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The Patriot Act v. the Fourth Amendment

A federal judge in New York ruled Sept. 29 that a key provision of the USA Patriot Act is unconstitutional because it allows the FBI to obtain Internet and other electronic records without any judicial review. The ruling, by U.S. District Court Judge Victor Marrero, came in a suit filed by the American Civil Liberties Union on behalf of an Internet service provider that had received a type of subpoena known as a "national security letter" from the FBI.

The judge ordered the Justice Department to stop using the letters, but because he also gave the department 90 days to appeal the decision, the ruling will not have an immediate practical effect.

The national security letters were difficult for the ACLU to challenge in court because the Patriot Act surrounds them in secrecy. The companies that receive the subpoenas are not allowed to reveal that the demand for their records was ever made. What’s more, the ACLU had to file its suit in secret to comply with the law, passed by Congress shortly after the 9/11 attacks. Even now, the name of the company that filed the complaint must be kept secret.

In his decision, Judge Marrero sharply criticized the U.S. government’s penchant for secrecy.

"Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction," he wrote.

The L.A. Times points out that ordinarily, the government is allowed to obtain stored electronic information only through a subpoena or court order. While a 1986 law carved out an exception in terrorism or counter-intelligence cases where the target was an agent of a foreign country, the Patriot Act greatly widened the exception and added secrecy requirements.

Posted 09-30-2004 6:50 PM EDT

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NRC Backs Down on Rulemaking Secrecy

After being sued by Public Citizen and the California environmental group San Luis Obispo Mothers for Peace, the U.S. Nuclear Regulatory Commission reversed its position and said it would engage in a rulemaking process that allows public input on security regulations at nuclear power plants.

The agency backed down Sept. 10, just before it had to appear before the U.S. Court of Appeals in the District of Columbia to defend its position, according to a Public Citizen press release.

The two groups sued the NRC earlier this year, accusing the agency of failing to comply with two federal laws when it revised rules in 2003 on how well nuclear power plants must be prepared to respond to terrorist threats. The laws require the agency to notify the public about an upcoming rulemaking and allow public comment. Before it changed its mind, the NRC had argued that it was not required to engage in a public rulemaking and that the court lacked jurisdiction to order the NRC to do so.

The appeals court on Sept. 17 effectively told the agency to provide the rulemaking proceeding sought in the public interest groups’ lawsuit, though officially it gives the NRC the chance to make good on its assurance that it will do so.

Said Wenonah Hauter, director of Public Citizen’s energy program, "We’ll be watching the NRC closely to make sure they follow through on the public’s right to know."

For more information on the NRC rule in question about evaluating threats to nuclear power plants, see the Sept. 9 Public Citizen press release. For more information about the court case, you can see Public Citizen's original "brief on the merits," the follow-up brief in reponse to NRC arguments, and the court's decision.

Posted 09-21-2004 6:23 PM EDT

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Rep. Waxman Blasts Administration Secrecy

U.S. Rep. Henry A. Waxman (D-Calif.), the ranking minority member of the House Committee on Government Reform, issued a scathing report Sept. 14 blasting the Bush administration for "conducting an unprecedented assault on the principle of open government."

In the report, titled "Secrecy in the Bush Administration," Waxman describes the many ways in which the administration has restricted the flow of information from the executive branch to both Congress and the public. The report, written by the committee’s minority staff, "finds that there has been a consistent pattern in the Administration’s actions: laws that are designed to promote public access to information have been undermined, while laws that authorize the government to withhold information or to operate in secret have repeatedly been expanded."

Waxman cites numerous abuses that have been documented here on bushsecrecy.org, including the shielding of information about Vice President Dick Cheney’s energy task force, withholding from Congress cost estimates of the Medicare prescription drug legislation, and secret detentions and trials of people designated "enemy combatants."

The report also describes how the administration has whittled away at "sunshine laws" - such as the Freedom of Information Act, the Presidential Records Act and the Federal Advisory Committee Act - that open the federal government to public scrutiny.

"Taken together," Waxman concludes, "the actions of the Bush administration have resulted in an extraordinary expansion of government secrecy."

 

Posted 09-14-2004 6:46 PM EDT

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NRC Illegally Hid Changes in Security Regulations

The Nuclear Regulatory Commission revised its safety regulations for nuclear power plants earlier this year, but it violated the law by failing to allow the public to comment on the changes.

Public Citizen and the California environmental group San Luis Obispo Mothers for Peace have taken the NRC to court on the issue, and the U.S. Court of Appeals for the District of Columbia heard oral arguments on the case September 10. The two groups said in a September 9 press release that the NRC violated the Administrative Procedures Act, which would allow the public and the states in which the reactors are located to comment on the new rules and would require the NRC to take those comments into account.

The new rules focus on a security exercise called the "design basis threat," in which the NRC evaluates scenarios for attacks on nuclear power plants. A key ingredient is "force-on-force" tests, simulations in which a group of mock attackers attempt to gain access to restricted plant areas.

"After taking almost a year and a half following the 9/11 attacks to even consider upgrading the force-on-force security requirements, the NRC rushed the process by bypassing the public altogether," said Wenonah Hauter, director of Public Citizen’s Critical Mass Energy and Environment Program.

The new regulations have been criticized for, among other things, failing to require plants to take measures against possible aircraft attacks by terrorists, even though the 9/11 Commission stated that al Qaeda had strongly considered such attacks.

The U.S. Government Accountability Office in congressional testimony in May 2004 also noted that the NRC’s new design basis threat does not take into account the full range of threats identified by the U.S. intelligence community.

Posted 09-13-2004 1:11 PM EDT

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Secretive Medicare Chief Should Have His Pay Docked

Thomas Scully, the Medicare official who kept Congress from finding out the real cost of the Medicare drug benefit, should have had his pay withheld as a penalty for his misdeeds. That was the legal opinion of the U.S. Government Accountability Office, which said that Scully fell under a law that states that a federal official who stops another government employee from communicating with Congress should not be paid.

Scully, former administrator of the Medicare program, became the center of a fierce controversy last March, when longtime Medicare actuary Richard Foster said that Scully had threatened to fire him if Foster told Congress his estimates of the real costs of a Medicare drug benefit program. The Bush administration was successful in getting Congress - by the narrowest of margins - to pass its Medicare drug bill in 2003, but only by underestimating the cost of the program by more than $100 billion.

According to the Washington Post, Sen. Frank Lautenberg, D-N.J., called on Scully to return his $145,600 salary. "This was corruption of the process at the highest levels," Lautenberg said. "What is still unclear is who in the Bush White House ordered Mr. Scully not to reveal this information."

Scully told the Associated Press that he did not believe the GAO’s opinion was relevant. Several government agencies have investigated the muzzling of Foster and have arrived at different assessments of whether Scully’s actions were illegal or just unfortunate.

Posted 09-08-2004 3:49 PM EDT

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From Comical to Coverups, Secrets Perplex House Panel

Secrets classified by the U.S. government range from the absurd to the irrelevant to coverups of official mistakes, a U.S. House of Representatives subcommittee learned in an Aug. 24 hearing.

Among the classified secrets: the favorite drink of retired Chilean dictator Augusto Pinochet and a terrorist plot to hijack Santa Claus fabricated by a bored CIA analyst with a sense of humor. An Associated Press story detailing the secrets appeared in the Sept. 3 Washington Post.

"There are too many secrets," concluded U.S. Rep. Christopher Shays (R-Conn.), chairman of the House subcommittee on national security. "The tone is set at the top. This administration believes the less known, the better. I believe the more known, the better."

Steven Aftergood, director of a project on government secrecy of the Federation of American Scientists, told the subcommittee that some classification was intended to conceal illegal government activities or avoid embarrassment. He cited as an example the "secret" stamp placed on Maj. Gen. Antonio Taguba’s report on sadistic and illegal abuses of Iraqi detainees at Abu Ghraib prison.

Officials decided to classify documents 8 percent more often in 2003 than in 2002, said J. William Leonard, the National Archives official in charge of monitoring federal information practices. Total classification decisions - including upgrading and downgrading - numbered 14 million in 2003.

Leonard noted that a 2000 law called for creation of a public interest classification board to recommend release of secrets in important cases. But that board has never met, because neither the president nor the Congress have appointed any members.

 

 

Posted 09-03-2004 1:16 PM EDT

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Locked Out of a Secret Court

The Justice Department says that outside parties, like librarians and booksellers, are free to challenge a controversial section of the USA Patriot Act. The only problem is that the court in which they can make their appeal - the super-secret Foreign Intelligence Surveillance Court (FISC) - does not allow anyone but U.S. government attorneys to appear before the court or file motions with it.

The American Civil Liberties Union exposed the apparent contradiction when it obtained a copy of the court’s rules of procedure and made them public, according to an Aug. 30 Washington Post article.

One duty of the court is to oversee Section 215 of the Patriot Act, which permits the government to secretly seize records from libraries, bookstores and other businesses, while forbidding the library from publicly revealing that the search took place.

In a Michigan lawsuit filed by the ACLU challenging that provision of the Patriot Act, the Justice Department said anyone targeted under the law would be able to contest it before the secret FISC. The only question is how.

A spokesman for the American Library Association, which opposes that part of the Patriot Act, declared, "They keep saying you can challenge it, but they have never indicated how anyone could actually do so."

The Justice Department declined to comment, citing ongoing litigation.

Posted 08-31-2004 12:13 PM EDT

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Senators Call for Reform to Combat Over-classification

Trent Lott, one of the most conservative Republicans in the U.S. Senate, and Ron Wyden, one of the most liberal Democrats, joined forces on the New York Times op-ed page Aug. 26 to make the case that the federal government is classifying far too much information. They suggest that Congress establish an independent board to "bring some common sense to bear on the national security classification system."

Lott, of Mississippi, and Wyden, of Oregon, cite Thomas Kean, the chairman of the independent 9/11 commission, who declared that three quarters of the classified material he reviewed for the commission should not have been classified in the first place. Breaking with that pattern of secrecy, almost all of the commission’s report was made public without redactions (blacked-out passages).

The op-ed, called "Hiding the Truth Behind a Cloud of Black Ink," calls for setting up an independent three-person body that would recommend standards for classifying government information and would also serve as an appeals board to re-examine classification decisions. Congress needs "an independent appeals process," they say, so no administration can keep too many secrets from Congress. Wyden and Lott have proposed legislation to establish such a body.

Posted 08-27-2004 1:15 PM EDT

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You Know You're Too Secretive When . . .

John Dean knows secretive. As White House counsel to Richard Nixon during the Watergate scandal of the early 1970s, Dean served one of the most manipulative and secretive men ever to hold the presidency.

Dean also gained notoriety as the staffer who essentially blew the whistle on the Watergate break-in and coverup, and who boldly told President Nixon, "You have a cancer on your presidency."

But Dean says he has concluded that when it comes to secrecy, the current Bush administration is the worst he’s seen. In a recent talk in Seaside, Calif., Dean told his audience, " This is a bad presidency because it is a secretive presidency."

According to a report in The Salinas Californian, Dean said the upcoming November election could be susceptible to rigging or scandals. "Could you have another Watergate? Sure you could," he said.

Dean has been promoting his book, Worse Than Watergate, which criticizes the administration for excessive secrecy and numerous other abuses.

Posted 08-24-2004 6:07 PM EDT

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Government Uses Secret Evidence in Patriot Act Cases

The American Civil Liberties Union is challenging the Justice Department’s use of the Patriot Act to get information about people without judicial oversight, but the ACLU says its legal work is being hampered by the government’s use of gag orders and secret evidence.

According to The Washington Post, "the government also censored more than a dozen seemingly innocuous passages from court filings on national security grounds, only to be overruled by the judge." Among the censored passages was a quotation from a 1972 Supreme Court ruling warning about the danger of the government using national security reasons to stifle dissent.

The ACLU is challenging as unconstitutional two practices permitted by the Patriot Act:

  • the power to access medical, library and other private records without a subpoena or warrant based on probably cause; and,
  • the FBI’s authority to use "National Security Letters" to demand customer records from Internet service providers and other businesses without judicial oversight.

In each case, the government has filed an affidavit with the court that the plaintiffs (the ACLU) and the public are entirely barred from seeing. This, of course, puts the plaintiffs at a disadvantage in arguing their case.

According to the Washington Post, "The disclosures provide the latest example of the Bush administration’s aggressive classification of documents and information related to terrorism and other national security issues, even as its efforts have come under increasing attack in the courts, in Congress and from the Sept. 11 commission."

The ACLU posted on its Web site several examples of text that the Justice Department initially wanted to keep secret but which the courts permitted to be released.

Posted August 20, 2004

Posted 08-20-2004 6:17 PM EDT

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