They Said One Thing, They Did Another

Photo via Sully

Gwen Florio in the Missoulian:

Federal raids hit medical marijuana shops from Columbia Falls to Billings on Monday, spreading “a horrible mixture of fear and rage” through a community already roiled by high-profile attempts to regulate it.

“The reckless and cruel disregard for the patients that count on these shops is going to cause a lot of heartache,” said John Masterson of Missoula, who heads Montana NORML (National Organization for the Reform of Marijuana Laws), which live-blogged information about the raids throughout the day Monday.

Advocates for medical marijuana noted that federal agents executed their search warrants even as a Montana Senate panel collected testimony on a bill to repeal the state’s 2004 voter initiative legalizing medicinal use of marijuana. (See related story.)

“It sure feels like a blatant, obvious, calculated, bullying interference by the federal government in Montana decision-making,” said Tom Daubert, a leading medical marijuana advocate, who was in the committee hearing Monday morning when he heard about the raids.

Andrew Sullivan:

A reader flags the troubling news, adding, “The Feds have not stopped cracking down on medical marijuana even though Obama said they would.”

Jacob Sullum at Reason:

Wait. Didn’t Barack Obama repeatedly promise to call off the DEA’s medical marijuana raids when he was running for president, and didn’t his attorney general instruct federal prosecutors to leave patients and providers alone as long as they are complying with state law? Sort of. Under a policy change announced by the Justice Department in October 2009, U.S. attorneys were told that, “as a general matter,” they “should not focus federal resources” on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” In practice, this policy means the feds reserve the right to interpret state law and decide whether patients and providers are following it, as illustrated by continued raids in California, Colorado, and Michigan.

Montana, like California and Michigan, allows “caregivers” as well as patients to grow marijuana. Montana’s Medical Marijuana Act (PDF) defines a caregiver as an individual “who has agreed to undertake responsibility for managing the well-being of a person with respect to the medical use of marijuana.” A patient with a doctor’s recommendation may grow up to six plants and possess up to one ounce of usable marijuana for his own consumption, or he can designate a caregiver, who may grow up to six plants on his behalf. Are patients or caregivers allowed to form “cooperatives,” as they do in California, and grow marijuana together? According to the state Department of Public Health & Human Services, which keeps track of registered patients and their caregivers, “the law is silent on this issue.” And although the law specifies that “a qualifying patient may have only one caregiver at any one time,” it does not seem to address the question of whether a caregiver may grow marijuana for more than one patient.

The upshot is that the DEA can always argue that any individual or group of people with more than six plants (or more than one ounce of usable marijuana) in one place is not “in clear and unambiguous compliance” with Montana law. That would be the case even if state courts explicitly approved grow operations and dispensaries operated by patients or caregivers. Federal raids have continued in California even though the state attorney general (now the governor) said dispensaries are permitted.

Jeralyn at Talk Left:

Medical marijuana has been legal in Montana since 2004. Efforts are underway in the legislature to repeal it.

On Monday in the state Legislature, a committee deadlocked on a bill that would repeal the state’s medical marijuana law.

The Senate Judiciary Committee voted 6-6 on House Speaker Mike Milburn’s House Bill 161, which would repeal the law passed by voters in 2004. Unless the deadlock is broken, the bill is dead.

Among the federal agencies involved in the raids:

[The]Drug Enforcement Administration, Immigration and Customs Enforcement, Internal Revenue Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Investigation.

It sure sounds like the raids were timed to coincide with the consideration of the repeal bill. These raids occurred all over the state, including: Belgrade, Big Sky, Billings, Bozeman, Columbia Falls, Dillon, Great Falls, Helena, Kalispell, Miles City, Missoula, Olney and Whitefish.

Montana patients are not staying silent:

[T]he patient community has quickly responded by planning coordinated vigils at various city halls across the state at 5pm on Wednesday. Tomorrow’s vigils are being organized by Americans for Safe Access and sponsored by Patients and Families United and Montana Medical Growers Association, which are both statewide medical marijuana groups.

Americans for Safe Access is distributing this Raid Emergency Response Plan for businesses who fear being raided.

Jason Sullem at Reason has more on Montana’s medical marijuana muddle. The problem is that Obama and AG Eric Holder’s positions are vague and arbitrarily enforced, as evident from the October, 2009 memo.

The Obama Administration is not committed to allowing medical marijuana in states with laws that allow it. As I wrote here,

[T]he Holder statements and Ogden Memo are not enough protection. Short of legalization, Congress at least needs to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law — or at a minimum, a law that expressly allows patients, caregivers and providers to raise compliance with state law as an affirmative defense to a federal prosecution.

Congressman Jared Polis is seeking decriminalization at the federal level. He’s even appearing at industry events. I have doubts it will happen at the federal level while Obama is President. The next best thing is protection from federal prosecution. (More on Polis’ efforts here.)

Caitlin Dickson at The Atlantic:

The raids raise questions about the legitimacy of state marijuana laws in the face of a federal government that considers any production and sale of the substance to be illegal. They also highlight two particular areas where the difference between federal and state marijuana laws collide.

Drug trafficking: Possession was not the issue in Monday’s Montana raids nor Tuesday’s in California. Rather, agents targeted marijuana providers. These raids have elicited outrage from those who recall President Obama’s promise that the Justice Department would be more “hands off” with regard to prosecuting marijuana users and distributors in states that have legalized the medical use of pot. Just last month, AOL News’ Jacob Sullum analyzed the instructions U.S. attorney’s received in November to apply said lenience only to “individuals whose actions are in clear and unambiguous compliance with existing state laws.” He notes that states like California may allow patients or their “caregivers” to grow their pot collectively and sell it to other patients at dispensaries, but to U.S. attorneys or the DEA, dispensaries themselves “are completely illegal” regardless of the state’s law, “because they exchange pot for money.”
Tax evasion: The raided growers and dispensaries is Montana and California are all being charged with tax evasion. In states that have legalized medical marijuana use, medical marijuana dispensaries should be considered legal businesses. But, according to the I.R.S., “no deductable credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business…consists of trafficking in controlled substances…which is prohibited by Federal Law or the law of any State in which such trade or business is conducted.” That would, of course, pose quite a problem for filing taxes.

Ed Morrissey:

It’s possible in these two raids that there were other crimes suspected of the operators than just the sale of pot. Until the courts unseal the records, we won’t know the answer to that, as apparently no one in the DoJ wants to talk about it at the moment. If not, though, one can certainly argue that the statements of Obama and Holder about leaving state-licensed vendors alone amount to a moral case of entrapment, if not a legal case.

What is the actual Obama administration policy on licensed marijuana vendors in states like California? Shouldn’t they make that clear so that the operators of these clinics have a chance to adapt to a clear legal environment?

Can President Bush Or President Obama Hear Us Now?

Emptywheel at Firedoglake:

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

More Emptywheel:

I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

Michael Scherer at Swampland at Time:

Four quick bullet points on Judge Vaughn R. Walker’s decision today in Al-Haramain Islamic Foundation v. Barack Obama. (See pdf of ruling here.)

1. The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers. At one point the judge dismisses the government’s “impressive display of argumentative acrobatics.” At another point, the judge says the government’s arguments “take a flying leap and miss by a wide margin.”

2. The judge claims that the Obama Administration is attempting to place itself above the law. “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [State Secrets Privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for the executive branch abuses of surveillance authority.” He dismisses this argument.

3. It is difficult to square the Justice Department’s use of State Secrets in this case with President Obama’s stated position on state secrets. In a press conference on April 30, 2009, Obama said the following:

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.

Glenn Greenwald:

On a positive note, the Obama administration suffered a major defeat today in its efforts to shield Bush lawbreaking from judicial scrutiny.  As Marcy Wheeler reports, District Judge Vaughn Walker ruled today in favor of the plaintiffs in the Al-Haramain case, who allege that they were subject to Bush’s illegal eavesdropping program.  For more on the background of this case and the Obama DOJ’s extraordinary efforts to compel dismissal of this lawsuit (on both secrecy and standing grounds), see here and here. I’ll likely have more on this shortly.

Orin Kerr:

The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.

Jeralyn at Talk Left:

The case involved the Al-Haramain Islamic Foundation, an Islamic charity, and two of its lawyers, Wendell Belew and Asim Ghafoor, who alleged their conversations were illegally intercepted. The Court granted their motion for summary judgment finding the Government is liable for damages for illegally wiretapping their conversations without a FISA warrant.

David Kravets at Wired:

Judge Walker likened the department’s legal tactics as “argumentative acrobatics.” He said counsel for attorneys Wendell Belew and Asim Gafoor are free to request monetary damages.

Their lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money.”

“What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security,” Eisenberg said.

Because of the evocation of the state secrets privilege, Walker had ruled the lawyers must make their case without the classified document. So Eisenberg amended the case and cited a bevy of circumstantial evidence (.pdf). Walker ruled that evidence shows that the government illegally wiretapped the two lawyers as they spoke on U.S. soil to Saudi Arabia. Walker said the amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity for which the lawyers were working, including a speech about their case by an FBI official.

Under Bush’s so-called Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Congress, with the vote of Obama — who was an Illinois senator at the time — subsequently authorized such warrantless spying in the summer of 2008.

The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the Bush administration in illegal wiretapping.

Adam Serwer at The American Prospect:

What seems immediately significant to me about this ruling, beyond calling into question the legality of the warrantless wiretapping program, is that unless the government appeals, it will be beyond argument that both administrations have been abusing the state-secrets privilege by using it to prevent scrutiny of illegal behavior by the government.

Nick Baumann at Mother Jones:

In 2006, Al-Haramain sued then-President George W. Bush and other top officials after the government mistakenly provided the charity with classified documents that supposedly prove it had been illegally surveilled. A district court judge initially ruled that Al-Haramain could use those documents in its case. Eventually, however, the courts decided that the “state secrets” clause precluded the charity from using the classified documents at trial—a defeat that some observers thought would be fatal to the lawsuit.

Instead of giving up, Al-Haramain and its lawyers tried a different tack, gathering ten times as much unclassified evidence as they had previously submitted. The government, in a tiff, refused to submit evidence contradicting the plaintiffs’ claims, and even tried to claim that it didn’t have to. Walker didn’t like that argument too much: Because the government refused to submit any evidence calling the plaintiffs’ case into question, he simply granted summary judgment—a sort of TKO.

Count this round for the civil libertarians.

UPDATE: More Greenwald

Jacob Sulllum at Reason

Julian Sanchez at Cato

The Uighurs And The Supremes

Rebecca Crootof and Oona A. Hathaway in Slate:

In a recent “Jurisprudence,” Rebecca Crootof and Oona Hathaway urged the Supreme Court not to duck Kiyemba v. Obama, this year’s big Guantanamo case, which involves seven Chinese Uighur detainees whom the government has conceded are not dangerous. Crootof and Hathaway also argued that the most important outcome was for the Supreme Court to vacate the U.S. Court of Appeals for the D.C. Circuit’s previous ruling, which held that the government had the authority to detain the Uighurs indefinitely. The Supreme Court did this today, wiping out the D.C Circuit’s earlier decision and sending Kiyemba back to that court. “Each of the detainees at issue in this case has received at least one offer of resettlement in another country,” the Supreme Court’s order states. “Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay. This change in the underlying facts may affect the legal issues presented. No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.” Crootof and Hathaway’s article is reprinted below.

Does a district court have the power to order the release of a person who is unlawfully held by the U.S. government? This is the central issue of Kiyemba v. Obama, the case before the Supreme Court involving seven Chinese ethnic-minority Uighurs being held on Guantanamo. The government is now seeking to have the case “dismissed as improvidently granted” after recent news that two of the Uighurs received offers of resettlement in Switzerland—including the only one of the seven who previously had not had a country willing to take him. But if the court were to do as the government suggests, it would fail to resolve important concerns about the courts’ power to order the release of people unlawfully held by the government. Worse, it would also leave bad law standing.

[…]

Because of Switzerland’s new offer, the government is now seeking to have the case dismissed as improvidently granted. This action is appropriate when, as the Supreme Court put it in 1959, all relevant facts about a case were not “fully apprehended at the time certiorari was granted”—in other words, if the court misunderstood the facts of the case when it agreed to grant certiorari. In a letter filed on Feb. 5, Solicitor General Elena Kagan stated that the court “might wish” to dismiss the case as improvidently granted because, along with the previous offer from Palau to take five of the Uighurs, the Swiss offer to resettle the remaining two eliminated “the factual premise of the question presented in this case—i.e., that petitioners have no possibility of leaving Guantanamo Bay except by being brought to and released in the United States.”

Whatever one may think of the merits of the case, dismissal on these grounds is clearly not the right outcome. It would represent an exceedingly transparent effort by the court to avoid conflict with the president and to dodge wrestling with the difficult questions presented by this case. The relevant facts were “fully apprehended” at the time the court took the case. The government is not even attempting to make the argument that they were not; instead, it is arguing that the facts have changed.

If the court concludes that Switzerland’s offer changes the circumstances so much that a judgment is no longer necessary, then the appropriate approach would be to find the case moot, as Linda Greenhouse recently pointed out in the New York Times. The court would then vacate the D.C. Circuit opinion and send the case back to that court with instructions to dismiss. This would have the benefit of eliminating the wrongheaded D.C. Circuit ruling. Dismissing the case as improvidently granted, by contrast, would leave this decision on the books, where it would adversely affect other Guantanamo detainees in the future.

SCOTUSBlog:

The Supreme Court on Monday ordered the D.C. Circuit Court to take a new look at the case testing federal judges’ powers to order Guantanamo Bay detainees released from custody — a case the Justices had granted and were to hear later this month.  In a brief order, without noted dissent, the Court said the Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.”  The case is Kiyemba, et al., v. Obama, et al. (08-1234).  The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.

The Justices’ action has two immediate effects: first, it wipes out the Circuit Court’s earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and, second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government’s “war on terror.”  President Obama wants to close Guantanamo, but there are efforts in Congress to keep it open in order to assure that no detainee reaches the U.S. shores, even for further detention.  There are also efforts on Capitol Hill to block any criminal trial in the U.S. of a Guantanamo prisoner, including those who have been charged with the 9/11 terrorist attacks. A third effect of Monday’s order very likely will be that the Court may not act this Term on a second Kiyemba case (same title, docket 09-581) that offered another opportunity to explore the courts’ authority to deal with Guantanamo captives’ fate.  That case involves some of the same individuals who appealed in the case the Court agreed to hear in October.  (The granted case is now informally known as “Kiyemba I.”  The case in 09-581 is thus known as “Kiyemba II.”)

Both cases were sequels to the Supreme Court’s ruling in Boumediene v. Bush in June 2008, establishing a constitutional right for Guantanamo prisoners to challenge their continued detention.  The new appeals thus were attempts to test whether, in implementing Boumediene, federal judges had any authority to require the actual release of a detainee even in situations where the government no longer had any basis for confining them.  The government no longer considers any of the Uighurs to be enemies of the U.S., but takes the position that their movement out of Guantanamo is solely within the diplomatic power of the U.S. government to arrange for their resettlement elsewhere.

Jacob Sullum at Reason:

Although the federal government does not claim these detainees are terrorists or any other kind of “enemy combatant,” it had refused to release them, saying they would face persecution in their native China and had nowhere else to go. In 2008 a federal judge in Washington ordered the Uighurs’ release within the United States, a ruling that was later overturned by the U.S. Court of Appeals for the D.C. Circuit, which said only the executive branch has the authority to admit people into the country. Today the Supreme Court vacated that decision, noting that foreign countries finally have agreed to accept all the remaining Uighur detainees, making the immigration issue moot.

Daniel Foster at The Corner

Jeralyn at Talk Left

David Savage at The LA Times:

“By now, each of the detainees at issue in this case has received at least one offer of resettlement in another country,” the court said in a brief order. Most have left Guantanamo. However, five of them have rejected two such offers and remain at the U.S. prison, the justices said.

Because none of the Uighurs can now claim they are being held against their will at Guantanamo, the court said it would not decide their legal claim in the case of Kiyemba vs. Obama. Instead, it sent the case back to a lower court to oversee the dispute.

The court’s action spares the Obama administration a showdown with the court over whether it could continue to hold Guantanamo prisoners who had won their legal claims before a federal judge. The move gives the administration more time to resolve how to handle the remaining prisoners at Guantanamo.

Big Brother Is Watching Me Type This Post Title

Declan McCullagh at CNET:

The FBI is pressing Internet service providers to record which Web sites customers visit and retain those logs for two years, a requirement that law enforcement believes could help it in investigations of child pornography and other serious crimes.

FBI Director Robert Mueller supports storing Internet users’ “origin and destination information,” a bureau attorney said at a federal task force meeting on Thursday.

As far back as a 2006 speech, Mueller had called for data retention on the part of Internet providers, and emphasized the point two years later when explicitly asking Congress to enact a law making it mandatory. But it had not been clear before that the FBI was asking companies to begin to keep logs of what Web sites are visited, which few if any currently do.

The FBI is not alone in renewing its push for data retention. As CNET reported earlier this week, a survey of state computer crime investigators found them to be nearly unanimous in supporting the idea. Matt Dunn, an Immigration and Customs Enforcement agent in the Department of Homeland Security, also expressed support for the idea during the task force meeting.

Samuel Axon at Mashable:

That would mean monitoring the IP addresses, domains and exact websites users visit, and then storing that information for months. If officials who support this measure get their way, federal, state and local law enforcement would be able to access the information via search warrant or subpoena.

Access to exact URLs would require deep-packet inspection, which could be a violation of the Wiretap Act. The courts would end up having to make a ruling one way or the other if authorities try it.

The argument in favor is that the FBI has long been able to do this with telephone call information, but since so much telephone communication has been replaced by web activity, this would just be a preservation of existing powers. And those in favor insist that no actual content would be released to authorities — only points of contact. For example, authorities can see that a phone call was made from one number to another, but they don’t know what was said unless they wiretap.

Jeralyn at Talk Left:

The panel was very confrontational (it was live-streamed and an archived version should become available)

At the meeting, the FBI’s Gregg Motta said that the FBI director wants 2 year data retention for non-content data. He disagreed with a CDT paper by Nancy Libin, Chief Privacy Officer for DOJ, arguing that data retention is “invasive and risky.”

Kardasz claimed that ISPs delay compliance with subpoenas and fail to retain data long enough for investigations. He suggested data be kept for 5 years. He says ISP are facilitating crime and suggested ISPs be co-defendants in child p*rn cases. Subcommittee Chair Chris Bubb from AOL called Kardasz’ comments outrageous.

DOJ’s Paul Almanza says it does not have a position on data retention requirements and that the lack of data retention harms investigations of crimes against children.

From one report:

[T]he strongest objection came from John Morris of the Center for Democracy & Technology, who rightly noted that no amount of government subsidies for data retention could prevent leakage of sensitive private data. For this reason and because of the basic civil liberties at stake whenever the government has access to large pools of data about its citizens, Morris argued that we need to strike a balance between how we protect children & the values of free society. Dave McClure of the US Internet Industry Association (USIIA) seconded this point powerfully: If such vast data is retained, it will be abused.

And get this: Verizon stores your e-mail forever, unless the user deletes it.

Drew Arena of Verizon says it stores information to correlate IP addresses & subscriber information for 12 months and e-mail forever.

These are two slides from one of the law enforcement presentations.

Mike Melanson:

While the emphasis is being placed on “routing” information and not “content”, a lot of content can be gleaned from these connections.

Michael Klurfeld:

One has to wonder how all of that information is going to be useful. If you’re trying to parse everything that an ISP’s customer has done over the course of two years, you’re going to end up in the territory of Excel spreadsheets that bring even the mightiest CPUs to a crawl.

Another concern is whether or not such a law for logging data explicitly for the purpose of federal investigation in some way violates the Constitution. For example, American citizens are entitled to an expectation of privacy. In my opinion, this if you’re just visiting a website in your home that doesn’t have any social features, this activity should be considered private. If, on the other hand, you’re on a site interacting with users, then you’re being less private.

Personally, any proposals for data logging set off my internal Orwellian sensors. The FBI argument will be that more data will allow for better policing of criminal activity, but that’s also the problem: all of the user data collected would be more or less for the purpose of prosecuting people. And the last thing we need in the US is more ways to put people in jail.

We Will Be Greeted As Liberators And Showered With Hot Wings

The Bush administration debated sending troops to the Buffalo area. New York Times article here.

The Buffalo News:

Cheney and others had argued that using the military on domestic soil against al-Qaida was legal “because it served a national security, rather than a law enforcement, purpose,” the Times reported.

“The president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” an Oct. 23, 2001 Justice Department memorandum said. The memo was declassified earlier this year.

While those in favor of using troops in Lackawanna cited the memo, other Bush aides were dead set against using the military on domestic soil.

“What would it look like to have the American military go into an American town and knock on people’s door?” a former official in the debate told the Times.

Lackawanna Police Chief James L. Michel agreed that keeping troops out was a good idea. “If we had tanks rolling down the streets of our city, we would have had pandemonium down here,” Michel told the Times. He could not be reached by The Buffalo News Friday.

High level Bush aides were among those who opposed the proposed military maneuver, including Condoleeza Rice, then the national security adviser; John B. Bellinger III, the top lawyer at the National Security Council; Robert S. Mueller III, the director of the Federal Bureau of Investigation; and Michael Chertoff, then the head of the Justice Department’s criminal division, the Times said.

Glenn Greenwald:

Today’s NYT report is the first which reveals that high-level Bush officials actively considered and even advocated that the power to use the military to arrest American citizens on U.S. soil be used.  In this instance, Cheney and Addington argued that the U.S. Army should be deployed to Buffalo to arrest six American citizens — dubbed the “Lackawanna Six” — suspected of being Al Qaeda members (though not suspected of being anywhere near executing an actual Terrorist attack).  The Cheney/Addington plan was opposed by DOJ officials who wanted domestic law enforcement jurisdiction for themselves, and the plan was ultimately rejected by Bush, who instead dispatched the FBI to arrest them [all six were ultimately charged in federal court with crimes (“material support for terrorism”); all pled guilty and were sentenced to long prison terms, and they then cooperated in other cases, once again illustrating how effective our normal criminal justice and federal prison systems are in incapacitating Terrorists].

All that said, the Bush administration did use a very similar power when it dispatched FBI agents to arrest U.S. citizen Jose Padilla on American soil (at Chicago’s O’Hare Airport), but then very shortly thereafter transferred him to military custody, where he was held for the next 3 years with no trial, no charges, and no contact with the outside world, including lawyers.  The only thing distinguishing the Padilla case from what Cheney/Addington argued be done in the Lackawanna Six case was that the military wasn’t used to make the initial apprehension of Padilla.  But Padilla was then transferred to military custody and held on U.S. soil for years in a brig, incommunicado and tortured, with no charges of any kind (another U.S. citizen, Yaser Hamdi, was treated similarly until the Supreme Court ruled he was entitled to some sort of hearing, after which he was sent to Saudi Arabia).

Spencer Ackerman:

So what did the Bush administration do besides consider the novel ways in which it could break very clearly written laws? It’s not clear that you can’t use the military in a variety of capacities inside the United States. But it’s very clear, thanks to Posse Comitatus, that you can’t use the military in the United States for law enforcement. Somehow this distinction was lost on Dick Cheney, who in 2002 urged George Bush to send soldiers to New York to arrest the suspected sleeper cell called the Lackawanna Six.

[…] In the end this case is academic. Bush did the right thing, in the sense that me not bludgeoning my beloved dog to death is the “right thing.” But I was having dinner with friends yesterday and we got to discussing a circumstance I’ve been tossing around called What Makes Us More Like A Banana Republic. Is it BR-like to have a gang in power that breaks a lot of laws and then gets prosecuted for it by the opposing political party when it wins power? Whatever the merits of that, we’d have to stipulate that it’s pretty fucking problematic as a precedent, as it guarantees retaliation and the slope slips for the law to slouch into the land of pretext. But is it more BR-like to have the gang face no legal sanction, sending the message that the lawful course of action is just one policy option among many?

Flopping Aces:

Ooooh…..they “debated“…in 2002….Scary, scary stuff.

[…] So what?

Like the reportage of the CIA plan that never became operational (imagine…plotting to assassinate those trying to kill Americans- what was Darth Cheney thinking?!), what’s the purpose of the story, here?

Rabid Cheney Derangement Syndrome.

Jeralyn at Talk Left

Andrew Sullivan

What interests me here is the fact that the task was easily within the capabilities of the FBI who did the job. What Cheney was doing here was making a point: that he believes that the president can impose the equivalent of martial law inside the country at any moment he feels it’s necessary, even if it isn’t. What Cheney was about was making a point about his own untouchable power outside the constitution to wage a war, even in America itself against American citizens. Remember also that Cheney strongly believes in the power of torture as well – as integral, as he has put it, to American constitutional practices.

Wonkette

D-day:

It’s not that I disagree that this was brought up as an option, it’s the positioning of Bush as the defender of the Constitution that kind of galls me. Cheney was the Constitution’s chief beta-tester (“testing the Constitution” is quite a turn of phrase, no?), and considering the wealth of other illegal actions, all justified like this one by at-the-ready memos from John Yoo, I just doubt that Bush really made these decisions, even if he felt like he did.

Frankly, all this dumping on Dick seems like part of the Bush Legacy Project to me. While Fourthbranch has been ready for his closeup throughout the Obama Administration – right up until the moment that Eric Holder started talking seriously about prosecutions that didn’t involve him, that is, then he slithered back into the undisclosed location – Bush has kept a low profile in Dallas, gave a couple speeches, told stories about walking his dog and being jus’ folks, and one by one all of these articles showing how he wasn’t SO bad – he didn’t want to use the military in American cities, after all! – keep popping up, using anonymous sources. It’s a nice kickoff for the library.