Activists Forced to Submit to Secrecy & File Appeal in Lawsuit Alleging Domestic Military Spying

John Jacob Towery

In a major case involving significant allegations of domestic spying by the United States military, targeted activists have filed an appeal in the Ninth Circuit Court of Appeals. But no members of the press or public can read the appeal because the court forced plaintiffs to file it under seal.

The lawsuit, Panagacos v. Towery, accuses the Army of directing John Jacob Towery, who worked for the US Army Force Protection Division at Fort Lewis, to infiltrate a group called the Port Militarization Resistance (PMR) in Olympia and Tacoma in Washington. It also accuses the cities of Olympia and Tacoma of coordinating with the Army to violate the First and Fourth Amendment rights of activists.

PMR organized demonstrations from 2006 to 2009 and engaged in nonviolent civil disobedience with the intention of preventing the shipment of Stryker vehicles or other military cargo to Iraq.

A district court dismissed the case in June 2014. Essentially, the judge hearing the lawsuit chose not to do his job, admitted to lawyers representing activists he had not reviewed all the evidence against the Army and Towery, and issued a decision that could seriously jeopardize the ability of citizens to dissent in American society if the decision is allowed to stand.

Now, National Lawyers Guild attorney Larry Hildes has filed an appeal, but Hildes must fight for the court to allow the public to read the contents of this important appeal.

“The case is of unusual public interest because it involves very timely controversies, military and governmental spying on civilians, and the violation of constitutional privacy and association rights,” argues a brief to have the appeal unsealed [PDF].

“The right of media access, and general public access, to matters involving governmental spying and suspect police activity is of First Amendment importance.”

Thomas Rudd, head of the Force Protection Division, allegedly directed Towery to identify activists “in order to facilitate their arrest without probable cause.” He allegedly instructed Towery to report on “meetings, demonstrations, and private personal events and relationships” so that “civilian law enforcement agencies” would be able to arrest, follow, cite, detain, harass, and compile and transmit dossiers that would facilitate disruption of the antiwar movement.

According to Hildes, Towery admitted during depositions that he had not only been paid by the Army to go to PMR meetings in private homes but was also paid to attend meetings related to actions planned for the Republican National Convention and Democratic National Convention in 2008. Towery used the term “anarchist” as “a label of convenience,” to target “people and their actions and their threats to the military.”

The Army, as well as Towery and Rudd, appear to fear further embarrassment for their role in domestic military spying. They have pushed for the contents of the appeal to remain secret because it references documents containing evidence, which corroborates serious allegations by activists. (more…)

Senate Measure Would Expand FBI’s Power to Target Internet Thought Crimes Under Guise of Fighting Terrorism

FBI Director James Comey

The Senate Select Committee on Intelligence approved a measure in the 2016 intelligence authorization bill, which would require social media websites and email services to flag “terrorist activity” for the FBI and other law enforcement and security agencies.

According to the Washington Post, the measure would not “require companies to monitor their sites if they do not already do so.” It would apply to “electronic communication service providers,” and ensure they report videos or other content posted by “suspected terrorists.”

The expansion of power, which would increase the government’s power to undermine freedom of expression, is supposedly not supported by “industry officials” from companies like Facebook, Google, and Twitter.

From the Post:

…“Asking Internet companies to proactively monitor people’s posts and messages would be the same thing as asking your telephone company to monitor and log all your phone calls, text messages, all your Internet browsing, all the sites you visit,” said one official, who spoke on the condition of anonymity because the provision is not yet public. “Considering the vast majority of people on these sites are not doing anything wrong, this type of monitoring would be considered by many to be an invasion of privacy. It would also be technically difficult.”…

Government officials may claim it is necessary for the fight against the Islamic State and other terrorist groups. However, what the measure would do is increase the capability of the United States security state to engage in preemptive prosecution—to target and prosecute individuals or organizations who have beliefs, ideology, or a religious affiliations which make them a person of interest for the government.

For example, consider the case of Tarek Mehanna, who is currently serving a seventeen and a half-year prison sentence after he was convicted of material support for terrorism in December 2012.

Mehanna was “born in the United States to Egyptian immigrant parents and grew up outside of Boston. He became a devout Muslim who was fiercely critical of US foreign policy, especially in Muslim countries,” Amna Akbar wrote for The Nation. “He believed deeply in the right of Muslims living in Muslim-majority countries to defend against foreign occupation. And he talked about it. He subtitled “jihadi” videos; he translated an archaic oft-translated Arabic text 39 Ways to Serve and Participate in Jihad [by Anwar Al-Awlaki]; and he engaged in religious and political debate online through instant messages, emails and web postings.”

Mehanna took a trip to Yemen in 2004 for “religious and language instruction.” The government has conceded there were no terrorism training camps in Yemen. Still, the government maintained he traveled to Yemen to train with a terrorist group.

The FBI began to spy on him in 2005 and attempted to turn him into an informant. When Mehanna refused, the FBI pledged to make his life difficult. Mehanna continued to translate texts, including various works about jihad by Afghan and Iraqi scholars. He posted them to his website, along with poetry and other writings. Mehanna was arrested in 2008 and charged with “conspiracy to give material support to terrorism by translating radical Arabic writings into English and posting them on his website,” according to the Project for the Support and Legal Advocacy of Muslims (Project SALAM).

Mehanna never acted under the direction of Al Qaeda yet the government insisted in court that his work had been intended to “inspire others to engage in violent jihad.” In fact, as Akbar noted, at no point did the government present evidence that Mehanna had provided support to any designated terrorist organization. There was no evidence that his translations caused harm. There was no evidence that his translation had incited “imminent criminal conduct.” What he was convicted of committing was inspiring others to “support opinions the United States government finds objectionable,” particularly opinions related to radical Islamic thought.

In 2013, Mehanna’s appeal was denied, which further solidified the power government prosecutors have to target people for speech and expression deemed dangerous. He is serving his sentence in a “communications management unit” in a prison in Terre Haute, Indiana, which means he is living in conditions of solitary confinement and confined to a cell 23 hours a day.

Mehanna’s postings would undoubtedly fall in the category of activity the FBI and other security agencies would want internet companies to flag, even though there was no explicit intent to incite any violence whatsoever. (more…)

Senate Effort to Renew NSA Spying Powers Contains Provision to Stop Next Edward Snowden

Screen shot 2015-05-26 at 5.41.33 PM

Senator Dianne Feinstein has proposed legislation to protect the National Security Agency from losing dragnet surveillance powers when Patriot Act provisions expire. But her bill would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.

As first reported by journalist Marcy Wheeler, the provision in Feinstein’s bill [PDF] is modeled after the Espionage Act, which President Barack Obama’s administration has aggressively relied upon to prosecute a record number of whistleblowers. (Snowden was indicted under the Espionage Act.)

The provision would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the US.

A person could be criminalized if they disclosed any information connected to an application to the FISA Court, an order approved by the court or information acquired under a directive issued by the court.

Knowingly communicating, transmitting and making available information to an “unauthorized person,” such as a journalist, would be criminal. Someone who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location,” as Snowden did before providing documents to journalists, would be violating the law as well.

Making information available to a reporter could potentially result in someone going to jail for ten years. Retaining documents at an unauthorized location could potentially result in a one-year prison sentence.

A similar provision was included in a bill introduced by Senator Richard Burr over the weekend. The bill was also drafted to protect dragnet surveillance powers.

Both Burr, a Republican who chairs the Senate intelligence committee, and Feinstein, a Democrat and former chair of the Senate intelligence committee, are powerful senators who have traditionally supported anti-leaks measures, which Senator Ron Wyden blocked in 2012.

Feinstein accused Snowden in June 2013 of “violating” his oath to defend the Constitution. She unequivocally stated, “He violated the law. It’s treason.” When Burr found about what Snowden revealed on mass surveillance, he was not concerned about the programs but rather about how a contractor like Snowden had access to so much material.

Jesselyn Radack, an attorney who has represented a number of whistleblowers such as Thomas Drake, Bill Binney, and currently represents Snowden, reacted, “Feinstein is the latest member of Congress to offer a non-compromise ‘compromise’ to replace the already-compromised USA Freedom Act. Her bill would essentially retain Richard Burr’s odious Section 215 mini-Espionage Act, imposing 10-year penalties on people like my NSA whistleblower clients Edward Snowden, William Binney and Thomas Drake, who told us what the intelligence community was really doing with the call records program.”

“The most disturbing aspect is the prospect of Congress codifying the Justice Department’s draconian use of the century-old Espionage Act into law when there’s a lot of validity that the Department has unconstitutionally applied the Espionage Act to whistleblowers.”

The provision contains no clear and present danger standard, which means it would not matter if a person knew the disclosure of information would result in no harm. The government would be under no obligation to present any evidence that a release of information caused grave damage or harmed anyone during prosecution. This would likely violate the First Amendment. (more…)