Techdirt has been following the fascinating experiment of allowing the public to crowdsource proposals for new laws in Finland. As we reported, the Citizen’s Initiative Act requires the Finnish Parliament to process any bill that collects 50,000 signatures from citizens of voting age. Last year, a bill to make copyright more balanced and better suited to the digital age managed to gather the requisite number of signatures, offering hope that it would be presented to the Finnish Parliament for a vote. But as TorrentFreak explained more recently, the Finnish Parliament’s Education and Culture Committee recommended that the “Common Sense For Copyright” bill should be rejected. TorrentFreak quotes the digital rights group EDRi’s explanation of what happened:
“In its report, the Committee notes that the initiative suggests several ambitious amendments, but that it considers it impossible to propose, based on the initiative, even partial changes to the existing copyright law,” EDRi notes.
“The report states that the initiative includes internal contradictions and that many of the amendments it suggests are too significantly incompatible with the current legislation.”
That’s rather telling, because the measures in “Common Sense For Copyright” are hardly radical:
The draft, the brainchild of the Open Ministry nonprofit, calls for reduced penalties for copyright infringement and current penalties to be applied only in cases of a commercial scale. Fair Use provisions would also be expanded, alongside exemptions for those wishing to backup purchased media and time-shift commercial content.
The fact that the Parliamentary committee thought that even these mild measures were “too significantly incompatible with the current legislation” underlines just how great the gulf is between actual copyright law and what many people feel would be fair. Sadly, a report on the Finnish public broadcasting company YLE’s website confirms that not only did the Finnish Parliament refuse to consider the bill, it has dismissed out of hand every crowdsourced bill that reached the 50,000 threshold:
Each of the six citizen’s initiatives that have proceeded through the proper channels to reach the parliamentary floor for discussion has failed. The Finnish Parliament says it doesn’t have the time to hear them and they can?t be moved to another date. Activists say technical shortcomings are poor justification for the slowness of the process.
That’s a truly disappointing end to a story that began on a hopeful note. When politicians won’t even allow the public these tiny expressions of democracy — just as the European Commission refused to allow a purely symbolic online petition against TAFTA/TTIP to go ahead — is it any wonder that people feel disenfranchised and disenchanted with politics these days, or that they are starting to take to the streets as a result?
The long-awaited “drone memo” has now been released, and it details the DOJ’s justifications for the extra-judicial killing of American citizens. While the government runs through various permutations of its arguments for “justified” killings, the short version can be boiled down to four letters: AUMF.
The memo (which starts at page 67 of the embedded document below — the legal decision ordering the release is above it) starts out with the DOJ doing Congress’ thinking for it. This part discusses the “authority” behind the killings, aligning it roughly with the deadly use of force by law enforcement, something that makes certain killings lawful under certain circumstances.
The justifications listed below constantly cite 18 USC 1119(b), a law that simply states that it’s illegal for a US citizen to kill another US citizen residing outside US borders, making them subject to the United States’ laws on murder and manslaughter. But what looks simple and solid on the law books is apparently filled with loopholes and things Congress meant to make clear but apparently didn’t.
But the recognition that a federal criminal statute may incorporate the public authority justification reflects the fact that it would not make sense to attribute to Congress the intent with respect to each of its criminal statutes to prohibit all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities, even if Congress has clearly intended to make those same actions a crime when committed by persons who are not acting pursuant to such public authority. In some instances, therefore, the better view of a criminal prohibition may well be that Congress meant to distinguish those persons who are acting pursuant to public authority, at least in some circumstances, from those who are not, even if the statute by terms does not make that distinction express.
What the DOJ basically argues here is that it would be perfectly fine for an NYPD officer to use justified, deadly force to shoot another American overseas. This would seem to be an unlikely event, but the NYPD has sent its officers all over the world in recent years, much to the dismay and irritation of local law enforcement and security agencies.
The DOJ further presses its point by comparing extrajudicial killings to speeding tickets (from the same paragraph as above).
Cf. Nardone v. United States, 302 U.S. 379, 384 (1937) (federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading “would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm”)
On page 73, the DOJ notes that there’s actually no federal statute that grants the government the same “rights” (in terms of justified use of deadly force) local law enforcement agencies enjoy, but that doesn’t slow down the rationalizing. The DOJ looks back through legislative to find something that might apply to its drone attacks. But what it quotes here has nothing to do with executions.
To close the “loophole under Federal Law which permits persons who murder Americans in certain foreign countries to go punished [sic],” id, the Thurmond bill would have added a new section to title 18 providing that “[w]hoever kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113 of this title.” S. 861, 102d Con g. (1991) (incorporated in S. I 241, 102d Con g. §§ 3201 -03 (1991 )). The proposal also contained a separate provision amending the procedures for extradition “to provide the executive branch with the necessary authority, in the absence of an extradition treaty, to surrender to foreign governments those who conunit violent crimes against U.S. nationals.”
It should be noted that none of the punishments listed are “death sentence without due process.” At best, the government is allowed to remand the US citizen to local law enforcement, should there be no extradition treaty in place. Thurmond’s bill does not say killings are justified if extradition isn’t practical.
It goes from there to twisting words around until its convinced they read differently than they actually read. The following argument can best be summed up as: “the killing is justified because the killing is justified.” Because we say its lawful, it must be lawful. (Hence the intense leaning on the AUMF later.)
It is true that here the target of the contemplated operations would be a U.S. citizen. But we do not believe al-Aulaqi ‘s citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case. As we have explained, section 119 incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to “unlawful” killings, 18 U.S.C. §§ 1111, 1112, a category that was intended to include, from all of the evidence of legislative intent we can find, only those killings that may not be permissible in light of traditional justifications for such action. At the time the predecessor versions of sections 1111 and 1112 were enacted, it was understood that killings undertaken in accord with the public authority justification were not “unlawful” because they were justified. There is no indication that, because section 1119(b) proscribes the unlawful killing abroad of U.S. nationals by U.S. nationals, it silently incorporated all justifications for killings except that public authority justification.
Now that the DOJ has established a “right” to conduct extrajudicial killings based mainly on public authority justifications granted to law enforcement, it then discussed whether this can be stretched to cover DoD and CIA operations. Here’s where the DOJ begins wading into the “War on Terror” justifications.
In light of the combination of circumstances that we understand would be present, and which we describe below, we conclude that the justification would be available because the operation would constitute the “lawful conduct of war”-a well-established variant of the public authority justification.
Technically, we’re not “at war” anywhere in the world. There’s no declared war, other than the one on terrorism, which the DOJ terms (using the AUMF wording) a “non-international armed conflict.” If this is the justification, terming anything a “war on…” would justify extrajudicial killing, because no one expects murder charges to be brought against them during normal acts of war (i.e., combatants killing other combatants).
Because the AUMF says we can detain a US citizen who is assisting our enemies, it also means we can kill a US citizen who does the same.
And thus, just as the AUMF authorizes the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of “necessary and appropriate” lethal force against a U.S. citizen who has joined such an armed force.
The DOJ also discusses the justifications for the CIA’s involvement, but much of that will still remain a mystery. Large portions of this have been redacted, but the discussion does start out with this unintentionally hilarious assertion.
[redacted] — the CIA — [redacted] would conduct the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict…
Maybe in light of its still-unreleased “Torture Report,” the DOJ might want to retract that statement. But the CIA’s justifications apparently aren’t that far off from the DoD’s, and they include the same willingness to put words in Congress’ mouth.
Thus, we conclude that just as Congress did not intend section 1119 to bar the particular attack that DoD contemplates, neither did it intend to prohibit a virtually identical attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, that the CIA would carry out in accord with [redacted].
Finally, the DOJ discusses the rights completely ignored by extrajudicial killing. First, the Fifth Amendment is dismissed because the AUMF trumps all.
In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen captured on the battlefield in Afghanistan and detained in the United States who wished to challenge the government’s assertion that he was a part of enemy forces, explaining that “the process due in any given instance is determined by weighing ‘the private interest that will be affected by the official action’ against the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.”
“Constitutionality,” in the DOJ’s hands, is mostly about what rights people don’t have.
We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi’s activities to United States persons is “continued” and “imminent…”
The explanation “above” is, of course, redacted.
The DOJ continues on to wave away the Fourth, again using the AUMF as justification.
The Fourth Amendment “reasonableness” test is situation-dependent. Cf Scott, 550 U.S. at 382 (Garner “did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force'”). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be reasonable in a situation like such as that at issue here. In the present circumstances, as we understand the facts, the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy’s overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible.
[redacted] at least where high-level government officials have determined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests the use of lethal force would not violate the Fourth Amendment. [redacted ] and thus that the intrusion on any Fourth Amendment interests would be outweighed by “the importance of the governmental interests [that] justify the intrusion…”
If it’s difficult, don’t try. At least that much agrees with law enforcement rationale. Why get a warrant when exigent circumstances can be abused? Why respect rights when you can claim there’s a “continued” and/or “imminent threat?”
A federal court on Friday dismissed an American Civil Liberties Union lawsuit on behalf of a U.S. citizen who was illegally detained and mistreated by American officials in three east African countries in 2007. After fleeing unrest in Somalia, New Jersey resident Amir Meshal was arrested, secretly imprisoned in inhumane conditions, and harshly interrogated by FBI agents over 30 times before ultimately being released without charge four months later.
The ACLU had argued that Meshal’s Fourth and Fifth Amendment rights were violated by these FBI agents, but the court has found that there’s no legal recourse available for Meshal. It even admitted that the allegations, along with the legal questions the decision itself raises, are “deeply troubling.” Unfortunately, the district court finds itself unable to do anything more than dismiss the case.
The defendants have moved to dismiss his case, alleging that even if Mr. Meshal’s allegations are true, he has no right to hold federal officials personally liable for their roles in his detention by foreign governments on foreign soil.
Except that it wasn’t just foreign governments. It also involved US FBI agents who operated extraterritorially, operating in an area where they had no true legal authority to pursue or detain suspects. Any imprisonment was courtesy of local governments in three East African nations. The alleged torture, however, was All-American.
Despite it being held that Americans are not stripped of their rights when they leave the country, the court finds that earlier precedent finds in favor of the government thanks to the always-useful evocation of “national security” and “terrorism.” (The FBI agents believed Meshal was connected with al-Qaeda.)
[I]n the past two years, three federal courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, have expressly rejected a Bivens remedy for citizens who allege they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs.
The decision notes that courts have been reluctant to insert themselves in matters of national security, either in terms of military detainment or actions resulting from executive orders. This court is no different, although Judge Emmet Sullivan at least has the modicum of decency to note how truly screwed up this whole situation is.
The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.
This is another win for the unsavory side of our government, which uses fear of terrorism as an excuse for all sorts of malfeasance and overreach. Rather than buck precedent, Judge Sullivan cites and follows, creating evenmore precedent that will make attempts to reverse this trend less and less likely.
As it stands now, the government need only claim it suspects you of terrorism to treat you however it wants once you leave the relative safety of the United States. No one is allowed to question actions performed under the color of national security. The State knows best and if you try to challenge its actions, you’ll find that route has been blocked by bad precedent set in deference to executive branch FUD.
The ACLU completely understates its opinion of this ruling.
“It is a sad day for Mr. Meshal and for all Americans, who have a right to expect better of their government and their courts than immunity for terrible government misconduct.”
Oh, we certainly have the right to expect better. We just don’t have any way of demanding it. That decision currently lies in the hands of legislators, a group that has also shown an appalling tendency to defer to national security fearmongering. Judge Sullivan knows this is terribly wrong but can’t find a way to get out from under bad precedent. Here’s hoping judges in the future can do better.
Two years ago, we wrote about a bizarre legal fight in which Escape Media, the company behind Grooveshark, was trying to force the blog Digital Music News to unveil an anonymous commenter who had commented on Grooveshark’s ongoing lawsuit with Universal Music. The comment claimed to be from a Grooveshark employee, though it seemed like the typical unsourced, improbable junk you’ll often find in certain anonymous comments — difficult to take seriously. And yet Escape Media issued a subpoena demanding Digital Music News reveal the commenter’s information. While I actually thought that Escape Media had a reasonable legal argument against the labels, we found this particular effort to unveil an anonymous commenter quite troubling. Similarly, while I often disagree with the opinions written on Digital Music News, I respect Paul Resnikoff, who runs the site, and actually helped put him in touch with Paul Levy from Public Citizen to respond to the subpoena.
A year ago, we were disappointed to see a trial court side with Grooveshark and order DMN “preserve” logs that had long ago been deleted in the regular course of DMN running its business. Even worse, the court wanted DMN to hand over its server hard drives for Grooveshark to try to do a forensic analysis of the deleted data to see if it could identify the deleted information about the commenter. DMN appealed the ruling and a California state appeals court has overturned the original ruling — but did so for reasons other than Levy and DMN had suggested.
Levy and DMN had argued, quite reasonably, that the First Amendment barred revealing the anonymous commenter and also that since the data had already been deleted in the regular course of business, that it cannot be required to preserve servers that might possibly have that data hidden somewhere. Instead, the court ruled in a different manner, saying that the commenter’s identity could be protected, but because of California’s constitutional privacy protections:
Even if Visitor’s identifying information was reasonably calculated to lead to
admissible evidence, his or her right to privacy under the California Constitution would
outweigh Escape’s need for the information. “The right to speak anonymously draws
its strength from two separate constitutional wellsprings: the First Amendment’s freedom
of speech and the right of privacy in article I, section 1 of the California Constitution.”
…. The
California Constitution provides that all people have a right of privacy…. This express right is broader than the implied federal right to privacy…. The California privacy
right “protects the speech and privacy rights of individuals who wish to promulgate their
information and ideas in a public forum while keeping their identities secret,” and “limits
what courts can compel through civil discovery.”
Perhaps even more interesting is that Justice Victoria Chaney appears to channel XKCD in pointing out that we can’t just go around willy-nilly identifying people online just because you don’t like what they say:
Visitor has done nothing
more than provide commentary about an ongoing public dispute in a forum that could
hardly be more obscure—the busy online comments section of a digital trade newspaper.
Such commentary has become ubiquitous on the Internet and is widely perceived to carry
no indicium of reliability and little weight. We will not lightly lend the subpoena power
of the courts to prove, in essence, that Someone Is Wrong On The Internet.
Usually, the NSA’s whoppers are so ham-fisted everyone knows them for falsehoods. And if there’s any question, you can usually rely on the fact that when the agency’s lips move, it’s stretching the truth so far that it’s as good as a lie.
But from the start of Snowden’s revelations, one of the NSA’s tall tales has differed vastly from the others. It’s so subtle and ubiquitous, such a consummate Big Lie, that even the surveillance-state’s fiercest critics haven’t spotted it.
“[T]here’s a great deal of minimization procedures that are involved here, particularly concerning any of the acquisition of information that deals or comes from US persons. As I said, only targeting people outside the United States who are not US persons.”
“There have been queries … using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States … These queries were performed pursuant to minimization procedures approved by the FISA court and consistent with the statute and the Fourth Amendment.”
Yep, those are my emphases again — and I included “Fourth Amendment” because that’s the biggest clue of all. Here’s the text of that strangled, mangled, moribund member of the Bill of Rights:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Anyone see notation there about “US persons” and “non-US persons?” Yet for basically its entire existence, the NSA has pretended that the Fourth prohibits the government from searching American citizens without a warrant (not that that’s stopped the spooks) while authorizing it to search the rest of the world willy-nilly.
But the Fourth’s language is so clear that even Clapper should comprehend it: without a warrant, the government may not “violate” anyone’s “person, house, papers, and effects.” Whether he’s Australian or American, from Utah or Uzbekistan, living in or visiting Mexico or Massachusetts is irrelevant.
“Wait a minute!” the NSA’s bureaucrats sneer. “‘People’ is just a synonym for ‘citizens.'”
Wrong. The Founding Fathers wrote “citizen” when that’s what they meant (remember, most of these Dead White Men were fluent in Greek and Latin, which is to say they understood and used language precisely). And though they employ “citizen” eleven times in the body of the Constitution, they mention only “people” and “persons” in the Bill of Rights. For example, when delineating the requirements for election to the House of Representatives, the Senate, and the presidency, the Constitution specifies the minimum number of years each official must have been a citizen.
But when the Constitution concludes, and its amendments begin, “citizen” goes on hiatus. As you may recall from high-school history, the Anti-Federalists insisted on adding ten amendments to the Constitution, the partial list of liberties known as the Bill of Rights. Anti-Federalists distrusted and loathed government, even the Constitution’s severely limited one: they eerily, accurately predicted today’s creeping totalitarian state and tried to protect themselves with a written guarantee that the government would never restrict their speech, disarm them, spy on them, etc.
The Anti-Federalists also realized that politicians and bureaucrats powerful enough to silence, disarm, and spy on foreigners will certainly pull the same stunts at home. That’s why the Bill of Rights consistently says “people,” as in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The nationality of the government’s victim doesn’t matter: politicians and bureaucrats may not silence, disarm, or spy on, etc., anyone. Then, bingo, when the Bill of Rights ends and nationality becomes pertinent again in the Eleventh Amendment, “citizen” pops up like clockwork.
Of course, at this point, discussions of the Constitution are somewhat academic: our rulers have amply demonstrated their disdain for it and us. But, unlike Sen. Dianne Feinstein or German Chancellor Angela Merkel, we should be as livid when the Feds spy on others as when they spy on us. The Constitution clearly, adamantly prohibits both.
Becky Akers is the author of two novels, Halestorm and Abducting Arnold. Both are set during the American Revolution, when Peeping Toms were horsewhipped rather than handsomely paid to spy on citizens.
Earlier today, we wrote about Senator Dianne Feinstein’s justified anger over the CIA “spying” on the Senate Intelligence Committee staffers as they went about putting together a massive (and apparently incredibly damning) report condemning the CIA’s torture program. Having now watched the whole video of her speech, as well as read the transcript, there’s a lot more here to discuss. You can watch the speech yourself if you’d like, or read the full transcript, which we’ve embedded below:
Apparently, some of the concerns actually stem from an earlier incident, from back in 2010, during which the CIA deleted access to a bunch of documents that it had previously given to the committee staffers. This came after an initial fight over whether or not the CIA would interfere with the staffers’ efforts. The Intelligence Committee eventually agreed with the CIA’s request that the research work be carried out on the CIA’s premises, but only after the CIA promised not to interfere and to leave the staffers alone. The staffers requested lots of documents, and the CIA did a full pure data dump on them, just handing over piles and piles of documents with no context at all. Basically, it appears the CIA sought to bury the staffers in bullshit, hoping to hide many of the important bits. In response, the staffers asked the CIA to provide an electronic search engine, in order to go through the electronic documents. Also, to keep things organized, the staffers would regularly make local copies and/or print out key documents so they could more easily organize them and keep track of them. Based on this, they noticed that some documents that had initially been available “went missing” in 2010:
In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.
After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.
This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements. Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset.
Apparently, this snafu was settled quietly between the intelligence committee and the CIA, with the CIA promising not to do it again.
Now, as we’ve been pointing out, and which was revealed by McClatchy and the NY Times last week, this latest fight is focused mostly on a draft of an internal review by the CIA of the torture program, conducted for then director Leon Panetta. Feinstein reveals some more key details about this document. First, it appears that Panetta more or less ordered the CIA to conduct what appears to be a “shadow review” of the very same documents that were being handed over to the Senate staffers. The report, as noted, appears to come to the same basic conclusions about the CIA’s torture program (i.e., that it went to insane lengths and produced absolutely nothing in the way of useful intelligence). This internal review also contradicted the CIA’s “official response” to the Intelligence Committee’s own report.
Here’s where it gets a bit trickier. When current CIA director John Brennan was asked for the full internal report, rather than the draft that the staffers had, there appears to have been a freakout at the CIA, because no one had intended for the intelligence committee to see the report, either as a draft or final report. The CIA appears to have believed that Senate staffers got access to the report illegally (hence the CIA’s request that the staffers be investigated for illegal activity). Feinstein denies all of this and notes that the draft report was among the many documents provided in the data dump — in what now looks like an accident by the CIA folks (and some contractors) in charge of compiling the data dump for the intelligence committee. The staffers “found” this document by using that search tool, which they’d asked the CIA to provide.
Feinstein goes on to reject the claims made by the CIA and CIA supporters that (1) the staffers should have known not to read the documents since they were marked “deliberative” or “privileged” and (2) that they somehow “mishandled” those classified documents by printing them out and bringing them to the Senate. As she notes, both of those claims make little sense. On the classification:
As with many other documents provided to the committee at the CIA facility, some of the Internal Panetta Review documents—some—contained markings indicating that they were “deliberative” and/or “privileged.” This was not especially noteworthy to staff. In fact, CIA has provided thousands of internal documents, to include CIA legal guidance and talking points prepared for the CIA director, some of which were marked as being deliberative or privileged.
Moreover, the CIA has officially provided such documents to the committee here in the Senate. In fact, the CIA’s official June 27, 2013, response to the committee study, which Director Brennan delivered to me personally, is labeled “Deliberative Process Privileged Document.”
We have discussed this with the Senate Legal Counsel who has confirmed that Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties.
That takes care of that. On the question of mishandling the documents, the argument is not quite as strong, but still quite reasonable. Yes, it does appear that staffers did not follow the exact process for removing the documents — in that they were supposed to first review it with CIA staffers, but the reasoning here is not so crazy. The review process was supposedly just so that the CIA could make sure that names of key people or details of operations weren’t revealed. The staffers made sure that all such info had been redacted before moving the document — and, of course, they recognized that this document was a bit of a smoking gun for the CIA in that it appeared to confirm that Director Brennan had been lying to the committee. Taking it to the CIA to review would be an odd move — especially for staffers tasked with oversight of the CIA itself. Even more important, the staffers noticed that, like back in 2010, that draft review document suddenly “disappeared” from their computer system, despite the previous promises that the CIA wouldn’t do that any more (also, she points out that the CIA had previously destroyed early evidence about their torture program). So they made the entirely reasonable decision to make a copy and store it in the Senate:
When the Internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities.
As I have detailed, the CIA has previously withheld and destroyed information about its Detention and Interrogation Program, including its decision in 2005 to destroy interrogation videotapes over the objections of the Bush White House and the Director of National Intelligence. Based on the information described above, there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.
Now, the Relocation of the Internal Panetta Review was lawful and handled in a manner consistent with its classification. No law prevents the relocation of a document in the committee’s possession from a CIA facility to secure committee offices on Capitol Hill. As I mentioned before, the document was handled and transported in a manner consistent with its classification, redacted appropriately, and it remains secured—with restricted access—in committee spaces.
Now that brings us to the latest “fight.” In late 2013, after the intelligence committee had seen that draft report, it had requested the final report from the CIA. That set off alarm bells in the CIA when they realized that the committee knew such a report existed, leading to a freakout and further “searching” the staffers’ supposedly private computers and networks:
Shortly thereafter, on January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.
According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.
Instead, the CIA just went and searched the committee’s computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta Review. In place of asking any questions, the CIA’s unauthorized search of the committee computers was followed by an allegation—which we have now seen repeated anonymously in the press—that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.
As I have described, this is not true. The document was made available to the staff at the offsite facility, and it was located using a CIA-provided search tool running a query of the information provided to the committee pursuant to its investigation.
Of course, as Julian Sanchez points out, from this description, it certainly appears that the CIA was collecting “just metadata,” and, as you may recall, Feinstein has been at the forefront of arguing that no one should care about the NSA’s activities, because it’s just metadata. Kinda funny how perspective shifts when it’s your metadata being discussed. Suddenly, it becomes a constitutional issue:
Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.
[….]
Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.
And yet that doesn’t apply when the NSA spies on all Americans? Yes, Feinstein is absolutely right to be angry about this. It is an astounding breach of protocol, and given that it’s the Senate Intelligence Committee’s job to oversee the CIA, it appears to be quite a brazen move by the CIA to effectively undermine the Senate’s oversight. It’s just too bad she doesn’t see how the very same things she’s angry about concerning her own staff apply equally to everyone else.
There’s one other issue in the speech that should be highlighted as well. She notes both of the referrals (that we’ve previously discussed) to the DOJ: the request to investigate the CIA’s activities, and the CIA’s tit-for-tat response asking for an investigation into the staffers’ access and removal of the draft Panetta review. Feinstein also points out that the person at the CIA who filed the crimes report against her staffers at the DOJ was heavily involved in the torture program the report condemns, and certainly suggests that the move is much more about intimidating Senate overseers:
Weeks later, I was also told that after the inspector general referred the CIA’s activities to the Department of Justice, the acting general counsel of the CIA filed a crimes report with the Department of Justice concerning the committee staff’s actions. I have not been provided the specifics of these allegations or been told whether the department has initiated a criminal investigation based on the allegations of the CIA’s acting general counsel.
As I mentioned before, our staff involved in this matter have the appropriate clearances, handled this sensitive material according to established procedures and practice to protect classified information, and were provided access to the Panetta Review by the CIA itself. As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting general counsel’s referral as a potential effort to intimidate this staff—and I am not taking it lightly.
I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.
And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.
Once again, it’s worth noting that these are the very same folks that, just weeks ago, Feinstein was insisting would never abuse their positions because they’re professionals. She said that on January 19th. That was just four days after CIA Director Brennan had told her about how the CIA had conducted the almost certainly illegal search on her own staffers.
And, of course, this is the point that many of us have been making all along to Feinstein and other kneejerk defenders of the intelligence community. No matter how “professional” they are, they’re still human. And given situations where their own jobs may be threatened, they’re going to do what they do, and that often leads to serious abuses, like the ones that now have Feinstein so angry. That’s why we’re so concerned by her lack of real oversight of the intelligence community for years, as well as the rather permissive attitude that both Congress and the courts have taken for years to the intelligence community, by insisting that they only do what they do for the purposes of “national security.” I’m curious what kind of “national security” reason the CIA has for spying on the very staffers who were investigating the CIA’s torture program?
California’s Modesto Junior College (MJC) [has] agreed to settle a First Amendment lawsuit filed last October by student Robert Van Tuinen, whom the college prevented from handing out copies of the Constitution on Constitution Day…
As part of the settlement, MJC has revised its policies to allow free speech in open areas across campus and has agreed to pay Van Tuinen $50,000. Van Tuinen was represented by the firm of Davis Wright Tremaine LLP in Washington, D.C., and assisted by the Foundation for Individual Rights in Education (FIRE).
The college, which previously “fought back” by complaining about negative press and “hatred and cruelty” directed at its staff, has overhauled its free speech policies, opening up the campus to students who wish to exercise their First Amendment rights.
Limited public forums on Modesto Junior College’s campus are “areas generally available to students and the community,” defined as grassy areas, walkways, or other similar common areas.
This is a significant improvement over MJC’s previous “free speech area,” which was a small concrete slab only accessible to students who had been granted “permission” by the administration in advance to exercise their free speech rights.
The timeframe available to students has also been expanded and is no longer limited to one-hour reserved slots.
Use of free speech areas is permitted every day from 8:00 am to 9:00 pm. Speakers who will be using the free speech areas outside normal working hours (Monday-Friday from 9:00 am to 5:00 pm) are encouraged to notify the Office of Student Development and Campus Life to coordinate their event.
Note the fact that contact is “encouraged” but not required. These new policies are now in effect not just at Modesto Junior College, but at all schools within the Yosemite Community College District.
While this is a heartening win for free expression on MJC’s campus, FIRE notes that 59% of colleges nationwide still uphold policies that restrict free expression on campus. That this particular situation resulted in litigation is unfortunate, considering the application of a little common sense by school administrators would have saved the college $50,000 plus whatever it racked up in legal fees defending a stupid, restrictive policy.
Modesto Junior College (MJC) has agreed to suspend enforcement of its “free speech zone” as it negotiates an end to a federal lawsuit filed by a student prevented from handing out copies of the Constitution on campus on Constitution Day.
A joint stipulation filed in federal district court yesterday by MJC and attorneys for student Robert Van Tuinen states that the parties have agreed on several significant revisions to the college’s “free speech policies and procedures,” pending final approval by the Yosemite Community College District, expected this spring.
Van Tuinen noted when he filed the lawsuit that he was primarily interested in changing the college’s “free speech” policies — which is now what finally seems to be happening. The most onerous regulations — limiting speech to the so-called “free speech zone” (a.k.a. the “little cement area“) and only with administration approval secured several days in advance — appear to have been written out of the new policy.
The proposed procedures would change district denial of permission to speak or distribute materials in open areas from “at its discretion” to “in a manner consistent with applicable law.” In general, the policy limits hate speech, use of microphones, soliciting money except for campus groups, blocking passers-by or being disruptive. It says people distributing materials should pick up the discards lying around campus.
As FIRE President Greg Lukanioff notes, these moves put MJC’s policies more “in line” with the First Amendment rather than operating in its proprietary First-Amendent-Free zone. Free speech isn’t really free when its routed through layers of administrative bureaucracy and sent to wait in line for a chance to utilize the “little cement area” so graciously begrudgingly bestowed by the college.
Trying to create a stress-free environment by ensuring as little free speech as possible occurs on campus is a disservice to students. It does nothing but allow administrators to avoid the uncomfortable situations and confrontations that necessarily arise from the exercise of free speech. Running an institute of higher learning isn’t supposed to be easy. If it is, you’re doing something wrong. The real world isn’t the sort of place where speech never offends. It also isn’t the sort of place where speech, offensive or not, waits in line patiently. Creating an insular environment handicaps the same people administrators are supposed to be preparing for the future. It’s good to see the district will be removing this ridiculous policy, which has done little but serve as a crutch for administrators who dislike being challenged.
On Constitution Day (Sept. 17th), a student of Modesto Junior College, Robert Van Tuinen, was prevented by Modesto Junior College administration from handing out copies of the Constitution. The college apparently believes free speech is limited to a single small concrete slab on campus, generously named the “Free Speech Zone.” Contrary to the First Amendment (and the state’s laws governing public university policies), MJC restricts free speech to no more than two people per day, subject to approval of the administration.
Van Tuinen set out to challenge the stupidity of this policy and MJC administration obligingly played its part, resulting in a story that spread across blogs and news sites. As a result of its actions, the staff at MJC was “subjected” to insults, death threats, and even worse, an “unfair and negative portrayal” by the media. While no one condones death threats, one would be hard pressed to agree with Jill Stearns, the president of MJC, that the portrayal was “unfair” or that the school’s willingness to place policy above all else, including the Constitution and common sense, wasn’t deserving of a few disparaging remarks.
Professor William J. Holly was kind enough to forward his entire email to me, as well as provide some additional info on California laws governing schools and students’ First Amendment rights, as well as this bizarre and tense interaction with school security over the supposed rule changes President Jill Stearns said were underway.
I do not know what rules are now in effect. Last week I stopped by campus security and asked what the rules now were, and he referred me to ASMJC office on the other campus. I said he must know what the rules are since he was responsible for enforcing the rules. He kept pushing the paper with the name of the office on it, saying he was referring me to that office. It got a little tense because I kept saying he must know the rules and should be able to let us know what the rules are. Finally, he said he was not allowed to discuss this with anyone because they are under litigation. Stearns says the rules are being reviewed. Does that mean there are no rules?
Stearns’ statement says the college is “evaluating its policies and procedures.” It also says this:
There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area.
There may not be one now, but that requirement was certainly in place back in September.
It also says this.
To those who were offended by the appearance of censorship, we again affirm the commitment of the college and district to civil discourse.
Hilarious. Pity the poor people who took offense at Van Tuinen being accosted by a campus cop and repeatedly told he’d need to get on the waiting list for the Freedom Slab and mistakenly believed it violated his First Amendment rights.
Holly does a wonderful job in his email dismantling Stearns’ non-apology.
[I]t is unclear what she means when she addresses “those who were offended by the appearance of censorship.” Van Tuinen was not subjected to the mere “appearance of censorship.” He was silenced and he was prevented from distributing his literature. That is outright censorship, pure and simple, whether it resulted from a misunderstanding or not.
But Holly’s letter is more than just a deconstruction of Stearns’ statements and MJC’s dubious policies. It’s also a wakeup call directed at his colleagues, many of whom were either unaware of this event or simply stood by and let incident pass by not remarked on.
Dear Colleagues:
The paper attached above (Destructing Causal Deconstruction) exposes some of the absurdities that are committed in the name of “Deconstruction.” I think it is a good read — clear, amusing, imaginative, and instructive. If you ever wondered what “deconstruction” is really about, you would be hard pressed to find a better introduction. One question that I cannot answer, however, is whether or not I would be arrested by a security officer if I insisted on wandering about the quad on our campus, handing out copies of this paper and discussing it with those who might be interested in the topic. This is not a silly question…
Nearly a month ago (Sept. 17th) one of our MJC students, Robert Van Tuinen (also a veteran), was trying to pass out copies of our federal Constitution on Constitution Day. He was prevented in this exercise of free speech by an MJC security officer, and then by an official at the office of Student Services who told him he was allowed freedom of speech and the right to pass out literature only in certain tiny restricted areas on our campus, and then only after booking a reservation — which would not be available until the following month!
I am puzzled why there has been no faculty outcry over this ugly incident. Why are we not standing up for our student who only wanted to exercise his constitutional right to free speech? Do we really want to be known nationwide as the college that wouldn’t let a veteran pass out copies of our Constitution on Constitution Day?
Holly’s not being facetious about “nationwide.” The story was picked up by the Huffington Post, the Washington Times, FOX News, the L.A. Times, along with numerous other well-read sites like Reason, the Daily Caller and National Review Online. But Modesto Junior College itself? Apparently it isn’t interested in providing current or prospective students (or faculty, for that matter) with anything more than the president’s statement.
The First Amendment in pertinent part says, ” Congress shall make no law … abridging the freedom of speech, or of the press …” Some have taken this to be a right you have against the Federal Government, but not (say) against the State of California (as though the rights you thought you had simply in virtue of being a citizen of the United States could be nullified by the particular state in which you live). Happily, the point is largely moot because the constitution of California has its own guarantees of rights that largely parallel the U.S. Constitution Bill of Rights — including separation of church and state, etc. Guarantees of freedom of expression even exist in parts of the California Code of Education, and even the University of California has a constitution that holds out these rights, and even individual campuses have their own codes regarding such things as Academic Freedom. At CSUS and at PLU, the rules that claim Academic Freedom for faculty make clear that such freedom should extend equally to students!
66301. (a) Neither the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.
Considering Van Tuinen’s lawsuit, the directly-following subsection is also relevant.
(b) A student enrolled in an institution, as specified in subdivision (a), at the time that the institution has made or enforced a rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon a motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action pursuant to this section.
Given the state law governing the public college, it would appear that MJC’s free speech policies are in violation of state law, not to mention the state’s constitution, even granting a very generous reading of “time, place and manner” wording.
Holly also questions the “formal apology” extended by the school to Van Tuinen. Whatever it was (and no one has seen it but Van Tuinen and administrators), it’s clearly not sufficient.
[W[e are told that a formal apology has been provided the student. It seems to me, however, that apologies in such cases are best made in public. I think Van Tuinen would want a published apology, a public admission that MJC had no right to deny him the exercise of his liberties that they did, and a promise that no other students would have their rights similarly violated. And, since the violation of the rights of one of our fellow citizens violates us all, I believe that we all are entitled to see a copy of that apology, to see the particulars of the concessions made, and to see in what manner those liberties now are affirmed that then were denied.
As Holly points out, the fact that Van Tuinen is proceeding with his lawsuit is a good indicator that the apology offered wasn’t satisfactory.
Holly then goes further, suggesting what should be done, not only to satisfy Van Tuinen, but to make sure other students know their rights are protected and ensure this sort of restriction doesn’t make its way back into the school policies in the future.
In one interview, [Van Tuinen] has said that he is not doing this for the money. I think what he wants is a civil rights victory. That should be easy to give him, especially if President Stearns is right this all has just been a misunderstanding…
If he doesn’t really care about money, if he just wants public acknowledgement that he was wronged, perhaps we should offer this: Buy him a couple thousand copies of the Constitution or of the Bill of Rights, and offer to make the individuals he has sued do community service that is relevant. Make them each do twenty hours of community service that consist of passing out copies of the Constitution and explaining to people the importance of everyone’s right to free speech. That ought to make him whole. And, to show my sincerity, I hereby offer to do 20 hours of such community service myself. Perhaps I too bear part of the responsibility here, because this one flew under my radar too. I did not check to see if my students’ rights to free speech were properly protected. Sometimes the implications of rules just do not strike us until we see them enforced.
Summing things up, Holly asks what some famous free speakers would run into if attempting to speak on MJC’s campus.
Now, if you do not like my suggestion that we should have a policy of completely free, unfettered and unqualified freedom of thought and expression on this campus, just ask yourself this one question: Suppose that Thomas Paine, the great pamphleteer (“These are the times that try men’s souls…”) were to come to MJC. Would you make him show his ID or make an advance appointment? Would you sic campus security and Student Services on him before allowing him to distribute his literature? Hell, what would you do if Jesus came? Would you have Student services tell Him he needs an appointment in advance, that the free speech zone is booked up until next month, and that He needs to confine his speech to the designated free speech zone areas? I say, Let Freedom Reign!
Holly’s effort to light a fire under his colleagues is admirable. Many people are too willing to defer to existing policy, especially if it doesn’t apply directly to them. Van Tuinen pushed back against an unconstitutional policy and has brought the idiocy of campus “Free Speech Zones” back into the national limelight. Holly doesn’t suggest throwing away all restraints on speech (exempting classrooms and faculty offices in order to prevent disruption of educating), but his view of what a “Free Speech Zone” should actually include covers far more area than MJC’s infamous concrete slab.
The entire email (embedded below) is worth a read, as is his Deconstructing Casual Deconstruction. Holly’s defense of students’ rights is a rarity in institutes of higher learning, many of which seem to believe the restraint of speech somehow creates better students.
We’ve written a few times about the attempt in Iceland to crowdsource a new Constitution. While that’s had some political troubles, despite widespread public support, it seems others are taking note. The folks over at the London School of Economics recently decided it might be a fun thought experiment to see if it would be possible to crowdsource a Constitution for the UK. While many are aware of things like the Magna Carta, which in many ways laid the groundwork for the US Constitution, the UK today does not have a single written constitutional document — meaning that there is no effective restriction on the UK Parliament’s actions (as the US Constitution restricts Congress in the US).
There have been a number of online discussions about ideas for this crowdsourced Constitution on the site linked above, which are worth reading, but recently the LSE held an event to do some of the crowdsourcing live, which they then released as a podcast (on a sidenote: if you’re interested in economics or world politics, I highly recommend the LSE podcast). The discussion is well worth listening to. They take a somewhat lighthearted approach to the whole thing, and it gets pretty amusing at a few points, but the discussion is still fascinating, as they debate concepts like whether or not the right to be treated equally belongs in a Constitution (and further, what does the statement even mean). There’s also a spirited argument made for not having a Constitution at all (and a rebuttal for why a Constitution would be really helpful).
While it’s unlikely that anything actually binding or important will come out of this process, it’s somewhat fascinating even to think through the process of making a Constitution, and it’s fun to see the LSE attempt to do the whole thing publicly.
