Mining of Data Prompted Fight Over Spying

New York Times: By SCOTT SHANE and DAVID JOHNSTON

WASHINGTON, July 28 — A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues....

If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales’ defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct.

But members of the Senate Intelligence Committee, who have been briefed on the program, called the testimony deceptive.

“I’ve had the opportunity to review the classified matters at issue here, and I believe that his testimony was misleading at best,” said Senator Russ Feingold, Democrat of Wisconsin, joining three other Democrats in calling Thursday for a perjury investigation of Mr. Gonzales.

“This has gone on long enough,” Mr. Feingold said. “It is time for a special counsel to investigate whether criminal charges should be brought.” ...

The first known assertion by administration officials that there had been no serious disagreement within the government about the legality of the N.S.A. program came in talks with New York Times editors in 2004. In an effort to persuade the editors not to disclose the eavesdropping program, senior officials repeatedly cited the lack of dissent as evidence of the program’s lawfulness. ...

Mr. Gonzales defended the surveillance in an appearance before the Senate Judiciary Committee in February 2006, saying there had been no internal dispute about its legality. He told the senators: “There has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into.”

By limiting his remarks to “the program the president has confirmed,” Mr. Gonzales skirted any acknowledgment of the heated arguments over the data mining. He said the Justice Department had issued a legal analysis justifying the eavesdropping program.

So maybe impeachment is more suitable than a perjury prosecution?

It has long been recognized that telling the literal truth when least expected is one of the most effective means of deception.

Travelers Face Greater Use of Personal Data

Travelerswashingtonpost.com: By Paul Lewis and Spencer S. Hsu

The United States and the European Union have agreed to expand a security program that shares personal data about millions of U.S.-bound airline passengers a year, potentially including information about a person's race, ethnicity, religion and health.

Under the agreement, airlines flying from Europe to the United States are required to provide data related to these matters to U.S. authorities if it exists in their reservation systems. The deal allows Washington to retain and use it only 'where the life of a data subject or of others could be imperiled or seriously impaired,' such as in a counterterrorism investigation.

According to the deal, the information that can be used in such exceptional circumstances includes "racial or ethnic origin, political opinions, religious orphilosophical beliefs, trade union membership" and data about an individual's health, traveling partners and sexual orientation.

Airlines do not usually gather such data, but officials say it could wind up in passenger files as a result of requests for special services such as wheelchairs, or through routine questioning by airline personnel and travel agents about contacts, lodging, next of kin and traveling companions. Even a request for a king-size bed at a hotel could be noted in the database. ...

Although Homeland Security has said it will move passenger information to "dormant" status after seven years and "expects" to erase it after 15 years, it notified the E.U. that expiration of data will be subject to "further discussions."

Dutch lawmaker Sophia Veld, the European Parliament's standing rapporteur on Passenger Name Records, said the agreement gives a green light to U.S. authorities to use confidential information for unstated purposes. Stavros Lambrinidis of Greece, vice chairman of the parliament's civil liberties, justice and home affairs committee, warned that it allows extra data collection not just in counterterrorism cases but for "a vast and in some cases unidentified number of crimes. So we have function creep."

And make the king suite non-smoking, please. Got that down?

Michael Moore says he's been served

United Press International :

BURBANK, Calif., July 26 (UPI) -- Michael Thursday said the Bush administration has served him with a subpoena regarding his trip to Cuba during the making of his new film, 'Sicko.'

The Oscar-winning filmmaker, who appeared Thursday on NBC's 'The Tonight Show with Jay Leno,' said he was notified about the subpoena at the network's studios in Burbank, Calif.

I wonder if there is some kind of privilege he can invoke to be able to ignore the subpoena--there's a lot of that going around. Maybe one called the First Amendment?

State Official Upholds Race-Conscious Admissions at U. of Wisconsin

Chronicle.com: Peter Schmidt

W

isconsin’s attorney general has issued an informal legal opinion to state legislators concluding that a race-conscious freshman-admissions policy adopted by the University of Wisconsin’s Board of Regents for the entire university system does not conflict with a state law intended to prevent the system’s campuses from engaging in discrimination.

Soon after the board adopted the policy, in February, 15 state representatives and four state senators sent Attorney General J.B. Van Hollen a letter challenging the legality of the policy, which calls for system campuses to consider race and ethnicity as part of a comprehensive review of applicants. Specifically, their letter alleged that the new policy conflicted with a 1973 law prohibiting the system from making admissions decisions using “sectarian or partisan tests or any tests based upon race, religion, national origin of U.S. citizens, or sex.”

A separate letter, signed by another group of lawmakers, urged Mr. Van Hollen to uphold the policy as legal. They argued that it did not impose any “test,” as described in the 1973 law, and called it “thoughtfully and carefully written to allow admissions officials the flexibility they need to select the student body necessary to ensure the continued success of the institution.”

In the legal opinion, Mr. Van Hollen said the term “test” in the 1973 law was used to refer to an admissions standard that would disqualify any applicants who did not meet it. Because the system’s new admissions policy calls for campuses to consider race as just one of many factors in weighing applicants, it does not impose the sort of racial “test” that the 1973 law prohibits, he said.

Mr. Van Hollen’s letter contained a note of caution for the university system, however, saying that it must make sure applicants are considered as individuals, as required by the U.S. Supreme Court in its key rulings dealing with race-conscious admissions. ...

Full Constitutional Protection for Some, but No Privacy for the Poor

New York Times:By ADAM LIPTAK

In San Diego, poor people who want public benefits must give up their privacy. Investigators from the district attorney’s office there make unannounced visits to the homes of people applying for welfare, poking around in garbage cans, medicine chests and laundry baskets. ...

Lawyers who have sued on behalf of the applicants say that being poor should not mean having to give up the Fourth Amendment’s protection against unreasonable government searches. So far, the courts have disagreed, saying that rooting out welfare fraud justifies the searches, but not without drawing some fierce dissents. ...

The San Diego program is the most aggressive one in California and perhaps in the nation, but the recent decisions have probably given governments around the country all kinds of ideas. An earlier home-visit program, instituted in New York in 1995 by Mayor Rudolph W. Giuliani, was largely dismantled as part of the settlement of a lawsuit in 1997.

Lawyers for the plaintiffs in San Diego said the money the county saved was not worth the price in privacy and dignity.

“The poor are presumed guilty, presumed lazy and presumed to be trying to gain something they don’t deserve,” said Professor Budd, who now teaches at the Franklin Pierce Law Center in Concord, N.H. “It’s a general poverty exception to the Fourth Amendment.” ...

The majority also relied on a 1971 Supreme Court decision, Wyman v. James, which upheld a New York program involving scheduled visits from social workers, not surprise searches by investigators from a prosecutor’s office. The Supreme Court said the main purpose of the New York visits was “rehabilitation.”...

One of the dissenting judges, Harry Pregerson, writing for himself and six colleagues in April, suggested one sort of argument that might be promising. He said there was a double standard at work.

“The government does not search through the closets and medicine cabinets of farmers receiving subsidies,” Judge Pregerson wrote. “They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters.”

Only the poor, he said, must “give up their rights of privacy in exchange for essential public assistance.”

Wyman v. James was a relatively new decision when I read it in law school. It made me ashamed to be an American. My recollection is that it was Justice Harry Blackmun's "maiden opinion" as a new member of the Court. I wonder what he thought of it in his later years. And here it is again. This is one precedent that the current Court majority seems unlikely to undermine or reverse. It sucks to be poor in America.

"We meditate on the transcendental glory of the deity supreme, who is inside the heart of the earth..."

Althouse:
My colleague Ann Althouse blogs on the horrific disruption of the Hindu invocation at the Senate the other day. I think she hits this one just right. One snippet:

The Operation Save America protesters were thus not only rude and intolerant, they were demonstrating an attitude toward the invocations that, if it were accepted, would render the practice unconstititional. Government cannot elevate one religion over another. One of the primary values of the Establishment Clause is preventing divisiveness. These benighted characters would like to foment religious strife.

I never found the Supreme Court case holding religious invocations constitutional (Marsh v. Chambers) all that intellectually persuasive to begin with, particularly in light of then existing precedents on the (non-)Establishment Clause, but I've never been particularly successful in making much sense of post-Warren Court religion clause jurisprudence altogether. I am not alone (among persons of faith) in finding much of it (e.g., constitutionalize creches on public property by placing them amidst Santa Clausii and other symbols of our mercenary seasonal devotions, with or without Hanukkah menorot) demeaning of true religious commitment.

This distressing demonstration in the Senate chamber certainly previews the unholy impact of the Court's relaxed jurisprudence, and the increasingly aggressive claims of some on the religious right (encouraged by both the Court and Republican political leaders in Executive, Legislative, and Cheney-Fourth Branches), in our increasingly multicultural (and no longer simply "Judeo-Christian"--a term I despise) society. It does not bode well for our"getting along" domestically, or for our place in the world. (Crusader Alert!)

Transferring Up

New York Times: By Jonathan Kozol

Congress has an opportunity to take advantage of the opening created by Justice Kennedy later this year when it reauthorizes the federal No Child Left Behind Act. The law gives children the right to transfer from a low-performing school to a high-performing school if the low-performing school has failed to demonstrate adequate improvement two years after being warned of its shortcomings.

Unfortunately, the transfer provision has until now been a bust. Less than 3 percent of eligible children have been able to transfer, in part because of the scarcity of space in high-performing schools within most urban districts. Although the law does not prohibit transfers between urban and suburban schools, it offers no inducements to the states to make this possible.

Democrats in the Senate should therefore introduce an amendment to authorize and make easier cross-district transfers — not on a specifically race-conscious basis, but solely to fulfill the professed intention of the law.
There is obvious urgency to this. ...

In the Boston area, for instance, 16,000 children — nearly one-third of all minority children in the city’s schools — are on the waiting list to transfer. (It is worth noting that of the children who participate in the Boston transfer program, 95 percent graduate from high school and nearly 90 percent go on to higher education.)

Kozol, one of our best writers on education, specifies a number of provisions that such legislation should include, and calls on Senator Kennedy to take advantage of the opportunity provided by Justice Kennedy to ameliorate the wholesale resegregation of American education.

I've never been a fan of Bush's educational policy--always more promise than delivery. This might salvage a bit of substance in responding to patterns of residential (and associated jurisdictional) segregation. Hardly a panacea, but an incremental improvement in some areas.

Ex-Surveillance Judge Criticizes Warrantless Taps

washingtonpost.com: By Michael J. Sniffen (AP)

A federal judge who used to authorize wiretaps in terrorism and espionage cases criticized yesterday President Bush's decision to order warrantless surveillance after the Sept. 11, 2001, attacks.

'We have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war,' said Royce C. Lamberth, a U.S. District Court judge in Washington and a former presiding judge of the Foreign Intelligence Surveillance Court, speaking at the American Library Association's annual convention.

That's the conference my wife is attending. I wonder if she went to that session? (I doubt she was hanging out at the bar wearing someone else's nametag!) ;-)

Lamberth, who was appointed to the federal bench by President Ronald Reagan, expressed his opposition to letting the executive branch decide on its own which people to spy on in national security cases.

The judge said it is proper for executive branch agencies to conduct such surveillance. "But what we have found in the history of our country is that you can't trust the executive," he said.

"The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs," Lamberth said at the Washington Convention Center. "We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive."

I thought it was Vice Presidents. They aren't part of the Executive, as we've recently learned...

FBI Finds It Frequently Overstepped in Collecting Data

From The Washington Post: By John Solomon

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

FBI officials said the results confirmed what agency supervisors and outside critics feared, namely that many agents did not understand or follow the required legal procedures and paperwork requirements when collecting personal information with one of the most sensitive and powerful intelligence-gathering tools of the post-Sept. 11 era -- the National Security Letter, or NSL. ...

"The FBI's comprehensive audit of National Security Letter use across all field offices has confirmed the inspector general's findings that we had inadequate internal controls for use of an invaluable investigative tool," FBI General Counsel Valerie E. Caproni said. "Our internal audit examined a much larger sample than the inspector general's report last March, but we found similar percentages of NSLs that had errors."

"Since March," Caproni added, "remedies addressing every aspect of the problem have been implemented or are well on the way."...

This seems roughly par for the course, and is one reason seasoned observers are (properly) skeptical of assurances given when such measures are proposed. What's slightly less clear is whether anyone ever believes those assurances (including those giving them), or whether the whole thing is an exercise in blatant cynicism from the getgo.

Canceled school play about Iraq brings out real drama

Foom The Christian Science Monitor:

Wilton, Conn. - Stone-faced and grim, six boys from Wilton High School are marching in formation, stomping out the ominous rhythm of foot soldiers, and saluting from their chests. Together, they stop to shout: 'For all the free people that still protest, you're welcome! You're welcome!'

It's a defiant rap, first written by U.S. Marines in Kuwait to taunt those who protested the first Gulf War, and now incorporated into a spring play, 'Voices in Conflict,' a dramatic series of monologues taken from interviews and letters from real soldiers in combat. This scene, however, has the most complicated stage directions, and Courtney Stack, a junior in charge of the choreography, is barking out orders, showing the boys how to move their feet and swing their shoulders as the pounding march becomes a flowing hip-hop groove.

But the rap scene has a deeper meaning for the Connecticut students, eight boys and eight girls, members of an advanced drama class who have found themselves in a bewildering maelstrom of wartime controversy.

What should have been a simple hour-long spring play, like thousands of others during the season of senioritis and proms, instead has become a media-driven touchstone, not only of the rife divisions in the country but of the free-speech rights – and intellectual abilities – of high school students as they explore the complexities and horrors of war.

In March, the principal of Wilton High, Timothy Canty, canceled the production of the play after one student – the student who contributed the antiprotest rap, in fact – and her mother complained that the script was unbalanced and disrespectful to those in Iraq. Early versions of the script, based entirely on the words of real soldiers in combat, included profane language, graphic descriptions of violence, and a moral ambiguity that seemed to question the justness of the war. Mr. Canty felt its performance would hurt families that had lost loved ones or had family members serving overseas.

The cancellation, however, only served to draw the attention of national media, prominent playwrights, and a host of others concerned that a student play would be censored for critiquing the war in Iraq. The controversy has assured it a larger, broader audience than the school stage would have: A number of professional theater companies are hosting the student production, including The Public Theater in Manhattan (June 15), one of the more renowned venues in New York.

"This entire thing has been completely overwhelming and completely surprising," says Seth Koproski, a junior in the play. "We thought we would go up, do our monologues, and that's it. We never asked for a media firestorm; we didn't want a controversy. We just wanted an engaging play that we were interested in." ...

New Jersey?

Slate Magazine:

"Meadow: 'The state can crush the individual.'
Tony (incredulously): 'New Jersey?'"

Association for Civil Rights in Israel (ACRI): 35 Years

“ACRI Celebrates 35 Years of Civil Rights Achievements in Israel”, read the headline. The front-page story in Yediot Ahronot, Israel’s largest daily newspaper, reflects the success of NIF’s flagship grantee the Association for Civil Rights in Israel (ACRI).

Since its establishment in 1972, ACRI has brought about a revolution in the Israeli human rights sphere. Known colloquially as the “ACLU of Israel,” ACRI has pioneered social change in the most challenging areas of Israeli life, including rights for minorities, women, the disabled, the LGBT community and foreign workers.

Legal Landmarks

Just a few of the numerous precedent-setting court decisions won by ACRI that have shaped Israeli society and ensured enhanced freedom:

* 1986 - ACRI’s petition to the Supreme Court resulted in the abolishment of censorship for theatrical plays.

* 1987- ACRI successfully appealed to the Supreme Court demanding a change in policy that required women to retire from the workplace at age 60 while allowing men to retire at age 65.

* 1989 - ACRI successfully petitioned the Supreme Court for the recognition of the rights of Conservative and Reform Jews to serve on religious councils.

* 1994 - ACRI successfully petitioned the Supreme Court together with IWN for the right of women to participate in Air Force pilot aptitude tests.

* 1997 - ACRI petitioned the Supreme Court demanding that the police investigate complaints by foreign workers that employers withheld their passports. The petition led to police procedures for processing such complaints.

* 2000 - In response to ACRI’s petition, the Supreme Court issued a landmark decision prohibiting the discriminatory allocation of State land, the first time that the Arab community’s equal right to State-allocated land was articulated by the courts.

* 2002 - ACRI, along with other organizations, succeeded in persuading the Supreme Court to ban the use of Palestinian civilians as human shields by the Israeli Defense Force.

* 2004 - As a result of ACRI’s litigation, the State imposed regulations restricting access of government offices and commercial banks to confidential personal information contained in the population registry.

* 2005 - ACRI achieved a first-time ruling by the Supreme Court, which called for the dismantlement of an existing section of the Separation Fence, and for the determination of an alternative route to lessen the violations of the rights of the local Palestinian residents.

* 2006 - ACRI achieved a landmark ruling obligating the Interior Ministry's Population Registry to register the marriages of same-sex couples who marry outside Israel.