Donal Cruise O’Brien (by Christine Foster)
Fedelma Cruise O’Brien (by Christine Foster) Kate Cruise O’Brien(by Christine Foster)
Patrick Cruise O’Brien (adopted with Máire Mhac an tSaoi)
Margaret Cruise O’Brien(adopted with Máire Mhac an tSaoi)
Conor Cruise O’Brien (3 November 1917 – 18 December 2008) often nicknamed “The Cruiser”, was an Irish politician, writer, historian and academic. His opinion on the role of Britain in Ireland and in Northern Ireland changed during the 1970s in response to the outbreak of ‘the Troubles’ after 1968. He saw opposing nationalist and unionist traditions as irreconcilable and switched from a nationalist to a unionist view of Irish politics and history. O’Brien’s outlook was always radical and the positions he took were seldom orthodox. He summarised his position as, “I intend to administer an electric shock to the Irish psyche“. Internationally, he opposed in person the African National Congress’s academic boycott of the apartheid regime in South Africa. These views contrasted with those espoused during the 1950s and 1960s.
O’Brien’s father (who died in 1927) wanted Conor educated non-denominationally, a wish that Kathleen honoured. O’Brien followed his cousin Owen into Sandford Park School that had a predominantly Protestant ethos, despite objections from Catholic clergy. O’Brien subsequently attended Trinity College Dublin which played the British national anthem until 1939, though O’Brien and Sheehy-Skeffington sat in protest on such occasions. He was elected a scholar in Modern Languages at Trinity in 1937. O’Brien was editor of Trinity’s weekly, TCD: A College Miscellany. His first wife, Christine Foster, came from a BelfastPresbyterian family and was, like her father, a member of the Gaelic League. Her parents, Alexander (Alec) Roulston Foster and Mary Lynd, were Irish republicans and supporters of Irish reunification. Alec Foster was headmaster at the time of Belfast Royal Academy and was later a founding member of the Northern Ireland Civil Rights Association and also a strong supporter of the Irish Anti-Apartheid movement. He was a former Ulster, Ireland and British & Irish Lions rugby player, having captained Ireland three times between 1912–1914. O’Brien and Christine Foster were married in a registry office in 1939. The couple had three children – Donal, Fedelma, and Kathleen (Kate), who died in 1998. The marriage ended in divorce after 20 years. In 1962, O’Brien married the Irish-language writer and poet Máire Mhac an tSaoi in a Roman Catholic church. O’Brien’s divorce, contrary to Roman Catholic teaching, was not an issue since that church did not recognise the validity of O’Brien’s 1939 civil wedding in the first place. O’Brien referred to this action, which in effect formally de-recognised the legitimacy of his former wife and children, as “hypocritical … and otherwise distasteful, but I took it, as preferable to the alternatives.” Mac an tSaoi was five years his junior, and the daughter of Seán MacEntee, who was Tánaiste (Deputy Prime Minister) at the time. They subsequently adopted two Congolese children, a son (Patrick) and a daughter (Margaret).
O’Brien’s university education led to a career in the public service, most notably in the Department of External (now Foreign) Affairs. He achieved distinction as managing director of the state run Irish News Agency and later as part of the fledgling Irish delegation to the United Nations. O’Brien later claimed he was something of an anomalous iconoclast in post-1922 Irish politics, particularly in the context of Fianna Fáilgovernments under Éamon de Valera. He considered that those who did not conform to traditional Roman Catholic mores were generally ill-suited to the public service, though that does not appear to have impeded his ascent through it that ended officially at ambassadorial level. He observed,
There was nothing unusual even then about not believing in Catholicism. What was unusual then was to acknowledge publicly that you did not believe in Catholicism…. It is interesting that this did absolutely no harm to my public career around the mid-century – a time when the authority of a triumphant Catholic Church appeared to be overwhelmingly strong, in the media and in public life. But I think many educated people – including many in the public service – already resented that authority and, while being discreet about this themselves, had some respect for a person who publicly rejected it altogether.
In the Department of External Affairs during the 1949–52 inter-party government, O’Brien served under former IRA Chief of Staff republican, Seán MacBride, the 1974 Nobel PeaceLaureate, son of John MacBride and Maud Gonne. O’Brien was particularly vocal in opposition to partition during the 1940s and 1950s, as part of his official duties.
In 1961 O’Brien came to world prominence after secondment from Ireland’s UN delegation as a special representative to Dag Hammarskjöld, Secretary General of the United Nations in theKatanga region of the newly independent Congo (now the Democratic Republic of the Congo). As per his understanding of his mission, O’Brien initiated military action to prevent the mineral rich region from seceding by expelling French and other western backed mercenaries. Western powers had been attempting to provoke secession, in particular Britain and the adjoining white ruled Rhodesia. A UN crisis ensued and O’Brien was forced to step down from his UN position and also simultaneously from the Irish diplomatic service in late 1961. Michael Ignatieff asserted that Hammarskjöld, who was killed in Katanga prior to O’Brien’s departure in a suspicious plane crash, had misjudged O’Brien’s abilities as U.N. representative. He further observed that O’Brien’s use of military force provided the Soviets and the US with ammunition in their campaign against the U.N. Secretary General and UN action opposed to the interests of the big powers. O’Brien wrote immediately about his experiences in The Observer (London) and in the New York Times on 10, 17 December 1961, and later in To Katanga and Back(1962), considered a classic of both modern African history and of the inner workings of the United Nations. In 1962, in response to an invitation from the Chancellor of the University of Ghana, and the country’s leader, Dr. Kwame Nkrumah, O’Brien accepted a position as Vice-Chancellor of the University. However, his interpretation of academic freedom later differed from that of Dr. Nkrumah, and he subsequently resigned in 1965. Following this he was the first Albert Schweitzer Professor of Humanities at New York University from 1965 to 1969. During the 1960s O’Brien opposed western, in particular US, imperialism and protested against US participation in the Vietnam War. in 1965 O’Brien declared himself “a liberal, incurably … profoundly attached to liberal concepts of freedom… of speech and of the press”
The question has also been raised here about the terror used by the National Liberation Front [in Vietnam], and by other revolutionary movements. I think there is a distinction between the use of terror by oppressed peoples against the oppressors and their servants, in comparison with the use of terror by their oppressors in the interests of further oppression. I think there is a qualitative distinction there which we have the right to make.
During this period, after the outbreak of armed conflict in Northern Ireland in 1969, O’Brien developed a deep hostility to militant Irish republicanism and to Irish nationalists generally in Northern Ireland, reversing views articulated at the outset of unrest. He also reversed his opposition to broadcasting censorship imposed by the previous government, by extending and vigorously enforcing censorship of Radio Teilefís Éireann (RTÉ) under Section 31 of the Broadcasting Act. In 1976 he specifically banned spokespersons for Sinn Féin and the Provisional Irish Republican Army from RTÉ. At the same time, he attempted unsuccessfully to get Britain’s BBC 1 television channel broadcast on Ireland’s proposed second television channel, instead of allowing RTÉ to run it.
Two additional notable incidents affected O’Brien’s career as minister, besides support for broadcasting censorship.
In August 1976 Bernard Nossiter of the Washington Post interviewed O’Brien regarding the passage of an Emergency Powers Bill. During the course of the interview O’Brien revealed an intention to extend censorship beyond broadcasting. He wished to “cleanse the culture” of republicanism and would like the bill to be used against teachers who allegedly glorified Irish revolutionaries. He also wanted it used against newspaper editors who published pro-republican or anti-British readers’ letters. O’Brien mentioned the Irish Press as a newspaper which in particular he hoped to use the legislation against and produced a file of Irish Press letters to the editor to which he took exception. Nossiter immediately informed Irish Press editor Tim Pat Coogan of O’Brien’s intentions. Coogan printed Nossiter’s report (as did the Irish TImes), republished the letters to which O’Brien objected, and ran a number of strong editorials attacking O’Brien and the proposed legislation. The interview caused huge controversy, resulting in modification of the measure appearing to target newspapers.
O’Brien also supported Garda brutality in this 1973–77 period, though this was not revealed by O’Brien until 1998 in his Memoir. In Memoir: My Life and Themes, O’Brien recalled a conversation with a detective who told him how the Gardaí had found out – from a suspect – the location of businessman Tiede Herrema, who had been kidnapped by group of maverick republicans in October 1975: “[T]he escort started asking him questions and when at first he refused to answer, they beat the shit out of him. Then he told them where Herrema was.” O’Brien explained, “I refrained from telling this story to [ministerial colleagues] Garret [FitzGerald] or Justin [Keating], because I thought it would worry them. It didn’t worry me.” Elements of the Garda Síochána that engaged in beating false confessions out of suspects quickly became known as the “Heavy Gang”.
O’Brien’s Dublin North-East constituency was abolished as part of a government inspired redrawing of boundaries. In the 1977 general election he stood in Dublin Clontarf and was one of three ministers defeated in a general rout of the outgoing administration. He was, however, subsequently elected to Seanad Éireann in 1977 from the Trinity College Dublin constituency, though he resigned his seat in 1979 due to new commitments as editor-in-chief of the London Observer newspaper.
Editor in Chief at the Observer
Between 1978 and 1981 O’Brien was editor-in-chief of The Observer newspaper in Britain. In 1979 he controversially pulped an Observer magazine with an article by Mary Holland, The Observer’s Ireland correspondent. Holland, whose reporting won her a Journalist of the Year award, had been one of the first journalists to explain discrimination in Northern Ireland to a British audience. The article was a profile of Mary Nellis of Derry and dealt with her radicalisation as a result of the conflict. O’Brien objected and sent Holland a memo stating that the “killing strain” of Irish republicanism, “has a very high propensity to run in families and the mother is most often the carrier”. The memo continued, “It is a very serious weakness of your coverage of Irish affairs that you are a very poor judge of Irish Catholics. That gifted and talkative community includes some of the most expert conmen and conwomen in the world and I believe you have been conned. Holland was forced out of the newspaper by O’Brien. She later joined the Irish Times as a columnist. She also rejoined The Observer after O’Brien’s departure in 1981.
In 1985, O’Brien supported unionist objections to the inter governmental Anglo-Irish Agreement. In 1996 he joined Robert McCartney‘s United Kingdom Unionist Party (UKUP) and was elected to the Northern Ireland Forum. In 1997, a successful libel action was brought against him by relatives of Bloody Sunday victims for alleging in a Sunday Independent article in 1997 that the marchers were “Sinn Féin activists operating for the IRA”. O’Brien opposed the 1998 Good Friday Agreement and opposed allowing Sinn Féin into government in Northern Ireland. He later resigned from the UKUP after his book Memoir: My Life and Themes called on Unionists to consider the benefits of a united Ireland to thwart Sinn Féin. In 2005 he rejoined the Labour Party. O’Brien defended his harsh attitudes and actions towards Irish republicans, saying “We do right to condemn all violence but we have a special duty to condemn the violence which is committed in our name”.
Conor Cruise O’Brien’s many books include: States of Ireland (1972), where he first indicated his revised view of Irish nationalism, The Great Melody (1992), his unorthodox biography ofEdmund Burke, and his autobiography Memoir: My Life and Themes (1999). He also published a collection of essays, Passion and Cunning (1988), which includes a substantial piece on the literary work of William Butler Yeats and some challenging views on the subject of terrorism, and The Siege: The Saga of Israel and Zionism (1986), a history of Zionism and the State of Israel. His books, particularly those on Irish issues, tend to be personalised, for example States of Ireland, where he made the link between the political success of the republican Easter Rising and the consequent demise of his Home Rule family’s position in society. His private papers have been deposited in the University College Dublin Archives.
He was a longtime columnist for the Irish Independent. His articles were distinguished by hostility to the ‘peace process’ in Northern Ireland, regular predictions of civil war involving the Republic of Ireland, and a pro-Unionist stance. O’Brien also abused the Irish tax exemption for works of literary merit by claiming this exemption for his newspaper column.
O’Brien held visiting professorships and lectureships throughout the world, particularly in the United States, and controversially in apartheid South Africa, openly breaking the academic boycott. A persistent critic of Charles Haughey, O’Brien coined the acronym GUBU (Grotesque, Unbelievable, Bizarre and Unprecedented), based on a statement by Charles Haughey, who was then Taoiseach, commenting on the discovery of a murder suspect, Malcolm MacArthur, in the apartment of the Fianna Fáil Attorney GeneralPatrick Connolly. Until 1994, O’Brien was a Pro-Chancellor of the University of Dublin.
Maria Cross: Imaginative Patterns in a Group of Modern Catholic Writers (as Donat O’Donnell) (London: Chatto & Windus, 1952) OCLC 7884093
Story 1: Part 2: The Decline and Fall Of The Democratic Party Under Liar In Chief Obama — Hillary Clinton vs. Donald Trump in 2016 Presidential Election — Two Party Tyranny — What Difference Does It Make? — Donor Class Wins No Matter Who Wins — Make America Great Again! –Videos
Ray: A public servant who has a track record of not telling the truth
Judge Napolitano What if the two party system is a sham? – Fox Business
Donald Trump on GOP competition, Benghazi hearing
Kurtz: Paul Ryan, insufficiently conservative?
Pro-Amnesty Rep. Gutiérrez Supports Paul Ryan For Speaker Of The House
Save Us From Paul Ryan
Ann Coulter, “¡Adios America!”
Ann Coulter argues that immigration is the greatest issue facing the United States today. She contends that America’s immigration policy is deeply flawed and that amnesty will lead to a greater influx of liberal voters, who according to the author, will hurt the economy as well as the country’s public and foreign policy.
Ann Coulter slaughters pro Immigration advocates
Rush Limbaugh: GOP donors installed Paul Ryan as House Speaker
Limbaugh: Donor/RINO Class Pushing Hard For Paul Ryan As Speaker Of The House
Limbaugh: Donor/RINO Class Pushing Hard For Paul Ryan As Speaker Of The House
Pro-Amnesty Paul Ryan … what the GOP’s big donors want (Limbaugh)
Rush Limbaugh (10/23/15): “Here’s the dream, from the Republican donor side. The Republican donor side is that Jeb Bush or, if not Jeb, somebody else acceptable to the Republican establishment, gets elected president, Paul Ryan is Speaker of the House, and the donor class thinks that if they can make that happen, that within 12 to 18 months their entire agenda will be implemented.”
Both Parties Fear the Tea Party (Limbaugh)
Mark Levin on Paul Ryan’s radical pro Amnesty ideology
UN-led Mass Migration Destroying U.S. Nationhood
Understanding the Impact of Europe’s Migrant Crisis
Would Paul Ryan Be a Good Choice for House Speaker?
What We Can Expect If Congress Passes TPP
The Nuances Behind the Republican Presidential Debate
How Trump’s Attack on McCain Didn’t Go Far Enough
Iran Deal Courtesy of CFR New World Order Crowd
‘2030 Agenda’: Latest UN Plan for World Government
‘Two-party system an illusion, both funded from same source’
“MORE AND MORE PEOPLE “FED UP WITH THIS “RIGGED TWO-PARTY SYSTEM”!
The Two-Party System is Making America Ungovernable- Intelligence Squared U.S.
Andrew Horning on Breaking the Two Party System 1 18 2014
Reagan Warned Us About Obama
Mark Steyn on Racism, Slavery, and the Democratic Party
Rush To Beck: “We May Be Looking At Barack Obama Destroying The Democrat Party”
Mark Krikorian Intro to Panelists – Welfare Use by Legal and Illegal Immigrants
Robert Rector – Welfare Use by Legal and Illegal Immigrants
The Center for Immigration Studies hosted a discussion at the National Press Club focusing on two reports on immigration and welfare. The Center’s first report focuses on welfare use by immigrant and native-born housholds, the second report separates welfare use by legal and illegal households. Two nationally recognized policy experts, along with the Center’s director of research and author of the report, discussed immigrant welfare use at the panel.
Q and A Welfare – Welfare Use by Legal and Illegal Immigrants
Panel Clip: Jobs Americans Won’t Do?
Panel Clip: Do Immigrants Create More Jobs?
Steven Camarota – Welfare Use by Legal and Illegal Immigrants
Panel Clip: Welfare Restrictions on Immigrants?
Panel Clip: U.S. Family Immigration vs. Other Countries
Mark Krikorian Intro – 1965 Immigration Act 50 Years Later
Philip Martin – 1965 Immigration Act 50 Years Later
Jerry Kammer – 1965 Immigration Act 50 Years Later
Peggy Orchowski – 1965 Immigration Act 50 Years Later
Q and A – 1965 Immigration Act 50 Years Later
Panel Clip: Was JFK a Restrictionist?
Stop Amnesty for Illegal Immigrants – Expert Reveals the True Cost of Amnesty
Alan Keyes: Stop Illegal Immigration, No Amnesty!
Mind blowing speech by Robert Welch in 1958 predicting Insiders plans to destroy America
Ron Paul – Judge Napolitano What if the two party system is a sham? – Fox Business
ObamaCare 101: What the Healthcare Law Means to You Part 1 of 3
Art Thompson, CEO of The John Birch Society, takes you into the new healthcare law. He identifies a pattern of government broken promises, revealing that if something sounds too good to be true, then it probably is. Find out what’s really in the new law and what you can expect long term.
ObamaCare 101: What the Healthcare Law Means to You Part 2 of 3
ObamaCare 101: What the Healthcare Law Means to You Part 3 of 3
John Birch Society: Oppose the Trans-Pacific Partnership (TPP)
William F. Jasper, Senior Editor for The New American magazine, explains how President Obama’s Trans-Pacific Partnership (TPP) is an “an all-out assault on our national sovereignty,” and how It would unconstitutionally transfer legislative powers from the U.S. Congress, our state legislatures, and our city and county governments to multi-national corporations and unaccountable international bureaucrats at the World Trade Organization, or WTO. Incredibly, it also would transfer judicial powers from our federal and state courts — which are bad enough — to globalist TPP judges at regional tribunals and the WTO.
DECLINE of EMPIRES: The Signs of Decay
Archie Bunker on Democrats
Archie Bunker predicts conditions under Obama
George Carlin – It’s a big club and you ain’t in it
Obama Job Approval Steady in 27th Quarter at 45.9%
by Jeffrey M. Jones
Average 45.9% approval similar to 46.1% in prior quarter
Obama has been under 50% approval for most of his presidency
Approval midrange compared with other presidents’ 27th quarters
PRINCETON, N.J. — President Barack Obama’s job approval rating in his 27th quarter in office, from July 20 to Oct. 19, averaged 45.9%, essentially unchanged from his 46.1% average for the prior quarter.
Obama’s daily approval ratings also varied little within his most recent quarter, averaging 46% nearly every week during the quarter. There were just two modest but notable exceptions. In late August, as U.S. stocks fell in response to concerns about problems in the Chinese economy, his weekly approval rating dipped to 44%. And in late September it rose to 48% during the week of Pope Francis’ U.S. trip, which included a widely covered visit with Obama at the White House.
Since he became president nearly seven years ago, Obama has averaged 47% job approval. There have been only five quarters when he had majority approval, with four of those occurring during the first year of his presidency, the so-called “honeymoon phase” when new presidents tend to be rated positively. The only other time Obama’s quarterly approval exceeded 50% was perhaps the most consequential one — the 16th quarter, in which he was re-elected.
Obama’s 27th Quarter Midrange Compared With Other Presidents
Obama is the sixth post-World War II president to serve a 27th quarter in office. Two of these — Dwight Eisenhower and Bill Clinton — were rated quite positively at this stage in their presidencies, with average approval ratings of 65.3% and 59.7%, respectively.
In contrast, Harry Truman (23.0%) and George W. Bush (33.2%) were decidedly unpopular at the same point of their presidencies. Truman’s 27th quarter average is the worst quarterly average for any president in Gallup’s polling history.
Obama’s 27th quarter average, along with Ronald Reagan’s, is between these two extremes. Reagan averaged 47.0% approval, slightly better than Obama’s 45.9%.
After presidents have served nearly seven years in office, Americans’ opinions of them are pretty well-established and unlikely to change unless a major international or domestic crisis occurs. Clinton’s and Bush’s approval ratings did not change between their 27th and 28thquarters. Truman, Eisenhower and Reagan saw modest improvements of a few percentage points.
Americans’ opinions of Obama have been steady this year, holding near 46%. If his approval ratings do not improve dramatically during the remainder of his presidency, his full-term approval rating average, currently 47%, will rank among the lowest for post-World War II presidents, tied with Gerald Ford’s and better than only Truman’s (45.4%) and Jimmy Carter’s (45.5%).
Obama’s relatively low approval ratings may be as much a function of the era in which he is governing as it is a reflection on his leadership, management and decision-making. There have been relatively few international crises that helped to boost his public support, as the 9/11 attacks and Iraq War did for Bush, and as similar crises have done for other presidents. Arguably the only “rally event” in Obama’s presidency was the capture of Osama bin Laden. Obama also took office during the Great Recession, and the economic recovery since it ended has been slow and uneven.
But Obama is also governing in a time of extreme partisan polarization. In Congress, that has meant political gridlock since Democrats lost control of the U.S. House in the 2010 midterm elections. In the American public, it is evident in his historically low support from the opposition party. Obama’s average 13% approval rating among Republicans is on pace to be the lowest job approval rating from the opposition party by a full 10 percentage points, behind Bush’s average 23% approval rating among Democrats. By comparison, Clinton averaged 27% approval among Republicans, and presidents before Clinton averaged 40% approval from the opposition.
Results for this Gallup poll are based on telephone interviews conducted July 20-Oct. 19, 2015, on the Gallup U.S. Daily survey, with a random sample of 45,663 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. For results based on the total sample of national adults, the margin of sampling error is ±1 percentage point at the 95% confidence level. All reported margins of sampling error include computed design effects for weighting.
Each sample of national adults includes a minimum quota of 50% cellphone respondents and 50% landline respondents, with additional minimum quotas by time zone within region. Landline and cellular telephone numbers are selected using random-digit-dial methods.
In U.S., New Record 43% Are Political Independents
by Jeffrey M. Jones
Record 43% of Americans are political independents
Democrats maintain edge among those with a party preference
Democratic advantage smaller in 2014 than in 2013
PRINCETON, N.J. — An average 43% of Americans identified politically as independents in 2014, establishing a new high in Gallup telephone poll trends back to 1988. In terms of national identification with the two major parties, Democrats continued to hold a modest edge over Republicans, 30% to 26%.
Since 2008, the percentage of political independents — those who identify as such before their leanings to the two major parties are taken into account — has steadily climbed from 35% to the current 43%, exceeding 40% each of the last four years. Prior to 2011, the high in independent identification was 39% in 1995 and 1999.
The recent rise in political independence has come at the expense of both parties, but more among Democrats than among Republicans. Over the last six years, Democratic identification has fallen from 36% — the highest in the last 25 years — to 30%. Meanwhile, Republican identification is down from 28% in 2008 to 26% last year.
The latest results are based on aggregated data from 15 separate Gallup telephone polls conducted throughout 2014.
These changes have left both parties at or near low points in the percentage who identify themselves as core supporters of the party. Although the party identification data compiled in telephone polls since 1988 are not directly comparable to the in-person polling Gallup collected before then, the percentages identifying as Democrats prior to 1988 were so high that it is safe to say the average 30% identifying as Democrats last year is the lowest since at least the 1950s.
Republican identification, at 26%, is a shade higher than the 25% in 2013. Not since 1983, the year before Ronald Reagan’s landslide re-election victory, have fewer Americans identified as Republicans.
The decline in identification with both parties in recent years comes as dissatisfaction with government has emerged as one of the most important problems facing the country, according to Americans. This is likely due to the partisan gridlock that has come from divided party control of the federal government. Trust in the government to handle problems more generally is the lowest Gallup has measured to date, and Americans’ favorable ratings of both parties are at or near historical lows. Thus, the rise in U.S. political independence likely flows from the high level of frustration with the government and the political parties that control it.
Democrats’ Edge in Party Identification and Leaning Shrinks
Although independents claim no outright allegiance to either major party, it is well-known that they are not necessarily neutral when it comes to politics. When pressed, most independents will say they lean to one of the two major parties. For example, last year an average of 17% of Americans who initially identified as independents subsequently said they “leaned” Republican, 15% were independents who leaned Democratic, with the remaining 11% not expressing a leaning to either party.
Since partisan leaners often share similar attitudes to those who identify with a party outright, the relative proportions of identifiers plus leaners gives a sense of the relative electoral strength of the two political parties, since voting decisions almost always come down to a choice of the two major-party candidates. In 2014, an average 45% of Americans identified as Democrats or said they were Democratic-leaning independents, while 42% identified as Republicans or were Republican-leaning independents.
That the three-point Democratic edge was down from six points in 2013, and among Democrats’ smaller advantages the past 25 years. Democrats usually hold an advantage in this combined measure of party affiliation. In fact, the only year Republicans held a notable edge since Gallup began tracking independents’ political leanings was in 1991, the year Republican President George H.W. Bush’s approval ratings soared after the United States’ victory in the Persian Gulf War. Democrats’ high point came in 2008, in the final year of George W. Bush’s administration and the year Barack Obama was first elected president.
However, the three-point Democratic advantage for all of 2014 obscures the change that occurred during the year. On a quarterly basis, Democrats started out 2014 with a five-point edge, similar to their advantage in 2013. That dipped to two points by the third quarter. In the fourth quarter, likely in response to Republicans’ success in the 2014 midterm elections, Republicans held a slight advantage of one point.
Since 2008, Americans have been increasingly reluctant to identify with either the Republican or Democratic Party, and now a record 43% claimed political independence in 2014. Given historical trends, 2015 could bring a new record, as the percentage identifying as independents typically increases in the year before a presidential election, averaging a 2.5-point increase in the last six such years.
Although Democrats typically have an advantage in partisanship, that edge shrunk in 2014 and in the last months of the year the parties were essentially on equal footing. With each party controlling part of the federal government — Democrats the presidency and Republicans the Congress — they each will have a say in how the nation addresses its major challenges in the coming year. However, in recent years divided control of government has more often than not resulted in partisan gridlock, and Americans’ frustration with the frequent political stalemate is evident. Continued frustration with the government would likely encourage more Americans to identify as independents this year.
Results for this Gallup poll are based on telephone interviews conducted January-December 2014, with a combined random sample of 16,479 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. For results based on the total sample of national adults, the margin of sampling error is ±1 percentage point at the 95% confidence level. All reported margins of sampling error include computed design effects for weighting.
Each sample of national adults includes a minimum quota of 50% cellphone respondents and 50% landline respondents, with additional minimum quotas by time zone within region. Landline and cellular telephone numbers are selected using random-digit-dial methods.
New Emails Reveal Obama White House Worked on Concocting Benghazi Lie DURING the Attacks
House Oversight and Government Reform Committee Chairman Darrell Issa said on Thursday that the Obama White House was contacting YouTube owner Google during the Benghazi terrorist attacks, working on the false narrative even before Americans were out of harm’s way and before the intelligence community examined available evidence.
The still classified Obama State Department email, according to Issa, shows that the Obama White House rushed to settle on the false narrative of the anti-Islamic YouTube video instigating the attacks, which was completely at odds with the conclusions reached by reports from the ground.
This new evidence destroys the Obama White House claims, communicated by Obama spokesman Jay Carney, that the White House obtained the false narrative from CIA talking points, since, according to Congressman Issa, the communication with YouTube was conducted by the Obama White House before any CIA talking points were concocted.
The subject line of the email, ironically sent at 9:11 p.m. (the attacks took place on 9/11/12) on the night of the attack, was “Update on Response to actions – Libya,” hours before the attack had ended.
“The e-mail shows the White House had hurried to settle on a false narrative — one at odds with the conclusions reached by those on the ground — before Americans were even out of harm’s way or the intelligence community had made an impartial examination of available evidence,” Issa said.
Issa has called for the Obama White House to declassify the email.
According to Issa, one of the items noted in the email stated, “White House is reaching out to U-Tube [sic] to advise ramifications of the posting of the Pastor Jon video.”
Issa scolded current Secretary of State, Democrat John Kerry, for just now turning over a classified version of the email, some 20 months after the attack, while calling on the regime to release a unclassified copy.
“Unfortunately, Secretary Kerry and the State Department continue to try to keep this information from the public, only turning this document over to Congress last month. While the information I have cited from this email is clearly unclassified, the State Department has attempted to obstruct its disclosure by not providing Congress with an unclassified copy of this document that redacted only classified portions outlining what the Department of Defense and the Secretary of State were doing in response to the attack in Benghazi that night.”
“This tactic prevents the release of the email itself,” said Issa.
Paul Ryan officially declares candidacy for House speaker
Rep. Paul Ryan officially announced his bid Thursday night to become the next House speaker after securing backing from the three major political factions inside the House GOP conference.
“I never thought I’d be speaker,” Ryan wrote in a letter to his Republican colleagues. “But I pledged to you that if I could be a unifying figure, then I would serve — I would go all in. After talking with so many of you, and hearing your words of encouragement, I believe we are ready to move forward as one, united team. And I am ready and eager to be our speaker.”
The Wisconsin Republican snapped up endorsements from a centrist Republican caucus called the Tuesday Group as well as from the more conservative Republican Study Committee.
“After hearing Paul lay out his vision for the future of the Republican conference, I am confident that he is the right person to lead the House going forward,” Rep. Bill Flores, chairman of the RSC, said in a statement Thursday. “He has the policy expertise, conservative principles and strong values we need in our next speaker.”
The endorsements came after Ryan won support from most members of the House Freedom Caucus — a group of about 40 hard-line conservatives — late Wednesday night.
“I’ve spoken with many of you over the past few days, and I can sense the hunger in our conference to get to work,” Ryan wrote. “I know many of you want to show the country how to fix our tax code, how to rebuild our military, how to strengthen the safety net, and how to lift people out of poverty. I know you’re willing to work hard and get it done, and I think this moment is ripe for real reform.”
Ryan, chairman of the House Ways and Means Committee and the 2012 Republican vice presidential nominee, announced Tuesday he would run for the top leadership job if he got support from all GOP factions. He gave his colleagues until Friday to decide whether to support him.
He had repeatedly said he did not want the job but was pressed to run by Republicans who see him as the best candidate to unite the GOP conference.
“Whatever our differences, we’re all conservatives,” Ryan wrote in his letter. “We were elected to defend the constitution. We share the same principles. We all believe America is the land of opportunity — the place where you should be able to go as far as your talents and hard work will take you.”
Republicans will choose a new speaker next week — voting in conference next Wednesday to pick their nominee and on the House floor next Thursday. Outgoing House Speaker John Boehner, R-Ohio, is set to resign next Friday.
The rebellious Freedom Caucus was Ryan’s biggest obstacle to becoming speaker. He did not win the group’s official backing because he fell short of its requirement that at least 80% of its members agree on an endorsement. He won support from about 70% of caucus members.
The caucus’ qualified support, combined with endorsements from the other two GOP groups, are enough to clear Ryan’s path — and possibly end the weeks-long leadership scramble inside the House GOP conference.
Eighty-one percent of Republican insiders say that the likelihood that Trump becomes their party’s nominee is more today than it was a month ago.
The odds that Donald Trump wins the Republican presidential nomination are going up.
Eighty-one percent of Republican insiders say the likelihood that Trump becomes their party’s nominee is more today than it was a month ago, and 79 percent of Democrats said the same. That’s according to the POLITICO Caucus, our weekly bipartisan survey of top strategists, operatives and activists in the early-voting states of Iowa, New Hampshire, South Carolina and Nevada.
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“I can’t even describe the lunacy of him as our nominee. But reason has not applied to date in this race, and my hopes are fleeting that it will ever surface,” lamented an Iowa Republican, who like all participants was granted anonymity in order to speak freely.
“Predictions of his demise keep not coming true,” added a New Hampshire Republican.
Asserted a South Carolina Republican, “Donald Trump being the GOP nominee is now within the realm of possibility.”
Twenty-two percent of Caucus Republicans said Trump has a 50-50 shot at becoming the Republican nominee; the same percentage said he has a 30 percent chance. The rest of the respondents were divided, with the majority saying his odds are still less than 50 percent. But more than 8-in-10 GOP respondents said those are better odds than they gave Trump a month ago.
The results are notable because they represent a big shift in the thinking of POLITICO Caucus insiders, who this summer were deeplyskeptical of Trump’s staying power.
“Trump will be among 3-4 finalists well into April; of that there is no doubt,” an Iowa Republican said.
Added a New Hampshire Republican, who like all participants responded via an online survey: “Numbers are numbers and you have to give them credence. I remain skeptical that he has the ability to turn people out, come primary day, but I [have] been wrong about this campaign every step of the way so far.”
Several insiders pointed to both Trump’s persistent leads in polls and evidence of organization on the ground.
“I think he’s now mounting a serious campaign,” a South Carolina Republican said. “His stump speech had matured and even though the novelty of his candidacy is wearing off, his straight talk is appealing to people who are so sick of being lied to by the political class.”
Another Iowa Republican agreed, saying, “The more time that goes by that he continues to lead — the more likely it is he wins. That simple. Also, comparatively, he is building a real campaign. More so than many others.”
“Not sure why anyone should be so surprised that Trump’s campaign is getting so serious in terms of infrastructure build-out,” a New Hampshire Democrat said. “Trump may be a jerk, but he is an extremely successful jerk. He has the means and the smarts to compete everywhere — and he is not slowing down.”
That’s not the case in Nevada, noted several Republicans there, who said they see little evidence of a strong Trump ground game there.
But, one Republican from that state admonished: “He has demonstrated that he is durable in a way that Herman Cain, Michele [Bachmann] and Newt Gingrich were not. … A lot can happen in the next few months, but it is time for everyone to stop whistling past the graveyard and realize that this is real and he could be our standard-bearer.”
However, several insiders also predict that, though his odds have improved, the rest of the Republican Party will coalesce against him if he still appears to be a serious contender for the nomination when voting begins.
“Maybe, just maybe, Trump wins an early contest or two. That will trigger a much stronger Stop Trump movement,” a New Hampshire Republican said. “The party will nominate Bob Dole — in 2016 —before it will nominate Trump. And a Trump nomination would result in a third candidate emerging.”
Several insiders also said Trump couldn’t withstand waves of scrutiny stemming from attacks launched by super PACs and big donors that, they said, may be just around the corner.
“The summer of Trump has lasted longer than conventional wisdom suggested it would,” a South Carolina Republican said. “It’s going to take a sustained, multi-pronged paid media effort to educate voters that Trump is not a conservative and has flip-flopped on practically every issue. Major donors are quickly getting to the place where they are ready to fund such an effort.”
All eyes on Jeb
The pressure is on for Jeb Bush in next week’s GOP debate, insiders said. Forty-seven percent of Republicans, and 41 percent of Democrats, said the former Florida governor is the candidate with the most riding on the contest, set for next Wednesday in Boulder, Colo.
“Jeb really needs a knock-out performance — it needs to be all him with nobody even close. Otherwise those fumes he’s on are going to evaporate even quicker,” a New Hampshire Republican said.
An Iowa Republican said he doesn’t even need to go that far, but he does need to step up his performance.
“Riding at 6 percent in the polls has rattled Jeb’s donors and volunteers,” this insider said. “He doesn’t need a breakout performance, but he needs to be in the mix and in the top tier of the debate or risk getting shoved to the background and overshadowed by Rubio and others seeking to win over mainstream Republican voters.”
Marco Rubio was a distant second choice for which candidate was under the most pressure for a strong debate, pulling in 13 percent of the overall Republican vote and 24 percent of the Democratic vote.
“Rubio has been the one constant at third place, and it’s time he breaks out of that and starts cutting into Trump/Carson,” a South Carolina Democrat said. “It’s no longer ‘early’ and it’s not the final stretch, but this is the part of the horse race where jockeys know they have to start making their moves if they want to be in position to win.”
Fire-breathing scourge of Wall Street on the campaign trail — and reliable friend of Wall Street in the boardroom. That’s Hillary Clinton — and the big-money crowd thinks it’s in on the game.
For all her populist rhetoric against hedge-funders and the like, Clinton has received more donations from CEOs than any candidate in the GOP — you know, the party of the greedy rich.
More than 760 of Clinton’s presidential donors have listed their occupation as CEO or some variation, according to a Big Crunch analysis of federal election forms.
That’s as many as have given to Republican hopefuls Jeb Bush, Marco Rubio and Ted Cruz combined.
And it doesn’t even include people like hedge-fund CEO Robert Mercer, who prefers to list himself as a “financial consultant” — or those who’ve given instead to pro-Hillary super-PACs. (Or all the folks who’ve bought goodwill over the years by giving to the Clinton Foundation.)
Surprising? No. We’re talking about a woman who’s made millions from hefty six-figure fees for speeches to, among others, groups headed by those same CEOs.
She’s also raked in many millions more for her campaign from corporate lawyers, lobbyists and bankers.
Still, that hasn’t stopped her from declaring, “Wall Street, you’ve had your president. Now we need a president for Main Street.”
And never mind what that seems to imply about the guy in the Oval Office now. Or that just one of her speeches costs four times the average American’s salary.
Wall Street gets it. The fat cats figure she’s just saying what she must to placate her party’s Sanders-Warren hard-left wing.
As one hedge-fund manager told Politico: “Nobody takes it like she’s going after them personally.”
It’s just Hillary being Hillary. Which is to say, all things to all people.
A virulent strain of Clinton Derangement Syndrome, which scientists and Republicans thought had been wiped out at the end of the last century, is now afflicting millions of conservative Americans. Some Republicans so detest Hillary Clinton they are badly underestimating how likely she is, at this point in the campaign, to be America’s 45thpresident. Their denial is just as strong now as it was a month ago, before Clinton began a run of political victories that have enhanced her prospects, all while the roller derby/demolition derby that is the Republican nomination contest has continued to harm the GOP’s chances of winning back the White House.
To be sure, nothing ever happens in a linear or tidy fashion with the Clintons; she is certain to add more chapters to the Perils of Hillary saga before Election Day 2016. Bernie Sanders could still upend her in Iowa, New Hampshire, or both, which could throw the nomination battle into unadulterated bedlam. Even if Clinton is nominated, a strong Republican candidate could absolutely defeat her next November, with victory as simple as the party putting forth a nominee who is more likeable to voters and better on television. Indeed, many elite and grassroots Republicans believe Clinton’s personality, which they can’t stand, will keep her out of the Oval Office no matter what.
But October has been good to Clinton: a glittering debate performance, the decision of potential rival Joe Biden not to run (greatly simplifying her path to the nomination), the vanquishing of Republicans during her daylong Benghazi hearing, and a solid turn at the Iowa Democratic Party’s Jefferson-Jackson dinner Saturday night. All have improved Clinton’s odds of cruising into the White House twelve months hence, and have thrown into sharper relief some of the advantages she has had all along.
To state the obvious, Clinton faces two tasks to become commander-in-chief: get enough delegates to beat Sanders and then sew up 270 electoral votes. The more easily she can complete her first mission (especially compared to the wooly nomination battle of her eventual Republican opponent), the more easily achievable will be her second goal.
Here, then, are some of the advantages the Democratic frontrunner has now, many of which have been ignored or discounted by the people who want to beat her so badly they can’t think straight:
Hillary has shown she can handle Bernie Sanders, despite his plucky persona, raw grassroots appeal, and authentic authenticity.The Vegas debate and Clinton’s improved poll standing has given her and her team a revived notion that Sanders will end up a nuisance rather than a real threat. She has confidence she can face him down in the three debates remaining before Iowa. Without Biden in the race, Clinton is not going to have to play three-dimensional chess and can focus her energies on Sanders alone.
Bernie has shown he doesn’t quite understand how to play big moments in the big leagues.First the debate and now the Jefferson-Jackson dinner—Sanders prepared more for both evenings than the organic Vermonter normally would for any political event, but even his advisers concede that neither occasion represented the kind of performance that Sanders will eventually have to present if he is going to stop the prohibitive front-runner. He was very strong Saturday night but aides say they are still having trouble fully convincing him that not all campaign events are created equal.
Hillary is getting better at managing (and shaking off) the personal pang of her likability deficit.At the J-J dinner, in her recent television interviews, and in her Benghazi testimony, she is showing more of her real self (even the all-too-human tetchy, the airily dismissive, the lordly—without knee-jerk defensiveness or wide-eyed guile), and not getting tied in knots over how she is coming off. While this version of Hillary is still nails-on-a-chalkboard to her conservative critics, it is a huge improvement over the recent past and probably enough to win under the right circumstances.
Biden’s withdrawal means Clinton will lock up even more commitments from the Democratic establishment, giving her even more super delegates and making it easier to bounce back if Sanders wins Iowa, New Hampshire, or both. I reported in August that Clinton’s camp already had in hand private commitments from enough of the elected and party officials who are automatic delegates to the national convention next summer (so-called super delegates) that she was one fifth of her way to the nomination. That number has increased significantly in recent weeks and will go up now that Biden has passed on the race. This allows Team Clinton to make a robust argument about her inevitability and gives it a squadron of surrogates from the left, center, and right of the Democratic Party to wound Sanders, buck her up if she stumbles, and, eventually, argue that the senator should get out of the competition if she wins early.
Hillary has massive support from labor unions.The party’s most important constituency group in terms of ground troops and campaign resources is now moving decisively towards Clinton, also giving her more working-class cred and undermining one of Sanders’ strongest rhetorical plays—that she is out of touch with the economic grassroots. And long-invested unions will provide her important foot soldiers in the general election battlegrounds, as they have since time began for Democratic presidential nominees.
Hillary could be the de facto Democratic nominee by Feb. 8. Her team privately believes that, given the way expectations have been set up, even narrow wins in the two first-voting contests would not be discounted. Clinton has robust field operations in both states and could diligently grind her way to victories. Even Sanders’ top aides acknowledge that, barring other factors, it could be game, set, match if Hillary starts the voting year with twin wins, giving Brooklyn ample incentive to go all in there and try to put it away early.
Hillary’s husband now seems fired up and ready to go.Although a little rusty over the weekend in Iowa in his 2015 campaign trail debut, accounts from aides to both Clintons suggest the former president has learned lessons from his performance eight years ago, when he arguably hurt his wife’s chances as much as he helped her. He has been kept in the loop on the campaign’s thinking, receives polling information on a regular basis, and has participated in some strategy discussions with the team. The campaign seems happy with him, and he seems happy with the campaign, and that is a big change from 2008. Both campaign chairman John Podesta and campaign manager Robby Mook have good and confident relationships with the FPOTUS, who seems less ambivalent than last time about becoming the First Lad.
Hillary’s campaign is much less tense and fractious than was the 2008 team. There are fraught moments in Brooklyn, as in any campaign, and Clinton’s donors can get restive awfully quick, but this year’s model is one of relative peace and tranquility. Zen masters Podesta, Mook, and communications chief Jennifer Palmieri set the “been there, done that, seen that, dealt with that” sensibility.
Hillary’s team at last is convincing rich Democrats to come around to the super-PAC game.Clinton loyalist Guy Cecil is now topping Priorities USA and he has brought in a new cast of folks to supplement holdovers such as Paul Begala, Jim Messina, and Harold Ickes, all of whom have experience rubbing shoulders with the mega-wealthy and prying seven-figure checks out of their hands. Cecil knows how to leverage hot buttons like the Koch brothers and the threat of more conservative Supreme Court justices and unified GOP control of Washington to maintain momentum and encourage the participation of those previously reluctant to muck about in the big money world that many liberals despise and disdain.
Hillary has a first-class opposition research team that is saving nuggets to use once Republicans pick their nominee.Oppo veteran Christina Reynolds heads an operation that can afford to play a long game, teasing out incremental research in conjunction with allies such as the Democratic National Committee but knowing full well that holding back powerful tidbits until the late spring or summer, when the eventual Republican nominee will be most vulnerable, is supremely smart. The research operations of the Republican presidential campaigns, on the other hand, are currently focused on each other (although the independent group America Rising is hoping to make up the gap).
The Republican nominee is more likely to emerge bloodied, broke, and behind. A nominating calendar and delegate rules designed to avoid the kind of extended intra-party fight that crippled Mitt Romney’s general election effort will almost certainly be no match for a fifteen candidate field, a number of whom can make a decent argument that they’ll win the prize. The ferociousness and deep pockets of gladiators Donald Trump and Ted Cruz and the possibility that the party establishment will end up intervening with tens of millions of dollars in negative TV spots means a long, gory slog that might not find resolution until after the national convention in Cleveland in mid-July. (Of course, if Trump is ultimately the nomination victor, then “broke” should not be a factor.)
As the nominee, Hillary will effectively control the DNC and will exercise free rein over the convention.Even with Sanders a remaining foe, Hillaryland is coordinating fundraising with the national and state parties, strategizing about installing allies at the party headquarters in DC, and gaming out what the Philly convention will look like. If Clinton is the standard bearer, make no mistake: Brooklyn will convert the DNC into its wholly owned subsidiary and will take over every jot and tittle of convention planning and execution. This type of control typically leads to less friction and a smoother running enterprise, including on-message convention speakers.
Republicans are erroneously convinced they can beat Clinton solely with talk of Benghazi, e-mails, and other controversies that have nothing to do with the economy and the real lives of real people.Nowhere does the Fox News-Rush Limbaugh echo chamber more hurt Republican chances of beating Clinton than in the politics of scandal and controversy. To paraphrase the famous line attributed to Pauline Kael: everyone who conservatives know think the Clintons should be in prison. The problem is that swing voters don’t share that view in sufficient numbers to actually warrant banking a victory on placing those arguments front and center. Kevin McCarthy’s acknowledgement that the Benghazi committee was set up to damage Clinton politically has not just polluted the select committee’s efforts; it also means that one of the most effectively tried-and-true Team Clinton defenses (that any controversy that swirls around her is a ginned up political attack because Republicans don’t want to talk about real issues) has got legs straight through next November.
Hillary is ready for the debates.She won’t have as many debates in which to hone her skills as the eventual GOP nominee, but she has many other edges, including her 2008 experience; the fact that going forward she will face only one or two opponents—rather than nine or so—on the debate stage (much closer to the dynamics in a general election); her professionalized and experienced debate prep team (many of whom worked the same gig for Barack Obama); and her own fearsome, dogged, and scrupulous preparation.
Hillary’s pollster knows how to find issues that test 80-20 or 70-30, and the candidate knows how to translate them on the stump.While Republican presidential candidates thrash around competing to see who can be the most anti-immigrant, pro-tax cuts for the wealthy, anti-abortion and gay marriage, and pro-climate change-denying, Clinton’s pollster and strategist Joel Benenson is busy finding topics she can talk about in a general election that garner overwhelming support from the public across the political spectrum and will put the GOP nominee on the defensive. Nothing makes a Clinton running for president more confident and effective than having mainstream boldface issues to use as a cudgel.
Obama’s approval rating is holding at a level that would make Clinton’s path much easier. Yes, the economy is not going gangbusters. Yes, ObamaCare is not universally popular (to say the least). Yes, the world is filled with dangerous hot spots and looming, chilling threats. But barring some major change in his fortune, Obama’s current approval rating of around 46% is likely to sustain through Election Day, a high enough figure, history suggests, to keep him from being a drag on his party’s nominee and chosen successor.
Hillary’s team is already thinking about general election targeting.One of the pages Brooklyn has taken from the Obama playbook is to start thinking about the general election early. That includes using contests in caucuses and primaries states that will be battlegrounds next November to build up a team, target data, establish media relationships, and keep it all humming after the nominating contest and throughout the duration. It also includes living by the dictum “what’s mine is mine and what’s yours let’s negotiate over,” hawkishly protecting the nearly 250 electoral votes and voting groups Democrats have won consistently over the last several cycles while looking to expand the targeting efforts demographically and geographically.
Hillary would inherit a considerable demographic edge in a general election. Republicans have done next to nothing, and clearly much more harm than good since Mitt Romney lost in 2012, to make in-roads with the so-called coalition of the ascendant. Clinton would almost certainly have an overwhelming edge with African-Americans, Asians, Hispanics, LGBT voters, young people, and single women, and the future contours of the Republican nomination fight are not likely to make the party’s challenge with these groups any easier.
Hillary would also inherit a considerable Electoral College edge in a general election.The Democrats don’t have quite the Electoral College “lock” that the GOP had in the ‘70s and ‘80s but it is pretty close. A strong Republican nominee could make Clinton play defense in states such as Florida, Ohio, Iowa, and Colorado. But the safe Democrat states would give her a huge leg up, and demographic changes mean Clinton could be playing offense in places such as Georgia and Arizona under the right circumstances. Political pros in both parties believe some of the leading Republican contenders would give Clinton a chance to surpass her husband’s 1992 electoral vote total of 370 if they are her eventual competition.
Clinton advisers are well aware of these many advantages. They are staying largely mum for now, preferring to let the candidate’s recent positive media coverage speak for itself and not relinquish any tactical advantage of surprise.
They also know the FBI probe into her e-mails, Bill Clinton’s portfolio, or something new and super controversial could upend her standing at any time. And the raucous Republican nomination process could yet yield a strong general election opponent for her. This list is not meant to gloss over the considerable challenges Clinton is sure to face even if everything goes as planned on her side—not to mention if things start to go south. And a few savvy Republican operatives are ringing the alarm bell in private strategy sessions, urging the party to try to address as many of these deficits as soon as possible.
But don’t be surprised if reports soon surface mirroring what happened almost exactly eight years ago, when Clinton asked top advisers to secretly begin planning her vice presidential selection process—and her presidential transition. Republicans would surely see those steps as wildly premature, but given all of Clinton’s advantages now, she may consider it simply prudent planning.
O’Malley: ‘Clinton Has Changed Her Position on Virtually Every Defining Issue’
BY DANIEL HALPER
“I think this race has changed in many, many ways just over the last week … the differences that I am going to be able to make now between two candidates who have been in Washington for about 40 years now – neither one of whom have gotten much done – and another candidate representing a new perspective and a new generation of leadership who’s actually gotten difficult things done,” O’Malley said.
Later O’Malley added, “A weathervane shifts its positions in the wind. Effective leaders do not. I am clear about my principles I know where I stand. I was against the Trans Pacific Partnership 8 months ago. Hillary Clinton has changed her position on virtually every defining issue in this race – except for one, and that’s to protect the big banks on Wall Street and go about with business as usual. I don’t think that’s what the people of our country are looking for. I have the independence, I have the backbone, to stand up for what our nation needs. That’s what people are going to see now that it’s down to a three person race.”
The Pronk Pops Show 551, October 12, 2015, Story 1: President Obama Stalls Islamic State While He Runs Out The Clock On His Failed Presidency — Who is next? President Trump — Obama A Real Loser — Leading On Climate Change — Give Me A Break! — Videos
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While many advocates of aggressive policy responses to global warming say a consensus exists, the latest Rasmussen Reports national telephone survey finds that just 25% of adults think most scientists agree on the topic. Twenty-three percent (23%) are not sure. …”
Steve Kroft: The last time we talked was this time last year, and the situation in Syria and Iraq had begun to worsen vis-Ã -vis ISIS. You had just unveiled a plan to provide air support for troops in Iraq, and also some air strikes in Syria, and the training and equipping of a moderate Syrian force. You said that this would degrade and eventually destroy ISIS.
President Barack Obama: Over time.
Steve Kroft: Over time. It’s been a year, and–
President Barack Obama: I didn’t say it was going to be done in a year.
Steve Kroft: No. But you said…
President Barack Obama: There’s a question in here somewhere.
Steve Kroft: Who’s going to get rid of them?
President Barack Obama: Over time, the community of nations will all get rid of them, and we will be leading getting rid of them. But we are not going to be able to get rid of them unless there is an environment inside of Syria and in portions of Iraq in which local populations, local Sunni populations, are working in a concerted way with us to get rid of them.
On the “moderate opposition” in Syria:
Steve Kroft: You have been talking about the moderate opposition in Syria. It seems very hard to identify. And you talked about the frustrations of trying to find some and train them. You got a half a billion dollars from Congress to train and equip 5,000, and at the end, according to the commander CENTCOM, you got 50 people, most of whom are dead or deserted. He said four or five left?
President Barack Obama: Steve, this is why I’ve been skeptical from the get go about the notion that we were going to effectively create this proxy army inside of Syria. My goal has been to try to test the proposition, can we be able to train and equip a moderate opposition that’s willing to fight ISIL? And what we’ve learned is that as long as Assad remains in power, it is very difficult to get those folks to focus their attention on ISIL.
Steve Kroft: If you were skeptical of the program to find and identify, train and equip moderate Syrians, why did you go through the program?
President Barack Obama: Well, because part of what we have to do here, Steve, is to try different things. Because we also have partners on the ground that are invested and interested in seeing some sort of resolution to this problem. And–
Steve Kroft: And they wanted you to do it.
President Barack Obama: Well, no. That’s not what I said. I think it is important for us to make sure that we explore all the various options that are available.
Steve Kroft: I know you don’t want to talk about this.
President Barack Obama: No, I’m happy to talk about it.
Steve Kroft: I want to talk about the– this program, because it would seem to show, I mean, if you expect 5,000 and you get five, it shows that somebody someplace along the line did not– made– you know, some sort of a serious miscalculation.
President Barack Obama: You know, the– the– Steve, let me just say this.
Steve Kroft: It’s an embarrassment.
President Barack Obama: Look, there’s no doubt that it did not work. And, one of the challenges that I’ve had throughout this heartbreaking situation inside of Syria is, is that– you’ll have people insist that, you know, all you have to do is send in a few– you know, truckloads full of arms and people are ready to fight. And then, when you start a train-and-equip program and it doesn’t work, then people say, “Well, why didn’t it work?” Or, “If it had just started three months earlier it would’ve worked.”
Steve Kroft: But you said yourself you never believed in this.
President Barack Obama: Well– but Steve, what I have also said is, is that surprisingly enough it turns out that in a situation that is as volatile and with as many players as there are inside of Syria, there aren’t any silver bullets. And this is precisely why I’ve been very clear that America’s priorities has to be number one, keeping the American people safe. Number two, we are prepared to work both diplomatically and where we can to support moderate opposition that can help convince the Russians and Iranians to put pressure on Assad for a transition. But that what we are not going to do is to try to reinsert ourselves in a military campaign inside of Syria. Let’s take the situation in Afghanistan, which I suspect you’ll ask about. But I wanted to use this as an example.
Steve Kroft: All right. I feel like I’m being filibustered, Mr. President.
President Barack Obama: No, no, no, no, no. Steve, I think if you want to roll back the tape, you’ve been giving me long questions and statements, and now I’m responding to ’em. So let’s– so– if you ask me big, open-ended questions, expect big, open-ended answers. Let’s take the example of Afghanistan. We’ve been there 13 years now close to 13 years. And it’s still hard in Afghanistan. Today, after all the investments we have there, and we still have thousands of troops there. So the notion that after a year in Syria, a country where the existing government hasn’t invited us in, but is actively keeping us out, that somehow we would be able to solve this quickly– is–
Steve Kroft: We didn’t say quickly.
President Barack Obama: –is– is– is an illusion. And– and–
Steve Kroft: Nobody’s expecting that, Mr. President.
President Barack Obama: Well, the– no, I understand, but what I’m– the simple point I’m making, Steve, is that the solution that we’re going to have inside of Syria is ultimately going to depend not on the United States putting in a bunch of troops there, resolving the underlying crisis is going to be something that requires ultimately the key players there to recognize that there has to be a transition to new government. And, in the absence of that, it’s not going to work.
Steve Kroft: One of the key players now is Russia.
President Barack Obama: Yeah.
Steve Kroft: A year ago when we did this interview, there was some saber-rattling between the United States and Russia on the Ukrainian border. Now it’s also going on in Syria. You said a year ago that the United States– America leads. We’re the indispensible nation. Mr. Putin seems to be challenging that leadership.
President Barack Obama: In what way? Let– let’s think about this– let– let–
Steve Kroft: Well, he’s moved troops into Syria, for one. He’s got people on the ground. Two, the Russians are conducting military operations in the Middle East for the first time since World War II–
President Barack Obama: So that’s–
Steve Kroft: –bombing the people– that we are supporting.
President Barack Obama: So that’s leading, Steve? Let me ask you this question. When I came into office, Ukraine was governed by a corrupt ruler who was a stooge of Mr. Putin. Syria was Russia’s only ally in the region. And today, rather than being able to count on their support and maintain the base they had in Syria, which they’ve had for a long time, Mr. Putin now is devoting his own troops, his own military, just to barely hold together by a thread his sole ally. And in Ukraine–
Steve Kroft: He’s challenging your leadership, Mr. President. He’s challenging your leadership–
President Barack Obama: Well Steve, I got to tell you, if you think that running your economy into the ground and having to send troops in in order to prop up your only ally is leadership, then we’ve got a different definition of leadership. My definition of leadership would be leading on climate change, an international accord that potentially we’ll get in Paris. My definition of leadership is mobilizing the entire world community to make sure that Iran doesn’t get a nuclear weapon. And with respect to the Middle East, we’ve got a 60-country coalition that isn’t suddenly lining up around Russia’s strategy. To the contrary, they are arguing that, in fact, that strategy will not work.
Steve Kroft: My point is– was not that he was leading, my point is that he was challenging your leadership. And he has very much involved himself in the situation. Can you imagine anything happening in Syria of any significance at all without the Russians now being involved in it and having a part of it?
President Barack Obama: But that was true before. Keep in mind that for the last five years, the Russians have provided arms, provided financing, as have the Iranians, as has Hezbollah.
Steve Kroft: But they haven’t been bombing and they haven’t had troops on the ground–
President Barack Obama: And the fact that they had to do this is not an indication of strength, it’s an indication that their strategy did not work.
Steve Kroft: You don’t think–
President Barack Obama: You don’t think that Mr. Putin would’ve preferred having Mr. Assad be able to solve this problem without him having to send a bunch of pilots and money that they don’t have?
Steve Kroft: Did you know he was going to do all this when you met with him in New York?
President Barack Obama: Well, we had seen– we had pretty good intelligence. We watch–
Steve Kroft: So you knew he was planning to do it.
President Barack Obama: We knew that he was planning to provide the military assistance that Assad was needing because they were nervous about a potential imminent collapse of the regime.
Steve Kroft: You say he’s doing this out of weakness. There is a perception in the Middle East among our adversaries, certainly and even among some of our allies that the United States is in retreat, that we pulled our troops out of Iraq and ISIS has moved in and taken over much of that territory. The situation in Afghanistan is very precarious and the Taliban is on the march again. And ISIS controls a large part of Syria.
President Barack Obama: I think it’s fair to say, Steve, that if–
Steve Kroft: It’s– they– let me just finish the thought. They say your–
President Barack Obama: You’re–
Steve Kroft: –they say you’re projecting a weakness, not a strength–
President Barack Obama: –you’re saying “they,” but you’re not citing too many folks. But here–
Steve Kroft: No, I’ll cite– I’ll cite if you want me, too.
President Barack Obama: –here– yes. Here–
Steve Kroft: I’d say the Saudis. I’d say the Israelis. I’d say a lot of our friends in the Middle East. I’d say everybody in the Republican party. Well, you want me to keep going?
President Barack Obama: Yeah. The– the– if you are– if you’re citing the Republican party, I think it’s fair to say that there is nothing I’ve done right over the last seven and a half years. And I think that’s right. It– and– I also think what is true is that these are the same folks who were making an argument for us to go into Iraq and who, in some cases, still have difficulty acknowledging that it was a mistake. And Steve, I guarantee you that there are factions inside of the Middle East, and I guess factions inside the Republican party who think that we should send endless numbers of troops into the Middle East, that the only measure of strength is us sending back several hundred thousand troops, that we are going to impose a peace, police the region, and– that the fact that we might have more deaths of U.S. troops, thousands of troops killed, thousands of troops injured, spend another trillion dollars, they would have no problem with that. There are people who would like to see us do that. And unless we do that, they’ll suggest we’re in retreat.
Steve Kroft: They’ll say you’re throwing in the towel–
President Barack Obama: No. Steve, we have an enormous presence in the Middle East. We have bases and we have aircraft carriers. And our pilots are flying through those skies. And we are currently supporting Iraq as it tries to continue to build up its forces. But the problem that I think a lot of these critics never answered is what’s in the interest of the United States of America and at what point do we say that, “Here are the things we can do well to protect America. But here are the things that we also have to do in order to make sure that America leads and America is strong and stays number one.” And if in fact the only measure is for us to send another 100,000 or 200,000 troops into Syria or back into Iraq, or perhaps into Libya, or perhaps into Yemen, and our goal somehow is that we are now going to be, not just the police, but the governors of this region. That would be a bad strategy Steve. And I think that if we make that mistake again, then shame on us.
Steve Kroft: Do you think the world’s a safer place?
President Barack Obama: America is a safer place. I think that there are places, obviously, like Syria that are not safer than when I came into office. But, in terms of us protecting ourselves against terrorism, in terms of us making sure that we are strengthening our alliances, in terms of our reputation around the world, absolutely we’re stronger.
On Friday, the Pentagon ended the program to train-and-equip Syrian rebels that the president told us did not work. In a moment, he talks about Donald Trump, Hillary Clinton’s emails and Joe Biden’s possible run for president.
Steve Kroft: OK. Mr. President, there are a lot of serious problems with the world right now, but I want to ask you a few questions about politics.
President Barack Obama: Yeah, go ahead.
Steve Kroft: What do you think of Donald Trump?
President Barack Obama: Well, I think that he is a great publicity-seeker and at a time when the Republican party hasn’t really figured out what it’s for, as opposed to what it’s against. I think that he is tapped into something that exists in the Republican party that’s real. I think there is genuine anti-immigrant sentiment in the large portion of at least Republican primary voters. I don’t think it’s uniform. He knows how to get attention. He is, you know, the classic reality TV character and, at this early stage, it’s not surprising that he’s gotten a lot of attention.
Steve Kroft: You think he’s running out of steam? I mean, you think he’s going to disappear?
President Barack Obama: You know, I’ll leave it up to the pundits to make that determination. I don’t think he’ll end up being president of the United States.
Steve Kroft: Did you know about Hillary Clinton’s use of private email server–
President Barack Obama: No.
Steve Kroft: –while she was Secretary of State?
President Barack Obama: No.
Steve Kroft: Do you think it posed a national security problem?
President Barack Obama: I don’t think it posed a national security problem. I think that it was a mistake that she has acknowledged and– you know, as a general proposition, when we’re in these offices, we have to be more sensitive and stay as far away from the line as possible when it comes to how we handle information, how we handle our own personal data. And, you know, she made a mistake. She has acknowledged it. I do think that the way it’s been ginned-up is in part because of– in part– because of politics. And I think she’d be the first to acknowledge that maybe she could have handled the original decision better and the disclosures more quickly. But–
Steve Kroft: What was your reaction when you found out about it?
President Barack Obama: This is one of those issues that I think is legitimate, but the fact that for the last three months this is all that’s been spoken about is an indication that we’re in presidential political season.
Steve Kroft: Do you agree with what President Clinton has said and Secretary Clinton has said, that this is not– not that big a deal. Do you agree with that?
President Barack Obama: Well, I’m not going to comment on–
Steve Kroft: You think it’s not that big a deal–
President Barack Obama: What I think is that it is important for her to answer these questions to the satisfaction of the American public. And they can make their own judgment. I can tell you that this is not a situation in which America’s national security was endangered.
Steve Kroft: This administration has prosecuted people for having classified material on their private computers.
President Barack Obama: Well, I– there’s no doubt that there had been breaches, and these are all a matter of degree. We don’t get an impression that here there was purposely efforts– on– in– to hide something or to squirrel away information. But again, I’m gonna leave it to–
Steve Kroft: If she had come to you.
President Barack Obama: I’m going to leave it to Hillary when she has an interview with you to address all these questions.
Steve Kroft: Right now, there’s nobody on either side of the aisle that is exactly running on your record. Do you want Joe Biden to get in the race and do it?
President Barack Obama: You know, I am going to let Joe make that decision. And I mean what I say. I think Joe will go down as one of the finest vice presidents in history, and one of the more consequential. I think he has done great work. I don’t think there’s any politician at a national level that has not thought about being the president. And if you’re sitting right next to the president in every meeting and, you know wrestling with these issues, I’m sure that for him he’s saying to himself, “I could do a really good job.”
Steve Kroft: I do want to talk a little bit about Congress. Are you going to miss John Boehner?
President Barack Obama: John Boehner and I disagreed on just about everything. But the one thing I’ll say about John Boehner is he did care about the institution. He recognized that nobody gets 100 percent in our democracy. I won’t say that he and I were ideal partners, but he and I could talk and we could get some things done. And so I am a little concerned that the reason he left was because there are a group of members of Congress who think having somebody who is willing to shut down the government or default on the U.S. debt is going to allow them to get their way 100 percent of the time.
Steve Kroft: Do you think you’re going to be able to get anything through Congress?
President Barack Obama: Well, given that– this Congress hasn’t been able to get much done at all over the last year and a half, two years, for that matter for the last four, it would be surprising if we were able to make huge strides on the things that are important. But I have a more modest goal, which is to make sure that Congress doesn’t do damage to the economy.
The president says that means avoiding another budget crisis and another round of threats to shut down the government, which could happen as early as December. Even with congressional Republicans in disarray, he’s hoping to reach a deal with Congress as he did two years ago, to lift some spending caps in defense and other areas while continuing to reduce the deficit.
President Barack Obama: Right now, our economy is much stronger relative to the rest of the world. China, Europe, emerging markets, they’re all having problems. And so, if we provide another shock to the system by shutting down the government, that could mean that the progress we have made starts going backwards instead of forwards. We have to make sure that we pass a transportation bill. It may not be everything that I want. We should be being much more aggressive in rebuilding America right now. Interest rates are low, construction workers need the work, and our economy would benefit from it. But if we can’t do a big multiyear plan, we have to at least do something that is robust enough– so that we are meeting the demands of a growing economy.
Steve Kroft: A few months back, at a fundraiser, you made a point of saying that the first lady was very pleased that you can’t run again.
President Barack Obama: Yeah, she is.
Steve Kroft: Do you feel the same way?
President Barack Obama: You know, it’s interesting. I– you go into your last year and I think it’s bittersweet. On the one hand, I am very proud of what we’ve accomplished and it makes me think, I’d love to do some more. But by the time I’m finished, I think it will be time for me to go. Because there’s a reason why we considered George Washington one of our greatest presidents. He set a precedent, saying that when you occupy this seat, it is an extraordinary privilege, but the way our democracy is designed, no one person is indispensable. And ultimately you are a citizen. And once you finish with your service, you go back to being a citizen. And I– and I think that– I think having a fresh set of legs in this seat, I think having a fresh perspective, new personnel and new ideas and a new conversation with the American people about issues that may be different a year from now than they were when I started eight years ago, I think that’s all good for our democracy. I think it’s healthy.
Steve Kroft: Do you think if you ran again, could run again, and did run again, you would be elected?
Story 1: Nobody Does It Better Spying On People of The World — National Security Agency — Turnkey Tyranny Turned On The American People — NSA Budget $100 Billion Plus Paid By The American People — The Patriot Act Expires On June 1, 2015 — Both Republican and Democratic Parties Will Renew It! — Secret Security Surveillance State — Alive, Well and Growing — Videos
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Appellate Court Rules NSA’s Phone Data Collection Is Illegal
McConnell to Push for Pure PATRIOT Act Extension
INTERVIEW with NSA WHISTLEBLOWER: Confirm EVERYONE in US is under VIRTUAL SURVEILLANCE since 9/11
What You Didn’t Know About The NSA Bluffdale Spy Center – From Former NSA Director Bill Binney
Through a PRISM, Darkly – Everything we know about NSA spying [30c3]
30c3 keynote with Glenn Greenwald [30c3]
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Real Talk: The Patriot Act
Patriot Act Powers – GOP Fights To Renew NSA Surveillance Law – Fox & Friends
Marco Rubio blasts colleagues over renewing NSA spying powers
Rand Paul Stalling Patriot Act Extension!
The Obama Administration’s War on Whistleblowers–7 Whistleblowers speak at News Conference 04-27-15
Top NSA Whistleblower William Binney Exposes the Tyranny 3/20/15
NSA Whistleblower: Everyone in US under virtual surveillance, all info stored, no matter the post
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NSA Whistleblower William Binney: The Future of FREEDOM
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NSA Whistle-Blower Tells All: The Program | Op-Docs | The New York Times
William Binney – The Government is Profiling You (The NSA is Spying on You)
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Glenn Greenwald: The NSA Can “Literally Watch Every Keystroke You Make”
NSA Whistleblower Thomas Drake Prevails in Unprecedented Obama Admin Crackdown
NSA Whistleblower Thomas Drake speaks at National Press Club – March 15, 2013
29C3 Panel: Jesselyn Radack, Thomas Drake, William Binney on whistleblowing and surveillance
Everything We Know About NSA Spying: “Through a PRISM, Darkly” – Kurt Opsahl at CCC
FBI’s Patriot Act Abuse of National Security Letters and illegal NSA spying
Last Week Tonight with John Oliver: Government Surveillance (HBO)
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Glenn Becks “SURVEILLANCE STATE”
Glenn Greenwald on Domestic Surveillance: NSA Warrantless Wiretapping Controversy (2006)
Enemy of the State (1998) Predicts Edward Snowden’s Revelations
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Congressman Ron Paul, MD – We’ve Been NeoConned
Why Shouldn’t I Work for the NSA?
(Good Will Hunting)
N.S.A. Phone Data Collection Is Illegal, Appeals Court Rules
By CHARLIE SAVAGE and JONATHAN WEISMAN
A federal appeals court in New York on Thursday ruled that the once-secret National Security Agency program that is systematically collecting Americans’ phone records in bulk is illegal. The decision comes as a fight in Congress is intensifying over whether to end and replace the program, or to extend it without changes.
In a 97-page ruling, a three-judge panel for the United States Court of Appeals for the Second Circuit held that a provision of the USA Patriot Actknown as Section 215 cannot be legitimately interpreted to allow the bulk collection of domestic calling records.
The ruling was certain to increase the tension that has been building in Congress as the provision of the act that has been cited to justify the bulk data collection program nears expiration. It will expire in June unless lawmakers pass a bill to extend it.
Thursday’s ruling did not come with any injunction ordering the program to cease, and it is not clear that anything else will happen in the judicial system before Congress has to make a decision about the expiring law.
It is the first time a higher-level court in the regular judicial system has reviewed the program.
The data collection had repeatedly been approved in secret by judges serving on the Foreign Intelligence Surveillance Court, known as the FISA court, which oversees national security surveillance. Those judges, who hear arguments only from the government, were willing to accept an interpretation of Section 215 that the appeals court on Thursday rejected.
The court, in a unanimous ruling written by Judge Gerard E. Lynch, held that Section 215 “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.” It declared the program illegal, saying, “We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”
The House appears ready to pass a bill next week that would end the government’s bulk collection of phone records and replace it with a new program that would preserve the ability to analyze links between callers to hunt for terrorists but keep the bulk records in the hands of phone companies. That proposal however, has faced resistance from Senator Mitch McConnell, Republican of Kentucky, the Senate majority leader.
A similar bill died in the Senate in November after national-security hawks said it would be a gift to terrorists and Mr. McConnell urged Republicans to block an up-or-down vote on it with a filibuster. Mr. McConnell has urged a “clean extension” of Section 215 this time so the program can continue in its present form, and he said on Tuesday that he thought that was the “most likely” outcome.
But Alexander Abdo, who argued the case for the American Civil Liberties Union, praised the ruling.
“This decision is a victory for the rule of law that should spur Congress into action,” he said. “Modern technology has created tremendous opportunity, but it has also enabled surveillance on a scale inconsistent with free society. Today’s decision is an opportunity to redouble the defense of the constitutional principles that have made our nation what it is today.”
The appeals court sent the matter back to a Federal District Court judge to decide what to do next. The government could also appeal the ruling to the full appeals court, or to the Supreme Court. Parallel cases are pending before two other appeals courts that have not yet ruled.
Lawmakers who helped draft the bill that the House is about to pass, known as the USA Freedom Act, seized on the ruling as a triumph. Among them, Senators Patrick J. Leahy, Democrat of Vermont, and Mike Lee, Republican of Utah, said in a joint statement: “Congress should not reauthorize a bulk collection program that the court has found to violate the law. We will not consent to any extension of this program.”
But Mr. McConnell and Senator Richard M. Burr of North Carolina, chairman of the Senate Intelligence Committee, took to the Senate floor and gave no ground. Mr. McConnell blasted the House bill as “an untested, untried and more cumbersome system” that would neither “keep us safe or protect our privacy.”
“Section 215 helps us find a needle in the haystack,” he said. “But under the USA Freedom Act, there might not be a haystack at all.”
A senior Democratic senator suggested a compromise with Mr. McConnell, who has the power to decide which bills get brought up for a vote. The lawmaker suggested that Democrats might permit an extension of the existing statute for just a month in exchange for a promise by Mr. McConnell to allow a vote on the House bill in June.
Still, even if there were votes in Congress for a short-term extension of the existing statute to create more time for debating the USA Freedom Act, Thursday’s ruling would create a series of political and legal difficulties for keeping the program going in the interim.
The present FISA court order authorizing the bulk phone records program, issued in February by Judge James E. Boasberg of Federal District Court, expires on June 1. To bridge any gap between the existing program and a new one, the Obama administration would have to ask the FISA court to reauthorize the program for another round and a FISA judge would have to agree to do so, notwithstanding the Second Circuit’s ruling that Section 215 gives the court no authority to order phone companies to turn over customer records in bulk.
The FISA court is not directly subject to the Second Circuit’s authority — it has its own appeals court — but when Judge Boasberg issued the last order for the phone program he noted the existence of the litigation challenging the legal interpretation the FISA court had adopted, as well as the legislation pending in Congress. He required the government to file any application to renew the program again by May 22.
In a statement, Edward Price, a spokesman for the National Security Council, said the administration was still evaluating the ruling but reiterated that President Obama’s support for legislation that would transform the program is in line with the USA Freedom Act.
“Without commenting on the ruling today, the president has been clear that he believes we should end the Section 215 bulk telephony metadata program as it currently exists by creating an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data,” he said.
The bulk phone records program traces back to October 2001. After the Sept. 11 attacks, President George W. Bush secretly authorized the N.S.A. to begin a group of surveillance and data-collection programs, without obeying statutory limits, for the purpose of hunting for hidden terrorist cells.
Over time, the legal basis for each component of that program, known as Stellarwind, evolved. In 2006, the administration persuaded a Federal District Court judge serving on the FISA Court, Malcolm J. Howard, to issue the first of many court orders blessing the phone records component, based on the idea that Section 215 could be interpreted as authorizing it.
Many other judges serving on the FISA court have subsequently renewed the program at roughly 90-day intervals. It came to light in June 2013 as part of the leaks by the intelligence contractor Edward J. Snowden, setting off a debate both about individual privacy rights and about whether the FISA court’s secret legal interpretation was founded.
Multiple lawsuits were filed in different districts challenging the program as both illegal under Section 215 and as unconstitutional. Different district court judges reached opposingconclusions about its legality.
Thursday’s ruling, in a case brought by the American Civil Liberties Union, is the first time an appeals court has weighed in. The ruling did not address the A.C.L.U.’s separate argument that bulk collection of records about Americans – regardless of the claimed legal basis – is unconstitutional.
It is not clear what other bulk data collection programs the government may have, although there have been some glimpses of others.
For example, it is known that the government also had a program between 2004 and 2011 that collected Americans’ email records in bulk – another component of the Stellarwind program. The government also recently acknowledged that the Drug Enforcement Administration collected bulk calling records between the United States and countries involved in drug trafficking from the early 1990s until 2013, using a similar legal theory.
In addition, the C.I.A. has used Section 215 to collect bulk records of international and foreign money transfers from companies like Western Union, although the government has not officially acknowledged that program.
HOW THE NSA CONVERTS SPOKEN WORDS INTO SEARCHABLE TEXT
Most people realize that emails and other digital communications they once considered private can now become part of their permanent record.
But even as they increasingly use apps that understand what they say, most people don’t realize that the words they speak are not so private anymore, either.
Top-secret documents from the archive of former NSA contractor Edward Snowden show the National Security Agency can now automatically recognize the content within phone calls by creating rough transcripts and phonetic representations that can be easily searched and stored.
The documents show NSA analysts celebrating the development of what they called “Google for Voice” nearly a decade ago.
Though perfect transcription of natural conversation apparently remains the Intelligence Community’s “holy grail,” the Snowden documentsdescribe extensive use of keyword searching as well as computer programs designed to analyze and “extract” the content of voice conversations, and even use sophisticated algorithms to flag conversations of interest.
The documents include vivid examples of the use of speech recognition in war zones like Iraq and Afghanistan, as well as in Latin America. But they leave unclear exactly how widely the spy agency uses this ability, particularly in programs that pick up considerable amounts of conversations that include people who live in or are citizens of the United States.
Spying on international telephone calls has always been a staple of NSA surveillance, but the requirement that an actual person do the listening meant it was effectively limited to a tiny percentage of the total traffic. By leveraging advances in automated speech recognition, the NSA has entered the era of bulk listening.
And this has happened with no apparent public oversight, hearings or legislative action. Congress hasn’t shown signs of even knowing that it’s going on.
The USA Freedom Act — the surveillance reform bill that Congress is currently debating — doesn’t address the topic at all. The bill would end an NSA program that does not collect voice content: the government’s bulk collection of domestic calling data, showing who called who and for how long.
Even if becomes law, the bill would leave in place a multitude of mechanisms exposed by Snowden that scoop up vast amounts of innocent people’s text and voice communications in the U.S. and across the globe.
Civil liberty experts contacted by The Intercept said the NSA’s speech-to-text capabilities are a disturbing example of the privacy invasions that are becoming possible as our analog world transitions to a digital one.
“I think people don’t understand that the economics of surveillance have totally changed,” Jennifer Granick, civil liberties director at the Stanford Center for Internet and Society, told The Intercept.
“Once you have this capability, then the question is: How will it be deployed? Can you temporarily cache all American phone calls, transcribe all the phone calls, and do text searching of the content of the calls?” she said. “It may not be what they are doing right now, but they’ll be able to do it.”
And, she asked: “How would we ever know if they change the policy?”
Indeed, NSA officials have been secretive about their ability to convert speech to text, and how widely they use it, leaving open any number of possibilities.
That secrecy is the key, Granick said. “We don’t have any idea how many innocent people are being affected, or how many of those innocent people are also Americans.”
I Can Search Against It
NSA whistleblower Thomas Drake, who was trained as a voice processing crypto-linguist and worked at the agency until 2008, told The Intercept that he saw a huge push after the September 11, 2001 terror attacks to turn the massive amounts of voice communications being collected into something more useful.
Human listening was clearly not going to be the solution. “There weren’t enough ears,” he said.
The transcripts that emerged from the new systems weren’t perfect, he said. “But even if it’s not 100 percent, I can still get a lot more information. It’s far more accessible. I can search against it.”
Converting speech to text makes it easier for the NSA to see what it has collected and stored, according to Drake. “The breakthrough was being able to do it on a vast scale,” he said.
More Data, More Power, Better Performance
The Defense Department, through its Defense Advanced Research Projects Agency (DARPA), started funding academic and commercial research into speech recognition in the early 1970s.
What emerged were several systems to turn speech into text, all of which slowly but gradually improved as they were able to work with more data and at faster speeds.
In a brief interview, Dan Kaufman, director of DARPA’s Information Innovation Office, indicated that the government’s ability to automate transcription is still limited.
Kaufman says that automated transcription of phone conversation is “super hard,” because “there’s a lot of noise on the signal” and “it’s informal as hell.”
“I would tell you we are not very good at that,” he said.
In an ideal environment like a news broadcast, he said, “we’re getting pretty good at being able to do these types of translations.”
A 2008 document from the Snowden archive shows that transcribing news broadcasts was already working well seven years ago, using a program called Enhanced Video Text and Audio Processing:
(U//FOUO) EViTAP is a fully-automated news monitoring tool. The key feature of this Intelink-SBU-hosted tool is that it analyzes news in six languages, including Arabic, Mandarin Chinese, Russian, Spanish, English, and Farsi/Persian. “How does it work?” you may ask. It integrates Automatic Speech Recognition (ASR) which provides transcripts of the spoken audio. Next, machine translation of the ASR transcript translates the native language transcript to English. Voila! Technology is amazing.
Experts in speech recognition say that in the last decade or so, the pace of technological improvement has been explosive. As information storage became cheaper and more efficient, technology companies were able to store massive amounts of voice data on their servers, allowing them to continually update and improve the models. Enormous processors, tuned as “deep neural networks” that detect patterns like human brains do, produce much cleaner transcripts.
And the Snowden documents show that the same kinds of leaps forward seen in commercial speech-to-text products have also been happening in secret at the NSA, fueled by the agency’s singular access to astronomical processing power and its own vast data archives.
In fact, the NSA has been repeatedly releasing new and improved speech recognition systems for more than a decade.
The first-generation tool, which made keyword-searching of vast amounts of voice content possible, was rolled out in 2004 and code-named RHINEHART.
“Voice word search technology allows analysts to find and prioritize intercept based on its intelligence content,” says an internal 2006 NSA memo entitled “For Media Mining, the Future Is Now!”
The memo says that intelligence analysts involved in counterterrorism were able to identify terms related to bomb-making materials, like “detonator” and “hydrogen peroxide,” as well as place names like “Baghdad” or people like “Musharaf.”
RHINEHART was “designed to support both real-time searches, in which incoming data is automatically searched by a designated set of dictionaries, and retrospective searches, in which analysts can repeatedly search over months of past traffic,” the memo explains (emphasis in original).
As of 2006, RHINEHART was operating “across a wide variety of missions and languages” and was “used throughout the NSA/CSS [Central Security Service] Enterprise.”
But even then, a newer, more sophisticated product was already being rolled out by the NSA’s Human Language Technology (HLT) program office. The new system, called VoiceRT, was first introduced in Baghdad, and “designed to index and tag 1 million cuts per day.”
The goal, according to another 2006 memo, was to use voice processing technology to be able “index, tag and graph,” all intercepted communications. “Using HLT services, a single analyst will be able to sort through millions of cuts per day and focus on only the small percentage that is relevant,” the memo states.
A 2009 memo from the NSA’s British partner, GCHQ, describes how “NSA have had the BBN speech-to-text system Byblos running at Fort Meade for at least 10 years. (Initially they also had Dragon.) During this period they have invested heavily in producing their own corpora of transcribed Sigint in both American English and an increasing range of other languages.” (GCHQ also noted that it had its own small corpora of transcribed voice communications, most of which happened to be “Northern Irish accented speech.”)
VoiceRT, in turn, was surpassed a few years after its launch. According to the intelligence community’s “Black Budget” for fiscal year 2013, VoiceRT was decommissioned and replaced in 2011 and 2012, so that by 2013, NSA could operationalize a new system. This system, apparently called SPIRITFIRE, could handle more data, faster. SPIRITFIRE would be “a more robust voice processing capability based on speech-to-text keyword search and paired dialogue transcription.”
Extensive Use Abroad
Voice communications can be collected by the NSA whether they are being sent by regular phone lines, over cellular networks, or through voice-over-internet services. Previously released documents from the Snowden archive describe enormous efforts by the NSA during the last decade to get access to voice-over-internet content like Skype calls, for instance. And other documents in the archive chronicle the agency’s adjustment to the fact that an increasingly large percentage of conversations, even those that start as landline or mobile calls, end up as digitized packets flying through the same fiber-optic cables that the NSA taps so effectively for other data and voice communications.
The Snowden archive, as searched and analyzed by The Intercept, documents extensive use of speech-to-text by the NSA to search through international voice intercepts — particularly in Iraq and Afghanistan, as well as Mexico and Latin America.
For example, speech-to-text was a key but previously unheralded element of the sophisticated analytical program known as the Real Time Regional Gateway (RTRG), which started in 2005 when newly appointed NSA chief Keith B. Alexander, according to the Washington Post, “wanted everything: Every Iraqi text message, phone call and e-mail that could be vacuumed up by the agency’s powerful computers.”
The Real Time Regional Gateway was credited with playing a role in “breaking up Iraqi insurgent networks and significantly reducing the monthly death toll from improvised explosive devices.” The indexing and searching of “voice cuts” was deployed to Iraq in 2006. By 2008, RTRG was operational in Afghanistan as well.
Keyword spotting extended to Iranian intercepts as well. A 2006 memoreported that RHINEHART had been used successfully by Persian-speaking analysts who “searched for the words ‘negotiations’ or ‘America’ in their traffic, and RHINEHART located a very important call that was transcribed verbatim providing information on an important Iranian target’s discussion of the formation of a the new Iraqi government.”
“Spanish is the most mature of our speech-to-text analytics,” the memo says, noting that the NSA and its Special Collections Service sites in Latin America, have had “great success searching for Spanish keywords.”
The memo offers an example from NSA Texas, where an analyst newly trained on the system used a keyword search to find previously unreported information on a target involved in drug-trafficking. In another case, an official at a Special Collection Service site in Latin America “was able to find foreign intelligence regarding a Cuban official in a fraction of the usual time.”
Analysts in Texas found the new technology a boon for spying. “From finding tunnels in Tijuana, identifying bomb threats in the streets of Mexico City, or shedding light on the shooting of US Customs officials in Potosi, Mexico, the technology did what it advertised: It accelerated the process of finding relevant intelligence when time was of the essence,” he wrote. (Emphasis in original.)
The author of the memo was also part of a team that introduced the technology to military leaders in Afghanistan. “From Kandahar to Kabul, we have traveled the country explaining NSA leaders’ vision and introducing SIGINT teams to what HLT analytics can do today and to what is still needed to make this technology a game-changing success,” the memo reads.
Extent of Domestic Use Remains Unknown
What’s less clear from the archive is how extensively this capability is used to transcribe or otherwise index and search voice conversations that primarily involve what the NSA terms “U.S. persons.”
The NSA did not answer a series of detailed questions about automated speech recognition, even though an NSA “classification guide” that is part of the Snowden archive explicitly states that “The fact that NSA/CSS has created HLT models” for speech-to-text processing as well as gender, language and voice recognition, is “UNCLASSIFIED.”
Also unclassified: The fact that the processing can sort and prioritize audio files for human linguists, and that the statistical models are regularly being improved and updated based on actual intercepts. By contrast, because they’ve been tuned using actual intercepts, the specific parameters of the systems are highly classified.
“The National Security Agency employs a variety of technologies in the course of its authorized foreign-intelligence mission,” spokesperson Vanee’ Vines wrote in an email to The Intercept. “These capabilities, operated by NSA’s dedicated professionals and overseen by multiple internal and external authorities, help to deter threats from international terrorists, human traffickers, cyber criminals, and others who seek to harm our citizens and allies.”
Vines did not respond to the specific questions about privacy protections in place related to the processing of domestic or domestic-to-international voice communications. But she wrote that “NSA always applies rigorous protections designed to safeguard the privacy not only of U.S. persons, but also of foreigners abroad, as directed by the President in January 2014.”
“I’m not going to get into whether any program does or does not have that capability,” PCLOB chairman David Medine told The Intercept.
His board’s reports, he said, contained only information that the intelligence community agreed could be declassified.
“We went to the intelligence community and asked them to declassify a significant amount of material,” he said. The “vast majority” of that material was declassified, he said. But not all — including “facts that we thought could be declassified without compromising national security.”
Hypothetically, Medine said, the ability to turn voice into text would raise significant privacy concerns. And it would also raise questions about how the intelligence agencies “minimize” the retention and dissemination of material— particularly involving U.S. persons — that doesn’t include information they’re explicitly allowed to keep.
“Obviously it increases the ability of the government to process information from more calls,” Medine said. “It would also allow the government to listen in on more calls, which would raise more of the kind of privacy issues that the board has raised in the past.”
“I’m not saying the government does or doesn’t do it,” he said, “just that these would be the consequences.”
A New Learning Curve
Speech recognition expert Bhiksha Raj likens the current era to the early days of the Internet, when people didn’t fully realize how the things they typed would last forever.
“When I started using the Internet in the 90s, I was just posting stuff,” said Raj, an associate professor at Carnegie Mellon University’s Language Technologies Institute. “It never struck me that 20 years later I could go Google myself and pull all this up. Imagine if I posted something on alt.binaries.pictures.erotica or something like that, and now that post is going to embarrass me forever.”
The same is increasingly becoming the case with voice communication, he said. And the stakes are even higher, given that the majority of the world’s communication has historically been conducted by voice, and it has traditionally been considered a private mode of communication.
“People still aren’t realizing quite the magnitude that the problem could get to,” Raj said. “And it’s not just surveillance,” he said. “People are using voice services all the time. And where does the voice go? It’s sitting somewhere. It’s going somewhere. You’re living on trust.” He added: “Right now I don’t think you can trust anybody.”
“Things aren’t ephemeral anymore,” Taipale told The Intercept. “We’re living in a world where many things that were fleeting in the analog world are now on the permanent record. The question then becomes: what are the consequences of that and what are the rules going to be to deal with those consequences?”
Realistically, Taipale said, “the ability of the government to search voice communication in bulk is one of the things we may have to live with under some circumstances going forward.” But there at least need to be “clear public rules and effective oversight to make sure that the information is only used for appropriate law-enforcement or national security purposes consistent with Constitutional principles.”
Ultimately, Taipale said, a system where computers flag suspicious voice communications could be less invasive than one where people do the listening, given the potential for human abuse and misuse to lead to privacy violations. “Automated analysis has different privacy implications,” he said.
But to Jay Stanley, a senior policy analyst with the ACLU’s Speech, Privacy and Technology Project, the distinction between a human listening and a computer listening is irrelevant in terms of privacy, possible consequences, and a chilling effect on speech.
“What people care about in the end, and what creates chilling effects in the end, are consequences,” he said. “I think that over time, people would learn to fear computerized eavesdropping just as much as they fear eavesdropping by humans, because of the consequences that it could bring.”
Indeed, computer listening could raise new concerns. One of the internal NSA memos from 2006 says an “important enhancement under development is the ability for this HLT capability to predict what intercepted data might be of interest to analysts based on the analysts’ past behavior.”
Citing Amazon’s ability to not just track but predict buyer preferences, the memo says that an NSA system designed to flag interesting intercepts “offers the promise of presenting analysts with highly enriched sorting of their traffic.”
To Phillip Rogaway, a professor of computer science at the University of California, Davis, keyword-search is probably the “least of our problems.” In an email to The Intercept, Rogaway warned that “When the NSA identifies someone as ‘interesting’ based on contemporary NLP [Natural Language Processing] methods, it might be that there is no human-understandable explanation as to why beyond: ‘his corpus of discourse resembles those of others whom we thought interesting’; or the conceptual opposite: ‘his discourse looks or sounds different from most people’s.’”
If the algorithms NSA computers use to identify threats are too complex for humans to understand, Rogaway wrote, “it will be impossible to understand the contours of the surveillance apparatus by which one is judged. All that people will be able to do is to try your best to behave just like everyone else.”
EFF sued the Department of Justice (DOJ) on the 10th anniversary of the signing of the USA PATRIOT Act in October 2011 for answers about “secret interpretations” of a controversial section of the law. In June 2013, a leaked FISA court order publicly revealed that “secret interpretation”: the government was using Section 215 of the Patriot Act to collect the phone records of virtually every person in the United States.
Prior to the revelations, several senators warned that the DOJ was using Section 215 of the PATRIOT Act to support what government attorneys called a “sensitive collection program,” targeting large numbers of Americans. The language of Section 215 allows for secret court orders to collect “tangible things” that could be relevant to a government investigation – a far lower threshold and more expansive reach than a warrant based on probable cause. The list of possible “tangible things” the government can obtain is seemingly limitless, and could include everything from driver’s license records to Internet browsing patterns.
In response to a court order in our lawsuit, in September 2013, the government released hundreds of pages of previously secret FISA documents detailing the court’s interpretation of Section 215, including an opinion excoriating the NSA for misusing its mass surveillance database for years. In October 2013, the government released a second batch of documents related to Section 215, which showed, among other things, that the NSA had collected cell site location without notifying its oversight committees in Congress or the FISA court.
EFF’s lawsuit came after the DOJ failed to respond to a Freedom of Information Act (FOIA) request on the interpretation and use of Section 215. The suit demanded records describing the types of “tangible things” that have been collected so far, the legal basis for the “sensitive collection program,” and information on the how many people have been affected by Section 215 orders.
Through a PRISM, Darkly – Everything we know about NSA spying [30c3]
Published on Dec 30, 2013
Through a PRISM, Darkly
Everything we know about NSA spying
From Stellar Wind to PRISM, Boundless Informant to EvilOlive, the NSA spying programs are shrouded in secrecy and rubber-stamped by secret opinions from a court that meets in a faraday cage. The Electronic Frontier Foundation’s Kurt Opsahl explains the known facts about how the programs operate and the laws and regulations the U.S. government asserts allows the NSA to spy on you.
The Electronic Frontier Foundation, a non-profit civil society organization, has been litigating against the NSA spying program for the better part of a decade. EFF has collected and reviewed dozens of documents, from the original NY Times stories in 2005 and the first AT&T whistleblower in 2006, through the latest documents released in the Guardian or obtained through EFF’s Freedom of Information (government transparency) litigation. EFF attorney Kurt Opsahl’s lecture will describe how the NSA spying program works, the underlying technologies, the targeting procedures (how they decide who to focus on), the minimization procedures (how they decide which information to discard), and help you makes sense of the many code names and acronyms in the news. He will also discuss the legal and policy ramifications that have become part of the public debate following the recent disclosures, and what you can do about it. After summarizing the programs, technologies, and legal/policy framework in the lecture, the audience can ask questions.
Speaker: Kurt Opsahl
Event: 30th Chaos Communication Congress [30c3] by the Chaos Computer Club [CCC]
Location: Congress Centrum Hamburg (CCH); Am Dammtor; Marseiller Straße; 20355 Hamburg; Germany
Glenn Becks “SURVEILLANCE STATE”
Inside the NSA
Ed Snowden, NSA, and Fairy Tales
AT&T Spying On Internet Traffic
For years the National Securities Agency, has been spying on each & every keystroke. The national headquarters of AT&T is in Missouri, where ex-employees describe a secret room. The program is called “Splitter Cut-In & Test Procedure.”
NSA Whistle-Blower Tells All – Op-Docs: The Program
The filmmaker Laura Poitras profiles William Binney, a 32-year veteran of the National Security Agency who helped design a top-secret program he says is broadly collecting Americans’ personal data.
NSA Whistleblower: Everyone in US under virtual surveillance, all info stored, no matter the post
He told you so: Bill Binney talks NSA leaks
William Benny – The Government is Profiling You (The NSA is Spying on You)
‘After 9/11 NSA had secret deal with White House’
The story of Whistleblower Thomas Drake
Whistleblowers, Part Two: Thomas Drake
NSA Whistleblower Thomas Drake speaks at National Press Club – March 15, 2013
Meet Edward Snowden: NSA PRISM Whistleblower
The Truth About Edward Snowden
N.S.A. Spying: Why Does It Matter?
Inside The NSA~Americas Cyber Secrets
NSA Whistleblower Exposes Obama’s Dragnet
AT&T whistleblower against immunity for Bush spy program-1/2
AT&T Whistleblower Urges Against Immunity for Telecoms in Bush Spy Program
The Senate is expected to vote on a controversial measure to amend the Foreign Intelligence Surveillance Act tomorrow. The legislation would rewrite the nation’s surveillance laws and authorize the National Security Agency’s secret program of warrantless wiretapping. We speak with Mark Klein, a technician with AT&T for over twenty-two years. In 2006 Klein leaked internal AT&T documents that revealed the company had set up a secret room in its San Francisco office to give the National Security Agency access to its fiber optic internet cables.
AT&T whistleblower against immunity for Bush spy program-2/2
Enemy Of The State 1998 (1080p) (Full movie)
Background Articles and Videos
Stellar Wind was the open secret code name for four surveillance programs by the United States National Security Agency (NSA) during the presidency of George W. Bush and revealed by Thomas Tamm to The New York Times reporters James Risen and Eric Lichtblau. The operation was approved by President George W. Bush shortly after the September 11 attacks in 2001. Stellar Wind was succeeded during the presidency of Barack Obama by four major lines of intelligence collection in the territorial United States, together capable of spanning the full range of modern telecommunications.
The program’s activities involved data mining of a large database of the communications of American citizens, including e-mail communications, phone conversations, financial transactions, and Internet activity. William Binney, a retired Technical Leader with the NSA, discussed some of the architectural and operational elements of the program at the 2012 Chaos Communication Congress.
There were internal disputes within the Justice Department about the legality of the program, because data are collected for large numbers of people, not just the subjects of Foreign Intelligence Surveillance Act (FISA) warrants.
During the Bush Administration, the Stellar Wind cases were referred to by FBI agents as “pizza cases” because many seemingly suspicious cases turned out to be food takeout orders. According to Mueller, approximately 99 percent of the cases led nowhere, but “it’s that other 1% that we’ve got to be concerned about”. One of the known uses of these data were the creation of suspicious activity reports, or “SARS”, about people suspected of terrorist activities. It was one of these reports that revealed former New York governor Eliot Spitzer’s use of prostitutes, even though he was not suspected of terrorist activities.
In March 2012 Wired magazine published “The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)” talking about a vast new NSA facility in Utah and says “For the first time, a former NSA official has gone on the record to describe the program, codenamed Stellar Wind, in detail,” naming the official William Binney, a former NSA code breaker. Binney went on to say that the NSA had highly secured rooms that tap into major switches, and satellite communications at both AT&T and Verizon. The article suggested that the otherwise dispatched Stellar Wind is actually an active program.
PRISM is a clandestine national security electronic surveillance program operated by the United States National Security Agency (NSA) since 2007.[Notes 1]PRISM is a government codename for a data collection effort known officially as US-984XN. It is operated under the supervision of the United States Foreign Intelligence Surveillance Court pursuant to the Foreign Intelligence Surveillance Act (FISA). The existence of the program was leaked by NSA contractor Edward Snowden and published by The Guardian and The Washington Post on June 6, 2013.
A document included in the leak indicated that the PRISM SIGAD was “the number one source of raw intelligence used for NSA analytic reports.” The President’s Daily Brief, an all-source intelligence product, cited PRISM data as a source in 1,477 items in 2012. The leaked information came to light one day after the revelation that the United States Foreign Intelligence Surveillance Court had been requiring the telecommunications company Verizon to turn over to the NSA logs tracking all of its customers’ telephone calls on an ongoing daily basis.
According to the Director of National Intelligence James Clapper, PRISM cannot be used to intentionally target any Americans or anyone in the United States. Clapper said a special court, Congress, and the executive branch oversee the program and extensive procedures ensure the acquisition, retention, and dissemination of data accidentally collected about Americans is kept to a minimum. Clapper issued a statement and “fact sheet” to correct what he characterized as “significant misimpressions” in articles by The Washington Post and The Guardian newspapers.
Slide showing that much of the world’s communications flow through the US
Details of information collected via PRISM
PRISM is a “Special Source Operation” in the tradition of NSA’s intelligence alliances with as many as 100 trusted U.S. companies since the 1970s. A prior program, the Terrorist Surveillance Program, was implemented in the wake of the September 11 attacks under the George W. Bush Administration but was widely criticized and had its legality questioned, because it was conducted without approval of the Foreign Intelligence Surveillance Court (FISC). PRISM was authorized by an order of the FISC. Its creation was enabled by the Protect America Act of 2007 under President Bush and the FISA Amendments Act of 2008, which legally immunized private companies that cooperated voluntarily with US intelligence collection and was renewed by Congress under President Obama in 2012 for five years until December 2017. According to The Register, the FISA Amendments Act of 2008 “specifically authorizes intelligence agencies to monitor the phone, email, and other communications of U.S. citizens for up to a week without obtaining a warrant” when one of the parties is outside the U.S.
PRISM was first publicly revealed on June 6, 2013, after classified documents about the program were leaked to The Washington Post and The Guardian by American Edward Snowden. The leaked documents included 41 PowerPoint slides, four of which were published in news articles. The documents identified several technology companies as participants in the PRISM program, including (date of joining PRISM in parentheses) Microsoft (2007), Yahoo! (2008), Google (2009), Facebook (2009), Paltalk (2009), YouTube (2010), AOL (2011), Skype (2011), and Apple (2012). The speaker’s notes in the briefing document reviewed by The Washington Post indicated that “98 percent of PRISM production is based on Yahoo, Google and Microsoft.”
The slide presentation stated that much of the world’s electronic communications pass through the United States, because electronic communications data tend to follow the least expensive route rather than the most physically direct route, and the bulk of the world’s internet infrastructure is based in the United States. The presentation noted that these facts provide United States intelligence analysts with opportunities for intercepting the communications of foreign targets as their electronic data pass into or through the United States.
According to The Washington Post, the intelligence analysts search PRISM data using terms intended to identify suspicious communications of targets whom the analysts suspect with at least 51 percent confidence to not be United States citizens, but in the process, communication data of some United States citizens are also collected unintentionally. Training materials for analysts tell them that while they should periodically report such accidental collection of non-foreign United States data, “it’s nothing to worry about.”
Response from companies
The original Washington Post and Guardian articles reporting on PRISM noted that one of the leaked briefing documents said PRISM involves collection of data “directly from the servers” of several major internet services providers.
Initial Public Statements
Corporate executives of several companies identified in the leaked documents told The Guardian that they had no knowledge of the PRISM program in particular and also denied making information available to the government on the scale alleged by news reports. Statements of several of the companies named in the leaked documents were reported by TechCrunch and The Washington Post as follows:
Slide listing companies and the date that PRISM collection began
Microsoft: “We provide customer data only when we receive a legally binding order or subpoena to do so, and never on a voluntary basis. In addition we only ever comply with orders for requests about specific accounts or identifiers. If the government has a broader voluntary national security program to gather customer data we don’t participate in it.”
Yahoo!: “Yahoo! takes users’ privacy very seriously. We do not provide the government with direct access to our servers, systems, or network.” “Of the hundreds of millions of users we serve, an infinitesimal percentage will ever be the subject of a government data collection directive.”
Facebook: “We do not provide any government organization with direct access to Facebook servers. When Facebook is asked for data or information about specific individuals, we carefully scrutinize any such request for compliance with all applicable laws, and provide information only to the extent required by law.”
Google: “Google cares deeply about the security of our users’ data. We disclose user data to government in accordance with the law, and we review all such requests carefully. From time to time, people allege that we have created a government ‘back door’ into our systems, but Google does not have a backdoor for the government to access private user data.” “[A]ny suggestion that Google is disclosing information about our users’ Internet activity on such a scale is completely false.”
Apple: “We have never heard of PRISM. We do not provide any government agency with direct access to our servers, and any government agency requesting customer data must get a court order.”
Dropbox: “We’ve seen reports that Dropbox might be asked to participate in a government program called PRISM. We are not part of any such program and remain committed to protecting our users’ privacy.”
In response to the technology companies’ denials of the NSA being able to directly access the companies’ servers, The New York Times reported that sources had stated the NSA was gathering the surveillance data from the companies using other technical means in response to court orders for specific sets of data.The Washington Post suggested, “It is possible that the conflict between the PRISM slides and the company spokesmen is the result of imprecision on the part of the NSA author. In another classified report obtained by The Post, the arrangement is described as allowing ‘collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,’ rather than directly to company servers.” “[I]n context, ‘direct’ is more likely to mean that the NSA is receiving data sent to them deliberately by the tech companies, as opposed to intercepting communications as they’re transmitted to some other destination.
“If these companies received an order under the FISA amendments act, they are forbidden by law from disclosing having received the order and disclosing any information about the order at all,” Mark Rumold, staff attorney at the Electronic Frontier Foundation, told ABC News.
Slide showing two different sources of NSA data collection. The first source the fiber optic cables of the internet handled by the Upstream program and the second source the servers of major internet companies handled by PRISM.
On May 28, 2013, Google was ordered by United States District Court Judge Susan Illston to comply with a National Security Letter issued by the FBI to provide user data without a warrant. Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation, in an interview with VentureBeat said, “I certainly appreciate that Google put out a transparency report, but it appears that the transparency didn’t include this. I wouldn’t be surprised if they were subject to a gag order.”
The New York Times reported on June 7, 2013, that “Twitter declined to make it easier for the government. But other companies were more compliant, according to people briefed on the negotiations.” The other companies held discussions with national security personnel on how to make data available more efficiently and securely. In some cases, these companies made modifications to their systems in support of the intelligence collection effort. The dialogues have continued in recent months, as General Martin Dempsey, the chairman of the Joint Chiefs of Staff, has met with executives including those at Facebook, Microsoft, Google and Intel. These details on the discussions provide insight into the disparity between initial descriptions of the government program including a training slide which states “Collection directly from the servers” and the companies’ denials.
While providing data in response to a legitimate FISA request approved by FISC is a legal requirement, modifying systems to make it easier for the government to collect the data is not. This is why Twitter could legally decline to provide an enhanced mechanism for data transmission. Other than Twitter, the companies were effectively asked to construct a locked mailbox and provide the key to the government, people briefed on the negotiations said. Facebook, for instance, built such a system for requesting and sharing the information. Google does not provide a lockbox system, but instead transmits required data by hand delivery or secure FTP.
Post-PRISM Transparency Reports
In response to the publicity surrounding media reports of data-sharing, several companies requested permission to reveal more public information about the nature and scope of information provided in response to National Security requests.
On June 14, 2013, Facebook reported that the U.S. Government had authorized the communication of “about these numbers in aggregate, and as a range.” In a press release posted to their web site, Facebook reported, “For the six months ending December 31, 2012, the total number of user-data requests Facebook received from any and all government entities in the U.S. (including local, state, and federal, and including criminal and national security-related requests) – was between 9,000 and 10,000.” Facebook further reported that the requests impacted “between 18,000 and 19,000” user accounts, a “tiny fraction of one percent” of more than 1.1 billion active user accounts.
Microsoft reported that for the same period, it received “between 6,000 and 7,000 criminal and national security warrants, subpoenas and orders affecting between 31,000 and 32,000 consumer accounts from U.S. governmental entities (including local, state and federal)” which impacted “a tiny fraction of Microsoft’s global customer base”.
Google issued a statement criticizing the requirement that data be reported in aggregated form, stating that lumping national security requests with criminal request data would be “a step backwards” from its previous, more detailed practices on its site transparency report. The company said that it would continue to seek government permission to publish the number and extent of FISA requests.
Response from United States government
Shortly after publication of the reports by The Guardian and The Washington Post, the United States Director of National Intelligence, James Clapper, on June 7 released a statement confirming that for nearly six years the government of the United States had been using large internet services companies such as Google and Facebook to collect information on foreigners outside the United States as a defense against national security threats. The statement read in part, “The Guardian and The Washington Post articles refer to collection of communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act. They contain numerous inaccuracies.” He went on to say, “Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.” Clapper concluded his statement by stating “The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.” On March 12, 2013, Clapper had told the United States Senate Select Committee on Intelligence that the NSA does “not wittingly” collect any type of data on millions or hundreds of millions of Americans. In an NBC News interview, Clapper said he answered Senator Wyden’s question in the “least untruthful manner by saying no”.
Clapper also stated that “the NSA collects the phone data in broad swaths, because collecting it (in) a narrow fashion would make it harder to identify terrorism-related communications. The information collected lets the government, over time, make connections about terrorist activities. The program doesn’t let the U.S. listen to people’s calls, but only includes information like call length and telephone numbers dialed.”
On June 8, 2013, Clapper said “the surveillance activities published in The Guardian and The Washington Post are lawful and conducted under authorities widely known and discussed, and fully debated and authorized by Congress.” The fact sheet described PRISM as “an internal government computer system used to facilitate the government’s statutorily authorized collection of foreign intelligence information from electronic communication service providers under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. § 1881a).”
The National Intelligence fact sheet further stated that “the United States Government does not unilaterally obtain information from the servers of U.S. electronic communication service providers. All such information is obtained with FISA Court approval and with the knowledge of the provider based upon a written directive from the Attorney General and the Director of National Intelligence.” It said that the Attorney General provides FISA Court rulings and semi-annual reports about PRISM activities to Congress, “provid[ing] an unprecedented degree of accountability and transparency.”
The President of the United States, Barack Obama, said on June 7 “What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress. Bipartisan majorities have approved them. Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout.” He also said, “You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.”
In separate statements, senior (not mentioned by name in source) Obama administration officials said that Congress had been briefed 13 times on the programs since 2009.
In contrast to their swift and forceful reactions the previous day to allegations that the government had been conducting surveillance of United States citizens’ telephone records, Congressional leaders initially had little to say about the PRISM program the day after leaked information about the program was published. Several lawmakers declined to discuss PRISM, citing its top-secret classification, and others said that they had not been aware of the program. After statements had been released by the President and the Director of National Intelligence, some lawmakers began to comment:
Senator John McCain (R-AZ)
June 9 “We passed the Patriot Act. We passed specific provisions of the act that allowed for this program to take place, to be enacted in operation,”
Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee
June 9 “These programs are within the law”, “part of our obligation is keeping Americans safe”, “Human intelligence isn’t going to do it”.
June 9 “Here’s the rub: the instances where this has produced good — has disrupted plots, prevented terrorist attacks, is all classified, that’s what’s so hard about this.”
June 11 “It went fine…we asked him[ Keith Alexander ] to declassify things because it would be helpful (for people and lawmakers to better understand the intelligence programs).” “I’ve just got to see if the information gets declassified. I’m sure people will find it very interesting.”
Senator Susan Collins (R-ME), member of Senate Intelligence Committee and past member of Homeland Security Committee
June 11 “I had, along with Joe Lieberman, a monthly threat briefing, but I did not have access to this highly compartmentalized information” and “How can you ask when you don’t know the program exists?”
Representative John Boehner (R-OH), Speaker of the House of Representatives
June 11 “He’s a traitor” (referring to Edward Snowden)
Representative Jim Sensenbrenner (R-WI), principal sponsor of the Patriot Act
June 9, “This is well beyond what the Patriot Act allows.” “President Obama’s claim that ‘this is the most transparent administration in history’ has once again proven false. In fact, it appears that no administration has ever peered more closely or intimately into the lives of innocent Americans.”
Representative Mike Rogers (R-MI), a Chairman of the Permanent Select Committee on Intelligence.
June 9 “One of the things that we’re charged with is keeping America safe and keeping our civil liberties and privacy intact. I think we have done both in this particular case,”
June 9 “Within the last few years this program was used to stop a program, excuse me, to stop a terrorist attack in the United States we know that. It’s, it’s, it’s important, it fills in a little seam that we have and it’s used to make sure that there is not an international nexus to any terrorism event that they may believe is ongoing in the United States. So in that regard it is a very valuable thing,”
Senator Mark Udall (D-CO)
June 9 “I don’t think the American public knows the extent or knew the extent to which they were being surveilled and their data was being collected.” “I think we ought to reopen the Patriot Act and put some limits on the amount of data that the National Security (Agency) is collecting,” “It ought to remain sacred, and there’s got to be a balance here. That is what I’m aiming for. Let’s have the debate, let’s be transparent, let’s open this up”.
Representative Todd Rokita (R-IN)
June 10 “We have no idea when they [ FISA ] meet, we have no idea what their judgments are”,
Senator Rand Paul (R-KY)
June 6 “When the Senate rushed through a last-minute extension of the FISA Amendments Act late last year, I insisted on a vote on my amendment (SA 3436) to require stronger protections on business records and prohibiting the kind of data-mining this case has revealed. Just last month, I introduced S.1037, the Fourth Amendment Preservation and Protection Act,”
June 9 “I’m going to be seeing if I can challenge this at the Supreme Court level. I’m going to be asking the Internet providers and all of the phone companies: ask your customers to join me in a class-action lawsuit.”
Representative Luis Gutierrez (D-IL)
June 9 “We will be receiving secret briefings and we will be asking, I know I’m going to be asking to get more information. I want to make sure that what they’re doing is harvesting information that is necessary to keep us safe and not simply going into everybody’s private telephone conversations and Facebook and communications. I mean one of the, you know the terrorists win when you debilitate freedom of expression and privacy.”
The Foreign Intelligence Surveillance Court (FISC) has not acknowledged, denied or confirmed any involvement in the PRISM program at this time. It has not issued any press statement or release relating to the current situation and uncertainty.
Applicable law and practice
On June 8, 2013, the Director of National Intelligence issued a fact sheet stating that PRISM “is not an undisclosed collection or data mining program”, but rather computer software used to facilitate the collection of foreign intelligence information “under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. § 1881a).” Section 702 provides that “the Attorney General [A.G.] and the Director of National Intelligence [DNI] may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” In order to authorize the targeting, the A.G. and DNI need to get an order from the Foreign Intelligence Surveillance Court (FISC) pursuant to Section 702 or certify that “intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order.” When asking for an order, the A.G. and DNI must certify to FISC that “a significant purpose of the acquisition is to obtain foreign intelligence information.” They do not need to specify which facilities or property that the targeting will be directed at.
After getting a FISC order or determining that there are emergency circumstances, the A.G. and DNI can direct an electronic communication service provider to give them access to information or facilities to carry out the targeting and keep the targeting secret. The provider then has the option to: (1) comply with the directive; (2) reject it; or (3) challenge it to FISC.
If the provider complies with the directive, it is released from liability to its users for providing the information and reimbursed for the cost of providing it.
If the provider rejects the directive, the A.G. may request an order from FISC to enforce it. A provider that fails to comply with FISC’s order can be punished with contempt of court.
Finally, a provider can petition FISC to reject the directive. In case FISC denies the petition and orders the provider to comply with the directive, the provider risks contempt of court if it refuses to comply with FISC’s order. The provider can appeal FISC’s denial to the Foreign Intelligence Surveillance Court of Review and then appeal the Court of Review’s decision to the Supreme Court by a writ of certiorari for review under seal.
The Senate Select Committee on Intelligence and the FISA Courts had been put in place to oversee intelligence operations in the period after the death of J. Edgar Hoover. Beverly Gage of Slate said, “When they were created, these new mechanisms were supposed to stop the kinds of abuses that men like Hoover had engineered. Instead, it now looks as if they have come to function as rubber stamps for the expansive ambitions of the intelligence community. J. Edgar Hoover no longer rules Washington, but it turns out we didn’t need him anyway.”
Involvement of other countries
The Australian government has said it will investigate the impact of the PRISM program and the use of the Pine Gap surveillance facility on the privacy of Australian citizens.
Canada’s national cryptologic agency, the Communications Security Establishment, said that commenting on PRISM “would undermine CSE’s ability to carry out its mandate”. Privacy Commissioner Jennifer Stoddart lamented Canada’s standards when it comes to protecting personal online privacy stating “We have fallen too far behind,” Stoddart wrote in her report. “While other nations’ data protection authorities have the legal power to make binding orders, levy hefty fines and take meaningful action in the event of serious data breaches, we are restricted to a ‘soft’ approach: persuasion, encouragement and, at the most, the potential to publish the names of transgressors in the public interest.” And, “when push comes to shove,” Stoddart wrote, “short of a costly and time-consuming court battle, we have no power to enforce our recommendations.”
Germany did not receive any raw PRISM data, according to a Reuters report.
Israeli newspaper Calcalist discussed the Business Insider article about the possible involvement of technologies from two secretive Israeli companies in the PRISM program – Verint Systems and Narus.
In New Zealand, University of Otago information science Associate Professor Hank Wolfe said that “under what was unofficially known as the Five Eyes Alliance, New Zealand and other governments, including the United States, Australia, Canada, and Britain, dealt with internal spying by saying they didn’t do it. But they have all the partners doing it for them and then they share all the information.”
In the United Kingdom, Government Communications Headquarters (GCHQ) has had access to the PRISM program on or before June 2010 and wrote 197 reports with it in 2012 alone. PRISM may have allowed GCHQ to circumvent the formal legal process required to seek personal material.
The neutrality of this section is disputed. Please do not remove this message until the dispute is resolved. (June 2013)
The New York Times editorial board charged that the Obama administration “has now lost all credibility on this issue,” and lamented that “for years, members of Congress ignored evidence that domestic intelligence-gathering had grown beyond their control, and, even now, few seem disturbed to learn that every detail about the public’s calling and texting habits now reside in a N.S.A. database.”
Republican and former member of Congress Ron Paul said, “We should be thankful for individuals like Edward Snowden and Glenn Greenwald who see injustice being carried out by their own government and speak out, despite the risk…. They have done a great service to the American people by exposing the truth about what our government is doing in secret.” Paul denounced the government’s secret surveillance program: “The government does not need to know more about what we are doing…. We need to know more about what the government is doing.” He called Congress “derelict in giving that much power to the government,” and said that had he been elected president, he would have ordered searches only when there was probable cause of a crime having been committed, which he said was not how the PRISM program was being operated.
In response to Obama administration arguments that it could stop terrorism in the cases of Najibullah Zazi and David Headley, Ed Pilkington and Nicholas Watt of The Guardian said in regards to the role of PRISM and Boundless Informant interviews with parties involved in the Zazi scheme and court documents lodged in the United States and the United Kingdom indicated that “conventional” surveillance methods such as “old-fashioned tip-offs” of the British intelligence services initiated the investigation into the Zazi case. An anonymous former CIA agent said that in regards to the Headley case, “That’s nonsense. It played no role at all in the Headley case. That’s not the way it happened at all.” Pilkington and Watt concluded that the data-mining programs “played a relatively minor role in the interception of the two plots.” Michael Daly of The Daily Beast stated that even though Tamerlan Tsarnaev had visited Inspire and even though Russian intelligence officials alerted U.S. intelligence officials about Tsarnaev, PRISM did not prevent him from carrying out the Boston bombings, and that the initial evidence implicating him came from his brother Dzhokhar Tsarnaev and not from federal intelligence. In addition Daly pointed to the fact that Faisal Shahzad visited Inspire but that federal authorities did not stop his attempted terrorist plot. Daly concluded “The problem is not just what the National Security Agency is gathering at the risk of our privacy but what it is apparently unable to monitor at the risk of our safety.” In addition, political commentator Bill O’Reilly criticized the government, saying that PRISM did not stop the Boston bombings.
In a blog post, David Simon, the creator of The Wire, compared the NSA’s programs, including PRISM, to a 1980s effort by the City of Baltimore to add dialed number recorders to all pay phones to know which individuals were being called by the callers; the city believed that drug traffickers were using pay phones and pagers, and a municipal judge allowed the city to place the recorders. The placement of the dialers formed the basis of the show’s first season. Simon argued that the media attention regarding the NSA programs is a “faux scandal.” George Takei, an actor who had experienced Japanese American internment, said that due to his memories of the internment, he felt concern towards the NSA surveillance programs that had been revealed.
The Electronic Frontier Foundation (EFF), an international non-profit digital-rights group based in the U.S., is hosting a tool, by which an American resident can write to their government representatives regarding their opposition to mass spying.
On June 11, 2013, the American Civil Liberties Union filed a lawsuit against the NSA citing that PRISM “violates Americans’ constitutional rights of free speech, association, and privacy”.
Reactions of Internet users in China were mixed between viewing a loss of freedom worldwide and seeing state surveillance coming out of secrecy. The story broke just before US President Barack Obama and Chinese President Xi Jinping met in California. When asked about NSA hacking China, the spokeswoman of Ministry of Foreign Affairs of the People’s Republic of China said “China strongly advocates cybersecurity”. The party-owned newspaper Liberation Daily described this surveillance like Nineteen Eighty-Four-style. Hong Kong legislators Gary Fan and Claudia Mo wrote a letter to Obama, stating “the revelations of blanket surveillance of global communications by the world’s leading democracy have damaged the image of the U.S. among freedom-loving peoples around the world.”
Sophie in ‘t Veld, a Dutch Member of the European Parliament, called PRISM “a violation of EU laws”.
Protests at Checkpoint Charlie in Berlin
The German Federal Commissioner for Data Protection and Freedom of Information, Peter Schaar, condemned the program as “monstrous”. He further added that White House claims do “not reassure me at all” and that “given the large number of German users of Google, Facebook, Apple or Microsoft services, I expect the German government […] is committed to clarification and limitation of surveillance.” Steffen Seibert, press secretary of the Chancellor’s office, announced that Angela Merkel will put these issues on the agenda of the talks with Barack Obama during his pending visit in Berlin.
The Italian president of the Guarantor for the protection of personal data, Antonello Soro, said that the surveillance dragnet “would not be legal in Italy” and would be “contrary to the principles of our legislation and would represent a very serious violation”.
William Hague, the foreign secretary of the United Kingdom, dismissed accusations that British security agencies had been circumventing British law by using information gathered on British citizens by Prism saying, “Any data obtained by us from the United States involving UK nationals is subject to proper UK statutory controls and safeguards.” David Cameron said Britain’s spy agencies that received data collected from PRISM acted within the law: “I’m satisfied that we have intelligence agencies that do a fantastically important job for this country to keep us safe, and they operate within the law.” Malcolm Rifkind, the chairman of parliament’s Intelligence and Security Committee, said that if the British intelligence agencies were seeking to know the content of emails about people living in the UK, then they actually have to get lawful authority. The UK’s Information Commissioner’s Office was more cautious, saying it would investigate PRISM alongside other European data agencies: “There are real issues about the extent to which U.S. law agencies can access personal data of UK and other European citizens. Aspects of U.S. law under which companies can be compelled to provide information to U.S. agencies potentially conflict with European data protection law, including the UK’s own Data Protection Act. The ICO has raised this with its European counterparts, and the issue is being considered by the European Commission, who are in discussions with the U.S. Government.”
Ai Weiwei, a Chinese dissident, said “Even though we know governments do all kinds of things I was shocked by the information about the US surveillance operation, Prism. To me, it’s abusively using government powers to interfere in individuals’ privacy. This is an important moment for international society to reconsider and protect individual rights.”
Kim Dotcom, a German-Finnish Internet entrepreneur who owned Megaupload, which was closed by the U.S. federal government, said “We should heed warnings from Snowden because the prospect of an Orwellian society outweighs whatever security benefits we derive from Prism or Five Eyes.” The Hong Kong law firm representing Dotcom expressed a fear that the communication between Dotcom and the firm had been compromised by U.S. intelligence programs.
Russia has offered to consider an asylum request from Edward Snowden.
Taliban spokesperson Zabiullah Mujahid said “We knew about their past efforts to trace our system. We have used our technical resources to foil their efforts and have been able to stop them from succeeding so far.”
A parallel program, code-named BLARNEY, gathers up metadata as it streams past choke points along the backbone of the Internet. BLARNEY’s summary, set down in the slides alongside a cartoon insignia of a shamrock and a leprechaun hat, describes it as “an ongoing collection program that leverages IC [intelligence community] and commercial partnerships to gain access and exploit foreign intelligence obtained from global networks.”
A related program, a big data visualization system based on cloud computing and free and open-source software (FOSS) technology known as “Boundless Informant”, was disclosed in documents leaked to The Guardian and reported on June 8, 2013. A leaked, top secret map allegedly produced by Boundless Informant revealed the extent of NSA surveillance in the U.S.
ThinThread is the name of a project that the United States National Security Agency (NSA) pursued during the 1990s, according to a May 17, 2006 article in The Baltimore Sun. The program involved wiretapping and sophisticated analysis of the resulting data, but according to the article, the program was discontinued three weeks before the September 11, 2001 attacks due to the changes in priorities and the consolidation of U.S. intelligence authority. The “change in priority” consisted of the decision made by the director of NSA General Michael V. Hayden to go with a concept called Trailblazer, despite the fact that ThinThread was a working prototype that protected the privacy of U.S. citizens.
ThinThread was dismissed and replaced by the Trailblazer Project, which lacked the privacy protections. A consortium led by Science Applications International Corporation was awarded a $280 million contract to develop Trailblazer in 2002.
Trailblazer was a United States National Security Agency (NSA) program intended to develop a capability to analyze data carried on communications networks like the Internet. It was intended to track entities using communication methods such as cell phones and e-mail. It ran over budget, failed to accomplish critical goals, and was cancelled.
NSA whistleblowers J. Kirk Wiebe, William Binney, Ed Loomis, and House Permanent Select Committee on Intelligence staffer Diane Roark complained to the Department of Defense’s Inspector General (IG) about waste, fraud, and abuse in the program, and the fact that a successful operating prototype existed, but was ignored when the Trailblazer program was launched. The complaint was accepted by the IG and an investigation began that lasted until mid-2005 when the final results were issued. The results were largely hidden, as the report given to the public was heavily (90%) redacted, while the original report was heavily classified, thus restricting the ability of most people to see it.
The people who filed the IG complaint were later raided by armed Federal Bureau of Investigation (FBI) agents. While the Government threatened to prosecute all who signed the IG report, it ultimately chose to pursue an NSA Senior Executive — Thomas Andrews Drake — who helped with the report internally to NSA and who had spoken with a reporter about the project. Drake was later charged under the Espionage Act of 1917. His defenders claimed this was retaliation. The charges against him were later dropped, and he agreed to plead guilty to having committed a misdemeanor under the Computer Fraud and Abuse Act, something that Jesselyn Radack of the Government Accountability Project (which helped represent him) called an “act of civil disobedience”.
Trailblazer was chosen over a similar program named ThinThread, a less costly project which had been designed with built-in privacy protections for United States citizens. Trailblazer was later linked to the NSA electronic surveillance program and the NSA warrantless surveillance controversy.
In 2002 a consortium led by Science Applications International Corporation was chosen by the NSA to produce a technology demonstration platform in a contract worth $280 million. Project participants included Boeing, Computer Sciences Corporation, and Booz Allen Hamilton. The project was overseen by NSA Deputy Director William B. Black, Jr., an NSA worker who had gone to SAIC, and then been re-hired back to NSA by NSA director Michael Hayden in 2000. SAIC had also hired a former NSA director to its management; Bobby Inman. SAIC also participated in the concept definition phase of Trailblazer.
Redacted version of the DoD Inspector General audit, obtained through the Freedom of Information Act by the Project on Government Oversight and others. 
The NSA Inspector General issued a report on Trailblazer that “discussed improperly based contract cost increases, non-conformance in the management of the Statement of Work, and excessive labor rates for contractor personnel.” 
In 2004 the DoD IG report criticized the program (see the Whistleblowing section below). It said that the “NSA ‘disregarded solutions to urgent national security needs'” and “that TRAILBLAZER was poorly executed and overly expensive …” Several contractors for the project were worried about cooperating with DoD’s audit for fear of “management reprisal.” The Director of NSA “nonconcurred” with several statements in the IG audit, and the report contains a discussion of those disagreements.
In 2005, NSA director Michael Hayden told a Senate hearing that the Trailblazer program was several hundred million dollars over budget and years behind schedule. In 2006 the program was shut down, after having cost billions of US Dollars. Several anonymous NSA sources told Hosenball of Newsweek later on that the project was a “wasteful failure”.
The new project replacing Trailblazer is called Turbulence.
According to a 2011 New Yorker article, in the early days of the project several NSA employees met with Diane S Roark, an NSA budget expert on the House Intelligence Committee. They aired their grievances about Trailblazer. In response, NSA director Michael Hayden sent out a memo saying that “individuals, in a session with our congressional overseers, took a position in direct opposition to one that we had corporately decided to follow … Actions contrary to our decisions will have a serious adverse effect on our efforts to transform N.S.A., and I cannot tolerate them.”
In September 2002, several people filed a complaint with the Department of Defense IG’s office regarding problems with Trailblazer: they included Roark (aforementioned), ex-NSA senior analysts Bill Binney, Kirk Wiebe, and Senior Computer Systems Analyst Ed Loomis, who had quit the agency over concerns about its mismanagement of acquisition and allegedly illegal domestic spying. A major source for the report was NSA senior officer Thomas Andrews Drake. Drake had been complaining to his superiors for some time about problems at the agency, and about the superiority of ThinThread over Trailblazer, for example, at protecting privacy. Drake gave info to DoD during its investigation of the matter. Roark also went to her boss at the House committee, Porter Goss, about problems, but was rebuffed. She also attempted to contact William Renquist, the Supreme Court Chief Justice at the time.
Drake’s own boss, Maureen Baginski, the third-highest officer at NSA, quit partly over concerns about the legality of its behavior.
In 2003, the NSA IG (not the DoD IG) had declared Trailblazer an expensive failure. It had cost more than $1 billion.
In 2005, the DoD IG produced a report on the result of its investigation of the complaint of Roark and the others in 2002. This report was not released to the public, but it has been described as very negative. Mayer writes that it hastened the closure of Trailblazer, which was at the time in trouble from congress for being over budget.
In November 2005, Drake contacted Siobhan Gorman, a reporter of The Baltimore Sun. Gorman wrote several articles about problems at the NSA, including articles on Trailblazer. This series got her an award from the Society of Professional Journalists.
In 2005, President George W. Bush ordered the FBI to find whoever had disclosed information about the NSA electronic surveillance program and its disclosure in the New York Times. Eventually, this investigation led to the people who had filed the 2002 DoD IG request, even though they had nothing to do with the New York Times disclosure. In 2007, the houses of Roark, Binney, and Wiebe were raided by armed FBI agents. According to Mayer, Binney claims the FBI pointed guns at his head and that of his wife. Wiebe said it reminded him of the Soviet Union. None of these people were ever charged with any crime. Four months later, Drake was raided in November 2007 and his computers and documents were confiscated.
In 2010 Drake was indicted by the U.S. Department of Justice on charges of obstructing justice, providing false information, and violating the Espionage Act of 1917, part of President Barack Obama’s crackdown on whistleblowers and “leakers”. The government tried to get Roark to testify to a conspiracy, and made similar requests to Drake, offering him a plea bargain. They both refused.
In June 2011, the ten original charges against Drake were dropped, instead he pleaded guilty to a misdemeanor.
Boundless Informant is a big data analysis and data visualization system used by the United States National Security Agency (NSA) to give NSA managers summaries of NSA’s world wide data collection activities. It is described in an unclassified, For Official Use Only Frequently Asked Questions (FAQ) memo published by The Guardian. According to a Top Secret heat map display also published by The Guardian and allegedly produced by the Boundless Informant program, almost 3 billion data elements from inside the United States were captured by NSA over a 30-day period ending in March 2013.
Data analyzed by Boundless Informant includes electronic surveillance program records (DNI) and telephone call metadata records (DNR) stored in an NSA data archive called GM-PLACE. It does not include FISA data, according to the FAQ memo. PRISM, a government codename for a collection effort known officially as US-984XN, which was revealed at the same time as Boundless Informant, is one source of DNR data. According to the map, Boundless Informant summarizes data records from 504 separate DNR and DNI collection sources (SIGADs). In the map, countries that are under surveillance are assigned a color from green, representing least coverage to red, most intensive.
Slide showing that much of the world’s communications flow through the US.
Intelligence gathered by the United States government inside the United States or specifically targeting US citizens is legally required to be gathered in compliance with the Foreign Intelligence Surveillance Act of 1978 (FISA) and under the authority of the Foreign Intelligence Surveillance Court (FISA court).
NSA global data mining projects have existed for decades, but recent programs of intelligence gathering and analysis that include data gathered from inside the United States such as PRISM were enabled by changes to US surveillance law introduced under President Bush and renewed under President Obama in December 2012.
Boundless Informant was first publicly revealed on June 8, 2013, after classified documents about the program were leaked to The Guardian. The newspaper identified its informant, at his request, as Edward Snowden, who worked at the NSA for the defense contractor Booz Allen Hamilton.
According to published slides, Boundless Informant leverages Free and Open Source Software—and is therefore “available to all NSA developers”—and corporate services hosted in the cloud. The tool uses HDFS, MapReduce, and Cloudbase for data processing.
Legality and FISA Amendments Act of 2008
The FISA Amendments Act (FAA) Section 702 is referenced in PRISM documents detailing the electronic interception, capture and analysis of metadata. Many reports and letters of concern written by members of Congress suggest that this section of FAA in particular is legally and constitutionally problematic, such as by targeting U.S. persons, insofar as “Collections occur in U.S.” as published documents indicate.
The ACLU has asserted the following regarding the FAA: “Regardless of abuses, the problem with the FAA is more fundamental: the statute itself is unconstitutional.”
Senator Rand Paul is introducing new legislation called the Fourth Amendment Restoration Act of 2013 to stop the NSA or other agencies of the United States government from violating the Fourth Amendment to the U.S. Constitution using technology and big data information systems like PRISM and Boundless Informant.
ECHELON is a name used in global media and in popular culture to describe a signals intelligence (SIGINT) collection and analysis network operated on behalf of the five signatory states to the UKUSA Security Agreement (Australia, Canada, New Zealand, the United Kingdom, and the United States, referred to by a number of abbreviations, including AUSCANNZUKUS and Five Eyes). It has also been described as the only software system which controls the download and dissemination of the intercept of commercial satellite trunk communications.
ECHELON, according to information in the European Parliament document, “On the existence of a global system for the interception of private and commercial communications (ECHELON interception system)” was created to monitor the military and diplomatic communications of the Soviet Union and its Eastern Bloc allies during the Cold War in the early 1960s.
The system has been reported in a number of public sources. Its capabilities and political implications were investigated by a committee of the European Parliament during 2000 and 2001 with a report published in 2001, and by author James Bamford in his books on the National Security Agency of the United States. The European Parliament stated in its report that the term ECHELON is used in a number of contexts, but that the evidence presented indicates that it was the name for a signals intelligence collection system. The report concludes that, on the basis of information presented, ECHELON was capable of interception and content inspection of telephone calls, fax, e-mail and other data traffic globally through the interception of communication bearers including satellite transmission, public switched telephone networks (which once carried most Internet traffic) and microwave links.
Bamford describes the system as the software controlling the collection and distribution of civilian telecommunications traffic conveyed using communication satellites, with the collection being undertaken by ground stations located in the footprint of the downlink leg.
The UKUSA intelligence community was assessed by the European Parliament (EP) in 2000 to include the signals intelligence agencies of each of the member states:
the Government Communications Headquarters of the United Kingdom,
the National Security Agency of the United States,
the Communications Security Establishment of Canada,
the Defence Signals Directorate of Australia, and
the Government Communications Security Bureau of New Zealand.
the National SIGINT Organisation (NSO) of The Netherlands
The EP report concluded that it seemed likely that ECHELON is a method of sorting captured signal traffic, rather than a comprehensive analysis tool.
The ability to intercept communications depends on the medium used, be it radio, satellite, microwave, cellular or fiber-optic. During World War II and through the 1950s, high frequency (“short wave”) radio was widely used for military and diplomatic communication, and could be intercepted at great distances. The rise of geostationary communications satellites in the 1960s presented new possibilities for intercepting international communications. The report to the European Parliament of 2001 states: “If UKUSA states operate listening stations in the relevant regions of the earth, in principle they can intercept all telephone, fax and data traffic transmitted via such satellites.”
The role of satellites in point-to-point voice and data communications has largely been supplanted by fiber optics; in 2006, 99% of the world’s long-distance voice and data traffic was carried over optical-fiber. The proportion of international communications accounted for by satellite links is said to have decreased substantially over the past few years[when?] in Central Europe to an amount between 0.4% and 5%. Even in less-developed parts of the world, communications satellites are used largely for point-to-multipoint applications, such as video. Thus, the majority of communications can no longer be intercepted by earth stations; they can only be collected by tapping cables and intercepting line-of-sight microwave signals, which is possible only to a limited extent.
One method of interception is to place equipment at locations where fiber optic communications are switched. For the Internet, much of the switching occurs at relatively few sites. There have been reports of one such intercept site, Room 641A, in the United States. In the past[when?] much Internet traffic was routed through the U.S. and the UK, but this has changed; for example, in 2000, 95% of intra-German Internet communications was routed via the DE-CIX Internet exchange point in Frankfurt. A comprehensive worldwide surveillance network is possible only if clandestine intercept sites are installed in the territory of friendly nations, and/or if local authorities cooperate. The report to the European Parliament points out that interception of private communications by foreign intelligence services is not necessarily limited to the U.S. or British foreign intelligence services.
Most reports on ECHELON focus on satellite interception; testimony before the European Parliament indicated that separate but similar UK-US systems are in place to monitor communication through undersea cables, microwave transmissions and other lines.
See also: Industrial espionage
Intelligence monitoring of citizens, and their communications, in the area covered by the AUSCANNZUKUS security agreement has caused concern. British journalist Duncan Campbell and New Zealand journalist Nicky Hager asserted in the 1990s that the United States was exploiting ECHELON traffic for industrial espionage, rather than military and diplomatic purposes. Examples alleged by the journalists include the gear-less wind turbine technology designed by the German firm Enercon and the speech technology developed by the Belgian firm Lernout & Hauspie. An article in the US newspaper Baltimore Sun reported in 1995 that European aerospace company Airbus lost a $6 billion contract with Saudi Arabia in 1994 after the US National Security Agency reported that Airbus officials had been bribing Saudi officials to secure the contract.
In 2001, the Temporary Committee on the ECHELON Interception System recommended to the European Parliament that citizens of member states routinely use cryptography in their communications to protect their privacy, because economic espionage with ECHELON has been conducted by the US intelligence agencies.
Bamford provides an alternative view, highlighting that legislation prohibits the use of intercepted communications for commercial purposes, although he does not elaborate on how intercepted communications are used as part of an all-source intelligence process.
According to its website, the U.S. National Security Agency (NSA) is “a high technology organization … on the frontiers of communications and data processing”. In 1999 the Australian Senate Joint Standing Committee on Treaties was told by Professor Desmond Ball that the Pine Gap facility was used as a ground station for a satellite-based interception network. The satellites were said to be large radio dishes between 20 and 100 meters in diameter in geostationary orbits. The original purpose of the network was to monitor the telemetry from 1970s Soviet weapons, air defence radar, communications satellites and ground based microwave communications.
The European Parliament’s Temporary Committee on the ECHELON Interception System stated: “It seems likely, in view of the evidence and the consistent pattern of statements from a very wide range of individuals and organisations, including American sources, that its name is in fact ECHELON, although this is a relatively minor detail.” The U.S. intelligence community uses many code names (see, for example, CIA cryptonym).
Former NSA employee Margaret Newsham claims that she worked on the configuration and installation of software that makes up the ECHELON system while employed at Lockheed Martin, for whom she worked from 1974 to 1984 in Sunnyvale, California, US, and in Menwith Hill, England, UK. At that time, according to Newsham, the code name ECHELON was NSA’s term for the computer network itself. Lockheed called it P415. The software programs were called SILKWORTH and SIRE. A satellite named VORTEX intercepted communications. An image available on the internet of a fragment apparently torn from a job description shows Echelon listed along with several other code names.
The 2001 European Parliamentary (EP) report lists several ground stations as possibly belonging to, or participating in, the ECHELON network. These include:
Likely satellite intercept stations
The following stations are listed in the EP report (p. 54 ff) as likely to have, or to have had, a role in intercepting transmissions from telecommunications satellites:
Hong Kong (since closed)
Australian Defence Satellite Communications Station (Geraldton, Western Australia)
Menwith Hill (Yorkshire, U.K.) Map (reportedly the largest Echelon facility)
Misawa Air Base (Japan) Map
GCHQ Bude, formerly known as GCHQ CSO Morwenstow, (Cornwall, U.K.) Map
Pine Gap (Northern Territory, Australia – close to Alice Springs) Map
Sugar Grove (West Virginia, U.S.) Map
Yakima Training Center (Washington, U.S.) Map
GCSB Waihopai (New Zealand)
GCSB Tangimoana (New Zealand)
CFS Leitrim (Ontario, Canada)
Teufelsberg (Berlin, Germany) (closed 1992)
Other potentially related stations
The following stations are listed in the EP report (p. 57 ff) as ones whose roles “cannot be clearly established”:
Ayios Nikolaos (Cyprus – U.K.)
BadAibling Station (BadAibling, Germany – U.S.)
relocated to Griesheim in 2004
deactivated in 2008
Buckley Air Force Base (Aurora, Colorado)
Fort Gordon (Georgia, U.S.)
Gander (Newfoundland & Labrador, Canada)
Guam (Pacific Ocean, U.S.)
Kunia Regional SIGINT Operations Center (Hawaii, U.S.)
Lackland Air Force Base, Medina Annex (San Antonio, Texas)
Room 641A is a telecommunication interception facility operated by AT&T for the U.S. National Security Agency that commenced operations in 2003 and was exposed in 2006.
Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T. The room was referred to in internal AT&T documents as the SG3 [Study Group 3] Secure Room. It is fed by fiber optic lines from beam splitters installed in fiber optic trunks carrying Internet backbone traffic and, as analyzed by J. Scott Marcus, a former CTO for GTE and a former adviser to the FCC, who has access to all Internet traffic that passes through the building, and therefore “the capability to enable surveillance and analysis of internet content on a massive scale, including both overseas and purely domestic traffic.” Former director of the NSA’s World Geopolitical and Military Analysis Reporting Group, William Binney, has estimated that 10 to 20 such facilities have been installed throughout the United States.
The room measures about 24 by 48 feet (7.3 by 15 m) and contains several racks of equipment, including a Narus STA 6400, a device designed to intercept and analyze Internet communications at very high speeds.
The very existence of the room was revealed by a former AT&T technician, Mark Klein, and was the subject of a 2006 class action lawsuit by the Electronic Frontier Foundation against AT&T. Klein claims he was told that similar black rooms are operated at other facilities around the country.
Room 641A and the controversies surrounding it were subjects of an episode of Frontline, the current affairs documentary program on PBS. It was originally broadcast on May 15, 2007. It was also featured on PBS’s NOW on March 14, 2008. The room was also covered in the PBS Nova episode “The Spy Factory”.
Basic diagram of how the alleged wiretapping was accomplished. From EFF court filings
The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecommunication company of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in a massive, illegal program to wiretap and data-mine Americans’ communications. On July 20, 2006, a federal judge denied the government’s and AT&T’s motions to dismiss the case, chiefly on the ground of the States Secrets Privilege, allowing the lawsuit to go forward. On August 15, 2007, the case was heard by the Ninth Circuit Court of Appeals and was dismissed on December 29, 2011 based on a retroactive grant of immunity by Congress for telecommunications companies that cooperated with the government. The U.S. Supreme Court declined to hear the case. A different case by the EFF was filed on September 18, 2008, titled Jewel v. NSA.
PRISM: A clandestine national security electronic surveillance program operated by the United States National Security Agency (NSA) which can target customers of participating corporations outside or inside the United States
Main Core: A personal and financial database storing information of millions of U.S. citizens believed to be threats to national security. The data mostly comes from the NSA, FBI, CIA, as well as other government sources.
Title II contains many of the most contentious provisions of the act. Supporters of the Patriot Act claim that these provisions are necessary in fighting the War on Terrorism, while its detractors argue that many of the sections of Title II infringe upon individual and civil rights.
The sections of Title II amend the Foreign Intelligence Surveillance Act of 1978 and its provisions in 18 U.S.C., dealing with “Crimes and Criminal Procedure“. It also amends the Electronic Communications Privacy Act of 1986. In general, the Title expands federal agencies’ powers in intercepting, sharing, and using private telecommunications, especially electronic communications, along with a focus on criminal investigations by updating the rules that govern computer crime investigations. It also sets out procedures and limitations for individuals who feel their rights have been violated to seek redress, including against the United States government. However, it also includes a section that deals with trade sanctions against countries whose government supports terrorism, which is not directly related to surveillance issues.
Two sections dealt with the interception of communications by the United States government.
Section 201 is titled Authority to intercept wire, oral, and electronic communications relating to terrorism. This section amended 18 U.S.C.§ 2516 (Authorization for interception of wire, oral, or electronic communications) of the United States Code. This section allows (under certain specific conditions) the United States Attorney General (or some of his subordinates) to authorize a Federal judge to make an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation (FBI), or another relevant U.S. Federal agency.
The Attorney General’s subordinates who can use Section 201 are: the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division who is specially designated by the Attorney General.
The amendment added a further condition which allowed an interception order to be carried out. The interception order may now be made if a criminal violation is made with respect to terrorism (defined by 18 U.S.C.§ 2332):
Section 202 is titled Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses, and amended the United States Code to include computer fraud and abuse in the list of reasons why an interception order may be granted.
Section 203: Authority to share criminal investigative information
Section 203 (Authority to share criminal investigation information) modified the Federal Rules of Criminal Procedure with respect to disclosure of information before the grand jury (Rule 6(e)). Section 203(a) allowed the disclosure of matters in deliberation by the grand jury, which are normally otherwise prohibited, if:
a court orders it (before or during a judicial proceeding),
a court finds that there are grounds for a motion to dismiss an indictment because of matters before the Grand Jury,
if the matters in deliberation are made by an attorney for the government to another Federal grand jury,
an attorney for the government requests that matters before the grand jury may reveal a violation of State criminal law,
the matters involve foreign intelligence or counterintelligence or foreign intelligence information. Foreign intelligence and counterintelligence was defined in section 3 of the National Security Act of 1947, and “foreign intelligence information” was further defined in the amendment as information about:
an actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
sabotage or international terrorism by a foreign power or an agent of a foreign power; or
clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power; or
information about a foreign power or foreign territory that relates to the national defense or the security of the United States or the conduct of the foreign affairs of the United States.’.
information about non-U.S. and U.S. citizens
203(a) gave the court the power to order a time within which information may be disclosed, and specified when a government agency may use information disclosed about a foreign power. The rules of criminal procedure now state that “within a reasonable time after such disclosure, an attorney for the government shall file under seal a notice with the court stating the fact that such information was disclosed and the departments, agencies, or entities to which the disclosure was made.”
Section 203(b) modified 18 U.S.C.§ 2517, which details who is allowed to learn the results of a communications interception, to allow any investigative or law enforcement officer, or attorney for the Government to divulge foreign intelligence, counterintelligence or foreign intelligence information to a variety of Federal officials. Specifically, any official who has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived from this could divulge this information to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official. The definition of “foreign intelligence” was the same as section 203(a), with the same ability to define “foreign intelligence” to be intelligence of a non-U.S. and U.S. citizen. The information received must only be used as necessary in the conduct of the official’s official duties.
The definition of “foreign intelligence information” is defined again in Section 203(d).
Section 203(c) specified that the Attorney General must establish procedures for the disclosure of information due to 18 U.S.C.§ 2517 (see above), for those people who are defined as U.S. citizens.
Section 204: Limitations on communication interceptions
Section 204 (Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication) removed restrictions from the acquisition of foreign intelligence information from international or foreign communications. It was also clarified that the Foreign Intelligence Surveillance Act of 1978 should not only be the sole means of electronic surveillance for just oral and wire intercepts, but should also include electronic communication.
Section 205: Employment of translators by the FBI
Under section 205 (Employment of translators by the Federal Bureau of Investigation), the Director of the Federal Bureau of Investigation is now allowed to employ translators to support counterterrorism investigations and operations without regard to applicable Federal personnel requirements and limitations. However, he must report to the House Judiciary Committee and Senate Judiciary Committee the number of translators employed and any legal reasons why he cannot employ translators from federal, state, or local agencies.
Section 206: Roving surveillance authority
The Foreign Intelligence Surveillance Act of 1978 allows an applicant access to all information, facilities, or technical assistance necessary to perform electronic surveillance on a particular target. The assistance given must protect the secrecy of and cause as little disruption to the ongoing surveillance effort as possible. The direction could be made at the request of the applicant of the surveillance order, by a common carrier, landlord, custodian or other specified person. Section 206 (Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978) amended this to add:
or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a particular person.
This allows intelligence agencies to undertake “roving” surveillance: they do not have to specify the exact facility or location where their surveillance will be done. Roving surveillance was already specified for criminal investigations under 18 U.S.C.§ 2518(11), and section 206 brought the ability of intelligence agencies to undertake such roving surveillance into line with such criminal investigations. However, the section was not without controversy, as James X. Dempsey, the Executive Director of the Center for Democracy & Technology, argued that a few months after the Patriot Act was passed the Intelligence Authorization Act was also passed that had the unintended effect of seeming to authorize “John Doe” roving taps — FISA orders that identify neither the target nor the location of the interception (see The Patriot Debates, James X. Dempsey debates Paul Rosenzweig on section 206).
Section 207: Duration of FISA surveillance on agents of a foreign powe
Previously FISA only defined the duration of a surveillance order against a foreign power (defined in 50 U.S.C.§ 1805(e)(1)) . This was amended by section 207 (Duration of FISA surveillance of non-United States persons who are agents of a foreign power) to allow surveillance of agents of a foreign power (as defined in section 50 U.S.C.§ 1801(b)(1)(A)) for a maximum of 90 days. Section 304(d)(1) was also amended to extend orders for physical searches from 45 days to 90 days, and orders for physical searches against agents of a foreign power are allowed for a maximum of 120 days. The act also clarified that extensions for surveillance could be granted for a maximum of a year against agents of a foreign power.
Section 208: Designation of judges
Section 103(A) of FISA was amended by Section 208 (Designation of judges) of the Patriot Act to increase the number of federal district court judges who must now review surveillance orders from seven to 11. Of these, three of the judges must live within 20 miles (32 km) of the District of Columbia.
Section 209: Seizure of voice-mail messages pursuant to warrants
Section 209 (Seizure of voice-mail messages pursuant to warrants) removed the text “any electronic storage of such communication” from title 18, section 2510 of the United States Code. Before this was struck from the Code, the U.S. government needed to apply for a title III wiretap order before they could open voice-mails, however now the government only need apply for an ordinary search. Section 2703, which specifies when a “provider of electronic communication services” must disclose the contents of stored communications, was also amended to allow such a provider to be compelled to disclose the contents via a search warrant, and not a wiretap order. According to Vermont senator Patrick Leahy, this was done to “harmonizing the rules applicable to stored voice and non-voice (e.g., e-mail) communications”.
Section 210 & 211: Scope of subpoenas for records of electronic communications
The U.S. Code specifies when the U.S. government may require a provider of an electronic communication service to hand over communication records. It specifies what that provider must disclose to the government, and was amended by section 210 (Scope of subpoenas for records of electronic communications) to include records of session times and durations of electronic communication as well as any identifying numbers or addresses of the equipment that was being used, even if this may only be temporary. For instance, this would include temporarily assigned IP addresses, such as those established by DHCP.
Section 211 (Clarification of scope) further clarified the scope of such orders. 47 U.S.C.§ 551 (Section 631 of the Communications Act of 1934) deals with the privacy granted to users of cable TV. The code was amended to allow the government to have access to the records of cable customers, with the notable exclusion of records revealing cable subscriber selection of video programming from a cable operator.
Section 212: Emergency disclosure of electronic communications
Section 212 (Emergency disclosure of electronic communications to protect life and limb) amended the US Code to stop a communications provider from providing communication records (not necessarily relating to the content itself) about a customer’s communications to others. However, should the provider reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person then the communications provider can now disclose this information. The act did not make clear what “reasonably” meant.
A communications provider could also disclose communications records if:
a court orders the disclosure of communications at the request of a government agency (18 U.S.C.§ 2703)
the customer allows the information to be disclosed
if the service provider believes that they must do so to protect their rights or property.
Section 213 (Authority for delaying notice of the execution of a warrant) amended the US Code to allow the notification of search warrants to be delayed. This section has been commonly referred to as the “sneak and peek” section, a phrase originating from the FBI and not, as commonly believed, from opponents of the Patriot Act. The U.S. government may now legally search and seize property that constitutes evidence of a United States criminal offense without immediately telling the owner. The court may only order the delayed notification if they have reason to believe it would hurt an investigation — delayed notifications were already defined in 18 U.S.C.§ 2705 — or, if a search warrant specified that the subject of the warrant must be notified “within a reasonable period of its execution,” then it allows the court to extend the period before the notification is given, though the government must show “good cause”. If the search warrant prohibited the seizure of property or communications, then the search warrant could then be delayed.
Section 214: Pen register and trap and trace authority
FISA was amended by section 214 (Pen register and trap and trace authority under FISA) to clarify that pen register and trap and trace surveillance can be authorised to allow government agencies to gather foreign intelligence information. Where the law only allowed them to gather surveillance if there was evidence of international terrorism, it now gives the courts the power to grant trap and traces against:
those suspected of being involved with international terrorism,
those undertaking clandestine intelligence activities
Section 215: Access to records and other items under FISA
This section is commonly referred to as the “library records” provision because of the wide range of personal material that can be investigated.
FISA was modified by section 215 (Access to records and other items under the Foreign Intelligence Surveillance Act) to allow the Director of the FBI (or an official designated by the Director, so long as that official’s rank is no lower than Assistant Special Agent in Charge) to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. The act specifically gives an example to clarify what it means by “tangible things”: it includes “books, records, papers, documents, and other items”.
Any order that is granted must be given by a FISA court judge or by a magistrate judge who is publicly designated by the Chief Justice of the United States to allow such an order to be given. Any application must prove that it is being conducted without violating the First Amendment rights of any U.S. citizens. The application can only be used to obtain foreign intelligence information not concerning a U.S. citizen or to protect against international terrorism or clandestine intelligence activities.
This section of the PATRIOT Act is controversial because the order may be granted ex parte, and once it is granted — in order to avoid jeopardizing the investigation — the order may not disclose the reasons behind why the order was granted.
The section carries a gag order stating that “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section”. Senator Rand Paul stated that the non-disclosure is imposed for one year, though this is not explicitly mentioned in the section.
In order to protect anyone who complies with the order, FISA now prevents any person who complies with the order in “good faith” from being liable for producing any tangible goods required by the court order. The production of tangible items is not deemed to constitute a waiver of any privilege in any other proceeding or context.
During a House Judiciary hearing on domestic spying on July 17, 2013 John C. Inglis, the deputy director of the surveillance agency, told a member of the House judiciary committee that NSA analysts can perform “a second or third hop query” through its collections of telephone data and internet records in order to find connections to terrorist organizations. “Hops” refers to a technical term indicating connections between people. A three-hop query means that the NSA can look at data not only from a suspected terrorist, but from everyone that suspect communicated with, and then from everyone those people communicated with, and then from everyone all of those people communicated with. NSA officials had said previously that data mining was limited to two hops, but Inglis suggested that the Foreign Intelligence Surveillance Court has allowed for data analysis extending “two or three hops”.
Section 216: Authority to issue pen registers and trap and trace devices
Section 216 (Modification of authorities relating to use of pen registers and trap and trace devices) deals with three specific areas with regards to pen registers and trap and trace devices: general limitations to the use of such devices, how an order allowing the use of such devices must be made, and the definition of such devices.
18 U.S.C.§ 3121 details the exceptions related to the general prohibition on pen register and trap and trace devices. Along with gathering information for dialup communications, it allows for gathering routing and other addressing information. It is specifically limited to this information: the Act does not allow such surveillance to capture the actual information that is contained in the communication being monitored. However, organisations such as the EFF have pointed out that certain types of information that can be captured, such as URLs, can have content embedded in them. They object to the application of trap and trace and pen register devices to newer technology using a standard designed for telephones.
Making and carrying out orders
It also details that an order may be applied for ex parte (without the party it is made against present, which in itself is not unusual for search warrants), and allows the agency who applied for the order to compel any relevant person or entity providing wire or electronic communication service to assist with the surveillance. If the party whom the order is made against so requests, the attorney for the Government, law enforcement or investigative officer that is serving the order must provide written or electronic certification that the order applies to the targeted individual.
If a pen register or trap and trace device is used on a packet-switched data network, then the agency doing surveillance must keep a detailed log containing:
any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network;
the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information;
the configuration of the device at the time of its installation and any subsequent modification made to the device; and
any information which has been collected by the device
This information must be generated for the entire time the device is active, and must be provided ex parte and under seal to the court which entered the ex parte order authorizing the installation and use of the device. This must be done within 30 days after termination of the order.
Orders must now include the following information:
the identifying number of the device under surveillance
the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied
if a trap and trace device is installed, the geographic limits of the order must be specified
This section amended the non-disclosure requirements of 18 U.S.C.§ 3123(d)(2) by expanding to include those whose facilities are used to establish the trap and trace or pen register or to those people who assist with applying the surveillance order who must not disclose that surveillance is being undertaken. Before this it had only applied to the person owning or leasing the line.
The following terms were redefined in the US Code’s chapter 206 (which solely deals with pen registers and trap and trace devices):
Pen register: defined in 18 U.S.C.§ 3127(3), the definition of such a device was expanded to include a device that captures dialing, routing, addressing, or signaling information from an electronics communication device. It limited the usage of such devices to exclude the capturing of any of the contents of communications being monitored. 18 U.S.C.§ 3124(b) was also similarly amended.
Trap and trace device: defined in 18 U.S.C.§ 3127(4), the definition was similarly expanded to include the dialing, routing, addressing, or signaling information from an electronics communication device. However, a trap and trace device can now also be a “process”, not just a device.
Contents:18 U.S.C.§ 3127(1) clarifies the term “contents” (as referred to in the definition of trap and trace devices and pen registers) to conform to the definition as defined in 18 U.S.C.§ 2510(8), which when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.
Section 217: Interception of computer trespasser communications
Section 217 (Interception of computer trespasser communications) firstly defines the following terms:
Protected computer: this is defined in 18 U.S.C.§ 1030(e)(2)(A), and is any computer that is used by a financial institution or the United States Government or one which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.
Computer trespasser: this is defined in 18 U.S.C.§ 2510(21) and references to this phrase means
a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and
does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer
Amendments were made to 18 U.S.C.§ 2511(2) to make it lawful to allow a person to intercept the communications of a computer trespasser if
the owner or operator of the protected computer authorizes the interception of the computer trespasser’s communications on the protected computer,
the person is lawfully engaged in an investigation,
the person has reasonable grounds to believe that the contents of the computer trespasser’s communications will be relevant to their investigation, and
any communication captured can only relate to those transmitted to or from the computer trespasser.
Section 218: Foreign intelligence information
Section 218 (Foreign intelligence information) amended 50 U.S.C.§ 1804(a)(7)(B) and 50 U.S.C.§ 1823(a)(7)(B) (both FISA sections 104(a) (7)(B) and section 303(a)(7)(B), respectively) to change “the purpose” of surveillance orders under FISA to gain access to foreign intelligence to “significant purpose”. Mary DeRosa, in The Patriot Debates, explained that the reason behind this was to remove a legal “wall” which arose when criminal and foreign intelligence overlapped. This was because the U.S. Department of Justice interpreted “the purpose” of surveillance was restricted to collecting information for foreign intelligence, which DeRosa says “was designed to ensure that prosecutors and criminal investigators did not use FISA to circumvent the more rigorous warrant requirements for criminal cases”. However, she also says that it is debatable whether this legal tightening of the definition was even necessary, stating that “the Department of Justice argued to the FISA Court of Review in 2002 that the original FISA standard did not require the restrictions that the Department of Justice imposed over the years, and the court appears to have agreed [which] leaves the precise legal effect of a sunset of section 218 somewhat murky.”
Section 219: Single-jurisdiction search warrants for terrorism
Section 219 (Single-jurisdiction search warrants for terrorism) amended the Federal Rules of Criminal Procedure to allow a magistrate judge who is involved in an investigation of domestic terrorism or international terrorism the ability to issue a warrant for a person or property within or outside of their district.
Section 220: Nationwide service of search warrants for electronic evidence
Section 220 (Nationwide service of search warrants for electronic evidence) gives the power to Federal courts to issue nationwide service of search warrants for electronic surveillance. However, only courts with jurisdiction over the offense can order such a warrant. This required amending 18 U.S.C.§ 2703 and 18 U.S.C.§ 2711.
Section 221: Trade sanctions
Section 221 (Trade sanctions) amended the Trade Sanctions Reform and Export Enhancement Act of 2000. This Act prohibits, except under certain specific circumstances, the President from imposing a unilateral agricultural sanction or unilateral medical sanction against a foreign country or foreign entity. The Act holds various exceptions to this prohibition, and the Patriot Act further amended the exceptions to include holding sanctions against countries that design, develop or produce chemical or biological weapons, missiles, or weapons of mass destruction. It also amended the act to include the Taliban as state sponsors of international terrorism. In amending Title IX, section 906 of the Trade sanctions act, the Taliban was determined by the Secretary of State to have repeatedly provided support for acts of international terrorism and the export of agricultural commodities, medicine, or medical devices is now pursuant to one-year licenses issued and reviewed by the United States Government. However, the export of agricultural commodities, medicine, or medical devices to the Government of Syria or to the Government of North Korea were exempt from such a restriction.
The Patriot Act further states that nothing in the Trade Sanctions Act will limit the application of criminal or civil penalties to those who export agricultural commodities, medicine, or medical devices to:
any foreign entity or individual who is subject to any restriction for involvement in weapons of mass destruction or missile proliferation.
Section 222: Assistance to law enforcement agencies
Section 222 (Assistance to law enforcement agencies) states that nothing in the Patriot Act shall make a communications provider or other individual provide more technical assistance to a law enforcement agency than what is set out in the Act. It also allows for the reasonable compensation of any expenses incurred while assisting with the establishment of pen registers or trap and trace devices.
Section 223: Civil liability for certain unauthorized disclosures
18 U.S.C.§ 2520(a) allows any person who has had their rights violated due to the illegal interception of communications to take civil action against the offending party. Section 223 (Civil liability for certain unauthorized disclosures) excluded the United States from such civil action.
If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of chapter 119 of the U.S. Code they may request an internal review from that agency or department. If necessary, an employee may then have administrative action taken against them. If the department or agency do not take action, then they must inform the notify the Inspector General who has jurisdiction over the agency or department, and they must give reasons to them why they did not take action.
A citizen’s rights will also be found to have been violated if an investigative, law enforcement officer or governmental entity discloses information beyond that allowed in 18 U.S.C.§ 2517(a).
U.S. Code Title 18, Section 2712 added
A totally new section was appended to Title 18, Chapter 121 of the US Code: Section 2712, “Civil actions against the United States”. It allows people to take action against the US Government if they feel that they had their rights violated, as defined in chapter 121,chapter 119, or sections 106(a), 305(a), or 405(a) of FISA. The court may assess damages no less than $US10,000 and litigation costs that are reasonably incurred. Those seeking damages must present them to the relevant department or agency as specified in the procedures of the Federal Tort Claims Act.
Actions taken against the United States must be initiated within two years of when the claimant has had a reasonable chance to discover the violation. All cases are presented before a judge, not a jury. However, the court will order a stay of proceedings if they determine that if during the court case civil discovery will hurt the ability of the government to conduct a related investigation or the prosecution of a related criminal case. If the court orders the stay of proceedings they will extend the time period that a claimant has to take action on a reported violation. However, the government may respond to any action against it by submitting evidence ex parte in order to avoid disclosing any matter that may adversely affect a related investigation or a related criminal case. The plaintiff is then given an opportunity to make a submission to the court, not ex parte, and the court may request further information from either party.
If a person wishes to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under FISA, then the Attorney General may file an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States. In these cases, the court may review in camera and ex parte the material relating to the surveillance to make sure that such surveillance was lawfully authorized and conducted. The court may then disclose part of material relating to the surveillance. However, the court is restricted in they may only do this “where such disclosure is necessary to make an accurate determination of the legality of the surveillance”. If it then determined that the use of a pen register or trap and trace device was not lawfully authorized or conducted, the result of such surveillance may be suppressed as evidence. However, should the court determine that such surveillance was lawfully authorised and conducted, they may deny the motion of the aggrieved person.
It is further stated that if a court or appropriate department or agency determines that an officer or employee of the United States willfully or intentionally violated any provision of chapter 121 of the U.S. Code they will request an internal review from that agency or department. If necessary, an employee may then have administrative action taken against them. If the department or agency do not take action, then they must inform the notify the Inspector General who has jurisdiction over the agency or department, and they must give reasons to them why they did not take action. (see for a similar part of the Act)
Section 224: Sunset
This article is outdated. Please update this article to reflect recent events or newly available information.(November 2010)
Section 224 (Sunset) is a sunset clause. Title II and the amendments made by the title originally would have ceased to have effect on December 31, 2005, with the exception of the below sections. However, on December 22, 2005, the sunset clause expiration date was extended to February 3, 2006, and then on February 2, 2006 it was further extended to March 10:
Title II sections that did not expire on March 10, 2006
Authority to share criminal investigation information : Authority to share Grand Jury information
Authority to share criminal investigation information : Procedures
Employment of translators by the Federal Bureau of Investigation
Designation of judges
Scope of subpoenas for records of electronic communications
Clarification of scope
Authority for delaying notice of the execution of a warrant
Modification of authorities relating to use of pen registers and trap and trace devices
Single-jurisdiction search warrants for terrorism
Assistance to law enforcement agencies
Further, any particular foreign intelligence investigations that are ongoing will continue to be run under the expired sections.
Section 225: Immunity for compliance with FISA wiretap
Section 225 (Immunity for compliance with FISA wiretap) gives legal immunity to any provider of a wire or electronic communication service, landlord, custodian, or other person that provides any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance. This was added to FISA as section 105 (50 U.S.C.§ 1805).
Story 3: Lying Lunatic Left Democratic Party’s War on People of Faith By Opposing Indiana’s Religious Freedom Restoration Law — 19 Other States Have Similar Laws — Federal Religious Freedom Restoration Act of 1993 — Does Not Discriminate Against Any One Including Gays and Lesbians– Videos
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Religious Freedom Restoration Act Bill Draws Criticism, Support
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Swarens: Gov. Mike Pence to push for clarification of ‘religious freedom’ law
Gov. Mike Pence, scorched by a fast-spreading political firestorm, told The Star on Saturday that he will support the introduction of legislation to “clarify” that Indiana’s controversial Religious Freedom Restoration Act does not promote discrimination against gays and lesbians.
“I support religious liberty, and I support this law,” Pence said in an exclusive interview. “But we are in discussions with legislative leaders this weekend to see if there’s a way to clarify the intent of the law.”
The governor, although not ready to provide details on what the new bill will say, said he expects the legislation to be introduced into the General Assembly this coming week.
Asked if that legislation might include making gay and lesbian Hoosiers a protected legal class, Pence said, “That’s not on my agenda.”
Amid the deepest crisis of his political career, Pence said repeatedly that the intense blowback against the new law is the result of a “misunderstanding driven by misinformation.”
He adamantly insisted that RFRA will not open the door to state-sanctioned discrimination against gays and lesbians. But he did acknowledge that Indiana’s image — and potentially its economic health — has been hurt badly by the controversy.
I spoke with Pence on the same day that thousands of people rallied at the Statehouse in opposition to the law. And the same day that Angie’s List CEO Bill Oesterle announced that his company will abandon a deal with the state and city to expand the company’s headquarters in Indianapolis because of RFRA’s passage.
Angie’s List canceling Eastside expansion over RFRA
Oesterle’s statement is a telling sign that the outrage over RFRA isn’t limited only to the political left. Oesterle directed Republican Mitch Daniels’ 2004 campaign for governor. And it’s a signal that the damage from the RFRA debacle could be extensive.
Behind the scenes, Pence and his team have been scrambling to mitigate that damage — both to the state and to the governor’s political career.
Pence said, for example, that he had a “cordial and productive” conversation with Salesforce.com CEO Marc Benioff, who announced shortly after Pence signed the RFRA legislation on Thursday that the company will cancel all corporate-related travel to Indiana. That conversation, however, has not led to a reversal of the Salesforce decision.
I asked the governor if he had anticipated the strongly negative reaction set off by the bill’s passage. His response made it clear that he and his team didn’t see it coming.
“I just can’t account for the hostility that’s been directed at our state,” he said. “I’ve been taken aback by the mischaracterizations from outside the state of Indiana about what is in this bill.”
In defense of the legislation, he noted that 19 other states and the federal government have adopted RFRA laws similar to Indiana’s. And he pointed out that President Barack Obama voted for Illinois’ version of RFRA as a state senator.
The governor also criticized the news media’s coverage of the legislation. “Despite the irresponsible headlines that have appeared in the national media, this law is not about discrimination,” he said. “If it was, I would have vetoed it.”
Yet, those justifications, cited repeatedly by the governor’s supporters in recent days, have done little to quell the controversy.
Which is why the proposal to clarify the law’s intent with a new bill has gained traction among Pence’s advisers in the past couple of days.
Pence also plans to fight back in the state and national media. He’s scheduled, for instance, to defend the law Sunday morning on ABC’s “This Week” with George Stephanopoulos. “I’m not going to take it (the criticism) lying down,” he said.
Pence on ‘religious freedom’ bill: ‘I stand by this law’
As we wrapped up the conversation, I asked Pence: What answer do you have for the many gays and lesbians — and their friends and families — who’ve asked this past week if they are still welcome in Indiana?
“First, this law is not about discrimination. It’s about protecting religious liberty and giving people full access to the judicial system,” he said. “But, yes, Hoosier hospitality is about making all people feel welcome in our state. We did that with the Super Bowl and with many other events, and with bringing businesses here. We will continue to do that.”
Whether Pence can get that message across — whether he still has the credibility to get people to believe it — will help determine the extent of RFRA’s damage. First, and most important, for the state. But also for Mike Pence’s political future and legacy.
HoldingAs applied to closely held for-profit corporations, the Health and Human Services(HHS) regulations imposing the contraceptive mandate violate the Religious Freedom Restoration Act (RFRA). HHS’s contraceptive mandate substantially burdens the exercise of religion under the RFRA. The Court assumes that guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the mandate is the least restrictive means of furthering that interest.Court membership
For such companies, the Court’s majority directly struck down the contraceptive mandate, a regulation adopted by theUS Department of Health and Human Services (HHS) under the Affordable Care Act (ACA) requiring employers to cover certain contraceptives for their female employees, by a 5-4 vote. The court said that the mandate was not the least restrictive way to ensure access to contraceptive care, noting that a less restrictive alternative was being provided for religious non-profits, until the Court issued an injunction 3 days later, effectively ending said alternative, leaving no employer-sponsored alternative for any female employees of closely held corporations that do not wish to provide birth control.
The ruling could have widespread impact, allowing corporations to claim religious exemptions from federal laws.
Religious Freedom Restoration Act
The United States Supreme Court ruled in Employment Division v. Smith (1990) that a person may not defy neutral laws of general applicability[b] even as an expression of religious belief. “To permit this,” wrote Justice Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” He wrote that generally applicable laws do not have to meet the standard of strict scrutiny, because such a requirement would create “a private right to ignore generally applicable laws”. Strict scrutiny would require a law to be the least restrictive means of furthering a compelling government interest.
In 1993, the US Congress responded by passing the Religious Freedom Restoration Act (RFRA), requiring strict scrutiny when a neutral law of general applicability “substantially burden[s] a person’s[c] exercise of religion”. The RFRA was amended in 2000 by the Religious Land Use and Institutionalized Persons Act (RLUIPA) to redefine exercise of religion as any exercise of religion, “whether or not compelled by, or central to, a system of religious belief”, which is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution”. The Supreme Court upheld the constitutionality of the RFRA as applied to federal statutes in Gonzales v. O Centro Espirita in 2006.
Affordable Care Act
Most Americans are covered by employer-sponsored health insurance. In 2010, Congress passed the Affordable Care Act (ACA), which relies on the Health Resources and Services Administration (HRSA), part of the Department of Health and Human Services (HHS), to specify what kinds of preventive care for women should be covered in certain employer-based health plans. HHS exempted religious employers (churches and their integrated auxiliaries, associations of churches, and any religious order), non-profit organizations that object to any required contraception, employers providing grandfathered plans (that have not had specific changes before March 23, 2010), and employers with fewer than 50 employees. The HRSA decided that all twenty contraceptives approved by the U.S. Food and Drug Administration (FDA) should be covered. Companies that refuse are fined $100 per individual per day, or they can replace their health coverage with higher wages and a calibrated tax.
The Green and Hahn families believe that life begins at conception which they equate to fertilization, and object to their closely held for-profit corporations providing health insurance coverage to their female employees of four FDA-approved contraceptives that the Green and Hahn families believe may prevent implantation of a fertilized egg (many doctors and scientists disagree), which the Green and Hahn families believe constitutes an abortion.
In September 2012, Hobby Lobby filed a lawsuit in the U.S. District Court for the Western District of Oklahoma against enforcement of the contraception rule based on the RFRA and the Free Exercise Clause of the First Amendment. The district court denied Hobby Lobby’s request for a preliminary injunction. In March 2013, the U.S. Court of Appeals for the Tenth Circuit granted a hearing of the case. In June, the appeals court ruled that Hobby Lobby Stores, Inc. is a person who has religious freedom. The court ordered the government to stop enforcement of the contraception rule on Hobby Lobby and sent the case back to the district court, which granted preliminary injunction in July. In September, the government appealed to the U.S. Supreme Court.
Two other federal appeals courts ruled against the contraception coverage rule, while another two upheld it.
On November 26, the Supreme Court accepted and consolidated the case with Conestoga Wood Specialties v. Sebelius. Two dozen amicus briefs support the government, and five dozen support the companies. American Freedom Law Center‘s brief argues that birth control harms women because men will only want them “for the satisfaction of [their] own desires.” Another brief argues that the contraception rule leads to “the maximization of sexual activity”. Two of the briefs oppose each other on the constitutionality of the RFRA. Two briefs that do not formally take sides oppose each other on whether the right to religion applies to corporations. One of those briefs argues that if shareholders are separated by the corporate veil from corporate liabilities, then their religious values are also separate from the corporation. It mentions the ruling in Domino’s Pizza, Inc. v. McDonald made against the African American owner of JWM Investments whose contracts were breached due to racial discrimination. The brief argues that if JWM Investments could not suffer discrimination through its owner, then Hobby Lobby could not suffer religious burden through its owner. Two briefs were filed by LGBT groups concerned that future anti-discrimination laws would be pre-emptively harmed if employers could claim to be religiously exempt.
Argument and deliberation
Oral arguments were held on March 25, 2014 for 30 minutes more than the usual one hour. The three women in the court focused their questioning on Hobby Lobby’s lawyer, Paul D. Clement, while the men focused on the administration’s lawyer, Solicitor General Donald Verrilli, Jr. Justice Sotomayor quoted the ruling from United States v. Lee (1982) saying that an employer can’t deprive employees of a statutory right because of religious beliefs. Clement replied that Lee does not apply because it was a challenge against a tax rather than against a significant burden. Sotomayor said that instead of paying the burden of the penalty, Hobby Lobby could replace its health care with the equivalent expense of higher wages and a calibrated tax, which the government would use to pay for the employees’ health care. Near the end of Clement’s argument, Justice Kennedy expressed concern for the rights of the employees who may not agree with the religious beliefs of their employers. When Verrilli argued that the ruling in Cutter v. Wilkinson requires the court to weigh the impact on third parties in every RFRA case, Justice Scalia said that the RFRA does not require the court to balance the interest of the religious objector to the interest of other individuals. Verilli returned to Lee,saying that granting an exemption to an employer should not impose the employer’s religious faith on the employees.
Opinion of the Court
On June 30, 2014, Associate JusticeSamuel Alito delivered the judgment of the court. Four justices (Roberts, Scalia, Kennedy, and Thomas) joined him to strike down the HHS mandate, as applied to closely held corporations with religious objections, and to prevent the plaintiffs from being compelled to provide contraception under their healthcare plans. The ruling was reached on statutory grounds, citing the RFRA, because the mandate was not the “least restrictive” method of implementing the government’s interest. The ruling did not address Hobby Lobby’s claims under the Free Exercise Clause of the First Amendment.
The court argued that the purpose of extending rights to corporations is to protect the rights of shareholders, officers, and employees. It said that “allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.” The court found that for-profit corporations could be considered persons under the RFRA. It noted that the HHS treats nonprofit corporations as persons within the meaning of RFRA. The court stated, “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.” Responding to lower court judges’ suggestion that the purpose of for-profit corporations “is simply to make money”, the court said, “For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives.” The court rejected the contention that “the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws,” pointing to a federal statute from 1993 that exempted any covered health care entity from engaging in “certain activities related to abortion”.
The court held that the HHS contraception mandate substantially burdens the exercise of religion, rejecting an argument that the $2,000-per-employee penalty for dropping insurance coverage is less than the average cost of health insurance. Responding to HHS’s argument that the provision of coverage does not itself result in destruction of embryos, the Court asserted that the argument dodges the substantial burden question that the Court is supposed to address. The Court added, citing Jesuit moral manuals, that the argument is also the religious question of the morality of enabling the immoral acts of others, to which HHS had provided “a binding national answer”. The Court argued that federal courts should not answer religious questions because they would in effect be deciding whether certain beliefs are flawed. The court argued that “companies would face a competitive disadvantage in retaining and attracting skilled workers,” that increased wages for employees to buy individual coverage would be more costly than group health insurance, that any raise in wages would have to take income taxes into account, and that employers cannot deduct the penalty.
The court found it unnecessary to adjudicate on whether the HHS contraceptive mandate furthers a compelling government interest and held that HHS has not shown that the mandate is “the least restrictive means of furthering that compelling interest”. The court argued that the most straightforward alternative would be “for the Government to assume the cost…” and that HHS has not shown that it is not “a viable alternative”. The court said that the RFRA can “require creation of entirely new programs”. The court also pointed out that HHS already exempts any nonprofit organization from paying for any required contraception by allowing it to certify its religious objection to its insurance issuer, which must “[p]rovide separate payments for any contraceptive services required to be covered”. However, the court said the approach might not necessarily be the least restrictive alternative for all religious claims.
The court concluded by addressing “the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction”. The court said that their decision “provides no such shield”, and that “prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” The court also said that the requirement to pay taxes despite any religious objection is different from the contraceptive mandate because “there simply is no less restrictive alternative to the categorical requirement to pay taxes.” The court acknowledged the dissent’s “worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws…”, noting that this point was “made forcefully by the Court in Smith“. The court responded by saying, “Congress, in enacting RFRA, took the position that ‘the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests’…The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”
Justice Anthony Kennedy wrote a concurring opinion, responding to the “respectful and powerful dissent”, by emphasizing the limited nature of the ruling and saying that the government “makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees”, but that the RFRA’s least-restrictive way requirement is not met because “there is an existing, recognized, workable, and already-implemented framework to provide coverage,” the one that HHS has devised for non-profit corporations with religious objections. “RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.” (Kennedy, J., concurring, p. 3, 4)
Justice Ruth Bader Ginsburg delivered the primary dissent, which was joined by Justice Sotomayor in full and by Justices Breyer and Kagan as to all but Part III–C–1 on “whether a corporation qualifies as a ‘person’ capable of exercising religion”. Ginsburg began, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. … Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a ‘less restrictive alternative.’ And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.”
She challenged the majority’s unprecedented view of for-profit religion saying “Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities…Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.” Responding to the majority’s argument that the government should “assume the cost” of contraceptives, Ginsburg said that “the nation’s only dedicated source of federal funding for safety net family planning services…” is not designed to absorb the unmet needs of those already insured. She noted that “a less restrictive alternative” has not been written into law by Congress. Ginsburg warns, “The Court, I fear, has ventured into a minefield…”
Justices Breyer and Kagan wrote a one-paragraph dissenting opinion, saying that “the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits” and that they “need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993.”
Barbara Green, co-founder of Hobby Lobby, said “Today, the nation’s highest court has reaffirmed the vital importance of religious liberty as one of our country’s founding principles. The court’s decision is a victory, not just for our family business, but for all who seek to live out their faith.”
Conestoga CEO Anthony Hahn said, “Americans don’t have to surrender their freedom when they open a family business.”
Conservative and pro-life groups praised the ruling. The National Review said that the Supreme Court ruling “[led] Alliance Defending Freedom attorney Matt Bowman to call Hobby Lobby an ‘inclusive decision’ that advances everyone’s freedom.”Susan B. Anthony List President Marjorie Dannenfelser said, “This is a great victory for religious liberty – the bedrock of our founding. In living out our religious convictions, there are certain things we must not do. This is why we are at a watershed moment. Religious people will no longer be ordered to take action that our religion says we must not take.”Family Research Council President Tony Perkins said, “The Supreme Court has delivered one of the most significant victories for religious freedom in our generation. We are thankful the Supreme Court agreed that the government went too far by mandating that family businesses owners must violate their consciences under threat of crippling fines.” The U.S. Conference of Catholic Bishops said, “We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business…Now is the time to redouble our efforts to build a culture that fully respects religious freedom.”
Pro-choice and civil-liberties groups criticized the ruling. Cecile Richards, president of the Planned Parenthood Action Fund, said, “Today, the Supreme Court ruled against American women and families, giving bosses the right to discriminate against women and deny their employees access to birth control coverage. This is a deeply disappointing and troubling ruling that will prevent some women, especially those working hourly-wage jobs and struggling to make ends meet, from getting birth control.” Deputy legal director of the American Civil Liberties Union Louise Melling said, “This is a deeply troubling decision. For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny their employees a benefit that they are guaranteed by law.”
In an editorial, the New England Journal of Medicine called the decision “a setback for both the ACA’s foundational goal of access to universal health care and for women’s health care specifically”, voicing concern that “in assessing the competing claims about abortion and birth control, the Court’s majority focused on the religious claims of the corporations without discussing scientific or medical opinions.” In JAMA Internal Medicine, Alta Charo wrote that “consistent with a disturbing trend among courts and legislatures to misstate or misuse scientific information in the context of women’s reproductive rights and health, the Supreme Court’s decision ignored the well-accepted distinction between contraception and abortion.” The American Congress of Obstetricians and Gynecologists, representing 90% of U.S. board-certified gynecologists, supported a bill to overturn the Hobby Lobby ruling.
White House spokesman Josh Earnest said, “Congress needs to take action to solve this problem that’s been created and the administration stands ready to work with them to do so. President Obama believes that women should make personal health care decisions for themselves, rather than their bosses deciding for them. Today’s decision jeopardizes the health of women that are employed by these companies.”
Senate Majority Leader Harry Reid (D-Nev.) said, “If the Supreme Court will not protect women’s access to health care, then Democrats will. We will continue to fight to preserve women’s access to contraceptive coverage and keep bosses out of the examination room.”
Senate Minority Leader Mitch McConnell said, “[T]he Obama administration cannot trample on the religious freedoms that Americans hold dear.”
Senator Charles Schumer (D-NY), who introduced the RFRA in 1993, said his law “was not intended to extend the same protection to for-profit corporations, whose very purpose is to profit from the open market.”
Speaker of the House John Boehner (R-Ohio) said, “The mandate overturned today would have required for-profit companies to choose between violating their constitutionally-protected faith or paying crippling fines, which would have forced them to lay off employees or close their doors.”
House minority leader Nancy Pelosi (D-CA) said, “Although the Court restricted their ruling to ‘closely-held’ companies, this ruling will immediately affect the lives of millions of women across the country. Over 90 percent of America’s businesses are ‘closely-held,’ including such large employers as Koch Industries and Bechtel.Women should not be forced to jump through extra hoops to secure the fundamental health care they need. Allowing employers and CEOs to limit the health care available to employees is a gross violation of their workers’ religious rights. It’s just not her boss’ business.”
Senator Ted Cruz (R-Tex.) said, “Today’s victory in the Hobby Lobby case is terrific news—but now is no time to rest. We cannot rely on the courts alone to defend our religious liberty.”
Senator Orrin Hatch (R-Utah) said, “I applaud the Supreme Court’s decision to protect the religious freedom of all Americans, both individually and collectively. The notion that religious freedom belongs only to some, and even then only in private, defies our nation’s traditions, our laws, and our Constitution. And as the Supreme Court rightfully said today, the Religious Freedom Restoration Act could not have been clearer in saying religious liberty of all Americans must be equally protected and not unnecessarily burdened.”
Rep. Michele Bachmann (R-Minn) said, “I am extremely encouraged by today’s Supreme Court decision to uphold the religious liberty rights of the Green family of Hobby Lobby.”
Cases following SCOTUS ruling
Forbes reported that following the ruling in Burwell v. Hobby Lobby, “the Supreme Court vacated the judgment against Eden Foods and sent the case back to the U.S. Court of Appeals for the Sixth Circuit for further consideration.”
Wheaton College order
On July 3, 2014, the Supreme Court granted a temporary exemption to the approach it suggested as a less restrictive alternative in Hobby Lobby, where the plaintiffs would send a form (EBSA Form 700) to its insurance issuer, which would pay for the contraception. In an unsigned emergency injunction for Wheaton College in Illinois, the court said that instead of notifying its insurance issuer, Wheaton can notify the government. Once notified, the government should notify the issuer. Wheaton believed that by transferring the obligation to cover contraceptives to its insurance issuer, it was triggering that obligation. The emergency injunction does not constitute a ruling on the merits of Wheaton’s religious objection. The court said “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.”
In a 15-page dissent joined by the other two women on the court, Justice Sotomayor criticized the majority’s reasoning: “Wheaton’s application comes nowhere near the high bar necessary to warrant an emergency injunction from this court…The court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”
In dueling commentaries between regular SCOTUSblog contributor Marty Lederman and co-founder Tom Goldstein, Lederman argued that only Form 700 can require an insurance provider to pay for contraception coverage. Goldstein argued that an existing regulation allows the government to specify an alternative to Form 700. He pointed out that “the Court didn’t accept Wheaton’s most aggressive argument” that it cannot be required to do anything. He said that Justice Kennedy’s concurrence is controlling and makes clear that the RFRA is not violated by requiring Wheaton to notify the government.
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Religious exemption from laws that apply to the general public
Although the court stated clearly that the decision is limited to the contraceptive mandate (Syllabus p. 4-5), the ruling is seen to have consequences extending far beyond contraception. Walter Dellinger, former acting solicitor general said, “for the first time, commercial enterprises could successfully claim religious exemptions from laws that govern everyone else.” Fifteen states had filed a brief arguing that businesses would be able to deny coverage for transfusions, stem cell treatments, and psychiatric care. In line with the dissenting opinion, The American Prospect asked, “[W]ill the taxpayers have to send a check to employees if employers feel that minimum wage laws violate their religious beliefs?”Jonathan Rauch, a senior fellow at the Brookings Institution, said that objections to paying health benefits for same-sex spouses will get traction. The National Gay and Lesbian Task Force (NGLT) and the National Center for Lesbian Rights withdrew their support for the Employment Non-Discrimination Act (ENDA) passed by the Senate, saying that its religious exemptions would allow companies to fire or refuse to hire LGBT workers in light of the Hobby Lobby ruling. NGLT executive director Rea Carey said, “We do not take this move lightly. We’ve been pushing for this bill for 20 years.”
Such concerns are focused on the court’s application of the federal RFRA law and were driven by national controversy over a state RFRA amendment bill in Arizona. Douglas Laycock, law professor at the University of Virginia, said, “The whole secular left has decided” that RFRA laws “are very dangerous because they care so much more about the contraception cases and gay rights.” He said RFRA laws are mischaracterized because they do not dictate outcomes favoring religious objectors, they only require courts to use the highest standard of scrutiny on any law challenged. Mark Kernes, Senior Editor and Chief Legal Analyst forAVN magazine stated in an op-ed piece, “If the Hobby Lobby decision supports the ‘right’ of companies not to make available birth control that will prevent women from “catching” a pregnancy, what’s to keep those same religious companies from arguing that providing access to PrEP drugs like Truvada, which help prevent gays (and, admittedly, everyone) from catching HIV shouldn’t similarly be excluded from their health plans?”
Imposition of religious beliefs onto others
Marcia Greenberger, co-president of the National Women’s Law Center, said that the Supreme Court has never ruled that companies have religious beliefs and that “it has never held that religious exercise provides a license to harm others, or violate the rights of third parties.” Louise Melling, ACLU deputy legal director, said religious freedom “gives us all the right to hold our beliefs, but it doesn’t give you the right to impose your beliefs on others, to discriminate against others.” The editorial board of The New York Times wrote that the decision “swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.” A Fox News columnist wrote, “[W]ith all of the debate about the religious beliefs of the Hobby Lobby owners, what about the religious beliefs of their employees? They are just as important, and should not be trampled upon.”The director of the United Church of Christ’s Washington, D.C. office, said that the ruling “may embolden private employers to claim religious objections to particular health care services, in effect forcing their own religious views upon their employees.” Former Secretary of State Hillary Clinton said, “It’s the first time that our court has said that a closely-held corporation has the rights of a person when it comes to religious freedom, which means that the…corporation’s employers can impose their religious beliefs on their employees.” The Center for American Progress said that the ruling “moves in the direction this court has been moving already, which is talking about corporate personhood—really treating corporations like people, saying that the corporation has a religion itself and that should be imposed on its employees.”Interfaith Alliance leader Rev. Welton Gaddy said, “The First Amendment is at its best when it is used to protect the rights of minorities from the whims of the powerful. Today’s decision, which gives the powerful the right to force their religious beliefs on those around them, is a far cry from the best traditions of religious freedom.”
Scholars on the other side (including some on the left) disagree, arguing that companies owned and run by liberals will likewise benefit from the freedom to operate according to their conscience or values – which has not been viewed as “imposing” views, because people routinely choose whom to associate with based on philosophical compatibility. This debate reflects a larger recurring ideological issue over what constitutes “coercion” or “imposing” – e.g., whether burdens imposed by law onto employers are better or worse than burdens imposed by employers on employees.
The New York Times editor Dorothy J. Samuels wrote, “If owners indicate that they are not entirely separate from their corporation—by denying corporation employees’ birth control coverage based on their personal religious beliefs—the case could be made in future state-court litigation that they have waived their right to be shielded from responsibility for corporate financial liabilities.” The dean of the UC Irvine School of LawErwin Chemerinsky said, “The liabilities of the corporation are not attributed to the owners, so why should the owners be able to attribute their beliefs to the company?” Samuels leaves her readers with an adage: “Be careful what you wish for.” Several legal scholars wrote an amicus brief to the Supreme Court for this case arguing this danger, while scholars on the other side counter that incorporated non-profit organizations enjoy liability protection despite their activities based on religious or other values/conscience-based causes.
The RFRA was held unconstitutional as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress’s enforcement power. However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal—because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores, some individual states passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.
The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.” Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest.
This tipi is used for Peyote ceremonies in the Native American Church, one of the main religions affected by the Religious Freedom Restoration Act
The Religious Freedom Restoration Act applies to all religions, but is most pertinent[dubious– discuss] to Native American religions that are burdened by increasing expansion of government projects onto sacred land. In Native American religion the land they worship on is very important. Often the particular ceremonies can only take place in certain locations because these locations have special significance. This, along with peyote use, are the main parts of Native American religions that are often left unprotected.
The Free Exercise Clause of the First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion. In the 1960s, the Supreme Court interpreted this as banning laws that burdened a person’s exercise of religion (e.g.Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972)). But in the 1980s the Court began to allow legislation that incidentally prohibited religiously mandatory activities as long as the ban was “generally applicable” to all citizens. Also, the American Indian Religious Freedom Act, intended to protect the freedoms of tribal religions, was lacking enforcement. This led to the key cases leading up to the RFRA, which were Lyng v. Northwest Indian Cemetery Protective Association (1988) and Employment Division v. Smith, 494 U.S. 872 (1990). In Lyng, the Court was unfavorable to sacred land rights. Members of the Yurok, Tolowa and Karok tribes tried to use the First Amendment to prevent a road from being built by the U.S. Forest Service through sacred land. The land that the road would go through consisted of gathering sites for natural resources used in ceremonies and praying sites. The Supreme Court ruled that this was not an adequate legal burden because the government was not coercing or punishing them for their religious beliefs. In Smith the Court upheld the state of Oregon‘s refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony. Peyote use has been a common practice in Native American tribes for centuries. It was integrated with Christianity into what is now known as the Native American Church.
The RFRA applies “to all Federal law, and the implementation of that law, whether statutory or otherwise”, including any Federal statutory law adopted after the RFRA’s date of signing “unless such law explicitly excludes such application.”
Challenges and weaknesses
The Peyote cactus, the source of the peyote used by Native Americans in religious ceremonies.
The Act was amended in 2003 to only include the federal government and its entities, such as Puerto Rico and the District of Columbia. A number of states have passed state RFRAs, applying the rule to the laws of their own state, but the Smith case remains the authority in these matters in many states.
The constitutionality of RFRA as applied to the federal government was confirmed on February 21, 2006, as the Supreme Court ruled against the government inGonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.418 (2006), which involved the use of an otherwise illegal substance in a religious ceremony, stating that the federal government must show a compelling state interest in restricting religious conduct.
Post-Smith, many members of the Native American Church still had issues using peyote in their ceremonies. This led to the Religious Freedom Act Amendments in 1994, which state, “the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremony purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation.”
Applications and effects
The Religious Freedom Restoration Act holds the federal government responsible for accepting additional obligations to protect religious exercise. In O’Bryan v. Bureau of Prisons it was found that the RFRA governs the actions of federal officers and agencies and that the RFRA can be applied to “internal operations of the federal government.” RFRA, in conjunction with President Bill Clinton‘s Executive Order in 1996, provided more security for sacred sites for Native American religious rites.
As of 1996, the year before the RFRA was found unconstitutional as applied to states, 337 cases had cited RFRA in its three year time range. It was also found that Jewish, Muslim, and Native American religions, which make up only three percent of religious membership in the U.S., make up 18 percent of the cases involving the free exercise of religion. The Religious Freedom Restoration Act was a cornerstone for tribes challenging the National Forest Service’s plans to permit upgrades to Snow Bowl Ski Resort. Six tribes were involved, including the Navajo, Hopi, Havasupai, and Hualapai. The tribes objected on religious grounds to the plans to use reclaimed water. They felt that this risked infecting the tribal members with “ghost sickness” as the water would be from mortuaries and hospitals. They also felt that the reclaimed water would contaminate the plant life used in ceremonies. In August 2008, the Ninth Circuit Court of Appeals rejected their RFRA claim.
In the case of Adams v. Commissioner, the United States Tax Court rejected the argument of Priscilla M. Lippincott Adams, who was a devout Quaker. She tried to argue that under the Religious Freedom Restoration Act of 1993, she was exempt from federal income taxes. The U.S. Tax Court rejected her argument and ruled that she was not exempt. The Court stated: “…while petitioner’s religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest.” In the case of Miller v. Commissioner, the taxpayers objected to the use of social security numbers, arguing that such numbers related to the “mark of the beast” from the Bible. In its decision, the U.S. Court discussed the applicability of the Religious Freedom Restoration Act of 1993, but ruled against the taxpayers.
The RFRA figured prominently in oral arguments in the case, Burwell v. Hobby Lobby, heard by the Supreme Court on March 25, 2014. In a 5-4 decision, Justice Alito stated, that the RFRA did not just restore the law as before Smith but contains a new regulation that allows to opt out of federal law based on religious beliefs.
A day-long symposium was held at the Newseum in Washington, D.C., on Nov. 7, 2013, to commemorate the 20th anniversary of the Religious Freedom Restoration Act. “Restored or Endangered? The State of the Free Exercise of Religion in America” featured three panel discussions and two keynote addresses.
The first keynote address was from Oliver S. Thomas, the former general counsel of the Baptist Joint Committee for Religious Liberty and the chair of the diverse “Coalition for the Free Exercise of Religion” in the 1990s that worked for the passage of RFRA. The second was from Douglas Laycock, who was an author of RFRA. His address traced the legal history of RFRA and discussed its impact on current debates, including the contraception mandate and same-sex marriage laws.
The panel discussions covered the history and impact of RFRA, religious freedom and the contraceptive mandate of the Affordable Care Act, and current and future challenges to the free exercise of religion in a diverse society. The addresses and panel discussions are all available online, as well as a special downloadable resource with more on RFRA, published by the Baptist Joint Committee.
In Everson v. Board of Education (1947), the Court drew on Founding FatherThomas Jefferson‘s correspondence to call for “a wall of separation between church and State”, though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” Eight of the other thirteen states made similar pledges. However, these declarations were generally considered “mere admonitions to state legislatures”, rather than enforceable provisions.
After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia’s Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and that any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason’s proposal was defeated by a unanimous vote of the state delegations.
For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification (“Anti-Federalism”) was partly based on the Constitution’s lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the 1st United States Congress, following the state legislatures’ request, James Madison proposed twenty constitutional amendments, which were then condensed to twelve and forwarded to the states. Ten of these were ratified and became the Bill of Rights. The First Amendment passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment’s intent. The First Amendment (along with the rest of the Bill of Rights) was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
In Reynolds v. United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order.” Quoting from Jefferson’s Virginia Statute for Religious Freedom the court stated further in Reynolds:
In the preamble of this act […] religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what properly belongs to the church and what to the State.
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another … in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’ … That wall must be kept high and impregnable. We could not approve the slightest breach.
U.S. President Thomas Jeffersonwrote in his correspondence of “a wall of separation between church and State”.
Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of PresidentThomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States in 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a “great barrier.”
Justice Hugo Black adopted Jefferson’s words in the voice of the Court. The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be “less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities.”
Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:
the statute (or practice) lacked a secular purpose;
its principal or primary effect advanced nor inhibited religion; or
it fostered an excessive government entanglement with religion.
The Lemon test has been criticized by justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause.In Agostini v. Felton (1997), the entanglement prong of the Lemon test was demoted to simply being a factor in determining the effect of the challenged statute or practice. In Zelman v. Simmons-Harris (2002), the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test. Further tests, such as the endorsement test and coercion test, have been developed to determine the whether a government action violated the Establishment Clause.
In Lemon the Court stated that that the separation of church and state could never be absolute: “Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable,” the court wrote. “Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”
Accommodationists, in contrast, argue along with Justice William O. Douglas that “[w]e are a religious people whose institutions presuppose a Supreme Being”.This group holds that the Lemon test should be applied selectively. As such, for many conservatives, the Establishment Clause solely prevents the establishment of a state church, not public acknowledgements of God nor “developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government’s goals.”
“Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order,” In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (e.g., human sacrifices, and the Hindu practice of suttee). The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.” In Cantwell v. Connecticut (1940), the Court held that the Due Process Clause of the Fourteenth Amendmentapplied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute.
In Sherbert v. Verner (1963), the Supreme Court required states to meet the “strict scrutiny” standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a “compelling interest” regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. In Wisconsin v. Yoder (1972), the Court ruled that a law that “unduly burdens the practice of religion” without a compelling interest, even though it might be “neutral on its face,” would be unconstitutional.
The need for a compelling interest was narrowed in Employment Division v. Smith (1990), which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice. In Church of Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as thekosher slaughter. Since the ordinance was not “generally applicable,” the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.
In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), seeking to restore the compelling interest requirement applied in Sherbert andYoder. In City of Boerne v. Flores (1997), the Court struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by the First Amendment, on the grounds that while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities. According to the court’s ruling in Gonzales v. UDV (2006), RFRA remains applicable to federal laws and so those laws must still have a “compelling interest”.
Story 1: Become A Hardliner and Stand Against Iranian Regime and With The Iranian People — Oppose Obama’s Agreement With The Iranian Terrorist Mullahs — Islamic Republic of Iran — Stop Nuclear Proliferation in The Middle East — Raise The Economic Sanctions To Overthrow Iranian Regime — Videos
Iran Nuclear Site: Natanz Uranium Enrichment Site
The Day After (Attack Segment)
The Frightening Reality of EMP: A Fox News Primer
JEANINE PIRRO: “Lights Out: The Danger to US Power Grid” – The EMP Threat
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Could EMP attack Send America Back to ‘Dark Ages’? [PART 2]
Petraeus: ISIS Isn’t Our Biggest Problem in Iraq…Iran Is
What are Iran’s True Intentions: Walid Phares
As the Obama Administration continues to move forward negotiating with Iran, there has been little attention paid to the underlying motivations of the Islamic Republic of Iran. What is the Iranian end game? What are the ideological motivators of the Islamic regime in its conflict with the United States of America and Israel? Are the genocidal threats issued by Iranian leaders to”wipe Israel off the map” and achieve a “world without America” only posturing? Or are these goals the Iranian regime is committed to achieving?
EMET and the Center for Security Policy have put together a great panel of experts to address these questions and answer, what are Iran’s true intentions?
Dr. Walid Phares serves as an Advisor to the Anti-Terrorism Caucus in the US House of Representatives and is a Co-Secretary General of the Transatlantic Legislative Group on Counter Terrorism, a Euro-American Caucus, since 2009. Dr Phares briefs and testify to the US Congress, the European Parliament and the United Nations Security Council on matters related to international security and Middle East conflict. He has served on the Advisory Board of the Task Force on Future Terrorism of the Department of Homeland Security and the Advisory Task force on Nuclear Terrorism. Dr Phares teaches Global Strategies at the National Defense University. He has published several books in English, Arabic and French including the latest three post-9/11 volumes: Future Jihad: Terrorist Strategies against the West; The War of Ideas: Jihadism against Democracy and The Confrontation: Winning the War against Future Jihad.
Dr. Walid Phares on Hannity on Fox News
Iranium – The Islamic Republic’s Race to Obtain Nuclear Weapons
John Bolton: Reasons to thwart Kerry’s deal on Iran (& N. Korea) nuclear weapons
Inside Iran’s Nuclear Weapons Plan
Iran Nuclear Talks’ Progress Unclear
Iran’s Fight For Nuclear Power
How Powerful Is Iran?
New Tensions Between White House & Israel PM – Benjamin Netanyahu – The Kelly File
Bill O’Reilly: Iraq War ‘Was a Victory Until Obama Mucked It Up’
Obama vs Netanyahu “Negotiating with Mullahs”
Netanyahu’s Address – Mark Levin & Lt Col Ralph Peters Weigh In – Hannity
Ezekiel 38 : Saudi Arabia will allow Israel use of its airspace to strike Iran (Feb 28, 2015)
What Countries Have Nuclear Weapons?
Thomas Reed: A Political History of Nuclear Weapons: 1938 – 2008
Obama’s Message To Iran On Diplomatic Deal
Benjamin Netanyahu on Kelly File – Post Election Interview
Linda Chavez – Iranian Regime, A threat to the World
Obama tells Netanyahu U.S. to “reassess” policy on Israel, Mideast diplomacy
Netanyahu: Deal Paves Iran’s “Path” To Bomb – The Kelly File
Is the far left appeasing the Iranian mullahs?
Israeli PM Netanyahu Addresses U.S. Congress | FULL SPEECH – March 3, 2015
President Obama: Benjamin Netanyahu and I Have Difference on Iran Sanctions
John Bolton: Obama giving Iran “an open path to nuclear weapons”
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Iran ,Islamic Republic ,Tehran , Green Revolution !
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outstanding Explanation: Why Israel can’t withdraw to its pre ’67 borders line – Please Share
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Barack Obama Speech on North Korea Nuclear Weapons
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IS is a symptom of a deep feeling amongst Sunni Arabs of being disenfranchised. […] It is the same sentiment that led to the emergence of Al-Qaeda.”
Professor Bernard Haykel of Princeton University’s Department of Near Eastern Studies elaborates on the root causes for the rise of the Islamic State, as a movement responding to the systemic disenfranchisement of Sunnis in the region.
Professor Haykel also explains why IS surpassed Al Qaeda in popularity and why the Arabian Peninsula has so vigorously supported U.S.- led airstrikes against IS.
Talking to War and Peace Talk, Professor Haykel responded to questions such as:
Why do people from the West join the Islamic State?
Why do the recruits burn their passports?
Should Western governments withdraw citizenship from jihadis?
What should be done about returning jihadis?
Can they be de-radicalized?
The interview was recorded in Amsterdam on November 14, 2014.
The Folly of Bombing the Islamic State
Killing Al-Baghdadi: the end of the Caliphate or part of the narrative?
SIS Tilting the Chess Board: The Dawn of a New Middle East Balance of Power – H. van Lynden lecture
The Henriette van Lynden lecture ‘ISIS Tilting the Chess Board: The Dawn of a New Middle East Balance of Power’, organised by the Netherlands Ministry of Foreign Affairs, was held on Friday, 14 November 2014 in de Rode Hoed, Amsterdam.
The rise of ISIS as a failure of governance & the need for a broader response than CT-policy, by Ms. Mina al-Oraibi [0:6:36]
Links of ISIS ideology to Saudi Arabia’s wahabism and policy options by Prof. Bernard Haykel [0:19:52]
Iran’s interests and vision in the fight against ISIS by Dr. Ali Vaez [0:35:44]
Panel discussion moderated by Ernesto Braam [0:50:20]
Audience Q&A [1:05:25]
Ms. Mina al-Oraibi
Born in Iraq, she is the deputy editor-in-chief of prominent Arab newspaper Asharq Al-Awsat. She is an expert on transitions in the Arab region and American military doctrine. She regularly speaks with heads of state in the Middle East.
Prof. Bernard Haykel
Professor of Middle Eastern studies at Princeton University, specialised in Saudi Arabia and the wider Gulf region. In addition, he is an Islam expert who focuses on Salafi movements and the roots of ISIS ideology. Particularly noteworthy is his contribution to the leading bestseller ‘Global Salafism’.
Dr. Ali Vaez
As an expert on Iran at the International Crisis Group in Washington D.C., he is a sought-after speaker on Iran’s influence in the region. He regularly appears on BBC and CNN, and publishes in Foreign Policy and the International Herald Tribune, among others.
Genieve Abdo and Bernard Haykel – “Understanding the Complexities of Sunni — Shi’a Relations”
Rising Sunni-Shiite violence threatens security in Iraq
Clifford Chanin interviews Professor Bernard Haykel part 1
Clifford Chanin interviews Professor Bernard Haykel part 2
Clifford Chanin interviews Professor Bernard Haykel part 3
Clifford Chanin interviews Professor Bernard Haykel part 4
Clifford Chanin interviews Professor Bernard Haykel part 5
Clifford Chanin interviews Professor Bernard Haykel part 6
Clifford Chanin interviews Professor Bernard Haykel part 7
Christiane Amanpour interviews Princeton Professor Bernard Haykel on Yemen
Bernard Haykel: Saudi Arabia’s Royal Family and the State
Bernard Haykel: Saudi Arabia’s Relationship with the U.S.
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Kris Kobach sounds off on allowing non-citizens to vote
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