Malzberg | Sharyl Attkisson to discuss her new book “Stonewalled” | Part 2
Wyden: No to warrantless searches by the FBI through National Security Letters
NSA Whistleblower: Everyone in US under virtual surveillance, all info stored, no matter the post
William Binney – The Government is Profiling You (The NSA is Spying on You)
NSA Surveillance and What To Do About It
Taking a Look at the NSA’s Massive Data Center
NSA’s Largest Spy Center Located in Utah (What you need to know)
NSA Whistleblower William Binney: The Future of FREEDOM
‘State of Surveillance’ with Edward Snowden and Shane Smith (FULL EPISODE)
Edward Snowden Full Interview on Trump, Petraeus, & Having ‘No Regrets’
DOCUMENTARY: Edward Snowden – Terminal F (2015)
NSA whistleblower Edward Snowden: ‘I don’t want to live in a society that does these sort of things’
NSA paying US Companies hundreds of millions of dollars for access to data
“You’re Being Watched”: Edward Snowden Emerges as Source Behind Explosive Revelations of NSA Spying
Does the NSA Record Phone Calls? Glenn Greenwald on Warrentless Domestic Surveillance (2007)
Published on Jul 8, 2013
The NSA warrantless surveillance controversy (AKA “Warrantless Wiretapping”) concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the “terrorist surveillance program”, part of the broader President’s Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (Web, e-mail, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. Critics, however, claimed that it was in an effort to attempt to silence critics of the Bush Administration and their handling of several hot button issues during its tenure. Under public pressure, the Bush administration ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court. Subsequently, in 2008 Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISA court requirements.
During the Obama Administration, the NSA has officially continued operating under the new FISA guidelines. However, in April 2009 officials at the United States Department of Justice acknowledged that the NSA had engaged in “overcollection” of domestic communications in excess of the FISA court’s authority, but claimed that the acts were unintentional and had since been rectified.
All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental” “glitch” resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.
The exact scope of the program is not known, but the NSA is or was provided total, unsupervised access to all fiber-optic communications going between some of the nation’s largest telecommunication companies’ major interconnected locations, including phone conversations, email, web browsing, and corporate private network traffic. Critics said that such “domestic” intercepts required FISC authorization under the Foreign Intelligence Surveillance Act. The Bush administration maintained that the authorized intercepts are not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF). FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both. In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.
After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence. The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon-Papers-style court injunction to block its publication. Critics of The Times have alleged that executive editor Bill Keller had withheld the story from publication since before the 2004 Presidential election, and that the story that was ultimately published by The Times was essentially the same as reporters James Risen and Eric Lichtblau had submitted in 2004. In a December 2008 interview with Newsweek, former Justice Department employee Thomas Tamm revealed himself to be the initial whistle-blower to The Times. The FBI began investigating leaks about the program in 2005, with 25 agents and 5 prosecutors on the case.
FBI’s Patriot Act Abuse of National Security Letters and illegal NSA spying
If you think you can handle the truth, well here it is folks
NSA surveillance has been a matter of political controversy on several occasions, such as its spying on anti-Vietnam-war leaders or economic espionage. In 2013, the extent of some of the NSA’s secret surveillance programs was revealed to the public by Edward Snowden. According to the leaked documents, the NSA intercepts the communications of over a billion people worldwide, many of whom are United States citizens, and tracks the movement of hundreds of millions of people using cellphones. Internationally, research has pointed to the NSA’s ability to surveil the domestic Internet traffic of foreign countries through “boomerang routing”.
The origins of the National Security Agency can be traced back to April 28, 1917, three weeks after the U.S. Congress declared war on Germany in World War I. A code and cipher decryption unit was established as the Cable and Telegraph Section which was also known as the Cipher Bureau. It was headquartered in Washington, D.C. and was part of the war effort under the executive branch without direct Congressional authorization. During the course of the war it was relocated in the army’s organizational chart several times. On July 5, 1917, Herbert O. Yardley was assigned to head the unit. At that point, the unit consisted of Yardley and two civilian clerks. It absorbed the navy’s cryptoanalysis functions in July 1918. World War I ended on November 11, 1918, and MI-8 moved to New York City on May 20, 1919, where it continued intelligence activities as the Code Compilation Company under the direction of Yardley.
Western Union allowed MI-8 to monitor telegraphic communications passing through the company’s wires until 1929.
Other “Black Chambers” were also found in Europe. They were established by the French and British governments to read the letters of targeted individuals, employing a variety of techniques to surreptitiously open, copy, and reseal correspondence before forwarding it to unsuspecting recipients.
Despite the American Black Chamber’s initial successes, it was shut down in 1929 by U.S. Secretary of State Henry L. Stimson, who defended his decision by stating: “Gentlemen do not read each other’s mail”.
World War II and its aftermath
During World War II, the Signal Security Agency (SSA) was created to intercept and decipher the communications of the Axis powers. When the war ended, the SSA was reorganized as the Army Security Agency (ASA), and it was placed under the leadership of the Director of Military Intelligence.
A secret operation, code-named “MINARET“, was set up by the NSA to monitor the phone communications of Senators Frank Church and Howard Baker, as well as major civil rights leaders, including Martin Luther King, Jr., and prominent U.S. journalists and athletes who criticized the Vietnam War. However, the project turned out to be controversial, and an internal review by the NSA concluded that its Minaret program was “disreputable if not outright illegal”.
The NSA mounted a major effort to secure tactical communications among U.S. forces during the war with mixed success. The NESTOR family of compatible secure voice systems it developed was widely deployed during the Vietnam War, with about 30,000 NESTOR sets produced. However a variety of technical and operational problems limited their use, allowing the North Vietnamese to exploit intercepted U.S. communications.:Vol I, p.79
In the aftermath of the Watergate scandal, a congressional hearing in 1975 led by Sen. Frank Church revealed that the NSA, in collaboration with Britain’s SIGINT intelligence agency Government Communications Headquarters (GCHQ), had routinely intercepted the international communications of prominent anti-Vietnam war leaders such as Jane Fonda and Dr. Benjamin Spock. Following the resignation of President Richard Nixon, there were several investigations of suspected misuse of FBI, CIA and NSA facilities. Senator Frank Church uncovered previously unknown activity,such as a CIA plot (ordered by the administration of President John F. Kennedy) to assassinate Fidel Castro. The investigation also uncovered NSA’s wiretaps on targeted American citizens.
In 1999, a multi-year investigation by the European Parliament highlighted the NSA’s role in economic espionage in a report entitled ‘Development of Surveillance Technology and Risk of Abuse of Economic Information’. That year, the NSA founded the NSA Hall of Honor, a memorial at the National Cryptologic Museum in Fort Meade, Maryland. The memorial is a, “tribute to the pioneers and heroes who have made significant and long-lasting contributions to American cryptology”. NSA employees must be retired for more than fifteen years to qualify for the memorial.
NSA’s infrastructure deteriorated in the 1990s as defense budget cuts resulted in maintenance deferrals. On January 24, 2000, NSA headquarters suffered a total network outage for three days caused by an overloaded network. Incoming traffic was successfully stored on agency servers, but it could not be directed and processed. The agency carried out emergency repairs at a cost of $3 million to get the system running again. (Some incoming traffic was also directed instead to Britain’s GCHQ for the time being.) Director Michael Hayden called the outage a “wake-up call” for the need to invest in the agency’s infrastructure.
In the aftermath of the September 11 attacks, the NSA created new IT systems to deal with the flood of information from new technologies like the Internet and cellphones. ThinThread contained advanced data mining capabilities. It also had a “privacy mechanism”; surveillance was stored encrypted; decryption required a warrant. The research done under this program may have contributed to the technology used in later systems. ThinThread was cancelled when Michael Hayden chose Trailblazer, which did not include ThinThread’s privacy system.
Trailblazer Project ramped up in 2002. SAIC, Boeing, CSC, IBM, and Litton worked on it. Some NSA whistleblowers complained internally about major problems surrounding Trailblazer. This led to investigations by Congress and the NSA and DoD Inspectors General. The project was cancelled in early 2004. Several whistleblowers were later arrested and charged with violating federal espionage laws.
Turbulence started in 2005. It was developed in small, inexpensive “test” pieces, rather than one grand plan like Trailblazer. It also included offensive cyber-warfare capabilities, like injecting malware into remote computers. Congress criticized Turbulence in 2007 for having similar bureaucratic problems as Trailblazer. It was to be a realization of information processing at higher speeds in cyberspace.
The massive extent of the NSA’s spying, both foreign and domestic, was revealed to the public in a series of detailed disclosures of internal NSA documents beginning in June 2013. Most of the disclosures were leaked by former NSA contractor, Edward Snowden.
Scope of surveillance
It was revealed that the NSA intercepts telephone and Internet communications of over a billion people worldwide, seeking information on terrorism as well as foreign politics, economics and “commercial secrets”. In a declassified document it was revealed that 17,835 phone lines were on an improperly permitted “alert list” from 2006 to 2009 in breach of compliance, which tagged these phone lines for daily monitoring. Eleven percent of these monitored phone lines met the agency’s legal standard for “reasonably articulable suspicion” (RAS).
A dedicated unit of the NSA locates targets for the CIA for extrajudicial assassination in the Middle East. The NSA has also spied extensively on the European Union, the United Nations and numerous governments including allies and trading partners in Europe, South America and Asia.
The NSA tracks the locations of hundreds of millions of cellphones per day, allowing it to map people’s movements and relationships in detail.It reportedly has access to all communications made via Google, Microsoft, Facebook, Yahoo, YouTube, AOL, Skype, Apple and Paltalk, and collects hundreds of millions of contact lists from personal email and instant messaging accounts each year. It has also managed to weaken much of the encryption used on the Internet (by collaborating with, coercing or otherwise infiltrating numerous technology companies), so that the majority of Internet privacy is now vulnerable to the NSA and other attackers.
Domestically, the NSA collects and stores metadata records of phone calls, including over 120 million US Verizon subscribers, as well as Internet communications, relying on a secret interpretation of the Patriot Act whereby the entirety of US communications may be considered “relevant” to a terrorism investigation if it is expected that even a tiny minority may relate to terrorism. The NSA supplies foreign intercepts to the DEA, IRS and other law enforcement agencies, who use these to initiate criminal investigations. Federal agents are then instructed to “recreate” the investigative trail via parallel construction.
The NSA also spies on influential Muslims to obtain information that could be used to discredit them, such as their use of pornography. The targets, both domestic and abroad, are not suspected of any crime but hold religious or political views deemed “radical” by the NSA.
Although NSA’s surveillance activities are controversial, government agencies and private enterprises have common needs, and sometimes cooperate at subtle and complex technical levels. Big data is becoming more advantageous, justifying the cost of required computer hardware, and social media lead the trend. The interests of NSA and Silicon Valley began to converge as advances in computer storage technology drastically reduced the costs of storing enormous amounts of data and at the same time the value of the data for use in consumer marketing began to rise. On the other hand, social media sites are growing as voluntary data mining operations on a scale that rivals or exceeds anything the government could attempt on its own.
According to a report in The Washington Post in July 2014, relying on information provided by Snowden, 90% of those placed under surveillance in the U.S. are ordinary Americans, and are not the intended targets. The newspaper said it had examined documents including emails, text messages, and online accounts that support the claim.
Despite President Obama’s claims that these programs have congressional oversight, members of Congress were unaware of the existence of these NSA programs or the secret interpretation of the Patriot Act, and have consistently been denied access to basic information about them. Obama has also claimed that there are legal checks in place to prevent inappropriate access of data and that there have been no examples of abuse; however, the secret FISC court charged with regulating the NSA’s activities is, according to its chief judge, incapable of investigating or verifying how often the NSA breaks even its own secret rules. It has since been reported that the NSA violated its own rules on data access thousands of times a year, many of these violations involving large-scale data interceptions; and that NSA officers have even used data intercepts to spy on love interests. The NSA has “generally disregarded the special rules for disseminating United States person information” by illegally sharing its intercepts with other law enforcement agencies. A March 2009 opinion of the FISC court, released by court order, states that protocols restricting data queries had been “so frequently and systemically violated that it can be fairly said that this critical element of the overall … regime has never functioned effectively.” In 2011 the same court noted that the “volume and nature” of the NSA’s bulk foreign Internet intercepts was “fundamentally different from what the court had been led to believe”. Email contact lists (including those of US citizens) are collected at numerous foreign locations to work around the illegality of doing so on US soil.
Legal opinions on the NSA’s bulk collection program have differed. In mid-December 2013, U.S. District Court Judge Richard Leon ruled that the “almost-Orwellian” program likely violates the Constitution, and wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”
Later that month, U.S. District Judge William Pauley ruled that the NSA’s collection of telephone records is legal and valuable in the fight against terrorism. In his opinion, he wrote, “a bulk telephony metadata collection program [is] a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data” and noted that a similar collection of data prior to 9/11 might have prevented the attack.
An October 2014 United Nations report condemned mass surveillance by the United States and other countries as violating multiple international treaties and conventions that guarantee core privacy rights.
On March 20, 2013 the Director of National Intelligence, Lieutenant General James Clapper, testified before Congress that the NSA does not wittingly collect any kind of data on millions or hundreds of millions of Americans, but he retracted this in June after details of the PRISM program were published, and stated instead that meta-data of phone and Internet traffic are collected, but no actual message contents. This was corroborated by the NSA Director, General Keith Alexander, before it was revealed that the XKeyscore program collects the contents of millions of emails from US citizens without warrant, as well as “nearly everything a user does on the Internet”. Alexander later admitted that “content” is collected, but stated that it is simply stored and never analyzed or searched unless there is “a nexus to al-Qaida or other terrorist groups”.
Regarding the necessity of these NSA programs, Alexander stated on June 27 that the NSA’s bulk phone and Internet intercepts had been instrumental in preventing 54 terrorist “events”, including 13 in the US, and in all but one of these cases had provided the initial tip to “unravel the threat stream”. On July 31 NSA Deputy Director John Inglis conceded to the Senate that these intercepts had not been vital in stopping any terrorist attacks, but were “close” to vital in identifying and convicting four San Diego men for sending US$8,930 to Al-Shabaab, a militia that conducts terrorism in Somalia.
The U.S. government has aggressively sought to dismiss and challenge Fourth Amendment cases raised against it, and has granted retroactive immunity to ISPs and telecoms participating in domestic surveillance. The U.S. military has acknowledged blocking access to parts of The Guardian website for thousands of defense personnel across the country, and blocking the entire Guardian website for personnel stationed throughout Afghanistan, the Middle East, and South Asia.
NSA also has an Inspector General, head of the Office of the Inspector General (OIG), a General Counsel, head of the Office of the General Counsel (OGC) and a Director of Compliance, who is head of the Office of the Director of Compliance (ODOC).
Unlike other intelligence organizations such as CIA or DIA, NSA has always been particularly reticent concerning its internal organizational structure.
As of the mid-1990s, the National Security Agency was organized into five Directorates:
The Operations Directorate, which was responsible for SIGINT collection and processing.
The Technology and Systems Directorate, which develops new technologies for SIGINT collection and processing.
The Information Systems Security Directorate, which was responsible for NSA’s communications and information security missions.
The Plans, Policy and Programs Directorate, which provided staff support and general direction for the Agency.
The Support Services Directorate, which provided logistical and administrative support activities.
Each of these directorates consisted of several groups or elements, designated by a letter. There were for example the A Group, which was responsible for all SIGINT operations against the Soviet Union and Eastern Europe, and G Group, which was responsible for SIGINT related to all non-communist countries. These groups were divided in units designated by an additional number, like unit A5 for breaking Soviet codes, and G6, being the office for the Middle East, North Africa, Cuba, Central and South America.
As of 2013, NSA has about a dozen directorates, which are designated by a letter, although not all of them are publicly known. The directorates are divided in divisions and units starting with the letter of the parent directorate, followed by a number for the division, the sub-unit or a sub-sub-unit.
The main elements of the organizational structure of the NSA are:
F – Directorate only known from unit F6, the Special Collection Service (SCS), which is a joint program created by CIA and NSA in 1978 to facilitate clandestine activities such as bugging computers throughout the world, using the expertise of both agencies.
G – Directorate only known from unit G112, the office that manages the Senior Span platform, attached to the U2 spy planes.
I – Information Assurance Directorate (IAD), which ensures availability, integrity, authentication, confidentiality, and non-repudiation of national security and telecommunications and information systems (national security systems).
J – Directorate only known from unit J2, the Cryptologic Intelligence Unit
L – Installation and Logistics
M – Human Resources
Q – Security and Counterintelligence
R – Research Directorate, which conducts research on signals intelligence and on information assurance for the U.S. Government.
S – Signals Intelligence Directorate (SID), which is responsible for the collection, analysis, production and dissemination of signals intelligence. This directorate is led by a director and a deputy director. The SID consists of the following divisions:
S1 – Customer Relations
S2 – Analysis and Production Centers, with the following so-called Product Lines:
S2A: South Asia, S2B: China and Korea, S2C: International Security, S2E: Middle East/Asia, S2F: International Crime, S2G: Counter-proliferation, S2H: Russia, S2I: Counter-terrorism, S2J: Weapons and Space, S2T: Current Threats
S3 – Data Acquisition, with these divisions for the main collection programs:
S31 – Cryptanalysis and Exploitation Services (CES)
S32 – Tailored Access Operations (TAO), which hacks into foreign computers to conduct cyber-espionage and reportedly is “the largest and arguably the most important component of the NSA’s huge Signal Intelligence (SIGINT) Directorate, consisting of over 1,000 military and civilian computer hackers, intelligence analysts, targeting specialists, computer hardware and software designers, and electrical engineers.”
S33 – Global Access Operations (GAO), which is responsible for intercepts from satellites and other international SIGINT platforms. A tool which details and maps the information collected by this unit is code-named Boundless Informant.
S34 – Collections Strategies and Requirements Center
S35 – Special Source Operations (SSO), which is responsible for domestic and compartmented collection programs, like for example the PRISM program. Special Source Operations is also mentioned in connection to the FAIRVIEW collection program.
T – Technical Directorate (TD)
Directorate for Education and Training
Directorate for Corporate Leadership
Foreign Affairs Directorate, which acts as liaison with foreign intelligence services, counter-intelligence centers and the UKUSA-partners.
Acquisitions and Procurement Directorate
Information Sharing Services (ISS), led by a chief and a deputy chief.
In the year 2000, a leadership team was formed, consisting of the Director, the Deputy Director and the Directors of the Signals Intelligence (SID), the Information Assurance (IAD) and the Technical Directorate (TD). The chiefs of other main NSA divisions became associate directors of the senior leadership team.
After president George W. Bush initiated the President’s Surveillance Program (PSP) in 2001, the NSA created a 24-hour Metadata Analysis Center (MAC), followed in 2004 by the Advanced Analysis Division (AAD), with the mission of analyzing content, Internet metadata and telephone metadata. Both units were part of the Signals Intelligence Directorate.
A 2016 proposal would combine the Signals Intelligence Directorate with the Information Assurance Directorate into a Directorate of Operations.
The NSA maintains at least two watch centers:
National Security Operations Center (NSOC), which is the NSA’s current operations center and focal point for time-sensitive SIGINT reporting for the United States SIGINT System (USSS). This center was established in 1968 as the National SIGINT Watch Center (NSWC) and renamed into National SIGINT Operations Center (NSOC) in 1973. This “nerve center of the NSA” got its current name in 1996.
NSA/CSS Threat Operations Center (NTOC), which is the primary NSA/CSS partner for Department of Homeland Security response to cyber incidents. The NTOC establishes real-time network awareness and threat characterization capabilities to forecast, alert, and attribute malicious activity and enable the coordination of Computer Network Operations. The NTOC was established in 2004 as a joint Information Assurance and Signals Intelligence project.
The number of NSA employees is officially classified but there are several sources providing estimates. In 1961, NSA had 59,000 military and civilian employees, which grew to 93,067 in 1969, of which 19,300 worked at the headquarters at Fort Meade. In the early 1980s NSA had roughly 50,000 military and civilian personnel. By 1989 this number had grown again to 75,000, of which 25,000 worked at the NSA headquarters. Between 1990 and 1995 the NSA’s budget and workforce were cut by one third, which led to a substantial loss of experience.
In 2012, the NSA said more than 30,000 employees worked at Fort Meade and other facilities. In 2012, John C. Inglis, the deputy director, said that the total number of NSA employees is “somewhere between 37,000 and one billion” as a joke, and stated that the agency is “probably the biggest employer of introverts.” In 2013 Der Spiegel stated that the NSA had 40,000 employees. More widely, it has been described as the world’s largest single employer of mathematicians. Some NSA employees form part of the workforce of the National Reconnaissance Office (NRO), the agency that provides the NSA with satellite signals intelligence.
The NSA received criticism early on in 1960 after two agents had defected to the Soviet Union. Investigations by the House Un-American Activities Committee and a special subcommittee of the United States House Committee on Armed Services revealed severe cases of ignorance in personnel security regulations, prompting the former personnel director and the director of security to step down and leading to the adoption of stricter security practices. Nonetheless, security breaches reoccurred only a year later when in an issue of Izvestia of July 23, 1963, a former NSA employee published several cryptologic secrets.
The very same day, an NSA clerk-messenger committed suicide as ongoing investigations disclosed that he had sold secret information to the Soviets on a regular basis. The reluctance of Congressional houses to look into these affairs had prompted a journalist to write, “If a similar series of tragic blunders occurred in any ordinary agency of Government an aroused public would insist that those responsible be officially censured, demoted, or fired.” David Kahn criticized the NSA’s tactics of concealing its doings as smug and the Congress’ blind faith in the agency’s right-doing as shortsighted, and pointed out the necessity of surveillance by the Congress to prevent abuse of power.
Edward Snowden‘s leaking of the existence of PRISM in 2013 caused the NSA to institute a “two-man rule“, where two system administrators are required to be present when one accesses certain sensitive information. Snowden claims he suggested such a rule in 2009.
The NSA conducts polygraph tests of employees. For new employees, the tests are meant to discover enemy spies who are applying to the NSA and to uncover any information that could make an applicant pliant to coercion. As part of the latter, historically EPQs or “embarrassing personal questions” about sexual behavior had been included in the NSA polygraph. The NSA also conducts five-year periodic reinvestigation polygraphs of employees, focusing on counterintelligence programs. In addition the NSA conducts periodic polygraph investigations in order to find spies and leakers; those who refuse to take them may receive “termination of employment”, according to a 1982 memorandum from the director of the NSA.
NSA-produced video on the polygraph process
There are also “special access examination” polygraphs for employees who wish to work in highly sensitive areas, and those polygraphs cover counterintelligence questions and some questions about behavior. NSA’s brochure states that the average test length is between two and four hours. A 1983 report of the Office of Technology Assessment stated that “It appears that the NSA [National Security Agency] (and possibly CIA) use the polygraph not to determine deception or truthfulness per se, but as a technique of interrogation to encourage admissions.”Sometimes applicants in the polygraph process confess to committing felonies such as murder, rape, and selling of illegal drugs. Between 1974 and 1979, of the 20,511 job applicants who took polygraph tests, 695 (3.4%) confessed to previous felony crimes; almost all of those crimes had been undetected.
In 2010 the NSA produced a video explaining its polygraph process. The video, ten minutes long, is titled “The Truth About the Polygraph” and was posted to the Web site of the Defense Security Service. Jeff Stein of The Washington Post said that the video portrays “various applicants, or actors playing them — it’s not clear — describing everything bad they had heard about the test, the implication being that none of it is true.” AntiPolygraph.org argues that the NSA-produced video omits some information about the polygraph process; it produced a video responding to the NSA video. George Maschke, the founder of the Web site, accused the NSA polygraph video of being “Orwellian“.
After Edward Snowden revealed his identity in 2013, the NSA began requiring polygraphing of employees once per quarter.
The number of exemptions from legal requirements has been criticized. When in 1964 the Congress was hearing a bill giving the director of the NSA the power to fire at will any employee,The Washington Post wrote: “This is the very definition of arbitrariness. It means that an employee could be discharged and disgraced on the basis of anonymous allegations without the slightest opportunity to defend himself.” Yet, the bill was accepted by an overwhelming majority.
When the NSA was created, the agency had no emblem and used that of the Department of Defense. The agency adopted its first of two emblems in 1963. The current NSA insignia has been in use since 1965, when then-Director, LTG Marshall S. Carter (USA) ordered the creation of a device to represent the agency.
The NSA’s flag consists of the agency’s seal on a light blue background.
The National Security Agency/Central Security Service Cryptologic Memorial honors and remembers the fallen personnel, both military and civilian, of these intelligence missions. It is made of black granite, and has 171 names carved into it, as of 2013 . It is located at NSA headquarters. A tradition of declassifying the stories of the fallen was begun in 2001.
NSANet (NSA’s intranet)
Behind the Green Door – Secure communications room with separate computer terminals for access to SIPRNET, GWAN, NSANET, and JWICS
NSANet stands for National Security Agency Network and is the official NSA intranet. It is a classified network, for information up to the level of TS/SCI to support the use and sharing of intelligence data between NSA and the signals intelligence agencies of the four other nations of the Five Eyes partnership. The management of NSANet has been delegated to the Central Security Service Texas (CSSTEXAS).
NSANet is a highly secured computer network consisting of fiber-optic and satellite communication channels which are almost completely separated from the public Internet. The network allows NSA personnel and civilian and military intelligence analysts anywhere in the world to have access to the agency’s systems and databases. This access is tightly controlled and monitored. For example, every keystroke is logged, activities are audited at random and downloading and printing of documents from NSANet are recorded.
In 1998, NSANet, along with NIPRNET and SIPRNET, had “significant problems with poor search capabilities, unorganized data and old information”. In 2004, the network was reported to have used over twenty commercial off-the-shelf operating systems. Some universities that do highly sensitive research are allowed to connect to it.
The thousands of Top Secret internal NSA documents that were taken by Edward Snowden in 2013 were stored in “a file-sharing location on the NSA’s intranet site” so they could easily be read online by NSA personnel. Everyone with a TS/SCI-clearance had access to these documents and as a system administrator, Snowden was responsible for moving accidentally misplaced highly sensitive documents to more secure storage locations.
National Computer Security Center
The DoD Computer Security Center was founded in 1981 and renamed the National Computer Security Center (NCSC) in 1985. NCSC was responsible for computer security throughout the federal government. NCSC was part of NSA, and during the late 1980s and the 1990s, NSA and NCSC published Trusted Computer System Evaluation Criteria in a six-foot high Rainbow Series of books that detailed trusted computing and network platform specifications. The Rainbow books were replaced by the Common Criteria, however, in the early 2000s.
National Security Agency headquarters in Fort Meade, 2013
Headquarters for the National Security Agency is located at 39°6′32″N76°46′17″W in Fort George G. Meade, Maryland, although it is separate from other compounds and agencies that are based within this same military installation. Ft. Meade is about 20 mi (32 km) southwest of Baltimore, and 25 mi (40 km) northeast of Washington, DC. The NSA has its own exit off Maryland Route 295 South labeled “NSA Employees Only”. The exit may only be used by people with the proper clearances, and security vehicles parked along the road guard the entrance.
NSA is the largest employer in the U.S. state of Maryland, and two-thirds of its personnel work at Ft. Meade. Built on 350 acres (140 ha; 0.55 sq mi) of Ft. Meade’s 5,000 acres (2,000 ha; 7.8 sq mi), the site has 1,300 buildings and an estimated 18,000 parking spaces.
The main NSA headquarters and operations building is what James Bamford, author of Body of Secrets, describes as “a modern boxy structure” that appears similar to “any stylish office building.” The building is covered with one-way dark glass, which is lined with copper shielding in order to prevent espionage by trapping in signals and sounds. It contains 3,000,000 square feet (280,000 m2), or more than 68 acres (28 ha), of floor space; Bamford said that the U.S. Capitol “could easily fit inside it four times over.”
The facility has over 100 watchposts, one of them being the visitor control center, a two-story area that serves as the entrance. At the entrance, a white pentagonal structure, visitor badges are issued to visitors and security clearances of employees are checked. The visitor center includes a painting of the NSA seal.
The OPS2A building, the tallest building in the NSA complex and the location of much of the agency’s operations directorate, is accessible from the visitor center. Bamford described it as a “dark glass Rubik’s Cube“. The facility’s “red corridor” houses non-security operations such as concessions and the drug store. The name refers to the “red badge” which is worn by someone without a security clearance. The NSA headquarters includes a cafeteria, a credit union, ticket counters for airlines and entertainment, a barbershop, and a bank. NSA headquarters has its own post office, fire department, and police force.
Due to massive amounts of data processing, NSA is the largest electricity consumer in Maryland.
Following a major power outage in 2000, in 2003 and in follow-ups through 2007, The Baltimore Sun reported that the NSA was at risk of electrical overload because of insufficient internal electrical infrastructure at Fort Meade to support the amount of equipment being installed. This problem was apparently recognized in the 1990s but not made a priority, and “now the agency’s ability to keep its operations going is threatened.”
Baltimore Gas & Electric (BGE, now Constellation Energy) provided NSA with 65 to 75 megawatts at Ft. Meade in 2007, and expected that an increase of 10 to 15 megawatts would be needed later that year. In 2011, NSA at Ft. Meade was Maryland’s largest consumer of power. In 2007, as BGE’s largest customer, NSA bought as much electricity as Annapolis, the capital city of Maryland.
One estimate put the potential for power consumption by the new Utah Data Center at US$40 million per year.
When the agency was established, its headquarters and cryptographic center were in the Naval Security Station in Washington, D.C. The COMINT functions were located in Arlington Hall in Northern Virginia, which served as the headquarters of the U.S. Army‘s cryptographic operations.Because the Soviet Union had detonated a nuclear bomb and because the facilities were crowded, the federal government wanted to move several agencies, including the AFSA/NSA. A planning committee considered Fort Knox, but Fort Meade, Maryland, was ultimately chosen as NSA headquarters because it was far enough away from Washington, D.C. in case of a nuclear strike and was close enough so its employees would not have to move their families.
Construction of additional buildings began after the agency occupied buildings at Ft. Meade in the late 1950s, which they soon outgrew. In 1963 the new headquarters building, nine stories tall, opened. NSA workers referred to the building as the “Headquarters Building” and since the NSA management occupied the top floor, workers used “Ninth Floor” to refer to their leaders. COMSEC remained in Washington, D.C., until its new building was completed in 1968. In September 1986, the Operations 2A and 2B buildings, both copper-shielded to prevent eavesdropping, opened with a dedication by President Ronald Reagan. The four NSA buildings became known as the “Big Four.” The NSA director moved to 2B when it opened.
On March 30, 2015, shortly before 9 am, a stolen sports utility vehicle approached an NSA police vehicle blocking the road near the gate of Fort Meade, after it was told to leave the area. NSA officers fired on the SUV, killing the 27-year-old driver, Ricky Hall (a transgender person also known as Mya), and seriously injuring his 20-year-old male passenger. An NSA officer’s arm was injured when Hall subsequently crashed into his vehicle.
The two, dressed in women’s clothing after a night of partying at a motel with the man they’d stolen the SUV from that morning, “attempted to drive a vehicle into the National Security Agency portion of the installation without authorization”, according to an NSA statement. FBI spokeswoman Amy Thoreson said the incident is not believed to be related to terrorism.In June 2015 the FBI closed its investigation into the incident and federal prosecutors have declined to bring charges against anyone involved.
An anonymous police official told The Washington Post, “This was not a deliberate attempt to breach the security of NSA. This was not a planned attack.” The two are believed to have made a wrong turn off the highway, while fleeing from the motel after stealing the vehicle. A small amount of cocaine was found in the SUV. A local CBS reporter initially said a gun was found,but her later revision does not. Dozens of journalists were corralled into a parking lot blocks away from the scene, and were barred from photographing the area.
NSA held a groundbreaking ceremony at Ft. Meade in May 2013 for its High Performance Computing Center 2, expected to open in 2016. Called Site M, the center has a 150 megawatt power substation, 14 administrative buildings and 10 parking garages. It cost $3.2 billion and covers 227 acres (92 ha; 0.355 sq mi). The center is 1,800,000 square feet (17 ha; 0.065 sq mi) and initially uses 60 megawatts of electricity.
On January 6, 2011 a groundbreaking ceremony was held to begin construction on NSA’s first Comprehensive National Cyber-security Initiative (CNCI) Data Center, known as the “Utah Data Center” for short. The $1.5B data center is being built at Camp Williams, Utah, located 25 miles (40 km) south of Salt Lake City, and will help support the agency’s National Cyber-security Initiative. It is expected to be operational by September 2013.
In 2009, to protect its assets and to access more electricity, NSA sought to decentralize and expand its existing facilities in Ft. Meade and Menwith Hill, the latter expansion expected to be completed by 2015.
NSA operates RAF Menwith Hill in North Yorkshire, United Kingdom, which was, according to BBC News in 2007, the largest electronic monitoring station in the world. Planned in 1954, and opened in 1960, the base covered 562 acres (227 ha; 0.878 sq mi) in 1999.
The agency’s European Cryptologic Center (ECC), with 240 employees in 2011, is headquartered at a US military compound in Griesheim, near Frankfurt in Germany. A 2011 NSA report indicates that the ECC is responsible for the “largest analysis and productivity in Europe” and focusses on various priorities, including Africa, Europe, the Middle East and counterterrorism operations.
Thailand is a “3rd party partner” of the NSA along with nine other nations. These are non-English-speaking countries that have made security agreements for the exchange of SIGINT raw material and end product reports.
Thailand is the site of at least two US SIGINT collection stations. One is at the US Embassy in Bangkok, a joint NSA-CIA Special Collection Service (SCS) unit. It presumably eavesdrops on foreign embassies, governmental communications, and other targets of opportunity.
The second installation is a FORNSAT (foreign satellite interception) station in the Thai city of Khon Kaen. It is codenamed INDRA, but has also been referred to as LEMONWOOD. The station is approximately 40 ha (100 acres) in size and consists of a large 3,700–4,600 m2 (40,000–50,000 ft2) operations building on the west side of the ops compound and four radome-enclosed parabolic antennas. Possibly two of the radome-enclosed antennas are used for SATCOM intercept and two antennas used for relaying the intercepted material back to NSA. There is also a PUSHER-type circularly-disposed antenna array (CDAA) array just north of the ops compound.
NSA activated Khon Kaen in October 1979. Its mission was to eavesdrop on the radio traffic of Chinese army and air force units in southern China, especially in and around the city of Kunming in Yunnan Province. Back in the late 1970s the base consisted only of a small CDAA antenna array that was remote-controlled via satellite from the NSA listening post at Kunia, Hawaii, and a small force of civilian contractors from Bendix Field Engineering Corp. whose job it was to keep the antenna array and satellite relay facilities up and running 24/7.
According to the papers of the late General William Odom, the INDRA facility was upgraded in 1986 with a new British-made PUSHER CDAA antenna as part of an overall upgrade of NSA and Thai SIGINT facilities whose objective was to spy on the neighboring communist nations of Vietnam, Laos, and Cambodia.
The base apparently fell into disrepair in the 1990s as China and Vietnam became more friendly towards the US, and by 2002 archived satellite imagery showed that the PUSHER CDAA antenna had been torn down, perhaps indicating that the base had been closed. At some point in the period since 9/11, the Khon Kaen base was reactivated and expanded to include a sizeable SATCOM intercept mission. It is likely that the NSA presence at Khon Kaen is relatively small, and that most of the work is done by civilian contractors.
NSA’s eavesdropping mission includes radio broadcasting, both from various organizations and individuals, the Internet, telephone calls, and other intercepted forms of communication. Its secure communications mission includes military, diplomatic, and all other sensitive, confidential or secret government communications.
According to the Washington Post, “[e]very day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications. The NSA sorts a fraction of those into 70 separate databases.”
As part of the National Security Presidential Directive 54/Homeland Security Presidential Directive 23 (NSPD 54), signed on January 8, 2008 by President Bush, the NSA became the lead agency to monitor and protect all of the federal government’s computer networks from cyber-terrorism.
Operations by the National Security Agency can be divided in three types:
Collection overseas, which falls under the responsibility of the Global Access Operations (GAO) division.
During the early 1970s, the first of what became more than eight large satellite communications dishes were installed at Menwith Hill. Investigative journalist Duncan Campbell reported in 1988 on the ECHELON surveillance program, an extension of the UKUSA Agreement on global signals intelligence SIGINT, and detailed how the eavesdropping operations worked. In November 3, 1999 the BBC reported that they had confirmation from the Australian Government of the existence of a powerful “global spying network” code-named Echelon, that could “eavesdrop on every single phone call, fax or e-mail, anywhere on the planet” with Britain and the United States as the chief protagonists. They confirmed that Menwith Hill was “linked directly to the headquarters of the US National Security Agency (NSA) at Fort Meade in Maryland”.
NSA’s United States Signals Intelligence Directive 18 (USSID 18) strictly prohibited the interception or collection of information about “… U.S. persons, entities, corporations or organizations….” without explicit written legal permission from the United States Attorney General when the subject is located abroad, or the Foreign Intelligence Surveillance Court when within U.S. borders. Alleged Echelon-related activities, including its use for motives other than national security, including political and industrial espionage, received criticism from countries outside the UKUSA alliance.
The NSA is also involved in planning to blackmail people with “SEXINT“, intelligence gained about a potential target’s sexual activity and preferences. Those targeted had not committed any apparent crime nor were charged with one.
The Real Time Regional Gateway is a data collection program introduced in 2005 in Iraq by NSA during the Iraq War that consisted of gathering all electronic communication, storing it, then searching and otherwise analyzing it. It was effective in providing information about Iraqi insurgents who had eluded less comprehensive techniques. This “collect it all” strategy introduced by NSA director, Keith B. Alexander, is believed by Glenn Greenwald of The Guardian to be the model for the comprehensive worldwide mass archiving of communications which NSA is engaged in as of 2013.
Edward Snowden revealed in June 2013 that between February 8 and March 8, 2013, the NSA collected about 124.8 billion telephone data items and 97.1 billion computer data items throughout the world, as was displayed in charts from an internal NSA tool codenamed Boundless Informant. It was reported that some of these data reflected eavesdropping on citizens in countries like Germany, Spain and France.
NSA’s mission, as set forth in Executive Order 12333 in 1981, is to collect information that constitutes “foreign intelligence or counterintelligence” while not “acquiring information concerning the domestic activities of United States persons”. NSA has declared that it relies on the FBI to collect information on foreign intelligence activities within the borders of the United States, while confining its own activities within the United States to the embassies and missions of foreign nations. The appearance of a ‘Domestic Surveillance Directorate’ of the NSA was soon exposed as a hoax in 2013.
NSA’s domestic surveillance activities are limited by the requirements imposed by the Fourth Amendment to the U.S. Constitution. The Foreign Intelligence Surveillance Court for example held in October 2011, citing multiple Supreme Court precedents, that the Fourth Amendment prohibitions against unreasonable searches and seizures applies to the contents of all communications, whatever the means, because “a person’s private communications are akin to personal papers.” However, these protections do not apply to non-U.S. persons located outside of U.S. borders, so the NSA’s foreign surveillance efforts are subject to far fewer limitations under U.S. law. The specific requirements for domestic surveillance operations are contained in the Foreign Intelligence Surveillance Act of 1978 (FISA), which does not extend protection to non-U.S. citizens located outside of U.S. territory.
George W. Bush administration
George W. Bush, president during the 9/11 terrorist attacks, approved the Patriot Act shortly after the attacks to take anti-terrorist security measures. Title 1, 2, and 9 specifically authorized measures that would be taken by the NSA. These titles granted enhanced domestic security against terrorism, surveillance procedures, and improved intelligence, respectively. On March 10, 2004, there was a debate between President Bush and White House Counsel Alberto Gonzales, Attorney General John Ashcroft, and Acting Attorney General James Comey. The Attorney Generals were unsure if the NSA’s programs could be considered constitutional. They threatened to resign over the matter, but ultimately the NSA’s programs continued. On March 11, 2004, President Bush signed a new authorization for mass surveillance of Internet records, in addition to the surveillance of phone records.This allowed the president to be able to override laws such as the Foreign Intelligence Surveillance Act, which protected civilians from mass surveillance. In addition to this, President Bush also signed that the measures of mass surveillance were also retroactively in place.
One such surveillance program, authorized by the U.S. Signals Intelligence Directive 18 of President George Bush, was the Highlander Project undertaken for the National Security Agency by the U.S. Army 513th Military Intelligence Brigade. NSA relayed telephone (including cell phone) conversations obtained from ground, airborne, and satellite monitoring stations to various U.S. Army Signal Intelligence Officers, including the 201st Military Intelligence Battalion. Conversations of citizens of the U.S. were intercepted, along with those of other nations.
As a result of the USA Freedom Act passed by Congress in June 2015, the NSA had to shut down its bulk phone surveillance program on November 29 of the same year. The USA Freedom Act forbids the NSA to collect metadata and content of phone calls unless it has a warrant for terrorism investigation. In that case the agency has to ask the telecom companies for the record, which will only be kept for six months.
In May 2006, Mark Klein, a former AT&T employee, alleged that his company had cooperated with NSA in installing Narus hardware to replace the FBI Carnivore program, to monitor network communications including traffic between American citizens.
NSA was reported in 2008 to use its computing capability to analyze “transactional” data that it regularly acquires from other government agencies, which gather it under their own jurisdictional authorities. As part of this effort, NSA now monitors huge volumes of records of domestic email data, web addresses from Internet searches, bank transfers, credit-card transactions, travel records, and telephone data, according to current and former intelligence officials interviewed by The Wall Street Journal. The sender, recipient, and subject line of emails can be included, but the content of the messages or of phone calls are not.
A 2013 advisory group for the Obama administration, seeking to reform NSA spying programs following the revelations of documents released by Edward J. Snowden. mentioned in ‘Recommendation 30’ on page 37, “…that the National Security Council staff should manage an interagency process to review on a regular basis the activities of the US Government regarding attacks that exploit a previously unknown vulnerability in a computer application.” Retired cyber security expert Richard A. Clarke was a group member and stated on April 11 that NSA had no advance knowledge of Heartbleed.
In August 2013 it was revealed that a 2005 IRS training document showed that NSA intelligence intercepts and wiretaps, both foreign and domestic, were being supplied to the Drug Enforcement Administration (DEA) and Internal Revenue Service (IRS) and were illegally used to launch criminal investigations of US citizens. Law enforcement agents were directed to conceal how the investigations began and recreate an apparently legal investigative trail by re-obtaining the same evidence by other means.
Barack Obama administration
In the months leading to April 2009, the NSA intercepted the communications of American citizens, including a Congressman, although the Justice Department believed that the interception was unintentional. The Justice Department then took action to correct the issues and bring the program into compliance with existing laws. United States Attorney General Eric Holder resumed the program according to his understanding of the Foreign Intelligence Surveillance Act amendment of 2008, without explaining what had occurred.
Polls conducted in June 2013 found divided results among Americans regarding NSA’s secret data collection.Rasmussen Reports found that 59% of Americans disapprove,Gallup found that 53% disapprove, and Pew found that 56% are in favor of NSA data collection.
Section 215 metadata collection
On April 25, 2013, the NSA obtained a court order requiring Verizon‘s Business Network Services to provide metadata on all calls in its system to the NSA “on an ongoing daily basis” for a three-month period, as reported by The Guardian on June 6, 2013. This information includes “the numbers of both parties on a call … location data, call duration, unique identifiers, and the time and duration of all calls” but not “[t]he contents of the conversation itself”. The order relies on the so-called “business records” provision of the Patriot Act.
In August 2013, following the Snowden leaks, new details about the NSA’s data mining activity were revealed. Reportedly, the majority of emails into or out of the United States are captured at “selected communications links” and automatically analyzed for keywords or other “selectors”. Emails that do not match are deleted.
The utility of such a massive metadata collection in preventing terrorist attacks is disputed. Many studies reveal the dragnet like system to be ineffective. One such report, released by the New America Foundation concluded that after an analysis of 225 terrorism cases, the NSA “had no discernible impact on preventing acts of terrorism.”
Defenders of the program say that while metadata alone can’t provide all the information necessary to prevent an attack, it assures the ability to “connect the dots” between suspect foreign numbers and domestic numbers with a speed only the NSA’s software is capable of. One benefit of this is quickly being able to determine the difference between suspicious activity and real threats. As an example, NSA director General Keith Alexander mentioned at the annual Cybersecurity Summit in 2013, that metadata analysis of domestic phone call records after the Boston Marathon bombing helped determine that[clarification needed] another attack in New York was baseless.
In addition to doubts about its effectiveness, many people argue that the collection of metadata is an unconstitutional invasion of privacy. As of 2015, the collection process remains legal and grounded in the ruling from Smith v. Maryland (1979). A prominent opponent of the data collection and its legality is U.S. District Judge Richard J. Leon, who issued a report in 2013 in which he stated: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval…Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment”.
Under the PRISM program, which started in 2007, NSA gathers Internet communications from foreign targets from nine major U.S. Internet-based communication service providers: Microsoft,Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple. Data gathered include email, video and voice chat, videos, photos, VoIP chats such as Skype, and file transfers.
July 2015 – WikiLeaks: Espionage against German federal ministries
In July 2015, WikiLeaks published documents, which showed that NSA spied on federal German ministries since 1990s. Even Germany’s Chancellor Angela Merkel‘s cellphones and phone of her predecessors had been intercepted.
Claims of prevented terrorist attacks
Former NSA director General Keith Alexander claimed that in September 2009 the NSA prevented Najibullah Zazi and his friends from carrying out a terrorist attack. However, this claim has been debunked and no evidence has been presented demonstrating that the NSA has ever been instrumental in preventing a terrorist attack.
Besides the more traditional ways of eavesdropping in order to collect signals intelligence, NSA is also engaged in hacking computers, smartphones and their networks. These operations are conducted by the Tailored Access Operations (TAO) division.
NSA’s China hacking group
According to the Foreign Policy magazine, “… the Office of Tailored Access Operations, or TAO, has successfully penetrated Chinese computer and telecommunications systems for almost 15 years, generating some of the best and most reliable intelligence information about what is going on inside the People’s Republic of China.”
Syrian internet blackout
In an interview with Wired magazine, Edward Snowden said the Tailored Access Operations division accidentally caused Syria‘s internet blackout in 2012.
Suspected responsibility for hacking operations by the Equation Group
The espionage group named the Equation Group, described by discoverers Kaspersky Labs as one of the most advanced (if not the most advanced) in the world as of 2015,:31 and connected to over 500 malware infections in at least 42 countries over many years, is suspected of being a part of NSA. The group’s known espionage methods have been documented to include interdiction (interception of legitimate CDs sent by a scientific conference organizer by mail),:15 and the “unprecedented” ability to infect and be transmitted through the hard drivefirmware of several of the major hard drive manufacturers, and create and use hidden disk areas and virtual disk systems for its purposes, a feat demanding access to the manufacturer’s source code of each to achieve.:16–18 The methods used to deploy the tools demonstrated “surgical precision”, going so far as to exclude specific countries by IP and allow targeting of specific usernames on discussion forums.:23–26 The techniques and knowledge used by the Equation Group are considered in summary to be “out of the reach of most advanced threat groups in the world except [this group].:31
When my oldest son [Linus Torvalds] was asked the same question: “Has he been approached by the NSA about backdoors?” he said “No”, but at the same time he nodded. Then he was sort of in the legal free. He had given the right answer, [but] everybody understood that the NSA had approached him.
— Nils Torvalds, LIBE Committee Inquiry on Electronic Mass Surveillance of EU Citizens – 11th Hearing, 11 November 2013
IBM Notes was the first widely adopted software product to use public key cryptography for client–server and server–server authentication and for encryption of data. Until US laws regulating encryption were changed in 2000, IBM and Lotus were prohibited from exporting versions of Notes that supported symmetric encryption keys that were longer than 40 bits. In 1997, Lotus negotiated an agreement with the NSA that allowed export of a version that supported stronger keys with 64 bits, but 24 of the bits were encrypted with a special key and included in the message to provide a “workload reduction factor” for the NSA. This strengthened the protection for users of Notes outside the US against private-sector industrial espionage, but not against spying by the US government.
While it is assumed that foreign transmissions terminating in the U.S. (such as a non-U.S. citizen accessing a U.S. website) subject non-U.S. citizens to NSA surveillance, recent research into boomerang routing has raised new concerns about the NSA’s ability to surveil the domestic Internet traffic of foreign countries. Boomerang routing occurs when an Internet transmission that originates and terminates in a single country transits another. Research at the University of Toronto has suggested that approximately 25% of Canadian domestic traffic may be subject to NSA surveillance activities as a result of the boomerang routing of Canadian Internet service providers.
Intercepted packages are opened carefully by NSA employees
A “load station” implanting a beacon
A document included in NSA files released with Glenn Greenwald‘s book No Place to Hide details how the agency’s Tailored Access Operations (TAO) and other NSA units gain access to hardware. They intercept routers, servers and other network hardware being shipped to organizations targeted for surveillance and install covert implant firmware onto them before they are delivered. This was described by an NSA manager as “some of the most productive operations in TAO because they preposition access points into hard target networks around the world.”
Computers seized by the NSA due to interdiction are often modified with a physical device known as Cottonmouth.Cottonmouth is a device that can be inserted in the USB port of a computer in order to establish remote access to the targeted machine. According to NSA’s Tailored Access Operations (TAO) group implant catalog, after implanting Cottonmouth, the NSA can establish Bridging (networking) “that allows the NSA to load exploit software onto modified computers as well as allowing the NSA to relay commands and data between hardware and software implants.”
Role in scientific research and development[
NSA has been involved in debates about public policy, both indirectly as a behind-the-scenes adviser to other departments, and directly during and after Vice Admiral Bobby Ray Inman‘s directorship. NSA was a major player in the debates of the 1990s regarding the export of cryptography in the United States. Restrictions on export were reduced but not eliminated in 1996.
Its secure government communications work has involved the NSA in numerous technology areas, including the design of specialized communications hardware and software, production of dedicated semiconductors (at the Ft. Meade chip fabrication plant), and advanced cryptography research. For 50 years, NSA designed and built most of its computer equipment in-house, but from the 1990s until about 2003 (when the U.S. Congress curtailed the practice), the agency contracted with the private sector in the fields of research and equipment.
NSA was embroiled in some minor controversy concerning its involvement in the creation of the Data Encryption Standard (DES), a standard and public block cipheralgorithm used by the U.S. government and banking community. During the development of DES by IBM in the 1970s, NSA recommended changes to some details of the design. There was suspicion that these changes had weakened the algorithm sufficiently to enable the agency to eavesdrop if required, including speculation that a critical component—the so-called S-boxes—had been altered to insert a “backdoor” and that the reduction in key length might have made it feasible for NSA to discover DES keys using massive computing power. It has since been observed that the S-boxes in DES are particularly resilient against differential cryptanalysis, a technique which was not publicly discovered until the late 1980s, but which was known to the IBM DES team.
The United States Senate Select Committee on Intelligence reviewed NSA’s involvement, and concluded that while the agency had provided some assistance, it had not tampered with the design. In late 2009 NSA declassified information stating that “NSA worked closely with IBM to strengthen the algorithm against all except brute force attacks and to strengthen substitution tables, called S-boxes. Conversely, NSA tried to convince IBM to reduce the length of the key from 64 to 48 bits. Ultimately they compromised on a 56-bit key.”
The involvement of NSA in the selection of a successor to Data Encryption Standard (DES), the Advanced Encryption Standard (AES), was limited to hardware performance testing (see AES competition). NSA has subsequently certified AES for protection of classified information (for at most two levels, e.g. SECRET information in an unclassified environment[clarification needed]) when used in NSA-approved systems.
The NSA has specified Suite A and Suite B cryptographic algorithm suites to be used in U.S. government systems; the Suite B algorithms are a subset of those previously specified by NIST and are expected to serve for most information protection purposes, while the Suite A algorithms are secret and are intended for especially high levels of protection.
The widely used SHA-1 and SHA-2 hash functions were designed by NSA. SHA-1 is a slight modification of the weaker SHA-0 algorithm, also designed by NSA in 1993. This small modification was suggested by NSA two years later, with no justification other than the fact that it provides additional security. An attack for SHA-0 that does not apply to the revised algorithm was indeed found between 1998 and 2005 by academic cryptographers. Because of weaknesses and key length restrictions in SHA-1, NIST deprecates its use for digital signatures, and approves only the newer SHA-2 algorithms for such applications from 2013 on.
A new hash standard, SHA-3, has recently been selected through the competition concluded October 2, 2012 with the selection of Keccak as the algorithm. The process to select SHA-3 was similar to the one held in choosing the AES, but some doubts have been cast over it, since fundamental modifications have been made to Keccak in order to turn it into a standard. These changes potentially undermine the cryptanalysis performed during the competition and reduce the security levels of the algorithm.
This is now deemed to be plausible based on the fact that the output of the next iterations of the PRNG can provably be determined if the relation between two internal elliptic curve points is known. Both NIST and RSA are now officially recommending against the use of this PRNG.
Because of concerns that widespread use of strong cryptography would hamper government use of wiretaps, NSA proposed the concept of key escrow in 1993 and introduced the Clipper chip that would offer stronger protection than DES but would allow access to encrypted data by authorized law enforcement officials. The proposal was strongly opposed and key escrow requirements ultimately went nowhere. However, NSA’s Fortezza hardware-based encryption cards, created for the Clipper project, are still used within government, and NSA ultimately declassified and published the design of the Skipjack cipher used on the cards.
Perfect Citizen is a program to perform vulnerability assessment by the NSA on U.S. critical infrastructure. It was originally reported to be a program to develop a system of sensors to detect cyber attacks on critical infrastructure computer networks in both the private and public sector through a network monitoring system named Einstein. It is funded by the Comprehensive National Cybersecurity Initiative and thus far Raytheon has received a contract for up to $100 million for the initial stage.
NSA has invested many millions of dollars in academic research under grant code prefix MDA904, resulting in over 3,000 papers (as of 2007-10-11). NSA/CSS has, at times, attempted to restrict the publication of academic research into cryptography; for example, the Khufu and Khafre block ciphers were voluntarily withheld in response to an NSA request to do so. In response to a FOIA lawsuit, in 2013 the NSA released the 643-page research paper titled, “Untangling the Web: A Guide to Internet Research, ” written and compiled by NSA employees to assist other NSA workers in searching for information of interest to the agency on the public Internet.
NSA has the ability to file for a patent from the U.S. Patent and Trademark Office under gag order. Unlike normal patents, these are not revealed to the public and do not expire. However, if the Patent Office receives an application for an identical patent from a third party, they will reveal NSA’s patent and officially grant it to NSA for the full term on that date.
One of NSA’s published patents describes a method of geographically locating an individual computer site in an Internet-like network, based on the latency of multiple network connections. Although no public patent exists, NSA is reported to have used a similar locating technology called trilateralization that allows real-time tracking of an individual’s location, including altitude from ground level, using data obtained from cellphone towers.
Excerpt of James Clapper‘s false testimony to Congress on NSA surveillance programs
In the United States, at least since 2001, there has been legal controversy over what signal intelligence can be used for and how much freedom the National Security Agency has to use signal intelligence. The government has made, in 2015, slight changes in how it uses and collects certain types of data, specifically phone records. President Barack Obama has asked lawyers and his national security team to look at the tactics that are being used by the NSA. President Obama made a speech on January 17, 2014 where he defended the national security measures, including the NSA, and their intentions for keeping the country safe through surveillance. He said that it is difficult to determine where the line should be drawn between what is too much surveillance and how much is needed for national security because technology is ever changing and evolving. Therefore, the laws cannot keep up with the rapid advancements.
President Obama did make some changes to national security regulations and how much data can be collected and surveyed. The first thing he added, was more presidential directive and oversight so that privacy and basic rights are not violated. The president would look over requests on behalf of American citizens to make sure that their personal privacy is not violated by the data that is being requested. Secondly, surveillance tactics and procedures are becoming more public, including over 40 rulings of the FISC that have been declassified. Thirdly, further protections are being placed on activities that are justified under Section 702, such as the ability to retain, search and use data collected in investigations, which allows the NSA to monitor and intercept interaction of targets overseas. Finally, national security letters, which are secret requests for information that the FBI uses in their investigations, are becoming less secretive. The secrecy of the information requested will not be indefinite and will terminate after a set time if future secrecy is not required. Concerning the bulk surveillance of American’s phone records, President Obama also ordered a transition from bulk surveillance under Section 215 to a new policy that will eliminate unnecessary bulk collection of metadata.
As of May 7, 2015, the U.S. Court of Appeals for the Second Circuit ruled that the interpretation of Section 215 of the Patriot Act was wrong and that the NSA program that has been collecting Americans’ phone records in bulk is illegal. It stated that Section 215 cannot be clearly interpreted to allow government to collect national phone data and, as a result, expired on June 1, 2015. This ruling “is the first time a higher-level court in the regular judicial system has reviewed the N.S.A. phone records program.”  The new bill getting passed later in May taking its place is known as the U.S.A. Freedom Act, which will enable the NSA to continue hunting for terrorists by analyzing telephone links between callers but “keep the bulk phone records in the hands of phone companies.” This would give phone companies the freedom to dispose the records in an 18-month period. The White House argued that this new ruling validated President Obama’s support of the government being extracted from bulk data collection and giving power to the telecommunications companies.
Previously, the NSA paid billions of dollars to telecommunications companies in order to collect data from them. While companies such as Google and Yahoo! claim that they do not provide “direct access” from their servers to the NSA unless under a court order, the NSA had access to emails, phone calls and cellular data users. With this new ruling, telecommunications companies would not provide the NSA with bulk information. The companies would allow the disposal of data in every 18 months, which is arguably putting the telecommunications companies at a higher advantage.
This ruling made the collecting of phone records illegal, but it did not rule on Section 215’s constitutionality. Senate Majority Leader Mitch McConnell has already put forth a new bill to re-authorize the Patriot Act. Defenders of this surveillance program are claiming that judges who sit on the Foreign Intelligence Surveillance Court (FISC) had ruled 37 times that this kind of collection of data is, in fact, lawful. The FISC is the court specifically mandated to grant surveillance orders in the name of foreign intelligence. The new ruling made by the Second District Court of Appeals now retroactively dismisses the findings of the FISC on this program.
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America’s Forum | Dick Morris discusses Ted Cruz and Hillary Clinton
President Bill Clinton on the resignation of aide Dick Morris
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 Binney – Inside NSA
NSA Whistleblower William Binney: The Future of FREEDOM
Enemy Of The State 1998 (1080p) (Full movie)
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
Has Clinton Dispatched Oppo Researchers to UVM’s Sanders Archive?
By PAUL HEINTZ @PAULHEINTZ
Librarians at the University of Vermont’s special collections say interest is spiking in the “Bernard Sanders papers” — 30 boxes of meticulously organized material documenting Sanders’ eight years as mayor of Burlington.
That should come as no surprise, given the independent senator’s rapid rise in the polls in New Hampshire and Iowa, which hold the nation’s first presidential nominating contests.
Media outlets, such as the Guardian, have drilled deep into the archives and unearthed tasty tidbits — but they’re not the only ones interested in getting to know the senator.
Last Thursday, two casually dressed twentysomethings were spotted combing through the Sanders files and decades-old Vermont newspapers. As they were on their way out the door at the end of the day, Seven Days asked what they were doing.
“No comment,” said one of the young men, dressed in a T-shirt and flannel. “No comment.”
As they emerged into the sunlight outside Bailey/Howe Library, Seven Dayspressed again: “Come on! We’re all doing the same thing.”
“No, we’re not,” Flannel Man shot back.
“We’re just looking,” said the other one, dressed in a white shirt with black stripes.
“Looking at what?”
“Old newspapers,” Stripy said. “Vermont history.”
So who were these mysterious characters? Opposition researchers working for one of Sanders’ rivals? Earlier that day a super PAC supporting former Maryland governor Martin O’Malley launched the first negative ad of the race targeting Sanders.
Asked if Team O’Malley had dispatched Flannel Man and Stripy to Burlington, campaign spokeswoman Lis Smith said, “We have not, and they are not affiliated with our campaign.”
But wait! Here’s a clue: That T-shirt Flannel Man was wearing? It read, “New Hampshire for Jeanne Shaheen.”
Earlier this year, Hillary Clinton absorbed much of Shaheen’s political operation to run her Granite State campaign: state director Mike Vlacich, senior political aide Kari Thurman and spokesman Harrell Kirstein.
Asked if Flannel Man and Stripy belonged to Team Clinton, Kirstein did not respond.
Welcome to Burlington, Hillary. Next time, tell your people to leave their Shaheen shirts at home.
Story 1: Round Up The Usual Suspects: Waco Texas Police Massive Arrests of Bikers, Massive Bail Set by Judges of $1 Million, Massive Civil Law Suits For Wrongful Arrest and Detention and Violating Civil Rights — 170 Arrested But 115 Have No Criminal Record — Waco Busted — Taxpayers Will Be Paying The Bill For A Very Long Time — I Say We Let Them Go — Videos
Twin Peaks Waco- What the Video Will Show (as soon as it is released)- Biker Witnesses’s Perspective
Stephen Stubbs (aka “Bowtie”), with permission from biker eye witnesses, releases details of the Twin Peaks Waco incident from May 17, 2015. Until now, the police don’t even know much of this information.
Casablanca (1942) Round Up The Usual Suspects
Start of biker brawl at Twin Peaks in Waco TX.
Texas Criminal Defense Lawyers Association:
The Waco situation of recent days raises serious concerns. It seems unprecedented that you have 170 individuals charged with the same or similar crimes and identical bail amounts set at 1 Million Dollars each. When you consider the constitutional prohibition against excessive bail as well as the requirement for probable cause prior to arresting an individual, the risks of abuse in the Waco case seem obvious.
Dallas Criminal Defense Lawyer – What is probable cause?
ere, DFW criminal defense attorney Cheves Ligon explains what is required for police to arrest you. You can’t be arrested without probable cause, which can seem confusing. No matter what you’ve been accused of the police must be able to prove your arrest complied with the 4th Amendment.
What Is Probable Cause?
Shocking Waco/Cleveland Shooting Update
Motorcycle Club Member Files Federal Lawsuit Alleging Violation of Rights
Marine Unfairly Arrested In Waco Shooting
What happened in Waco Shootout?
3 BIG Questions about Waco Twin Peaks Biker Shootings
The Truth about the May 17, 2015 Shooting Tragedy at Twin Peaks Restaurant in Waco, TX
Waco, Texas: Biker Shootout or Police Massacre
Inside the Bandidos Motorcycle Gang
Biker explains Waco, Tex. brawl
Biker gang turf war: Bandidos and Cossacks have a rivalry going back to the 1960s – TomoNews
Bandidos Mc The Hardest Motorcycle Gang Crime Documentary
When her husband was arrested after a shootout at a biker club gathering at a Twin Peaks restaurant May 17, Sheree Clendennen figured security camera video would soon clear him.
“At first I just thought they’re going to take all these guys, look at the video, see who’s innocent and let all these guys go,” said Clendennen, 29, of nearby Hewitt.
“Then week two it was like ‘Oh my gosh — they’re not letting people go. They don’t care what’s on the video,’” she said of police. “With all of the security cameras and all of them out in the parking lot watching what went on, there is no reason all of these guys should have been held so long.”
But 17 days later, of the 177 people arrested in connection with the shooting that killed nine people and wounded more than a dozen, 143 remain jailed this week, many in lieu of $1 million bail. Some face at least a monthlong wait for a bail-reduction hearing, and attorneys say it’s unlikely their clients will post bail. They have been arraigned but have not been formally charged.
Prosecutors have 90 days to present a case to indict to a grand jury before those in custody are entitled to reduced bail.
The bikers were arrested on allegations of engaging in organized crime, but none have been specifically charged in the shootings and the investigation is still in progress this week, said Waco police Sgt. Patrick Swanton.
The delays in prosecuting those at the scene of the shooting have triggered legal complaints and controversy, including a hearing Thursday about whether two state district judges should recuse themselves.
“It’s unprecedented, this wholesale roundup of people,” said F. Clinton Broden, a Dallas attorney who represents Matthew Clendennen. “It seems like something out ofCasablanca — just round everybody up. You’re arresting people for being at the scene of a crime. It’s scary that this can happen in America.”
Amy Kuzniarek, a spokeswoman for the McLennan County district attorney’s office, said this week that “this is an open, active criminal case. … Therefore our office cannot and will not comment.”
Clendennen, who has no criminal record, is a landscaper, father of four, former firefighter and member of the Scimitars motorcycle club. He recently filed a complaint with the state Commission on Judicial Conduct against the justice of the peace who arraigned him, and a federal civil rights lawsuit against the city of Waco, McLennan County and prosecutors, alleging he was wrongfully arrested and detained.
“He spent 17 days in jail, he’s likely to lose his business, he’s sole provider to his current family, a wife and two children, and he shares custody with his ex-wife, who is going back into court to get custody,” Broden said.
In his complaints, Clendennen claims that McLennan County Justice of the Peace Walter “Pete” Peterson said at arraignment that he set the bikers’ bail at $1 million “to send a message” and that District Attorney Abelino Reyna created “fill-in-the-blank” arrest warrants without probable cause, alleging that the bikers were not cooperating and were therefore not victims.
Petersen declined to comment this week.
Broden said his client did cooperate, but that even if he didn’t, “that’s his Fifth Amendment right. He got Mirandized.”
As for Clendennen’s arrest, Broden said “there’s got to be individual probable cause. They’ve got the tapes of the scene. There’s no reason they can’t be reviewed to make determinations. You just can’t keep bystanders locked up because you don’t know who did the shooting.”
Clendennen’s attorney negotiated to have his bail reduced to $100,000, and his family chipped in to bail him out Wednesday, paying $10,000 to a bondsman.
Sheree Clendennen said her husband immediately returned to work before he loses any more landscaping customers. His next court date is set for Aug. 6.
Broden noted that for some others, bail reduction hearings have not been scheduled until late July. “My guess is the Department of Justice is going to have to come in at some point. It does not seem the local people are competent to handle this in a constitutional manner.”
Spokesmen for the Justice Department referred questions to local officials this week.
At least 47 of those arrested qualified as indigent and have had attorneys appointed to represent them, according to Cathy Edwards, the local indigent defense coordinator.
She said attorneys for the indigent are typically appointed from a list the county maintains but she has had to draw from surrounding counties because only 15 attorneys on the list are local.
Local bikers gather Sunday in Arlington to show support for those still jailed in Waco
Nearly 100 bikers gathered Sunday morning near the old Six Flags Mall in Arlington to show their support for the 143 people still jailed in connection with a shootout last month outside a Waco restaurant.
The bikers plan to ride together to Waco where they plan to meet hundreds of other motorcyclists outside the McLennan County Courthouse to protest how law enforcement has treated the people arrested after a shootout that killed nine and wounded more than a dozen. Authorities arrested 177 people after a shootout May 17 outside the Twin Peaks restaurant in Waco, and 143 remain jailed, many in lieu of $1 million bail.
The 177 bikers were arrested on allegations of engaging in organized crime, and critics have said that police lumped everyone under the same umbrella. They say that most of the people who were at the Twin Peaks aren’t criminals and had no part in the shootout. Many jailed have no criminal record, and those who do have prior misdemeanor charges.
“I think they were trying to set an example, throw their weight around,” Dwayne Stobaugh said Sunday morning of Waco police. “There may have been a few bad apples, but not all of them.”
Stobaugh, an independent biker, said he wanted to ride to Waco for the rally to show “that not everyone who rides a motorcycle is a gang member, because we’re not.”
“It’s all peaceful protest,” he said. “We’re not there to stir up any trouble.”
He said he has been to six Confederation of Clubs meetings, like the one planned at the Twin Peaks in May. He described the meetings as peaceful gatherings where members discuss issues important to them, like motorcycle safety.
Mel Robins, a member of Sons of Liberty Riders, said bikers are being unfairly stereotyped and harassed by police. He said the arrests in Waco have “slanted public opinion against bikers.”
Many restaurants now have posted signs saying bikers wearing their club vests won’t be allowed inside, and police are stopping motorcyclists on the highway for what seems like no reason, he said.
“Bikers are basically regular people,” Robins said. “They’re doctors, lawyers. I’m a grandfather, a veteran.”
There are an estimated 300,000 bikers in Texas, and most of them aren’t involved in criminal enterprises, as authorities suggested was the case in the Waco incident, Robins said.
Several bikers gathered Sunday morning expressed concern for those still in jail. Many of those jailed are facing long waits for bond reduction hearings.
“You’ve got innocent people in jail,” Robins said. “You have ruined lives.”
The attorney for nine of the Twin Peaks bikers told Breitbart Texas that he was in effect told “You Sir, are poured the f*** out.” A hearing was held this week on motions to remove three McLennan County judges who set and retained $1 million bonds on bikers arrested at the Twin Peaks restaurant in Waco, Texas. The attorney argued that the judges demonstrated bias and should be recused from making future rulings.
Austin lawyer Adam Reposa argued that the $1 million bonds were unreasonably oppressive, unconstitutional, and the judges clearly showed bias in setting them.
Breitbart Texas reported the story when Reposa filed his motions to remove these judges.
Breitbart Texas also reported that two of the same judges had three bikers re-arrested after they bonded out on reduced bonds. Their bonds were reset to $1 million but they were able to bond out again. The article was entitled in part, Waco Judges Gone Wild.
The judge appointed to hear the motions to remove the judges, retired criminal district judge Doug Shaver from Houston, denied the motions to recuse and said that the bond process should be expedited so the men would not be a burden on taxpayers who are paying to keep them in jail.
Reposa told Breitbart Texas that “At the end of the hearing, the judge focused less on the innocent people and their constitutional rights and more on the taxpayers.” He also focused less on the $1 million bonds and more on them wearing a patch (referring to the bikers’ motorcycle club membership).
The defense lawyer also added, “There has been no focus on due process, or probable cause. There is no probable cause connected to a crime. We are going on 24 days of all 170 being arrested on a defective probable cause affidavit.”
Those arrested and incarcerated are concerned about losing their jobs, and losing their wages while incarcerated. A $1 million bond costs approximately $100,000 in order to bond out.
Reposa argued at the hearing on the motions to remove the judges that the judges’ impartiality could reasonably be questioned – one of the standards for removing a judge from hearing a case.
Reposa filed the motion to remove Justice of the Peace W.H. “Pete” Peterson because he not only set $1 million bonds for 174 bikers, but added he was doing so to “send a message.” Peterson does not have a law degree.
According to the Waco Tribune Herald, Peterson said “I think it is important to send a message… We had nine people killed in our community. These people just came in, and most of them were from out of town. Very few of them were from in town.”
Motions to remove Judges Matt Johnson and Ralph Strother were also filed because they approved the $1 million bonds, and ordered that no other judge could rule on motions to reduce the bonds.
The judges were questioned by Reposa during the hearing on the motions.
Breitbart Texastalked to Houston-based lawyer Kent A. Schaffer, who has over 30 years of criminal law practice. Schaffer called the bonds “absurd and unconstitutional.”
Schaffer continued, “Bond is supposed to guarantee the defendant’s appearance in court, but this judge set bonds based upon his desire to teach the defendants a lesson, and not out of some concern that they will not appear in court.”
He said “The hearing should not take place in front of the same judge who has already made comments that evidence his lack of respect for the constitution and the rule of law,” Schaffer told Breitbart Texas. “Sending a message is not one of the factors that is to be considered by the court in setting a bond.”
Breitbart Texastalked to Randy Kubosh of Kubosh Bail Bonding in Houston, which includes Harris County, Texas, the third largest county in the United States. He called the $1 million bond “astronomical” and noted that the bail schedule in Harris County for a non-capital murder is $50,000.
Kubosh said, “Bail is supposed to guarantee someone’s appearance in court, not punishthem.” He continued, “It appears that the judge intended to be punitive,” he added.
Breitbart Texasalso talked to Joe Ash, of Ash Bail Bonds in Waco. He said that “$10,000 is mostly what we see on that charge (engaging in criminal activity) but I can also pull up at least 40 cases where it was $5,000.” Ash has two clients who were involved in the Twin Peaks incident and it cost them $100,000 to bond out on a $1 million bond.
Breitbart Texasalso obtained this statement from the Texas Criminal Defense Lawyers Association:
The Waco situation of recent days raises serious concerns. It seems unprecedented that you have 170 individuals charged with the same or similar crimes and identical bail amounts set at 1 Million Dollars each. When you consider the constitutional prohibition against excessive bail as well as the requirement for probable cause prior to arresting an individual, the risks of abuse in the Waco case seem obvious.
Reposa told Breitbart Texas that “The judges have broad discretion but then the constitution steps-in.” He added, “That’s where the constitution is being denied.”
The Austin lawyer said “I think the judge agreed that you can’t hold someone on a $1 million bond if they don’t have probable cause or a criminal action against them, but I was chopped off.”
“The judge basically admitted that people are in jail that don’t belong there which is a problem, but he did not believe it rose to the level of questioning the bias of the judges.”
According to the Waco Tribune Herald, the judges have approved reduced bonds for 58 bikers after agreement were reached between the district attorney’s office and defense lawyers. The publication also reported that 47 bikers have been released from jail as of Thursday evening.
The judges who testified during the hearing said they had not rejected any agreements for reduced bonds since negotiations began on May 30th.
AP: Majority of 170 bikers arrested have no convictions in Texas
Records searched by The Associated Press show more than 115 of the 170 people arrested in the aftermath of a motorcycle gang shootout outside a Central Texas restaurant have not been convicted of a crime in Texas.
Waco police have said that all those arrested after the shooting belonged to criminal motorcycle gangs. Most of them were being held on $1 million bonds Thursday, charged with engaging in criminal enterprise. Nine people were killed in Sunday’s shootout.
Although dozens of those arrested do have criminal records, 117 did not have any convictions listed under their names and birthdates in a database maintained by the Texas Department of Public Safety. The database also shows five of the people killed had convictions in Texas.
DPS acknowledges its data may contain some errors and omissions.
6:30 p.m. (CDT)
Police are being less specific about gang affiliations of the nine people killed in a biker shootout outside a Texas restaurant.
Waco police spokesman Sgt. W. Patrick Swanton said Thursday all those killed or injured on Sunday were members of five criminal motorcycle gangs at the restaurant for a biker meeting. A day earlier he told The Associated Press that all those killed were members of the two rival gangs at the center of the violence.
Family members of one of the men killed — 65-year-old Jesus Delgado Rodriguez — dispute Swanton’s claims. They say Rodriguez was not part of a gang and did not lead a life of violence.
An Associated Press review of court records and a database maintained by the Texas Department of Public Safety found no criminal history in Texas for Rodriguez.
4 p.m. (CDT)
A Texas restaurant that was the scene of a motorcycle club conference that ended in gunfire is being sued by a restaurant next door.
A lawsuit was filed Thursday in Dallas. Attorneys for Don Carlos Mexican Restaurant allege the Twin Peaks restaurant in Waco was grossly negligent and reckless in hosting the gathering of armed motorcycle gang members on Sunday.
Don Carlos attorney Tony Buzbee says his client was forced to close and was designated as a crime scene despite having had no role in the event. He says “inviting armed rival gangs to a place where alcohol is served is not only unwise, it is reckless.”
The lawsuit seeks unspecified compensation for lost profits and property damage.
The Dallas-based corporate parent of Twin Peaks didn’t return a message Thursday seeking comment on the lawsuit.
3:30 p.m. (CDT)
The district attorney for the county where nine bikers were killed in a gunfight outside a Texas restaurant is defending the $1 million bond set for about 170 people charged in the incident.
McLennan County District Attorney Abel Reyna told The Associated Press on Thursday that he supported a local judge’s decision to set the bonds that high.
One person is known to have posted bond so far.
A confederation of motorcycle groups had gathered at a Twin Peaks restaurant in Waco Sunday when a dispute in the parking lot escalated into deadly violence.
Reyna mentioned the size and scope of the violence, what led up to the shooting and “the fact that a lot of these individuals weren’t even from our county.”
Reyna says he doesn’t know whether he will ask for outside prosecutors to help with the large number of cases.
2:30 p.m. (CDT)
Military records show one of the nine bikers killed outside a Texas restaurant was a Purple Heart recipient who served in Vietnam.
Jesus Delgado Rodriguez of New Braunfels, Texas, was an active-duty Marine from 1969 to 1973. He received the Purple Heart, as well as a Navy commendation medal and several other awards. The Purple Heart is given to those wounded or killed in action.
Rodriguez’s family says he was not part of an outlaw biker gang, despite police claims that all nine bikers who died were members of criminal gangs.
An Associated Press review of court records and a database maintained by the Texas Department of Public Safety found no criminal history in Texas for Rodriguez.
A confederation of motorcycle groups had gathered at a Twin Peaks restaurant in Waco Sunday when a dispute in the parking lot escalated into deadly violence.
1:30 p.m. (CDT)
Family members of a man killed in a biker shootout at a Texas restaurant say he was not part of an outlaw motorcycle gang.
That contradicts police claims that all nine bikers who died were members of criminal gangs.
The son of 65-year-old Jesus Delgado Rodriguez, of New Braunfels, told the San Antonio Express-News that his father did not lead a life of violence. An Associated Press review of court records and a database maintained by the Texas Department of Public Safety found no criminal history in Texas for Rodriguez.
Family members said Rodriguez had belonged to two now defunct motorcycle clubs but was not part of any club when he was shot and killed at Twin Peaks restaurant in Waco.
Waco police spokesman Sgt. W. Patrick Swanton told the AP on Wednesday that all those killed were members of the Bandidos or the Cossacks. Swanton did not immediately return a message Thursday.
One of the bikers arrested sues Waco police for having no cause for the arrest.
What was initially reported as a motorcycle gang shootout that killed nine and wounded 18 to which police heroically responded last month in Waco, TX, at the Twin Peaks restaurant seems a bit more complicated, and bit worse for the cops, than that as further details have been revealed.
This week one of the people arrested at the scene, Matthew Clendennen, filed a lawsuit directly against the officers involved in the incident (Manuel Chavez by name, the others as John and Jane Does) as well as the city.
From that suit filing, in which Mr. Clendennen presents himself as a man with no criminal record, former fireman, small business owner on whom employees depend, and father of three who also depend on his ability to earn income, not to rot in jail. He insists he committed no crime and had no intention of committing any crime when he was arrested while in the Twin Peaks restaurant in the aftermath of the shooting event, and that:
Despite the fact that…Clendennen committed no criminal acts he was arrested at Twin Peaks on or about May 17, 2015 without probable cause and his motorcycle was illegally seized….On or about May 18, 2015, Chavez, aided by [unnamed other police officers], presented a criminal complaint (the “criminal complaint”) against…Clendennen to Justice of the Peace Walter H. “Pete” Peterson (Peterson)….The criminal complaint alleges that Plaintiff Matthew Alan Clendennen committed the capital offense of engaging in organized criminal activity and is attached hereto as Attachment A.
It is believed that Peterson was chosen by Chavez, Does 1-10 and Does 11-20 because he is a former Texas Department of Public Safety Trooper with no formal legal training……the identical criminal complaint used in Plaintiff Matthew Alan Clendennen’s case was used to justify the arrest of more than 100 other individuals and only the names were changed in the various criminal complaints.
The complaint alleges absolutely no individualize probable cause to establish that Plaintiff Matthew Alan Clendennen engaged in organized criminal activity. Moreover, Chavez…failed to inform Peterson that Plaintiff Matthew Alan Clendennen was not a member of the Cossacks nor the Bandidos and that he did not participate in any of the violence occurring at Twin Peaks but instead hid from the violence.
Clendennen is claiming that 170 people on the scene were just rounded up and arrested, in many cases had their motorcycles stolen by police, and were given a uniform $1 million dollar bond with no particular individual reason to believe they had committed any crime at all. He’s actually trying to hit not just the city government, but the specific officers who arrested him, with liability for violating his rights. He claims to be at risk of losing both any custody of two of his children and his landscaping business while in jail.
There are at least four reasons to wonder if the police account and actions about the motorcycle gang shootout that they allege to have pacified are above reproach:
1) As Clendennen’s lawsuit notes, there is insufficient reason to believe that all the 170 arrested even committed any actual crime.
2) The police originally claimed that all those they arrested were members of the two “criminal gangs” most implicated in the deaths, the Bandidos and Cossacks; Associated Press found that not only were they not all members of those specific gangs, but whatever the criminality of the gangs, 115 of the arrested had no criminal records in Texas at least.
4) Despite police reports that the fighting and shooting began inside the restaurant and spilled out, closed-circuit footage of the restaurant seen by AP and reports from the restaurateurs to the APindicate the shooting began outside, which is where the police already were.
Waco restaurant video shows bikers, others seeking cover
As gunfire broke out in the parking lot of a Texas restaurant, dozens of motorcycle riders ran inside seeking cover and tried to guide others to safety, security video reviewed exclusively by The Associated Press showed Wednesday.
The video, shared by representatives of the restaurant, shows bikers on the patio ducking under tables and trying to get inside. At least three people were holding handguns. One biker was seen running with blood on his face, hands and torso.
The footage shows only one round being fired — by a biker on the patio who then ran inside.
Authorities have said the shooting began during an apparent confrontation between two rival motorcycle gangs — the Bandidos and the Cossacks. Some bikers have complained that police acted too hastily in making arrests and scooped up riders who had nothing to do with the violence.
Before the shooting begins, the inside of the restaurant appears to be mostly empty. Bikers and other patrons can be seen walking to the windows facing the parking lot where most of the shooting happened.
When gunfire erupts at 12:24 p.m., most bikers, other patrons and staff immediately run away from the windows and into the restaurant’s interior. At least three people can be seen holding handguns.
One camera angle shows bikers running into the men’s bathroom. When there’s no space left in the bathroom, they dash toward the kitchen.
Another camera angle, on the far side of the restaurant from the gunfire, shows patrons who are not wearing biker gear crawling behind tables toward the kitchen. At least three bikers appear to be gesturing for the patrons to crawl to safety.
None of the nine video angles shows the parking lot.
Only one angle, taken from inside a back office in the restaurant, had audio. At 12:24 p.m., a woman is heard screaming, “Oh my God!” That’s followed by multiple cries of “Get back!” Two minutes later, three gunshots are heard. It’s not clear who fired.
Video shows police with assault rifles entering the front door at about the same time. As two officers enter, bikers can be seen lying on the floor with their hands spread.
Waco police officers walk along the perimeter of Twin Peaks restaurant during an investigation Wedne …
Before the shooting, at least 20 members of the Cossacks gang can be seen on the patio. Members of the Scimitars, Boozefighters and Leathernecks can also be seen on the tape. While no Bandidos are immediately visible, police and one member of that biker gang have said some of their members were at the event.
The AP was shown the video by representatives of the Twin Peaks franchise, who have said the fighting began outside the restaurant, not inside as police have previously said. The franchise did not release the video publicly, citing the ongoing investigation.
Waco police spokesman Sgt. W. Patrick Swanton said police have the video, but he had not seen it and would not discuss its contents.
Authorities on Sunday swept up around 170 bikers who descended on the restaurant. Among those arrested was Theron Rhoten, who had just pulled into the parking lot on his vintage Harley chopper when the bullets started flying.
Rhoten showed up at the Twin Peaks restaurant for a regional motorcycle club meeting. But, according to his wife, he soon found himself in the middle of a deadly shootout involving scores of other bikers.
A Waco police officer and a city employee collect empty water bottles during an investigation at Twi …
Katie Rhoten said her husband ran for cover and was later arrested, along with motorcycle-riding friends and other “nonviolent, noncriminal people.”
“He’s good to his family,” she said. “He doesn’t drink. He doesn’t do drugs. He doesn’t party. He’s just got a passion for motorcycles.”
Police have said that all those arrested were part of criminal motorcycle gangs, but only five of the nine people killed had criminal histories in Texas, based on court records and a search of their names in a database maintained by the Texas Department of Public Safety.
In addition, Manuel Isaac Rodriguez was arrested in 2010 and served probation for unlawfully carrying a weapon at a bar in Lewisville.
Police have acknowledged firing on armed bikers, but it is not clear how many of the dead were shot by gang members and how many were shot by officers.
A Waco police officer collects empty water bottles during an investigation at Twin Peaks restaurant, …
Authorities have said the gathering of five biker groups was to resolve a dispute over turf. Some bikers dispute that, saying the meeting was organized to discuss laws protecting motorcycle riders and other subjects.
Katie Rhoten said her husband, a mechanic from Austin, called her from jail and said that he and two other members of Vise Grip motorcycle club ducked and ran for cover as the violence raged around them.
The arrested bikers have all been charged with engaging in organized crime and each is being held on $1 million bonds.
The eight members of Theron Rhoten’s group, the Vise Grip Club, specialize in building and riding vintage and antique motorcycles, particularly pre-1970 Harley Davidson big twin choppers, according to spokesman Brian Buscemi.
Buscemi said the bimonthly meetings have been happening for 18 years.
A Waco police officer takes down crime scene tape, Wednesday, May 20, 2015, as they re-open Central …
“Yes, there was a problem at this scene, and it was absolutely horrific,” he said. “But there just also happened to be a significant amount of people there who had nothing to do with it.”
One Quarter Of Twin Peaks Shootout Suspects From Central Texas
Forty-two of the approximately 170 suspects in custody in connection with the deadly shootout between rival biker gangs and police Sunday at Waco’s Twin Peaks restaurant are from Central Texas and 17 are from Waco or a Waco suburb, according to information released Wednesday.
That supports the early contention that most of the bikers involved in the brawl that left nine dead and 18 injured were not local.
One Suspect Freed On Bond
One of the members of a motorcycle gang arrested in connection with the gun battle Sunday outside of Waco’s Twin Peaks restaurant was in the process of posting $1 million bond Wednesday at the McLennan County Jail.
Jeff Battey, 50, was among the 170 bikers arrested after the shootout Sunday that left nine bikers dead and 18 injured.
All 170 were charged with engaging in organized crime and were ordered held in lieu of $1 million bonds.
Battey had to post 10 percent of that amount, or $100,000, in cash, in order to secure his release.
Hundreds Of Weapons Recovered
Meanwhile Wednesday, Waco police Sgt. W. Patrick Swanton said investigators recovered about 300 weapons from the shooting scene including everything from pocket knives to assault-style knives to guns to chains to brass knuckles, to an AK-47 and body armor.
Earlier in the day, Swanton said about 1,000 weapons were recovered.
He said on-scene investigators were relaying the information to him.
“The crime scene officers specifically stopped at my request to count weapons and have now been able to determine that count and it is 318 and still counting. We do expect the numbers to continue to rise,” he said late Wednesday afternoon.
Investigators found weapons hidden throughout the restaurant, evidently abandoned by bikers as they attempted to flee, Swanton said.
“They have been found in sacks of chips, stuffed between bags of flour, stuffed into the bench seating, hidden in shelves, thrown into trash cans, placed in the kitchen stoves, discarded on floors and even so far as to attempt to flush a handgun down a commode,” he said.
As of late Wednesday afternoon, investigators had recovered 188 handguns, an AK-47 rifle and 157 knives, he said.
Swanton walked through the restaurant earlier Wednesday
“When you enter through the doors, it is just an eerie feeling knowing what occurred there, he said.
“There was blood everywhere, evidence in the bathroom.”
“It’s a pretty traumatic looking scene,” he said.
“It’s almost surreal.”
“There’s blood splatter blood evidence everywhere there still food on the tables half eaten hamburgers half-drunk margaritas. It’s the most surreal thing I’ve ever seen.”
“There are still purses on the table from a small number of citizens.”
“We’re talking unimaginable numbers of evidence that we’re going to have to live from this crime scene,” he said.
“Blood still on parking lot is an environmental issue at this point,” he said.
Meanwhile Wednesday San Antonio officials confirmed that one of the men arrested in connection with the shootout is a retired San Antonio police detective.
Martin Lewis 62, worked for the department for more than 30 years before he retired in 2004.
He remains jailed in lieu of $1 million bond charged with engaging ni organized crime.
Autopsy Reports Released
Preliminary autopsy reports released Tuesday identify the nine bikers who died Sunday afternoon in a shootout with rival gang members and police at Waco’s Twin Peaks restaurant, and at least two of them have local ties.
The nine bikers, all of whom were members of either the Bandidos or the Cossacks, all died of gunshot wounds.
Jesus Delgado Rodriguez, 65, died of gunshot wounds of the head and trunk.
Jacob Lee Rhyne, 39, died of gunshot wounds to the neck.
Richard Vincent Kirshner, Jr., 47, died of gunshot wounds but the report did not specify where he was shot.
Richard Matthew Jordan, III, 31, died of gunshot wounds to the head.
Wayne Lee Campbell, 43, died of gunshot wounds to the head and trunk.
Daniel Raymond Boyett, 44, died of gunshot wounds to the head.
Matthew Mark Smith, 27, died of gunshot wounds to the trunk
Manuel Issac Rodriguez, 40, died of gunshot wounds but the report did not specify where he was shot.
And Charles Wayne Russell, 46, died of gunshot wounds to the chest.
Jordan and Boyett both lived in Waco at least at one time, according to online Texas driver’s license records.
Boyett’s most recent renewal listed an address in the Chalk Bluff area just outside of Waco.
Jordan’s most recent license renewal, however, showed a Pasadena address.
Online records show addresses in New Braunfels for Jesus Rodriguez, Ranger for Jacob Rhyne, Arlington for Wayne Campbell, Keller for Matthew Smith, Allen for Manuel Rodriguez and Tyler for Charles Russell.
No records were found for Richard Kirshner.
Eight of the dead bikers were members of the Cossacks and one was a Bandido, authorities confirmed.
About 50 weapons were recovered at the shooting scene including guns, knives and a chain with a padlock that could be used to beat someone, police said Monday.
Other weapons have been discovered in some off the vehicles towed from the shooting scene, police said.
Investigators, meanwhile, continued to process evidence for a third day Tuesday at the Waco Twin Peaks restaurant where a gun battle between rival biker gangs and police left nine dead and 18 injured.
Stores on the west side of the Central Texas Marketplace from Men’s Warehouse to Kohl’s were open again Tuesday, but those on the south side, from Cabella’s to Best Buy were still closed Tuesday.
Access to the south side of the complex was still restricted.
The shooting investigation will take weeks if not months, Waco police Sgt. W. Patrick Swanton said during a news conference Tuesday morning.
He later said investigators hope to clear the crime scene by mid-morning Wednesday.
Crews continued to remove an estimated 135 motorcycles and at least 80 cars and pickup trucks from the restaurant’s parking lot Tuesday, a process that started Monday evening.
Police are escorting the flatbed trucks carrying the cycles and vehicles from the scene to an impound site, Swanton said.
Seven of the 18 bikers injured in the shootout remained in hospitals Tuesday, Swanton said.
All of them are in stable condition and most are improving he said.
He declined to release the names of the nine bikers who were killed, however, because investigators are having trouble locating family members to notify, he said.
Swanton discounted media reports that four of the nine bikers were killed by police, saying that will be impossible to determine until autopsies and ballistic tests have been completed.
“Is it possible? Yes. Is it a fact? No,” he said.
Most of the dead, the injured and the about 170 suspects arrested after the shooting are not from the Waco area, he said.
By mid-morning Tuesday, more than 160 suspects had been booked into the McLennan County Jail, according to online records.
The incident that triggered the violence evidently occurred in the parking lot Sunday as a coalition of several biker groups gathered to meet in the patio bar area of the restaurant, Swanton said.
Members of a biker group that wasn’t part of the coalition showed up and it appears that “someone had their foot run over” in the parking lot he said.
Investigators have identified crime scenes inside and outside of Twin Peaks including bathroom areas, the restaurant area and the patio bar area, he said.
They’ve found evidence of “some type of altercation inside,” he said, including blood.
“We will figure it out,” he said.
“We do know that we have crime scenes inside and outside and we know that assaults occurred inside and outside the establishment,” he said.
He confirmed that there have been “credible threats to law enforcement in and around our area,” but said those have toned down over the past 24 hours.
“We’re thankful for that,” he said.
“We are asking (the biker groups) to stand down, we are asking them to let us sort through our investigation and we will be honest with them as we have with you and will continue to be,” Swanton told reporters.
Patrol officers have arrested a few bikers in the area, he said, and report that they are seeing fewer bikers Tuesday.
The violent feud likely hasn’t ended, though, he said.
Is this over? Most likely not,” he said.
“We would like it to be. Would like some sort of truce,”
The 18 Waco officers and four Texas Department of Public Safety Officers involved in the incident remain on duty as Waco police, Texas Rangers and the DPS Criminal Investigation Division investigate, he said.
Charges Filed Against About 170
The approximately 170 suspects arrested after the shootout Sunday were all charged with engaging in organized crime and were ordered held in lieu of $1 million bonds.
Investigators are questioning them and are encountering varying degrees of cooperation, Swanton said.
One of the 170, Justin Nash Waddington, is a drainage maintenance supervisor for the City of Killeen, city spokeswoman Hillary Shine confirmed Tuesday.
She had no further comment.
McLennan County Sheriff Parnell McNamara said Tuesday he plans to keep all 170 suspects in his jail for as long as he can.
There were 161 inmates charged in the shooting listed on the McLennan County Jail roster at 10 a.m. Tuesday and a few suspects remained to be booked, McNamara said.
“We’ve had to make sure (the inmates) are separated by gang,” McNarama said.
So far they’ve caused no problem in the jail, he said.
McNamara said his staff is capable of handling the influx and there is ample room to keep them all until their court dates begin to be set.
Affidavits and arrest warrants totaled more than 500 pages, an official said.
At least some and technically all of those in custody could be charged with capital murder because of the number of victims, Waco Swanton said Monday.
All of those killed and injured were members of the Bandidos and Cossacks motorcycle groups, authorities said.
No officers or bystanders were hurt.
Restaurant Franchise Revoked
Meanwhile the Twin Peaks corporate office Monday revoked the franchise of the restaurant where the shooting occurred.
“We are in the people business and the safety of the employees and guests in our restaurants is priority one,” the company said.
“Unfortunately the management team of the franchised restaurant in Waco chose to ignore the warnings and advice from both the police and our company, and did not uphold the high security standards we have in place to ensure everyone is safe at our restaurants.
“We will not tolerate the actions of this relatively new franchisee and are revoking their franchise agreement immediately. Our sympathies continue to be with the families of those who died and are very thankful no employees, guests, police officers or bystanders were hurt or injured,” the statement said.
Trouble at Twin Peaks among rival bikers had been brewing for some time, District Attorney Abel Reyna told News 10 about two weeks ago.
Reyna said local police were on heightened alert in anticipation of trouble on Thursday nights, when Twin Peaks hosts a Biker Night.
Reyna said some weeks ago trouble erupted between two local motorcycle gangs and that spilled over into gangs from the Dallas-Fort Worth area showing up to support the local groups.
Jay Patel, Operating Partner for the Waco Twin Peaks, issued a statement Sunday evening that said the restaurant management and employees share in the community’s trauma.
“We are horrified by the criminal, violent acts that occurred outside of our Waco restaurant today.
“We share in the community’s trauma.
“Our management team has had ongoing and positive communications with the police and we will continue to work with them as we all want to keep violent crime out of our businesses and community,” he said.
On Monday, however, Swanton said the restaurant’s owners were not cooperative with police.
“They have some answering not only to do to you, but to our community as well,” he told reporters.
Late Monday afternoon the restaurant’s operators issued another statement in which they said law enforcement officials did not ask the operator or the franchisor to cancel the patio reservation on Sunday.
The event Sunday afternoon was not a Bike Night, the statement said, but instead the result of a “regular patio reservation made by a female customer who has been to the restaurant previously.”
“Based on the information to date, we also believe that the violence began outside in the area of the parking lot, and not inside our restaurant or on our patio, as has been widely reported,” the statement said.
“We are disappointed that the franchisor, Twin Peaks, made a sudden decision to cancel our Waco franchise before all of the facts are learned. We will continue to assist the authorities in any way possible that will assist in their efforts to bring the wrongdoers to justice,” the statement said.
The statement said the restaurant has hosted seven Bike Nights since last fall “without altercations such as this.”
“We are in the process of gathering additional facts, and urge that people avoid rushing to judgment before those facts are fully known,” the statement said.
Security Tight At Crime Scene
Police were on alert for additional violence Monday and security was tight around the crime scene.
Snipers were positioned on the restaurant’s roof and on overpasses that overlook the crime scene to protect not only investigators, but also the media gathered to cover the shooting.
The danger Sunday at the restaurant was significant, Swanton said, but on Monday he described the scene as secure.
He confirmed, however, that death threats have targeted uniformed police officers.
The nine bodies of gang members who died in the shooting have been taken to various morgues for autopsy.
McLennan County Justice of the Peace Pete Peterson ordered the autopsies, but declined to identify them until their families have been notified.
They all were from Texas, he said.
Three of the dead were found in the parking lot just outside of the restaurant, four were found in front of the building and one had been dragged behind a neighboring restaurant, Swanton said.
All nine were members of two of the five gangs involved in the melee, he said.
Waco crime scene investigators assisted by officers from federal, state and county agencies including the FBI, the ATF and the Department of Public Safety, were meticulously diagramming the crime scene Monday, Swanton said.
Once that process is finished, Swanton said, about 100 motorcycles and many of the 50 to 75 private vehicles in the restaurant’s parking lot will be towed away as evidence.
Investigators say they expect to remain at the scene at least until dark Monday night, Swanton said.
Portions of the Central Texas Marketplace, meanwhile, remained closed on Monday as the investigation continued.
Stores on the west side of the complex from Men’s Warehouse to Kohl’s were open Monday morning, but those on the south side, from Cabella’s to Best Buy were ordered to remain closed.
Traffic into the shopping center off Interstate 35 and Loop 340 was still restricted Monday.
Restaurant’s Alcohol Sales Suspended
The Texas Alcoholic Beverage Commission Monday announced it is suspending alcohol sales at the restaurant for seven days because of the shooting.
State law allows the agency to suspend a business license to sell alcohol after a shooting, stabbing or murder on premises that’s likely to result in subsequent leadership.
“Any wrongdoing uncovered during the investigation could result in further action against the restaurant, including monetary fines, further suspension, or cancellation of its TABC license to sell alcohol,” the agency said in a press release Monday.
“Our investigators will continue to work with the Waco Police Department to collect statements from any party involved, especially the restaurant staff,” said Maj. Victor Kuykendoll, TABC District 2 Regional Commander.
“We will continue to investigate the operations of the restaurant to determine if they failed to properly manage the folks on the premises and enabled this event to take place.”
The Harker Heights Twin Peaks restaurant has the same owner as the Waco restaurant, the TABC confirmed Monday, but the license suspension will not affect the Harker Heights operation.
The restaurant will be allowed to resume normal operations after seven days, pending the results of the investigation, which could take several weeks to complete.
Once police clear the crime scene the restaurant could resume food sales, but Swanton said Monday he hopes the owners will allow for a cooling-off period and will keep the business closed for the immediate future.
DPS Director: Twin Peaks Gunfight Unprecedented
Texas Department of Public Safety Director Steve McCraw, a former FBI agent, said Monday that the shootout Sunday was the first time “we’ve seen this type of violence in broad daylight.”
McCraw’s agency sent Texas Rangers to process the crime scene and special agents who target motorcycle gangs.
McCraw says DPS is constantly monitoring biker gangs and that motorcycle gang violence dates back to at least the 1970s.
Officers “Did A Hell Of A Job”
Waco police anticipated possible violence Sunday based on the previous disturbances at the restaurant and on unspecified intelligence.
Eighteen uniformed Waco police officers including an assistant chief, sergeants and one rookie were standing by outside the restaurant Sunday and responded within a matter of seconds after the violence broke out between members of five rival gangs, Swanton said.
“They did a hell of job in response to a very deadly scene,” he said.
He declined to name the gangs, saying “we’re not going to give them publicity,” but they included the Bandidos, the Cossacks and the Scimitars.
The catalyst for the violence was a fight that broke out in a restaurant restroom and spilled into the outdoor party bar area, Swanton said.
Shots were fired inside the restaurant and bikers were shot, stabbed and beaten before the fight quickly moved outside to the parking lot, Swanton said.
As the officers responded, the bikers directed gunfire in their direction, police said.
“Our officers took fire and responded appropriately, returning fire,” he said.
The number of shots fired and who fired them won’t be released immediately pending completion of the investigation, he said.
“Those officers quickly gained control of a very violent scene and took numerous biker individuals into temporary custody,” he said.
They called for backup and officers from agencies throughout McLennan County responded, he said.
Officers from those agencies remained at the scene Monday, he said.
Off-duty officers who were shopping nearby also responded, even though they lacked protective gear, Swanton said.
Diners and some employees locked themselves in a freezer to escape the violence.
The scene at the Market Place between Don Carlos and Twin Peaks was absolute chaos, Swanton said earlier.
“It is one of the most violent scenes I’ve seen in my 34 years as a police officer in Waco,” Swanton said.
Swanton said officers recovered more than 100 weapons from the scene and there were several vehicles that had bullet holes in them.
The 18 injured victims were taken by ambulance to Baylor Scott & White Hillcrest Medical Center, Providence Health Center and two were reportedly transferred to Scott & White Hospital in Temple because of the severity of their injuries.
Their names and information about their conditions weren’t available Monday.
Neither Hillcrest nor Providence would comment Monday on how many patients from the shooting they have or on security measures in place in the aftermath of the violence.
Scores of suspects were transported in vans and buses to the Waco Convention Center downtown, which was also under tight security.
The suspects were processed there before they were transferred to jail.
Officers also were also sent to the Flying J Truck Stop, at New Road and Interstate 35 because of reports a large number of bikers had been seen gathering there.
Customers At Nearby Restaurant Took Cover
A witness who was having lunch across the parking lot at Don Carlos said he and his family had just finished eating and walked into the parking lot when they heard several gunshots and saw wounded being taken from the fight scene.
“We crouched down in front of our pickup truck because that was the only cover we had,” the man, who asked not to be identified, said.
He and his family were traveling to Salina, Kansas and decided to stop for lunch.
He said he saw several wounded men being treated.
He also said there were several police officers at the scene and ambulances were responding to the scene to aid those hit by gunfire.
Ambulances from Waco and a number of surrounding communities responded to the scene, Swanton said.
Area businesses, after learning of the shooting, sent water and food to officers at the scene, he said.
Baylor University police deployed additional officers as a precaution after the gun battle, but in an email said the campus was never in any danger.
“Baylor police have been monitoring and will continue to monitor the situation,” the campus-wide email said.
Waco Mayor Thanks Officers
Waco Mayor Malcolm Duncan, Jr., issued a statement Monday evening in which he thanked the law enforcement officers and first responders to “joined forces to control and minimize the tragic loss that occurred in our city.
“We are fortunate to have such well trained professionals who are prepared at a moment’s notice to step forward, risking their own life and safety, to protect the lives of others and to make a strong collective statement that we will not tolerate wrongful acts of violence in our community,” he said.
“I am thankful that innocent bystanders were not harmed in this incident and I want to assure all of our citizens that your safety is and has been our priority and we are confident that this rogue event will not disrupt or endanger our community,” he said
“Waco’s location on I-35 has always been a strategic advantage but in this case it only facilitated the convening of a large group of people with criminal capability. We are fairly certain most of the criminal activity was perpetrated by non-residents. We want to also assure the tourists and other travelers that Waco is safe and secure and back to work,” he said.
Biker Sues Waco, McLennan County, Alleges Unconstitutional Arrest, Detention
A lawyer representing one of the more than 170 bikers arrested outside of a Waco restaurant May 17 has filed a civil rights lawsuit saying his client’s arrest and detention is unconstitutional.
F. Clinton Broden released a statement Friday saying 30-year-old Matthew Alan Clendennen, arrested outside the Twin Peaks restaurant earlier this month after nine people were killed and 18 injured, is suing the City of Waco, McLennan County and Waco Police Officer Manuel Chavez.
Texas Biker Gang Mug Shots
In the suit, “Chavez is accused of signing a “fill in the name” warrant he knew lacked individual probable cause and deceiving the Justice of the Peace who signed the criminal complaint. The City of Waco and McLennan county are accused of “caus[ing] the arrest and detention of numerous individuals…regardless of whether or not there was individualized probable cause to arrest and detain a particular individual.”
Broden’s news release on the suit goes on to say Clendennen is a longtime McLennan County resident, a Baylor graduate and a former firefighter for the Hewitt and Marlin fire departments. It also says his client’s continued detention is putting a strain on the shared custody of his children, the management of his landscaping company and the welfare of his employees.
Broden said Clendennen, a member of the Scimitar Motorcycle Club, was present on the patio but took cover in the restaurant after a fight broke out. He said his client did not engage in any violent behavior and did nothing to encourage such behavior.
“Mr. Clendennen was arrested on a “fill in the name” criminal complaint and has been incarcerated for almost two weeks on a $1,000,000.00 bond. As a result, Mr. Clendennen’s ex-wife has petitioned for full custody of the two children they currently share custody of and Mr. Clendennen is at risk of losing his landscaping business although his father is attempting to run the business in his absence. If Mr. Clendennen loses the business, his employees will be without jobs,” Broden said in a news release.
“In order to arrest somebody in the United States, the Supreme Court has made clear that there must be individualized probable cause to believe that a particular person actually committed a crime. In this case, there was absolutely no evidence that Mr. Clendennen committed any crime” said Broden.
Broden’s statement added that bond hearings to reduce the $1 million bonds are not being heard until June 5 and, after consultation with the McLennan County District Attorney’s Office, the Justice of Peace has refused to schedule a “probable cause hearing” until Aug. 6.
“In America we normally do not hold an innocent person in custody for three months before according them a probable cause hearing. From a constitutional perspective, what is occurring in McLennan County is extremely troubling,” Broden said.
Waco police spokesman Sgt. Patrick Swanton could not immediately be reached for comment, per the Associated Press.
Released Waco bikers: ‘They made us feel like animals’
For the first time in two weeks and one day, Morgan English ran into the arms of her husband, William. They are bikers from Brenham, Texas, but have spent every day since May 17 inside the McLennan County Jail.
They were among the 170 people arrested in the aftermath of the bloody May 17 shootout at the Twin Peaks restaurant in Waco. Nine people were killed and 18 others were injured.
The Englishes’ attorney was able to negotiate a smaller bond to secure their release.
Biker in Waco shootout files civil rights lawsuit
“They made us all feel like animals, like they herded us,” said Morgan English.
The couples’ attorney, Paul Looney, said William and Morgan English had nothing to do with the violence that day.
“They intentionally went there because they knew there was going to be a big gathering of bikes,” Looney explained. “They had absolutely no clue that anyone had any other agenda at any time.”
The Englishes said they had no part in the fight, and aren’t members of the Cossacks or Banditos gangs.
Still, Waco police handcuffed them and some 170 others at the scene.
“They didn’t pinpoint who did what; they didn’t ask, ‘Are you innocent? Tell us what happened.’ They just arrested all of us!” Morgan English said.
Waco police call for truce after deadly biker violence
Looney presented their case to the county’s district attorney on Monday, who reduced their bail from $1 million to $25,000, making their reunion possible.
“This has been like a death in the family,” Looney said. “Everybody has come in, and they’ve sat by the phone waiting for the next call from jail.”
The Englishes now wait to see where their case goes next.
Bikers will be back in Central Texas this weekend as the All For 1 Waco Freedom Ride is set for Sunday. Bikers will end up at the McLennan County Courthouse in support of those still in jail.
Waco witness: ‘It was a setup from start to finish’
Richie was the first to die, then Diesel, then Dog.
Whatever else they were in life, the men with the biker nicknames were Cossacks, loud and proud and riders in a Texas motorcycle gang. And that’s what got them killed, shot to death in a brawl with a rival gang in the parking lot of a Texas “breastaurant” that advertised hot waitresses and cold beer.
“I saw the first three of our guys fall, and we started running,” said their brother-in-arms, another Cossack, who said he was there a week ago when the shooting started at the Twin Peaks restaurant.
The Cossack, president of a North Texas chapter of the motorcycle gang, asked not to be identified because he is in hiding and said he fears for his life. He is a rare eyewitness speaking publicly about the Waco shootings, one of the worst eruptions of biker-gang violence in U.S. history.
Since last week’s violence, Waco police have offered few conclusions in their investigation. But they have said that the violence was touched off when an uninvited group, presumed to be the Cossacks, showed up at a meeting of a larger confederation of motorcycle clubs dominated by the Bandidos.
In several interviews in recent days, the Cossacks rider offered a different story. He said the Cossacks were invited to the Twin Peaks patio that day — by a Bandido leader, who offered to make peace in a long-running feud between the two gangs. That invitation was a setup for an ambush, though, according to the Cossack. That’s why the dead included six Cossacks, one Scimitar (an ally of the Cossacks) and only two Bandidos.
The biker’s story could not be independently verified; most of those involved in the shootout are still in jail. But significant parts of his account square with police statements, as well as security camera videos obtained by The Associated Press.
The biker culture has unwritten rules that everybody in its world knows and has predictable consequences for stepping out of line.
So when a biker from the Bandidos, the oldest gang in Texas and one of the largest in the world, ran into a young Cossack in the Twin Peaks parking lot last Sunday, everyone knew what was coming. First words, then fists, then guns. Within seconds, Richie, Diesel and Dog were dead.
“I took off,” the Cossacks rider said. “I got out of there. I didn’t have a weapon. I couldn’t fight anybody.”
At odds for years
It started with a phone call.
About a week before the gunfight, according to the Cossack, a leader of the Bandidos, a man named Marshall from East Texas, contacted Owen Reeves, the “nomad,” or leader, of the Cossacks’ Central Texas region.
The two gangs had been at odds for years. The Bandidos consider themselves the big dogs of the Texas biker world, and other gangs — or clubs, as they prefer to be called — generally don’t cross them.
The Bandidos wear their claim to the Lone Star State on their backs. Their vests have“Bandidos” across the shoulders, just above their logo, a caricature based on Frito-Lay’s Frito Bandito. Below, the word “Texas” is stitched boldly in an inverted crescent.
That crescent, the “Texas rocker,” has long belonged to the Bandidos, and they consider it a provocation if someone else wears it without permission, which is exactly what the Cossacks did.
The Bandidos are second in numbers only to the Hells Angels and have as many as 2,500 members in 13 countries, according to the Justice Department, which considers the group a violent criminal enterprise engaged in running drugs and guns. The Cossacks, a smaller group, do not show up on law enforcement lists of criminal gangs, but the group has been growing more aggressive in recent years. Officials have warned of the potential for violence between the two gangs.
“We don’t claim any territory, but the reason that the Bandidos have such an issue with us is that we wear the Texas rocker on our back, but we don’t pay them $100 a month per chapter to do it,” the Cossack said.
On May 1, the Texas Department of Public Safety issued a bulletin to law enforcement agencies across the state warning about the Bandidos having “discussed the possibility of going to war” with the Cossacks, largely over the issue of the Texas rocker.
The bulletin noted that on March 22, several Cossacks attacked a Bandido with chains, batons and metal pipes. On the same day, Bandidos attacked a Cossack with a hammer and demanded that he remove the Texas rocker from his vest.
After all that, the phone call from Marshall was a welcome olive branch, the Cossack said.
Marshall invited the Cossacks to Twin Peaks last week when the Texas Confederation of Clubs and Independents was scheduled to hold a major meeting. Those meetings are generally about bikers’ rights, safety and other administrative issues. The Bandidos dominate that organization; the Cossacks are not members.
Marshall said that the Bandidos “wanted to get this cleared up,” according to the Cossack, who was relating what he said Reeves told him.
“He said, ‘Bring your brothers, hang out, and let’s get this fixed and we can all leave in peace and be happy.’ He was talking to our chapter in Waco. … The leader of our Central Texas chapter said, ‘OK, I’m going to make this happen.’ ”
Reeves, who was jailed after the melee, could not be reached for comment. No members of the Bandidos could be reached for comment.
On the patio
Last week, about 70 Cossacks on Harley-Davidsons thundered down Interstate 35 through Waco and rolled into the parking lot of the Twin Peaks.
The Cossack said he and the others congregated on the outdoor patio and started ordering food and drinks. They chatted with other bikers from smaller mom-and-pop bike clubs ahead of the 1 p.m. confederation meeting.
Guns and other weapons are a common part of biker culture, and the Cossack acknowledged that members of his gang were armed.
“But not all of us,” he said. “We had no reason to believe that this was going to go that way.”
The parley with the Bandidos had been set for 11 a.m., the Cossack said, but the Bandidos didn’t arrive until about 12:15, when about 100 of them pulled up in a long, loud line of Harleys.
Trouble started almost immediately, he said: One of the Bandidos, wearing a patch that identified him as a chapter president, ran his bike into a Cossack standing in the parking lot. The Cossack who was hit was a prospect, a man seeking to become a full member of the club.
“They came up really fast, and the prospect turned and faced the bikes,” the Cossack chapter president said. “He fell backward into other parked bikes. The guy who hit him stopped and got off of his bike and said, ‘What are you doing? Get … out of my way. We’re trying to park.’”
Cossacks quickly jumped to the prospect’s defense, he said: “Guys were saying, ‘You’re disrespecting us,’ or, ‘We’re not backing down.’ ”
In a blink, it started, he said: “Two punches: One from them, one from us.”
A Bandido with a patch identifying him as sergeant-at-arms of the same chapter threw a punch at Richard Matthew Jordan II, 31, known as “Richie,” who was from Pasadena. Jordan punched back.
“At that point in time, the sergeant-at-arms shot Richie point-blank,” the Cossack said.
Police said Jordan died of a gunshot wound to the head.
“Then all the Bandidos standing in the parking lot started pulling guns and shooting at us,” he said. “There were maybe 60 or 70 of us in the parking lot. … We took off running. We scattered. Three of our guys went down instantly. They caught a couple more that tripped and fell, and Bandidos were shooting at them.”
He said that the second man to die was Daniel Raymond Boyett, 44, a Cossack known as “Diesel.” Police said that the Waco man died from gunshot wounds to the head.
The third man down was “Dog,” Charles Wayne Russell, 46, of Winona. Russell’s cause of death was listed as a gunshot wound to the chest.
The Cossack said that he believes the Bandidos had no intention of making peace that day.
“It was a setup from start to finish,” he said.
A parking issue
The Cossack’s story has been impossible to verify, but it is largely consistent with what police have said about how the brawl began.
Waco police spokesman Sgt. W. Patrick Swanton said the shooting started in the parking lot with a confrontation over what he called a parking issue. A leader of the Bandidos, who goes by “Gimmi Jimmy,” told TheNew York Times that there had been no incident in the parking lot but that he had heard there was a fight in the restaurant bathroom. He did not respond to numerous emails.
The Cossack’s account is also consistent with a Twin Peaks security video. The Associated Press reported that the video shows the shooting started in the parking lot at 12:24 p.m., and that panicked bikers started running into the restaurant to flee.
The AP reported that the video shows one shot being fired, but it did not say who fired the shot.
After the bloodshed, Texas authorities warned of the threat of further violence, saying that the Bandidos had called for reinforcements from outside the state.
“History has a way of repeating itself,” Swanton said. “Violence amongst these groups leads to more violence amongst these groups.”
The Cossack said he, too, believes more violence is brewing. He said he received a call late Thursday from a friend in Bandidos leadership, who warned him to get out of his house and spread the word that the Bandidos were “coming hard” after Cossacks.
He said he was told “they’re going to hit houses. They’re going to hit funerals. And if another Cossack or a cop gets in the way, so be it.”
The death toll from the “Twin Peaks” shootout was greater than the total number of homicides Waco police investigated in all of 2014 – And all of the “Twin Peaks” dead were shot by police.
Previously Waco Police Spokesman W. Patrick Swanton stated 22 members of law enforcement were present prior to the outbreak of the shooting. Including 10 members of the Waco SWAT unit, 2 sergeants, 1 rookie, the Asst. Police Chief and 4 state troopers.
Newly released information today includes the Waco Police stating 14 Waco PD officers were involved in firing shots which killed 9 bike club members and wounded 18 more.
The 14 officers involved in the gun battle are all now on administrative leave, which is standard protocol in officer-involved shootings, Swanton said. (link)
In addition Sgt Swanton previously stated that all of the 170 arrested bikers were known “criminal gang members”. However, a review by the Associated Press of court records finds at least 115 of the 170 had no police records:
Waco police have said that all those arrested after the shooting belonged to criminal motorcycle gangs. Most of them were being held on $1 million bonds Thursday, charged with engaging in criminal enterprise. Nine people were killed in Sunday’s shootout.
Records searched by The Associated Press show more than 115 of the 170 people arrested in the aftermath of a motorcycle gang shootout outside a Central Texas restaurant have not been convicted of a crime in Texas. (link)
After previously saying he had not watched the CCTV video from the restaurant/bar yesterday (Wed) -which was reviewed by Associated Press reporters- Swanton now says he has watch the CCTV video.
He said he has viewed surveillance videos of the violence, and said they tell a different story from the some of the accounts being spun online.
“We can’t wait to show you what truly happened,” he said. (link)
Which is a disingenuous statement at best because all they need to do is authorize the restaurant to release the video, and the public can decide for ourselves.
Family members of a man killed in a biker shootout at a Texas restaurant say he was not part of an outlaw motorcycle gang. That contradicts police claims that all nine bikers who died were members of criminal gangs.
The son of 65-year-old Jesus Delgado Rodriguez, of New Braunfels, told the San Antonio Express-News that his father did not lead a life of violence. An Associated Press review of court records and a database maintained by the Texas Department of Public Safety found no criminal history in Texas for Rodriguez.
Family members said Rodriguez had belonged to two now defunct motorcycle clubs but was not part of any club when he was shot and killed at Twin Peaks restaurant in Waco.
Waco police spokesman Sgt. W. Patrick Swanton told the AP on Wednesday that all those killed were members of the Bandidos or the Cossacks. Swanton did not immediately return a message Thursday. (link)
In addition from a lawsuit filed against Twin Peaks by the neighboring restaurant Don Carlos it is claimed the police fired “thousands of rounds” toward the bikers; striking not only bike club members but also Don Carlos customer vehicles.
Summary and personal thoughts: It is entirely possible that some of the bikers were criminals; and it is also entirely possible that twitchy police responded excessively and overreacted to a perceived threat. These two possibilities are not mutually exclusive.
Who shot at whom first; who did or did not pull the trigger; and what might have spurred the 14 police officers to fire “thousands of rounds” at a group of 3 to 5 potentially armed bikers when the downrange backdrop was a patio filled with hundreds of unarmed bikers is not yet known.
Look closely at this picture:
You can see bullet holes in the customer vehicles in the Don Carlos parking lot.
♦ NOTE: Direction of fire from Don Carlos toward Twin Peaks. ♦ NOTE: The downrange backdrop of that fire (for the bullets that miss their target) is the patio of Twin Peaks.
However, apparently pointing out a strong possibility for an overreaction by twitchy police is now considered “Conspiracy Theory”, or something. A radio broadcast today calls our previous outline (which quoting MSM information) as conspiracy theory. [Listen at 8:15]
I find it interesting how intelligent people cannot bring themselves to believe the police may have influenced, initiated, created and/or worsened the events with their militarized (SWAT) presence at a bike club meeting.
Ruby Ridge?… How about M.O.V.E (Philadelphia)? … Or maybe Waco 1.0? … or perhaps more recently “Baby Bou-Bou” ringing any bells? Cops make mistakes too !!
Doesn’t anyone else find it curious that an Asst. Police Chief was on scene at Twin Peaks along with the SWAT unit, presumably as scene commander prior to the shootings, and yet no-one has heard from him/her?
Doesn’t anyone else find it curious that initial police statements claimed they had “an active intelligence operation” on the “Bike Gang” which customarily would include monitoring (camera’s, video, etc) and yet the police release NO VIDEO to support their “we were under fire” claims?
I’m former law enforcement for over 20 years. I have ridden with 2 different LEMC clubs. I worked undercover back in late 80’s and have dealt with 1% clubs many times. I have friends in 1% clubs.
I’m pro law enforcement but have a funny feeling that there is lots of horseshit in the story that Waco PD is telling.
I have family living and Working in that area. They have had interaction with the clubs and never felt scared or intimidated. Always felt safe.
Now are we going get the truth or more bullshit? I’m tending on believing the bikers sides on this deal more with every day that passes. Too many people arrested and charged with RICO that were just spending time at TP.
I think LE has overstepped it’s authority on filing these type charges on most these people. $1,000,000 bonds??? BS…
Even if you find reasonable excuses for all the LEO contradictions (fight in bathroom, shots inside, all killed were inside/dragged out etc.); even if you ignore all the misleading statements by law enforcement spokesman Patrick Swanton (100 weapons, 50 weapons, 1000 weapons etc); even if you ignore the lack of willingness to produce factual data to support their claims, ….you are still left with a ridiculous assertion that 170 non-criminal people deserve a million dollar bond because they rode a motorcycle last Sunday to a meeting, and possibly witnessed what happened.
The total number of bikers on scene, according to Swanton, was 200. 170 are arrested, 18 were wounded, 9 were killed, that totals 197. So only 3 people were non-conspirators?
This nonsense about weapons found in vehicles etc. is just that, nonsense.
If you go to a Waco Texas Wal-Mart on Sunday, rope off the parking lot, arrest the first 200 people you see and search their pick-up trucks, suv’s and various vehicles you’ll probably come up with a similar set of statistics.
50 out of 200 people captured at Wal-Mart with prior arrest records; some with pocket knives, chains, handguns, and even rifles in their vehicles etc.
So what? None of that is illegal or unlawful. Ridiculous. Go to a Bass Pro shop on Saturday and you’ll probably find even better stats if that’s the goal.
Another factor which makes it all the more curious is these are the ACTUAL talking points Sgt. Patrick Swanton is relying on to justify the shooting. This innocuous nonsense is what they are focused on. That itself indicates -to a reasonably discerning person- there’s something uncomfortable about the narrative the LEO responders are trying to avoid.
That’s not conspiracy, that’s just common sense.
It is not conspiracy theory the incident occurred at 12:24pm Central Time (1:24 pm Eastern) and in around 90 minutes, 2:04pm CST (3:04pm EST) this press conference was held, giving the specifics of 9 dead and 18 wounded and a restaurant owner who needs to be shut down for non-compliance.
Bikers jailed under $1 million bonds; one bond-reduction hearing set
By TOMMY WITHERSPOON
The more than 170 members of biker gangs that Waco law enforcement officials say were involved in a deadly biker gang shootout Sunday at Twin Peaks won’t be going anywhere soon.
Justice of the Peace W.H. “Pete” Peterson set bonds for 174 gang members charged with engaging in organized criminal activity at $1 million each.
“I think it is important to send a message,” Peterson said. “We had nine people killed in our community. These people just came in, and most of them were from out of town. Very few of them were from in town.”
Meanwhile, a lawyer for Jimmy Don Smith, 59, of Caldwell, moved quickly Monday in getting a bond-reduction hearing set. Dan Jones, a Bryan lawyer, was in Judge Ralph Strother’s 19th State District Court on Monday to request the hearing for Smith, a mechanic with Novosad Enterprises of Caldwell. Strother set the hearing for June 5.
Peterson declined to release the identities of the nine men killed Sunday because he said only one man’s family has been notified that he knows of so far.
He said all but two of those killed were not from the Waco area, but declined to say where they were from.
In affidavits to support the arrests of the bikers issued by Peterson on Monday morning, Waco police Officer Manuel Chavez officially identifies the groups as “members and associates of the Cossacks Motorcycle Club and the Bandidos Motorcycle Club.”
“The members and associates of the Cossacks and Bandidos were wearing common identifying distinctive signs or symbols and/or had an identifiable leadership and/or continuously or regularly associate in the commission of criminal activities,” the affidavit says. “The Texas Department of Public Safety maintains a database containing information identifying the Cossacks and their associates as a criminal street gang and the Bandidos and their associates as a criminal street gang.”
After the shootout, firearms, knives or “other unknown edged weapons,” batons, clubs, brass knuckles and other weapons were recovered from members and associates of both gangs, the complaint alleges.
Other weapons also were found on their motorcycles.
Story 1: Stand With Rand Against Renewal of Patriot Act and National Security Agency’s Turnkey Tyranny And Repeal of Fourth Amendment of U.S. Constitution — 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.
CLIP: Sen. Rand Paul (R-KY) begins his remarks on Patriot Act and NSA Surveillance (C-SPAN)
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Sen. Rand Paul ‘filibusters’ against Patriot Act – LoneWolf Sager(◑_◑)
5 Reasons To Oppose Section 215 of The Patriot Act
Hour 11: Sen. Rand Paul’s Filibuster on PATRIOT Act Extension – May 20, 2015
Rand Paul Interview On NSA Court Ruling Of Illegal Spying
Court Rules NSA Bulk Spying Illegal: New Vindication for Snowden, and Uncertainty for PATRIOT Act
Rand Paul Interview On Meet The Press
Senator Rand Paul discusses individualism, freedom, and national security on Uncommon Knowledge
HUGE WIN FOR PRIVACY! Court Rules NSA Spying Is Illegal
Lynch: NSA Surveillance Program a ‘Vital Tool’
Sen. Rand Paul Opposes PATRIOT Act Renewal
William Binney Tells RT That USA Freedom Act is a Farce
Rand Paul on Extension of the Patriot Act: 05/23/11
Rand Paul Stalling Patriot Act Extension!
Judge Andrew Napolitano Natural Rights and PATRIOT ACT Part 2 of 3
Judge Andrew Napolitano Natural Rights and The Patriot Act part 1 of 3
Liberty and Security in a Changing World
CITP/LAPA/WWS Special Event: Edward Snowden in Conversation with Bart Gellman
As Judge Rules NSA Surveillance – Almost Orwellian – Obama Prepares to Leave Spying Program Intact
AFTER OVER 10 HOURS, RAND PAUL ENDS HIS NSA ‘FILIBUSTER’
The Kentucky Republican spoke on the Senate floor until he could no longer stand. Here’s everything that happened.
BY DUSTIN VOLZ AND KAVEH WADDELL
en. Rand Paul has just wrapped a ten-and-a-half hour long speech on the Senate floor in what his office called a filibuster against the National Security Agency’s surveillance programs, as part of an apparent stand against efforts by some of his Republican colleagues to extend the Patriot Act’s expiring spy powers.
“There comes to a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer,” Paul started. “That time is now. And I will not let the Patriot Act, the most un-patriotic of acts, go unchallenged.”
“There comes to a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer,” Paul started. “That time is now. And I will not let the Patriot Act, the most un-patriotic of acts, go unchallenged.”
Paul took the podium at 1:18 p.m. and left the floor at 11:49 p.m. Here’s what happened, and what’s coming next.
12:26 a.m.: A very tired Rand Paul, off the floor, opens up.
After he walked off the Senate floor, the Kentucky senator told reporters he was “tired, voice is worn out, ready to go home.”
But Paul didn’t feel like his time and energy were for nothing. Business shoes in hand, a weary Paul said “we accomplished something by having, you know, it was kind of nice to have bipartisan support.”
Paul said that even though he didn’t last until midnight, he still believed he had slowed down the clock by a day on procedural advancement on any Patriot Act reauthorization. But an aide to Senate Majority Leader Mitch McConnell suggested the theatrics matter little. “Cloture on trade would be tomorrow either way. Patriot Act is after that,” the aide said.
Because McConnell did not file for cloture by Tuesday evening, it was already unlikely the Senate could act on the Patriot Act before the House goes on recess tomorrow, given the drawn-out parliamentary process of the upper chamber. Unless the Senate is willing to stay in town over the weekend and approve the House-passed Freedom Act, it appears increasingly likely that we are headed for a full expiration of the law’s three surveillance authorities, which sunset on June 1.
Paul, while talking to reporters, took a jab at President Obama for not ending the NSA’s bulk phone-records program unilaterally. Obama “needs to step up and be a little more of a leader in getting us out of this mess,” he said.
Noting support from Sens. Mike Lee and Ted Cruz, his presidential rival, Paul said “We’re not exactly [on] the same page but I think we’re all opponents of the bulk collection.” Both Lee and Cruz support the USA Freedom Act, while Paul says it does not go far enough.
11:49 p.m.: It’s over. Thanking his staff, Sen. Rand Paul has relinquished the floor after 10 hours and 30 minutes.
Since Paul didn’t speak past midnight, the week’s schedule appears to remain unchanged. Earlier in the night, an aide to Senate Majority Leader Mitch McConnell said that if Paul talked into Thursday, it would hold up possible consideration of a Patriot Act extension and throw off the Senate’s calendar before breaking for recess.
11:45 p.m.: We’re winding down. After Sen. Ted Cruz’s fiery speech, a tired Paul took the podium for a final hurrah. “My voice is rapidly leaving, and my bedtime has long since past,” he said, before launching into a summary of what he’s been saying for almost 10 and a half hours. “Bulk collection must end, and I think we have the votes to end it now,” Paul said.
11:29 p.m.: At last, Ted Cruz stands with Rand. Sen. Ted Cruz joined Paul to rail against the Patriot Act late Wednesday evening, just before 11:30 p.m. Cruz is the third Republican to join Paul on the floor.
The Texas Republican praised Paul for having “altered this debate” over NSA surveillance.
Cruz presided over the Senate for a bit earlier in the evening but stepped down to the floor to join Paul’s efforts.
Cruz is running for the GOP nomination for president, as is Paul. Sen. Marco Rubio is currently presiding, meaning three Republican White House contenders are currently in the chamber. A Paul-sanctioned super PAC that is backing his presidential bid earlier mocked Cruz on Twitter for not #StandingWithRand.
Cruz began talking up the virtues of the House-passed USA Freedom Act. Though Cruz supports the bill, he is only one of five GOP co-sponsors in the Senate. Paul believes the bill does not enough, while Rubio wants to preserve the Patriot Act’s spying authorities and the NSA’s bulk data regime.
Cruz emphasized that a straight extension of the Patriot Act provisions that the NSA uses to justify its surveillance program would not be acceptable.
“It is abundantly, abundantly clear that a clean reauthorization of the Patriot Act ain’t passing this body, and it certainly ain’t passing the House of Representatives.”
Cruz spent much of his speech focusing on the personal, saying that standing on the floor with Paul and Sen. Mike Lee reminded him of The Blues Brothers and getting the band back together.
“I said many times I will go to my grave in debt to Sen. Rand Paul that the first opportunity I had to speak on the Senate floor was in support of his epic filibuster,” Cruz said.
11:25 p.m.: Rand Paul is now selling a “filibuster starter pack.” This talk-a-thon is about more than just national security, the power of government, and privacy rights. It’s also about Rand Paul and his presidential ambitions. The latest example: you can now buy yourself a “filibuster starter pack” at Paul’s online campaign store, as the senator’s Twitter account alerted followers to.
The kit is $30 and includes, per the site, a t-shirt that reads “The NSA knows I bought this Rand Paul tshirt,” a bumper sticker that says the same, just about buying a sticker, and a “Spy blocker” for your computer camara.
11:16 p.m.: Patriot Act defender Marco Rubio is now presiding over Paul’s Patriot Act takedown. Another GOP presidential candidate is now presiding over Paul’s “filibuster.” Sen. Marco Rubio of Florida took over the duties to run the floor from Sen. Ted Cruz.
Rubio has vociferously defended the NSA’s surveillance powers, once penning an op-ed calling for the permanent extension of the Patriot Act’s spy provisions.
Rubio was spotted intently reading a magazine—using a pen to go line by line—as Sen. Lee spoke from the floor. Cruz, meanwhile, took a seat to Lee’s right, indicating he may end up joining the talk-a-thon after all.
11:10 p.m.: Rand Paul’s biggest House fans join him on Senate floor. A handful of House members gathered behind Paul on the Senate floor late Wednesday to cheer him on. The gaggle included Republican Rep. Tom Massie and Democratic Rep. Earl Blumenauer, both of whom voted against the House-passed USA Freedom Act last week on grounds it does not do enough to curb NSA surveillance. Massie has long been a big political ally of Paul’s.
Paul tonight has repeatedly said he is concerned the Freedom Act needs to do more before it can earn his support.
10:43 p.m.: Mike Lee returns. The tea-party Republican from Utah has reemerged to keep the Patriot Act talk-a-thon going. Lee is one of two Republicans to speak on the floor for Paul’s “filibuster,” along with Sen. Steve Daines of Montana.
Lee is a lead sponsor of the House-passed USA Freedom Act, alongside Sen. Patrick Leahy, the top Democrat on the Judiciary Committee. Though seven Democrats have supported Paul on the floor today, Leahy is not one them.
10:25 p.m.: Cruz’s office says he was scheduled to be presiding officer. In a strange twist of fate, Sen. Ted Cruz was already on the books to preside over the Senate tonight, his office says. Many expected Cruz to support Paul during his speech.
10:15 p.m.: As promised, Wyden is back. The Oregon Democrat has returned to speak on the floor, giving Paul a much-needed break.
10:10 p.m.: Sen. Ted Cruz arrives, but not to help. After nearly nine hours, Republican Sen. Ted Cruz arrived on the floor. But he wasn’t there to stand with the long-suffering Kentucky senator—he is presiding over the nearly-empty senate.
Cruz, who, like Paul, is running for the GOP presidential nomination, is a co-sponsor of the USA Freedom Act, which would rein in parts of the NSA and effectively end its bulk collection of U.S. call data. He is one of five Republicans to cosponsor the measure. Paul has said the bill does not go far enough.
9:50 p.m.: Another Democrat arrives to stand with Rand. Sen. Richard Blumenthal of Connecticut appeared to give Paul another breather. This is the seventh Democrat to come to Paul’s assistance.
Blumenthal talked about the secrecy of the Foreign Intelligence Surveillance Court and pressed for more transparency and oversight of the judicial body, which some privacy advocates have derided as a “rubber stamp” for the NSA’s surveillance orders. Blumenthal called for an adversarial body to argue against the government before the FISA Court.
9:48 p.m.: Ron Paul is standing with his son. The Campaign for Liberty, the organization led by former Rep. Ron Paul, tweeted out a picture of Paul and his wife standing by a TV tuned to C-SPAN 2. “C4L Chairman @RonPaul and his wife Carol stand with their son Rand to end NSA spying. Do you? #StandWithRand”
9:43 p.m. Rand Paul is slowing down. Over the last twenty minutes, Paul has paused for prolonged moments, swaying back and forth as he shuffles through the papers on his desk. His voice sounds hoarse, and he has fallen silent to pop a candy into his mouth a few times. If you were wondering if talking for so long with few breaks can get physically taxing, he’s your proof.
9:03 p.m.: Wyden returns. Sen. Ron Wyden, who was the first senator to join Paul several hours ago, is now back on the floor. The Oregon Democrat discussed his concerns about so-called “backdoor search loopholes” that can be used by the intelligence community to pry into the digital communications of Americans who correspond with foreigners.
Wyden then praised Paul’s stamina and determination before pledging to return later in the evening. “I intend to rejoin my colleague before long,” Wyden said.
8:57 p.m.: After listening for hours, Sen. Cantwell speaks. Washington Democrat Maria Cantwell, who has been sitting at a desk for much of the evening—certainly longer than any other senator—stood to ask Paul about encryption technology. She follows Sens. Wyden, Heinrich, Manchin, Coons, and Tester as the sixth Democrat to speak with Paul.
8:51 p.m.: McConnell aide: If Paul talks past midnight, he will delay NSA consideration. An aide for Senate Majority Leader Mitch McConnell said late Wednesday that if Paul continues his talk-a-thon past midnight, he will succeed in delaying the Senate’s possible consideration of any Patriot Act extension, possibly into the weekend or later.
This is significant because the House is due to pack its bags and leave town tomorrow. Because the Patriot Act’s spy authorities expire on June 1, the Senate may not be able to pass any surveillance legislation in time before the lower chamber recesses until next month.
If Paul makes it past midnight, the McConnell aide said, he will delay when the Senate—which still needs to address pending trade legislation—can file cloture on any Patriot Act legislation.
Earlier Wednesday, the Obama administration said the NSA would start shutting down its phone-records dragnet this Friday in order to have it turned off completely by June 1 unless Congress figured out a way forward before then.
It is unclear if McConnell would have filed cloture today had he been given the opportunity, however. And this all may be a moot point, as it is unclear if either the Freedom Act or a short-term “clean” reauthorization has the 60 votes necessary to advance through the Senate.
8:12 p.m.: Paul: Freedom Act allows for continued spying. Paul has said he’s unhappy with the House-passed USA Freedom Act because it doesn’t go far enough to stop NSA surveillance. He outlined his gripes with the bill on the floor, saying that the liability protection it offers telephone companies is proof that it doesn’t limit the spying programs enough.
“One question I would ask, if there was anybody that would actually tell you the answer, would be: If we already gave them liability protection under the Patriot Act, why are they getting it again under the USA Freedom Act unless we’re asking them to do something new that they didn’t have permission for?” Paul asked.
“The other problem with the USA Freedom Act is: If you think bulk collection is wrong, why do they need new authorities? Why are we giving them some new authorities?” he continued.
7:55 p.m.: Paul: This is just the tip of the iceberg. Paul is under no illusions that letting portions of the Patriot Act expire would end what he calls illegal spying. While the NSA’s bulk surveillance is a high-profile target, Paul says he thinks there are many similar programs that haven’t been revealed.
“If we decide to fix bulk records and try to do something about this, I think, injustice, the main thing is we should be aware that this isn’t the only program. There’s probably a dozen programs. There’s probably another dozen we haven’t even heard of that they won’t tell any of us about,” Paul said.
“And realize that they’re not asking Congress for permission. They are doing whatever they want,” he continued. “We did not give them permission under the Patriot Act to do bulk collection of phone records. They are doing it with no authority, or inherent authority, or some other authority, because the courts have already told them that there is no authority under the Patriot Act.”
7:47 p.m.: Paul goes off on EPA overreach. To illustrate the problems that come with big government, Paul turned away from the NSA and toward the EPA, an agency much reviled among conservatives unhappy with government overinvolvement.
Paul brought up a case that saw a man and his daughter sentenced to 10 years in prison for “putting clean dirt on his own land.”
“That’s what’s happening in America. So you wonder why some of us worry about our records being snatched up? We’re worried about our own government’s run amok, that our own government’s out of control and that our own government’s not really paying attention to us,” Paul said. “To put a 70-year-old man in prison for ten years for putting clean dirt on his own land, the person that did that ought to go to jail, in fact they ought to be put in a stockade and publicly flogged and then made to pay penance for a decade for doing something so stupid.”
Paul appeared to be referring to this 2005 case. According to an EPA administrator, “the defendants destroyed valuable wetlands and victimized the residents of Big Hill Acres, who ended up with polluted homes and yards with leaking sewage.”
7:13 p.m.: Rand’s getting a lot of help, but where is Ted Cruz? Two Republicans and five Democrats have joined Paul’s extended oratorical demonstration against the Patriot Act, but one senator is so far notably absent: Ted Cruz.
Cruz, who, like Paul, is running for president, has frequently lambasted the NSA for violating Americans’ privacy rights with its sweeping surveillance programs. Cruz is also one of five GOP cosponsors of the USA Freedom Act, the reform bill that passed the House and would effectively end the NSA’s domestic phone-records dragnet.
But Cruz, who was spotted in the Capitol earlier Wednesday, has so far not appeared on the floor to lend support to Paul. Cruz’s office did not respond to multiple requests for comment asking whether the Texas senator had plans to join the “filibuster.”
6:50 p.m.: Sen. Jon Tester is here. The Montana Democrat and chairman of the Democratic Senatorial Campaign Committee is the fifth Democrat to join Paul on the Senate floor.
6:45 p.m.: Rand Paul takes on “people who believe that the inherent authorities of the president are unlimited.” Paul said the bulk collection program’s beginnings, during which it was not sanctioned by law, fell outside the bounds of a president’s authority.
“For the first several years we did bulk collection, they just did it,” Paul said. “They just said it was under the inherent authorities of the president. This should scare us because there are people who believe that the inherent authorities of the president are unlimited. That would not be a president. There would be another name for that.”
6:44: Sen. Chris Coons comes to the floor. The Delaware senator is the fourth Democrat to come to the floor.
It’s relatively rare for my colleague from Kentucky and I to come to the floor in agreement on an issue,” Coons said. “But it has happened before on exactly this issue.”
6:35 p.m.: Standing with Rand outside the Capitol. About 25 “grassroots” supporters of Rand Paul gathered outside the Capitol Wednesday to show solidarity for his stand against the Patriot Act and support his presidential campaign. Chanting “stand with Rand” and “President Paul,” the group was nearly matched by the number of journalists snapping photos of the demonstration.
Cliff Maloney, 24, organized the event on Facebook. Maloney, who works for Young Americans for Liberty, said he supports Paul because of his stances on privacy issues and ability to reach out to younger voters.
“Look at today,” Maloney said. “He’s on the Senate floor filibustering [for digital privacy rights]. And that’s something young voters care about.”
6:20 p.m.: Sen. Joe Manchin Spars with Paul over USA Freedom Act. The Democrat from West Virginia joined Paul on the floor just after 6 p.m. “My good friend, I don’t always agree with you on every issue, but when it comes to this nation’s intelligence gathering and security, we agree more than we don’t,” Manchin said.
Manchin went on to express his support for the NSA reform bill that the House passed last week. “I believe this bill, USA Freedom 2015, moves us in a positive direction, ends the bulk data collection program, and ensures that the collection of data is related to a relevant, particular terrorist investigation,” Manchin said.
When Paul took the podium again, he laid out his concerns with the act that Manchin was touting. “I want to like it, and I want to because it ends bulk collection,” Paul said. But he said the fact that the bill allows the government to search for a person’s records leaves a loophole.
“See, the big thing for me is a warrant should be individualized and I’m worried when you use the word “person” if it can be replaced with the word verizon and still collect all the records,” Paul said. The problem stems from the legal practice of treating corporations as people.
“I don’t know if they’re insurmountable, but those are a couple concerns,” Paul said.
6:02 p.m.: Sen. Steve Daines joins the fray. Montana Republican Steve Daines joined Paul’s stand against the Patriot Act shortly before 6 p.m.
“I spent more than 12 years in the technology sector before being elected to Congress,” Daines said. “I know firsthand the power that big data holds. I also know the great risks that arise when this power is abused. There is a clear and a direct threat to American civil liberties that comes from the mass collection of our personal information and our phone records.”
Daines is one of five GOP cosponsors of the reform-minded USA Freedom Act, which passed the House easily last week. Paul is not a cosponsor of the measure, which he says does not go far enough to limit the Patriot Act’s spying provisions.
It is expected nearly all Senate Democrats would vote for the Freedom Act, with Sen. Bill Nelson being the lone holdout. But it remains unclear if the bill has enough Republican support to reach a filibuster-proof 60-vote threshold, especially with Senate Majority Leader Mitch McConnell whipping against it.
5:53 p.m.: What Rand Paul wants. Paul began going into detail over the last twenty minutes about the amendments he and Sen. Ron Wyden are “most likely” to offer on legislation seeking to reauthorize the expiring provisions of the Patriot Act. Many of the amendments would push for privacy safeguards that the two civil-liberties advocates have long championed.
The first amendment, Paul said, would prohibit the government from mandating that tech firms create so-called surveillance “backdoors” in their products, which the NSA could access. “I know facebook has objected to this and fought them on this, but our amendment would say that the government just can’t do this,” Paul said.
A second amendment would “end bulk collection and replace it with nothing,” Paul said. It would close a loophole that allows back-door searches, he said, referring to the NSA’s practice of using a rule that allows it to search the foreigners’ data to capture information on U.S. citizens. The amendment would also require a “constitutional advocate” to be present in order to argue against the government in intelligence courts.
That amendment, Paul said, would also enact certain privacy protections for Americans whose digital records are held by third-party companies.
Another amendment Paul wants to introduce would make warrantless spying on Americans illegal “in non-terror” cases. He said the amendment would protect Americans against the government using a warrant intended for foreign terrorists that’s easier to obtain.
A fourth amendment would require courts to approve national security letters to “make them more like warrants,” Paul said. So-called NSLs compel companies to hand over communications data or financial records of certain users for the purposes of a national security investigation. The decades-old investigative tool that has grown in importance and frequency of use since the Patriot Act’s passage. Hundreds of thousands of letters have been used by the Justice Department since Sept. 11, 2001, and are often accompanied by gag orders.
Paul continued to tick off several other amendment ideas, including additional protections for whistleblowers, allowing for U.S. citizens to appeal surveillance orders handed down by Foreign Intelligence Surveillance Court, and implementing limitations to the Reagan-era Executive Order 12333, which some privacy advocates say allows the NSA the majority of its spying power.
5:50 p.m.: Supports of Rand to Rally in Capitol. A group of “grassroots supporters” for Paul’s efforts to block the Patriot Act will gather at 6 p.m. outside the U.S. Capitol, according to a Facebook event page. The event calls for supporters to gather on the Senate steps “on the west front side” that face the White House. Eighty-nine people have currently RSVP’d for the Stand with Rand party.
5:01 p.m.: Martin Heinrich arrives. Democratic Sen. Martin Heinrich became the second Democrat to join Paul on the floor to criticize the NSA’s mass surveillance programs.
The New Mexico senator took the opportunity to cite a recent federal appeals court decision deeming the NSA’s phone-records dragnet illegal as proof the Patriot Act’s spying provisions cannot be renewed without substantial changes akin to what the USA Freedom Act offers.
“Why on Earth, I would ask you, why on Earth would we extend a law that this court has found to be illegal?” Heinrich asked. “Now, given the overwhelming evidence that the current bulk collection program is not only unnecessary but also illegal, i think we’ve reached a critical turning point
Heinrich serves on the intelligence committee along with Sen. Ron Wyden, who spoke on the floor earlier. The two have frequently teamed up to question the intelligence community’s broad surveillance powers.
4:46 p.m.: Lee makes his case for a vote on USA Freedom. Sen. Mike Lee said he was open to amendments to his NSA reform package, the USA Freedom Act, but that it would be irresponsible for the Senate to not take up consideration with sufficient time for discussion.
“If there are those who have concerns with the legislation passed by the House of Representatives last week by a vote of 338-88, I welcome their input, I welcome any amendments they may have, I welcome the opportunity to make the bill better to make it more compatible with this or that interest,” Lee said. “We cannot continue to function by cliff. Government by cliff is a recipe for disaster.”
4:27 p.m.: Wyden out, Lee in. Sen. Mike Lee, R-Utah, joined Paul on the Senate floor to give the Kentucky senator’s vocal cords a rest. Lee has been an outspoken supporter of reforming the NSA’s surveillance programs, and is one of the co-sponsors of the USA Freedom Act. Lee acknowledged that his position is not as extreme as Paul’s—he does not support allowing the Patriot Act to expire, as Paul does—but he offered his support on the floor.
“Let me be clear at the outset that while the senator from Kentucky and I come to different conclusions with regard to the specific question as to whether we should allow section 215 of the Patriot Act to expire, I absolutely stand with the junior senator from Kentucky,” Lee said when he took the podium.
On Tuesday. Lee asked the Senate to table discussion of the trade bill to begin debating the USA Freedom Act. The move was blocked by an objection from Sen. Tom Cotton, R-Ark.
4: 17 p.m.: What do other Republican senators think of Paul’s “filibuster”? Some of Paul’s Republican colleagues attempted to downplay the significance of Paul taking over the Senate floor on Wednesday. “Oh that’ll be, you know, 12 hours, and he’ll get a lot of publicity for a day or so, but it won’t affect the process,” Sen. John McCain said Tuesday, when asked about Paul’s expected filibuster.
Republican leadership seemed relieved Paul chose to take the floor during dead time Wednesday, a move they anticipate may mean he won’t get in the way later this week when the chamber actually considers a Patriot Act extension. “I guess if he’s going to, doing it now as opposed to doing it on the weekend is maybe preferable,” Sen. John Thune told an AP reporter.
“I don’t think those inside Washington are listening very well,” Paul said during his speech, in apparent recognition of his colleagues’ unwillingness to let the NSA’s bulk call-records program lapse.
4:12 p.m.: “No Senators.” One headline that Sen. Paul wasn’t necessarily hoping for: a little bit into his speech, C-SPAN2 aired this chyron while the senator spoke:
3:46 p.m.: Backup is here, and it’s a Democrat. Sen. Ron Wyden, D-Ore., took the podium to relieve Paul more than two hours into Paul’s floor speech. Wyden is Paul’s partner in opposing a straight reauthorization of the Patriot Act, and he is the only other senator who has also promised to filibuster an extension of the NSA’s spying programs. “This will not be the last time we are back on the floor,” Wyden said as he took over for Paul.
Paul and Wyden are somewhat strange bedfellows, as Wyden has indicated he would vote for the reform package the House passed last week, known as the USA Freedom Act. Paul contends it does not go far enough. But the bipartisan pair is co-sponsoring a number of amendments they say will make the USA Freedom Act go farther in limiting the NSA’s surveillance powers.
“A number of us—myself specifically—have been concerned that the majority leader and other supporters of business as usual on bulk collection of all of these phone records would somehow try to take advantage of our current discussions and try to, in effect, sneak through a motion to extend section 215 of the USA Patriot Act,” Wyden said. “As long as the senator from Kentucky has the floor, that cannot happen.”
“My colleague from Kentucky has been an invaluable ally on this particular cause since he arrived in the Senate,” the Oregon Democrat continued.
3:41 p.m.: Hitler appears. It took a little over two hours for the first mention of Hitler during Paul’s speech. “Any time you make an analogy to horrific people in history, a Mussolini or a Hitler, people say, ‘Oh, you’re exaggerating, you’re talking about—it’s hyperbole. And maybe it is. And particularly to accuse anybody of that is a horrific analogy, and I’m not doing that,” Paul said. “But what I would say is that if you are not concerned that democracy could produce bad people, I don’t think you’re really thinking this through too much.”
3:20 p.m.: Paul goes after Graham. Paul attacked fellow Republican Sen. Lindsey Graham, R-S.C., for his characteristically hawkish views on surveillance and due process. Paul seized on Graham’s comment earlier this week about how he would deal with anyone who’s thinking about joining the Islamic State terrorist group.
“One senator said recently—i find this really hard to believe—he said, well, when they ask you for a judge, just drone them,” Paul said. “Ha ha. Same guy said when they ask you for a lawyer, tell them to shut up.”
Paul, who is a Republican candidate for president, has for weeks threatened that he would filibuster any attempt to reauthorize the Patriot Act authorities due to sunset on June 1. Although the Senate was not taking up votes Wednesday afternoon, a Paul spokesman called the speech a “filibuster” and said the Kentucky Republican “will speak until he can no longer speak.”
The timing of Paul’s speech took some observers by surprise, as the Senate has not yet moved to consider the Patriot Act and is still trudging through an ongoing fight over an international trade deal. Because Paul was not actually objecting to any specific vote, his speech does not appear to qualify as a formal filibuster.
Procedural votes could still come up later this week on the Freedom Act and McConnell’s short-term extension. But the Senate would likely need to stay through the weekend to get through the full process of voting on the opposing measures, as McConnell had not filed for cloture on either option by Tuesday.
Paul could further stall each vote and force the Senate to stay in town through the weekend. But his decision to eat up time on Wednesday likely indicates he does not want to cause party leaders that headache. Either way, the Senate almost certainly won’t resolve the matter before the House leaves town on Thursday, and an expiration of the Patriot Act’s spy provisions looks increasingly likely.
Paul opposes both McConnell’s push and the Freedom Act, which he says does not go far enough in ushering in surveillance reforms.
Paul’s stand against government surveillance comes as three provisions of the Patriot Act are due to expire on June 1, including Section 215, which the NSA uses to justify its bulk collection of U.S. call records.
(RELATED: Where the 2016 Republicans Stand on NSA Spying)
Congress has reauthorized the authorities in the past, but the current expiration is the first to occur after the Edward Snowden revelations, which began two years ago and publicly exposed for the first time the NSA’s phone dragnet.
Last week the House overwhelmingly passed a reform package called the USA Freedom Act, which would effectively end the NSA’s domestic phone records program. Instead, telephone companies would be relied on to keep the records and hand them over to the government on an as-needed basis after judicial approval is obtained from the Foreign Intelligence Surveillance Court.
But that measure has run hard into a wall in the upper chamber, where Senate Majority Leader Mitch McConnell and a number of GOP defense hawks have said it could jeopardize national security. McConnell and his flock prefer a “clean” reauthorization to the Patriot Act’s spying authorities, and have most recently pushed for a two-month extension to allow more time for debate.
Paul said his stand will force the Senate to debate the surveillance programs, which he says did not happen when the Patriot Act was first introduced in the weeks following the terrorist attacks of Sept. 11, 2001.
“The Patriot Act—I’m not sure unless we insert ourselves a at this moment that we’ll have any debate over it. It’s been set to expire for three years. We’ve known it was coming. And the question is, do we not have enough time because we just don’t care enough?”
In 2013, Paul famously spoke for 13 hours on the Senate floor on John Brennan’s nomination to run the CIA, attacking the nominee and the Obama administration for its drone policy.
Within twenty minutes of the beginning of Paul’s speech, his campaign sent an email to supporters asking for donations. “I will not rest. I will not back down. I will not yield one inch in this fight so long as my legs can stand,” the email, which was signed by Paul, read.
The campaign took a dig at senators eager to leave town for the long weekend. “It seems many of my colleagues here in the Senate care more about getting out of town for the Memorial Day break than protecting the Constitution so many American patriots have fought and died for,” the email said. “I have news for them. They are going NOWHERE.”
Quoting founding fathers and waxing philosophical on the importance of privacy, Paul called for President Obama to immediately issue an executive order to end the NSA’s surveillance programs.
(RELATED: On NSA Spying, Bernie Sanders, Not Elizabeth Warren, Is Pushing Hillary Clinton Let)
“For over a year now, he has said the program is illegal and yet he does nothing,” Paul said on the Senate floor. “He says, well, Congress can get rid of the Patriot Act. Congress can get rid of the bulk collection. And yet he has the power to do it at his fingertips.”
“He began this illegal program,” Paul continued. “The court has informed him that the program is illegal. He has every power to stop it and yet the president does nothing.”
Paul has said he would end the NSA’s surveillance programs were he elected president.
A panel appointed by President Obama to review the government’s surveillance activities has recommended significant new limits on the nation’s intelligence apparatus that include ending the National Security Agency’s collection of virtually all Americans’ phone records.
It urged that phone companies or a private third party maintain the data instead, with access granted only by a court order.
The President’s Review Group on Intelligence and Communications Technologies also recommended in a wide-ranging report issued Wednesday that decisions to spy on foreign leaders be subjected to greater scrutiny, including weighing the diplomatic and economic fallout if operations are revealed. Allied foreign leaders or those with whom the United States shares a cooperative relationship should be accorded “a high degree of respect and deference,” it said.
The panel also urged legislation that would require the FBI to obtain judicial approval before it can use a national security letter or administrative subpoena to obtain Americans’ financial, phone and other records. That would eliminate one of the tool’s main attractions: that it can be employed quickly without court approval.
The review group also would impose a ban on warantless NSA searches for Americans’ phone calls and e-mails held within large caches of communications collected legally because the program targeted foreigners overseas.
A report from the five-member Review Group on Intelligence and Communications Technologies contains 40-plus recommendations on the NSA. Read it.
Taken together, the five-
member panel’s recommendations take aim at some of the most controversial practices of the intelligence community, in particular the 35,000-employee NSA, headquartered at Fort Meade, Md. The signals intelligence agency has been in the news constantly since June, when reports based on documents leaked by former NSA contractor Edward Snowden began appearing in The Washington Post and the Guardian.
The White House released the 300-plus-page report as part of a larger effort to restore public confidence in the intelligence community, which has been shaken by the Snowden revelations.
The panel said that the NSA’s storage of phone data “creates potential risks to public trust, personal privacy, and civil liberty” and that as a general rule, “the government should not be permitted to collect and store mass, undigested, non-public personal information” about Americans to be mined for foreign intelligence purposes.
Despite the proposed constraints, panel member Michael Morell, a former deputy director of the CIA, said, “We are not in any way recommending the disarming of the intelligence community.”
The panel made 46 recommendations in all, which included moving the NSA’s information assurance directorate — its computer defense arm — outside the agency and under the Defense Department’s cyber-policy office.
“The review committee has reaffirmed that national security neither requires nor permits the government to help itself to Americans’ personal information at will,” said Elizabeth Goitein, co-
director of the Brennan Center for Justice’s Liberty and National Security Program. “The recommendations would extend significant privacy protections to Americans.”
Some intelligence professionals were dismayed. “If adopted in bulk, the panel’s recommendations would put us back before 9/11 again,” said Joel F. Brenner, a former NSA inspector general.
Former NSA and CIA director Michael V. Hayden urged senior intelligence officials to lay out the operational costs of adopting the recommendations. “The responsibility is now in the intelligence community to be ruthlessly candid with the policy leadership,” Hayden said.
Obama met Wednesday morning with the panel, whose suggestions are advisory only, and some intelligence officials predicted that the most far-reaching recommendations, including ending the government collection and storage of bulk phone data, would not be adopted. The White House has said it will announce in January which ideas it has embraced, as it concludes its internal review of surveillance activities.
The NSA’s phone-records program has prompted debate about whether the government has overreached in the effort to prevent terrorist attacks. The review panel is urging that Congress pass legislation to end the NSA’s storage of phone records — estimated by some former officials to number more than 1 trillion — “as soon as reasonably practicable.”
If the data were held by phone companies or a private third party, access to them would be permitted only with an order from the Foreign Intelligence Surveillance Court, based on reasonable suspicion that the information sought is relevant to an authorized terrorism investigation. Each phone number would require a court order.
Currently, the NSA holds for five years the phone records it gathers daily from U.S. phone companies. These “metadata” include the numbers dialed and call times and durations, but not call content or subscriber names.
The review panel is not recommending that the phone companies maintaining the data store it any longer than they do now — periods that vary from as little as six months to 10 years.
In a ruling Monday on the collection program, U.S. District Judge Richard J. Leon described the technology used to search the NSA database as “almost Orwellian.” The judge said the collection was “almost certainly” unconstitutional.
“The combination of this report plus the judge’s decision Monday makes this a big week for the cause of intelligence reform,” said Sen. Ron Wyden (D-Ore.).
Moving custodianship of the records outside the NSA would diminish the agency’s agility in detecting terrorist plots, supporters of the current arrangement say. With companies holding data for different periods and in different formats, searching across them would become complicated, they argue.
But the panel said the collection program had not proved its utility. “Our review suggests that the information contributed to terrorist investigations by the use of . . . telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional [court] orders,” it said.
The review group urged that the public have a legal advocate before the Foreign Intelligence Surveillance Court.
Anthony D. Romero, executive director of the American Civil Liberties Union, said the recommendation to end NSA’s bulk collection “goes to the very heart of NSA dragnet surveillance.” He called it “the most necessary recommendation of the review group.”
The NSA’s information assurance directorate, which would be shifted out of the agency, protects classified government computer systems and works with industry to help them better safeguard their systems. That mission differs from the NSA’s job of breaking into systems overseas to gain intelligence, the panel said.
The suggested move, said Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology, would “end NSA’s dual personality as a code-breaker and cybersecurity-enhancer. It’s good.”
But Tony Sager, a former NSA information assurance executive, said moving the defensive mission out of NSA was unwise. “The defensive mission benefits a lot from the technology and the skills of people who work on the offensive side of the house and vice versa,” he said. “They get better insight into the model of what real adversaries do.”
The panel also recommended a prohibition on the government “in any way”subverting or weakening commercial software in order to get around encryption and urged that it not undermine efforts to create encryption standards. The panel also said the government should add oversight to the use and production of “zero day” hacking tools that can be used to penetrate computer systems and, in some cases, damage or destroy them.
The security community has long been concerned that the NSA is building and buying hacking tools, but a Pentagon cyber-official, Eric Rosenbach, has said that the government discloses vulnerabilities it finds to software companies.
Matthew Blaze, a University of Pennsylvania cryptology expert, said disclosure “doesn’t mean that the government can’t or wouldn’t be able to make use of cyberattack techniques that involve exploiting computers.
Kentucky Sen. Rand Paul is filibustering the Patriot Act on the Senate floor, and it doesn’t look like he’s going to stop anytime soon.
The Republican presidential candidate took control of the floor Wednesday afternoon at 1:18 p.m., simultaneously explaining on Twitter that he is filibustering the renewal of the Patriot Act because of the National Security Agency’s program that collects bulk phone record data of American citizens.
“The government shouldn’t have the ability to get that information unless they have suspicion,” Paul said on the floor Wednesday. “Unless they have probable cause you committed a crime.”
In an campaign email to supporters, posted online by a reporter from Time magazine, Paul said: “I will not rest. I will not back down. I will not yield one inch in this fight so long as my legs can stand.”
Here’s how a Paul campaign aide described the marathon speech: “Senator Rand Paul has taken the floor of the U.S. Senate to filibuster the reauthorization of the Patriot Act. Senator Paul is a staunch defender of liberty and believes Americans have a right to privacy. The U.S. government has no place conducting these warrantless searches and should focus on gathering intelligence on suspected terrorists and foreign actors.”
On Monday, Paul previewed the filibuster, holding a press conference in Philadelphia and calling on Obama to end the NSA’s program.
“Here in front of Independence Hall, I call for the president to obey the law,” he said Monday. “The court said last week that it is illegal to collect all of your phone records, all of the time, without a warrant with your name on it. I call on the president today to immediately end the bulk collection of our phone records.”
Asked on Monday whether he would filibuster the upcoming vote on the extension of the Patriot Act, which the NSA uses to carry out the bulk collection program, Paul told reporters: “I will do everything possible. The rules are tricky in the Senate, so I don’t know what I can promise. But we will do everything possible, including filibustering the Patriot Act, to stop that.”
This isn’t Paul’s first filibuster: in 2013, he filibustered the nomination of John Brennan as director of the CIA for 13 hours, talking about drones and the Bill of Rights.
The USA PATRIOT Act is an Act of Congress that was signed into law by PresidentGeorge W. Bush on October 26, 2001. Its title is a ten-letter backronym (USA PATRIOT) that stands for “Uniting andStrengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001″.
On May 26, 2011, President Barack Obama signed the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the USA PATRIOT Act:roving wiretaps, searches of business records (the “library records provision“), and conducting surveillance of “lone wolves”—individuals suspected of terrorist-related activities not linked to terrorist groups.
From broad concern felt among Americans from both the September 11 attacks and the 2001 anthrax attacks, Congress rushed to pass legislation to strengthen security controls. On October 23, 2001, Republican Rep. Jim Sensenbrenner introduced H.R. 3162 incorporating provisions from a previously sponsored House bill and a Senate bill also introduced earlier in the month. The next day on October 24, 2001, the Act passed the House 357 to 66, with Democrats comprising the overwhelming portion of dissent. The following day, on October 25, 2001, the Act passed the Senate by 98 to 1.
Opponents of the law have criticized its authorization of indefinite detentions of immigrants; the permission given law enforcement officers to search a home or business without the owner’s or the occupant’s consent or knowledge; the expanded use of National Security Letters, which allows the Federal Bureau of Investigation (FBI) to search telephone, e-mail, and financial records without a court order; and the expanded access of law enforcement agencies to business records, including library and financial records. Since its passage, several legal challenges have been brought against the act, and Federal courts have ruled that a number of provisions are unconstitutional.
Many provisions of the act were to sunset beginning December 31, 2005, approximately 4 years after its passage. In the months preceding the sunset date, supporters of the act pushed to make its sunsetting provisions permanent, while critics sought to revise various sections to enhance civil liberty protections. In July 2005, the U.S. Senate passed a reauthorization bill with substantial changes to several sections of the act, while the House reauthorization bill kept most of the act’s original language. The two bills were then reconciled in a conference committee that was criticized by Senators from both the Republican and Democratic parties for ignoring civil liberty concerns.
The bill, which removed most of the changes from the Senate version, passed Congress on March 2, 2006, and was signed into law by President George W. Bush on March 9 and 10, 2006.
The PATRIOT Act made a number of changes to U.S. law. Key acts changed were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986 (ECPA), the Money Laundering Control Act of 1986 and Bank Secrecy Act (BSA), as well as the Immigration and Nationality Act. The Act itself came about after the September 11th attacks on New York City and the Pentagon. After these attacks, Congress immediately started work on several proposed antiterrorist bills, before the Justice Department finally drafted a bill called the Anti-Terrorism Act of 2001, introduced to Congress on September 19, 2001. This was introduced to the House as the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, and was later passed by the House as the Uniting and Strengthening America (USA) Act (H.R. 2975) on October 12. It was then introduced into the Senate as the USA Act (S. 1510) where a number of amendments were proposed by SenatorRuss Feingold, all of which were passed. The final bill, the USA PATRIOT Act was introduced into the House on October 23 and incorporated H.R. 2975, S. 1510 and many of the provisions of H.R. 3004 (the Financial Anti-Terrorism Act). It was vehemently opposed by only one Senator, Russ Feingold, who was the only Senator to vote against the bill. Senator Patrick Leahy also expressed some concerns.However, many parts were seen as necessary by both detractors and supporters. The final Act included a number of sunsets which were to expire on December 15, 2005.
Title I authorizes measures to enhance the ability of domestic security services to prevent terrorism. The title established a fund for counter-terrorist activities and increased funding for the Terrorist Screening Center which is administered by the FBI. The military was authorized to provide assistance in some situations that involve weapons of mass destruction when so requested by the Attorney General. The National Electronic Crime Task Force was expanded, along with thePresident‘s authority and abilities in cases of terrorism. The title also condemned the discrimination against Arab and Muslim Americans that happened soon after the September 11 terrorist attacks. The impetus for many of the provisions came from earlier bills, for instance the condemnation of discrimination was originally proposed by Senator Tom Harkin (D–IA) in an amendment to the Combatting Terrorism Act of 2001, though in a different form. It originally included “the prayer ofCardinalTheodore McCarrick, the Archbishop of Washington in a Mass on September 12, 2001 for our Nation and the victims in the immediate aftermath of the terrorist hijackings and attacks in New York City, Washington, D.C., and Pennsylvania reminds all Americans that ‘We must seek the guilty and not strike out against the innocent or we become like them who are without moral guidance or proper direction.'” Further condemnation of racial vilification and violence is also spelled out in Title X, where there was condemnation of such activities against Sikh Americans, who were mistaken for Muslims after the September 11th terrorist attack.
Title II is titled “Enhanced Surveillance Procedures”, and covers all aspects of the surveillance of suspected terrorists, those suspected of engaging in computer fraud or abuse, and agents of a foreign power who are engaged in clandestine activities. It primarily made amendments to FISA, and the ECPA, and many of the most controversial aspects of the USA PATRIOT Act reside in this title. In particular, the title allows government agencies to gather “foreign intelligence information” from both U.S. and non-U.S. citizens, and changed FISA to make gaining foreign intelligence information the significant purpose of FISA-based surveillance, where previously it had been the primary purpose. The change in definition was meant to remove a legal “wall” between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped. However, that this wall even existed was found by the Federal Surveillance Court of Review to have actually been a long-held misinterpretation by government agencies. Also removed was the statutory requirement that the government prove a surveillance target under FISA is a non-U.S. citizen and agent of a foreign power, though it did require that any investigations must not be undertaken on citizens who are carrying out activities protected by the First Amendment. The title also expanded the duration of FISA physical search and surveillance orders, and gave authorities the ability to share information gathered before a federal grand jury with other agencies.
The scope and availability of wiretapping and surveillance orders were expanded under Title II. Wiretaps were expanded to include addressing and routing information to allow surveillance of packet switched networks—the Electronic Privacy Information Center (EPIC) objected to this, arguing that it does not take into account email or web addresses, which often contain content in the address information. The Act allowed any district court judge in the United States to issue such surveillance orders and search warrants for terrorism investigations. Search warrants were also expanded, with the Act amending Title III of the Stored Communications Access Act to allow the FBI to gain access to stored voicemail through a search warrant, rather than through the more stringent wiretap laws.
Various provisions allowed for the disclosure of electronic communications to law enforcement agencies. Those who operate or own a “protected computer” can give permission for authorities to intercept communications carried out on the machine, thus bypassing the requirements of the Wiretap statute. The definition of a “protected computer” is defined in 18 U.S.C.§ 1030(e)(2) and broadly encompasses those computers used in interstate or foreign commerce or communication, including ones located outside the United States. The law governing obligatory and voluntary disclosure of customer communications by cablecompanies was altered to allow agencies to demand such communications under U.S.C. Title 18 provisions relating to the disclosure of electronic communications (chapter 119), pen registers and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits.Subpoenas issued to Internet Service Providers were expanded to include not only “the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber” but also session times and durations, types of services used, communication device address information (e.g. IP addresses), payment method and bank account and credit card numbers. Communication providers are also allowed to disclose customer records or communications if they suspect there is a danger to “life and limb”.
Title II established three very controversial provisions: “sneak and peek” warrants, roving wiretaps and the ability of the FBI to gain access to documents that reveal the patterns of U.S. citizens. The so-called “sneak and peek” law allowed for delayed notification of the execution of search warrants. The period before which the FBI must notify the recipients of the order was unspecified in the Act—the FBI field manual says that it is a “flexible standard”—and it may be extended at the court’s discretion. These sneak and peek provisions were struck down by judge Ann Aiken on September 26, 2007 after a Portland attorney, Brandon Mayfield, was wrongly jailed because of the searches. The court found the searches to violate the provision that prohibits unreasonable searches in the Fourth Amendment to the U.S. Constitution.
Roving wiretaps are wiretap orders that do not need to specify all common carriers and third parties in a surveillance court order. These are seen as important by the Department of Justice because they believe that terrorists can exploit wiretap orders by rapidly changing locations and communication devices such as cell phones, while opponents see it as violating the particularity clause of the Fourth Amendment. Another highly controversial provision is one that allows the FBI to make an order “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” Though it was not targeted directly at libraries, the American Library Association (ALA), in particular, opposed this provision. In a resolution passed on June 29, 2005, they stated that “Section 215 of the USA PATRIOT Act allows the government to secretly request and obtain library records for large numbers of individuals without any reason to believe they are involved in illegal activity.” However, the ALA’s stance did not go without criticism. One prominent critic of the ALA’s stance was the Manhattan Institute‘s Heather Mac Donald, who argued in an article for the New York City Journal that “[t]he furor over section 215 is a case study in Patriot Act fear-mongering.”
At the insistence of Republican Representative Richard Armey, the Act had a number of sunset provisions built in, which were originally set to expire on December 31, 2005. The sunset provision of the Act also took into account any ongoing foreign intelligence investigations and allowed them to continue once the sections had expired. The provisions that were to expire are below.
Title II sections that were to originally expire on December 31, 2005
Authority to intercept wire, oral, and electronic communications relating to terrorism
Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses
Authority to share electronic, wire and oral interception information
Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications
Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.
Duration of FISA surveillance of non-United States persons who are agents of a foreign power
Seizure of voice-mail messages pursuant to warrants
Emergency disclosure of electronic communications to protect life and limb
Pen register and trap and trace authority under FISA
Access to records and other items under the Foreign Intelligence Surveillance Act.
Interception of computer trespasser communications
Foreign intelligence information
Nationwide service of search warrants for electronic evidence
Civil liability for certain unauthorized disclosures
Immunity for compliance with FISA wiretap
Title III: Anti-money-laundering to prevent terrorism
Title III of the Act, titled “International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001,” is intended to facilitate the prevention, detection and prosecution of international money laundering and the financing of terrorism. It primarily amends portions of the Money Laundering Control Act of 1986 (MLCA) and the Bank Secrecy Act of 1970 (BSA). It was divided into three subtitles, with the first dealing primarily with strengthening banking rules against money laundering, especially on the international stage. The second attempts to improve communication between law enforcement agencies and financial institutions, as well as expanding record keeping and reporting requirements. The third subtitle deals with currency smuggling and counterfeiting, including quadrupling the maximum penalty for counterfeiting foreign currency.
The first subtitle tightened the record keeping requirements for financial institutions, making them record the aggregate amounts of transactions processed from areas of the world where money laundering is a concern to the U.S. government. It also made institutions put into place reasonable steps to identify beneficial owners of bank accounts and those who are authorized to use or route funds through payable-through accounts. The U.S. Treasury was charged with formulating regulations intended to foster information sharing between financial institutions to prevent money-laundering. Along with expanding record keeping requirements it put new regulations into place to make it easier for authorities to identify money laundering activities and to make it harder for money launderers to mask their identities. If money laundering was uncovered, the subtitle legislated for the forfeiture of assets of those suspected of doing the money laundering.In an effort to encourage institutions to take steps that would reduce money laundering, the Treasury was given authority to block mergers of bank holding companies and banks with other banks and bank holding companies that had a bad history of preventing money laundering. Similarly, mergers between insured depository institutions and non-insured depository institutions that have a bad track record in combating money-laundering could be blocked.
Restrictions were placed on accounts and foreign banks. It prohibited shell banks that are not an affiliate of a bank that has a physical presence in the U.S. or that are not subject to supervision by a banking authority in a non-U.S. country. It also prohibits or restricts the use of certain accounts held at financial institutions.Financial institutions must now undertake steps to identify the owners of any privately owned bank outside the U.S. who have a correspondent account with them, along with the interests of each of the owners in the bank. It is expected that additional scrutiny will be applied by the U.S. institution to such banks to make sure they are not engaging in money laundering. Banks must identify all the nominal and beneficial owners of any private bank account opened and maintained in the U.S. by non-U.S. citizens. There is also an expectation that they must undertake enhanced scrutiny of the account if it is owned by, or is being maintained on behalf of, any senior political figure where there is reasonable suspicion of corruption. Any deposits made from within the U.S. into foreign banks are now deemed to have been deposited into any interbank account the foreign bank may have in the U.S. Thus any restraining order, seizure warrant or arrest warrant may be made against the funds in the interbank account held at a U.S. financial institution, up to the amount deposited in the account at the foreign bank. Restrictions were placed on the use of internal bank concentration accounts because such accounts do not provide an effective audit trail for transactions, and this may be used to facilitate money laundering. Financial institutions are prohibited from allowing clients to specifically direct them to move funds into, out of, or through a concentration account, and they are also prohibited from informing their clients about the existence of such accounts. Financial institutions are not allowed to provide any information to clients that may identify such internal accounts. Financial institutions are required to document and follow methods of identifying where the funds are for each customer in a concentration account that co-mingles funds belonging to one or more customers.
The definition of money laundering was expanded to include making a financial transaction in the U.S. in order to commit a violent crime; the bribery of public officials and fraudulent dealing with public funds; the smuggling or illegal export of controlled munition and the importation or bringing in of any firearm or ammunition not authorized by the U.S. Attorney General and the smuggling of any item controlled under the Export Administration Regulations. It also includes any offense where the U.S. would be obligated under a mutual treaty with a foreign nation to extradite a person, or where the U.S. would need to submit a case against a person for prosecution because of the treaty; the import of falsely classified goods;computer crime; and any felony violation of the Foreign Agents Registration Act of 1938. It also allows the forfeiture of any property within the jurisdiction of the United States that was gained as the result of an offense against a foreign nation that involves the manufacture, importation, sale, or distribution of a controlled substance. Foreign nations may now seek to have a forfeiture or judgment notification enforced by a district court of the United States. This is done through new legislation that specifies how the U.S. government may apply for a restraining order to preserve the availability of property which is subject to a foreign forfeiture or confiscation judgement. In taking into consideration such an application, emphasis is placed on the ability of a foreign court to follow due process. The Act also requires the Secretary of Treasury to take all reasonable steps to encourage foreign governments make it a requirement to include the name of the originator in wire transfer instructions sent to the United States and other countries, with the information to remain with the transfer from its origination until the point of disbursement. The Secretary was also ordered to encourage international cooperation in investigations of money laundering, financial crimes, and the finances of terrorist groups.
The Act also introduced criminal penalties for corrupt officialdom. An official or employee of the government who acts corruptly—as well as the person who induces the corrupt act—in the carrying out of their official duties will be fined by an amount that is not more than three times the monetary equivalent of the bribe in question. Alternatively they may be imprisoned for not more than 15 years, or they may be fined and imprisoned. Penalties apply to financial institutions who do not comply with an order to terminate any corresponding accounts within 10 days of being so ordered by the Attorney General or the Secretary of Treasury. The financial institution can be fined $US10,000 for each day the account remains open after the 10 day limit has expired.
The second annotation made a number of modifications to the BSA in an attempt to make it harder for money launderers to operate and easier for law enforcement and regulatory agencies to police money laundering operations. One amendment made to the BSA was to allow the designated officer or agency who receivessuspicious activity reports to notify U.S. intelligence agencies. A number of amendments were made to address issues related to record keeping and financial reporting. One measure was a new requirement that anyone who does business file a report for any coin and foreign currency receipts that are over US$10,000 and made it illegal to structure transactions in a manner that evades the BSA’s reporting requirements. To make it easier for authorities to regulate and investigate anti-money laundering operations Money Services Businesses (MSBs)—those who operate informal value transfer systems outside of the mainstream financial system—were included in the definition of a financial institution. The BSA was amended to make it mandatory to report suspicious transactions and an attempt was made to make such reporting easier for financial institutions.FinCEN was made a bureau of the United States Department of Treasury and the creation of a secure network to be used by financial institutions to report suspicious transactions and to provide alerts of relevant suspicious activities was ordered. Along with these reporting requirements, a considerable number of provisions relate to the prevention and prosecution of money-laundering.Financial institutions were ordered to establish anti-money laundering programs and the BSA was amended to better define anti-money laundering strategy. Also increased were civil and criminal penalties for money laundering and the introduction of penalties for violations of geographic targeting orders and certain record-keeping requirements. A number of other amendments to the BSA were made through subtitle B, including granting the Board of Governors of the Federal Reserve System power to authorize personnel to act as law enforcement officers to protect the premises, grounds, property and personnel of any U.S. National reserve bank and allowing the Board to delegate this authority to U.S. Federal reserve bank. Another measure instructed United States Executive Directors of international financial institutions to use their voice and vote to support any country that has taken action to support the U.S.’s War on Terrorism. Executive Directors are now required to provide ongoing auditing of disbursements made from their institutions to ensure that no funds are paid to persons who commit, threaten to commit, or support terrorism.
The third subtitle deals with currency crimes. Largely because of the effectiveness of the BSA, money launders had been avoiding traditional financial institutions to launder money and were using cash-based businesses to avoid them. A new effort was made to stop the laundering of money through bulk currency movements, mainly focusing on the confiscation of criminal proceeds and the increase in penalties for money laundering. Congress found that a criminal offense of merely evading the reporting of money transfers was insufficient and decided that it would be better if the smuggling of the bulk currency itself was the offense. Therefore, the BSA was amended to make it a criminal offense to evade currency reporting by concealing more than US$10,000 on any person or through any luggage, merchandise or other container that moves into or out of the U.S. The penalty for such an offense is up to 5 years imprisonment and the forfeiture of any property up to the amount that was being smuggled. It also made the civil and criminal penalty violations of currency reporting cases be the forfeiture of all a defendant’s property that was involved in the offense, and any property traceable to the defendant. The Act prohibits and penalizes those who run unlicensed money transmitting businesses. In 2005, this provision of the USA PATRIOT Act was used to prosecute Yehuda Abraham for helping to arrange money transfers for British arms dealer Hermant Lakhani, who was arrested in August 2003 after being caught in a government sting. Lakhani had tried to sell a missile to an FBI agent posing as a Somali militant. The definition of counterfeiting was expanded to encompass analog, digital or electronic image reproductions, and it was made an offense to own such a reproduction device. Penalties were increased to 20 years imprisonment. Money laundering “unlawful activities” was expanded to include the provision of material support or resources to designated foreign terrorist organizations. The Act specifies that anyone who commits or conspires to undertake a fraudulent activity outside the jurisdiction of the United States, and which would be an offense in the U.S., will be prosecuted under 18 U.S.C.§ 1029, which deals with fraud and related activity in connection with access devices.
Under subtitle C, various definitions relating to terrorism were altered and expanded. The INA was retroactively amended to disallow aliens who are part of or representatives of a foreign organization or any group who endorses acts of terrorism from entering the U.S. This restriction also included the family of such aliens. The definition of “terrorist activity” was strengthened to include actions involving the use of any dangerous device (and not just explosives and firearms). To “engage in terrorist activity” is defined as committing, inciting to commit or planning and preparing to undertake an act of terrorism. Included in this definition is the gathering of intelligence information on potential terrorist targets, the solicitation of funds for a terrorist organization or the solicitation of others to undertake acts of terrorism. Those who provide knowing assistance to a person who is planning to perform such activities are defined as undertaking terrorist activities. Such assistance includes affording material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training to perform the terrorist act. The INA criteria for making a decision to designate an organization as a terrorist organization was amended to include the definition of a terrorist act. Though the amendments to these definitions are retroactive, it does not mean that it can be applied to members who joined an organization, but since left, before it was designated to be a terrorist organization under 8 U.S.C.§ 1189 by the Secretary of State.
The Act amended the INA to add new provisions enforcing mandatory detention laws. These apply to any alien who is engaged in terrorism, or who is engaged in an activity that endangers U.S. national security. It also applies to those who are inadmissible or who must be deported because it is certified they are attempting to enter to undertake illegal espionage; are exporting goods, technology, or sensitive information illegally; or are attempting to control or overthrow the government; or have, or will have, engaged in terrorist activities. The Attorney General or the Attorney General’s deputy may maintain custody of such aliens until they are removed from the U.S., unless it is no longer deemed they should be removed, in which case they are released. The alien can be detained for up to 90 days but can be held up to six months after it is deemed that they are a national security threat. However, the alien must be charged with a crime or removal proceedings start no longer than seven days after the alien’s detention, otherwise the alien will be released. However, such detentions must be reviewed every six months by the Attorney General, who can then decide to revoke it, unless prevented from doing so by law. Every six months the alien may apply, in writing, for the certification to be reconsidered.Judicial review of any action or decision relating to this section, including judicial review of the merits of a certification, can be held underhabeas corpus proceedings. Such proceedings can be initiated by an application filed with the United States Supreme Court, by any justice of the Supreme Court, by any circuit judge of the United States Court of Appeals for the District of Columbia Circuit, or by any district court otherwise having jurisdiction to entertain the application. The final order is subject to appeal to the United States Court of Appeals for the District of Columbia Circuit. Provisions were also made for a report to be required every six months of such decisions from the U.S. Attorney General to the Committee on the Judiciary of the House of Representatives and theCommittee on the Judiciary of the Senate.
A sense of Congress was given that the U.S. Secretary of State should expedite the full implementation of the integrated entry and exit data system for airports, seaports, and land border ports of entry specified in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). They also found that the U.S. Attorney General should immediately start the Integrated Entry and Exit Data System Task Force specified in section 3 of the Immigration and Naturalization Service Data Management Improvement Act of 2000. Congress wanted the primary focus of development of the entry-exit data system was to be on the utilization of biometric technology and the development of tamper-resistant documents readable at ports of entry. They also wanted the system to be able to interface with existing law enforcement databases. The Attorney General was ordered to implement and expand the foreign student monitoring program that was established under section 641(a) of the IIRIRA. which records the date and port of entry of each foreign student. The program was expanded to include other approved educational institutions, including air flight schools, language training schools or vocational schools that are approved by the Attorney General, in consultation with the Secretary of Education and the Secretary of State. US$36,800,000 was appropriated for the Department of Justice to spend on implementing the program.
The Secretary of State was ordered to audit and report back to Congress on the Visa waiver program specified under 8 U.S.C.§ 1187 for each fiscal year until September 30, 2007. The Secretary was also ordered to check for the implementation of precautionary measures to prevent the counterfeiting and theft of passports as well as ascertain that countries designated under the visa waiver program have established a program to develop tamper-resistant passports. The Secretary was also ordered to report back to Congress on whether consulate shopping was a problem.
The last subtitle, which was introduced by Senators John Conyers and Patrick Leahy, allows for the preservation of immigration benefits for victims of terrorism, and the families of victims of terrorism. They recognized that some families, through no fault of their own, would either be ineligible for permanent residence in the United States because of being unable to make important deadlines because of the September 11 terrorist attacks, or had become ineligible to apply for special immigration status because their loved one died in the attacks.
Title V: Removing obstacles to investigating terrorism
It allows the U.S. Attorney General to pay rewards pursuant of advertisements for assistance to the Department of Justice to combat terrorism and prevent terrorist acts, though amounts over $US250,000 may not be made or offered without the personal approval of the Attorney General or President, and once the award is approved the Attorney General must give written notice to the Chairman and ranking minority members of the Committee on Appropriations and the Judiciary of the Senate and of the House of Representatives. The State Department Basic Authorities Act of 1956 was amended to allow the Department of State to offer rewards, in consultation with the Attorney General, for the full or significant dismantling of any terrorist organization and to identify any key leaders of terrorist organizations. The Secretary of State was given authority to pay greater than $US5 million if he so determines it would prevent terrorist actions against the United States and Canada. The DNA Analysis Backlog Elimination Act was amended to include terrorism or crimes of violence in the list of qualifying Federal offenses. Another perceived obstacle was to allow Federal agencies to share information with Federal law enforcement agencies. Thus, the act now allows Federal officers who acquire information through electronic surveillance or physical searches to consult with Federal law enforcement officers to coordinate efforts to investigate or protect against potential or actual attacks, sabotage or international terrorism or clandestine intelligence activities by an intelligence service or network of a foreign power.
Secret Service jurisdiction was extended to investigate computer fraud, access device frauds, false identification documents or devices, or any fraudulent activities against U.S. financial institutions. The General Education Provisions Act was amended to allow the U.S. Attorney General or Assistant Attorney General to collect and retain educational records relevant to an authorized investigation or prosecution of an offense that is defined as a Federal crime of terrorism and which an educational agency or institution possesses. The Attorney General or Assistant Attorney General must “certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain information [that a Federal crime of terrorism may be being committed].” An education institution that produces education records in response to such a request is given legal immunity from any liability that rises from such a production of records.
One of the most controversial aspects of the USA PATRIOT Act is in title V, and relates to National Security Letters (NSLs). An NSL is a form of administrative subpoena used by the FBI, and reportedly by other U.S. government agencies including the CIA and the Department of Defense (DoD). It is a demand letter issued to a particular entity or organization to turn over various records and data pertaining to individuals. They require no probable cause or judicial oversight and also contain a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued. Title V allowed the use of NSLs to be made by a Special Agent in charge of a Bureau field office, where previously only the Director or the Deputy Assistant Director of the FBI were able to certify such requests. This provision of the Act was challenged by the ACLU on behalf of an unknown party against the U.S. government on the grounds that NSLs violate the First and Fourth Amendments of the U.S. Constitution because there is no way to legally oppose an NSL subpoena in court, and that it was unconstitutional not to allow a client to inform their Attorney as to the order because of the gag provision of the letters. The court’s judgement found in favour of the ACLU’s case, and they declared the law unconstitutional. Later, the USA PATRIOT Act was reauthorized and amendments were made to specify a process of judicial review of NSLs and to allow the recipient of an NSL to disclose receipt of the letter to an attorney or others necessary to comply with or challenge the order. However, in 2007 the U.S. District Court struck down even the reauthorized NSLs because the gag power was unconstitutional as courts could still not engage in meaningful judicial review of these gags.
Title VI: Victims and families of victims of terrorism
Title VI made amendments to the Victims of Crime Act of 1984 (VOCA) in order to make changes to how the U.S. Victims of Crime Fund was managed and funded. Changes were made to VOCA to improve the speedy provision of aid to families of public safety officers by expedited payments to officers or the families of officers. Under the changes, payments must be made no later than 30 days after the officer is injured or killed in the line of duty. The Assistant Attorney General was given expanded authority under section 614 of the USA PATRIOT Act to make grants to any organization that administers any Office of Justice Programs, which includes the Public Safety Officers Benefits Program. Further changes to the Victims of Crime Fund increased the amount of money in the Fund, and changed the way that funds were distributed. The amount available for grants made through the Crime Victim Fund to eligible crime victim compensation programs were increased from 40 percent to 60 percent of the total in the Fund. A program can provide compensation to U.S. citizens who were adversely affected overseas.Means testing was also waived for those who apply for compensation. Under VOCA, the Director may make an annual grant from the Crime Victims Fund to support crime victim assistance programs. An amendment was made to VOCA to include offers of assistance to crime victims in the District of Columbia, theCommonwealth of Puerto Rico, the United States Virgin Islands, and any other U.S. territory. VOCA also provides for compensation and assistance to victims of terrorism or mass violence. This was amended to allow the Director to make supplemental grants to States for eligible crime victim compensation and assistance programs, and to victim service organizations, public agencies (including Federal, State, or local governments) and non-governmental organizations that provide assistance to victims of crime. The funds could be used to provide emergency relief, including crisis response efforts, assistance, compensation, training and technical assistance for investigations and prosecutions of terrorism.
Title VII: Increased information sharing for critical infrastructure protection
Title VII has one section. The purpose of this title is to increase the ability of U.S. law enforcement to counter terrorist activity that crosses jurisdictional boundaries. It does this by amending the Omnibus Crime Control and Safe Streets Act of 1968 to include terrorism as a criminal activity.
Title VIII alters the definitions of terrorism, and establishes or re-defines rules with which to deal with it. It redefined the term “domestic terrorism” to broadly include mass destruction as well as assassination or kidnapping as a terrorist activity. The definition also encompasses activities that are “dangerous to human life that are a violation of the criminal laws of the United States or of any State” and are intended to “intimidate or coerce a civilian population,” “influence the policy of a government by intimidation or coercion,” or are undertaken “to affect the conduct of a government by mass destruction, assassination, or kidnapping” while in the jurisdiction of the United States. Terrorism is also included in the definition of racketeering. Terms relating to cyber-terrorism are also redefined, including the term “protected computer,” “damage,” “conviction,” “person,” and “loss.”
New penalties were created to convict those who attack mass transportation systems. If the offender committed such an attack while no passenger was on board, they are fined and imprisoned for a maximum of 20 years. However, if the activity was undertaken while the mass transportation vehicle or ferry was carrying a passenger at the time of the offense, or the offense resulted in the death of any person, then the punishment is a fine and life imprisonment. The title amends the biological weapons statute to define the use of a biological agent, toxin, or delivery system as a weapon, other than when it is used for “prophylactic, protective,bona fide research, or other peaceful purposes.” Penalties for anyone who cannot prove reasonably that they are using a biological agent, toxin or delivery system for these purposes are 10 years imprisonment, a fine or both.
A number of measures were introduced in an attempt to prevent and penalize activities that are deemed to support terrorism. It was made a crime to harbor or conceal terrorists, and those who do are subject to a fine or imprisonment of up to 10 years, or both. U.S. forfeiture law was also amended to allow authorities to seize all foreign and domestic assets from any group or individual that is caught planning to commit acts of terrorism against the U.S. or U.S. citizens. Assets may also be seized if they have been acquired or maintained by an individual or organization for the purposes of further terrorist activities. One section of the Act (section 805) prohibited “material support” for terrorists, and in particular included “expert advice or assistance.” This was struck down as unconstitutional by aU.S. Federal Court after the Humanitarian Law Project filed a civil action against the U.S. government. The court found that it violated the First and Fifth Amendments to the United States Constitution and the provision was so vague it would cause a person of average intelligence to have to guess whether they were breaking the law, thus leading to a potential situation where a person was charged for an offense that they had no way of knowing was illegal. The court found that this could potentially have the effect of allowing arbitrary and discriminatory enforcement of the law, as well as possible chilling effects on First Amendment rights. Congress later improved the law by defining the definitions of the “material support or resources,” “training,” and “expert advise or resources.”
Cyberterrorism was dealt with in various ways. Penalties apply to those who either damage or gain unauthorized access to a protected computer and then commit a number of offenses. These offenses include causing a person to lose an aggregate amount greater than US$5,000, as well as adversely affecting someone’s medical examination, diagnosis or treatment. It also encompasses actions that cause a person to be injured, a threat to public health or safety, or damage to a governmental computer that is used as a tool to administer justice, national defense or national security. Also prohibited was extortion undertaken via a protected computer. The penalty for attempting to damage protected computers through the use of viruses or other software mechanism was set to imprisonment for up to 10 years, while the penalty for unauthorized access and subsequent damage to a protected computer was increased to more than five years imprisonment. However, should the offense occur a second time, the penalty increases up to 20 years imprisonment. The act also specified the development and support of cybersecurity forensic capabilities. It directs the Attorney General to establish regional computer forensic laboratories that have the capability of performing forensic examinations of intercepted computer evidence relating to criminal activity and cyberterrorism, and that have the capability of training and educating Federal, State, and local law enforcement personnel and prosecutors in computer crime, and to “facilitate and promote the sharing of Federal law enforcement expertise and information about the investigation, analysis, and prosecution of computer-related crime with State and local law enforcement personnel and prosecutors, including the use of multijurisdictional task forces.” The sum of $50,000,000 was authorized for establishing such labs.
Title IX amends the National Security Act of 1947 to require the Director of Central Intelligence (DCI) to establish requirements and priorities for foreign intelligence collected under FISA and to provide assistance to the United States Attorney General to ensure that information derived from electronic surveillance or physical searches is disseminated for efficient and effective foreign intelligence purposes. With the exception of information that might jeopardize an ongoing law enforcement investigation, it was made a requirement that the Attorney General, or the head of any other department or agency of the Federal Government with law enforcement responsibilities, disclose to the Director any foreign intelligence acquired by the U.S. Department of Justice. The Attorney General and Director of Central Intelligence were directed to develop procedures for the Attorney General to follow in order to inform the Director, in a timely manner, of any intention of investigating criminal activity of a foreign intelligence source or potential foreign intelligence source based on the intelligence tip-off of a member of the intelligence community. The Attorney General was also directed to develop procedures on how to best administer these matters. International terrorist activities were made to fall within the scope of foreign intelligence under the National Security Act.
A number of reports were commissioned relating to various intelligence-related government centers. One was commissioned into the best way of setting up theNational Virtual Translation Center, with the goal of developing automated translation facilities to assist with the timely and accurate translation of foreign intelligence information for elements of the U.S. intelligence community. The USA PATRIOT Act required this to be provided on February 1, 2002, however the report, entitled “Director of Central Intelligence Report on the National Virtual Translation Center: A Concept Plan to Enhance the Intelligence Community’s Foreign Language Capabilities, April 29, 2002” was received more than two months late, which the Senate Select Committee on Intelligence reported was “a delay which, in addition to contravening the explicit words of the statute, deprived the Committee of timely and valuable input into its efforts to craft this legislation.” Another report was commissioned on the feasibility and desirability of reconfiguring the Foreign Terrorist Asset Tracking Center and the Office of Foreign Assets Control of the Department of the Treasury. It was due by February 1, 2002 however, it was never written. The Senate Select Committee on Intelligence later complained that “[t]he Director of Central Intelligence and the Secretary of the Treasury failed to provide a report, this time in direct contravention of a section of the USA PATRIOT Act” and they further directed “that the statutorily-directed report be completed immediately, and that it should include a section describing the circumstances which led to the Director’s failure to comply with lawful reporting requirements.”
Other measures allowed certain reports on intelligence and intelligence-related matters to be deferred until either February 1, 2002 or a date after February 1, 2002 if the official involved certified that preparation and submission on February 1, 2002, would impede the work of officers or employees engaged in counterterrorism activities. Any such deferral required congressional notification before it was authorized. The Attorney General was charged with training officials in identifying and utilizing foreign intelligence information properly in the course of their duties. The government officials include those in the Federal Government who do not normally encounter or disseminate foreign intelligence in the performance of their duties, and State and local government officials who encounter, or potentially may encounter in the course of a terrorist event, foreign intelligence in the performance of their duties. A sense of Congress was expressed that officers and employees of the intelligence community should be encouraged to make every effort to establish and maintain intelligence relationships with any person, entity, or group while they conduct lawful intelligence activities.
Title X created or altered a number of miscellaneous laws that did not really fit into the any other section of the USA PATRIOT Act. Hazmat licenses were limited to drivers who pass background checks and who can demonstrate they can handle the materials. The Inspector General of the Department of Justice was directed to appoint an official to monitor, review and report back to Congress all allegations of civil rights abuses against the DoJ. It amended the definition of “electronic surveillance” to exclude the interception of communications done through or from a protected computer where the owner allows the interception, or is lawfully involved in an investigation. Money laundering cases may now be brought in the district the money laundering was committed or where a money laundering transfer started from. Aliens who committed money laundering were also prohibited from entering the U.S. Grants were provided to first responders to assist them with responding to and preventing terrorism. US$5,000,000 was authorized to be provided to the Drug Enforcement Administration (DEA) to train police inSouth and East Asia. The Attorney General was directed to commission a study on the feasibility of using biometric identifiers to identify people as they attempt to enter the United States, and which would be connected to the FBI’s database to flag suspected criminals. Another study was also commissioned to determine the feasibility of providing airlines names of suspected terrorists before they boarded flights. The Department of Defense was given temporary authority to use their funding for private contracts for security purposes. The last title also created a new Act called the Crimes Against Charitable Americans Act which amended the Telemarketing and Consumer Fraud and Abuse Prevention Act to require telemarketers who call on behalf of charities to disclose the purpose and other information, including the name and mailing address of the charity the telemarketer is representing. It also increased the penalties from one year imprisonment to five years imprisonment for those committing fraud by impersonating a Red Cross member.
The USA PATRIOT Act was reauthorized by three bills. The first, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, was passed by both houses of Congress in July 2005. This bill reauthorized provisions of the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act of 2004. It created new provisions relating to the death penalty for terrorists, enhancing security at seaports, new measures to combat the financing of terrorism,new powers for the Secret Service, anti-methamphetamine initiatives and a number of other miscellaneous provisions. The second reauthorization act, theUSA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, amended the first and was passed in February 2006.
The first act reauthorized all but two of the provisions of Title II that would have expired. Two sections were changed to sunset on December 31, 2009: section 206—the roving wiretap provision—and section 215, which allowed access to business records under FISA. Section 215 was amended further regardless so as to give greater judicial oversight and review. Such orders were also restricted to be authorized by only the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security, and minimization procedures were specified to limit the dissemination and collection of such information. Section 215 also had a “gag” provision, which was changed to allow the defendant to contact their Attorney. However, the change also meant that the defendant was also made to tell the FBI who he (or she) was disclosing the order to—this requirement was removed by the USA PATRIOT Act Additional Reauthorizing Amendments Act.
On Saturday, February 27, 2010, President Barack Obama signed into law legislation that would temporarily extend for one year three controversial provisions of the Patriot Act that had been set to expire:
Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
Allow court-approved seizure of records and property in anti-terrorism operations.
Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.
In a vote on February 8, 2011, the House of Representatives considered a further extension of the Act through the end of 2011. House leadership moved the extension bill under suspension of the rules, which is intended for noncontroversial legislation and requires two-thirds majority to pass. After the vote, the extension bill did not pass; 277 members voted in favor, which was less than the 290 votes needed to pass the bill under suspension of the rules. Without an extension, the Act was set to expire on February 28, 2011. However, it eventually passed, 275-144. The FISA Sunsets Extension Act of 2011 was signed into law February 25, 2011.
On May 26, 2011, President Barack Obama used an Autopen to sign the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the USA PATRIOT Act while he was in France:roving wiretaps, searches of business records (the “library records provision“), and conducting surveillance of “lone wolves”—individuals suspected of terrorist-related activities not linked to terrorist groups. Republican leaders questioned if the use of the Autopen met the constitutional requirements for signing a bill into law.
As NSL provisions of the USA PATRIOT Act had been struck by the courts the reauthorization Act amended the law in an attempt to make them lawful. It provided for judicial review and the legal right of a recipient to challenge the validity of the letter. The reauthorization act still allowed NSLs to be closed and all evidence to be presented in camera and ex parte. Gag provisions were maintained, but were not automatic. They only occurred when the Deputy Assistant Director of the FBI or a Special Agent in Charge in a Bureau field office certified that disclosure would result in “a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person”. However, should there be no non-disclosure order, the defendant can disclose the fact of the NSL to anyone who can render them assistance in carrying out the letter, or to an attorney for legal advice. Again, however, the recipient was ordered to inform the FBI of such a disclosure. Because of the concern over the chilling effects of such a requirement, the Additional Reauthorization Amendments Act removed the requirement to inform the FBI that the recipient spoke about the NSL to their Attorney. Later, the Additional Reauthorization Amendments Act excluded libraries from receiving NSLs, except where they provide electronic communications services. The reauthorization Act also ordered the Attorney General submit a report semi-annually to the House and Senate Judiciary Committees, the House and Senate Intelligence Committees and the House Committee on Financial Services and the Senate Committee on Banking, Housing, and Urban Affairs on all NSL request made under the Fair Credit Reporting Act.
Changes were made to the roving wiretap provisions of the USA PATRIOT Act. Applications and orders for such wiretaps must describe the specific target of the electronic surveillance if the identity of the target is not known. If the nature and location of each of the facilities or places targeted for surveillance is not known, then after 10 days the agency must provide notice to the court. The notice must include the nature and location of each new facility or place at which the electronic surveillance was directed. It must also describe the facts and circumstances relied upon by the applicant to justify the applicant’s belief that each new surveillance place or facility under surveillance is or was being used by the target of the surveillance. The applicant must also provide a statement detailing any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed. Applicants must detail the total number of electronic surveillances that have been or are being conducted under the authority of the order.
Section 213 of the USA PATRIOT Act was modified. Previously it stated that delayed notifications would be made to recipients of “sneak and peek” searches in a “reasonable period”. This was seen as unreasonable, as it was undefined and could potentially be used indefinitely. Thus, the reauthorization act changed this to a period not exceeding 30 days after the date of the execution of the search warrant. Courts were given the opportunity to extend this period if they were provided good cause to do so. Section 213 states that delayed notifications could be issued if there is “reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result”. This was criticized, particularly by the ACLU, for allowing potential abuse by law enforcement agencies and was later amended to prevent a delayed notification “if the adverse results consist only of unduly delaying a trial.”. On September 26, 2007 the Sneak and Peak provisions of the USA PATRIOT ACT were struck down, however, by an Oregon US District Court in an opinion indicating the provisions gave too much power to the Executive in the face of the 4th Amendment.
The reauthorization act also legislates increased congressional oversight for emergency disclosures by communication providers undertaken under section 212 of the USA PATRIOT Act. The duration of FISA surveillance and physical search orders were increased. Surveillance performed against “lone wolf terrorists” under section 207 of the USA PATRIOT Act were increased to 120 days for an initial order, while pen registers and trap and trace device extensions under FISA were increased from 90 days to a year. The reauthorization act also increased congressional oversight, requiring a semi-annual report into physical searches and the use of pen registers and trap and trace devices under FISA. The “lone wolf terrorist” provision (Section 207) was a sunset provision that also was to have expired, however this was enhanced by the Intelligence Reform and Terrorism Prevention Act of 2004. The reauthorization act extended the expiration date to December 31, 2009. The amendment to material support law done in the Intelligence Reform and Terrorism Prevention Act was also made permanent. The definition of terrorism was further expanded to include receiving military-type training from a foreign terrorist organization and narcoterrorism. Other provisions of the reauthorization act was to merge the law outlawing train wrecking (18 U.S.C.§ 992) and the law outlawing attacks on mass transportation systems (18 U.S.C.§ 1993) into a new section of Title 18 of the U.S. Code (18 U.S.C.§ 1992) and also to criminalize the act of planning a terrorist attack against a mass transport system.Forfeiture law was further changed and now assets within U.S. jurisdiction will be seized for illegally trafficking in nuclear, chemical, biological or radiological weapons technology or material, if such offense is punishable under foreign law by death or imprisonment for a term exceeding one year. Alternatively, this applies if similar punishment would be so punishable if committed within the U.S. A sense of Congress was further expressed that victims of terrorism should be entitled to the forfeited assets of terrorists.
The USA PATRIOT Act has generated a great deal of controversy since its enactment.
Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks, believing that there would have been little debate. They view the Act as one that was hurried through the Senate with little change before it was passed. (Senators Patrick Leahy and Russell Feingoldproposed amendments to modify the final revision.)
The sheer magnitude of the Act itself was noted by Michael Moore in his controversial film Fahrenheit 9/11. In one of the scenes of the movie, he records Congressman Jim McDermott alleging that no Senator had read the bill and John Conyers, Jr. as saying, “We don’t read most of the bills. Do you really know what that would entail if we read every bill that we passed?” Congressman Conyers then answers his own rhetorical question, asserting that if they did it would “slow down the legislative process”. As a dramatic device, Moore then hired an ice-cream van and drove around Washington, D.C. with a loud speaker, reading out the Act to puzzled passers-by, which included a few Senators.
However, Moore was not the only commentator to notice that not many people had read the Act. When Dahlia Lithwick and Julia Turne for Slate asked, “How bad is PATRIOT, anyway?”, they decided that it was “hard to tell” and stated:
The ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law “modest and incremental.” Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances.
One prime example of a controversy of the Patriot Act is shown in the case of Susan Lindauer.
Another is the recent court case United States v. Antoine Jones. A nightclub owner was linked to a drug trafficking stash house via a law enforcement GPS tracking device attached to his car. It was placed there without a warrant, which caused a serious conviction obstacle for federal prosecutors in court. Through the years the case rose all the way to the United States Supreme Court where the conviction was overturned in favor of the defendant. The court found that increased monitoring of suspects caused by such legislation like the Patriot Act directly put the suspects’ Constitutional rights in jeopardy.
The Electronic Privacy Information Center (EPIC) has criticized the law as unconstitutional, especially when “the private communications of law-abiding American citizens might be intercepted incidentally”, while the Electronic Frontier Foundation held that the lower standard applied to wiretaps “gives the FBI a ‘blank check’ to violate the communications privacy of countless innocent Americans”. Others do not find the roving wiretap legislation to be as concerning. Professor David D. Cole of the Georgetown University Law Center, a critic of many of the provisions of the Act, found that though they come at a cost to privacy are a sensible measure while Paul Rosenzweig, a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at the Heritage Foundation, argues that roving wiretaps are just a response to rapidly changing communication technology that is not necessarily fixed to a specific location or device.
The Act also allows access to voicemail through a search warrant rather than through a title III wiretap order. James Dempsey, of the CDT, believes that it unnecessarily overlooks the importance of notice under the Fourth Amendment and under a Title III wiretap, and the EFF criticizes the provision’s lack of notice. However, the EFF’s criticism is more extensive—they believe that the amendment “is in possible violation of the Fourth Amendment to the U.S. Constitution” because previously if the FBI listened to voicemail illegally, it could not use the messages in evidence against the defendant. Others disagree with these assessments. Professor Orin Kerr, of the George Washington University school of law, believes that the ECPA “adopted a rather strange rule to regulate voicemail stored with service providers” because “under ECPA, if the government knew that there was one copy of an unopened private message in a person’s bedroom and another copy on their remotely stored voicemail, it was illegal for the FBI to simply obtain the voicemail; the law actually compelled the police to invade the home and rifle through peoples’ bedrooms so as not to disturb the more private voicemail.” In Professor Kerr’s opinion, this made little sense and the amendment that was made by the USA PATRIOT Act was reasonable and sensible.
The USA PATRIOT Act’s expansion of court jurisdiction to allow the nationwide service of search warrants proved controversial for the EFF. They believe that agencies will be able to “‘shop’ for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no—even if the warrant doesn’t satisfy the strict requirements of the Fourth Amendment to the Constitution”, and that it reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court—their reasoning is that “a small San Francisco ISP served with such a warrant is unlikely to have the resources to appear before the New York court that issued it.” They believe that this is bad because only the communications provider will be able to challenge the warrant as only they will know about it—many warrants are issued ex parte, which means that the target of the order is not present when the order is issued.
For a time, the USA PATRIOT Act allowed for agents to undertake “sneak and peek” searches. Critics such as EPIC and the ACLU strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed.
However supporters of the amendment, such as Heather Mac Donald, a fellow at the Manhattan Institute and contributing editor to the New York City Journal, expressed the belief that it was necessary because the temporary delay in notification of a search order stops terrorists from tipping off counterparts who are being investigated.
In 2004, FBI agents used this provision to search and secretly examine the home of Brandon Mayfield, who was wrongfully jailed for two weeks on suspicion of involvement in the Madrid train bombings. While the U.S. Government did publicly apologize to Mayfield and his family, Mayfield took it further through the courts. On September 26, 2007, Judge Ann Aiken found the law was, in fact, unconstitutional as the search was an unreasonable imposition on Mayfield and thus violated the Fourth Amendment.
Laws governing the material support of terrorism proved contentious. It was criticized by the EFF for infringement of freedom of association. The EFF argues that had this law been enacted during Apartheid, U.S. citizens would not have been able to support the African National Congress (ANC) as the EFF believe the ANC would have been classed as a terrorist organization. They also used the example of a humanitarian social worker being unable to train Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians, a lawyer being unable to teach IRA members about international law, and peace workers being unable to offer training in effective peace negotiations or how to petition the United Nations regarding human rights abuses.
Another group, the Humanitarian Law Project, also objected to the provision prohibiting “expert advise and assistance” to terrorists and filed a suit against the U.S. government to have it declared unconstitutional. They succeeded, and a Federal Court found that the law was vague enough to cause a reasonable person to guess whether they were breaking the law or not. Thus they found it violated the First Amendment rights of U.S. citizens, and struck it down.
Perhaps one of the biggest controversies involved the use of NSLs by the FBI. Because they allow the FBI to search telephone, email, and financial records without a court order, they were criticized by many parties. In November 2005, BusinessWeek reported that the FBI had issued tens of thousands of NSLs and had obtained one million financial, credit, employment, and in some cases, health records from the customers of targeted Las Vegas businesses. Selected businesses included casinos, storage warehouses and car rental agencies. An anonymous Justice official claimed that such requests were permitted under section 505 of the USA PATRIOT Act and despite the volume of requests insisted “We are not inclined to ask courts to endorse fishing expeditions”. Before this was revealed, however, the ACLU challenged the constitutionality of NSLs in court. In April 2004, they filed suit against the government on behalf of an unknown Internet Service Provider who had been issued an NSL, for reasons unknown. In ACLU v. DoJ, the ACLU argued that the NSL violated the First and Fourth Amendments of the U.S. Constitution because the USA PATRIOT Act failed to spell out any legal process whereby a telephone or Internet company could try to oppose an NSL subpoena in court. The court agreed, and found that because the recipient of the subpoena could not challenge it in court it was unconstitutional. Congress later tried to remedy this in a reauthorization Act, but because they did not remove the non-disclosure provision a Federal court again found NSLs to be unconstitutional because they prevented courts from engaging in meaningful judicial review.
Another provision of the USA PATRIOT Act has caused a great deal of consternation amongst librarians. Section 215 allows the FBI to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. Among the “tangible things” that could be targeted, it includes “books, records, papers, documents, and other items”.
Supporters of the provision point out that these records are held by third parties, and therefore are exempt from a citizen’s reasonable expectations of privacy and also maintain that the FBI has not abused the provision. As proof, then Attorney General John Ashcroft released information in 2003 that showed that section 215 orders had never been used.
However, despite protestations to the contrary, the American Library Association strongly objected to the provision, believing that library records are fundamentally different from ordinary business records, and that the provision would have a chilling effect on free speech. The association became so concerned that they formed a resolution condemning the USA PATRIOT Act, and which urged members to defend free speech and protect patrons’ privacy.
They urged librarians to seek legal advice before complying with a search order and advised their members to only keeping records for as long as was legally needed.
Consequently, reports started filtering in that librarians were shredding records to avoid having to comply with such orders.
In 2005, Library Connection, a nonprofit consortium of 27 libraries in Connecticut, known as the Connecticut Four worked with the ACLU to lift a gag order for library records, challenging the government’s power under Section 505 to silence four citizens who wished to contribute to public debate on the PATRIOT Act. This case became known as Doe v. Gonzales. In May 2006, the government finally gave up its legal battle to maintain the gag order. In a summary of the actions of the Connecticut Four and their challenge to the USA PATRIOT Act, Jones (2009: 223) notes: “Librarians need to understand their country’s legal balance between the protection of freedom of expression and the protection of national security. Many librarians believe that the interests of national security, important as they are, have become an excuse for chilling the freedom to read.”
Another controversial aspect of the USA PATRIOT Act is the immigration provisions that allow for the indefinite detention of any alien who the Attorney General believes may cause a terrorist act. Before the USA PATRIOT Act was passed, Anita Ramasastry, an associate professor of law and a director of the Shidler Center for Law, Commerce, & Technology at the University of Washington School of Law in Seattle, Washington, accused the Act of depriving basic rights for immigrants to America, including legal permanent residents. She warned that “Indefinite detention upon secret evidence—which the USA PATRIOT Act allows—sounds more like Taliban justice than ours. Our claim that we are attempting to build an international coalition against terrorism will be severely undermined if we pass legislation allowing even citizens of our allies to be incarcerated without basic U.S. guarantees of fairness and justice.” Many other parties have also been strongly critical of the provision. Russell Feingold, in a Senate floor statement, claimed that the provision “falls short of meeting even basic constitutional standards of due process and fairness [as it] continues to allow the Attorney General to detain persons based on mere suspicion”. The University of California passed a resolution condemning (amongst other things) the indefinite detention provisions of the Act, while the ACLU has accused the Act of giving the Attorney General “unprecedented new power to determine the fate of immigrants … Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial.”
Another controversial aspect of the USA PATRIOT Act is its effect on the privacy of Canadians living in the province of British Columbia (B.C.). British Columbia’s privacy commissioner raises concerns that the USA PATRIOT Act will allow the United States government to access Canadians’ private information, such as personal medical records, that are outsourced to American companies. Although the government of B.C. has taken measures to prevent United States authorities from obtaining information, the widespread powers of the USA PATRIOT Act could overcome legislation that is passed in Canada. B.C. Privacy Commissioner David Loukidelis stated in a report on the consequences of the USA PATRIOT Act, “once information is sent across borders, it’s difficult, if not impossible, to control”.
In an effort to maintain their privacy, British Columbia placed amendments on the Freedom of Information and Protection of Privacy Act (FOIPPA), which was enacted as law on October 21, 2004. These amendments aim to place more firm limitations on “storing, accessing, and disclosing of B.C. public sector data by service providers.” These laws only pertain to public sector data and do not cover trans-border or private sector data in Canada. The public sector establishments include an estimated 2,000 “government ministries, hospitals, boards of health, universities and colleges, school boards, municipal governments and certain Crown corporations and agencies.” In response to these laws, many companies are now specifically opting to host their sensitive data outside the United States.
Legal action has been taken in Nova Scotia to protect the province from the USA PATRIOT Act’s data collecting methods. On November 15, 2007 the government of Nova Scotia passed a legislation aimed to protect Nova Scotians’ personal information from being brought forward by the USA PATRIOT Act. The act was entitled “The new Personal Information International Disclosure Protection Act”. The goal of the act is to establish requirements to protect personal information from being revealed, as well as punishments for failing to do so. Justice Minister Murray Scott stated, “This legislation will help ensure that Nova Scotians’ personal information will be protected. The act outlines the responsibilities of public bodies, municipalities and service providers and the consequences if these responsibilities are not fulfilled.” In the 1980s, the Bank of Nova Scotia was the center of an early, pre-Internet data-access case that led to the disclosure of banking records.
After suspected abuses of the USA PATRIOT Act were brought to light in June 2013 with articles about collection of American call records by the NSA and thePRISM program (see 2013 mass surveillance disclosures), Representative Jim Sensenbrenner, Republican of Wisconsin, who introduced the Patriot Act in 2001, said that the National Security Agency overstepped its bounds. He released a statement saying “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.” He added: “Seizing phone records of millions of innocent people is excessive and un-American.”
The ultimate goal of this provision is to protect people’s right to privacy and freedom from arbitrary governmental intrusions. Private intrusions not acting in the color of governmental authority are exempted from the Fourth Amendment.
A seizure of a person, within the meaning of the Fourth Amendment, occurs when the police’s conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is not free to ignore the police presence and leave at his will.
Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons, the use of forceful language, and physical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individual who ignores the officer’s request and walks away has not been seized for Fourth Amendmentpurposes.
There are investigatory stops that fall short of arrests, but nonetheless, they fall within Fourth Amendment protection. For instance, police officers can perform a terry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.
An officer’s reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantlessarrest.
There is no general exception to the Fourth Amendmentwarrant requirement in national security cases. Warrantlesssearches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to warrant requirement generally and, if accepted, whether the exception should include both physical searches and electronic surveillance.
Under the exclusionary rule, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings. There are a few exceptions to this rule.
VI. ELECTRONIC SURVEILLANCE
In recent years, the Fourth Amendment‘s applicability in electronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been an increasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. The Fourth Amendment applies to the search and seizure of electronic devices.
Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering community’s ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislation’s provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.
One provision permits law enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrant requires a much lower evidentiary showing. A highly controversial provision of the Act includes permission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrant’s issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and in violation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).
The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaning the person or persons responsible for complying cannot mention the existence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using an NSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.
Story 1: Part II, 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.
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Top NSA Whistleblower William Binney Exposes the Tyranny 3/20/15
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Glenn Greenwald: The NSA Can “Literally Watch Every Keystroke You Make”
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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 Greenwald on Domestic Surveillance: NSA Warrantless Wiretapping Controversy (2006)
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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.