Liberal Democrats and Libertarian Republicans Working On Common Goals

Republicans have always had a libertarian wing but their influence and willingness to fight for true freedom has varied over time. Far too often Republican talk of freedom turns into the freedom of businesses to ignore necessary regulations or the freedom to impose their social and religious values upon others. Limited government also far too often turns out to mean reducing the authority of the federal government in order to allow state governments to infringe upon the rights of minorities. With true defense of freedom being rare among Republicans in recent years, it was good to see a report from The New York Times that Liberals and Libertarians Find Common Ground in House.

The article lists several areas where some Republicans have crossed the aisle to work with liberal Democrats:

From abortion to electronic privacy to background checks for gun purchases, a strange thing has been happening on the floor of the House as it debates its spending bills for the coming fiscal year: the stirrings of liberalism.

The House on Thursday voted 221 to 200 to approve an amendment by one of its most vocal liberal members, Representative Rosa DeLauro, Democrat of Connecticut, to ban federal contracts for companies that set up sham headquarters in offshore tax havens like Bermuda. Thirty-four Republicans bucked their party to push it to passage.

That was only the most recent stirring of life on the House’s left flank. Democrats have long hoped they could find common cause on at least some issues with the Republican conference’s libertarian wing. That is starting to happen, fueled by rising distrust of government on the right, a willingness of Democrats to defy the Obama administration in some instances and a freewheeling amendment process on appropriations bills.

The article cites examples of liberals and libertarians working together on legislation to increase individual liberty, from medical marijuana to privacy protections:

The tally of left-libertarian legislation is growing, with the House at least on record voting to limit federal law enforcement actions, intelligence efforts and social policy reach. On May 30, 49 Republicans crossed the aisle to approve language barring the federal government from raiding medical marijuana dispensaries.

“Some people are suffering, and if a doctor feels that he needs to prescribe something to alleviate that suffering, it is immoral for this government to get in the way,” said Representative Dana Rohrabacher, Republican of California, once one of the chamber’s most ardent conservatives, now a co-sponsor of the marijuana measure.

The day before, 76 Republicans joined Democrats to add $19.5 million to the federal instant background check system for gun purchases. The House Appropriations Committee has approved an amendment to allow Peace Corps volunteers who become pregnant by rape to have a federally funded abortion and another measure limiting the federal government’s access to private email communications.

“By passing this amendment, the Appropriations Committee is taking a critical step towards ensuring all Americans are protected by the Fourth Amendment — their mail, documents on their desks at home, and now their private emails,” said Representative Kevin Yoder, Republican of Kansas and one of the measure’s authors.

On June 19, the House voted 293 to 123 to prohibit the National Security Agency and C.I.A. from placing “backdoor” surveillance technologies on commercial technology products and to end warrantless collection of Americans’ online activities. That amendment, passed over the White House’s objections with a veto-proof margin, was written by Representative Thomas Massie, Republican of Kentucky and one of the House’s most outspoken libertarians, with the Democratic Representatives Zoe Lofgren, who represents Silicon Valley, and Rush D. Holt of New Jersey, a physicist.

An amendment by Representative Dave Reichert, Republican of Washington, reversed cuts to a Bill Clinton-era program that funds local police forces, a program long on the Republican target list. The liberal Democrat that Republicans love to hate, Representative Alan Grayson of Florida, convinced just enough Republicans to pass an amendment blocking the Justice Department from compelling journalists to divulge confidential sources. Another Democratic amendment clears a legal path for states to cultivate industrial hemp.

To be sure, Republicans note, plenty of amendments have driven spending bills to the right. Just last week, the House voted to block the Obama administration’s efforts to combat climate change on multiple fronts, including one amendment that prohibits any funding for any aspect of the administration’s “climate change agenda.”

Amendments also have passed to end the deferring of deportations of immigrants brought illegally to the country as children, to fund a Justice Department investigation of the Department of Homeland Security’s release of illegal immigrants and to block high-speed rail in California.

But, Mr. Massie said, the libertarian-liberal alliance is real and growing. He said he has been working with Ms. Lofgren on legislation that would repeal a federal law that makes it a felony to unlock a cellphone tied to a particular carrier, even after a contract is expired. Libertarians are also teaming with Democrats to change laws on federal mandatory minimum sentencing.

It would be helpful if left-libertarian goals were a higher priority from the executive branch. Obama had initially raised hopes that he would have governed as more of a left-libertarian, and Obama did receive some libertarian support when initially running for president. While he has been far preferable to George Bush on civil liberties, he has disappointed civil libertarians in areas ranging from continuing many of the Bush surveillance plans (even if seeking reform in some areas) to failing to keep his campaign promises regarding ending federal raids related to medical marijuana. While nothing is a certainty in politics, it looks most likely that Hillary Clinton, who has been to the right of Obama, is likely to win the 2016 nomination. This could leave it up to such a liberal and libertarian coalition in Congress to pursue liberal goals. There is hope for greater emphasis by the Democrats (and possibly some Republicans) on matters of personal freedom in the future as polls show that younger voters are more “determined to protect personal liberties from conservative moral constraint.”

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Favorable Court Rulings From Privacy Of Cell Phone Data To Marriage Equality

It has been a good week in terms of judicial opinions. Following the decision I reported on yesterday that the current no-fly list procedure is unconstitutional, there was an even bigger decision regarding civil liberties as well as two decisions regarding same-sex marriage. The Supreme Court unanimously ruled that police cannot search the contents of cellphones without a warrant:

In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

Chief Justice John G. Roberts Jr., writing for the court, was keenly alert to the central role that cellphones play in contemporary life. They are, he said, “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

But he added that old principles required that their contents be protected from routine searches. One of the driving forces behind the American Revolution, Chief Justice Roberts wrote, was revulsion against “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”

“The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”

A federal judge in Indiana ruled that Indiana’s ban on same sex marriage is unconstitutional.

A federal judge ruled Wednesday that Indiana’s ban on gay marriage is unconstitutional, immediately allowing same-sex couples across the state to receive marriage licenses.

U.S. District Judge Richard Young did not issue a stay on his ruling. However, the office of Attorney General Greg Zoeller, which represented the state, filed an emergency motion for stay pending appeal with the U.S. District Court this afternoon…

Young’s decision in the Indiana case mirrors “what we’re seeing in all the districts courts” that have taken up challenges, said Carl Tobias, a University of Richmond School of Law professor who has been closely monitoring court cases across the U.S. involving the same-sex marriage issue.

The order says: “It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love.”

Judges in more than a dozen other federal district courts have ruled along the same lines as Young, he said. Since the first ruling in a Utah case in December, he said, every challenge to a state ban has been successful.

The rulings by these federal district courts are being appealed and ultimately the decision will probably be made by the Supreme Court. While it will take at least until next year to see how that plays out, the 10th Circuit Court has upheld the decision of a Utah judge:

A federal appeals court on Wednesday ruled that states outlawing same-sex marriage are in violation of the U.S. Constitution.

By upholding a Utah judge’s decision, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process…

University of Utah law professor Clifford Rosky called Wednesday’s ruling, “the most important victory of the entire gay rights movement.”

It is the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.

“Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law,” Rosky said…

The ruling affects all states in the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The court’s majority opinion focused on the 14th Amendment, which gives equal protection to American citizens. The court said its reading of the Constitution shows that the legal rights of married couples has nothing to do with the gender of those in the union.

“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage.

 

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Federal Judge Rules That No-Fly Lists Are Unconstitutional

no fly list

There is progress in fighting one of the post 9/11 actions which infringe upon civil liberties without showing meaningful benefit in fighting terrorism. A federal judge in Oregon has ruled that the no-fly lists are unconstitutional as they lack a meaningful mechanism to appeal being placed on a list:

The U.S. government’s no-fly list banning people accused of links to terrorism from commercial flights violates their constitutional rights because it gives them no meaningful way to contest that decision, a federal judge ruled on Tuesday.

U.S. District Judge Anna Brown, ruling on a lawsuit filed in federal court in Oregon by 13 Muslim Americans who were branded with the no-fly status, ordered the government to come up with new procedures that allow people on the no-fly list to challenge that designation.

“The court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society,” Brown wrote in her 65-page ruling.

“Accordingly, on this record the court concludes plaintiffs inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel,” Brown said.

The decision hands a major victory to the 13 plaintiffs – four of them veterans of the U.S. military – who deny they have links to terrorism and say they only learned of their no-fly status when they arrived at an airport and were blocked from boarding a flight.

More on the ruling from NPR:

One need not look beyond the hardships suffered by Plaintiffs to understand the significance of the deprivation of the right to travel internationally. Due to the major burden imposed by inclusion on the No-Fly List, Plaintiffs have suffered significantly including long-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals. The Court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.

The American Civil Liberties Union has issues this response:

“For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court. Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardships. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people.”

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House Votes To Place Limits on Backdoor Searches; Obama Administration Seeks Reauthorization Of NSA Surveillance

Thanks to the revelations in the material on surveillance released by Edward Snowden, the United States is  now taking baby steps towards reforming the system. Late in the week the House did vote to limit “backdoor searches.” The amendment received bipartisan support, showing how opposition to excessive NSA surveillance is an issue which does not fall under usual partisan lines. More Democrats than Republicans did vote in favor, Democrats voting it 158 to 29, with Republicans voting it 135 to 94 in favor.

Vox explained the significance:

What’s a backdoor search?

In 2008, Congress passed the FISA Amendments Act (FAA), which expanded the government’s warrantless surveillance powers.

Ordinarily, the Fourth Amendment requires an individualized warrant before the government can engage in surveillance on American soil. But the FAA created an alternative process where a judge can authorize entire surveillance programs without necessarily knowing which specific people will be surveillance targets. The PRISM program, which the NSA uses to obtain private information from companies such as Google and Facebook, was authorized under this provision of the FAA.

The George W. Bush administration argued that it needed this new power to spy on terrorists whose communications passed through the United States. The FAA included a provision barring the government from using the surveillance facilities to “target” Americans. The problem, civil liberties groups argue, is that “targeting” is defined in a way that doesn’t actually protect Americans. There are ways for the NSA to effectively spy on Americans without technically “targeting” them.

One example is what’s known as a backdoor search. In this technique, the NSA engages in wide surveillance of communications that involve both Americans and foreigners. So long as the foreigners are the official “target,” this is permitted under the FAA. The NSA sometimes stores the information it has collected in a giant database. And the agency has taken the position that it can search this database for information about Americans without running afoul of the no-targeting-Americans rule.

What does the amendment do?

Congress is considering a bill to fund the military for the 2015 fiscal year, and that includes funding for the National Security Agency. The amendment offered by Sensenbrenner and his colleagues and Lofgren prohibits the NSA from using any funds provided in the bill to “query a collection of foreign intelligence information” acquired under the FAA “using a United States person identifier.

In other words, it would ban the use of federal funds to conduct backdoor searches. In practice, that would make it illegal for the NSA to engage in backdoor searches during the 2015 fiscal year.

The legislation does allow such searches in cases where another court order has authorized surveillance of the American being targeted.

The legislation also effectively bars the NSA or the Central Intelligence Agency from forcing device manufacturers to install technical “backdoors” in their products.

Is that a big deal?

By itself, the amendment falls short of the kind of sweeping NSA reforms some civil liberties groups support. But the vote represents the first time a house of Congress has voted to curtail the controversial practices revealed by Ed Snowden last year. It will give NSA critics renewed political momentum and may force President Obama to make further concessions to critics of the NSA.

In August, Rep. Justin Amash (R-MI) offered an amendment to last year’s defense funding bill that would have shut down a different NSA program: the collection of Americans’ phone records. That vote failed in a razor-thin 205 to 217 vote. The surprising closeness of the vote was widely interpreted as a sign of congressional anger over the NSA’s actions.

Julian Sanchez, a senior fellow at the Cato Institute, argues that the vote is a rebuke to the House Permanent Select Intelligence Committee. That body is supposed to serve as a watchdog over NSA surveillance, but in recent years it has more often acted as a defender of NSA policies. The vote, Sanchez says, “demonstrates pretty dramatically that the gatekeepers in the Intelligence Committee are out of synch with the sentiment of the broader House.”

Sanchez also notes that similar language was stripped from the USA FREEDOM Act, legislation intended to rein in the NSA that wound up being substantially weakened during the legislative process.

Spencer Ackerman wrote more on why this is important  at The Guardian.

Meanwhile, TechDirt reports: a  group of Senators, Mark Udall, Ron Wyden and Martin Heinrich, sent President Obama a letter reminding him that he can live up to his promise to end bulk phone record collection today by simply having the DOJ not seek to renew the court order from the FISA Court getting the phone operators to hand over that data.

We welcome your proposal, announced on March 27, 2014, to end the bulk collection of Americans’ phone records under Section 215 of the USA PATRIOT Act. We believe as you do that the government can protect national security by collecting the phone records of individuals connected to terrorism, instead of collecting the records of millions of law-abiding Americans. We also believe that you have the authority to implement your proposal now, rather than continuing to reauthorize the existing bulk collection program in 90-day increments.

James Clapper’s office issued a statement that “the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced earlier this year.”

TechDirt responded:

Wait. Given what importance of maintaining the capabilities? So far, every analysis of the program has shown that it wasn’t important at all. How could anyone in the administration still claim with a straight face that the Section 215 bulk phone records collection is “important” when everyone who’s seen the evidence agrees that the program has been next to useless in stopping terrorism.

I imagine we will be returning to this in another ninety days to see if there is truly further progress in reforming the surveillance process from the Obama administration. Hopefully by then Congress also passes legislation containing the amendment preventing backdoor searches.

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Putin Cracking Down On Bloggers And Swearing

Putin

The New York Times reports on new restrictions on bloggers in Russia:

Russia has taken another major step toward restricting its once freewheeling Internet, as President Vladimir V. Putin quietly signed a new law requiring popular online voices to register with the government, a measure that lawyers, Internet pioneers and political activists said Tuesday would give the government a much wider ability to track who said what online.

Mr. Putin’s action on Monday, just weeks after he disparaged the Internet as “a special C.I.A. project,” borrowed a page from the restrictive Internet playbooks of many governments around the world that have been steadily smothering online freedoms they once tolerated…

Widely known as the “Bloggers Law,” the new Russian measure specifies that any site with more than 3,000 visitors daily will be considered a media outlet akin to a newspaper and be responsible for the accuracy of the information published.

Besides registering, bloggers can no longer remain anonymous online, and organizations that provide platforms for their work such as search engines, social networks and other forums must maintain computer records on Russian soil of everything posted over the previous six months.

“This law will cut the number of critical voices and opposition voices on the Internet,” said Galina Arapova, director of the Mass Media Defense Center and an expert on Russian media law. “The whole package seems quite restrictive and might affect harshly those who disseminate critical information about the state, about authorities, about public figures.”

The article also notes actions to suppress the Internet in China, Turkey, Venezuela, and Pakistan.

Update: CNN reports on a law prohibiting obscene language in art:

Russian President Vladimir Putin signed off on a new law Monday that bans swearing at arts, cultural and entertainment events in the country.

Any new film containing obscene language won’t be granted a distribution certificate, so there’s no chance of seeing it at the movie theater.

And copies of books, CDs or films containing swearing can only be distributed in a sealed package labeled “Contains obscene language,” a Kremlin statement said.

According to state news agency ITAR-Tass, individuals caught using foul language face a fine of up to $70, while officials can be fined up to $40 and businesses nearly $1,400. They face a higher fine and a three-month suspension of business for repeated offenses.

Determination of what counts as profane language will be done through “an independent examination,” the news agency said…

A report by rights group Amnesty International in January highlighted a denial of “basic freedoms” in Russia, which last year introduced a law barring anyone from talking positively about homosexuality in earshot of minors.

Imagine what they might do to bloggers who swear.

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Edward Snowden Explains That His Goal Was To Expose Putin For Lying About Mass Surveillance, Not To Whitewash Him

Yesterday Edward Snowden called into a question and answer show held by Vladamir Putin and asked him about mass surveillance in Russia. The video is above. Putin’s response:

“Mr. Snowden, you are a former agent,” the president replied. “I used to work for an intelligence service. Let’s speak professionally.”

“Our intelligence efforts are strictly regulated by our law,” Mr. Putin said. “You have to get a court’s permission first.” He noted that terrorists use electronic communications and that Russia had to respond to that threat.

“Of course we do this,” Mr. Putin said. “But we don’t use this on such a massive scale and I hope that we won’t.”

“But what is most important,” Mr. Putin concluded, “is that the special services, thank God, are under a strict control of the government and the society, and their activities are regulated by law.”

Most likely as a reflection of views they already had about him, some people have since criticized Snowden for giving Putin the opportunity to lie in this manner, as if the only way Putin could lie on Russian television is by responding to a question from Edward Snowden. Think Progress has pointed out some of the ways in which Putin was lying:

Numerous reports lay doubt to Putin’s claims that the collection of information is much more narrowly tailored in Russia. In fall 2012, Russia put into place a system it claimed was to protect children from viewing pornography. The method it decided to enact that goal, however, was one not only puts into place a list of banned websites that could surpress political speech, but also has the ability to track the flow of information across Russian networks. “Logistically, this will require Russia’s [internet service providers] to maintain detailed records of user traffic and would allow the Russian government a potential backdoor into the private lives of Russia’s internet users,” ThinkProgress explained at the time of the network’s launch.

Last October, Reuters also reported that the Russian government was requiring internet service providers to “store all traffic temporarily and make it available to the top domestic intelligence agency.” Under the order drafted in the Communications Ministry, the FSB — the successor to the KGB — would have access for 12 hours to all stored data, “including phone numbers, IP addresses, account names, social network activity and e-mail addresses.” That order is due to take effect this July.

And just this year, Russian officials admit while defending hotels in Sochi built for the Winter Olympics that they were equipped with surveillance equipment that was closely watched. The entire proceedings in the Russian resort town were subject to a massive dragnet of surveillance as a system was put into place to monitor all communications that flowed in and out. This was done using the SORM system that Russia utilizes to listen in to phone conversations and read email threads, which according to Privacy International, “gathers information from all communication media, and offers long-term storage (three years), providing access to all user data.” SORM is deployed year-round and controlled by the FSB.

Former U.S. Ambassador to Russia Michael McFaul said he has been on the receiving end of the Russian surveillance program. As a government official, he was a prime target, he told NBC just prior to stepping down earlier this year, but Americans writ large are also subject to having their information spied upon, given Moscow’s espionage abilities. “As we remind all Americans that come to this country,” McFaul said, “the Russian government has tremendous capabilities, and legal by their law, of intercepting phone calls, emails, etc.”

In a post at The Guardian entitled Vladimir Putin must be called to account on surveillance just like Obama, Snowden explained that “I questioned the Russian president live on TV to get his answer on the record, not to whitewash him.”

On Thursday, I questioned Russia’s involvement in mass surveillance on live television. I asked Russia’s president, Vladimir Putin, a question that cannot credibly be answered in the negative by any leader who runs a modern, intrusive surveillance program: “Does [your country] intercept, analyse or store millions of individuals’ communications?”

I went on to challenge whether, even if such a mass surveillance program were effective and technically legal, it could ever be morally justified.

The question was intended to mirror the now infamous exchange in US Senate intelligence committee hearings between senator Ron Wyden and the director of national intelligence, James Clapper, about whether the NSA collected records on millions of Americans, and to invite either an important concession or a clear evasion. (See a side-by-side comparison of Wyden’s question and mine here.)

Clapper’s lie – to the Senate and to the public – was a major motivating force behind my decision to go public, and a historic example of the importance of official accountability.

In his response, Putin denied the first part of the question and dodged on the latter. There are serious inconsistencies in his denial – and we’ll get to them soon – but it was not the president’s suspiciously narrow answer that was criticised by many pundits. It was that I had chosen to ask a question at all.

I was surprised that people who witnessed me risk my life to expose the surveillance practices of my own country could not believe that I might also criticise the surveillance policies of Russia, a country to which I have sworn no allegiance, without ulterior motive. I regret that my question could be misinterpreted, and that it enabled many to ignore the substance of the question – and Putin’s evasive response – in order to speculate, wildly and incorrectly, about my motives for asking it.

The investigative journalist Andrei Soldatov, perhaps the single most prominent critic of Russia’s surveillance apparatus (and someone who has repeatedly criticised me in the past year), described my question as “extremely important for Russia”. According to the Daily Beast, Soldatov said it could lift a de facto ban on public conversations about state eavesdropping.

Others have pointed out that Putin’s response appears to be the strongest denial of involvement in mass surveillance ever given by a Russian leader – a denial that is, generously speaking, likely to be revisited by journalists.

In fact, Putin’s response was remarkably similar to Barack Obama’s initial, sweeping denials of the scope of the NSA’s domestic surveillance programs, before that position was later shown to be both untrue and indefensible.

So why all the criticism? I expected that some would object to my participation in an annual forum that is largely comprised of softball questions to a leader unaccustomed to being challenged. But to me, the rare opportunity to lift a taboo on discussion of state surveillance before an audience that primarily views state media outweighed that risk. Moreover, I hoped that Putin’s answer – whatever it was – would provide opportunities for serious journalists and civil society to push the discussion further.

When this event comes around next year, I hope we’ll see more questions on surveillance programs and other controversial policies. But we don’t have to wait until then. For example, journalists might ask for clarification as to how millions of individuals’ communications are not being intercepted, analysed or stored, when, at least on a technical level, the systems that are in place must do precisely that in order to function. They might ask whether the social media companies reporting that they have received bulk collection requests from the Russian government are telling the truth.

I blew the whistle on the NSA’s surveillance practices not because I believed that the United States was uniquely at fault, but because I believe that mass surveillance of innocents – the construction of enormous, state-run surveillance time machines that can turn back the clock on the most intimate details of our lives – is a threat to all people, everywhere, no matter who runs them.

Last year, I risked family, life, and freedom to help initiate a global debate that even Obama himself conceded “will make our nation stronger”. I am no more willing to trade my principles for privilege today than I was then.

I understand the concerns of critics, but there is a more obvious explanation for my question than a secret desire to defend the kind of policies I sacrificed a comfortable life to challenge: if we are to test the truth of officials’ claims, we must first give them an opportunity to make those claims.

This comes a few days after The Guardian and the Washington Post received a Pulitzer Prize for Public Service for their reporting on the NSA surveillance based upon documents leaked by Edward Snowden.

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Brewer Vetoes Arizona Bill Legalizing Discrimination Against Gays

In the second of two reports of good news today, Arizona Governor Jan Brewer hasvetoed the bill recently passed by the state legislature to permit discrimination. The law would have allowed businesses to legally practice discrimination against homosexuals. I discussed the bill and conservative cherry picking of religious teachings further here.

Conservatives are promoting similar “religious freedom” bills in other states. To the religious right, “religious freedom” means the freedom to impose their religious views upon others in violation of the Constitutional protection of separation of church and state which this nation was founded upon. A similar bill in Georgia is expected to be defeated.

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Obama Takes First Step In Reforming NSA Surveillance

In a speech today, President Obama called for an overhaul of the NSA’s phone data collection program. The full text is here and the proposals are summarized here. There are meaningful improvements, including requiring a court order to obtain phone data, which will be held by a third party, and proceedings before the FISA court will become more adversarial with arguments made counter to the government’s arguments by a panel of public advocates.

Glenn Greenwald has some valid criticism and deserves credit for his work in bringing Edward Snowden’s revelations to the public. As has often been the case regarding Obama, I believe he is also underestimating the value of these reforms. It must be kept in mind that this issue is about what the NSA has done wrong, not about one’s opinion of Glenn Greenwald. I am finding that Greenwald’s sometimes overzealous attacks on Obama have led many liberals to automatically reject whatever he has to say, and I fear that this is contributing to the attitude of some liberals to fail to take the NSA revelations with the seriousness they deserve.

The American Civil Liberties Union has issued this statement, also arguing that Obama has not gone far enough:

President Obama today announced changes to some aspects of the NSA’s surveillance programs and left others in place. Anthony D. Romero, the executive director of the American Civil Liberties Union, had this reaction:

“The president’s speech outlined several developments which we welcome. Increased transparency for the Foreign Intelligence Surveillance Court, improved checks and balances at the FISA court through the creation of a panel of advocates, and increased privacy protections for non-U.S. citizens abroad – the first such assertion by a U.S. president – are all necessary and welcome reforms.

“However, the president’s decision not to end bulk collection and retention of all Americans’ data remains highly troubling. The president outlined a process to study the issue further and appears open to alternatives. But the president should end – not mend – the government’s collection and retention of all law-abiding Americans’ data. When the government collects and stores every American’s phone call data, it is engaging in a textbook example of an ‘unreasonable search’ that violates the Constitution. The president’s own review panel recommended that bulk data collection be ended, and the president should accept that recommendation in its entirety.”

A new chart comparing the ACLU’s proposals, President Obama’s announcement, and the USA FREEDOM Act (a bipartisan bill currently pending in Congress) is at:
aclu.org/national-security/where-does-president-stand-nsa-reform

ACLU Action is demanding an end to dragnet surveillance at:
aclu.org/endsurveillance

I do think that Glenn Greenwald could learn from the manner in which the ACLU both acknowledged the favorable aspects of Obama’s proposals while calling for greater reforms. This has been the general attitude which I have seen so far among liberal critics of NSA surveillance. Such an attitude is also more likely to bring about greater unity on the left for reform as opposed to his attacks which are causing some liberals to discount the entire issue.

The fact that Obama made this speech is further evidence of the value of Edward Snowden’s work, and I feel provides further vindication for his actions. Needless to say, many in the intelligence community do not agree, some having fantasies of dealing with Snowden as would be done in a third rate spy thriller:

One Army intelligence officer even offered BuzzFeed a chillingly detailed fantasy.

“I think if we had the chance, we would end it very quickly,” he said. “Just casually walking on the streets of Moscow, coming back from buying his groceries. Going back to his flat and he is casually poked by a passerby. He thinks nothing of it at the time starts to feel a little woozy and thinks it’s a parasite from the local water. He goes home very innocently and next thing you know he dies in the shower.”

There is no indication that the United States has sought to take vengeance on Snowden, who is living in an undisclosed location in Russia without visible security measures, according to a recent Washington Post interview. And the intelligence operators who spoke to BuzzFeed on the condition of anonymity did not say they expected anyone to act on their desire for revenge. But their mood is widespread, people who regularly work with the intelligence community said.

Granted this is just anonymous talk and no action has been taken, but this attitude does reinforce the need to keep the intelligence community under control, and could even be argued to represent further evidence that Snowden was right in his actions.

This all occurs a day after the latest revelations released by Edward Snowden that the NSA collects millions of text messages.

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Federal Judge Rules NSA Surveillance Is Unconstitutional

Earlier this year, Edward Snowden released information on NSA surveillance, including the accumulation of information on American citizens which appears to be far in excess of either what is necessary or what is allowed under the Constitution. A federal judge agreed with this criticism today:

A Federal District Court judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.

In a 68-page ruling, Judge Richard J. Leon of the District of Columbia called the program’s technology “almost Orwellian” and suggested that James Madison, the author of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

Leon wrote that old judicial decisions with regards to privacy rights need to be reevaluated in light of modern technology with previous cases (such as Smith vs. Maryland)  not necessarily remaining relevant:

[T]he almost-Orwellian technology that enables the Government to store and analyse the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data in perpetuity, was at best, in 1979, the stuff of science fiction.

More on the decision at SCOTUS Blog.

This decision will most likely be appealed and ultimately be decided by the Supreme Court.

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Three Senators Call For Reforming NSA Surveillance

Three Senators, Senators Ron Wyden (D-Ore), Mark Udall (D-Colo), and Martin Heinrich (D-N.M), have proposed legislation to help restore  Fourth Amendment privacy protections following recent revelations regarding NSA surveillance. They have an op-ed in The New York Times which explains their position and their opposition to currently proposed legislation form the Senate intelligence committee which would codify current surveillance without providing privacy protections. Their op-ed begins:

End the N.S.A. Dragnet, Now

THE framers of the Constitution declared that government officials had no power to seize the records of individual Americans without evidence of wrongdoing, and they embedded this principle in the Fourth Amendment. The bulk collection of Americans’ telephone records — so-called metadata — by the National Security Agency is, in our view, a clear case of a general warrant that violates the spirit of the framers’ intentions. This intrusive program was authorized under a secret legal process by the Foreign Intelligence Surveillance Court, so for years American citizens did not have the knowledge needed to challenge the infringement of their privacy rights.

Our first priority is to keep Americans safe from the threat of terrorism. If government agencies identify a suspected terrorist, they should absolutely go to the relevant phone companies to get that person’s phone records. But this can be done without collecting the records of millions of law-abiding Americans. We recall Benjamin Franklin’s famous admonition that those who would give up essential liberty in the pursuit of temporary safety will lose both and deserve neither.

The usefulness of the bulk collection program has been greatly exaggerated. We have yet to see any proof that it provides real, unique value in protecting national security. In spite of our repeated requests, the N.S.A. has not provided evidence of any instance when the agency used this program to review phone records that could not have been obtained using a regular court order or emergency authorization.

Despite this, the surveillance reform bill recently ratified by the Senate Intelligence Committee would explicitly permit the government to engage in dragnet collection as long as there were rules about when officials could look at these phone records. It would also give intelligence agencies wide latitude to conduct warrantless searches for Americans’ phone calls and emails.

This is not the true reform that poll after poll has shown the American people want. It is preserving business as usual. When the Bill of Rights was adopted, it established that Americans’ papers and effects should be seized only when there was specific evidence of suspicious activity. It did not permit government agencies to issue general warrants as long as records seized were reviewed with the permission of senior officials.

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