U.S. Rep. Goodlatte sees surveillance restrictions passing Congress

“House Judiciary Committee Chairman Bob Goodlatte said he supports a bill to let companies such as Facebook Inc. and Apple Inc. release statistics on data they turn over to the U.S. National Security Agency,” Heidi Przybyla and Chris Strohm report for Bloomberg. “The companies want to publicly disclose how they respond to government orders for data on their customers and how many accounts are involved.”

“Those that cooperate ‘need to be able to stand up and say, ‘We’re doing the right thing here, and we’re protecting our customers, our consumers, the users of our services,” Goodlatte, a Virginia Republican, said on Bloomberg Television’s ‘Political Capital with Al Hunt,'” airing this weekend,” Przybyla and Strohm report. “The legislation, proposed in response to revelations about NSA surveillance, would give companies that right. It would also overhaul the secretive Foreign Intelligence Surveillance Court, which reviews wiretap and other investigative requests, and prohibit the agency from collecting bulk phone records on millions of Americans, among other provisions.”

Przybyla and Strohm report, “‘It very well could and should’ pass, Goodlatte said. He said it was important to both protect civil liberties and to allow the government to continue gathering information on threats to the nation.”

Read more in the full article here.

MacDailyNews Take: United States Constitution, Amendment IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. – Benjamin Franklin, Historical Review of Pennsylvania, 1759

Join The Electronic Frontier Foundation in calling for a full congressional investigation here.

[Thanks to MacDailyNews readers too numerous to mention individually for the heads up.]

Related articles:
U.S. NSA secretly infiltrated Yahoo, Google data centers worldwide, Snowden documents say – October 30, 2013
Obama administration decides NSA spying is ‘essential,’ but oversight of NSA is not – October 8, 2013
Apple’s iPhone 5s with Touch ID seen as protection against U.S. NSA – September 16, 2013
German government: Windows 8 contains U.S. NSA snooping back doors; too dangerous to use – August 23, 2013
Report: NSA can see 75% of U.S. Web traffic, can snare emails – August 21, 2013
NSA can read email, online chats, track Web browsing without warrant, documents leaked by Edward Snowden show – July 31, 2013
Momentum builds against U.S. government surveillance – July 29, 2013
U.S. House rejects effort to curb NSA surveillance powers, 205-217 – July 24, 2013
Obama administration scrambles to shut down imminent U.S. House vote to defund NSA spying – July 24, 2013
Obama administration demands master encryption keys from firms in order to conduct electronic surveillance against Internet users – July 24, 2013
Apple, Google, dozens of others push Obama administration to disclose U.S. surveillance requests – July 19, 2013
Secret court agrees to allow Yahoo to reveal its fight against U.S. government PRISM requests – July 16, 2013
How Microsoft handed U.S. NSA, FBI, CIA access to users’ encrypted video, audio, and text communications – July 11, 2013
DuckDuckGo search engine surges 33% in wake of PRISM scandal – June 20, 2013
Yahoo: Since December 2012, we have received up to 13,000 U.S. gov’t requests for customer data – June 18, 2013
Apple: Since December 2012, we have received U.S. gov’t requests for customer data for up to 10,000 accounts – June 17, 2013
Nine companies, including Apple, tied to PRISM, Obama to be smacked with class-action lawsuit – June 12, 2013
U.S. lawmakers urge review of ‘Prism’ domestic spying, Patriot Act – June 10, 2013
PRISM: Do Apple, Google, Facebook have an ethical obligation not to spy on users? – June 8, 2013
Plausible deniability: The strange and unbelievable similarities in the Apple, Google, and Facebook PRISM denials – June 7, 2013
Google’s Larry Page on government eavesdropping: ‘We had not heard of a program called PRISM until yesterday’ – June 7, 2013
Seecrypt app lets iPhone, Android users keep voice calls, text messages away from carriers, government eyes and ears – June 7, 2013
Obama administration defends PRISM data-collection as legal anti-terrorism tool – June 7, 2013
Facebook, Google, Yahoo join Apple in sort-of denying PRISM involvement – June 7, 2013
Report: Intelligence program gives U.S. government direct access to customer data on Apple servers; Apple denies – June 6, 2013

48 Comments

    1. First, these companies informing you how often they have to turn over data to the gov’t is NOT protecting your privacy in any way, shape or form. Only NOT turning your data over to the gov’t can do so.

      Second, the NSA has a LONG history of not following the law, combined with having absolutely no negative consequences for having done so. So, just passing an amendment to the Patriot and/or FISA act limiting what data won’t make a difference unless they actually start throwing people in jail for not following it.

      Third, this law will be corrupted just before it passes, just like the last one was [which also would have limited bulk data collection], which strategically had an “and” changed to an “or”, right be it was passed, which actually expanded what could be collected instead of limiting it.

      1. it’s the secret tribunals that freak me out…like that is supposed to relieve this criminal government of any violation of Fourth Amendment demands regarding warrants from a judge for search & seizure. Right outta the “Third Reich For Dummies” handbook.

    1. @ correctu, 2+2=0 on the basis that negative+negative=positive, positive+positive=positive, positive+negative=negative, negative+positive=positive……….etcetera etcetera!
      To make 2+2=5, you must first invert the sum so that the question you ask is, “How can 5=2+2? Then and only then my son, will you be entitled to be called a man! (p.s even if you are a woman!)

    2. A bit late but what the heck? The victor always rewrites history, don’t they?
      Ps. Sometimes when a post is so bad that you don’t know what to make of it, take it with a pinch of salt thrown over your shoulder. the question is, “Which shoulder”?

    1. The surveillance programs bring us further into the realm of a surveillance society. By allowing it we are again granting a demonstrably hostile and incompetent government more power over the masses, creating a greater reason to fear the government. It should and must always be the other way around. The government should be afraid of us.

      You are providing the entity that naturally slips into oppression with the greatest possible tool for that oppression. Your liberties are being stripped away from you in this way, bit by bit.

      It you truly fail to understand the dangers such surveliance portends, may I suggest: 1984 by Orwell. Orwell was not only prescient but his ideas were based on experience. His book was based on observations of Stalinist Russia, National Socialist Germany, and his experiences as a police officer in Burma.

      I’d also like to suggest The Prisoner, a 17 episode British television series written, produced, and starred in by Patrick McGoohan. While ostensibly a spy story, play close attention to the live that people live ” In the Village.” As long as you keep in line, everything is fine. You are constantly under surveillance. Pay particularly close attention to the last few moments of the last episode of the series.

      The privacy of a human being is the most important liberty for that is the one that enables many of the others. Strip a human being of privacy, and it’s very easy to identify anything else you wish to strip him of.

      A very wise person once said, “Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”

        1. See if you can locate tin foil. It’s hard to find, but superior to aluminium in its RF attenuation spectrum. Above all, whatever enclosure you fashion should be hidden by a wig, hoodie, or other garb so as not to draw unwanted attention. Informers are everywhere.

        2. This is fascinating to me. Do you really not see that your individuality and your right to privacy, are chief ingredients in your freedom? Do you honestly not see the power that giving those things up provides the government with? If I say to you it is no business of the United States Government who you call, when you call, why you call, let alone what you say, that’s tantamount to foil hat insanity to you?

          May I suggest the work of Aleksandr Solzhenitsyn, Eugenia Ginzburg, or Nadezhda Mandelstam, who’ve all written extensively on what it is like to live in a surveillance society under the terror and totalitarianism of Stalin.

          When you can watch what anyone is doing and know what they are saying, you know what to turn into a crime. You can lower the age of who commits crimes.

          http://www.pbs.org/behindcloseddoors/in-depth/stalins-spies.html

          “…Under Joseph Stalin and his supporters, the Soviet Union’s secret police and intelligence agencies that were first formed during the Russian Civil War grew into vast networks, allowing Stalin to control every aspect of life in the USSR….”

          This is not a joke. We’ve seen what happens. Not only have we seen it in real life, every author from Margaret Atwood, to Ray Bradbury, to Orwell, to Aldous Huxley, has been warning us about the slow creep to a totalitarian surveillance society.

          You consider these people to be foil hat kooks?

          How about “It Can’t Happen Here” by Sinclair Lewis?

          The Republic of the Future – Anna Bowman Dodd.

          What I’m saying is that WE KNOW DARN WELL where this leads and here and now a this moment we should be shouting at the top of our lungs to tell our “representatives,” NO. NOT HERE.

      1. The Prisoner, way way ahead of it’s time, although archaic when it came to computers it certainly did a slice through the spy network.

        Orwell is excellent as usual, although I always thought that we ended up watching big brother (TV) rather than the other way around but now with the net, well it works both ways.

        Now the real book to read, well is more Gaian in it’s approach. I won’t reveal it here of course, but it’s about the ecosystem.

        Thanks for the posts by the way, keep ’em coming.

  1. The more significant part of the bill — overhaul the secretive Foreign Intelligence Surveillance Court — isn’t covered in the article. Those details will tell if this is a real effort or just more pandering/grandstanding.

  2. MDN, I love you guys (especially when it comes to unbiased reporting via Apple) and it’s obvious that you guys lean right when it comes to the political atmosphere but I have a sneaking suspicion that if, let’s say, Bush or some type of Republican President were in office, you’d be saying that the people crying for an abuse of government powers in the surveillance of its citizens was overblown and that it’s the duty of the U.S. Government to protect its people, a la “The Patriot Act”.

    Don’t forget, most of the powers that the government is using to survey it’s citizens comes from the “Patriot Act” that was passed by a Republican President and a republican controlled Congress.

    It’s funny too because I distinctly recall people on the liberal side using that quote in defiance of the “Patriot Act” and the illegality through their eyes to be used on citizens of the U.S.

    1. You are too right, DMan. The Patriot Act was lauded under the Bush administration in a McCarthyesque “you are either with us or against us” mentality that labeled dissenters as anti-American and up patriotic. The Patriot Act, torture (aka “enhanced interrogation techniques”) and the full court press to invade Afghanistan to prove that he was better than his father at regime change are legacies that our country will rue for decades to come. And Dick Cheney should be cursed and reviled for his behind the scenes manipulation of the government during the Bush years.

    2. DMan, I used that very quote from Mr. Franklin to oppose toe Patriot Act. The far right ridiculed me on this forum. Now they either deny or attempt to evade the truth. If you took a survey now, you would be surprised how few people would actually admit to voting for Dubya!

      1. I think a few more are starting to come around, now that the issues are more personal and less abstract, and party politics has been exposed as little more than a cynical muddle of electioneering slogans and talking points.

        At some point the babble of one-upmanship has to be overtaken by the cold realisation that we are individually being abused by pretty much everyone in power. Our votes seem feeble weapons against these moral weaklings who would sell us down the river, but we must use them to send a message of condemnation.

    3. It might interest you to know that the Patriot Act was originally drafted by Joe Biden. I lean right and I opposed the Patriot Act and still do. It is disgusting horrible legislation, slipped through on the back of fear. I don’t know how long you’ve been reading MDN, but I can tell you that Democrat or Republican, MDN sides with freedom, not oppression.

      I remember when Clinton was President. Lots of leftists supported mass surveillance, including the New York Times who under Clinton felt it was necessary.

      I will say I am beyond disappointed with the way that Republicans have basically shied away from this issue. In doing nothing they are complicit.

      1. It’s good to hear that you opposed the act as have I from its beginnings. But actually, Biden sponsored the Comprehensive Counter-Terrorism Act in 1991 and authored another anti-terrorist legislation after the Oklahoma bombing in ’95; neither passed into law. The Patriot act was authored by Sensenbrenner (R-WI) and was based mainly on the Anti-Terrorism Act of 2001 written by Hatch (R-UT), Leahy (D-VT), and Specter (R-PA) [and Attorney General Ashcroft] which wasn’t enacted. The Patriot Act does have a convoluted history. Feingold (D-WI) was the dissent throughout the process and voted against the act.

        I agree with you that both Republicans and Democrats “have basically shied away from this issue” and are complicit.

        1. Thanks for setting the record straight. We all must operate from facts, not knee-jerk responses to parties or labels. Time to engage our higher functioning brain for once.

          1. When was it passed? Who signed it into law?

            “Patriot Act – Wikipedia, the free encyclopedia
            The USA PATRIOT Act of 2001 is an Act of Congress that was signed into law by President George W. Bush on October 26, 2001. The title of the act is a ten-letter acronym (USA PATRIOT)…”

            That is how it began.

            Now, it is also true that the Patriot Act has been reauthorized by Congress since that time – most recently in 2011. President Obama signed that legislation, making him complicit in this violation of the Constitution, as well.

        2. The core of the Patriot Act is still Biden’s Omnibus Counterterrorism Act of 1995. S.390.

          http://w2.eff.org/Legislation/Bills_by_number/s390_hr896_95_cnss.analysis

          This is the guts of the Patriot Act in pre-legislation form. Bush and his guys just scooped it up, beefed it up, and shoved it through.
          ———————————
          Clinton Terrorism Legislation Threatens Constitutional Rights

          On February 10, 1995, a counterterrorism bill drafted by the Clinton Administration was introduced in the Senate as S. 390 and in the House of Representatives as H.R. 896.

          The Clinton bill is a mixture of: provisions eroding constitutional and statutory due process protections, selective federalization — on political grounds — of state crimes (minus state due process rules), discredited ideas from the Reagan and Bush Administrations, and the extension of some of the worst elements of crime bills of the recent past.

          The legislation would:

          1. authorize the Justice Department to pick and choose crimes to investigate and prosecute based on political beliefs and associations;

          2. repeal the ancient provision barring the U.S. military from civilian law enforcement;

          3. expand a pre-trial detention scheme that puts the burden of proof on the accused;

          4. loosen the carefully-crafted rules governing federal wiretaps, in violation of the Fourth Amendment;

          5. establish special courts that would use secret evidence to order the deportation of persons convicted of no crimes, in violation of basic principles of due process;

          6. permit permanent detention by the Attorney General of aliens convicted of no crimes, with no judicial review;

          7. give the President unreviewable power to criminalize fund-raising for lawful activities associated with unpopular causes;

          8. renege on the Administration’s approval in the last Congress of a provision to insure that the FBI would not investigate based on First Amendment activities; and

          9. resurrect the discredited ideological visa denial provisions of the McCarran Walter Act to bar foreign speakers.

          Once again, the impatience of those charged with upholding the Constitution has led them to seek authority to circumvent it.

          The U.S. has not been a fertile breeding ground for terrorism. Part of the reason lies in the values at the core of our unique system of governance — diversity, religious and ethnic tolerance, acceptance of change, openness to new ideas, constitutional limits on government discretion, reliance on legal proceedings open to public scrutiny. These values make it hard to nurture in the U.S. the ethnic or religious hatred that fuels much terrorism. Unfortunately, these values would be undermined by this legislation.

          1. Use of Secret Evidence to Deport Aliens Not Charged with Criminal Activity

          Title II is a slightly modified version of a proposal first made during the Bush Administration, which Congress twice refused to enact. The changes made by the Clinton Administration do not cure the essence of the proposal: it would create a special court to hear secret evidence against aliens whom the government wishes to deport.

          It is important to recognize at the outset that the provision applies only to aliens who are not charged with any crime. If any person found in this country was suspected of committing a crime, especially a terrorist crime, that person would be arrested and put on trial here or extradited to a country where he could stand trial. This provision is designed to allow the government to deport persons who are deemed undesirable because of their political associations and beliefs.

          For the government to take adverse action against an individual based on secret evidence is the antithesis of American jurisprudence and a fundamental due process violation.

          Aside from the Star Chamber concept that is at the core of this provision, it has many other extraordinary features, among them the following:

          Use of Illegally Obtained Evidence. The provision states: “Nor shall such alien have the right to seek suppression of evidence.” Repealing the exclusionary rule eviscerates the Fourth Amendment protection against unreasonable search and seizure.

          Exemption from FISA Standards. The Foreign Intelligence Surveillance Act has a meticulously crafted set of procedures intended to balance the rights of individuals against the national security. Those procedures include a requirement that the government give the defendant notice when it intends to use information from a FISA wiretap and allow the defendant to move to suppress the evidence if it was obtained illegally. The bill would make such provisions, which have worked fine in the most serious espionage cases, inapplicable in alien deportation cases.

          Permanent detention. If no country is willing to receive an alien ordered deported under the new provisions, the bill states that “the Attorney General may, notwithstanding any other provision of law, retain the alien in custody. … Any alien in custody pursuant to this subsection shall be released from custody solely at the discretion of the Attorney General.”

          Appeals only in D.C.. In what appears to be either forum- shopping or an effort to impose additional costs on aliens fighting deportation, the bill would allow appeals from deportation proceedings only to the United States Court of Appeals for the District of Columbia Circuit, forcing attorneys from all over the country to come to Washington.

          Guilt by Association. The legislation subtly but critically rewrites the definition of engaging in terrorist activity in the Immigration and Nationality Act, which serves as the basis for the exclusion of aliens seeking entry and the deportation of aliens already in this country.

          The current law defines “to engage in terrorist activity” to cover someone who “affords material support to any individual, organization, or government in conducting a terrorist activity.” The revised definition would read: “affords material support to an individual, organization, or government which the actor knows or reasonably should know has committed or plans to commit terrorist activity.” The change would remove the current law’s requirement that there be a nexus between the material support and the terrorist activity, thereby allowing exclusion and deportation of any alien who had supported the peaceful, legal activities of a group that engaged, or had subgroups that engaged, in illegal acts. The “has committed” language would even seem to sweep in those who support groups that once committed but have now foresworn terrorism.

          Guilt by Association, Part II. The bill would resurrect the discredited ideological tests of the McCarran Walter Act for denying foreign visitors visas to come to speak in the U.S. While the Immigration Act of 1990 authorized the denial of visas to persons who had engaged in terrorist activities, this bill would deny visas to all representatives or spokespersons for groups labeled terrorist, even if the representative or spokesperson had never engaged in any illegal activity. This test would have allowed the exclusion of representatives of the African National Congress or the IRA or many other political groups, even if they were seeking to enter the U.S. to talk about prospects for peace.

          Continued Exclusion of PLO Representatives. Even after Yassar Arafat has been received at the White House, where he signed a peace accord with Israel, he and every other alien who is a representative of the PLO is “considered, for purposes of this Act, to be engaged in a terrorism activity.”

          Son of Star Chamber. Section 202(d) of the bill seems to authorize a mini-Star Chamber proceeding, allowing the use of classified information in any deportation case, even those where the complex provisions of the alien terrorist removal section are not invoked.

          2. Terrorist Fund-Raising Is Whatever the President Decides It Is and Nobody Can Question His Decision

          Title III of the bill creates a new federal crime of “terrorist fund-raising.” The provision would allow the President to define the crime by designating certain groups as terrorist organizations. The President can also designate individual persons who are raising funds for, or acting for or on behalf of, any organization he designates. From then on, it is a crime for “any person subject to the jurisdiction of the United States anywhere, to directly or indirectly, raise, receive or collect on behalf of, or furnish, give, transmit, transfer or provide funds to or for an organization or person” so designated, unless a license has been granted by the Secretary of the Treasury.

          In an attempt to avoid judicial review of designations that are either arbitrary or politically motivated, the legislation states that the President’s designation of a group or individual would be final. “Any finding made in any designation pursuant to [this section] shall be conclusive. No question concerning the validity of the issuance of such designation may be raised by the defendant in a criminal prosecution as a defense or as an objection to any trial or hearing.” Introducing a further opportunity for biased or inconsistent decisions, the legislation allows the President to take an organization or person off the list whenever he decides that “the national security, foreign relations, or economic interests of the United States so warrant,” even though the organization is still involved in terrorist activity.

          The new crime adopts by reference the definition of terrorist activity in the Immigration and Nationality Act. That definition states that a terrorist organization means any organization engaged, or which has a significant subgroup which engages, in terrorism activity, regardless of any legitimate activities conducted by the organization or its subgroups.

          The fundraising provisions are unconstitutional because they violate the fundamental principle of our constitutional law that “a blanket prohibition of association with a group having both legal and illegal aims,” without a showing of specific intent to further the unlawful aims of the group, is an unconstitutional infringement on “the cherished freedom of association protected by the First Amendment.” Elfbrandt v. Russell, 384 U.S. 11 (1966). As the Supreme Court emphasized in Noto v. United States, 364 U.S. 290, 299-300 (1961), “There is a danger that one in sympathy with the legitimate aims of . . . an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.”

          3. A New Federal Crime of Terrorism to Be Applied Selectively Based on the Political Motivation of the Offender

          Section 101 of the bill creates a new federal crime of international terrorism in the United States. Terrorist activity should be a crime. It already is a crime. Section 101 does not criminalize anything that is not already a crime. The new offense is defined as any killing, kidnapping, maiming, assault resulting in serious bodily injury, or assault with a deadly weapon, and any damage to any real or personal property “in violation of the laws of any State or the United States,” so long as one of 9 jurisdictional bases is met.

          Since the new offense does not cover anything that is not already a crime, the main purpose of the proposal seems to be to avoid certain constitutional and statutory protections that would otherwise apply. Investigations of, and prosecutions for, the new crime would be subject to the following special rules:

          Suspension of posse comitatus. The new subsection (f) provides a wholesale exemption from one of the oldest protections in American law, the separation between military and police functions. At a time when there is growing public concern about the militarization of law enforcement, subsection (f) provides that “Assistance may be requested from any Federal … agency, including the Army, Navy and Air Force, any statute, rule or regulation to the contrary notwithstanding.”

          Avoiding state due process protections. The federal rules of criminal procedure are in certain respects outdated compared to state court rules. For example, many states have rejected the concept of trial by surprise, adopting instead rules that require the prosecution to disclose its evidence to the defense in advance of trial, and vice versa. This facilitates plea bargaining and ensures that both sides are better prepared so the trial, if there is one, runs more smoothly. By contrast, under federal law, a defense lawyer is entitled to see prior statements made to police by a witness against his client only after the witness testifies at trial. There is increasing discussion of modernizing this federal rule.

          In contrast to this trend, the draft adopts a tactic that state and federal prosecutors have jointly pursued to circumvent state procedural rules. Subsection (g) provides that in any prosecution under the section, “only the elements of state law, and not any provisions pertaining to criminal procedure, are adopted.” This allows state prosecutors, dissatisfied with the rules of their own state, to take certain cases to federal prosecutors in order to obtain the benefit of rules that make it harder to mount an effective defense.

          Chipping away at the Fifth and Sixth Amendments. In derogation of the Fifth Amendment’s presumption of innocence and the Sixth Amendment right to bail, Subsection 101(d) of this bill provides that anyone accused of committing a crime thereunder is presumed to be ineligible for bail and may be detained pretrial. The accused bears the burden of rebutting the presumption. (This is a significant expansion of a provision that first appeared in 1984, when Congress adopted 18 USC 3142(e), shifting to the defendant in certain drug cases the burden of proving pretrial that he is eligible for the constitutional right to bail.)

          Loosening the rules on wiretaps. Subsection (e) would exempt terrorism cases from the carefully crafted and balanced standards developed in 1986 for so-called “roving taps.” When Congress adopted the Electronic Communications Privacy Act of 1986, it struck a careful balance between privacy and law enforcement. Because of the Fourth Amendment’s specificity requirement, federal law has always required applicants for wiretap orders to specify the location to be tapped. Some criminals were attempting to evade surveillance by using pay phones, the location of which could not always be anticipated for inclusion in the wiretap application. Therefore, Congress in 1986 created a limited exception to the specificity requirement where the target of an investigation has been taking steps to thwart interception by changing facilities. This bill would dispense with that standard, allowing roving taps to be used anytime a person is suspected of being involved in a terrorist crime, regardless of the law’s requirement that there be a basis for the roving tap authority.

          Mandatory jail sentence. The new subsection 2332b(d) would provide that no person convicted of a violation under the new crime could be placed on probation. While it is reasonable that persons who commit violent crimes would be incarcerated, the new section is not limited to violent offenses. Someone who intentionally scratches the car of a foreign diplomat would go to jail if charged and convicted under this provision. This gives prosecutors, who decide whether to charge under this section or another section, a tremendous club to hold over the heads of minor offenders.

          Threats Under the proposed statute, threatening to do anything violent is a crime itself. There are numerous federal threat statutes already on the books (bomb threats, threats against the President), but there is no general threat statute. Under this bill, threatening to hit a tourist would be a federal crime, which could be investigated and prosecuted without adherence to constitutional and statutory protections.

          First Amendment dangers. It is unlikely, of course, that ordinary crimes against tourists would be prosecuted under this section. The question of how cases will be selected for investigation and prosecution under such a broad statute brings us to the nub of the threat it poses. Proposed new section 2332b(e) provides that no indictment could be brought unless the Justice Department certifies that the offense appeared to have been intended to intimidate or retaliate against a government or population. So the cases will be chosen based on the offender’s political motives, known or suspected.

          Selecting offenders for prosecution based on their politics is fraught with danger to the First Amendment, especially where ordinary constitutional and statutory guarantees are circumvented. The problem is further exacerbated here, where motive is not an element of the crime to be proved at trial but an unreviewable prosecutorial determination.

          Worse than the prosecutorial concerns are the investigative implications of the legislation. Encompassing as it does attempts, threats and conspiracies, and read in conjunction with the extraterritorial provisions in sections 102 and 103 and the fund-raising provisions in Title III, this legislation is a general charter for the FBI to investigate political groups and causes at will.

          Indeed, the Administration is quite explicit about its intention to investigate based on First Amendment activities. In section 601 of the bill, it seeks to repeal a seemingly modest provision (the “Edwards amendment”) agreed to by the Administration only 6 months ago and enacted in last year’s crime bill that prohibited investigations of “material support” based on activities protected by the First Amendment. The Administration now claims that this provision imposes “an unprecedented and impractical burden on law enforcement concerning the initiation and continuation of criminal investigations” and asks for its repeal. The amendment in fact was intended to merely codify the criminal standard in the Smith guidelines.

          Equal protection violation. One of the jurisdictional bases set forth in the new provision is that any alleged offender is an alien. While the federal government has broader discretion than the states in making distinctions between citizens and aliens, providing different crimes for aliens and citizens would surely seem to violate the Constitution.

          —————————————————————————- Return to the CDT Counter-Terrorism Page.

          Return to the CDT Home Page.

          ———————————8344104953236–

  3. Meanwhile, over in the Senate, Democrat Dianne Feinstein, Chairman of The Senate Select Committee on Intelligence, is foisting a bill that would make destroying the Fourth Amendment to the US Constitution ‘legal’, which of course is an impossibility.

    http://www.theguardian.com/commentisfree/2013/nov/08/dianne-feinstein-nsa-intelligence-reform-bill

    The legislation would make clear in no uncertain terms that communication records like phone, email, and internet data can be collected without even an ounce of suspicion, pursuant to the so-called privacy rules already in place. Being silent on other types of data like location information or financial records, it passively condones their collection too, but without even the benefit of the paltry protections in place now. For the first time in history, Congress would explicitly and intentionally authorize dragnet domestic spying programs targeting every day Americans.

    ∑ = TREASON.

    Thankfully, there is an opposing Senate bill that upholds the US Constitution:

    “The counterproposal is called the USA Freedom Act. Introduced by Rep James Sensenbrenner (a Wisconsin Republican) and Senator Patrick Leahy (a Vermont Democrat) of the powerful House and Senate Judiciary Committees, the bill has already picked up over 100 bipartisan members of Congress as cosponsors. Unlike Sen. Feinstein’s bill, the USA Freedom Act would start to rein in the NSA’s dragnet surveillance programs by banning the suspicionless collection of Americans’ phone calls. It would also amend the Patriot Act so that it could not be used for bulk collection of other forms of communications data under other abused authorities, like national security letters and pen registers.

    Imagine if all these paid representatives actually read, understood and followed the US Constitution they have sworn before God to uphold and defend. WTF is going on with #MyStupidGovernment ?

    Thank you to Sensenbrenner and Leahy for doing their jobs and protecting the citizens that allow the US government to exist.

    1. BTW: Just to stir up some controversy, note how BOTH Democrats and Republicans wrote and voted in the ridiculously named ‘Patriot Act’ and BOTH Democrats and Republicans are fighting to stop the demolition of the First and Fourth Amendments to the US Constitution.

      I can point to one of my Senators, Kirsten Gillibrand, a Democrat, as one of the champions of PIPA, the Senate rendition of the universally hated SOPA Act foisted on US citizens by the corrupt Corporate Oligarchy. I refused to vote for this terrible woman.

      And of course my rants about the murderous, crooked, treasonous exploits of the Neo-Conservatives are well known around here.

      Summary: Shot by both sides.

      There may well be decent elected officials in both parties. But both parties are equally guilty of efforts to destroy my government.

      Does that make your head explode?

        1. Even though we come from different sides of the spectrum, you and I can easily agree that the Patriot Act is incredibly overreaching.
          But I live in a rural area where my neighbors think the Patriot Act doesn’t go far enough “to protect them.” They only listen to one side and are extremely misinformed; they’re quickly swayed in that direction. sigh.

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