VICTORY! A Historic Day for LGBT Equality

July 21st, 2014 No Comments   Posted in ACLU Nationwide
By Ian S. Thompson, ACLU Washington Legislative Office

“Many of you have worked for a long time to see this day coming. You organized, you spoke up, you signed petitions, you sent letters -- I know because I got a lot of them.”  

If you’ve ever questioned whether it matters to add your voice to debates about the important civil liberties issues of the day, President Obama’s words from earlier today provide a clear answer. Laura Murphy, director of the ACLU’s Washington Legislative Office, and I were two of the guests on hand this morning to witness President Obama’s signing of an historic executive order to protect LGBT people from workplace discrimination.

The ACLU and our hundreds of thousands of members and activists across the country helped to make this day possible. Together with our partners at All Out, 81,693 people signed a petition urging to President Obama to sign this executive order without an exemption for religiously affiliated contractors.

Had such an exemption been included in the executive order, it would have enabled taxpayer-funded employment discrimination against LGBT people. Thankfully, President Obama – at your urging – stood strong on the side of basic fairness and equal treatment for LGBT people by rejecting calls for such an exemption.

It goes without saying that we still have much work to do to achieve the goal of full civil rights protections for LGBT people. It’s important, however, to take time to celebrate the significant landmarks along the way. Today was such a day. Thank you for helping to make it possible.

Executive Order
The signed executive order.

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The FBI’s Counterterrorism Sting Operations Are Counterproductive

July 21st, 2014 No Comments   Posted in ACLU Nationwide
By Naureen Shah, ACLU Legislative Counsel

This piece originally ran on Al Jazeera America.

Adel Daoud is no Ferris Bueller.

A Chicago suburban teen, he couldn’t drive himself to the Jewel Osco grocery store down the street without getting lost, let alone pull a Bueller and hoodwink his parents into letting him have the day off school. He is a D student and forgetful in the extreme. “He’s not a person with a complete mind,” his mother told me.

Yet the FBI began targeting Daoud as a terrorist mastermind shortly after his 18th birthday. At the time the FBI began its sting operation, Daoud wasn’t part of a terrorist cell, nor was any group recruiting him. He was, though, on the Internet, looking for answers about Islam and jihad. At home and at his local mosque, the Muslim teen was told that jihad was nonviolent: It meant supporting your family by being a good son. FBI undercover employees, finding Daoud online, did not affirm that message. Instead, they worked with Daoud, ultimately driving him to downtown Chicago to detonate a weapon of mass destruction outside a bar.

Chicago’s Muslim communities were stunned by the Daoud’s arrest in September 2012. For many, the first question was why. Why target as a terrorist-in-waiting a teen who was plainly incapable of planning and conducting a terrorist attack? The second question was one of fear: Will my child be the FBI’s next target?

To finish reading the story, please click here.

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"The FBI’s Terror Machine, Tonight on HBO"

July 21st, 2014 No Comments   Posted in ACLU Nationwide
By Naureen Shah, ACLU Legislative Counsel

More suspense thriller than eat-your-broccoli documentary, The Newburgh Sting follows an FBI informant’s recruitment of four African-American men in an elaborate sting that made headlines in 2009 as a terrorist plot.

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After trolling a Newburgh, New York, mosque for months, the FBI informant met James Cromitie, a man quick to engage in hateful rhetoric. The informant encouraged Cromitie to turn his talk into action, even offering him $250,000, but Cromitie showed hesitation for months. It was only after he lost his job at Walmart that Cromitie came back to the informant, who designed the plot and directed Cromitie to recruit three other men. As a Second Circuit judge put it: “The government came up with a crime, provided the means, and removed all relevant obstacles.” Cromitie and the other men are serving 25 years in prison.

As the ACLU has reported, and a new Human Rights Watch report shows, the case isn’t isolated. The FBI has repeatedly used such aggressive tactics, providing gullible or vulnerable subjects financial support and other incentives for fake plots they may never have initiated on their own.

I sat down with David Heilbroner, director of the film, to get his perspective.

Q: What drew you to this case?

I was drawn to how egregiously wrong stings have gone in this area of anti-terror operations. The FBI was able to entice four destitute African Americans with no particular prospects in life, with $250,000, to do some bad deeds. The FBI is trying to sell this as a terrorist case, when really all you’ve got is proof that you can wave money at people who are desperate and poor and get them to “commit crimes.”

Q: What was the reaction of the African-American community in Newburgh, New York?

The immediate reaction, when we tried to talk to people, was fear. Nobody wanted to get involved. When you break through the fear barrier, what you find is extreme cynicism and disillusionment. It confirms that the government, instead of coming in with a jobs program and better schooling and better opportunities, sends in an informant to pick off low hanging fruit.

Q: In putting the film together, you read through hundreds of government documents. What did you make of them?

I think almost everybody working in the FBI and prosecutor’s office is motivated by very good ideals and goals. But it’s hard for me to look at this case and not think there isn’t some darker, cynical mentality at play. I interviewed [former FBI Assistant Director] Tom Fuentes for the film. He essentially said that we can’t go to Congress and say we’re winning the war on terror because they’ll cut our budget in half. And he said, “it’s the opposite of Jesse Jackson’s ‘keep hope alive’ -- it’s ‘keep fear alive.’”

They are creating these “terrorist” situations and then saying, “Look at all these busts we’re making.” So the implication is that there must be terrorists out there more than ever. It makes people scared. And it makes John Q. Public think that Muslims and terrorism go hand in hand because he sees these two concepts linked repeatedly in the press.

Q: How do you think the government will react to your film?

I think the FBI’s going to continue doing what they’re doing until Congress steps in and takes a hard look. The way the FBI has been criticized up until now is basically on civil rights complaints, entrapment, blatant Islamophobia. All of which are true. But what dawned on me as I made this film is a more elemental crime that the FBI is committing: fraud. The FBI took tax dollars, created a fake case, as a PR move for themselves. The sole purpose of it was to allow the FBI to inflate its sense of importance to both Congress and the American people.

The Newburgh Sting premieres tonight at 9pm Eastern on HBO.

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The NSA’s Other Privacy Loophole

July 18th, 2014 No Comments   Posted in ACLU Nationwide
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

Earlier today, a former State Department civil servant named John Tye published an important op-ed in the Washington Post, explaining that the NSA has created a giant loophole in Americans' right to privacy. While we now know a good deal about the NSA's spying on American soil, Tye explains, the NSA's powers to conduct surveillance on foreign soil should trouble us even more.

Surveillance on foreign soil takes place under Executive Order 12,333, an authority that contains few meaningful protections for the privacy of Americans. For example, if the NSA is spying abroad on foreigners and happens to pick up an American's international call, the NSA can keep listening without a warrant. It can also keep a recording of that call for a long time – even indefinitely, if any of a number of broad exceptions applies.

What's more, the meager protections for Americans in the executive order are not subject to meaningful oversight. Not even the Foreign Intelligence Surveillance Court approves the government's activities under the order, and earlier this year, Sen. Dianne Feinstein (D-Calif.) – the chair of the Senate Intelligence Committee – acknowledged that Congress has not been able to "sufficiently" oversee those activities.

We have long been concerned about the use of Executive Order 12,333 to circumvent traditional protections for Americans' right to privacy. Last year, just two weeks before the Snowden disclosures, we filed a Freedom of Information Act request seeking to learn more about the government's use of the executive order. In the lawsuit we filed to enforce the request, we explained "that the NSA is collecting vast quantities of data worldwide pursuant to EO 12,333," inevitably "sweep[ing] up the communications of U.S. persons."

Tye's op-ed, unfortunately, only confirms our fears. Here is how he explains it:

A legal regime in which U.S. citizens' data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders—or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of "mirror" servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.

In other words, Executive Order 12,333 is a loophole in Americans' right to privacy: so long as the NSA is targeting foreigners abroad, it can sweep up Americans' communications, too. We already know that the NSA has created and is exploiting a similar loophole under the FISA Amendments Act (which you can read about here). But the executive-order loophole is even more troubling, Tye explains, because it is subject to even less oversight than the FAA.

So, is the NSA exploiting the loophole created by Executive Order 12,333? On this question, Tye's Post op-ed is highly suggestive. He raises the possibility that the NSA might have revived its bulk internet-metadata program under the executive order:

Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because "we thought we could better protect civil liberties and privacy by doing away with it." Note, however, that Alexander never said that the NSA stopped collecting such data—merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans should dig deeper.

Tye also implies that the NSA could use the executive order even more broadly, making surveillance authorities like Section 215 of the Patriot Act – which the government relies upon for its bulk phone-records program – pale in comparison:

Consider the possibility that Section 215 collection does not represent the outer limits of collection on U.S. persons but rather is a mechanism to backfill that portion of U.S. person data that cannot be collected overseas under 12333.

Perhaps the most important lesson we should draw from Tye's op-ed is that we have yet to get a full and clear explanation from the NSA of its various surveillance authorities, particularly as they impact U.S. citizens and residents. Instead, we have received half-answers and artfully crafted denials. At a time when Congress is attempting to reform the NSA, it's time to demand more. Again, in Tye's words:

I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

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Making Flying While Brown Safe Again

July 18th, 2014 No Comments   Posted in ACLU Nationwide
By Rachel Goodman, Staff Attorney, ACLU Racial Justice Program

When Shoshana Hebshi boarded Frontier Flight 623 on September 11, 2011, she was heading home to Detroit Metro Airport from a visit to her sister in San Francisco. She couldn't have foreseen that being seated next to two other brown-skinned people would end up with her handcuffed, detained, and strip-searched by law enforcement.

Shoshana, born in the United States, is half Saudi Arabian, and the two men who were seated in her row were South Asian. None of them knew each other before they boarded the plane. Still, the airline and the government lumped them all together as suspicious after the two men used the lavatory one after another, for what some passengers believed was an unusually long time.

The airport's police officers have argued that they acted reasonably in detaining Shoshana and that they were justified in strip-searching her, despite the fact that no one ever suggested that she had done anything suspicious at all. This is just one example of how we, as a nation, seem to have lost track of a fundamental truth in the last decade: the Constitution protects all people from discrimination and from unreasonable searches and seizures.

And that's true even for brown people, on airplanes, on the 10th anniversary of 9/11.

But today, a federal trial court decision in Shoshana's case reminds us of that truth. Judge Berg wrote, "The fact that the events occurred on the tenth anniversary of September 11th, on a flight bound for a city previously targeted for a terrorist attack, does not absolve the WCAA Defendants, or any law enforcement officers, of their responsibility to conduct their police work in compliance with the United States Constitution." He further wrote that the court would not "sacrifice these principles of liberty to the cause of hyper-vigilance."

Despite this court decision and others like it, "flying while brown" has all too often been viewed as inherently suspicious in recent years.

Remember the Iraqi-born peace activist Raed Jarrar, who was prevented from boarding his flight while wearing a T-shirt with Arabic script on it?

Or the group of nine Muslim Americans removed from their flight because they discussed safety on the plane, of all things?

Or all those innocent folks prevented from flying, without any meaningful after-the-fact opportunity to clear their names, because of their presence on the government's secretive No Fly List?

Too many law enforcement officers and airline employees seem to think that discriminating against Muslims, South Asians, and Arabs on planes is not quite as bad as other forms of racial profiling. The Department of Justice (DOJ) opened the door to this bias-based thinking when it issued a 2003 policy guidance on racial profiling that prohibits the use of race "to any degree" in law enforcement investigation, except during national security and border integrity investigations.

While DOJ is in the process of revising that guidance, the proposed revisions would leave untouched those gaping exceptions to the racial profiling bar and would not prohibit profiling based on religion or national origin. Those are loopholes that law enforcement can drive a truck through. And just ask Shoshana – that kind of government profiling is no less traumatic and hurtful than any other form of discrimination.

Let's be clear: What happened to Shoshana Hebshi was illegal and unconstitutional, not to mention shameful. Today's court decision reminds us that none of us – brown, black, or white – should have to fear being arrested and strip-searched based on bias and stereotypes.

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Hobby Lobby and the Dignity of the Refused

July 17th, 2014 No Comments   Posted in ACLU Nationwide
By Louise Melling, Director, Center of Liberty; Deputy Legal Director, ACLU

Right now we are in a storm of contested rights, as businesses and institutions across the country ask for express legal permission to use religion to discriminate based on sexual orientation, sex, and gender identity.

Last month, the Supreme Court heightened the storm by ruling that the Hobby Lobby corporation doesn't have to comply with the law and provide its workers with insurance that covers contraception, effectively enshrining into law that religion can be used to discriminate against women.

The decision leaves open the question whether sincerely held religious belief can be used to discriminate in other ways, such as against LGBT people. For example, can businesses invoke religious beliefs as a justification to refuse to bake a cake or rent a reception hall for a same-sex couple?

As we've debated these religious exemptions, the harm to religious objectors caused by not granting these accommodations has been deeply examined. But the question less often asked – and the one the Supreme Court failed to address – is this, "What harm do we cause by granting exemptions to those who are refused?"

Proponents of religious exemptions have argued that they cause little harm, as long as the person can get the services elsewhere.

In a recently published paper, Marvin Lim and I argue that the harm goes far beyond the services denied – the cake or the flowers to celebrate a relationship, for example. The refusal to provide service comes at the expense of dignity of the person who is turned away and ostracized. Hobby Lobby, for example, tells women seeking to use certain contraception, "You are shameful. We won't help you."

Or as the Senate Commerce Committee said in the context of the Civil Rights Act of 1964, "Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public..."

Put another way, the sit-ins at the Woolworth counter weren't about getting a hot dog and a Coke. And David Mullins and Charlie Craig's complaint against Masterpiece Cakeshop isn't just about a cake.

They are about reclaiming the dignity taken away when someone can legally say, "We don't serve your kind here." Or in Hobby Lobby's case, "You are shameful. We won't help you."

Already, those who wish to advance religious exemptions are returning to the stale argument that these exceptions don't cause harm because those who are discriminated against can simply find a cake, a Coke, or contraception elsewhere.

Don't buy it.

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What to Expect When Your Employee’s Expecting

July 17th, 2014 No Comments   Posted in ACLU Nationwide
By Ariela Migdal, ACLU Women's Rights Project

Asia Myers was counting on the paycheck she earned at her job at a nursing home to buy supplies for the baby girl she was expecting.

She was shocked, however, when her employer, the Hope Healthcare Center, forced her to go out on unpaid leave after her doctor advised her not to lift as a result of pregnancy complications. After all, her employer routinely allows workers who are injured on the job to come to work, even when they have lifting restrictions.

Asia had to go without work for a month and struggled to make ends meet.

And then there's Ashley Provino.

Ashley was denied the right to pump breast milk at her job as a hair stylist. Instead of accommodating her need to pump every four hours, her employer drastically reduced her hours, and then fired her when she continued to request breaks for pumping. Her employer said it was because of her "limited availability," and because "work was not her first priority" now that she had a baby.

While firing and pushing out pregnant and breastfeeding workers may seem like something from the 1950s, today thousands of women face this kind of discrimination from their employers.

Fortunately, there may be some relief in sight.

This week the Equal Employment Opportunity Commission (EEOC) issued an enforcement guidance – its first on pregnancy discrimination in more than 30 years. The new guidance makes clear what Asia, Ashley, and other women have argued in discrimination complaints: that employers have to give pregnant workers, who have temporary restrictions related to their pregnancies, the same kinds of light-duty assignments and other reasonable accommodations that they give to other workers with temporary lifting restrictions, including workers who are injured on the job. The EEOC also said employers may not discriminate against workers for breastfeeding.

The guidance provides clarity to employers on a number of other points as well:

  • It makes clear that employers may not generally force pregnant workers who are able to work to take leave.
  • It explains that many pregnancy-related impairments, like preeclampsia or gestational diabetes, will qualify women directly for reasonable accommodations under the American with Disabilities Act.
  • It clarifies that discrimination against breastfeeding workers is covered under the Pregnancy Discrimination Act.
  • It specifies that if an employer provides parental leave over and above what's medically necessary to recover from childbirth, that leave must be available on an equal basis to male and female employees.

The new guidance is a welcome clarification. Too many workers, like Asia and Ashley, have been pushed out of the workplace and deprived of their ability to earn the income they need to provide for their families.

The guidance will go a long way towards eliminating this unlawful discrimination and inequality in the workplace.

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Location Apps Sharing Data With Governments

July 16th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

(Update: correction below)

Forbes reported last week that the crowdsourced mapping location service Waze is beginning to share bulk location data with government bodies—with Rio de Janeiro since 2013, and soon with the state of Florida. The cycling app Strava is also in talks to begin selling its data to urban planners, and the public-transportation app Moovit is already selling data to multiple cities.

We are not to worry about our privacy, a Waze spokesperson tells us, because the company replaces the names that accompany driving data with an alias.

The problem is, your location history IS your identity.

I use Waze sometimes, and all of my trips either begin or end at my home, so attaching an alias to my data does me little good in terms of privacy. In fact, as I’ve discussed before, it turns out that even relatively rough location information about a person will often identify them uniquely. For example, according to this study, just knowing the zip code (actually census tract, which is basically equivalent) of where you work, and where you live, will uniquely identify 5% of the population, and for half of Americans will place them in a group of 21 people or fewer. If you know the “census blocks” where somebody works and lives (an area roughly the size of a block in a city, but much larger in rural areas), the accuracy is much higher, with at least half the population being uniquely identified.

But of course Waze’s data could be used to get more precise data than that—in many cases, to determine a vehicle’s home address, which pretty much reveals who you are if you’re in a single-family home, and narrows it down pretty well even if you’re in a large apartment building. (Academic papers have been written on inferring home address from location data sets.)

To truly anonymize the data set, these companies would need to do much more. Possibilities might include snipping off the first and last mile of each journey (or whatever distance data scientists find is necessary depending on population density), introducing random changes or “fuzzing” the data, or lowering the resolution of the data by reducing the significant bits or resolution of the GPS coordinates. These techniques are not without their problems (snipping the trips would make short trips disappear from the database, for example, and fuzzing the data is susceptible to statistical cleaning). But, these problems are being worked on.

These kinds of data sets may prove truly useful for urban planners, who after all are working to make life better for everyone. Well-planned cities are certainly much more socially valuable than advertisers trying to shave a few cents’ more of efficiency out of ad delivery (though, at least one of the companies, Moovit, is also exploring sale of data to advertisers). We might hope that more robust anonymization techniques could preserve privacy without sacrificing the data’s usefulness to planners—or at least that some usefulness could be saved. But in the end, we do not want to become a society where individuals are constantly tracked, even if we pay some price in efficiency.

Meanwhile, if you use location services and don’t want records of your comings and goings landing in the laps of government officials and who-knows-who-else down the line, one simple solution is to, where practical and safe, keep the app turned off until you’re a mile from your home, and turn it off a mile before your destination.

Update & correction (7/16)

A representative of Waze (owned by Google), Julie Anne Mossler, sent a response to this post:

Waze only transmits road closures and incident reports to partners (accidents, traffic jams as reported by users) This information is 100% non-identifiable.

Waze does not allow free, unfiltered access to its data; rather, the company creates spreadsheets or opens its API to select partners which only passes along information critical to the partner’s specific issue.

For example, when we share an accident alert, the government does not know any identifying information about the cars involved, just that a Waze user nearby reported there was an incident. Even the Waze reporter is identified only by user name. Waze never collects license plate or similar identification at any time during a consumer’s use of the app. Even if we wanted to share a driver's route, we would not have the ability simply because of how this information is stored. And we have no desire to do so.

We are also in full compliance with Google’s policies regarding data sharing, considered to be some of the most stringent in the world.

This is good news! I don’t see any privacy problem with the sharing of data that Mossler describes. The Forbes article reads:

What may be especially tantalizing for planners is the super-accurate read Waze gets on exactly where drivers are going, by pinging their phones’ GPS once every second. The app can tell how fast a driver is moving and even get a complete record of their driving history, according to Waze spokesperson Julie Mossler. (UPDATE: Since this story was first published Waze has asked to clarify that it separates users’ names and their 30-day driving info. The driving history is categorized under an alias.)

This passively-tracked GPS data “is not something we share,” she adds. Waze, which Google bought last year for $1.3 billion, can turn the data spigots on and off through its application programing interface (API)

I don’t remember reading the line about “not something we share,” apparently I just missed it and therefore misunderstood what was happening, for which I apologize.

We’re glad to clarify that Google is not offering complete user location data to governments. We hope it will stay that way. These are, as Forbes said, “tantalizing” data sets, which is just one reason I still don’t like Google compiling and retaining my location data itself, even if it doesn’t share it.

Finally, remember that this is not just about Waze. There are a lot of other location apps and services out there, and will be even more the future. (I have sent a note to Strava and Moovit asking if they would also like to respond to what I’ve written and will update further as appropriate.)

Update 2 (7/17/14):

Representatives from Strava and Moovit contacted me to confirm that the way that they aggregate user data does not reveal individual location trails. Moovit wrote, "Moovit only shares data about average transit speeds and incident reports about specific lines (overcrowding, which buses have handicapped access)." Strava told me they provide cities with minute-by-minute counts of how many cyclists are on each block, and their directions of travel, but again don't provide whole data trails.

Fact-checking Representative Pittenger on NSA Reform

July 15th, 2014 No Comments   Posted in ACLU Nationwide
By Neema Singh Guliani, ACLU Washington Legislative Office

Last week, the Wall Street Journal published an op-ed by Rep. Robert Pittenger (R-N.C.), criticizing a bipartisan amendment on NSA reform to the House Defense Appropriations bill. The amendment, which Pittenger called "a Congressional mistake," passed the House by an overwhelming majority.

Unfortunately, the op-ed was a mistake, filled with half-truths and inaccuracies which mischaracterized the amendment as an attack on our national security. To rebut Rep. Pittenger's misguided attempt to derail necessary NSA reform, we've fact-checked his op-ed.

By approving the Massie-Lofgren amendment…Congress prohibited U.S. intelligence agencies from reviewing the emails and telephone calls of foreign-based terrorists to determine if they are plotting an attack with someone based inside the U.S…

This assertion by Rep. Pittenger is inaccurate. The Massie-Lofgren amendment – which was actually also sponsored by Rep. Jim Sensenbrenner (R-Wis.), an original co-sponsor of the Patriot Act – places no additional restrictions on the government's ability to collect information from individuals abroad. As I've noted previously, what the amendment does do is partially close the so-called "back door search loophole" – where the government can search communications collected under Section 702 of Foreign Intelligence Surveillance Act for the emails and text messages of specific U.S. citizens and residents, without a warrant.

Section 702 was designed to grant the government the authority to conduct warrantless surveillance (which has its own problems) of international communications, including communications involving U.S. persons, so long as the target is a non-U.S. person overseas. But, as a Washington Post investigation last week revealed, based on an analysis of 160,000 intercepted communications, 90 percent of account holders in the intercepted communications are not targets, and over half of communications belong to US persons.

In other words, Massie-Lofgren simply says if you want to search through the communications of Americans – which you weren't supposed to target anyway – and there's no emergency, get permission from the secret intelligence court.

[The amendment] would make intelligence agencies revert to the sort of pre-9/11 policies that barred them from monitoring calls between a 9/11 hijacker in San Diego and an al Qaeda safe house in Yemen.

Not so. Under Section 702, the government would absolutely be able to collect the information referenced above, and the Massie-Lofgren amendment wouldn't do anything to change that. Indeed, even prior to 9/11, the government could have targeted calls from Yemen. And, they could monitor the calls of individuals domestically provided they could demonstrate to the secret intelligence courts that there was probable cause to believe that the individual in the U.S. was associated with a terrorist organization, foreign government, or foreign-based political organization. In other words, nothing in the proposed amendment would impede the ability of the government to gather intelligence in the case that Rep. Pittenger describes.

…the amendment provides greater protection to terrorists than to criminals by prohibiting the use of available evidence (i.e., terrorist communications) by intelligence agencies.

This couldn't be further from the truth. Under current law – which would remain unchanged by the amendment – the government can collect the phone and internet records of millions of Americans with no individual suspicion; collect communications to, from, or about a target abroad; or get a warrant from the secret intelligence court to monitor a suspected terrorist in the United States.

These standards are far lower than the standards under criminal law, where courts have generally held that the government must obtain a probable cause warrant before searching your cell phone, monitoring your computer, or obtaining other records.

U.S. intelligence agencies are already under strict oversight by Congress, the president and the judicial system, and are prohibited from targeting the communications of American citizens without first obtaining a court order on a case-by-case basis.

Once again, Pittenger's wrong. If the Snowden revelations have taught us anything, it is that key oversight bodies were caught completely off guard by the breadth of surveillance being conducted by our government. Even Sen. Dianne Feinstein (D-Calif.), head of the Senate Intelligence Committee, says she was unaware of some of our foreign surveillance activities. Moreover, just last week, the Privacy and Civil Liberties Oversight Board claimed to be unable to assess the number of U.S. persons monitored under section 702 – information that was revealed one week later in a Washington Post investigation.

As those disclosures revealed, the government engaged in nationwide collection of phone and internet metadata with no case-by-case consideration. In addition, the content of millions of American communications continue to be collected merely because they may be in contact with a target abroad, a determination that is not subject to individualized court review.

So, while Rep. Pittenger calls the Massie-Lofgren amendment a "mistake," the only mistakes appear to be in his own op-ed.

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Guantanámo Judge to Prosecution: Turn Over the Torture Evidence

July 14th, 2014 No Comments   Posted in ACLU Nationwide
By Marcellene Hearn, Senior Staff Attorney, ACLU National Security Project

Last month, a military judge dealt a significant blow to U.S. prosecutors' efforts to suppress torture evidence in the Guantanámo military commissions.

In a ruling in the U.S.S. Cole case, unsealed last week, Judge James Pohl told prosecutors they must hand over CIA black site information to the defense attorneys of Abd al-Rahim Hussayn al-Nashiri. Back in April, Judge Pohl similarly ordered the prosecution to give extensive information to Mr. al-Nashiri's lawyers about his "4-year odyssey" through the CIA's rendition and torture program. In the new ruling, Judge Pohl confirmed the core of the earlier order and issued important findings that will reverberate not only in Mr. al-Nashiri's case but also in the 9/11 case, where one of the five defendants has already asked for similar information.

Judge Pohl found that Mr. al-Nashiri was subjected to "enhanced interrogation techniques" – the government's euphemism for torture and cruel treatment, such as waterboarding and stress positions. More importantly, he ruled that information about that abuse is relevant and helpful to the defense. In particular, it will be relevant at sentencing because Mr. al-Nashiri faces the death penalty. His lawyers have said they will argue that he cannot be executed because he was tortured by the CIA – an argument that 9/11 defense lawyers will also likely make for their own clients.

Judge Pohl also said that the use of torture techniques will impact whether any statements Mr. al-Nashiri made afterwards are too tainted to be used at trial. Under the military commissions rules, the prosecution must convince the judge that the statements were "voluntarily given" in order to use them. The prosecution has already indicated that it will seek to use statements Mr. al-Nashiri made to the FBI after he arrived at Guantánamo. But with the new ruling, the prosecution will be required to turn over the information the defense says it needs to argue that these statements were tainted by the CIA's earlier torture and abuse.

Judge Pohl's order requires the prosecution to give the defense lawyers 10 categories of information, including where Mr. al-Nashiri was held, the conditions in each site, whom he interacted with, and how he was rendered from site to site. What's not clear is the extent to which the prosecution will seek to provide summaries or other substitutes for some documents or to redact the names of personnel. According to Mr. al-Nashiri's lawyers, this will be litigated in the coming months. Still, the ruling has definitively established that the information is relevant and helpful to the defense, and any new requests by the prosecution to narrow what it has to turn over will be limited by the ruling.

That's a sea change, although a long-delayed one on a fundamental fair trial right: access to evidence. Judge Pohl has decided to step down from this case to concentrate on the commission trial of the 9/11 defendants. It's now up to his successor to ensure this important decision is properly implemented.

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