June 13, 2013
By MARK SHERMAN
WASHINGTON (AP) — The government’s massive collection of Americans’ phone records is drawing protests and lawsuits from civil liberties groups, but major legal obstacles stand in the way. Among them are government claims that national security secrets will be revealed if the cases are allowed to proceed, and Supreme Court rulings that telephone records, as opposed to conversations, are not private to begin with.
Justices have written recently about the complex issues of privacy in the digital age, and the high court could have the last word on challenges filed by the American Civil Liberties Union and others.
The Obama administration has said the collection of phone records — telephone numbers and the time and length of calls — is necessary to protect Americans from terrorism and that it does not trample on their privacy. The National Security Agency collects millions of phone records from the United States each day, but says it only accesses them if there is a known connection to terrorism.
The ACLU this week filed the most significant lawsuit against the phone record collection program so far. The suit demands that the courts put an end to the program and order the administration to purge the records it has collected. Conservative lawyer Larry Klayman also has filed suit over the program.
Before either suit gets a full-blown court hearing, the administration could try to employ two powerful legal tools it has used in the past to block challenges to closely held surveillance programs.
In February, the Supreme Court shot down an effort by U.S. citizens to challenge the expansion of a surveillance law used to monitor conversations of foreign spies and terrorist suspects by finding that the Americans could not show that the government would eavesdrop on their conversations. In legal terms, they did not have standing to sue, the justices said in a 5-4 decision.
The ACLU and Klayman both say they are or were customers of Verizon, which was identified last week as a phone company the government had ordered to turn over daily records of calls made by all its customers. In so doing, they said it is a simple matter of fact that records of their calls have been seized by the government.
“We meet even the standard the government has been foisting upon the courts for the past decade,” said the ACLU’s Jameel Jaffer.
But American University law professor Steven Vladeck said the challengers might face a different problem. “They’re not suing Verizon. They’re suing the government for something a third party did. And so the issue is not their ability to prove that their communications were involved. It’s how they can object to a third party’s cooperation with the government in a suit against the government, rather than the third party,” Vladeck said.
Another issue the administration could try to use to derail the suits is the jeopardy to national security that would result from allowing them to proceed, the so-called state secrets doctrine.
Seven years ago, allegations that phone companies were allowing the government to siphon huge quantities of customer data without warrants led to dozens of lawsuits against the companies and the government. In the lone surviving case against the government, James Clapper, director of national intelligence, said that the government risks “exceptionally grave damage to the national security of the United States” if forced to fight the lawsuit.
U.S. District Judge Jeffrey White in San Francisco has yet to say whether the case can continue, and the Justice Department has asked for a delay of a month now that the secret court order to Verizon has been revealed.
Whether the government will maintain its “state secrets” defense in the California case or attempt to use it in the new suits is unknown. But courts almost always side with the government when it makes the claim, and the Supreme Court has shown little appetite for revisiting its 60-year-old ruling upholding the state secrets doctrine.
Neither suit addresses the government's recently revealed surveillance of Internet activity, known as PRISM.
The Internet program allows the NSA to reach into the data streams of U.S. companies — Facebook, Yahoo, Microsoft, Google and others — and grab emails, video chats, pictures and more. Just how much the government seizes is unclear, but Clapper says it is narrowly focused on foreign targets.
If the phone record lawsuits clear whatever legal hurdles the government seeks to put in their path, there remains a line of high court cases that casts doubt on the privacy claims raised by the ACLU and by Klayman.
The Constitution’s ban on unreasonable searches and seizures clearly applies to telephone conversations. In 1967, the court said authorities ordinarily need to persuade a judge to issue a warrant before they can listen in, based on significant evidence that a crime has been committed or is underway.
But phone records are different, the court said in Smith v. Maryland in 1979. “All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills,” Justice Harry Blackmun wrote in rejecting the claim police need a warrant to obtain phone records.
Fast forward to 2012, and some members of the court appeared to recognize that technology may have altered privacy concerns.
In separate opinions in last year’s case involving a GPS device used to track a criminal suspect for four weeks, two justices described how advances in technology can shake up Americans’ expectations of privacy.
“Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable,” Justice Samuel Alito wrote in an opinion that was joined by three other justices. “On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions.”
Writing only for herself, Justice Sonia Sotomayor expressed more anxiety about the wealth of information that people disclose about themselves in the performance of daily tasks, including using their cell phones, surfing the Internet and making online purchases. “Perhaps, as Justice Alito notes, some people may find the ‘tradeoff’ of privacy for convenience ‘worthwhile,’ or come to accept this ‘diminution of privacy’ as ‘inevitable,’ and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.”
Sotomayor suggested that the court may need to revise its 1970s-era views about the privacy of information that people voluntarily hand over in what otherwise seem to be closely held transactions.
June 13, 2013
By Alicia a. Caldwell
WASHINGTON (AP) -- Five months after President Barack Obama called on lawmakers to approve his choice to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Senate is considering the nomination.
When B. Todd Jones appeared before the Senate Judiciary Committee on Tuesday he was just the second ATF nominee to face congressional questioning since the Senate was given authority to approve the agency's chief in 2006. Like his predecessors, Jones' nomination is likely a longshot, despite vocal support from law enforcement and the White House. The bureau hasn't had a confirmed director for six years.
The powerful gun lobby has worked aggressively and successfully behind the scenes since 2006 to convince lawmakers to not even give a previous nominee a hearing.
Four other people have led ATF on a temporary basis since 2006, and two men have been nominated for Senate approval. In 2007 President George W. Bush's nominee, Michael Sullivan, was given a hearing but his nomination was ultimately blocked.
In 2009, Obama nominated Andrew Traver. The NRA strongly opposed him, saying at the time that Traver "has been deeply aligned with gun control advocates and anti-gun activities." He never had a hearing.
The NRA has not publicly opposed or endorsed Jones.
Jones is likely to face aggressive questioning from Republicans about his decisions as the top federal prosecutor in Minnesota and the ATF's widely criticized gun-smuggling sting operation called "Fast and Furious."
In an opening statement submitted to the committee, Jones said he took over an agency "in distress" in 2011.
"There had been a lack of strong visionary leadership, and of accountability and attention to detail," Jones said in the statement. He said he had appointed 22 new special agents in charge in the agency's 25 field divisions and worked "on creating a leadership team to strengthen the bureau" on its various missions.
The White House again Monday urged the Senate to approve him.
"Todd Jones is a highly qualified nominee who has decades of experience in law enforcement and a track record of effective leadership as acting ATF director," White House spokesman Jay Carney said. "The ATF is a critical law enforcement agency that helps protect our communities from dangerous criminals, gun violence and acts of terror, yet for the past six years it has been serving without a confirmed director because Senate Republicans have blocked every nominee, regardless of their qualifications."
Jones, 55, took over the agency on an interim basis in 2011, after the Fast and Furious operation was made public. But lawmakers including the panel's senior Republican, Sen. Charles Grassley of Iowa, have questioned what he knew about the operation before taking over ATF.
Jones chaired an advisory committee to Attorney General Eric Holder from 2009 through 2011, when the operation was in effect. That committee doesn't have oversight over any law enforcement operations, but Grassley and others insist that Jones should answer questions about whatever he knows of the program that allowed thousands of guns to be smuggled across the border with Mexico and into the hands of some of Mexico's most violent drug cartels.
The Iowa senator and others have also pressed Jones to answer questions about decisions he made in a false claims case involving the city of St. Paul, Minn. They have accused Jones and the Justice Department of agreeing to drop the case against the city so long as the city dropped an appeal to the U.S. Supreme Court in an unrelated case.
The former head of the Minneapolis FBI office, Donald Oswald, has also written a letter to Congress accusing Jones of impeding federal prosecutions of gang, drug and gun laws.
Oswald said Jones was "substantially motivated by personal political gain and not by doing what's in the best interest of the citizens he is sworn to protect."
Jones, who was appointed U.S. attorney in Minnesota in 2009, has declined to discuss Oswald's allegations and other issues surrounding his nomination. In a statement Monday he said he was looking "forward to meeting with the Judiciary Committee and answering all of their questions."
Grassley said Monday the Jones' hearing was "highly unusual, if not unprecedented," because there is an ongoing Office of Special Counsel probe of his work as U.S. attorney.
The Office of Special Counsel is an independent federal agency that investigates and prosecutes prohibited personnel practices, such as reprisal for whistle-blowing. In April the special counsel notified Judiciary Committee Chairman Patrick Leahy, D-Vt., and Grassley that she was looking into an allegation that Jones retaliated against a federal prosecutor for whistle-blower-protected activities in Minnesota. The specifics of the allegation were not available.
"I take whistle-blowers' complaints very seriously, and the rest of the committee should, too, and not push a hearing on a controversial nominee with several unresolved issues and a formal complaint pending against him for a position that the president left open, without a nominee, for two years," Grassley said.
The hearing comes nearly six months after 26 people, including 20 children, were shot to death in Newtown, Conn., spurring Obama and some lawmakers to push for new gun control laws. So far, those efforts have failed. Gun control advocates, including some families of the victims from the Sandy Hook Elementary School shooting, are in Washington this week to again push lawmakers to support expanding background checks for gun purchases. The Senate rejected a bill to do that in April.
The National Rifle Association and other gun-rights advocates have argued that expanded background checks would lead to a national registry of guns and the federal government should focus on enforcing existing laws.
The ATF long has been criticized for perceived failures to prosecute gun crimes, including against those people who lie on federal forms when trying to buy a gun.
According to statistics provided by the ATF, the agency recommended charges be filed against more than 70,500 people from 2009 to 2012. More than 42,000 of those people were eventually convicted of firearms-related offenses.
June 13, 2013
By Charlene Muhammad
LAWT Contributing Writer
The trial of George Zimmerman, neighborhood watchman to himself, but reckless vigilante to others, began on June 10 for his killing of Black teenager Trayvon Martin on February 26, 2012 in Sanford, Florida. In this one-on-one interview with Sister Charlene Muhammad, Mr. Martin opened up about his family’s personal battle, missing Trayvon on Father’s Day, and what the Justice for Trayvon Martin movement means to him.
Charlene Muhammad (LAWT): How are you and Ms. Sybrina (Fulton, Trayvon’s mother) and your family doing because you’ve been thrust into this role, this battle and have been carrying it for some time and now the trial is on?
Tracy Martin (TM): Spiritually, we’re doing fine. Mentally we’re doing fine as well. But physically, it’s taken a toll on us but at the same time, we just stay in the grace of God and we just be hopeful that this fight for justice is worth it all.
LAWT: Are you ready for this trial?
TM: You can’t prepare yourself for a situation such as this because you never know what the outcome will be. You never know what’s going to be brought out. I can say that I’m ready to take on any blows that the defense tries to hit me with and the reason I say I’m ready is because I prepared Trayvon for 17 years, so I know what type of person he was. I know what type of kid he was. So, whatever the defense has to say about him, I know that it’s not true. I know there’s nothing that can knock me down because I know Trayvon. True enough, they may say some things about using marijuana or he had pictures with guns or whatever but I didn’t know that Trayvon. I just don’t feel that will have an effect on me. Just sitting up listening to those things can have its wear and tear on you. And the only thing I can try to stand on is my faith. I’ll just keep that strong hold on my faith and I will let good outweigh the bad.
LAWT: There’s a renewed activism - and I don’t think the people ever went away, so to speak - but what are your thoughts about the people raising their voices again, keeping watch on this trial, and mobilizing around National Hoodie Day, which they’re using to fight for your son and other youth suffering the same thing?
TM: I think anytime we continue to raise awareness, not only for Trayvon, but for other young Black and Brown children, and continue to let this society know that it’s not okay to kill our children and you get a slap on the wrist for it, we definitely have to stand strong and continue that fight. And just to see so many people still active in raising that awareness and keeping America conscious as to what’s going on is very important because we all know that if we don’t raise a voice for our children, no one else will. And as soon as we stop speaking up, they’ll assume that it’s okay to depreciate the value of our children’s lives. So I think it’s very important that we continue to raise awareness, and it’s not only about Trayvon. It’s definitely about our children, our future. By being thrust into this situation, you hate that it’s your child. But at the end of the day, you say to yourself, maybe this was something that had to happen and maybe we were the right people to pick because we were so outspoken about his death that we were standing there from the beginning saying, ‘No! You killed my son and something has to be done about this.’
So many times our children are killed and we don’t speak up about it. And I was once asked, well, what if it had been an African American person that killed Trayvon. My reply was I’d be pursuing this the same way. So many times, when it’s Black-on-Black crime, we really don’t pursue it in that manner. If you value your child’s life, you want to see your child’s killer brought to justice no matter if he’s Black, White, Brown, because we feel we were robbed. We feel that we were wronged so our fight from the onset was we need justice. We need equal justice.
LAWT: I can almost hear that question coming. I understand what you’re saying. As this Fathers’ Day occurs within a week of the trial starting, what kind of impact is that having on you? Does it matter that it’s Fathers’ Day or could it be any day?
TM: Any day is tough living without him. Father’s Day, you know, I always looked for the lil’ gift that he gave me. Whether it was the same gift every year, but I looked forward to that gift. He would go and buy me a pack of t-shirts or a pack of socks or some slacks, house shoes, whatever. But I knew that I had that gift coming from him every year and with Father’s Day approaching, I know I’m not going to get that gift this year, but I still visit. I’ll go visit him at the cemetery, sit down and have my talk with him. The impact of him not being around on that day is devastating but at the same time, I know he’s looking down on us and looking at the fight that we’re putting up for him and the voices that we’re maintaining for him...Father’s Day is a tough day without him.
LAWT: How are you dealing with attempts to paint your son in media in a negative light, with guns and drugs?
TM: The defense attorney wants to put in the potential jury’s mind that Trayvon was this bad kid that was on heavy drugs and he was all off into guns and my thing is he was 17 years old. He had just turned 17. If he was that bad of a kid, why wasn’t he ever in any trouble with the law? ... Of course he did get suspended from school but that didn’t make him a bad kid. If you take a poll on high school students, I guarantee you 65-70% of the high school students have tried marijuana. The gun thing, I don’t have guns in my household I can’t say yeah Trayvon had a gun and I knew about it because I didn’t know that Trayvon. I didn’t know about Trayvon with a gun. The pictures that they released, those were the first time I saw those pictures. And I’m sure every parent in this country can’t tell you what their child does when they’re away from home or what their daily activities are because we’re not around our kids 24 hours a day. So if your child does something while he’s not around you, you can’t speak on it. All we can do is be hopeful that the things we instilled in our children will outweigh temptation.
LAWT: How is the Justice for Trayvon Martin Foundation (www.justicetm.org) coming along?
TM: We’re still getting it together. It takes a lot of work. You can organize a foundation but to get it up and running and to have it successful, It takes a lot of work. We just designed a new website. Our mission for the foundation is to advocate, educate, have mentoring and offer some type of scholarship for children. Our biggest thing is we’re not segregating. We’re saying our foundation is open to anyone. It’s coming along. It’s an uphill battle, uphill climb but we have faith in ourselves and the people we surround ourselves with so we think we can actually get to the next level with the foundation.
LAWT: Thank you.
June 13, 2013
By Kirubel Tadesse
ADDIS ABABA, Ethiopia (AP) -- Ethiopia's leader has vowed that no one will stop a $4.2 billion energy project that is diverting the flow of the Nile River after Egypt's president warned that all options were being considered to halt the dam.
In an interview aired on state television and radio, Ethiopian Prime Minister Hailemariam Desalegn said Tuesday that he did not think Egypt would start a war over the vital river.
"'All options' include a war. I don't think they will take that option unless they go mad," Hailemariam said during the interview. "I urge them to abandon such an unhelpful approach and return to dialogue and discussion."
Ethiopia started diverting the flow of the Nile River in late May to make way for its $4.2 billion hydroelectric plant, which will be Africa's largest. The project has been under construction for over two years on the Blue Nile River in Ethiopia's Benishangul-Gumuz region near the Sudan border.
Egypt fears that the project will mean a diminished share of the Nile River.
Egyptian political leaders last week told President Mohammed Morsi to consider hostile acts against Ethiopia. Apparently unaware their discussion was being televised live, the leaders recommended spreading rumors, aiding rebels and even sabotaging the dam itself in a meeting with Morsi.
During the meeting, Morsi said that Egypt will not engage in any aggressive acts against Ethiopia. However, he hardened his stance on Monday, warning that "all options are open."
Hailemariam then accused Egyptian leaders of using the dam issue to divert attention away from local issues. He said it was wrong of Egyptian politicians to use the Nile dam as "a distraction to escape the strong domestic opposition they are facing."
A 10-person Egypt-Sudan-Ethiopia experts' panel has concluded that the dam will not significantly affect water flow to both Egypt and Sudan, Hailemariam explained.
The finding of the experts' panel, which includes four international experts, was fully accepted by Sudan, Hailemariam said.
"I like to thank the government and people of Sudan for their support and determination to work for mutual benefit. Others should learn from this," he added.
In a further escalation of the conflict, the Ethiopian foreign affairs ministry in a statement issued Tuesday condemned the "belligerent rhetoric" coming from Cairo. The ministry said Ethiopia "will not even for a second" stop the construction of the dam due to Cairo's rhetoric.
Ethiopia is currently leading a group of nine countries that signed the new Cooperative Framework Agreement for the Nile. The new agreement replaces colonial-era deals that awarded Cairo veto powers over projects on the Nile.
Ethiopia, Kenya, Rwanda, Tanzania and Uganda signed the agreement in 2010, and Burundi did so a year later. Sudan and Egypt have been strongly opposed to the deal.
Ethiopian parliament since April is reviewing the deal. It is expected to approve it in few days' time.