United States of America vs. Thomas M Nephew
Answering a "Notice To Appear," I went to the U.S. District Court for Eastern Virginia in Alexandria yesterday morning to learn what would come of my arrest last September 11. I was joined by my wife, my mother, two neighbors and friends, and my friend Brett Marston.

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As I've described earlier, I went by myself to the "America Supports You Freedom Walk" on September 11, 2005. This was an event staged by the Defense Department, with the walk beginning at the Pentagon. It was purported to signify support for American troops fighting overseas and to commemorate the victims of the atrocities four years earlier at the Pentagon, New York and Pennsylvania, but also seemed a propaganda event linking 9/11 with Iraq and whitewashing misdeeds by the U.S. military at Abu Ghraib and elsewhere.

As walkers prepared to leave the grounds of the Pentagon, I put on a black poncho and a hood chosen to resemble those of a man mistreated and photographed at Abu Ghraib. I then hung a sign around my neck saying "For Them, For Us, For Our Troops: Never Again. Support the McCain and Levin Amendments" - the latter being two legislative initiatives designed to investigate cruelty and torture done in America's name, and to prevent it from happening again.

I was approached by a Pentagon police officer, who informed me that I could not display a sign at that location. (There were 'designated protest zones' along the walk route.) I said I didn't see why, I was exercising my freedom of speech. We reiterated our positions; he then arrested and handcuffed me. I was peaceful at all times.

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I'm no legal scholar. But if I can not express my support for American troops at a Defense Department rally -- by demanding our country hold itself to the standards we expect our soldiers' captors to honor -- where can I possibly do so? If I can not peacefully exercise the freedom of speech guaranteed to every American -- on the very grounds of those charged with defending our freedom -- where can I hope to do so? If the United States government is designing lockstep demonstrations and arresting those who stray off message, what right do any of us have to despise such displays and actions in North Korea, Cuba, or China?

Whatever the merits of those arguments, I had no luck in interesting legal groups in the case -- the DC ACLU said they didn't take criminal cases, and the Virginia ACLU and the Lawyers' Guild didn't answer my correspondence. One discussion with a lawyer who often takes First Amendment cases showed that the cost of hiring him for what might be about 10-15 hours of his time would be substantial (even after he was generous enough to cut his rate).

One of the neighbors who joined me at the court was also a lawyer; after talking with her I decided I'd wait and see what happened on Friday before hiring anyone. I was a bit nervous, though; the maximum penalty for the charge -- failure to obey a lawful order, 32 CFR 234.6(b)* -- was $5000 and 6 months in jail.

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The Albert V. Bryan U.S. Courthouse is a squat, solid chunk of a building on the outside, but feels spacious inside, with plenty of the usual marble, hardwood, and brass favored by the legal profession. After passing through security -- one can not bring any electronic devices, including cell phones, inside the building -- we went to Courtroom 401, or rather the hallway/waiting area outside it. There was already a gaggle of perhaps forty people there, and a tatty legal notepad perched on a marble ledge, with a list of names to which I added my own. A team of assistant district attorneys would call people from the list to inform them what would happen next.

We overheard snatches of a conversation in which one assistant district attorney informed a lady from Oregon that her case was being dismissed. It turned out I wasn't the only demonstrator there; she she told us afterward that she and a number of other people had been arrested later in September for blocking escalators in or near the Pentagon, protesting the war. Her case dismissal seemed a good omen.

My turn finally came just before the judge was to appear, around 10 am. Another district attorney (perhaps the chief of the team; he addressed the judge later on) called me into an anteroom; whether it was his style or my case, I couldn't have onlookers with me, unlike other potential defendants.

He took a breath, folded his hands together, looked at me intently, and admonished me to always follow the directions of police -- he wasn't interested in what I was saying that day, he didn't have time for that. When I lay down in front of an escalator, I potentially blocked police and others from doing their duty -- "I didn't do that," I interrupted. Perhaps unwisely. "Do you want me to dismiss this case or not?" he flared. A security officer behind him looked surprised, whether at me or at him I couldn't tell. The D.A. then took a look at my docket, where he read that the policeman had repeated his order to me several times, and that I had worn a hood, which he termed a "mask" -- a potential felony. I didn't argue the point. He finished speaking, and said "I'm going to dismiss your case." He seemed to need my agreement, which I gave with a handshake.

Minutes later, inside the courtroom, mine was one of two dozen or so cases "dismissed with prejudice", which meant that the case would not be reopened by the government. United States of America vs. Thomas M Nephew was over.

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Personally, I have never been as disappointed in my country and its armed services as I was after learning of the misdeeds at Abu Ghraib, particularly when no one of high rank or office was held accountable. When I learned that the Defense Department was essentially giving itself a little parade using 9/11 as justification for the blunders and crimes since then, I resolved that my disappointment would not go unheard, and that I would press my demand that we hold ourselves to higher standards.

Expressing my views at that time and place may have been inconvenient and controversial. But those views needed to be expressed there, at the scene of what I considered a state-sponsored propaganda event and an attempted whitewash. While I'm relieved that the case was dismissed, I remain convinced that what I did was not criminal, but patriotic.

The issues I feel the "Freedom Walk" exemplified will remain with us. For one thing, it was the "inaugural" walk -- meaning it may well happen again next September 11. But on a wider scale, this kind of propaganda on the public dime is rampant now -- from "public" presidential events open only to supporters to news stories and opinion pieces planted in the Iraqi or American media. Is the Pentagon a legitimate launch pad when its masters want to "catapult the propaganda"? Can the federal government then pick and choose who attends -- and the speech they choose to use?

I've been particularly grateful for and touched by the unwavering support of my family, my neighbors, and my friends in all of this. I never felt as alone as I did before putting on that poncho and hood that day. But I've never felt as supported as I have since then. Thank you all.


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* If you follow the link, you’ll see that the charge is specific to conduct on the Pentagon "reservation." The specific regulation I was charged with violating was

Violation of a lawful order. Violating the lawful order of a government employee or agent authorized to maintain order and control public access and movement during fire fighting operations, search and rescue operations, law enforcement actions, and emergency operations that involve a threat to public safety or government resources, or other activities where the control of public movement and activities is necessary to maintain order and public health or safety.

I think I might have waged a defense both on the specifics of whether I was a threat to order, and on the general issue of whether the entire event was "necessary." I know, however, that would have cost me several thousand dollars, and that I might not have won the case, possibly costing me even more. posted by Thomas Nephew at 3:44:00 PM -- |    

 
Enemy of the State (...Department Undersecretary)
Over the weekend I mentioned New Mexico Governor Bill Richardson's concern that his conversations with Colin Powell may have been recorded as part of a "training mission" and read by John Bolton.

It turns out that "training mission" is not just some phrase an Albuquerque newspaper dreamed up. Training personnel in electronic surveillance (including domestic surveillance) is explicitly allowed by the Foreign Intelligence Surveillance Act (FISA) law in section 1805(g)(3) -- but subsequent language in FISA makes clear that information gained this way is to be destroyed and is not to be shared with others.

On the other hand, my inner John Yoo -- bad Yoo! bad! -- craftily suggests there may be a "no penalty" loophole for disseminating the fruits of "training" surveillance. The law's "Criminal sanctions" section 1809 reads in part as follows:

A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

Emphases added. Since training surveillance is authorized by statute, would there be no penalty for sharing training surveillance results -- even if that was prohibited ? I'm obviously no lawyer, so I'm guessing/hoping the plain intent of the FISA law would outweigh hairsplitting of this sort.

The issue of a FISA "training surveillance" loophole was raised by Wayne Madsen in June of last year:

NSA insiders report that Hayden approved special intercept operations on behalf of Bolton and had them masked as "training missions" in order to get around internal NSA regulations that normally prohibit such eavesdropping on U.S. citizens.

For his part, Madsen didn't suggest a criminal penalty loophole - he claimed that "USSID 18," an executive branch directive, also criminalizes abuse of training surveillance results. I don't see that, but maybe it was redacted out of the copy cryptome.org has online. Instead, Madsen's point was that since training surveillance results are supposedly destroyed, they don't appear in agency logs and can't be subpoenaed by the Senate.

I don't know what Madsen's track record is; like many of his other stories, this one is obviously tough to corroborate. His bio, at least, seems right for a credible security policy gadfly:

Madsen is a former U.S. Naval officer who was assigned to the National Security Agency during the Reagan administration. He also has some twenty years experience in computer security and data privacy. He has also worked for the Naval Data Automation Command, Department of State, RCA Corporation, and Computer Sciences Corporation.

To his credit, Madsen was also generous enough to note he wasn't the first to think of the "training surveillance" dodge -- Hollywood got there first. In the movie "Enemy of the State" -- "It's not paranoia if they're really after you" -- the NSA director (played by Jon Voigt) relies on the "training surveillance" authority for the power to conduct unchecked domestic surveillance. Writer David Marconi gives one character played by Gene Hackman this line:

The government's been in bed with the entire telecommunications industry since the forties. They've infected everything. They get into your bank statements, computer files, email, listen to your phone calls... Every wire, every airwave. The more technology used, the easier it is for them to keep tabs on you. It's a brave new world out there. At least it better be.

So don't bother with the New York Times -- after all, when they're not just making up stories, or getting them wildly wrong, they're happy to just sit on the stories they actually get right. No, for the very freshest, high quality news -- just go watch a movie! posted by Thomas Nephew at 9:35:00 PM -- |    

 
The wiretap misnomer, the SHAMROCK precedent
Rephrasing what Gary Farber has been pointing out for a while, it's likely the phrase "wiretap" is to the real NSA story as "leaky faucet" is to the Niagara Falls. Rather than alerting us to a real threat, Farber argues, using "wiretap" succeeds in minimizing the even greater threat the NSA program may represent. A December 24 New York Times article ("Spy Agency Mined Vast Data Trove," by Eric Lichtblau and James Risen) reports:

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

Farber also seems to argue that the scale and nature of the operation make it impossible to apply for warrants, citing another part of the Times article --

Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. "If the government is gaining access to the switches like this, what you're really talking about is the capability of an enormous vacuum operation to sweep up data," he said.

-- and concluding: "And. This. Is. Why. You. Can't. Get. A. Warrant." Maybe I'm misunderstanding Farber here, but I'm not so sure about that. One reason is suggested in the same Times article:

Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.

This so-called "pattern analysis" on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.

To me, this indicates that it's not just possible to specify "pattern analysis warrants" (to coin a term for the purpose of this post), but that it's an established practice, presumably with appropriate oversight, safeguards, and above all probable cause for this kind of search in domestic cases.

Electronic security expert Bruce Schneier points out that FISA (the Foreign Intelligence Surveillance Act) was designed to prevent precisely what Bush seems to have had the NSA do: wholesale surveillance of Americans' electronic communications without warrant or oversight. Citing author and expert James Bamford ("The Puzzle Palace,"Body of Secrets"), Schneier says the prior incarnation was something called Project SHAMROCK:

Project Shamrock began in the 1950s, and ran for about twenty years. It too had a massive program to eavesdrop on all international telegram communications, including communications to and from American citizens. It too was to counter a terrorist threat inside the United States. It too was secret, and illegal. It is exactly, by name, the sort of program that the FISA process was supposed to get under control. [...]

Bush's eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams.

FISA prevented future Project SHAMROCKs from being uncontrolled, wrote James Bamford ("Body of Secrets"):

The new statute outlawed wholesale, warrantless acquisition of raw telegrams such as had been provided under Shamrock. It also outlawed the arbitrary compilation of watch list containing the names of Americans. Under FISA, a secret federal court was set up, the Foreign Intelligence Surveillance Court. In order for NSA to target an American citizen or a permanent resident alien--a "green card" holder--within the United States, a secret warrant must be obtained from the court. To get the warrant, NSA officials must show that the person they wish to target is either an agent of a foreign power or involved in espionage or terrorism.

It's not yet crystal clear to me whether wholesale data-mining or pattern analysis warrants are impossible under FISA. One of the key FISA requirements, minimization, means,

"specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; ..."

On the face of it, this seems contradicted by the waterfall of irrelevant data that monitoring a switch would produce. On the other hand, "minimizing" can simply mean making something as small as possible, and the "reasonably designed in light of the ... technique" may be a potential loophole for wholesale surveillance of this kind that was built in to FISA.

But FISA includes no loopholes for conducting such domestic espionage without a warrant, that is, without the oversight hurdle of a panel of judges agreeing that probable cause and other requirements have been met. As Schneier writes,

This issue is not about terrorism. It's not about intelligence gathering. It's about the executive branch of the United States ignoring a law, passed by the legislative branch and signed by President Jimmy Carter: a law that directs the judicial branch to monitor eavesdropping on Americans in national security investigations.

It's not the spying, it's the illegality.

posted by Thomas Nephew at 1:03:00 AM -- |    

 
"We'd like to know why"
At his December 19th press conference, President Bush reacted allergically to a reporter's characterization of his administration's illegal warrantless domestic wiretap actions as "unchecked":

THE PRESIDENT: First of all, I disagree with your assertion of "unchecked power."

Q Well --

THE PRESIDENT: Hold on a second, please. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times.

This is an awesome responsibility to make decisions on behalf of the American people, and I understand that, Peter. And we'll continue to work with the Congress, as well as people within our own administration, to constantly monitor programs such as the one I described to you, to make sure that we're protecting the civil liberties of the United States. To say "unchecked power" basically is ascribing some kind of dictatorial position to the President, which I strongly reject.

Maybe it's commendable that Bush at least rejects "ascribing some kind of dictatorial position to the President," but his own words paint an all but dictatorial approach to the rule of law and the separation of powers in the U.S. constitutional system. Secretly notifying Congress of actions and daring anyone to do anything about them is not "monitoring" or oversight.

Suzanne Spaulding -- a former CIA assistant general counsel, Senate general counsel, and executive director of the National Terrorism Commission -- wrote in last Sunday's Washington Post ("Power Play"):

The administration says Congress was briefed "at least a dozen times" in the four years since the wiretap program started. Even assuming that these classified briefings accurately conveyed all relevant facts, it appears that they were limited to only eight of the 535 senators and representatives, under a process that effectively eliminates the possibility of any careful oversight.

As a former legal counsel for both Republican and Democratic leaders of the House and Senate intelligence committees, I'm well aware of the limitations of these "gang of eight" sessions. They are provided only to the leadership of the House and Senate and of the intelligence committees, with no staff present. The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members. The leaders for whom I worked never discussed the content of these briefings with me.

It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response. [...]

The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace.

Not surprisingly, the Bush administration prefers to investigate the leak of its actions rather than its own larger lawlessness. And yesterday, Bush continued defending the illegally warrantless wiretap program, saying "I think most Americans understand the need to find out what the enemy's thinking. If somebody from al Qaeda is calling you, we'd like to know why."

But what's happening instead is probably often unrelated to terrorism -- or you could get just the warrants Bush and his bunch don't want to have to bother with. For example, New Mexico governor Bill Richardson has worried his own conversations with Colin Powell about North Korea (as Energy Secretary and UN ambassador under Clinton, Richardson was familiar with the issue) may have been intercepted by the NSA as a "training mission" and shared with John Bolton, who opposed negotiations with that country.

If a government agency wants to wiretap someone in this country, the American people and their legal system would like to know why. In fact, we insist. posted by Thomas Nephew at 9:40:00 AM -- |