National security and civil liberties

by Jeremy Leaming

The DOJ white paper advancing broad and opaque arguments for the executive branch to kill U.S. citizens thought to be connected with Al Qaeda is a “radical jurisprudential notion,” Salon’s David Sirota writes. He calls the jurisprudential notion “Too Big to Curtail.”

That moniker, he continues, “is the most accurate label to describe the machinery of the government’s ever-expanding drone war.”

The DOJ’s white paper concludes three conditions must be met for the federal government to kill a U.S. citizen who is integral to Al Qaeda or “an associated force of” of the terrorist group without violating the Constitution. They require a high-ranking federal official who says the person targeted for killing is an “imminent threat to the country,” capturing the person is “infeasible,” and the lethal operation doesn’t violate laws governing use of force during war time.

Sirota says the “most harrowing takeaway” from the DOJ document is that the killing of a U.S. citizen abroad can be made by a high-ranking government official even if there is no “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Essentially, Sirota continues, the white paper maintains that the “president doesn’t actually need evidence to order someone’s death.” 

The Dish in a post dubbed, “The Executive As Executioner,” includes comment from an array of folks, including the ACLU’s Deputy Legal Director Jameel Jaffer.

by E. Sebastian Arduengo

In the fall, the House of Representatives voted to pass the FISA Amendments Act 2012 reauthorization. The bill, which renews provisions of the Foreign Intelligence Surveillance Act, allows the government to eavesdrop on Americans’ electronic communications, including phone calls and emails without having to show probable cause. Despite the fact that the bill flew in the face of Fourth Amendment protection, the bill cleared the Republican-controlled House by a large margin, passing 301-118. Members like Trey Gowdy (R- S.C.) rationalized trampling on constitutional by declaring “Intelligence is the lifeblood of our ability to defend ourselves … Are we to believe that the Fourth Amendment applies to the entire world?” For much of the last two months, the matching bill in the Senate was held by Sen. Ron Wyden (D-Ore.), who insisted that the Obama administration release information about how many Americans’ communications have been released under the law. Unfortunately, on Dec. 28, the Senate voted to pass the FISA Amendments Act 73-23, after voting down Senator Wyden’s amendment forcing disclosure.

Senator Wyden’s amendment was of particular import because FISA Amendments Act gives the government nearly limitless spying power. For example, a request related to the “Haqqani network” allows the government to tap any communications it believes will yield information about the group that is fighting American forces in Afghanistan. The request could be based on as little as the vague belief that a phone is being used to communicate with Afghan insurgents. This casts a net so broad, that when a challenge to the FISA Amendments Act went before the Supreme Court in October, ACLU deputy director Jameel Jaffer described the law to Justice Ginsburg as "dragnet surveillance."

Perhaps a better term would be “siphon surveillance,” as documents provided by former AT&T and NSA employees show that the NSA has created dark rooms in AT&T facilities that copy all internet traffic flowing through the facilities and transmit that information to government servers. So much information is flowing to the NSA, in fact, that they are hard at work building a $2 billion data center in the Utah desert to store it all. To put this amount of data this facility will be able to store in perspective – When it is running at full capacity, it will be able to store “about 500 quintillion (500,000,000,000,000,000,000) pages of text.” Unsurprisingly, with the data spigot on, there have been numerous documented reports of the NSA collecting purely domestic communications of ordinary Americans, and collection practices have gotten so egregious that the Foreign Intelligence Surveillance Court, which usually rubber-stamps wiretap requests from the government, ruled that the government’s actions under FISA had violated the Fourth Amendment on at least one occasion.