The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Thursday, June 6, 2013

The (Illegal) Surveillance State Has Arrived

I’ve been taking a brief hiatus from blogging, but I had to come back for this one.  And yes, this is a long one.

By now you all know what happened to James Rosen.  Here’s a decent summary if you haven’t heard.  But the short version is this.  A long time ago, Rosen reported on a story based on a leak of information.  Now, to leak classified information to a reporter is a crime.  But it is not a crime to receive such leaks.  Or until now, anyway.  In an affidavit, the Obama administration decided that Rosen was likely a co-conspirator or aider and abettor based on little more than the fact Rosen received a leak. They even declared him a flight risk.  So they got access to his emails, phone records, tracked his movements in and out of the State Department and even checked his parents’ phone records.  And they did similar things to two other reporters.  And the AP in an unrelated case.

Well, thanks to Glenn Greenwald we found out yesterday that we are all James Rosen now*:

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.


While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively.

It is not known whether Verizon is the only cell-phone provider to be targeted with such an order, although previous reporting has suggested the NSA has collected cell records from all major mobile networks. It is also unclear from the leaked document whether the three-month order was a one-off, or the latest in a series of similar orders.

Do read the whole thing.  As I said on Twitter, I disagree with him a lot but this is an extremely well-written and necessary report.  Since he is an American at least by birth, I can say it is a patriotic thing he has done in this reporting.

So consider this.  First, every call you have made to or from a Verizon cell phone has been collected.  Consider the implications of that.  If you called a clergyman, they know.  If you called a psychiatrist, they know.  If you called a gay bar, they know.  If you called a phone sex line, they know.  If you called your lawyer, they know.

Worse than that, they know where you are at least when you made that call.  The Supreme Court recently stated that it violated the Fourth Amendment to track a person by GPS.  Well, they tracked all of us.

For instance, if you went to church on a certain day and as is often the case you received a call while the minister was giving his sermon, they know you were in that church and are likely an adherent to that religion.  I admit I don’t lay awake at night worried that someone will find out I am a Presbyterian who often goes to my wife’s Catholic church, but there is a historical reason for being concerned about the government identifying what faith a person belongs to.

The same applies if you were at a porn store when you received the call.  Or a gay bar.  Or just at a psychiatrist’s receiving help.

Or a political meeting.  I don’t worry overly much about the government knowing about my politics (seriously, it’s not a secret), but that doesn’t mean no one ever has a right to keep their political associations secret.  For instance, in NAACP v. Alabama (1958), under the banner of investigating possible communist infiltration of the NAACP, the state of Alabama asked for the NAACP to disclose its membership lists.  The Supreme Court had long established the right to freely associate as an important First Amendment protection.  In other words, the ability to gather together to advance your agenda is an important right.  Where would we be if those who want to protect Constitutional Rights couldn’t gather together as the ACLU or the NRA?  Or if those who wanted to advocate for women’s rights couldn’t form NOW?  And it’s not limited associations with a political agenda: where would we be without the ability to form the Boy Scouts and the Girl Scouts?

And here, the Supreme Court quite wisely recognized that even if the state of Alabama had no intent to suppress the NAACP (right!), if the NAACP was forced to reveal who their members were, it might lead to the intimidation of those members and a chilling of new memberships.  Or to put it plainly, the KKK might frakking kill them, and that might scare off new people from joining because they don’t want to be killed.  So the NAACP was allowed to refuse to turn over that information.

Except now if you receive a call while at an NAACP meeting, the government will know you are a member.  Admittedly the NAACP doesn’t have a lot to fear in relation to revealing its membership these days, but rights do not disappear just because the immediate danger they protect against had passed.

Or you consider this.  You might hit a rough patch in your marriage.  You might really consider divorce and so you secretly go to a divorce attorney.  And then after considering it, you reconcile with your spouse.

But while you were at the lawyer’s office, you received a phone call from someone.  So now the fact you were there is in a government database.  And if your spouse should find out that you went to a divorce attorney, it might precipitate serious complications in your marriage.

And if you think that the data cannot be abused, consider this.  Remember “Joe the Plumber?”  The man asked then-candidate Obama a few questions about the tax code which led to these sound bites from Obama:

Notice, that Joe—full name Samuel Joseph Wurzelbacher—isn’t the issue in that clip.  What Joe says doesn’t matter, except as showing what Obama is responding to.  It’s what Obama said that matters.  But that didn’t stop the left from attempting to destroy Wurzelbacher for having the temerity to question the Choosen One:

The director of an Ohio human services agency has been suspended for a month without pay and faces review by a county prosecutor for using confidential state databases to find personal information on "Joe the Plumber." She will also face review for using her state e-mail address to help Barack Obama's fundraising by identifying potential contributors and offering her own $2,500 donation.

Helen E. Jones-Kelley, head of Ohio's Department of Jobs and Family Services, authorized the searches within days of Samuel Joseph Wurzelbacher gaining national attention during a presidential debate in which both candidates took turns pitching their tax plans as best for "Joe the Plumber," as Wurzelbacher became known after a chance run in with Obama at an Ohio campaign stop.

Ohio's Inspector General concluded in a report that Jones-Kelley had wrongly authorized searches of Wurzelbacher through records kept on child support payments, temporary aid to families and unemployment benefits. A state employee concerned that privacy rules had been violated initially disclosed the breaches.

Consider the frightening message that sends: keep your head down.  Don’t stick your head up or it might get cut off.  You don’t believe me?  Consider this additional paragraph:

Jones-Kelley told investigators that it was agency practice to check the backgrounds of someone "thrust quickly into the public spotlight," but Thursday's report from Inspector General Thomas P. Charles said there were "no policies or procedures to support her."

(Source.) Yeah, I am sure it had nothing to do with the politics involved, either.

Or consider equally the possibility of leaks of private data:

John Eastman, a law professor at Chapman University’s School of Law and the chairman of the National Organization for Marriage, said that copies of the group’s tax returns and donor lists were leaked to the Human Rights Campaign, a group that supports marriage equality.

“These are felonies,” he said, and ones that have not been prosecuted despite his group’s requests of the Justice Department.

(Source.)  And when those donor lists were leaked, this led to... you guessed it0, intimidation.  No, not as bad as getting killed by hooded terrorists, but there is no amount of anti-free-speech intimidation that is justifiable in my book, especially when it is prompted by state action.

Eastman believes this is due to a deliberate leak, but leaks can be deliberate and malicious or merely incompetent.  Do you feel comfortable that the government will do everything it can to protect this private information from hackers and other information gatherers?  They have trouble protecting their own secrets.  Why should you think they will do better with yours, which the don’t’ care as much about?

And the worst thing about this, is that there isn’t even the pretense of individualized suspicion, here.  And that, folks, is the key to the Fourth Amendment.

The Fourth Amendment states the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The first clause means more or less, “no unreasonable searches and seizures.”  Meanwhile the primary purpose of the second clause is to prevent what is called a “general warrant”—that is, an open-ended warrant lacking specificity in time, place, the things or people to be searched or seized.  In Andresen v. Maryland (1976), the Supreme Court wrote that:

General warrants, of course, are prohibited by the Fourth Amendment. "[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. . . . [The Fourth Amendment addresses the problem] by requiring a `particular description' of the things to be seized." Coolidge v. New Hampshire, 403 U. S. 443, 467 (1971). This requirement " `makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

Even when searches are not performed under a warrant, these principles guide how the Fourth Amendment applies.  For instance, in Chandler v. Miller (1997), Justice Ginsberg wrote that:

The Fourth Amendment requires government to respect "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." This restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion.

In Chandler, they were confronted with a requirement that all candidates for certain Georgia state offices pass drug tests.  Besides arguably having a disparate impact on the Democratic and Libertarian parties (I kid!), this was seen as a violation of the Fourth Amendment because it was a search without individualized suspicion.

Which is not to say this is always fatal.  If you read Chandler you will see several circumstances listed where it was allowed. It required two things.  First it had to be a special circumstance over and above ordinary law enforcement.  I suppose there is a good chance that the fear of terrorism justifies that (this order did start after the Boston Marathon bombing after all) though that is not guaranteed.  And second, the intrusion has to be minimal.  Which is where I think this thing trips up.  Why do they have to track the movements and phone calls of every person on Verizon?  They can’t narrow it down?  Not even a little?

The answer is of course they can.  They can come up with a list of suspected terrorists and maybe track their associates and even the associates of their associates.  They don’t have to track everyone.

Indeed, such tracking would appear to violate the law they claim authorization under.  Here’s the relevant statutory text:

Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

That is one part.  Here is another, discussing what has to be in the order:

(b) Recipient and contents of application

Each application under this section—


(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation...

So taking the last chunk first, you have to have reasonable grounds to think the information relevant to an investigation of terrorism.  How could taking everyone’s records possibly be relevant?  Do they think everyone on Verizon is at least related to terrorism?

Well, in fact we know they think they aren’t.  Every time there is an Islamofascist terrorist attack, the White House is quick to stress that Islam is not the problem and that most Muslims are good people.  And they are right.  Not only are most Muslims not likely to be involved in Islamofascist terrorism, but they are indeed its most common victims globally.

So how can this administration swear up and down that not all Muslims are involved in terrorism, and then turn around and surveil every single Muslim who happens to use Verison?  Yes, I know they are survelling everyone who uses Verizon, but “everyone” includes “every single Muslim who uses Verizon.”  So how can they justify treating every Muslim (and every non-Muslim) like a terrorism suspect?

The short answer is, you can’t.

And further, the definition of who can be investigated limited as follows in the first passage I quoted:

provided such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Now first, notice the use of the word “person.”  That means they were not even contemplating a mass collection of data with this law.  Let that sink in for a moment.

And second, why are they suspicions of every single American who uses a Verizon phone?  Because they committed the crime of talking on the phone.  How is that not protected by the First Amendment?

Oh and what do you want to bet this isn’t limited to Verizon?  Seriously, are we to think that the FBI thinks the terrorists only use one cell phone company?  And for that matter, only cell phone companies?  No landlines?  Really?

No, more than likely they have tracked all of you.  We haven’t proven this to be the case, but it seems all but certain to be the case.

Welcome to the surveillance state.


Sidebar: One issue I have glossed over is the international aspect of it.  Well, here’s the really, really bad news, folks.  The Supreme Court has made it pretty clear that the Fourth Amendment stops at America’s borders.  This is why I have told my fellow lawyers for years never to send attorney-client communications overseas without at least warning the client that there is a real chance those communications will be intercepted willy-nilly.

The case in question is United States v. Verdugo-Urquidez (1990) and it involved a pretty normal search and seizure situation, but outside the United States.  In that case the Mexican house of a Mexican drug lord—meaning he lives in Mexico and is a Mexican citizen—was searched by Mexican and American law enforcement officials working together.  Evidence was found and the Supreme Court said it could be admitted into evidence because the Fourth Amendment didn’t even apply.

But the language in that opinion suggests it goes further than that.  Consider this passage:

Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See Malloy v. Hogan, 378 U. S. 1 (1964). Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. Kastigar v. United States, 406 U. S. 441, 453 (1972). The Fourth Amendment functions differently. It prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable governmental intrusion. United States v. Calandra, 414 U. S. 338, 354 (1974); United States v. Leon, 468 U. S. 897, 906 (1984). For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico.

Now the upside of that is that if Mexican police beat a confession to an American crime out of you, that confession can’t be used against you in an American court of law (in Mexican court, you might be screwed).  The downside is that if the Mexican police search your Mexican home and find drugs, that can be admitted in an American courtroom.

Maybe.  One thing left open by the decision is the possibility that it might be extended by connection to the “people” of United States:

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U. S. Const., Amdt. 1 ("Congress shall make no law. . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

That suggests that the Supreme Court was willing to consider an interpretation of the amendment so that the property, etc. of citizens—and possibly even people who are not citizens but have sufficient ties to the United States to be considered part of the community (such as resident aliens)—outside the U.S. might be protected from illegal searches and seizures.  But if the Supreme Court ever developed that line of reasoning, I am unaware of it.

And then there are more thorny questions of law when we apply this to phones.  Clearly two foreign citizens communicating in a foreign land are not covered by the Fourth Amendment.  But what about when a foreign citizens in a foreign country calls an American in America?  What if an American is making calls in a foreign country?  What if they are calling other Americans also in countries other than America?  I believe this is virgin legal territory.

The additional consideration that civil libertarians will have to contend with is the issue of whether people have a reasonable expectation of privacy in this case.  With modern technology that is often a crucial issue (it is not considered at all when we are taking a physical trespass on property) and with international borders, that becomes very questionable.  Why?  Because once your data leaves the U.S. there is a significant danger of it being listened to... by everyone else in the world.  I doubt, for instance, that the Chinese even have a Fourth Amendment, and I am certain that if it exists, it is toothless.  Numerous countries around the globe would have reason to gather this data and would have no compunction about violating one’s privacy.  And even if no nation would do so, individuals might.

So a court might recognize those facts and say, “the truth is once your signal or data leaves the country, you have no reason to expect it to remain private.  So you have no reasonable expectation of privacy and therefore no Fourth Amendment protection for this information once you leave America.”  There is no guarantee a court will read it that way, but it is a real danger.

So my analysis above might ultimately apply only to calls within America by “the people” as the Supreme Court meant the term above.  Or it might also apply to the people of America, wherever they are.  Or some other formulation.  But we can only be sure that the analysis above only applies to phone calls between “the people of America” while in America.  Anything outside of that formulation is one questionable ground, Fourth-Amendment-wise.


Sidebar (II): Some have said “Bush has done this, too.”  Well, first, I don’t see any reporting that definitively says he did.  For instance, in Greenwald’s article, he writes:

The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had "been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth" and was "using the data to analyze calling patterns in an effort to detect terrorist activity." Until now, there has been no indication that the Obama administration implemented a similar program.

Let’s parse that out a little bit, here.  They talk about “tens of millions of Americans.”  Which means that it is probably more than twenty million—probably at least thirty million by the way language is normally used—but less than one hundred million.  Indeed you have to think that if it was over ninety five million, they would have said “nearly one hundred million.”  But I am assuming worst case scenarios, so let’s say somewhere between thirty and ninety nine million.

That’s bad, but you know what that isn’t? All of us.  That implies that some kind of selection is being applied.  Now anything much over thirty million people being surveilled, or roughly ten percent of the population of America, sounds like whatever criteria they are using is entirely too loose.  The pretense that this is based on anything like individualized suspicion is thin... but at least it is there.

What Obama has done is thrown out individualized suspicion entirely.  And that is what is frightening.

And let’s pretend for the sake of argument we find out Bush did do exactly the same thing.  Then shame on him, too.


* Yes, I know I am not the first person to say this.  But I will note that I wrote that part of this piece last night, so I was first. So there.


My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.



I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.

No comments:

Post a Comment