House Vote 412 – Rejects Limits on N.S.A. Data Collection

NY Times has the stats.  A deeply divided House defeated legislation Wednesday that would have blocked the National Security Agency from collecting vast amounts of phone records, handing the Obama administration a hard-fought victory in the first Congressional showdown over the N.S.A.’s surveillance activities since Edward J. Snowden’s security breaches last month.

Readers’ Comments

“Change always comes with new threats and new opportunities. Technology should be used to thwart terrorism just as there is a need for more checks and balances on how Internet data is used.”

JL, Bay Area, California

The 205-to-217 vote was far closer than expected and came after a brief but impassioned debate over citizens’ right to privacy and the steps the government must take to protect national security. It was a rare instance in which a classified intelligence program was openly discussed on the House floor, and disagreements over the  program led to some unusual coalitions.

Conservative Republicans leery of what they see as Obama administration abuses of power teamed up with liberal Democrats long opposed to intrusive intelligence programs. The Obama administration made common cause with the House Republican leadership to try to block it.

House members pressing to rein in the N.S.A. vowed afterward that the outrage unleashed by Mr. Snowden’s disclosures would eventually put a brake on the agency’s activities. Representative Jerrold Nadler, Democrat of New York and a longtime critic of post-Sept. 11 counterterrorism efforts, said lawmakers would keep coming back with legislation to curtail the dragnets for “metadata,” whether through phone records or Internet surveillance.

At the very least, the section of the Patriot Act in question will be allowed to expire in 2015, he said. “It’s going to end — now or later,” Mr. Nadler said. “The only question is when and on what terms.”

Representative Mike Rogers of Michigan, the chairman of the House Intelligence Committee, promised lawmakers that he would draft legislation this fall to add more privacy protections to government surveillance programs even as he begged the House to oppose blanket restrictions.

The amendment to the annual Defense Department spending bill, written by Representatives Justin Amash, a libertarian Republican from Western Michigan, and John Conyers Jr., a veteran liberal Democrat from Detroit, turned Democrat against Democrat and Republican against Republican.

It would have limited N.S.A. phone surveillance to specific targets of law enforcement investigations, not broad dragnets. It was only one of a series of proposals — including restricting funds for Syrian rebels and adding Congressional oversight to foreign aid to Egypt — intended to check President Obama’s foreign and intelligence policies.

But in the phone surveillance program, the House’s right and left wings appeared to find a unifying cause. Representative Raúl R. Labrador, Republican of Idaho, called it “the wing nut coalition” and Mr. Amash “the chief wing nut.”

Mr. Amash framed his push as a defense of the Fourth Amendment’s prohibition against unreasonable search and seizure, and he found a surprising ally, Representative F. James Sensenbrenner Jr., Republican of Wisconsin and one of the principal authors of the Patriot Act. Mr. Sensenbrenner said his handiwork was never meant to create a program that allows the government to demand the phone records of every American.

“The time has come to stop it,” Mr. Sensenbrenner said.

Opposing them were not only Mr. Obama and the House speaker, John A. Boehner of Ohio, but also the leaders of the nation’s defense and intelligence establishment.

On Tuesday, the director of the National Security Agency, Gen. Keith Alexander, spent hours providing classified briefings to lawmakers about the program, and the White House took the unusual step of issuing a statement urging lawmakers not to approve the measure. On Wednesday, James L. Jones, the retired Marine Corps general who was Mr. Obama’s national security adviser from 2009-10, added his name to an open letter in support of preserving the N.S.A. programs that more than half a dozen top national-security officials from the Bush administration had signed.

“Denying the N.S.A. such access to data will leave the nation at risk,” said the letter, which was circulated to undecided members.

Mr. Rogers took a personal swipe at Mr. Amash, a darling of social media, when he said the House was not in the business of racking up “likes” on Facebook. He said the calling log program was an important tool for protecting against terrorist attacks.

“This is not a game,” he fumed. “This is real. It will have real consequences.”

But many rank-and-file Republicans and Democrats appeared impervious to such overtures. Representative Jared Polis, Democrat of Colorado and a supporter of the amendment, said that if the Obama administration felt strongly about defending the program, Mr. Obama would have spoken out personally. Instead, the White House released a statement under the name of the press secretary, Jay Carney.

“The press secretary says hundreds of things every day,” Mr. Polis said.

The divisions in Congress seemed to reflect the ambivalence in the nation. In a CBS News poll released Wednesday, 67 percent of Americans said the government’s collection of phone records was a violation of privacy. At the same time, 52 percent called it a necessary tool to help find terrorists.

But the final tally in the House suggested the tide was shifting on the issue. In the weeks after the Snowden leaks, the united voices of Congressional leaders and administration officials in support of the N.S.A. programs seemed to squelch the outrage Mr. Snowden had hoped for. Anger seemed to be trained more on Mr. Snowden than on the programs he revealed.

As the news media and the government chronicled Mr. Snowden’s flight from law enforcement, a web of privacy activists, libertarian conservatives and liberal civil liberties proponents rallied support behind Congressional action. House members said they received hundreds of phone calls and e-mails before Wednesday’s vote, all in favor of curtailing the N.S.A.’s authority.

Ultimately, 94 House Republicans defied their leadership; 111 Democrats — a majority of the Democratic caucus — defied their president.

“This is only the beginning,” Mr. Conyers vowed after the vote. The fight will shift to the Senate, where two longtime Democratic critics of N.S.A. surveillance, Mark Udall of Colorado and Ron Wyden of Oregon, immediately took up the cause.

“National security is of paramount importance, yet the N.S.A.’s dragnet collection of Americans’ phone records violates innocent Americans’ privacy rights and should not continue as its exists today,” Mr. Udall said after the vote. “The U.S. House of Representatives’ bipartisan vote today proposal should be a wake-up call for the White House.”

Warren Hill faces Monday execution unless US supreme court steps in

Georgia scheduled to execute man diagnosed as intellectually disabled despite court ruling forbidding the practice

A prisoner in Georgia who has been diagnosed as intellectually disabled by all medical experts who have examined him will be put to death on Monday unless the US supreme court acts to enforce its own constitutional ban on executing “mentally retarded” individuals.

Only the supreme court now stands between Warren Hill and death, all other legal options having been exhausted in recent weeks. “The supreme court is probably the last stop, period,” said the lawyer for the condemned man Brian Kammer, who is waiting to hear whether the court will consider his petition.

Hill, 52, is scheduled to be killed with a single injection of the sedative pentobarbital at 7pm on Monday in his second appointment with the death chamber in just five months. In February he came within 30 minutes of execution before the procedure was stayed.

Hill’s execution would be a flagrant violation of the US supreme court’s own ruling in 2002, Atkins v Virginia, that banned the death sentence for prisoners classified as “mentally retarded”. The ruling left a tiny gap through which death penalty states could wriggle by leaving it up to them to define the legal standard under which “mental retardation” – known in modern medical parlance as intellectual disability – is defined.

Georgia is the only state that insists on the highest legal bar possible: “beyond a reasonable doubt”. Yet even in that regard Warren Hill has been found to meet the definition – he has an undisputed IQ of 70 and all nine medical experts who have diagnosed him over the years have declared him to fall into the “mental retardation” category beyond a reasonable doubt.

In July 2012 a doctor who had examined the prisoner in 2000 and deemed him not to be intellectually disabled had voluntarily approached the defence team and reported that in the light of modern understanding of mental development he had changed his opinion. “Now there’s absolutely no disagreement between any of the experts,” Kammer told the Guardian.

Hill’s execution would be a clear violation of the Eighth Amendment ban on cruel and unusual punishment, as ruled by the US supreme court itself in Atkins v Virginia. In that ruling the nation’s highest judicial panel noted that intellectual disability placed prisoners at “special risk of wrongful execution”.

But Hill has fallen into a form of legal limbo. All of Georgia’s state courts have now refused to rehear his case, as has the body that is supposed to act as a fail-safe, the Georgia State Board of Pardons and Parole.

The federal 11th circuit court of appeals has also declined to hear the case because of a legal technicality that puts Hill in a Catch-22. The court ruled that it cannot stop the execution even if a glaring mistake was made in his death sentence unless the new evidence related to the prisoner’s innocence; in this case it does not speak to innocence but to the state of his mental development.

A federal judge sitting on the appeals court, Rosemary Barkett, gave a dissenting ruling in which she said “the idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.”

Hill’s guilt is not in question. In 1990 he was already serving a life sentence for murdering his girlfriend when he killed fellow inmate John Handspike in a Georgia prison, beating him to death with a nail-studded board.

The impending execution has led to an outpouring of protest from numerous individuals and organisation. Those calling for a stay include former US president Jimmy Carter, the Council of Europe, the president of the American Bar Association, a group of mental disability experts, a group of law professors and a raft of human rights groups.

How Microsoft handed the NSA access to encrypted messages

Microsoft has collaborated closely with US intelligence services to allow users’ communications to be intercepted, including helping the National Security Agency to circumvent the company’s own encryption, according to top-secret documents obtained by the Guardian.

The files provided by Edward Snowden illustrate the scale of co-operation between Silicon Valley and the intelligence agencies over the last three years. They also shed new light on the workings of the top-secret Prism program, which was disclosed by the Guardian and the Washington Post last month.

The documents show that:

• Microsoft helped the NSA to circumvent its encryption to address concerns that the agency would be unable to intercept web chats on the new Outlook.com portal;

• The agency already had pre-encryption stage access to email on Outlook.com, including Hotmail;

• The company worked with the FBI this year to allow the NSA easier access via Prism to its cloud storage service SkyDrive, which now has more than 250 million users worldwide;

• Microsoft also worked with the FBI’s Data Intercept Unit to “understand” potential issues with a feature in Outlook.com that allows users to create email aliases;

• In July last year, nine months after Microsoft bought Skype, the NSA boasted that a new capability had tripled the amount of Skype video calls being collected through Prism;

• Material collected through Prism is routinely shared with the FBI and CIA, with one NSA document describing the program as a “team sport”.

The latest NSA revelations further expose the tensions between Silicon Valley and the Obama administration. All the major tech firms are lobbying the government to allow them to disclose more fully the extent and nature of their co-operation with the NSA to meet their customers’ privacy concerns. Privately, tech executives are at pains to distance themselves from claims of collaboration and teamwork given by the NSA documents, and insist the process is driven by legal compulsion.

In a statement, Microsoft said: “When we upgrade or update products we aren’t absolved from the need to comply with existing or future lawful demands.” The company reiterated its argument that it provides customer data “only in response to government demands and we only ever comply with orders for requests about specific accounts or identifiers”.

In June, the Guardian revealed that the NSA claimed to have “direct access” through the Prism program to the systems of many major internet companies, including Microsoft, Skype, Apple, Google, Facebook and Yahoo.

Blanket orders from the secret surveillance court allow these communications to be collected without an individual warrant if the NSA operative has a 51% belief that the target is not a US citizen and is not on US soil at the time. Targeting US citizens does require an individual warrant, but the NSA is able to collect Americans’ communications without a warrant if the target is a foreign national located overseas.

Since Prism’s existence became public, Microsoft and the other companies listed on the NSA documents as providers have denied all knowledge of the program and insisted that the intelligence agencies do not have back doors into their systems.

Microsoft’s latest marketing campaign, launched in April, emphasizes its commitment to privacy with the slogan: “Your privacy is our priority.”

Similarly, Skype’s privacy policy states: “Skype is committed to respecting your privacy and the confidentiality of your personal data, traffic data and communications content.”

But internal NSA newsletters, marked top secret, suggest the co-operation between the intelligence community and the companies is deep and ongoing.

The latest documents come from the NSA’s Special Source Operations (SSO) division, described by Snowden as the “crown jewel” of the agency. It is responsible for all programs aimed at US communications systems through corporate partnerships such as Prism.

The files show that the NSA became concerned about the interception of encrypted chats on Microsoft’s Outlook.com portal from the moment the company began testing the service in July last year.

Within five months, the documents explain, Microsoft and the FBI had come up with a solution that allowed the NSA to circumvent encryption on Outlook.com chats

A newsletter entry dated 26 December 2012 states: “MS [Microsoft], working with the FBI, developed a surveillance capability to deal” with the issue. “These solutions were successfully tested and went live 12 Dec 2012.”

Two months later, in February this year, Microsoft officially launched the Outlook.com portal.

Another newsletter entry stated that NSA already had pre-encryption access to Outlook email. “For Prism collection against Hotmail, Live, and Outlook.com emails will be unaffected because Prism collects this data prior to encryption.”

Microsoft’s co-operation was not limited to Outlook.com. An entry dated 8 April 2013 describes how the company worked “for many months” with the FBI – which acts as the liaison between the intelligence agencies and Silicon Valley on Prism – to allow Prism access without separate authorization to its cloud storage service SkyDrive.

The document describes how this access “means that analysts will no longer have to make a special request to SSO for this – a process step that many analysts may not have known about”.

The NSA explained that “this new capability will result in a much more complete and timely collection response”. It continued: “This success is the result of the FBI working for many months with Microsoft to get this tasking and collection solution established.”

A separate entry identified another area for collaboration. “The FBI Data Intercept Technology Unit (DITU) team is working with Microsoft to understand an additional feature in Outlook.com which allows users to create email aliases, which may affect our tasking processes.”

The NSA has devoted substantial efforts in the last two years to work with Microsoft to ensure increased access to Skype, which has an estimated 663 million global users.

One document boasts that Prism monitoring of Skype video production has roughly tripled since a new capability was added on 14 July 2012. “The audio portions of these sessions have been processed correctly all along, but without the accompanying video. Now, analysts will have the complete ‘picture’,” it says.

Eight months before being bought by Microsoft, Skype joined the Prism program in February 2011.

According to the NSA documents, work had begun on smoothly integrating Skype into Prism in November 2010, but it was not until 4 February 2011 that the company was served with a directive to comply signed by the attorney general.

The NSA was able to start tasking Skype communications the following day, and collection began on 6 February. “Feedback indicated that a collected Skype call was very clear and the metadata looked complete,” the document stated, praising the co-operation between NSA teams and the FBI. “Collaborative teamwork was the key to the successful addition of another provider to the Prism system.”

ACLU technology expert Chris Soghoian said the revelations would surprise many Skype users. “In the past, Skype made affirmative promises to users about their inability to perform wiretaps,” he said. “It’s hard to square Microsoft’s secret collaboration with the NSA with its high-profile efforts to compete on privacy with Google.”

The information the NSA collects from Prism is routinely shared with both the FBI and CIA. A 3 August 2012 newsletter describes how the NSA has recently expanded sharing with the other two agencies.

The NSA, the entry reveals, has even automated the sharing of aspects of Prism, using software that “enables our partners to see which selectors [search terms] the National Security Agency has tasked to Prism”.

The document continues:

“The FBI and CIA then can request a copy of Prism collection of any selector…”

As a result, the author notes:

“these two activities underscore the point that Prism is a team sport!”

In its statement to the Guardian, Microsoft said:

We have clear principles which guide the response across our entire company to government demands for customer information for both law enforcement and national security issues. First, we take our commitments to our customers and to compliance with applicable law very seriously, so we provide customer data only in response to legal processes.

Second, our compliance team examines all demands very closely, and we reject them if we believe they aren’t valid. Third, we only ever comply with orders about specific accounts or identifiers, and we would not respond to the kind of blanket orders discussed in the press over the past few weeks, as the volumes documented in our most recent disclosure clearly illustrate.

Finally when we upgrade or update products legal obligations may in some circumstances require that we maintain the ability to provide information in response to a law enforcement or national security request. There are aspects of this debate that we wish we were able to discuss more freely. That’s why we’ve argued for additional transparency that would help everyone understand and debate these important issues.

In a joint statement, Shawn Turner, spokesman for the director of National Intelligence, and Judith Emmel, spokeswoman for the NSA, said:

The articles describe court-ordered surveillance – and a US company’s efforts to comply with these legally mandated requirements. The US operates its programs under a strict oversight regime, with careful monitoring by the courts, Congress and the Director of National Intelligence. Not all countries have equivalent oversight requirements to protect civil liberties and privacy.

They added: “In practice, US companies put energy, focus and commitment into consistently protecting the privacy of their customers around the world, while meeting their obligations under the laws of the US and other countries in which they operate.”

Key US missile interceptor fails test again, says Pentagon

Department of Defense confirms third consecutive failure of system managed by Boeing

ballistic-missile-interceptA test of the only U.S. defense against long-range ballistic missiles failed on Friday, the third consecutive failure involving the interceptor system managed by Boeing Co, the Defense Department said.

“Program officials will conduct an extensive review to determine the cause or causes of any anomalies which may have prevented a successful intercept,” it said in a statement.

The military has tested the so-called ground-based midcourse defense system 16 times. It has succeeded eight times, with the last intercept in December 2008.

The Pentagon said this week that the test would not affect its decision to bolster the U.S. missile defense system. Defense Secretary Chuck Hagel announced the move in March following threats by North Korea.

Under that plan, the Pentagon will add 14 new anti-missile interceptors at a total cost of nearly $1 billion.

The United States currently has 26 interceptors deployed at Fort Greely in Alaska and four at Vandenberg Air Force Base in California.

In Friday’s test, a long-range ballistic missile target was launched from the U.S. Army’s Reagan Test Site on Kwajalein Atoll, Republic of the Marshall Islands. The interceptor missile was launched from Vandenberg Air Force Base.

California Prisons Were Illegally Sterilizing Female Inmates

Over the course of several years, two women’s prisons in California signed at least 150 pregnant women up for permanent sterilization to be performed after they gave birth, without following the required state approval procedure. And now, some women who underwent the procedure say they felt coerced into having a tubal ligation while incarcerated, according to a report from the Center for Investigative Reporting

Erin648Forced sterilization of institutionalized human beings — those in mental institutions, or in prisons, for example —  has a long and greusome history in the U.S., and in California in particular, where forced sterilization has been against the law since 1979. Because of this history, there are a number of laws in place to prevent institutions from performing the procedure without full, freely-given consent. It’s against the law to pressure a female inmate to have the procedure during labor or childbirth, which just seems obvious. And you can’t use federal funding to pay for the procedure in a prison, because of worries that the funding would make inmates feel like they had to do it. And in California, where state money can fund inmate sterilization procedures, each individual procedure must be approved by a medical review committee. In California’s California Institution for Women in Corona or Valley State Prison for Women in Chowchilla (the latter is now a men’s prison), that approval process wasn’t happening between 2006 and 2010, and possibly for many years before that. According to CIR’s report, some of the doctors performing the procedures — sometimes for inmates deemed likely to be repeat offenders, or those with many children — argued that they were doing so only in the event of a “medical emergency,” a designation that would also allow them to bypass the review process. Others seemed unaware that there were restrictions on the procedures at all. One doctor, Dr. James Heinrich, who used to work at Valley State, defended the procedure as cost efficient:

The 69-year-old Bay Area physician denied pressuring anyone and expressed surprise that local contract doctors had charged for the surgeries. He described the $147,460 total as minimal. “Over a 10-year period, that isn’t a huge amount of money,” Heinrich said, “compared to what you save in welfare paying for these unwanted children – as they procreated more.”

Of course, the inmates tell different stories:

“As soon as he found out that I had five kids, he suggested that I look into getting it done. The closer I got to my due date, the more he talked about it,” said Christina Cordero, 34, who spent two years in prison for auto theft. “He made me feel like a bad mother if I didn’t do it.” Cordero, released in 2008 and now living in Upland, Calif., agreed, but she says, “today, I wish I would have never had it done.”

Some inmates interviewed for the piece were happy to have the procedure done, but noted that they weren’t informed of the medical reasoning for having it — nor were they given alternate recommendations of less permanent equivalents, like a removable IUD. Those who refused the tubal ligation were not forced into undergoing the procedure, although one former inmate says that she was pressured to agree to a tubal ligation while strapped down and sedated in preparation for a C-section, in violation of the law. Medical care in the California prison system has been under the oversight of a receiver since 2006, when a judge ruled that the conditions amounted to cruel and unusual punishment. This latest news adds weight to the argument that all is not well there, still. The whole story is worth a read over at CIR. Abby Ohlheiser

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