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Police Departments Retaliate Against Organized “Cop Watch” Groups Across the US


When communities attempt to police the police, they often get, well… policed.

In several states, organized groups that use police scanners and knowledge of checkpoints to collectively monitor police activities by legally and peacefully filming cops on duty have said they’ve experienced retaliation, including unjustified detainment and arrests as well as police intimidation.

The groups operate under many decentralized organizations, most notably CopWatch and Cop Block, and have proliferated across the United States in the last decade – and especially in the aftermath of the events that continue to unfold in Ferguson, Missouri, after officer Darren Wilson fatally shot unarmed, black teenager Michael Brown.

Many such groups have begun proactively patrolling their communities with cameras at various times during the week, rather than reactively turning on their cameras when police enter into their neighborhoods or when they happen to be around police activity.

Across the nation, local police departments are responding to organized cop watching patrols by targeting perceived leaders, making arrests, threatening arrests, yanking cameras out of hands and even labeling particular groups “domestic extremist” organizations and part of the sovereign citizens movement – the activities of which the FBI classifies as domestic terrorism.

Courts across the nation at all levels have upheld the right to film police activity. The American Civil Liberties Union (ACLU) and photographer’s associcationshave taken many similar incidents to court, consistently winning cases over the years. The Supreme Court has ruled police can’t search an individual’s cellphone data without a warrant. Police also can’t legally delete an individual’s photos or video images under any circumstances.

“Yet, a continuing stream of these incidents (often driven by police who have been fed ‘nonsense‘ about links between photography and terrorism) makes it clear that the problem is not going away,” writes Jay Stanley, a senior policy analyst at the ACLU’s Speech, Privacy & Technology Project.

Sources who have participated in various organized cop watching groups in cities such as New York; Chicago; Cleveland; Las Vegas; Oakland; Arlington, Texas; Austin and lastly Ferguson, Missouri, told Truthout they have experienced a range of police intimidation tactics, some of which have been caught on film. Cop watchers told Truthout they have been arrested in several states, including Texas, New York, Ohio and California in retaliation for their filming activity.

More recently, in September, three cop watchers were arrested while monitoring police activity during a traffic stop in Arlington, Texas. A group of about 20 people, a few of them associated with the Tarrant County Peaceful Streets Project, gathered at the intersection of South Cooper Street and Lynda Lane during a Saturday night on September 6 to film police as they conducted a traffic stop. A video of what happened next was posted at YouTube.

Arlington police charged Janie Lucero, her husband, Kory Watkins, and Joseph Tye with interference of public duties. Lucero and Watkins were charged with obstructing a highway while Tye was arrested on charges of refusing to identify himself.

Arlington police have defended the arrests of the three cop watchers, but the watchers say they weren’t interfering with police work, and were told to move 150 feet away from the officers – around the corner of a building where they couldn’t film the officers.

“When we first started [cop watching, the police] seemed kind of bothered a little bit,” Watkins told Truthout. “There was a change somewhere where [the police] started becoming a little bit more offended, and we started having more cop watchers so I guess they felt like they needed to start bringing more officers to traffic stops.”

On the night of Watkin’s arrest, his group had previously monitored two other traffic stops without any confrontation with Arlington police officers before the incident that led to the arrests.

Sometimes, though, retaliation against cop watching groups goes far beyond arresting cop watchers on patrol.

Cops Label Cop Watch Groups Domestic Terrorists

On New Year’s Day in 2012, Antonio Buehler, a West Point graduate and former military officer, witnessed two Austin police officers assaulting a woman. He pulled out his phone.

As he began photographing the officers and asking questions about their activities, the cops assaulted and arrested him. He was charged with spitting in a cop’s face – a felony crime.

However, two witness videos of the incident surfaced and neither of them showed that Buehler spit in Officer Patrick Oborski’s face. A grand jury was finally convened in March 2013 and concluded there was not enough evidence to indict Buehler on any of the crimes he was charged with.

A few months after the New Year’s Day incident, Buehler and other Austin-based activists started the Peaceful Streets Project (PSP), an all-volunteer organization dedicated to stopping police abuse. The group has held “Know Your Rights” trainings and a Police Accountability Summit. The group also regularly organizes cop watch patrols in Austin.

Since the PSP was launched, the movement has grown, with local chapters popping up in other cities and states across the United States, including Texas’ Tarrant County chapter, which the three cop watchers arrested in Arlington were affiliated with.

But as the Peaceful Streets movement spread, police retaliation against the groups, and particularly Buehler himself, also escalated.

“[The Austin Police Department (APD)] sees us as a threat primarily because we shine a spotlight on their crimes,” Buehler said.

The group recently obtained documents from the APD through a Freedom of Information Act (FOIA) request that reveal Austin police colluded to arrest Buehler and other cop watchers affiliated with the Peaceful Streets Project. Since the New Year’s Day incident, Buehler has been arrested three more times by APD officers. At least four other members of PSP have been arrested on charges of interference or failing to identify themselves during their cop watching activities.

The emails indicate APD officers monitored Buehler’s social media posts and attempted to justify arresting him for another felony crime of online impersonation over an obviously satirical post he made on Facebook, as well as reveal that some APD officers coordinated efforts to stop PSP members’ legal and peaceful activities, even suggesting reaching out to the District Attorney’s office to see if anything could be done to incarcerate members of the group.

Another internal email from APD senior officer Justin Berry identifies PSP as a “domestic extremist” organization. Berry writes that he believes police accountability groups including PSP, CopWatch and Cop Block are part of a “national domestic extremism trend.” He believes he found “mirror warning signs” in “FBI intel.” Berry makes a strange attempt to lump police accountability activists and the hacker-collective Anonymous in with sovereign citizens groups as a collective revolutionary movement.

“Sovereign citizens” groups generally believe federal, state and local governments are illegitimate and operate illegally. Some self-described sovereign citizens create fake license plates, identification and forms of currency to circumvent official government institutions. The FBI classifies the activities of sovereign citizens groups as domestic terrorism, considering the groups a growing “domestic threat” to law enforcement.

Buehler told Truthout the APD is working with a Department of Homeland Security (DHS) fusion center to attempt to identify PSP as a sovereign citizens group to associate its members with domestic terrorism with state and federal authorities. DHS fusion centers are designed to gather, analyze and promote the sharing of intelligence information between federal and state agencies.

“They have spent a fair amount of resources tracking us, spying on us and infiltrating our group, and we are just peaceful activists who are demanding accountability for the police,” Buehler told Truthout. “They have absolutely no evidence that we’ve engaged in any criminal activity or that we’ve tried to engage in criminal activity.”

APD officials did not respond to a request for comment.

“They’ve pushed us; they’ve assaulted us for filming them; they’ve used their horses against us and tried to run us into walls; they’ve driven their cars up on us; they illegally detained us and searched us; they get in our face and they yell at us; they threaten to use violent force against us,” Buehler said. “But we didn’t realize until these emails just how deep this intimidation, how deep these efforts were to harm us for trying to hold them accountable.”

Buehler also said the group has additional internal emails which have not been released yet that reveal the APD attempted to take another charge to the District Attorney against him for felony child endangerment over the activities of a teenaged member of PSP.

He said he and other members of PSP were interested in pursuing a joint civil action against the APD over their attempts to frame and arrest them for their First Amendment activities.

This is not the first time a municipal police department has labeled a local cop watching group as an extremist organization.

In 2002, internal files from the Denver Police Department’s (DPD) Intelligence Unit were leaked to the ACLU, revealing the unit had been spying on several activist groups in the city, and keeping extensive records about members of the activist groups. Many of these groups were branded as “criminal extremist” organizations in what later became a full-scale controversy widely known as the Denver police’s “spy files.” Some of the groups falsely branded as “criminal extremist” groups included three police accountability organizations: Denver CopWatch, End the Politics of Cruelty and Justice for Mena.

Again, from October 2003 through the Republican National Convention (RNC) in August 2004, intelligence digests produced by the New York City Police Department (NYPD) on dozens of activist groups, including several police accountability organizations, were made public under a federal court order. TheNYPD labeled participants of the “Operation CopWatch” effort as criminal extremists.

Those who participated in “Operation CopWatch” during the RNC hoped to identify undercover cops who might attempt to provoke violence during demonstrations and document police violence or misconduct against protesters.

Communities Benefiting From Cop Watch Patrols Resist Police Retaliation Against Watchers

In some major urban areas, rates of police harassment of individuals drop considerably after cop watchers take to the streets – and communities band together to defend cop watch patrols that experience police retaliation, say veteran cop watchers.

Veteran police accountability activist José Martín has trained and organized with several organizations that participate in cop watch activities. Martín has been detained and arrested several times while cop watching with organized patrols in New York and Chicago.

His arrests in New York are part of a widely documented problem in the city. In fact, retaliation in New York against cop watchers has been so widespread that the NYPD had to send out an official memo to remind officers that it is perfectly legal for civilians to film cops on duty.

Martín described an experience in Chicago in which he felt police unjustly retaliated against him after a local CopWatch group formed and began regularly patrolling Chicago’s Pilsen neighborhood. After the group became well-known by the Pilsen community, residents gathered around an officer who had detained Martín after a patrol one night in 2009, calling for his release. The officer let him go shortly after.

“When cop watchers are retaliated against, if the community is organized, if there is a strong relationship between cop watch patrols and the community, but most importantly, if the cop watchers are people of the community, that community has the power to push back against retaliation and prevent its escalation,” Martín said. “Retaliation doesn’t work if you stand together.”

Another veteran cop watcher, Jacob Crawford, co-founder of Oakland’s We Copwatch, is helping the community of Ferguson, Missouri, organize cop watch patrols and prepare the community for the potential of police retaliation. His group raised $6,000 to pass out 110 cameras to organizers and residents in Ferguson, and train them to monitor police activity in the aftermath of the upheavals that rocked the city after Wilson killed Brown.

“I do expect retaliation, I do expect that these things won’t be easy, but these folks are in it,” Crawford told Truthout. “This is something that makes more sense to them than not standing up for themselves.”


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11 Shocking Facts About America’s Militarized Police Forces


The militarization of police is harming civil liberties, impacting children, and transforming neighborhoods into war zones.

The “war on terror” has come home–and it’s wreaking havoc on innocent American lives.  The culprit is the militarization of the police.

The weapons used in the “war on terror” that destroyed Afghanistan and Iraq have made their way to local law enforcement. While police forces across the country began a process of militarization complete with SWAT teams and flash-bang grenades when President Reagan intensified the “war on drugs,” the post-9/11 “war on terror” has added fuel to the fire.

Through laws and regulations like a provision in defense budgets that authorize the Pentagon to transfer surplus military gear to police forces, local law enforcement are using weapons found on the battlefields of South Asia and the Middle East.

A recent New York Times article by Matt Apuzzoreported that in the Obama era, “police departments have received tens of thousands of machine guns; nearly 200,000 ammunition magazines; thousands of pieces of camouflage and night-vision equipment; and hundreds of silencers, armored cars and aircraft.”  The result is that police agencies around the nation possess military-grade equipment, turning officers who are supposed to fight crime and protect communities into what look like invading forces from an army. And military-style police raids have increased in recent years, with one count putting the number at 80,000 such raids last year.

In June, the American Civil Liberties Union (ACLU) brought more attention to police militarization when it issued a comprehensive, nearly 100-page (appendix and endnotes included) report titled, “War Comes Home: The Excessive Militarization of American Policing.”  Based on public records requests to more than 260 law enforcement agencies in 26 states, the ACLU concluded that “American policing has become excessively militarized through the use of weapons and tactics designed for the battlefield” and that this militarization “unfairly impacts people of color and undermines individual liberties, and it has been allowed to happen in the absence of any meaningful public discussion.”

The information contained in the ACLU report, and in other investigations into the phenomenon, is sobering. From the killing of innocent people to the lack of debate on the issue, police militarization has turned into a key issue for Americans. It is harming civil liberties, ramping up the “war on drugs,” impacting the most marginalized members of society and transforming neighborhoods into war zones.  Here are 11 important–and horrifying–things you should know about the militarization of police.

1. It harms, and sometimes kills, innocent people. When you have heavily armed police officers using flash-bang grenades and armored personnel carriers, innocent people are bound to be hurt.  The likelihood of people being killed is raised by the practice of SWAT teams busting down doors with no warning, which leads some people to think it may be a burglary, who could in turn try to defend themselves. The ACLU documented seven cases of civilians dying, and 46 people being injured.  That’s only in the cases the civil liberties group looked at, so the number is actually higher.

Take the case of Tarika Wilson, which the ACLU summarizes.  The 26-year-old biracial mother lived in Lima, Ohio.  Her boyfriend, Anthony Terry, was wanted by the police on suspicion of drug dealing.  So on January 4, 2008, a SWAT team busted down Wilson’s door and opened fire.  A SWAT officer killed Wilson and injured her one-year-old baby, Sincere Wilson. The killing sparked rage in Lima and accusations of a racist police department, but the officer who shot Wilson, Sgt. Joe Chavalia, was found not guilty on all charges.

2. Children are impacted. As the case of Wilson shows, the police busting down doors care little about whether there’s a child in the home.  Another case profiled by the ACLU shows how children are caught up the crossfire–with devastating consequences.

In May, after their Wisconsin home had burned down, the Phonesavanh family was staying with relatives in Georgia. One night, a SWAT team with assault rifles invaded the home and threw a flashbang grenade–despite the presence of kids’ toys in the front yard.  The police were looking for the father’s nephew on drug charges.  He wasn’t there.  But a 19-month-old named Bou Bou was–and the grenade landed in his crib.

Bou Bou was wounded in the chest and had third-degree burns. He was put in a medically induced coma.

Another high-profile instance of a child being killed by paramilitary police tactics occurred in 2010, when seven-year-old Aiyana Stanley-Jones was killed in Detroit.  The city’s Special Response Team (Detroit’s SWAT) was looking for Chauncey Owens, a suspect in the killing of a teenager who lived on the second floor of the apartment Jones lived in.

Officers raided the home, threw a flash-bang grenade, and fired one shot that struck Jones in the head.  The police agent who fired the fatal shot, Joseph Weekley, has so far gotten off easy: a jury trial ended in deadlock last year, though he will face charges of involuntary manslaughter in September.  As The Nation’s Mychal Denzel Smith wrote last year after Weekley was acquitted: “What happened to Aiyana is the result of the militarization of police in this country…Part of what it means to be black in America now is watching your neighborhood become the training ground for our increasingly militarized police units.”

Bou Bou and Jones aren’t the only case of children being impacted.

According to the ACLU, “of the 818 deployments studied, 14 percent involved the presence of children and 13 percent did not.”

3. The use of SWAT teams is unnecessary.  In many cases, using militarized teams of police is not needed.  The ACLU report notes that the vast majority of cases where SWAT teams are deployed are in situations where a search warrant is being executed to just look for drugs. In other words, it’s not even 100% clear whether there are drugs at the place the police are going to.  These situations are not why SWAT was created.

Furthermore, even when SWAT teams think there are weapons, they are often wrong. The ACLU report shows that in the cases where police thought weapons would be there, they were right only a third of the time.

4. The “war on terror” is fueling militarization. It was the “war on drugs” that introduced militarized policing to the U.S.  But the “war on terror” has accelerated it.

A growing number of agencies have taken advantage of the Department of Defense’s “1033” program, which is passed every year as part of the National Defense Authorization Act, the budget for the Pentagon.  The number of police agencies obtaining military equipment like mine-resistant ambush protected (MRAP) vehicles has increased since 2009,according to USA Today, which notes that this “surplus military equipment” is “left over from U.S. military campaigns in Iraq, Afghanistan and elsewhere.”  This equipment is largely cost-free for the police agencies who receive them.

In addition to the Pentagon budget provision, another agency created in the aftermath of 9/11 is helping militarize the police.  The Department of Homeland Security’s (DHS) own grants funnel military-style equipment to local police departments nationwide.  According to a 2011 Center for Investigative Reporting story published by The Daily Beast, at least $34 billion in DHS grants have gone to police agencies to buy military-style equipment.  This money has gone to purchase drones, tactical vests, bomb-disarming robots, tanks and more.

5. It’s a boon to contractor profits. The trend towards police militarization has given military contractors another lucrative market where they can shop their products.  Companies like Lockheed Martin and Blackhawk Industries are making big bucks by selling their equipment to agencies flush with Department of Homeland Security grants.

In addition to the actual selling of equipment, contractors also sponsor training events for SWAT teams, like Urban Shield, a major arms expo that has attracted increasing attention from activists in recent years.  SWAT teams, police agencies and military contractors converge on Urban Shield, which was held in California last year, to train and to promote equipment to buy.

6. Border militarization and police militarization go hand in hand. The “war on terror” and “war on drugs” aren’t the only wars helping police militarization.  There’s also the war on undocumented immigrants.

The notorious Sheriff Joe Arpaio, infamous for brutal crackdowns on undocumented immigrants, is the paradigmatic example of this trend.  According to the ACLU, Arpaio’s Maricopa County department has acquired a machine gun so powerful it could tear through buildings on multiple city blocks.  In addition, he has 120 assault rifles, five armored vehicles and ten helicopters. Other law enforcement agencies in Arizona have obtained equipment like bomb suits and night-vision goggles.

Then there’s a non-local law enforcement agency on the border: the Border Patrol, which has obtained drones and attack helicopters.  And Border Patrol agents are acting like they’re at war.  A recent Los Angeles Times investigation revealedthat law enforcement experts had found that that the Border Patrol has killed 19 people from January 2010-October 2012, including some of whom when the agents were under no lethal, direct threat.

7. Police are cracking down on dissent. In 1999, massive protests rocked Seattle during the World Trade Organization meeting.  The police cracked down hard on the demonstrators using paramilitary tactics. Police fired tear gas at protesters, causing all hell to break loose.

Norm Stamper, the Seattle police chief at the time, criticized the militarized policing he presided over in a Nation article in 2011.  “Rocks, bottles and newspaper racks went flying. Windows were smashed, stores were looted, fires lighted; and more gas filled the streets, with some cops clearly overreacting, escalating and prolonging the conflict,” wrote Stamper.

More than a decade after the Seattle protests, militarized policing to crack down on dissent returned with a vengeance during the wave of Occupy protests in 2011. Tear gas and rubber bullets were used to break up protests in Oakland.Scott Olsen, an Occupy Oakland protester and war veteran, was struck in the head by a police projectile, causing a fractured skull, broken neck vertebrae and brain swelling.

8. Asset forfeitures are funding police militarization. In June, AlterNet’s Aaron Cantuoutlined how civil asset forfeiture laws work.

“It’s a legal fiction spun up hundreds of years ago to give the state the power to convict a person’s property of a crime, or at least, implicate its involvement in the committing of a crime. When that happened, the property was to be legally seized by the state,” wrote Cantu.  He went on to explain that law enforcement justifies the seizing of property and cash as a way to break up narcotics rings’ infrastructure.  But it can also be used in cases where a person is not convicted, or even charged with, a crime.

Asset forfeitures bring in millions of dollars for police agencies, who then spend the money for their own uses.  And for some police departments, it goes to militarizing their police force.

New Yorker reporter Sarah Stillman, who penned a deeply reported piece on asset forfeitures,wrote in August 2013 that“thousands of police departments nationwide have recently acquired stun grenades, armored tanks, counterattack vehicles, and other paramilitary equipment, much of it purchased with asset-forfeiture funds.”  So SWAT teams have an incentive to conduct raids where they seize property and cash.  That money can then go into their budgets for more weapons.

9. Dubious informants are used for raids. As the New Yorker’s Stillman wrote in another piece,informants are “the foot soldiers in the government’s war on drugs. By some estimates, up to eighty per cent of all drug cases in America involve them.”  Given SWAT teams’ focus on finding drugs, it’s no surprise that informants are used to gather information that lead to military-style police raids.

A 2006 policy paper by investigative journalist Radley Balko, who has done the most reporting on militarized policing, highlighted the negative impact using informants for these raids have. Most often, informants are “people who regularly seek out drug users and dealers and tip off the police in exchange for cash rewards” and other drug dealers, who inform to gain leniency or cash from the police.  But these informants are quite unreliable–and the wrong information can lead to tragic consequences.

10. There’s been little debate and oversight.  Despite the galloping march towards militarization, there is little public debate or oversight of the trend.  The ACLU report notes that “there does not appear to be much, if any, local oversight of law enforcement agency receipt of equipment transfers.” One of the group’s recommendations to change that is for states and local municipalities to enact laws encouraging transparency and oversight of SWAT teams.

11. Communities of color bear the brunt. Across the country, communities of color are the people most targeted by police practices.  In recent years, the abuse of “stop and frisk” tactics has attracted widespread attention because of the racially discriminatory way it has been applied.

Militarized policing has also targeted communities of color. According to the ACLU report, “of all the incidents studied where the number and race of the people impacted were known, 39 percent were Black, 11 percent were Latino, 20 were white.” The majority of raids that targeted blacks and Latinos were related to drugs–another metric exposing how the “war on drugs” is racist to the core.


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Drones for Thought – Taking UAV Technology to New Heights

killer-uavThe history of pilotless aircraft in the United States military stretches back to the days of the Wright brothers. It’s difficult to describe any good that emerges from warfare, but many modern technological advancements — computers, zippers, microwaves — can be traced back to conflicts of a bygone era. Today unmanned aerial vehicles are being used by a whole slew of people, the U.S. Department of Defense being just one primary example. While drones have been used routinely to support or undertake lethal force abroad for over a decade, their domestic applications are just now being given more serious consideration. The capabilities and contributions of UAVs have, up until recently, been propelled more or less exclusively by the defense community. UAV technology may currently be associated with what some would consider secretive and nefarious militarism, but in examining the range of practical, commercial applications we can only hope that drone technology will begin to move away from the dark side.   

President Obama’s approach to counterterrorism has been marked by his embrace of drone technology to target terrorist operatives. But they’ve come a long way since their first strike operations: drone backpacks are now used by soldiers, and Predator drones come equipped with even more powerful warheads. U.S. DOD spending on drones increased from $284M in 2000 to $3.3B in October of 2012. Small surveillance drones, called Cicadas, are now being released from balloons to collect data on the ground in Iraq. In short, the military has a seemingly infinite range of uses for unmanned aerial vehicles, large and small. And the scope of drone missions only continues to expand, as the technology necessary to program and operate them becomes at once more commonplace and versatile. Over the next decade, the Pentagon anticipates that the number of “multirole” UAVs (those capable of both spying and striking) will nearly quadruple.

As of October 2013, the Federal Aviation Administration had issued 285 clearance certificates for drones inside the United States. Under pressure from the Unmanned Systems Caucus (or drone lobby) the Department of Homeland Security has accepted eight Predator drones for use along the U.S.-Canada and U.S.-Mexico borders. The FAA is set to further open skies to commercial drones by 2015, allowing civilians to finally explore and expand upon the uses of UAV technology. But even with the law by their side, can civilian companies ever hope to utilize drones to the extent in which they are employed by the military? Many recognize the civil potential of flying robots, but recognize that with certain valuable contributions also comes the possibility of tighter law enforcement and increased government surveillance.

The dualistic nature of drones is being explored by hobbyists and venture capitalists alike. Mark Zuckerberg of Facebook is even developing a program that will employ drones and satellite internet to deliver internet to disenfranchised communities throughout the world. While this probably speaks to Zuckerberg’s opportunism (and his desire to compete in the marketplace against Google’s Loon Project and HughesNet Internet) that isn’t to say that people in underserved communities don’t stand to benefit. The U.S. government already uses drones to protect endangered wildlife species, like the sandhill crane, and researchers in Indonesia and Malaysia are also using unmanned aerial devices to monitor the activity of similarly threatened orangutan populations. UAV systems are emerging as key tools in agricultural innovation and the monitoring of natural resources. Search and rescue missions, 3-D mapping and surveying projects, and hurricane tracking projects are also being carried out by UAVs. With unmanned aircraft, it seems the sky’s the limit for civil and commercial usage.

But the business of drones still comes with plenty of risks. The American Civil Liberties Union has warned of a “dystopian future” in which “mass, suspicionless searches of the general population” are the norm. Given the history of drones as advanced tools of the government and military, this doesn’t seem like an empty threat. And for now, the law still stands in the way of any real development on the commercial end. Despite the fact that many ideas for drones, from the delivery of Amazon parcels to Domino’s pizzas, have been suggested, the military still holds the key to their innovation from an American standpoint. Their function as a militaristic tool remains at the forefront of their continued growth, resulting in large spending increases for advanced cameras, sensors, and systems with attack capabilities. But the integration of drone technology into domestic airspace by law enforcement — and later, by corporations — seems inevitable. As technological improvements continue to catapult the UAV industry into the future, the true beneficiaries of these developments remain to be seen.

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Guantanamo Military Commissions: ‘Piece of a Larger Disturbing Trend Toward Centralized Presidential Power’

Just over two weeks ago, Khalid Sheikh Mohammed and other 9/11 terror suspects had a pre-trial hearing before the Guantanamo Bay commission. The judge presiding over the commission is Army Colonel James L. Pohl. Key issues argued were whether a forty-second daly between the press and courtroom was constitutional and whether the suspects could testify about being tortured by CIA interrogators or not.

John Knefel for The Nation traveled to Guantanamo Bay to cover the hearing. His dispatch on the proceedings he witnessed has been posted and it is worth reading.

As he reports, the court heard argument on ”whether the five co-defendants can be barred from testifying about their own experiences on the grounds that their thoughts, emotions and memories are classified information. The prosecution, on behalf of the government, has argued that all utterances by the accused should be “presumptively classified”—that is, every possible statement by should be treated as secret government information—but this request has since been weakened.”

He adds, “The prosecution’s argument is that the five defendants are in a “particularly credible position to confirm or deny” elements of the CIA’s rendition, detention and interrogation program. Having been tortured, they are in possession to describe it, and the government has clear incentives to keep them from doing so.”

The American Civil Liberties Union has opposed the effort to censor torture testimony. Hina Shamsi, director of the ACLU’s National Security Project, declares, “The government’s claim that it can keep from the public the defendants’ testimony about their ‘thoughts and experiences’ of torture is legally untenable and morally abhorrent.”

I was covering the latest hearing in the court martial of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, when this was all unfolding weeks ago. I did not get a chance to highlight some of the government’s argument, but I think this is an appropriate opportunity to share some more of what the government’s argument is on classifying the memories of terror suspects. It nicely complements the totalitarian arguments proffered by government attorneys in support of the indefinite detention provision of the National Defense Authorization Act of 2012 and the FISA Amendments Act of 2008, which essentially legalized warrantless wiretapping that had been occurring under the administration of President George W. Bush.

Justice Department lawyer and deputy trial counsel for the prosecution Theresa Baltes stated in court on October 16 that an executive order issued by President Barack Obama was in force that authorized classification of “orally conveyed information that falls within the subsection of foreign or intelligence sources and methods.” Baltes was alluding to observations and memories of torture or, to use Vice President Dick Cheney’s phrase, “enhanced interrogation techniques.” The “intelligence sources” are the agents who tortured them. The “methods” are how they were tortured and that is not something the government thinks the press or American public should ever find out about.

Baltes said to Judge Pohl later in the proceedings on October 16 the government had originally proposed an order that required defense attorneys to treat everything their client said as classified, including details on what their client had for lunch a day or two ago. The order was narrowed to protect statements on what occurred while in CIA custody.

“The prosecution is proposing that they only treat as classified and handle as classified statements that they know to be classified based on their security clearance,” Baltes told the commission. “And that would specifically include — or believe to be classified, and specifically include information about the CIA RDI program and their prior custody, detention, interrogation.” (RDI being the CIA’s Rendition, Detention and Interrogation program.)

Navy Lieutenant Commander Kevin Bogucki, who represents former CIA captive and former translator for Osama bin Laden, Muhammad Rahim, tried to outline the draconian and preposterous nature of the government’s position. He argued, “When the government voluntarily exposes someone outside their control to information, they are voluntarily relinquishing control over that information.” For example:

..[L]et’s say we are just imagining, for the sake of argument, that there is a classified CIA assassination program and one of the agents in this program goes and attempts to take out a target but fails, wounds the target but doesn’t kill him. That victim is now unable to describe the circumstances of the assault upon him because it might tend to reveal the personnel involved in this secret program, the means by which this program executes its duties? Clearly that makes no sense. It doesn’t matter how secret they kept it when they were planning and when they were working through the techniques of this secret program. Once they decide to execute that program in the real world and expose people outside their control to the essentially mechanisms or the product of that planning, they have now relinquished control over that. And to simply say, well, it relates to the secret program and therefore you can’t talk about it, goes far beyond what can properly be classified… [emphasis added]

Judge Pohl, at one point in the proceedings, notes that the government is not seeking to classify all experiences and memories. They have sough to limit the classification to certain dates and places. Bogucki countered by arguing the information has to be owned, produced or under the control of the US government.

…Now, the only one of those that the government can even arguably rely upon is under the control of the United States Government. If you can go to the next slide, please. So again here, they are relying upon the prong that this statement is arguably under the control of the United States Government….Okay, but the only reason that they think they  have control over this information, the only reason that theythink that final prong is satisfied is because they are holding our clients essentially in isolation…

What Bogucki is suggesting is his client has been completely dehumanized. To the government, he is not a person. He is a vessel containing details that if disseminated would invite scrutiny or possibly undermined current operations or missions against terrorism. Therefore, this vessel cannot come in contact with other prisoners or else those prisoners might come into possession of this information that the government wishes to keep secret. So, Bogucki’s client must be held in solitary confinement and suffer under those conditions because some agents used classified methods of interrogation or torture on him.

Let’s return to Knefel’s piece. He puts this all into the larger context hinting at the reality that what the military commissions system is a second-class system of legal justice that has been constructed to ensure convictions. He also highlights how Obama says he intends to close Guantanamo but a person suspected of being involved in the Benghazi attack could potentially end up at Guantanamo. The moment new prisoners start arriving at Guantanamo under Obama is the moment that any more platitudes about closing Guantanamo are exposed to be completely hollow.

And Knefel writes, “The military commissions are just one piece of a larger, disturbing trend toward centralized presidential power with virtually no oversight or transparency.” He contends:

…The bigger problem is that a once radical idea—that the executive branch should have its own legal system to try so-called enemy combatants—has been normalized and codified under two separate administrations. Recent claims that the CIA and FBI are attempting to send a suspect in the Benghazi killing of Libya Ambassador Christopher Stevens to Guantánamo Bay underscore critics’ skepticism that military commissions will be a limited tool with a definite ending.

The same, of course, is true for the “War on Terror” more broadly, as evidenced by a chilling Washington Postreport on the “disposition matrix,” a counterterrorism tool that further entrenches the policy of “targeted killing” embraced by the Obama administration. As Spencer Ackerman writes, “Obama did not run for president to preside over the codification of a global war fought in secret. But that’s his legacy.” Indeed, as John Kiriakou, a whistleblower recently prosecuted for trying to shed light on the CIA’s torture program, knows too well, the Obama administration has charged more whistleblowers under the Espionage Act of 1917 than all previous presidents combined…

The case of Kiriakou is a kind of bookend to the first term of a president, who pledged to be different from Bush and then decided to be completely subservient to the national security state like previous presidents. Kiriakou was subjected to a prosecution for revealing the name of a covert agent involved in the RDI program, who multiple people in the human rights community are believed to have known. He was prosecuted after he went on television and said the CIA had an official policy of torture because it did use waterboarding on detainees. That the CIA did not like and it made him a target. The government went after Kiriakou and in the process destroyed his life and the lives of his wife and five children by putting them through a prosecution that has left him impoverished and ruined.

What has happened to the torturers? How many people who actually engaged in torture of terror suspects have you heard about, whose lives have been wrecked because they were savages toward human beings? How many people have you read about in the news who authorized this policy and now are in jail because they instructed people lower than them to engage in torture and sought to cover it up with crafty legal justifications?

The answer is none. The answer is nobody. The answer is the US government remains committed to concealing details on methods of torture that were used on people now imprisoned at Guantanamo because the continuity of government was more important to the Obama administration than justice. And, the classification of the experiences and memories of terror suspects is supported by the government so agents, who engaged in torture, do not go through the kind of life-wrecking experience Kiriakou did.

via FireDogLake

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National Counter-Terrorism Center Operates “Disposition Matrix” Assassination List

A wild Washington Post story reports that the Obama administration has been developing plans to “institutionalize” its extrajudicial assassination program. The lede is bonkers:

Over the past two years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the “disposition matrix.”
It gets crazier:
The matrix contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled to track them down, including sealed indictments and clandestine operations. U.S. officials said the database is designed to go beyond existing kill lists, mapping plans for the “disposition” of suspects beyond the reach of American drones.
Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years.
Among senior Obama administration officials, there is a broad consensus that such operations are likely to be extended at least another decade. Given the way al-Qaeda continues to metastasize, some officials said no clear end is in sight.
You should really take the time to read the entire piece yourself; the information contained therein is truly alarming.
Many observers of related matters will have a lot to say about these revelations over the coming weeks, months and probably even years — and I’m one of them. But I quickly want to point out something that immediately struck me as particularly disturbing, and that many people likely won’t notice.
The “evolving database” — the “disposition matrix”
was developed by the NCTC, under former director Michael Leiter, to augment those organizations’ separate but overlapping kill lists, officials said.
The NCTC stands for the National Counterterrorism Center. What’s the big deal, right? The NCTC sounds like a terrorism related thing, so why wouldn’t it have developed the Kill List replacement, the Disposition Matrix?
Not that long ago the ACLU’s Chris Calabrese warned us about what really goes on at the NCTC: massive, secretive data collection and mining of trillions of points of data about most people in the United States. These points of data can include “records from law enforcement investigations, health information, employment history, travel and student records. Literally anything the government collects would be fair game, and the original agency in charge of protecting the privacy of those records would have little say over whether this happened, or what the spy agency did with the information afterward. What if that spy agency could add commercial information, anything it – or any other federal agency – could buy from the huge data aggregators that are monitoring our every move?”
Calabrese wasn’t describing a “what if” scenario. He was describing the NCTC.
The rules governing that data collection and retention used to say that “non-terrorism related” data about US persons had to be purged within 180 days of collection — and it wasn’t supposed to be collected in the first place. But this year President Obama oversaw a troubling change in that policy; non-terrorism related data about US citizens can now be retained for five years — or forever if the government feels like it.
From the ACLU’s blog:
Once information is acquired, the new guidelines authorize broad new search powers. As long NCTC says its search is aimed at identifying terrorism information, it may conduct queries that involve non-terrorism data points and pattern-based searches and analysis (data mining). The breadth and wrongheadedness of these changes are particularly noteworthy. Not only do they mean that anytime you interact with any government agency you essentially enter a lineup as a potential terrorist, they also rely on a technique, datamining, which has been thoroughly discredited as a useful tool for identifying terrorists. As far back as 2008 the National Academy of Sciences found that data mining for terrorism was scientifically “not feasible” as a methodology, and likely to have significant negative impacts on privacy and civil liberties.
Perhaps most disturbing, once information is gathered (not necessarily connected to terrorism), in many cases it can be shared with “a federal, state, local, tribal, or foreign or international entity, or to an individual or entity not part of a government” – literally anyone. That sharing can happen in relation to national security and safety, drug investigations, if it’s evidence of a crime or to evaluate sources or contacts. This boundless sharing is broad enough to encompass disclosures to an employer or landlord about someone who NCTC may think is potentially a criminal, or at the request of local law enforcement for vetting an informant.
All of this is happening with very little oversight.
As they say in the intelligence world: let’s connect the dots.
The NCTC collects impossibly enormous reams of data about all of us, routinely, stores it for a long time (maybe forever), and “data mines” it to look for “suspicious patterns” or whatever else the government wants to look for. Now we know that the NCTC is also the government outfit in charge of crafting a “disposition matrix” to oversee the management and institutionalization of the US government’s extrajudicial assassinations — a power the Obama administration asserts it can (without due process) apply to US citizens as well as foreigners.
We need to know a whole lot more about how these two operations intertwine. For some reason, I am not holding my breath for forthright government disclosures to that effect.
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Shredding the Constitution: National Detention, Targeted Killing and Spying Cases
Indefinite detention, targeted killing and warrantless wiretapping are hot issues in the courts this week. Here’s the latest:
  • INDEFINITE DETENTION // The National Defense Authorization Act (NDAA) of 2012 provision that allows the government to indefinitely detain US citizens without charge or trial is once again in effect, after a Second Circuit Court overturned Judge Katherine Forrest’s permanent injunction against Section 1021 (b)(2). The fight over the widely-despised authority appears to be far from over. Read more.

UPDATE: Chris Hedges, one of the plaintiffs in the NDAA indefinite detention lawsuit, spoke with live stream journalist Tim Pool at Occupy Wall Street on Monday, September 17 about his case and the Obama administration’s appeal. Hedges put forward the thesis that the Obama administration may already be holding US citizens without due process — otherwise they wouldn’t have acted so quickly to overturn Forrest’s permanent injunction. The administration doesn’t want to be held in contempt, Hedges said, and so immediately moved to appeal her verdict. Note: This was filmed before the court overturned Forrest’s injunction, so it’s obsolete in that sense.


  • TARGETED KILLING // Can the federal government talk publicly about its targeted killing drone program on television, in interviews with journalists, and before audiences of hundreds, and then turn around and deny the existence of the program in court to ensure that the public remains in the dark about its legal justifications for pursuing it? The ACLU says ‘no':
The American Civil Liberties Union will be in federal appeals court Thursday to argue that the CIA cannot deny the existence of the government’s targeted killing program and refuse to respond to Freedom of Information Act requests about the program while officials continue to make public statements about it.
The ACLU’s FOIA request, filed in January 2010, seeks to learn when, where and against whom drone strikes can be authorized, and how the U.S. ensures compliance with international laws relating to extrajudicial killings.
“The notion that the CIA’s targeted killing program is a secret is nothing short of absurd,” said ACLU Deputy Legal Director Jameel Jaffer, who will argue the case before a three-judge panel of the D.C. Circuit Appeals Court. “For more than two years, senior officials have been making claims about the program both on the record and off. They’ve claimed that the program is effective, lawful and closely supervised. If they can make these claims, there is no reason why they should not be required to respond to requests under the Freedom of Information Act.”
Read more about the case here.
  • WARRANTLESS SPYING // A 2005 class action lawsuit brought by AT&T customers who say the NSA illegally spied on their communications is slowly winding itself through the court system. In 2008, Congress immunized AT&T and other telecoms from lawsuits related to companies turning over customer information to the NSA, but the government still faces a number of challenges to the warrantless spying program, among them the AT&T class action suit. A judge first threw the case out in 2010, claiming that the plaintiffs didn’t have standing to bring the lawsuit because they couldn’t prove they were spied on. Another court reversed that decision a year later, instructing the court to look at whether the state secrets privilege bars the court from considering the case at all — regardless of whether there’s evidence of spying or not. As a result, the main plaintiff in the case, Carolyn Jewel, filed for summary judgment in July, providing the court with testimony from NSA whistleblowers and former AT&T employees to prove the existence of vacuum style, dragnet surveillance. The NSA makes some contradictory and utterly confusing arguments about why the plaintiffs shouldn’t have a right to challenge its spying programs. From Courthouse News:

The government has amply demonstrated in the DNI and NSA public and classified declarations that disclosure of the privileged information reasonably could be expected to cause exceptionally grave damage to national security,” a 48-page memorandum states. “The disclosure of information concerning whether plaintiffs have been subject to alleged NSA intelligence activity would necessarily reveal NSA intelligence sources and methods, including whether certain intelligence collection activities existed and the nature of any such activity. The disclosure of whether specific individuals were targets of alleged NSA activities would also reveal who is subject to investigative interest – helping that person to evade surveillance – or who is not – thereby revealing the scope of intelligence activities as well as the existence of secure channels for communication.

But those statements thoroughly contradict something else the government says:

The DNI explains that, as the government has previously indicated, the NSA’s collection of content of communications under the now inoperative TSP was directed at international communications in which a participant is reasonably believed to be associated with al Qaeda or an affiliate terrorist organization, and thus plaintiffs’ allegation that the NSA has indiscriminately collected the content of millions of communications sent or received by people inside the United States after 9/11 under the TSP is false.

The national security establishment first tells the public that it cannot disclose who is and who is not a target of its surveillance programs because doing so would tip off the bad guys, and then goes on to say that the program “was directed at…al Qaeda[.]” In other words, the government will readily admit that al Qaeda and “affiliate terrorist organization[s]” are targets of its surveillance programs, but it can’t acknowledge whether or not non-terrorist US citizens are also targets of that program because disclosure of whether non-terrorist US citizens are being spied on without constitutional protections would “cause exceptionally grave harm to national security.” As BoingBoing observed: the NSA says it can’t tell us if it is spying on us because “REASONS.”

  • WARRANTLESS SPYING // The ACLU has its own warrantless wiretapping lawsuit in the works to challenge the constitutionality of the FISA Amendments Act of 2008, and the government has thrown up similar roadblocks to prevent the case from being heard on the merits. Here’s the ACLU answer to the government’s claims that our clients — journalists, human rights workers and academics — don’t have a right to bring the lawsuit:
The government’s insistence that plaintiffs cannot establish standing without proving the certainty of surveillance is at bottom not a standing argument but a bid for a kind of immunity. This is because its proposed standard is one that neither plaintiffs nor anyone else will ever be able to meet—not because the surveillance they fear will never take place but because they will be unaware of it when it does…
The government theory of standing would render real injuries nonjusticiable and insulate the government’s surveillance activities from meaningful judicial review.
More than forty years ago, when surveillance technology was comparatively primitive, this Court recognized that “few threats to liberty exist which are greater than that posed by the use of eavesdropping devices” … and it cautioned that the threat to core democratic rights was especially pronounced where surveillance authority was exercised in the service of national security…. To accept the government’s theory of standing would be to accept that the courts are powerless to address the threat presented by surveillance authorities exercised in secret, and powerless to protect Americans’ most fundamental rights against the encroachment of increasingly sophisticated and intrusive forms of government power.
Read more about the ACLU’s challenge, which will go before the Supreme Court in late October to decide the standing issue once and for all. Just last week the House passed a reauthorization of the FISA Amendments Act, which would extend the law through December 31, 2017. Read the brief in the ACLU’s challenge, Clapper v. Amnesty, et al., here.
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Keeping the Government Out of Your Smartphone

Smartphones can be a cop’s best friend. They are packed with private information like emails, text messages, photos, and calling history. Unsurprisingly, law enforcement agencies now routinely seize and search phones. This occurs at traffic stops, during raids of a target’s home or office, and during interrogations and stops at the U.S. border. These searches are frequently conducted without any court order.

Several courts around the country have blessed such searches, and so as a practical matter, if the police seize your phone, there isn’t much you can do after the fact to keep your data out of their hands.

However, just because the courts have permitted law enforcement agencies to search seized smartphones, doesn’t mean that you—the person whose data is sitting on that device—have any obligation to make it easy for them.

Screen unlock patterns are not your friend

The Android mobile operating system includes the capability to lock the screen of the device when it isn’t being used. Android supports three unlock authentication methods: a visual pattern, a numeric PIN, and an alphanumeric password.

The pattern-based screen unlock is probably good enough to keep a sibling or inquisitive spouse out of your phone (providing they haven’t seen you enter the pattern, and there isn’t a smudge trail from a previous unlock that has been left behind). However, the pattern-based unlock method is by no means sufficient to stop law enforcement agencies.

After five incorrect attempts to enter the screen unlock pattern, Android will reveal a “forgot pattern?” button, which provides the user with an alternate way method of gaining access: By entering the Google account email address and password that is already associated with the device (for email and the App Market, for example). After the user has incorrectly attempted to unlock the screen unlock pattern 20 times, the device will lock itself until the user enters a correct username/password.

What this means is that if provided a valid username/password pair by Google, law enforcement agencies can gain access to an Android device that is protected with a screen unlock pattern. As I understand it, this assistance takes the form of two password changes: one to a new password that Google shares with law enforcement, followed by another that Google does not share with the police. This second password change takes place sometime after law enforcement agents have bypassed the screen unlock, which prevents the government from having ongoing access to new email messages and other Google account-protected content that would otherwise automatically sync to the device.

Anticipatory warrants

As The Wall Street Journal recently reported, Google was served with a search warrant earlier this year compelling the company to assist agents from the FBI in unlocking an Android phone seized from a pimp. According to the Journal, Google refused to comply with the warrant. The Journal did not reveal why Google refused, merely that the warrant had been filed with the court with a handwritten note by a FBI agent stating, “no property was obtained as Google Legal refused to provide the requested information.”

It is my understanding, based on discussions with individuals who are familiar with Google’s law enforcement procedures, that the company will provide assistance to law enforcement agencies seeking to bypass screen unlock patterns, provided that the cops get the right kind of court order. The company insists on an anticipatory warrant, which the Supreme Court has defined as “a warrant based upon an affidavit showing probable cause that at some future time, but not presently, certain evidence of crime will be located at a specific place.”

Although a regular search warrant might be sufficient to authorize the police to search a laptop or other computer, the always-connected nature of smartphones means that they will continue to receive new email messages and other communications after they have been seized and searched by the police. It is my understanding that Google insists on an anticipatory warrant in order to cover emails or other communications that might sync during the period between when the phone is unlocked by the police and the completion of the imaging process (which is when the police copy all of the data off of the phone onto another storage medium).

Presumably, had the FBI obtained an anticipatory warrant in the case that the Wall Street Journal wrote about, the company would have assisted the government in its attempts to unlock the target’s phone.

Praise for Google

The fact that Google can, in some circumstances, provide the government access to data on a locked Android phone should not be taken as evidence that Google is designing government backdoors into its software. If anything, it is a solid example of the fact that when presented with a choice between usability and security, most large companies offering services to the general public tend to lean towards usability (for example, Apple and Dropbox can provide law enforcement agencies access to users’ data stored with their respective cloud storage services).

The existence of the screen unlock pattern bypass is likely there because a large number of consumers forget their screen unlock patterns. Many of those users are probably glad that Google lets them restore access to their device (and any data on it), rather than forcing them to perform a factory reset whenever they forget their password.

However, as soon as Google provides a feature to consumers to restore access to their locked devices, the company can be forced to provide law enforcement agencies access to that same functionality. As the old saying goes, “If you build it, they will come.”

In spite of the fact that Google has prioritized usability over security, Google’s legal team has clearly put their customers’ privacy first.

First, the company has insisted on a stricter form of court order than a plain-vanilla search warrant, and then refused to provide assistance to law enforcement agencies that seek assistance without the right kind of order.
Second, by providing the government access to the Android device via a (temporary) change to the users’ Gmail password, Google has ensured that the target of the surveillance receives an automatic email notice that their password has been changed. Although the email they receive won’t make it explicit that the government has been granted access to their mobile device, it will still serve as a hint to the target that something fishy has happened.
Third, by changing the user’s password a second time, Google has prevented the government from having ongoing, real-time access to the surveillance target’s emails. There is, I believe, no law requiring Google to take this last step—Google has done it to protect the privacy of the user, and to deny the government what would otherwise be an indefinite email wiretap not approved by the courts.

For real protection you need full-disk encryption

Of the three screen lock methods available on Android (pattern, PIN, password), Google only offers a username/password based bypass for the pattern lock. If you’d rather that the police not be able to gain access to your device this way (and are comfortable with the risk of losing your data if you are locked out of your phone), I recommend not using a pattern-based screen lock, and instead using a PIN or password.

However, it’s important to understand that while locking the screen of your device with a PIN or password is a good first step towards security, it is not sufficient to protect your data. Commercially available forensic analysis tools can be used to directly copy all data off of a device and onto external media. To prevent against such forensic imaging, it is important to encrypt data stored on a device.

Since version 3.0 (Honeycomb) of the OS, Android has included support for full disk encryption, but it is not enabled by default. If you want to keep your data safe, enabling this feature is a must.

Unfortunately, Android currently uses the same PIN or password for both the screen unlock and to decrypt the disk. This design decision makes it extremely likely that users will pick a short PIN or password, since they will probably have to enter their screen unlock dozens of time each day. Entering a 16-character password before making a phone call or obtaining GPS directions is too great of a usability burden to place on most users.

Using a shorter letter/number PIN or password might be good enough for a screen unlock, but disk encryption passwords must be much, much longer to be able to withstand brute force attacks. Case in point: A tool released at the Defcon hacker conference this summer can crack the disk encryption of Android devices that are protected with 4-6 digit numeric PINs in a matter of seconds.

Hopefully, Google’s engineers will at some point add new functionality to Android to let you use a different PIN/password for the screen unlock and full disk encryption. In the meantime, users who have rooted their device can download a third-party app that will allow you to choose a different (and hopefully much longer) password for disk encryption.

What about Apple?

The recent Wall Street Journal story on Google also raises important questions about the phone unlocking assistance Apple can provide to law enforcement agencies. An Apple spokesperson told the Journal that the company “won’t release any personal information without a search warrant, and we never share anyone’s passcode. If a court orders us to retrieve data from an iPhone, we do it ourselves. We never let anyone else unlock a customer’s iPhone.”

The quote from Apple’s spokesperson confirms what others have hinted at for some time: that the company will unlock phones and extract data from them for the police. For example, an anonymous law enforcement source told CNET earlier this year that Apple has for at least three years helped police to bypass the lock code on iPhones seized during criminal investigations.

Unfortunately, we do not know the technical specifics of how Apple retrieves data from locked iPhones. It isn’t clear if they are brute-forcing short numeric lock codes, or if there exists a backdoor in iOS that the company can use to bypass the encryption. Until more is known, the only useful advice I can offer is to disable the “Simple Passcode” feature in iOS and instead use a long, alpha-numeric passcode.

By Chris Soghoian, Principal Technologist and Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 11:48am

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“Its exactly what the founding fathers never wanted.”  -Bill Binney, NSA Whistleblower

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Calling out the CIA: Secrecy Killings

Today Andrew Rosenthal of The New York Times published a thoughtful columndiscussing the untenable position taken by the government in response to the ACLU’s two Freedom of Information Act lawsuits seeking information about the CIA’s targeted killing drone strike program, including its targeting of U.S. citizens. As Rosenthal explains, “the government is blocking any consideration of these petitions with one of the oldest, and most pathetic, dodges in the secrecy game. It says it cannot confirm or deny the existence of any drone strike policy or program.”

Rosenthal goes on to highlight the reasons why the government’s position is untenable:

That would be unacceptable under any condition, but it’s completely ridiculous when you take into account the fact that a) there have been voluminous news accounts of drone strikes, including the one on Mr. Awlaki, and b) pretty much every top government official involved in this issue has talked about the drone strikes in public.

He also highlights the arguments made in the ACLU’s latest legal brief in the cases, excerpting from our “13 pages of examples of how ‘the government has already specifically and officially acknowledged the program that the CIA now says is secret.'”

Perhaps most telling is Rosenthal’s comment about how little progress we have made since the worst secrecy abuses of the Bush era:

Governments have good reasons for keeping secrets – to protect soldiers in battle, or nuclear launch codes, or the identities of intelligence sources, undercover agents and witnesses against the mob. (Naturally that’s not an exhaustive list.) Governments also have bad reasons for keeping secrets – to avoid embarrassment, evade oversight or escape legal accountability.

The Bush administration kept secrets largely for bad reasons: It covered up its torture memos, the kidnapping of innocent foreign citizens, illegal wiretapping and other misdeeds. Barack Obama promised to bring more transparency to Washington in the 2008 campaign, but he has failed to do that. In some ways, his administration is even worse than the Bush team when it comes to abusing the privilege of secrecy.

He concludes:

So this is not a secret program, but the government continues to hide behind the secrecy shield to avoid turning over the legal document justifying (or at least rationalizing) it. It’s even using the “can’t confirm or deny” fabrication about the existence of the document itself.

My guess is that the Obama administration just wants to avoid public disclosure, scrutiny and accountability. I’d ask someone at the Justice Department, but they wouldn’t be able to tell me, because it’s a secret.

Rosenthal’s column joins the chorus of voices calling for greater transparencyaround targeted killing and for a sensible government response to the ACLU’s FOIA requests. The government must provide the public with the information it needs to assess the legality and wisdom of the CIA’s global targeted killing campaign.


By: Nathan Freed Wesser, March 29, 2012

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