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…)

Scaremongering About the Patriot Act Sunset

As Section 215 nears its expiration date, the standoff over civil liberties is imminent, writes ACLU’s Jameel Jaffer.

By Jameel Jaffer

In a last-ditch effort to scare lawmakers into preserving unpopular and much-abused surveillance authorities, the Senate Republican leadership and some intelligence officials are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security. (One particularly crass example from Senator Lindsey Graham: “Anyone who neuters this program is going to be partially responsible for the next attack.”) Some media organizations have published these warnings without challenging them, which is unfortunate. The claim that the expiration of Section 215 would deprive the government of necessary investigative tools or compromise national security is entirely without support.

First, there’s no evidence that the call-records program is effective in any meaningful sense of the word. The Privacy and Civil Liberties Oversight Board, which reviewed classified files, “could not identify a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” The President’s Review Group, which also reviewed classified files, determined that the call-records program had “not [been] essential to preventing attacks,” and that, to the extent the program had contributed to terrorism investigations, the records in question “could readily have been obtained in a timely manner” using targeted demands. Although government once made far grander claims to the FISA court, the strongest claim that leaders of the intelligence community now make in support of the call-records program is that it provides “peace of mind.” Whatever this claim means—peace of mind to whom?—it’s not a claim that the program is necessary.

Second, there’s no evidence that other forms of collection under Section 215 have been any more effective. If intelligence officials could cite instances in which collection under Section 215 had been crucial to terrorism investigations, you can be sure they would have cited them by now. They certainly would have cited them to the Justice Department’s Inspector General, but a report by the Inspector General released this past week states that FBI personnel were “unable to identify any major case developments that resulted from use of the records obtained through use of Section 215 orders.” FBI personnel didn’t say that collection under Section 215 had been entirely useless—they said it had been useful in corroborating information already in their possession, for example—but they certainly didn’t say, or even come close to saying, that the expiration of Section 215 would compromise national security.

Third, the sunset of Section 215 wouldn’t affect the government’s ability to conduct targeted investigations of terrorist threats. This is because the government has many other tools that allow it to collect the same kinds of things that it can collect under Section 215. It can use administrative subpoenas or grand jury subpoenas. It can use pen registers. It can use national security letters. It can use orders served under the Electronic Communications Privacy Act. If Section 215 sunsets, it can use the provision that Section 215 amended, which will allow it to collect business records of hotels, motels, car and truck rental agencies, and storage rental facilities.

The sunset of Section 215 would undoubtedly be a significant political loss for the intelligence community, and it would be a sensible first step towards broader reform of the surveillance laws, but there’s no support for the argument that the sunset of Section 215 would compromise national security. Against this background, it’s not surprising the FBI Director reacted the way he did to a question about the possible sunset of Section 215. “I don’t like losing any tool in our toolbox,” Comey said, “but if we do, we press on.”

—————–

© 2015 Just Security