Thursday, August 1, 2013

1% Sought S&P to Lower Illinois Bond Rating to Profit

Bombshell:

Plutocrats Screw Working People

Thursday, 01 August 2013 10:59By Lynn Parramore, AlterNet | Op-Ed
Broken Piggy Bank.(Photo: Images Money / Flickr)Illinois fatcats discuss plan to sabotage state bond ratings in scheme to destroy pensions.
These days, many Americans walk around feeling like no matter how hard they work, how much they manage to save or how carefully they plan for the future, the game is rigged against them. They suspect that behind closed doors, CEOs and Wall Street honchos are eagerly scheming to rip them off.
Their worst fears of corruption and collusion just came true in Illinois, where corporate titans were caught red-handed in the act of Rigging the Game.
Let’s step inside a recent gathering of the corporate-backed Union League Club of Chicago, where former Illinois Attorney General Ty Fahner, who now leads a band of plutocrats known as the “Civic Committee of the Commercial Club of Chicago,” recently launched into an hour-long diatribe on the evils of state pensions.
Fahner, a top GOP fundraiser, can’t abide the notion that teachers, firefighters, nurses and other public workers in the state of Illinois can still expect a decent retirement. Not a luxurious retirement, mind you — the average pension is $32,000 a year, and most state employees will not receive Social Security. But even a modest retirement for hard-working people is too much for today’s fatcats.
Fahner is part of a virulent strain of public raiders and economic crackpots who have become dominant in the Republican Party (and increasingly among the Democrats, too) who are hell-bent on destroying unions and attacking public employees. Ultimately they wish to privatize everything and reduce their tax responsibilities down to nothing.
That’s why Fahner has declared war on pensions and is promoting a pension crisis in order to justify it. He has called for cost of living cuts, raising the retirement age, capping pension earnings and shifting the cost of the pension obligation of teachers to local school districts, many of which are too poor ever to pay. He styles himself as a savior who wants only to protect the public from debt, when in reality he is a brutal plutocrat who will stop at nothing to line his pockets at public expense and reduce his and his friends' taxes.
Illinois has real problems. However, Fahner desperately hopes the public will not catch on to the fact that states are having difficulty paying out pensions because of the lack of revenue caused by a Wall Street-driven financial crisis and the deep recession it set off, regressive taxes, and the myriad bond scams financiers have already inflicted on states, cities, towns, and municipalities which have triggered funding crises for pensions and other programs. (See "How Wall Street Fraudsters Plunder Public Finances, And 5 Ways to Fight Back.")
Fahner has tried a number of dirty tricks to attack pensions in his career. But his most recent admission is absolutely breathtaking in its brazenness: He boasted of working to scam the Illinois bond rating.
During Fahner’s talk to the Union League Club, an unidentified person in the audience suggested that pressuring credit agencies to rig the state bond ratings in order to attack pensions might be a jolly good idea. Fahner gleefully replied that he had already thought about that — and his group has tried it.
Audience member: “Maybe sometimes you gotta be irresponsible to be responsible. If a political solution really doesn’t produce a favorable outcome, maybe you really need a market solution. And a market solution, I don’t mean bankruptcy, I mean actually talking down the state rating even further so the state’s bonds essentially become below investment grade. And it drives up the borrowing cost to the state and all of us to a significant level enough that you really feel the public pressure…”
Fahner: “The Civic Committee, not me, but me and some of the people that make up the Civic Committee… did meet with and call – in one case in person – and a couple of calls to Moody’s and Fitch and Standard & Poors, and say, How in the hell can you guys do this?"
Fahner went on to take credit for downgrades to Illinois credit ratings, saying, "If you watch what happened in the last few years, it's been steadily down.”
Check out the video at minutes 46:30 to 49:43 for the full remarks on the ratings scam: “Fahner: Civic Committee helped jaw down state’s bond rating.”
As the audience member correctly adduced, pushing down the bond rating is a great way to screw workers, the state and taxpayers. Pension funds buy bonds, often from the state, to stay financially healthy. In order for the pension fund to buy the bond, it must have a passing grade. If the grade is lowered, say from A to B, the price of the bond goes down, and the pension fund will suffer a loss. If the bond rating is dropped below a minimum standard, then the pension fund must sell the bond, and take a much bigger loss.
Lowering the bond rating also has the effect of artificially inflating the interest rates that bond holders must pay on future bonds, making them more expensive to buy and reducing the state’s ability to borrow. The basic idea is to manufacture a crisis by financially starving pension funds. Fahner & Co. know this will put political pressure on Illinoisans to take away worker pension benefits.
In a nutshell, here’s what the video reveals:
  • Corporate honchos — some of whom may have a vested financial interest in Illinois bonds — feel perfectly comfortable calling and exerting pressure on ratings agencies.
  • Ratings agencies are political entities whose supposedly impartial research can be influenced and perhaps even bought.
  • CEOs think nothing of willingly and knowingly screwing the bond rating and economic standing of their home state in order to enact their anti-worker philosophy and fatten their own bank accounts.
  • Proclaiming you are “fixing” state fiscal problems is a great cover for potential insider self-dealing in the bond market.
  • Committing economic treason against fellow citizens and taxpayers is simply a matter of course for today’s American plutocrats.
The We Are One Illinois union coalition has released a statement condemning Fahner and calling for an investigation into the matter:
"Ty Fahner and unnamed members of his corporate-backed committee have shown their true colors. Fahner bragged openly about joining members of the business-backed group, behind closed doors, in lobbying credit rating agencies to lower Illinois' bond ratings in an irresponsible and unethical attempt to put the state in an even more difficult position. They show total contempt for the taxpaying public, total disregard for the difficult fiscal challenges the state faces, and total hypocrisy over their alleged care for the working families of Illinois.”
In addition, a serious conflict of interest may exist if either these unnamed CEOs or the big corporations they control profited in any way from lobbying to make Illinois pay more interest on its bonds—bonds which they or their corporations may hold.”
All right. What the hell can be done about this shameless hustle?
The state attorney general should immediately open an investigation into whether any members of Fahner’s group sold bonds before the downgrades, based on their conversations. That is plainly insider trading. Everyone who held bonds at the time of the downgrades also took a loss. Attorneys general and treasurers in other states whose portfolios took a hit should also consider suing, given that political pressure seems to have played a role in causing their losses. Ditto for private holders and other unions—anyone who had the bonds at the time of the downgrade.
It’s time for the trustees of the pension funds to stand up for those whose interests they are charged with protecting, and not shrug off one more crime against the public interest that reduces pensions for working people.


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Internet Spying via NSA Program XKeyscore

    Glenn Greenwald
     
    One presentation claims the XKeyscore program covers 'nearly everything a typical user does on the internet'
     
    A top secret National Security Agency program allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals, according to documents provided by whistleblower Edward Snowden.
    The NSA boasts in training materials that the program, called XKeyscore, is its "widest-reaching" system for developing intelligence from the internet.
    The latest revelations will add to the intense public and congressional debate around the extent of NSA surveillance programs. They come as senior intelligence officials testify to the Senate judiciary committee on Wednesday, releasing classified documents in response to the Guardian's earlier stories on bulk collection of phone records and FISA surveillance court oversight.
    The files shed light on one of Snowden's most controversial statements, made in his first video interview published by the Guardian on June 10.
    "I, sitting at my desk," said Snowden, could "wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email".
    US officials vehemently denied this specific claim. Mike Rogers, the Republican chairman of the House intelligence committee, said of Snowden's assertion: "He's lying. It's impossible for him to do what he was saying he could do."
    But training materials for XKeyscore detail how analysts can use it and other systems to mine enormous agency databases by filling in a simple on-screen form giving only a broad justification for the search. The request is not reviewed by a court or any NSA personnel before it is processed.
    XKeyscore, the documents boast, is the NSA's "widest reaching" system developing intelligence from computer networks – what the agency calls Digital Network Intelligence (DNI). One presentation claims the program covers "nearly everything a typical user does on the internet", including the content of emails, websites visited and searches, as well as their metadata.
    Analysts can also use XKeyscore and other NSA systems to obtain ongoing "real-time" interception of an individual's internet activity.
    Under US law, the NSA is required to obtain an individualized FISA Warrant only if the target of their surveillance is a 'US person', though no such warrant is required for intercepting the communications of Americans with foreign targets. But XKeyscore provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their email or IP address, is known to the analyst.
    One training slide illustrates the digital activity constantly being collected by XKeyscore and the analyst's ability to query the databases at any time.
     
    The purpose of XKeyscore is to allow analysts to search the meta datas well as the content of emails and other internet activity, such as browser history, even when there is no known email account (a "selector" in NSA parlance) associated with the individual being targeted.
    Analysts can also search by name, telephone number, IP address, keywords, the language in which the internet activity was conducted or the type of browser used.
    One document notes that this is because "strong selection [search by email address] itself gives us only a very limited capability" because "a large amount of time spent on the web is performing actions that are anonymous."
    The NSA documents assert that by 2008, 300 terrorists had been captured using intelligence from XKeyscore.
    Analysts are warned that searching the full database for content will yield too many results to sift through. Instead they are advised to use the meta data also stored in the databases to narrow down what to review.
    A slide entitled "plug-ins" in a December 2012 document describes the various fields of information that can be searched. It includes "every email address seen in a session by both username and domain", "every phone number seen in a session (eg address book entries or signature block)" and user activity – "the webmail and chat activity to include username, buddylist, machine specific cookies etc".
    Email Monitoring
    In a second Guardian interview in June, Snowden elaborated on his statement about being able to read any individual's email if he had their email address. He said the claim was based in part on the email search capabilities of XKeyscore, which Snowden says he was authorized to use while working as a Booz Allen contractor for the NSA.
    One top-secret document describes how the program "searches within bodies of emails, webpages and documents", including the "To, From, CC, BCC lines" and the 'Contact Us' pages on websites".
    To search for emails, an analyst using XKS enters the individual's email address into a simple online search form, along with the "justification" for the search and the time period for which the emails are sought.
    The analyst then selects which of those returned emails they want to read by opening them in NSA reading software.
    The system is similar to the way in which NSA analysts generally can intercept the communications of anyone they select, including, as one NSA document put it, "communications that transit the United States and communications that terminate in the United States".
    One document, a top secret 2010 guide describing the training received by NSA analysts for general surveillance under the FISA Amendments Act of 2008, explains that analysts can begin surveillance on anyone by clicking a few simple pull-down menus designed to provide both legal and targeting justifications. Once options on the pull-down menus are selected, their target is marked for electronic surveillance and the analyst is able to review the content of their communications:
     
    Chats, browsing history and other internet activity
    Beyond emails, the XKeyscore system allows analysts to monitor a virtually unlimited array of other internet activities, including those within social media.
    An NSA tool called DNI Presenter, used to read the content of stored emails, also enables an analyst using XKeyscore to read the content of Facebook chats or private messages.
    An analyst can monitor such Facebook chats by entering the Facebook user name and a date range into a simple search screen.
     
    Analysts can search for internet browsing activities using a wide range of information, including search terms entered by the user or the websites viewed.
     
    As one slide indicates, the ability to search HTTP activity by keyword permits the analyst access to what the NSA calls "nearly everything a typical user does on the internet".
     
    The XKeyscore program also allows an analyst to learn the IP addresses of every person who visits any website the analyst specifies.
     
    The quantity of communications accessible through programs such as XKeyscore is staggeringly large. One NSA report from 2007 estimated that there were 850 billion "call events" collected and stored in the NSA databases, and close to 150 billion internet records. Each day, the document says, 1-2 billion records were added.
    William Binney, a former NSA mathematician, said last year that the agency had "assembled on the order of 20 trillion transactions about US citizens with other US citizens", an estimate, he said, that "only was involving phone calls and emails". 
    A 2010 Washington Post article reported that "every day, collection systems at the [NSA] intercept and store 1.7 billion emails, phone calls and other type of communications."
    The XKeyscore system is continuously collecting so much internet data that it can be stored only for short periods of time. Content remains on the system for only three to five days, while metadata is stored for 30 days. One document explains: "At some sites, the amount of data we receive per day (20+ terabytes) can only be stored for as little as 24 hours."To solve this problem, the NSA has created a multi-tiered system that allows analysts to store "interesting" content in other databases, such as one named Pinwale which can store material for up to five years. 
    It is the databases of XKeyscore, one document shows, that now contain the greatest amount of communications data collected by the NSA.
     
    In 2012, there were at least 41 billion total records collected and stored in XKeyscore for a single 30-day period.
     
    Legal v technical restrictions
    While the FISA Amendments Act of 2008 requires an individualized warrant for the targeting of US persons, NSA analysts are permitted to intercept the communications of such individuals without a warrant if they are in contact with one of the NSA's foreign targets.
    The ACLU's deputy legal director, Jameel Jaffer, told the Guardian last month that national security officials expressly said that a primary purpose of the new law was to enable them to collect large amounts of Americans' communications without individualized warrants."The government doesn't need to 'target' Americans in order to collect huge volumes of their communications," said Jaffer. "The government inevitably sweeps up the communications of many Americans" when targeting foreign nationals for surveillance.
    An example is provided by one XKeyscore document showing an NSA target in Tehran communicating with people in Frankfurt, Amsterdam and New York.
     
    In recent years, the NSA has attempted to segregate exclusively domestic US communications in separate databases. But even NSA documents acknowledge that such efforts are imperfect, as even purely domestic communications can travel on foreign systems, and NSA tools are sometimes unable to identify the national origins of communications.
    Moreover, all communications between Americans and someone on foreign soil are included in the same databases as foreign-to-foreign communications, making them readily searchable without warrants.
    Some searches conducted by NSA analysts are periodically reviewed by their supervisors within the NSA. "It's very rare to be questioned on our searches," Snowden told the Guardian in June, "and even when we are, it's usually along the lines of: 'let's bulk up the justification'."
    In a letter this week to Senator Ron Wyden, director of national intelligence James Clapper acknowledged that NSA analysts have exceeded even legal limits as interpreted by the NSA in domestic surveillance.
    Acknowledging what he called "a number of compliance problems", Clapper attributed them to "human error" or "highly sophisticated technology issues" rather than "bad faith".
    However, Sen. Wyden said on the Senate floor on Tuesday: "These violations are more serious than those stated by the intelligence community, and are troubling."
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States Fight New Federal Surveillance Invasion

How Much Protection Do Password Protection Laws Really Provide?

Nevada is the 11th state to enact password protection legislation designed to ensure online privacy for workers.
Photo Credit: flickr: Bernard Goldbach
July 29, 2013  | 


 


 
Victories for privacy rights have been few and far between since 9/11, but an astonishing exception is the blossoming of state laws offering protection for workers against bosses who want to snoop into their social media lives. Last month, Nevada became the 11th state to enact password protection legislation designed to ensure some online privacy for workers. Similar laws are under consideration in about 20 other states.
According to the ACLU’s Allie Bohm, who tracks privacy issues at the group’s New York headquarters, reports of employers requiring workers to disclose the passwords for private social media accounts quickly caught the attention of legislators. Because of Facebook’s broad popularity, lawmakers immediately grasped the threat to individual privacy in allowing employers unrestricted access to the social media lives of their employees.
“If your boss were to demand to read the snail mail that’s delivered to your home by the Postal Service, you would be outraged and consider it a gross violation of your privacy. Well, demanding access to the password to your Facebook account is the same thing,” and even lawmakers not normally sympathetic to civil liberties issues can see the problem, Bohm said. “The fact that the National Security Agency is sweeping up vast quantities of info from the net doesn’t mean that state legislators believe that employers have the same right.”
The issue first burst into public view in 2011 with the case of Robert Collins, a Baltimore man then employed by the state of Maryland. Collins was being interviewed for a transfer to a job in the Department of Corrections and was “stunned” to be asked “illegal and invasive” questions about his social media use, he later testified to the Maryland House of Delegates. Fearful of being denied the transfer, he reluctantly complied with the demand that he provide his Facebook password. On the spot, the interviewer logged on to Collins’ account and began rummaging through the contents. The corrections department just wanted to insure that he was not a gang member, he was told.
Furious at this treatment, Collins brought his complaint to his union, the American Federation of County, State and Municipal Employees (AFSCME), and to the Maryland ACLU. Both organizations are well connected in the state capital in Annapolis and it wasn’t long before the nation’s first worker password protection legislation was introduced. Supporters easily brushed aside opposition from the state Chamber of Commerce and Gov. Martin O’Malley (D) signed the measure into law on May 2, 2012.
“I was ecstatic,” when the bill became law, Collins told AlterNet. “Maryland chose to err on the side of citizens and privacy rights. You don’t see that very often,” he said. He added he has been excited to see other states take up the issue. Laws based in some measure on the Maryland model have been enacted by Arkansas, California, Colorado, Illinois, Michigan, Nevada, New Mexico, Oregon, Utah, and Washington.
A New Jersey state legislature approved similar bill early this year, but it was vetoed by Gov. Chris Christie (R). Christie’s objections, however, appear limited to handful of relatively uncontroversial points, and he has signaled his willingness to approve a basic worker protection bill once the legislature has agreed to some changes to the statutory language.
ACLU’s Bohm indicated that these state-level victories may represent the “low hanging fruit” for privacy proponents, and that additional state or federal laws favoring workers may be harder to come by. She cited the recent of example of Texas, where a good password protection law made rapid progress early this year. The bill stalled, however, as unfriendly legislators began loading it up with exceptions and language designed to protect to employers, not workers. The bill become so heavily laden with pro-business language that its original sponsors were happy to see it die when the legislature ended its session without a vote early this month.

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Monday, July 29, 2013

A New Progressive-Tea Party Alliance?

Momentum Builds Against N.S.A. Surveillance

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Published: July 28, 2013 495 Comments
WASHINGTON — The movement to crack down on government surveillance started with an odd couple from Michigan, Representatives Justin Amash, a young libertarian Republican known even to his friends as “chief wing nut,” and John Conyers Jr., an elder of the liberal left in his 25th House term.
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Representative Justin Amash, a Michigan Republican, is part of the movement to crack down on government surveillance.

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But what began on the political fringes only a week ago has built a momentum that even critics say may be unstoppable, drawing support from Republican and Democratic leaders, attracting moderates in both parties and pulling in some of the most respected voices on national security in the House.
The rapidly shifting politics were reflected clearly in the House on Wednesday, when a plan to defund the National Security Agency’s telephone data collection program fell just seven votes short of passage. Now, after initially signaling that they were comfortable with the scope of the N.S.A.’s collection of Americans’ phone and Internet activities, but not their content, revealed last month by Edward J. Snowden, lawmakers are showing an increasing willingness to use legislation to curb those actions.
Representatives Jim Sensenbrenner, Republican of Wisconsin, and Zoe Lofgren, Democrat of California, have begun work on legislation in the House Judiciary Committee to significantly rein in N.S.A. telephone surveillance. Mr. Sensenbrenner said on Friday that he would have a bill ready when Congress returned from its August recess that would restrict phone surveillance to only those named as targets of a federal terrorism investigation, make significant changes to the secret court that oversees such programs and give businesses like Microsoft and Google permission to reveal their dealings before that court.
“There is a growing sense that things have really gone a-kilter here,” Ms. Lofgren said.
The sudden reconsideration of post-Sept. 11 counterterrorism policy has taken much of Washington by surprise. As the revelations by Mr. Snowden, a former N.S.A. contractor, were gaining attention in the news media, the White House and leaders in both parties stood united behind the programs he had unmasked. They were focused mostly on bringing the leaker to justice.
Backers of sweeping surveillance powers now say they recognize that changes are likely, and they are taking steps to make sure they maintain control over the extent of any revisions. Leaders of the Senate Intelligence Committee met on Wednesday as the House deliberated to try to find accommodations to growing public misgivings about the programs, said the committee’s chairwoman, Senator Dianne Feinstein, Democrat of California.
Senator Mark Udall, a Colorado Democrat and longtime critic of the N.S.A. surveillance programs, said he had taken part in serious meetings to discuss changes.
Senator Saxby Chambliss of Georgia, the ranking Republican on the panel, said, “We’re talking through it right now.” He added, “There are a lot of ideas on the table, and it’s pretty obvious that we’ve got some uneasy folks.”
Representative Mike Rogers, a Michigan Republican and the chairman of the House Intelligence Committee, has assured House colleagues that an intelligence policy bill he plans to draft in mid-September will include new privacy safeguards.
Aides familiar with his efforts said the House Intelligence Committee was focusing on more transparency for the secret Foreign Intelligence Surveillance Court, which oversees data gathering, including possibly declassifying that court’s orders, and changes to the way the surveillance data is stored. The legislation may order such data to be held by the telecommunications companies that produce them or by an independent entity, not the government.
Lawmakers say their votes to restrain the N.S.A. reflect a gut-level concern among voters about personal privacy.
“I represent a very reasonable district in suburban Philadelphia, and my constituents are expressing a growing concern on the sweeping amounts of data that the government is compiling,” said Representative Michael G. Fitzpatrick, a moderate Republican who represents one of the few true swing districts left in the House and who voted on Wednesday to limit N.S.A. surveillance.
Votes from the likes of Mr. Fitzpatrick were not initially anticipated when Republican leaders chided reporters for their interest in legislation that they said would go nowhere. As the House slowly worked its way on Wednesday toward an evening vote to curb government surveillance, even proponents of the legislation jokingly predicted that only the “wing nuts” — the libertarians of the right, the most ardent liberals on the left — would support the measure.
Then Mr. Sensenbrenner, a Republican veteran and one of the primary authors of the post-Sept. 11Patriot Act, stepped to a microphone on the House floor. Never, he said, did he intend to allow the wholesale vacuuming up of domestic phone records, nor did his legislation envision that data dragnets would go beyond specific targets of terrorism investigations.
“The time has come to stop it, and the way we stop it is to approve this amendment,” Mr. Sensenbrenner said.
He had not intended to speak, and when he did, he did not say much, just seven brief sentences.
“I was able to say what needed to be said in a minute,” he said Friday.

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Friday, July 26, 2013

Roberts Stacks FISA With 86% GOP Hacks

Roberts’s Picks Reshaping Secret Surveillance Court


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Published: July 25, 2013 95 Comments
WASHINGTON — The recent leaks about Government spying programs have focused attention on the Foreign Intelligence Surveillance Court and its role in deciding how intrusive the  government can be in the name of national security. Less mentioned has been the person who has been quietly reshaping the secret court: Chief Justice John G. Roberts.
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Jason Reed/Reuters
Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents.
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Changing Makeup of Surveillance Courts

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In making assignments to the court, Chief Justice Roberts, more than his predecessors, has chosen judges with conservative and executive branch backgrounds that critics say make the court more likely to defer to government arguments that domestic spying programs are necessary.
Ten of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents; six once worked for the federal government. Since the chief justice began making assignments in 2005, 86 percent of his choices have been Republican appointees, and 50 percent have been former executive branch officials.
Though the two previous chief justices, Warren E. Burger and William H. Rehnquist, were conservatives like Chief Justice Roberts, their assignments to the surveillance court were more ideologically diverse, according to an analysis by The New York Times of a list of every judge who has served on the court since it was established in 1978.
According to the analysis, 66 percent of their selections were Republican appointees, and 39 percent once worked for the executive branch.
“Viewing this data, people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias — for favoring the executive branch in its applications for warrants and other action,” said Senator Richard Blumenthal, a Connecticut Democrat and one of several lawmakers who have sought to change the way the court’s judges are selected.
Mr. Blumenthal, for example, has proposed that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court; the chief justice would still pick the review panel that hears rare appeals of the court’s decisions, but six other Supreme Court justices would have to sign off. Another bill, introduced by Representative Adam B. Schiff of California, would give the president the power to nominate judges for the court, subject to Senate approval.
Chief Justice Roberts, through a Supreme Court spokeswoman, declined to comment.
The court’s complexion has changed at a time when its role has been expanding beyond what Congress envisioned when it established the court as part of the Foreign Intelligence Surveillance Act. The idea then was that judges would review applications for wiretaps to make sure there was sufficient evidence that the F.B.I.’s target was a foreign terrorist or a spy.
But, increasingly in recent years, the court has produced lengthy rulings interpreting the meaning of surveillance laws and constitutional rights based on procedures devised not for complex legal analysis but for up-or-down approvals of secret wiretap applications. The rulings are classified and based on theories submitted by the Justice Department without the participation of any lawyers offering contrary arguments or appealing a ruling if the government wins.
The court “is becoming ever more important in American life as more and more surveillance comes under its review in this era of big data,” said Timothy Edgar, a civil liberties adviser for intelligence issues in both the Bush and Obama administrations. “If the court is seen as skewed or biased, politically or ideologically, it will lose credibility.”
At a public meeting this month, Judge James Robertson, an appointee of President Bill Clinton who was assigned to the surveillance court in 2002 by Chief Justice Rehnquist and resigned from it in December 2005, offered an insider’s critique of how rapidly and recently the court’s role has changed. He said, for example, that during his time it was not engaged in developing a body of secret precedents interpreting what the law means.
“In my experience, there weren’t any opinions,” he said. “You approved a warrant application or you didn’t — period.”
The court began expanding its role when George W. Bush was president and its members were still assigned by Chief Justice Rehnquist, who died in 2005. Midway through the Bush administration, the executive branch sought and obtained the court’s legal blessing to continue secret surveillance programs that had originally circumvented the FISA process.
The court’s power has also recently expanded in another way. In 2008, Congress passed the FISA Amendments Act to allow the National Security Agency to keep conducting a form of the Bush administration’s program of surveillance without warrants on domestic soil so long as only foreigners abroad were targeted. It gave the court the power to create rules for the program, like how the government may use Americans’ communications after they are picked up.
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“That change, in my view, turned the FISA court into something like an administrative agency that makes rules for others to follow,” Judge Robertson said. “That’s not the bailiwick of judges. Judges don’t make policy.”
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For the most part, the surveillance court judges — who serve staggered seven-year terms and take turns coming to Washington for a week to handle its business — do not discuss their work, and their rulings are secret. But the documents leaked by Edward J. Snowden, a former N.S.A. contractor, have cast an unusual spotlight on them.
The first of the documents disclosed by Mr. Snowden was atop-secret order to a Verizon subsidiary requiring it to turn over three months of calling records for all its customers. It was signed by Judge Roger Vinson, an appointee of President Ronald Reagan who had previously achieved prominence in 2011 when he tried to strike down the entirety of President Obama’s health care law.
Chief Justice Roberts assigned Judge Vinson to the surveillance court in 2006, one of 12 Republican appointees, compared with 2 Democratic ones.
While the positions taken by individual judges on the court are classified, academic studies have shown that judges appointed by Republicans since Reagan have been more likely than their colleagues to rule in favor of the government in non-FISA cases over people claiming civil liberties violations. Even more important, according to some critics of the court, is the court’s increasing proportion of judges who have a background in the executive branch.
Senator Blumenthal, citing his own experience as a United States attorney and a state prosecutor, said judges who used to be executive branch lawyers were more likely to share a “get the bad guys” mind-set and defer to the Justice Department if executive branch officials told them that new surveillance powers were justified.
Steven G. Bradbury, who led the Justice Department’s Office of Legal Counsel in the second term of the Bush administration, argued that it made sense to put judges who were executive branch veterans on the court because they were already familiar with the issues. And he challenged the claim that they would be more deferential.
“When it comes to highly technical national security issues, I really think there is value in a judge being a former prosecutor or a former government lawyer who understands how the executive branch works,” he said, adding that such judges “will be familiar with the process and able to ask the tough questions and see where the weak points are.”
Either way, an executive branch background is increasingly common for the court.
When Judge Vinson’s term ended in May, for example, Chief Justice Roberts replaced him with Judge Michael W. Mosman, who was a federal prosecutor before becoming a judge.
Other current judges include Raymond J. Dearie, a United States attorney; Reggie B. Walton, a prosecutor who also worked on drug and crime issues for the White House; and F. Dennis Saylor IV, chief of staff in the Justice Department’s Criminal Division. The only Democratic appointee, Judge Mary A. McLaughlin, was also a prosecutor.
Stephen Vladeck, an American University law professor, said having executive branch veterans — including what he called “law-and-order Democrats” — on the court carried advantages because they brought experience with security issues. But the downside, he argued, is that they may also be unduly accommodating to government requests.
“The further the court’s authority has expanded from where it was in 1978, the greater the need has been for independent-minded government skeptics on the court,” he said.
Chief justices have considerable leeway in choosing judges — the only requirement is that they ensure geographic diversity. In practice, according to people familiar with the court, they have been assisted in evaluating whom to select by the director of the Administrative Office of the United States Courts. The counselor to the chief justice and the surveillance court’s presiding judge also sometimes play a role. Judges sometimes volunteer for consideration, while chief justices and their advisers sometimes come up with their own ideas.
Generally, the people familiar with the court said, evaluations have been based on reputation, workload, willingness to undergo an intrusive background check, and experience in security issues. Judges have served an average of 15 years before being assigned to the surveillance court.
Chief Justice Roberts has dealt with a small circle. His past two choices to direct the judiciary’s administrative office have been Republican-appointed judges, Thomas F. Hogan and John D. Bates, whom he also appointed to the surveillance court.
Representative Steve Cohen, Democrat of Tennessee, who has filed a bill that would let Congressional leaders pick eight of the court’s members, said it was time for the court to have a more diverse membership.
“They all seem to have some type of a pretty conservative bent,” he said. “I don’t think that is what the Congress envisioned when giving the chief justice that authority. Maybe they didn’t think about the ramifications of giving that much power to one person.”

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Tuesday, July 23, 2013

Early Vote on NSA Spying

A vote on Monday July 22 in the House Rules Committee made possible a vote in the full House later this week (probably Wednesday!) on Rep. Justin Amash's amendment to substantially curtail the NSA's domestic spying regime.

To make your voice heard right now, click here!

The Amash amendment will be offered during the debate on the "defense" appropriations bill, the whole of which should be rejected if possible and this amendment enacted separately.

According to the House Rules Committee, the Amash amendment "Ends authority for the blanket collection of records under the Patriot Act. Bars the NSA and other agencies from using Section 215 of the Patriot Act to collect records, including telephone call records, that pertain to persons who are not subject to an investigation under Section 215."

This is our first opportunity to reverse a very dangerous trend. Please join with RootsAction and our partner on this action Daily Kos in emailing your Congress Member right now!
Please forward this email widely to like-minded friends.
What Roots Action forgot to tell us. Rep. Amash is a Michigan Republican, supported by Tea Party members in Congress, and is also Palestinian-American.  Let's STOP NSA SNOOPING any way possible. - Bill Floyd

P.S. RootsAction is an independent online force endorsed by Jim Hightower, Barbara Ehrenreich, Cornel West, Daniel Ellsberg, Glenn Greenwald, Naomi Klein, Bill Fletcher Jr., Laura Flanders, former U.S. Senator James Abourezk, Coleen Rowley, Frances Fox Piven, and many others.


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