Archive | September 2013

Feds Detail Justice Department’s Drone Use, Call for More Rules

A Department of Justice Inspector General report lays out the limited ways domestic law enforcement is using drones, for now, and recommends policies to constrain their use.

By Sept. 27, 2013

Perhaps you remember the filibuster Kentucky Senator Rand Paul launched in March against the confirmation of CIA chief John Brennan in protest over the purported threat of domestic drone attacks. It contained some ominous-sounding predictions of how the U.S. government might target citizens with death from above using drones. “I’m not accusing anybody of being [Hitler],” he said, but the law “should protect you from a president that might kill you with a drone.”

Thursday the Department of Justice Inspector General Michael Horowitz released an interim report on the use of drones in the U.S. by DOJ, and it turns out the threat is very limited. Of DOJ’s agencies, only the FBI has used drones and none are armed or carry releasable projectiles, Horowitz reported. But the IG did find that other law enforcement agencies, like the Bureau of Alcohol, Tobacco and Firearms, plan to deploy the platforms, that DOJ has funded local use of drones, and that the Department has a grab bag of policies that need to be coordinated across agencies.

In other words, the problems of domestic drone use are just what many expected: there is expanding domestic use of drones largely for surveillance, and our rules are catching up to emerging technology.

Just to remind readers of the context of the report, Paul made some scary allegations. In Brennan’s confirmation hearing in February, Paul asked him whether the U.S. would use a drone strike to kill an American on American soil, to which Brennan responded he had “no intention of doing so.” That wasn’t good enough for Paul, so he took to the floor Mar. 6 to filibuster. “Are you going to just drop a hellfire missile on Jane Fonda? Are you going to drop a missile on Kent State?” he thundered. (A compilation of some of Paul’s more memorable statements can be foundhere.)

It turns out that with regard to domestic law enforcement, the use of drones—also known as “Unmanned Aerial Systems,” or UAS— is significantly less threatening. Says the report:

As of May 2013, four DOJ law enforcement components had either tested for evaluation or used UAS to support their operations. Although the Federal Bureau of Investigation (FBI) is the only DOJ component to have used UAS to support its mission, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) reported to us that it plans to deploy UAS to support future operations. The Drug Enforcement Administration (DEA) and the United States Marshals Service (USMS) have acquired UAS for testing, but told us that they have no plans to deploy them operationally. Specifically, the DEA stated that it plans to transfer its UAS to another federal agency, while the USMS stated that it plans to destroy its UAS because its UAS are obsolete and no longer operable. From 2004 to May 2013, DOJ law enforcement components reported spending in total approximately $3.7 million on UAS, with the FBI accounting for over 80 percent of this amount.

The problems associated with domestic drone use are also less threatening and more typical of government dysfunction. It turns out FBI and ATF are kind of winging it when it comes to their policies for approving and using drones. The IG recommended the adoption of department-wide policies.

We believe the Office of the Deputy Attorney General (ODAG), which has responsibility within DOJ for formulating cross-component law enforcement policies, should consider the need for a DOJ-wide policy regarding UAS uses that could have significant privacy or other legal implications.

Lastly, Horowitz found that DOJ should more tightly oversee its funding of local law enforcement programs’ testing and use of drones. The department’s offices “have provided $1.2 million in funding to seven local law enforcement agencies and non-profit organizations to purchase UAS for testing or use,” the IG found. But the department had difficulty saying exactly how many awards it had made, and hadn’t required the recipients to “demonstrate that they could receive FAA approval to operate UAS or that UAS use was legal in their jurisdiction.”

All of which may not be as scary as asking if the U.S. government plans to kill Jane Fonda or blow up Kent State. But it should probably be fixed.

Read more: http://swampland.time.com/2013/09/27/feds-detail-justice-departments-drone-use-call-for-more-rules/#ixzz2g5oNFACJ

BLT – Senate Considers Changes to Surveillance Law

By Alex Zank

As Senate Intelligence Committee members and top security officials defended controversial telephone data collection programs Thursday on Capitol Hill, they also said they’re working on legislation to amend the scope of the surveillance.

Committee Chairwoman Senator Dianne Feinstein (D-Calif.), who called the National Security Agency programs lawful, blamed media sensationalism for a public misconception about how the programs affect privacy in the context of national security.

“The NSA surveillance programs have protected against dozens of attacks against the United States,” Feinstein said during her opening statement at a rare public hearing of the committee.

Still, Feinstein announced she was working with Republicans on legislation to limit the metadata collection program and provide more congressional oversight. Among the changes being considered: requiring an annual report on how the collected data is used, requiring Senate confirmation for the NSA director position, and spelling out how the NSA determines which phone numbers might be linked with suspected terrorists.

Thursday’s hearing comes amid escalating public concern about privacy and the scope of the NSA surveillance authority under the Foreign Intelligence Surveillance Act and the Patriot Act. Revelations about those programs started with leaks to the media from government contractor Edward Snowden, and caused President Barack Obama to form a group to review the agency’s actions.

On Thursday, Deputy Attorney General James Cole repeated many of the arguments from his previous testimony about the issue on Capitol Hill oversight hearings. He said the FISA Court reviews the NSA’s collection of phone metadata—key details about a call like the number called and the call length, but not the content of the call—every 90 days.

The surveillance court’s regular re-approval under Section 702 of FISA and Section 215 of the Patriot Act shows the program “satisfies all constitutional requirements” and the Justice Department looks forward to working with the committee on the issues. “We welcome having public debate and discussion of whether section 215 strikes the right balance between national security and privacy,” Cole said.

Sen. Ron Wyden (D-Ore.), a critics of the surveillance programs, said greater transparency would have prevented some public skepticism.

“With the loss of trust in the intelligence apparatus … it’s going to take time to rebuild,” he said. “It could have been avoided if the intelligence community was straight with the American people. I hope this serves as a lesson.”

Contact Alex Zank at azank@alm.com.

http://legaltimes.typepad.com/blt/2013/09/senate-mulls-changes-to-surveillance-laws.html

The FISA Courts Are Even Worse Than You Knew

By Jeffrey Rosen

Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it. The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.

Read rest of the article here http://www.newrepublic.com/article/114853/fisa-court-decision-upholding-surveillance-joke

Many Counties and Cities prey on the poor and uneducated to fill their coffers

Lawsuit filed over “unauthorized” court costs

By Bill Rankin

The Atlanta Journal-Constitution

A southwest Georgia county has been collecting unauthorized court costs from hundreds of criminal defendants, many of whom are poor and unable to afford their own lawyers, a federal lawsuit alleges.

The lawsuit, filed Tuesday in Albany, seeks to stop Grady County State Court from collecting “administrative costs” from defendants without any legal basis to do so. In 2011 and 2012, the county illegally collected almost $297,000 from about 540 defendants, the suit said.

The lawsuit, filed by lawyers for the Southern Center for Human Rights in Atlanta, seeks class action status on behalf of all defendants who paid the allegedly illegal costs. Sarah Geraghty, a senior attorney for the Southern Center, said her office is also looking at other courts in Georgia where judges impose unauthorized court costs on defendants.

The suit was filed on behalf of Roberta Imogene Jones, of Statesboro, who works nights at a chicken processing plant. Jones, who could not afford a lawyer and represented herself, pleaded guilty in July 2012 to driving under the influence.

Jones was given one year on probation at $44 a month and fined $300. State Court Judge William Bass also ordered Jones to pay $700 in administrative costs to the county, the suit said.

“Courts should operate with the highest standard of integrity, but here we have government officials stepping outside the law and treating a court of justice like a money-making scheme,” Geraghty said Wednesday. “Grady County has no right to this money and should return it.”

In March, the state Judicial Qualifications Commission issued a public reprimand to Bass for ethical violations, including findings that he assessed unauthorized costs to defendants and sought a raise in pay based on the amount of money he made for the county.

 

Power of the Prosecutors – Misconduct in Danziger Bridge Case

Plenty of Misconduct, and 129 Pages of One Judge’s Disbelief

Joe Sexton, ProPublica
September 20, 2013

Judge Kurt Engelhardt’s decision overturning the convictions of five New Orleans police officers for their roles in the Danziger Bridge shootings runs to129 pages. Page by page, the decision addresses claims of prosecutorial misconduct, and it is as if, page by page, the judge’s anger and disbelief only grow.

He finds ample misconduct, and terms it “grotesque.” He uncovers other damning material, and professes “shock and dismay.” In the end, he closes with a distinct sense of foreboding: The worst may be yet to come.

“One can only wonder what other unanticipated revelations might be in store,” he writes.

Engelhardt’s central finding was that federal prosecutors, during the trial of the officers for the shooting of unarmed civilians days after Hurricane Katrina, had posted anonymous comments on the website of the local newspaper, the Times Picayune.

Here’s how Engelhardt characterized those comments: “inflammatory invectives,” “accusatory screeds,” “vitriolic condemnations,” all of them directed at “the defendants, their attorneys, their witnesses, their evidence.”

Engelhardt said that the online misconduct – prosecutors in New Orleans and at the Department of Justice in Washington posted comments themselves and encouraged other anonymous people to post, as well – created a “carnival” atmosphere, “wherein justice was distorted and perverted.”

ProPublica has spent much of the last yearinvestigating prosecutorial misconduct, how the innocent can be convicted and how infrequently the offending prosecutors get punished. Much of the misconduct has been committed by state prosecutors, and the assumption among many is that federal prosecutors are more sophisticated and better trained, and thus less susceptible to bad or illegal behavior.

But the remarkable passages across Engelhardt’s decision do serious damage to that assumption.

  • The senior federal prosecutor Engelhardt assigned to independently investigate the possibility that attorneys in the New Orleans office were posting comments online wound up having to admit that she, in fact, was among the guilty.
  • The prosecutor in Washington who posted online during the trial was, it turned out, the woman who had led the prosecution’s “taint team,” a group of attorneys whose job was to protect the constitutional rights of the accused officers.
  • The Justice Department’s Office of Professional Responsibility, charged in 2012 with investigating the initial report of online posting by a senior prosecutor in New Orleans, failed in its initial investigation to ask whether any other prosecutors in the office had done similarly.
  • Engelhardt, in the course of his inquiry, came to suspect that reports being filed by the outside prosecutor he’d enlisted in the name of objectivity were being edited by senior officials at the Justice Department to make them less damning.

“Some may consider the undersigned’s view of the cited rules and regulations as atavistic,” Engelhardt writes at one point. “But courts can ignore this online ‘secret’ social media misconduct at their own peril. Indeed the time may soon come when, some day, some court may overlook, minimize, accept, or deem such prosecutorial misconduct harmless ‘fun.’” Today is not that day.”

The Justice Department responded to Engelhardt’s ruling by saying it was disappointed and reviewing its options. Neither the department nor the individual prosecutors cited by Engelhardt have publicly responded to his specific findings of misconduct.

Engelhardt’s ruling certainly amounted to a huge embarrassment for federal prosecutors. The prosecution of the officers had been hailed as a civil rights triumph. When the indictments were announced in 2010, the Justice Department said they were “a reminder that the Constitution and the rule of law do not take a holiday – even after a hurricane.”

Now, prosecutors will have to decide whether to re-try the officers. Four had been charged in the killing of two civilians and the injuring of others, and the fifth was charged with attempting to cover up the incident. Engelhardt, in his decision, recognized that the prospect of a re-trial, for the victim families and the officers, would be painful. But he found there was no acceptable alternative.

“This case started as one featuring allegations of brazen abuse of authority, violation of the law, and corruption of the criminal justice system,” Engelhardt wrote. “Unfortunately, though the focus has switched from the accused to the accusors, it has continued to be about those very issues. After much reflection, the court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end.”

Engelhardt began his inquiry into the case he had overseen when the officers asked him to toss the verdicts. The officers cited reports that one senior prosecutor in New Orleans had posted online before and during the trial, ultimately calling for guilty verdicts against all five. It would take more than a year for Engelhardt to get the answers to what, for him, became a growing list of questions.

“The court has continued to receive more and more information,” he writes early in his decision, “albeit in the fashion of peeling layers of an onion.”

Over the months, the U.S. Attorney in New Orleans resigned because of the online misconduct of his office. Soon after, the senior prosecutor Engelhardt had asked to help him get to the bottom of the matter in the Danziger case, Jan Mann, resigned as well. She had posted online, too, even though she never told that to the judge when he enlisted her help.

Eventually, Engelhardt got two prosecutors from Georgia to take over the Danziger misconduct inquiry. But they had to file four separate reports before Engelhardt was satisfied he was being told something like the full truth. Along the way, he challenged them to reassure him their reports were not being sanitized by superiors. The prosecutors insisted, orally and in written responses, that they had maintained editorial control throughout.

In his decision, Engelhardt tried to capture the escalating trouble he was learning of, saying his first findings had “clearly blossomed into a series of newly discovered facts and admissions, unanswered questions, additional apostasies, and a fetor extending far beyond the simple disconcerting notion of a single rogue prosecutor.”

Engelhardt, upset by the online misconduct, was then moved to think again about some things that had troubled him at trial. In his decision, he blasts prosecutors for having threatened possible defense witnesses, notes that the testimony of one prosecution witness differed dramatically from what he had told federal investigators, and wonders why another prosecution witness had worked for the federal government despite having admitted to a series of crimes.

In tones of exasperation and sarcasm, Engelhardt writes that he found it “odd” that it took months for him to be told that one of the prosecutors involved in the online posting was the Washington attorney who had effectively represented the interests of the officers in the case. He later writes that he finds its almost unthinkable that she did what she did – write posts encouraging anonymous commenters on the case to keep up their criticism of the defense being put forward by the officers.

“It is difficult to accept the story that an experienced trial attorney in the criminal section of the DOJ’s civil rights division, sitting in Washington, D.C., during this trial, ‘would embark on such a wanton reckless course of action.’” The attorney, Karla Dobinski, formally admits to the postings during Engelhardt’s inquiry, conceding it was wrong and that she had as a result sought to conceal her true identity.

It is unclear whether the prosecutors involved might face some sort of sanction. Engelhardt, for his part, says that question is up to others.

“The court leaves to the various bar associations and other attorney regulatory bodies the question of who knew what, when they knew it, and whether they discharged ethical and professional responsibilities to report/disclose it.”

But Engelhardt is clear in his decision about what he asserts is the damage already done, saying his investigation had led “to a dark benthic place of prosecutorial misconduct.”

The myriad acts of misconduct, he writes, were “committed by those with significant authority who act in the name of the ‘United States of America’ when they enter court and at all other times, and who have now left a fractured public trust.”

http://www.propublica.org/nola/story/plenty-of-misconduct-and-129-pages-of-one-judges-disbelief/

WSJ – Cellphone-Wiretap Ruling Is a Headache for Prosecutors

Opinion Says Authority to Listen In on Calls Doesn’t Cross Federal-Court-District Boundaries

JOE PALAZZOLO

A recent ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans said that while cellphones may move easily between the country’s 94 federal districts, the authority to tap them doesn’t. The ruling affects the wiretaps typically used in criminal investigations, especially by the Drug Enforcement Administration, which is part of the Justice Department.

Former law-enforcement officials said the Aug. 26 opinion is among the most significant in recent memory governing the use of such wiretaps and could pose administrative headaches for law-enforcement agencies, unless Congress stepped in, which most regard as unlikely.

The appeals court said that for the federal government to intercept calls on a cellphone, either the phone itself or the hub where agents listen in on the calls must be in the district of the judge who authorized the wiretap. The Justice Department had previously interpreted the law to allow it to continue intercepting calls on a phone that wandered outside of the district in which the wiretap was authorized, former officials said. Now, federal investigators in Louisiana, Mississippi and Texas—the states covered by the Fifth Circuit—run the risk of having evidence suppressed if a cellphone they have tapped crosses federal boundaries.

“God help you if the [suspect] is driving down the highway, having a conversation on his cellphone and crosses into another district,” said Mark Eckenwiler, a former Justice Department official who worked on the Fifth Circuit case. While the ruling is only legally binding on those states, defense lawyers across the nation are also likely to invoke it as they seek to get wiretap evidence against their clients thrown out, he added.

The Justice Department has asked the court for a month to consider its next step. A DEA spokeswoman referred questions to the Justice Department, which declined to comment.

In the Fifth Circuit case, DEA agents and federal prosecutors in southern Mississippi who were investigating a drug-trafficking organization received authorization from a local judge to tap the cellphone of Richard North, a Houston native whom they suspected of supplying local dealers with cocaine. Mr. North was stopped in May 2009 by Texas state troopers acting on information from federal investigators who believed he was on his way to make a delivery in Mississippi.

He was released after a search turned up no drugs, and he headed home to Houston. Unaware that his phone was tapped, he called a friend and was overheard telling her that the troopers had failed to uncover the cocaine hidden in his car, according to court documents. A DEA agent listening in from Louisiana forwarded the information to officers in Texas, who stopped him a second time and found the stash.

Mr. North pleaded guilty to conspiracy to distribute five kilograms of more of cocaine, but he reserved the right to challenge the wiretap on appeal to the Fifth Circuit.

The appeals court decided that the Mississippi judge erred in issuing the warrant, because the phone was in Texas, investigators were in Mississippi and the listening post was in Louisiana, putting them all in separate districts. “In short, the district court…lacked the authority to permit interception of cellphone calls from Texas at a listening post in Louisiana,” the Fifth Circuit said, in an unsigned opinion.

Federal law exempts “mobile interception devices” from jurisdictional requirements, and at least one appeals court, the Seventh U.S. Circuit Court of Appeals in Chicago, has interpreted such devices to include cellphones.

Hanni Fakoury, a staff attorney at the Electronic Frontier Foundation, a civil-liberties group, said in an email that the Seventh Circuit ruling allowed the Justice Department to seek out “a more advantageous jurisdiction (and a more sympathetic judge) before applying for a wiretap.” The Fifth Circuit, however, said “mobile interception device” refers to a device used to capture communications and not a mobile phone, restoring what Mr. Fakoury described as an important safeguard against prosecutors seeking judges believed to provide preferential treatment to the government.

Norman J. Silverman, a lawyer for Mr. North, said the decision was the first major “reining in” of the Wiretap Act since 1974, when the Supreme Court ruled that the power to authorize wiretap applications inside the Justice Department was restricted to a few top officials.

In the near term, law-enforcement officials may need to set up temporary listening posts in districts where wiretap warrants are issued, said Mr. Eckenwiler, now senior counsel at Perkins Coie LLP. That solution is unlikely to sit well with the DEA, which uses these kinds of wiretaps more than any other agency and relies heavily on regional listening posts outfitted with sophisticated eavesdropping technology and staffed full-time with federal employees and contractors, who transcribe and translate what they hear. Of the 1,354 federal wiretaps authorized in 2012, 94% were used in narcotics investigations, according to the administrative office of the U.S. Courts.

“If you want to run 15 intercepts, the best place to run them is in one place—not 15 places,” said David Wilson, a retired 32-year veteran of the DEA.

The Justice Department could funnel wiretap applications to the districts with regional listening posts, but that could create delays for cases in which taps need to “get up” quickly to determine deliveries and shipment of drugs, said Stephen J. T’Kach, a former Justice Department official who worked in the surveillance unit.

Write to Joe Palazzolo at joe.palazzolo@wsj.com

http://online.wsj.com/article/SB10001424127887323864604579067033554325594.html

The DOJ and the Marijuana Muddle

By 
Published: September 12, 2013
On marijuana policy, there’s a rift between the federal government and the states. It started with California’s allowing marijuana for medical use in 1996, widened as several other states followed suit, and became too big to ignore 10 months ago, when voters in Colorado and Washington decided to legalize the drug for recreational use. Under federal law possession is still a crime.
After conspicuous silence, the Justice Department announced in August that it wouldn’t try to put the toothpaste back in the tube — it wouldn’t sue to block the Colorado and Washington laws as long as those states put in place “strong and effective regulatory and enforcement systems.” But this policy hasn’t cleared up all the confusion arising from this tricky situation. Many practical questions remain, as became obvious at a Senate Judiciary Committee hearing on Tuesday about conflicts between state and federal marijuana laws.
At the hearing, James Cole, a deputy attorney general, saidthe Justice Department expects Colorado, Washington and the 18 medical marijuana states to prevent the distribution of the drug to minors, its diversion to states where it is illegal, and its possession or use on federal property, among other restrictions. Senator Charles Grassley, the ranking Republican on the Judiciary Committee, rightly asked how, exactly, the Justice Department would evaluate whether the states were holding up their end of the bargain.If a 17-year-old was caught smoking a joint in Mesa Verde National Park in Colorado, would federal prosecutors argue that the state wasn’t sufficiently tough on enforcement? Common sense says no, but guidelines are necessary. Mr. Grassley suggested, and Senators Sheldon Whitehouse and Richard Blumenthal, both Democrats, agreed, that the Justice Department should establish clear rules and explain what violations would trigger a crackdown.Senator Patrick Leahy, the committee’s Democratic chairman, pointed out that the Justice Department has yet to deal with financial issues related to state-legalized marijuana. Because federal laws make it illegal for banks to handle proceeds from drug sales, most marijuana businesses don’t have access to financial services and have to operate on a cash-only basis. That’s a problem for local law enforcement — where there are piles of cash, there’s armed robbery — and for the Internal Revenue Service, too. As Sheriff John Urquhart of Washington’s King County said, “cash-only businesses are very difficult to audit, leading to possible tax evasion, wage theft and the diversion of resources we need to protect public safety.”The Justice Department has taken a step toward figuring out this peculiar dance between the federal government and the states. If it wants its “trust but verify” approach to work, it will have to start filling in the details.