subpoena records without permission from a judge or grand jury.
Much of the debate in Congress has concerned possibly limiting some of the powers in the anti-terrorism law passed 45 days after the attacks of Sept. 11, 2001.

But the measure being written by Sen. Pat Roberts, R-Kan., would give the FBI new power to issue administrative subpoenas, which are not reviewed by a judge or grand jury, for quickly obtaining records, electronic data or other evidence in terrorism investigations, according to aides for the GOP majority on the committee who briefed reporters Wednesday.

Recipients could challenge the subpoenas in court and the Bush administration would have to report to Congress twice a year exactly how it was using this investigatory power, the aides said.

The administration has sought this power for two years, but so far been rebuffed by lawmakers. It is far from certain that Congress will give the administration everything it wants this year.

Roberts’ planned bill also would make it easier for prosecutors to use special court-approved warrants for secret wiretaps and searches of suspected terrorists and spies in criminal cases, the committee aides said.

Eight expiring sections of the law that deal with foreign intelligence investigations would become permanent, they said.

So, too, would a provision that authorizes wiretapping of suspected terrorists who operate without clear ties to a particular terrorist network.

The aides spokes on condition of anonymity because Roberts has yet to make public the bill’s contents.

Opponents of expanding the Patriot Act said Roberts’ proposal would amount to an expansive wish list for the administration.

“While we’re fighting to bring provisions … back into balance with the Bill of Rights, here we have the intelligence committee moving to give the government more power outside the judicial system to gain access to records of Americans,” said former GOP Rep. Bob Barr of Georgia, a critic of the law.

Lisa Graves, the American Civil Liberties Union’s senior counsel for legislative strategy, said the new subpoena power would “be a dramatic expansion of secret search powers.”

Attorney General Alberto Gonzales and other administration officials have been adamant that the expiring provisions become permanent, with few changes.

They also have pushed for the administrative subpoena power, which they say prosecutors already are using in health care fraud and other criminal cases.

Justice Department officials have been consulted on the legislation and offered technical advice, department spokesman Kevin Madden said.

“The Department of Justice appreciates that the Senate Intelligence Committee has signaled their intention to support provisions that enhance law enforcement’s ability to combat terrorism effectively,” Madden said.

Committee aides said the committee planned to meet in private when it considers the bill because the discussions would involve intelligence operations.

Barr said he was distressed that the committee “would do something like this in secret.”

Sen. Jay Rockefeller, D-W.Va., the panel’s senior Democrat, has not said publicly whether he would support the entire bill that Roberts was working on or seek changes.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Left-Right Coalition Rises to Oppose USA Patriot Act Provisions
By Abid Aslam
OneWorld US

March 25th, 2005

Washington - A novel coalition of conservatives and liberals normally at each other’s throats over the nature of government and free speech have made common cause to oppose key parts of the USA Patriot Act anti-terrorism law.

The American Civil Liberties Union (ACLU), long vilified by conservatives, has joined forces with right-wing groups the American Conservative Union, Americans for Tax Reform, and the Free Congress Foundation to spearhead the “Patriots to Restore Checks and Balances” coalition.
The Patriot Act’s supporters have said it has kept America safe since 2001 but opponents have said the law is intrusive and threatens to let the government spy on innocent Americans. The new coalition will lobby Congress to roll back provisions allowing law enforcement agents to look at library users’ records and to conduct unannounced searches of homes and private offices.

“Checks and balances are absolutely essential, even and especially during times of threat,” said coalition leader Bob Barr, a former Republican Congressman from Georgia who voted for the law in 2001. “Our message is universal. Liberty is not divisible, even in the face of terrorism, and we must not allow any part of it to be sacrificed in our efforts to defeat acts of terrorism.”

Administration and Justice Department officials have said that the law contains strong civil liberties safeguards and that no civil liberties complaints have been filed against the legislation itself. Rather, they said, many of the complaints offered by civil libertarians have nothing to do with the law’s provisions.

The coalition came together to prevent politicians from branding Patriot Act opponents un-American or suggesting they are willing to help terrorists, as happened when the law first was debated, coalition members said at a news conference.

“We don’t want this argument to be obscured by those who would suggest that anyone who is for more and more government power is somehow on the side of the right, and those who are against it or are skeptical of such grants are on the side of the wrong,” said David Keene of the American Conservative Union. “This is an important question for all Americans on the left, the right, or in the middle.”

Key Patriot Act provisions are scheduled to expire on Dec. 31. The Senate and House Judiciary committees plan to open hearings in the next month on whether they should be renewed.

The coalition focused on three of the law’s most controversial provisions, asking that the wording of each be clarified to limit its scope to fighting terrorists and to prevent law enforcement agencies from using the law to silence dissent or go on fishing expeditions.

It urged that a provision giving agencies access to library, medical, and gun purchase records be modified to require law enforcement officials to present evidence to a federal judge supporting a link with suspected terrorism before warrants are served.

It sought similar limits on a provision allowing so-called “sneak and peek” searches of homes, businesses, and personal property without property owners’ or residents’ knowledge and with warrants delivered afterwards.

And it asked that the language of a provision allowing surveillance of protests be rewritten to require a definite connection with suspected terrorism.

“The Patriot Act went too far, too fast, and now is the time to determine what freedoms have been unnecessarily lost in the name of national security,” said the ACLU’s Laura Murphy. “Now is the time for Congress to restore those freedoms.”

Short for the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” the USA Patriot Act originally passed by 357-66 in the House of Representatives and 98-1 in the Senate.

President George W. Bush’s administration proposed the law, shepherded it through Congress, and enacted it in the immediate aftermath of the Sep. 11, 2001 terrorist attacks and the U.S. Senate’s evacuation because of anthrax.

The measure passed with neither chamber issuing the usual reviews of proposed legislation. “As a result, it lacks background legislative history that often retrospectively provides necessary statutory interpretation,” according to a detailed analysis of the law prepared by the Washington, D.C.-based Electronic Privacy Information Center.

Bush and Attorney General Alberto Gonzales, whose powers the law has greatly expanded, have called for the act’s renewal. Gonzales has suggested that provisions expanding the government’s surveillance and prosecutorial powers against suspected terrorists, their associates, and financiers should be strengthened.

“Debate about government exercise of powers that might infringe upon privacy or civil liberties, I think that’s an appropriate debate,” Gonzales told a recent meeting of the National Association of Counties. “But it’s got to be a real debate, one based on facts. And I’ve yet to hear a strong argument as to why the Patriot Act should not be reauthorized.”

The coalition faces a difficult fight in making changes to the law, Barr told reporters. The ACLU’s Murphy, however, said grassroots opposition to the law is growing.

Some 375 local and state governments representing more than 56 million Americans have passed resolutions opposing the law or some of its provisions, the ACLU said.

While many of these resolutions have no practical effect, proponents have said the measures serve to notify federal policymakers and agencies of public disapproval. Most of the resolutions called upon Congress to bring the Patriot Act back in line with the Constitution.

Foreign governments also have looked askance at the law, which gave the government new authority to collect information not only about U.S. citizens but also about visitors to the United States.

Last year, Latin American countries objected to sending census data and voter records to U.S. law enforcement agencies and Canadian officials warned that complying with the Patriot Act would violate Canadian law.

Other groups in the new coalition include the American Policy Center, Citizens’ Committee for the Right to Keep and Bear Arms, the Second Amendment Foundation, and the Association of American Physicians and Surgeons.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Worse Than Ashcroft
By Nat Hentoff
The Village Voice

November 29th, 2004

Bush’s new attorney general helped write the Patriot Act and supported torture.

His sharp intellect and sound judgment have helped shape our policies on the war on terror, policies designed to protect the security of all Americans while protecting the rights of all Americans.
- George W. Bush, announcing the appointment of Alberto Gonzales as attorney general, The New York Times, November 11

The American people expect and deserve a Department of Justice guided by the rule of law.
- Alberto Gonzales, accepting the nomination, The New York Sun, November 11

When you encounter a person who is willing to twist the law…even though for perhaps good reasons, you have to say you’re really undermining the law itself.
- Jim Cullen, retired chief judge of the U.S. Army Court of Criminal Appeals, referring to Alberto Gonzales, National Public Radio, November 11
————————————————

I do not approve of filibustering presidential nominees, no matter who is president, because the Constitution, along with the Federalist Papers, makes clear that the whole Senate is to give advice and consent to these presidential nominees. But if I were a senator, I would be sorely tempted to filibuster Alberto Gonzales. The Democrats, still shell-shocked by their second loss to Bush, and by the size of the Hispanic vote for the president, are not likely to filibuster Gonzales. But since Gonzales will be more dangerous to our liberties than Ashcroft, I will begin here to show how low the standards have become for the chief law enforcement officer of the nation. Maybe at least the American Bar Association and the Association of the Bar of the City of New York will stand up against Gonzales.

I must credit National Public Radio’s Nina Totenberg, an experienced analyst of constitutional law and a reporter who never stops digging to get to the core of Gonzales’s ominous record as White House counsel. On November 11, she pointed out: “Gonzales was responsible for developing the administration’s policies on the treatment of prisoners; for developing a new definition of torture to allow more aggressive questioning of prisoners. He developed the policy that allowed the indefinite detention of American citizens deemed to be enemy combatants without [being charged] or [having] access to counsel. . . . The Supreme Court, though, rejected that [Gonzales] theory . . .

“Top legal brass in the army, air force, and navy say that Gonzales deliberately left them out of developing policy on the treatment of prisoners because he knew they would oppose.”

On November 10, Totenberg quoted retired general Jim Cullen of the U.S. Army Court of Criminal Appeals, who says Gonzales directly contradicted established military and international law. He added that Gonzales realized that “the Judge Advocate Generals Corps would never sanction departures from the Geneva Conventions or engaging in practices that the common man would regard as torture.”

Says the Senate Judiciary Committee’s clueless attack dog in these matters, Charles Schumer, about Gonzales: “I can tell you already he’s a better candidate than John Ashcroft.”

There’s a lot more about Alberto Gonzales that will prepare you for what to expect for the next four years from the Justice Department. In a January 2002 memorandum to George W. Bush, he emphasized that this new war on terror “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

Gonzales also told George W. Bush that in denying these “detainees”-many of them now held at Guantánamo for nearly three years without charges-prisoner of war status under the Geneva Conventions, the president didn’t have to worry about being held accountable by the courts. As commander in chief, his actions were unreviewable.

Said the Supreme Court, in June, concerning the accuracy of the advice from the next attorney general of the United States about deep-sixing U.S. citizens, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of [American] citizens.” And the Court also ruled he was wrong about the noncitizen prisoners at Guantánamo.

Alberto Gonzales, moreover, will not in the least disturb John Aschroft’s beloved USA Patriot Act, because Gonzales helped write it, and he wholly agrees with his patron, the president, that nothing in it should be changed despite the act’s “sunset clause” that allows Congress to review sections of the act by December 2005.

As the February 11 Financial Times reports, Gonzales, as counsel to the president, worked “to bar top White House officials from testifying before the commission that investigated the September 11 attacks.” Nor has Gonzales shown any interest in an investigation of the accountability of leading administration officials, including their compliant lawyers, for the egregious abuses of the Abu Ghraib prisoners, to which Gonzales contributed.

Bluntly, an editorial in Financial Times (not a notably radical newspaper) says of Gonzales: “As well as being a longtime personal friend of the president, he is publicly associated with discussion within the administration of how to sidestep national as well as international constraints on the use of torture in interrogation in the prison camp at Guantánamo.”

If there ever is an honest investigation of who is ultimately responsible for what happened there and at Abu Ghraib, Mr. Gonzales might well be in the dock, along with Donald Rumsfeld and a number of the defense secretary’s closest aides.

Next week: Alberto Gonzales’s role, and record, as legal counsel to the then chief executioner of the United States, Texas Governor W. Bush, in deciding on the petitions for clemency from 57 of the 150 men and two women executed during Bush’s six years as governor. Gonzales was central to amassing that record-unrivaled by any other governor.

Those who know Gonzales, however, keep saying he’s a nice guy.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

FAS Project on Government Secrecy
Steven Aftergood
Secrecy News
Volume 2004, Issue No. 100

November 14, 2004

THE ARRIVAL OF SECRET LAW

Last month, Helen Chenoweth-Hage attempted to board a United Airlines flight from Boise to Reno when she was pulled aside by airline personnel for additional screening, including a pat-down search for weapons or unauthorized materials.
Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID), requested a copy of the regulation that authorizes such pat-downs.

“She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told that she couldn’t see it,” local TSA security director Julian Gonzales told the Idaho Statesman (10/10/04).

“She refused to go through additional screening [without seeing the regulation], and she was not allowed to fly,” he said. “It’s pretty simple.”

Chenoweth-Hage wasn’t seeking disclosure of the internal criteria used for screening passengers, only the legal authorization for passenger pat-downs. Why couldn’t they at least let her see that? asked Statesman commentator Dan Popkey.

“Because we don’t have to,” Mr. Gonzales replied crisply.

“That is called ’sensitive security information.’ She’s not allowed to see it, nor is anyone else,” he said.

Thus, in a qualitatively new development in U.S. governance, Americans can now be obligated to comply with legally-binding regulations that are unknown to them, and that indeed they are forbidden to know.

This is not some dismal Eastern European allegory. It is part of a continuing transformation of American government that is leaving it less open, less accountable and less susceptible to rational deliberation as a vehicle for change.

Harold C. Relyea once wrote an article entitled “The Coming of Secret Law” (Government Information Quarterly, vol. 5, no. 2, 1988) that electrified readers (or at least one reader) with its warning about increased executive branch reliance on secret presidential directives and related instruments.

Back in the 1980s when that article was written, secret law was still on the way. Now it is here.

A new report from the Congressional Research Service describes with welcome clarity how, by altering a few words in the Homeland Security Act, Congress “significantly broadened” the government’s authority to generate “sensitive security information,” including an entire system of “security directives” that are beyond public scrutiny, like the one former Rep. Chenoweth-Hage sought to examine.

The CRS report provides one analyst’s perspective on how the secret regulations comport or fail to comport with constitutional rights, such as the right to travel and the right to due process. CRS does not make its reports directly available to the public, but a copy was obtained by Secrecy News.

See “Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations,” Congressional Research Service, November 4, 2004:

http://www.fas.org/sgp/crs/RL32664.pdf

Much of the CRS discussion revolves around the case of software designer and philanthropist John Gilmore, who was prevented from boarding an airline flight when he refused to present a photo ID. (A related case involving no-fly lists has been brought by the ACLU.)

“I will not show government-issued identity papers to travel in my own country,” Mr. Gilmore said.

Mr. Gilmore’s insistence on his right to preserve anonymity while traveling on commercial aircraft is naturally debatable — but the government will not debate it. Instead, citing the statute on “sensitive security information,” the Bush Administration says the case cannot be argued in open court.

Further information on Gilmore v. Ashcroft, which is pending on appeal, may be found here:

http://papersplease.org/gilmore/

TSA THREATENS TO ARREST LEAKERS

Efforts by the Transportation Security Administration to investigate air marshals for talking to the press or the public “were appropriate under the circumstances,” the Department of Homeland Security Inspector General said last week, and did not constitute a “witch hunt.”

However, “air marshals from two locations said that they were threatened with arrest and prosecution if they were found to have released sensitive security information (SSI), even though release of SSI is not a prosecutable offense,” the Inspector General said.

In a related overstatement, Federal Air Marshal Service policy says that “employees who release classified information or records in any form without authority from the Classified Documents Custodian are in violation of United States Code and are subject to arrest and prosecution,” the DHS Inspector General (IG) noted.

But “We question the legal accuracy of this policy statement, which seems to criminalize all releases of classified information,” the IG wrote.

The unauthorized disclosure of classified information is a criminal offense only in certain narrowly defined circumstances.

See “Review of Alleged Actions by TSA to Discipline Federal Air Marshals for Talking to the Press, Congress, or the Public,” DHS Inspector General Audit Report, November 2004:

http://www.fas.org/sgp/othergov/dhs-ig-ssi.pdf

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