The torture law
Military Commissions Act of 2006
Signed into into law by Shrub 10.17.06, it "immunizes govt officials for past war crimes, cuts U.S. obligations under Geneva Conventions and all but eliminates access to civilian courts for non-citizens"
per Michael Dorf
passed in the House almost solely on GOP party majority
Shame on us all
10.18.06 Robt Parry
even American citizens who are accused of helping terrorists can be shunted into the military tribunal system where they could languish indefinitely without constitutional protections.
“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” the law states.
“Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy [presumably U.S. military allies, such as Great Britain and Israel], shall be punished as a military commission
may direct.
“Any person subject to this chapter who with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission
may direct.
“Any person subject to this chapter who conspires to commit one of the more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission
may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission … may direct.”
In other words, a wide variety of alleged crimes, including some specifically targeted at citizens with “an allegiance or duty to the United States,” would be transferred from civilian courts to military tribunals, where habeas corpus and other constitutional rights would not apply.
Secrecy, not the principle of openness, dominates these curious trials.
Under the military tribunal law, a judge “may close to the public all or a portion of the proceedings” if he deems that the evidence must be kept secret for national security reasons. Those concerns can be conveyed to the judge through ex parte, or one-sided, communications from the prosecutor or a govt representative.
The judge also can exclude the accused from the trial if there are safety concerns or if the defendant is disruptive. Plus, the judge can admit evidence obtained through coercion if he determines it “possesses sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.”
The law permits, too, the introduction of secret evidence “while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that
the evidence is reliable.”
During trial, the prosecutor would have the additional right to assert a “national security privilege” that could stop “the examination of any witness,” presumably by the defense if the questioning touched on any sensitive matter.
The prosecution also would retain the right to appeal any adverse ruling by the military judge to the U.S. Court of Appeals in the District of Columbia. For the defense, however, the law states that “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever
relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”
Further, the law states “no person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.”
In effect, that provision amounts to a broad amnesty for all U.S. officials, including President Bush and other senior executives who may have authorized torture, murder or other violations of human rights.
Beyond that amnesty provision, the law grants President Bush the authority “to interpret the meaning and the application of the Geneva Conventions.”
-
per MCA, "an "unlawful enemy combatant" is a person who is not part of a country's uniformed armed forces but "who has engaged in hostilities or has purposefully and materially supported hostilities against the U. S."
It does not say who makes that determination or what evidence, if any, is required.
Alternatively, an unlawful enemy combatant is anyone so labeled by a Combatant Status Review Tribunal, which can apply its own definition.
The law bars detainees who are not U.S. citizens from challenging their detention in federal court, so they have no legal recourse outside the executive branch. The govt can arrest "aliens," including legal visitors and residents, and hold them indefinitely, based on nothing more than the president's unilateral determination that they qualify as unlawful enemy combatants.
- The best for the worst
Jacob Sullum 10.4.06
Losing a war, winning a police state
9.26.06 Nat Parry
-
1934   "[The] United States Chamber of Commerce issues report 'Combating Subversive Activities in the United States,' [think USA PATRIOT Act] that blueprinted a legislative and intelligence program against the political left that would last through the 1950's, maybe beyond. [The] report demanded passage of anti-subversive legislation, including a sedition law and demanded an agency within the Justice Dept. be created to deal with subversive activities.
- Neil Smith chronology
'Living in a police state'
4.24.02 J.Wisely & S.W.Huber Oakland Press (MI)
Two new laws which took effect Monday as part of anti-terror efforts also shield from public scrutiny the reasons for police searches. Defense lawyers & civil libertarians are outraged at the laws, which make search
warrants & supporting documents such as affidavits non-public records. "If you think the police did
secretive work before, just wait," defense atty William Cataldo said. "It gives more power to the ignorant and more
power to those who would take your rights." Defense lawyer Walter Piszczatowski said: "This is nuts, this is beyond nuts. What happened to the Fourth Amendment? We're living in a police state." That means the public, the press, and in some cases even the person accused of the crime, can't know why the police entered a home without permission. Under previous laws, the records were public, unless a judge ordered them sealed for a specific reason. In federal courts, that remains the case. But now, search warrants in state courts are automatically closed to public view.
"I think this is absolutely unconstitutional," said First Amendment lawyer Dawn Phillips with Michigan Press
Association. "We objected to it at the time. This thing passed like greased lightning." House portion of the bill
passed unanimously; Senate version passed 27-8. Chief sponsor of the bill in the state senate was Shirley Johnson
(R-Royal Oak) while Bill Bullard (R-Highland Township) was a cosponsor. In the state House, Nancy Cassis (R-
Novi) was among 20 sponsors. American Civil Liberties Union also objected to the law's change. ACLU
spokeswoman Wendy Wagenheim said the group is reviewing the law. Law enforcement supported the
changes. Oakland County Prosecutor David Gorcyca said the laws protect victims, witnesses and confidential
informants. Gorcyca said the procedure for obtaining a search warrant didn't change, nor did the rights of the
defendant to challenge a bad warrant or the ill-gotten gains of an illegal search.
"When affidavits are filed, previously they divulged a large portion of the investigation and where it was heading
and that could hamper the investigation and the direction of the investigation," Gorcyca said. "It doesn't mean you
can circumvent the judicial process. All we're doing is suppressing the contents of the affidavit.
[ Secret affidavits aren't affidavits. ]
It does prevent the public & the media from obtaining information during the investigation but it doesn't
prevent the defendant & the defense attorney from challenging the search warrant." Gorcyca cited drug
conspiracy cases as those where witnesses are frequently in danger unless their identity is kept private during
the investigation. "In the drug world, witnesses are fearful all the time," he said. "Those are reluctant witnesses who
are afraid to come forward and testify. In those cases, fear & intimidation is real. That's why grand juries are
so vital. And this provides the same secrecy as a grand jury and does not impugn anyone's rights."
Civil libertarians say those goals can be met with a much narrower approach, like the one used in federal court.
"A judicial finding needs to be made on a case-by-case basis," said Wayne State Univ. constitutional law prof.
David Moran in Detroit.
When police are investigating a crime and they believe evidence is stored in someone's home, car or other private
place, they must submit a sworn affidavit to the court spelling out their case. A judge reviews the document, then
decides if there is enough evidence to search without the owner's permission. The Fourth Amendment to the U.S.
Constitution requires "probable cause" to issue a warrant and notes they must be written "particularly describing the
place to be searched and the persons or things to be seized." The changes are contained in 2 new laws, public
acts 112 & 128. State Court administrator John Ferry Jr. spelled out the changes to courts across the state in
a memo last Friday.
Public act 112 makes "all search warrants, affidavits and tabulations in any court file or record retention
system nonpublic," according to Ferry's memo. The memo goes on to say that public act 128 "provides for
suppression of a search warrant affidavit upon a showing that it is necessary to protect an ongoing investigation or
the privacy or the safety of a victim or witness." Contacted Tue. for clarification on the memo, spokeswoman for the
state court administrator's office declined comment. Marcia McBrien said the laws could appear before the
Supreme Court for interpretation and it would be improper for her to offer one in advance. The new laws could also
create headaches for court recordkeepers. In many courts, search warrants are filed along with the case file. It's
unclear how clerks will keep the 2 separate.
The new law also affects the rights of people who are searched. According to a analysis of the law done in the
House of Representatives, the state Court of Appeals ruled that affidavits be given along with a warrant at the time
of a search. The new law changes that. "An officer executing a search is not required to give a copy of the
affidavit to the person or leave a copy at the place from which the property was taken," according to Ferry's
memo.
Congress not advised of shadow govt
¹
²
Bush calls security 'serious business'
3.2.02 Amy Goldstein & Juliet Eilperin Wash.Post
Des Moines Key congressional leaders said yesterday the White House did not tell them that
President Bush has moved a cadre of senior civilian managers to secret underground sites outside Washington to ensure that the federal govt could survive a devastating terrorist attack on the nation's capital. Senate Majority
Leader Thomas A. Daschle D-SD said he had not been informed about the role, location or even the existence of
the shadow govt that the administration began to deploy the morning of 9.11.01. An aide to House Minority Leader
Richard A. Gephardt D-MO said he similarly was unaware of the administration's move. Among Congress's GOP
leadership, aides to House Speaker J. Dennis Hastert R-IL, second in line to succeed the president if he became
incapacitated, and to Senate Minority Leader Trent Lott R-MS said they were not sure whether they knew. Aides to Sen. Robert C. Byrd D-WV said he had not been told. As Senate president pro tempore, he is in line to become president after the House speaker.
Bush acknowledged yesterday that the administration had taken extensive measures to guarantee "the continuity of govt," after it was revealed that about 100 top officials, spanning every executive branch department, have been sent to live & work in two fortified locations on the East Coast. This system, in which high-ranking
administrators are rotating in & out of the two sites, represents the first time a president has activated the
contingency plan, which was devised during the Cold War of the 1950s so that federal rule could continue if
Washington were struck by a catastrophic attack. It was unclear yesterday whether any federal documents --
prepared either by the current White House or by Bush's predecessors dating to Dwight D. Eisenhower -- specify
whether congressional leaders should be told if the plan is put into effect. At least one relatively general document, a 1988 executive order entitled "Assignment of Emergency Preparedness Responsibilities," said the White House's National Security Council "shall arrange for Executive branch liaison with, and assistance to, the Congress & the federal judiciary on national security-emergency preparedness matters."
The executive order, signed by President Ronald Reagan, is a precursor to documents outlining the contingency
plans in greater detail, which have not been made public. Regardless of whether Bush had an obligation to notify
legislative leaders, the congressional leaders' ignorance of the plan he set in motion could raise the question of how this shadow administration would establish its legitimacy with Congress in the event it needed to step in for a crippled White House. At least some members of Congress suggested yesterday that the administration should have conferred about its plans, which were first reported in The Washington Post yesterday. "There are 2 other branches of govt that are central to the functioning of our democracy," said Rep. William Delahunt D-MA, a member of the House Judiciary Committee. "I would hope the speaker & the minority leader would at least pose the question, 'What about us?' " Other lawmakers said they believe the federal govt lacks adequate plans to be certain that all 3 of its branches could function if terrorists disabled Washington.
White House officials did not elaborate on why the president did not consult with congressional leaders. "The
president addressed this earlier today, and I will have to refer you to his comments," spokesman Taylor Gross said. Speaking yesterday on a trip to Des Moines, Bush did not describe the deployment in detail. He said he had "an obligation as the president [to] put measures in place that, should somebody be successful in attacking
Washington, D.C., [would guarantee] there's an ongoing govt." "This is serious business," the president said. "I still take the threats that we receive from al Qaeda killers & terrorists very seriously." He made clear the extent to which he believes that terrorism poses a lingering threat to the U.S. govt. "That's one reason why the vice president was going to undisclosed locations," Bush told reporters. "And I will tell you, there are people still in this world who want to harm America," the president said, vowing that "we're doing everything in our power to protect the American people." At the Pentagon, which routinely rotates top military officials to secure locations, spokeswoman Victoria Clarke said: "It is absolute common sense, absolutely appropriate that the govt should have all the parts and all the pieces in place so in case of a crisis, in case of an emergency, the govt can & will continue to function."
The House & Senate each has a contingency plan. "Precautions have been taken and arrangements have
been made to move the work of Congress to another location," Daschle said. Bush made his remarks at the Printer Inc., a relatively small Des Moines business that the White House chose as a backdrop to tout changes the administration favors to the nation's pension laws. The printing plant assists workers with 401(k) plans and
encourages them to take an active role in saving money for retirement. For the second day in a row, Bush sought
to draw attention to his plans for what he has begun to call "retirement security," a combination of pension changes & redesign of Social Security. "You see, we're going to have to encourage more savings in America, because people are going to live longer lives," Bush said. Alluding to his more controversial view that workers should be allow to invest some of their Social Security taxes in the stock market, Bush said: "We ought to do everything we can in Washington, D.C., to encourage people to own a piece of the future."
His visit to Iowa of slightly more than three hours followed a formula the White House has used since New Year's,
as the president has begun to travel to states in which GOP candidates face tight races in the fall elections. These visits combine a forum to promote one of the administration's legislative priorities with a political fundraiser. Bush attended a luncheon on behalf of Rep. Tom Latham (R-Iowa), a quiet conservative first elected in the "Republican Revolution" of 1994. He has easily won reelection since then, but his prospects are far less certain this year because his district, until now heavily Republican, has been redrawn to include more Democratic voters. The luncheon raised $275,000 for Latham and $200,000 for the Iowa Republican Party. This was Bush's fourth trip to Iowa since becoming president. The state is significant to the GOP's struggle to retain its majority in the House and to win back control of the Senate this fall and to Bush's reelection aspirations in 2 years. Bush narrowly lost the state to Vice President Al Gore in 2000.
Rights caught in dragnet ¹
Hundreds detained by U.S. since 9.11.01 do not have usual legal protections. Officials defend practice,
but some worry innocent people will be hurt in rush to justice.
9.26.01 Richard A Serrano L.A.Times
Manassas Park, VA On the night of Sept. 11, Khalid S.S. Al Draibi was picked up here while
driving on a flat tire. He was arrested not far from Dulles Intl Airport, the departure point that morning of
American Airlines Flight 77, which was hijacked and then slammed into a side of the Pentagon. Al Draibi told police he was a U.S. citizen, but in truth he is Saudi Arabian. He was a drifter, in this country for several years with no family or permanent address. He once had taken pilot training, and law enforcement officials found a flight
instruction manual inside his white well-worn Lincoln Town Car. To make matters worse for Al Draibi, his name and birth date closely match those of one of the 21 suspected terrorists whose financial assets are being investigated. Al Draibi is still in custody. Is he a prime suspect?
His lawyer insists he is guilty of nothing and has been unjustly swept up in a law enforcement stampede following
the terrorist attacks on America. He is not a terrorist, the attorney says, but he is terrified. Al Draibi is among about 350 people who have been detained on immigration infractions or other violations, or as material witnesses in the terrorist attacks in New York and at the Pentagon, as well as the crash of a hijacked plane in Pennsylvania. Like Al Draibi, some have been in custody since the day of the attacks. Little is known about who they are and why they are being held. Authorities also are looking for nearly 400 others who they say may have information about the attacks.Yet, thus far, there has been no public announcement of any criminal charges directly related to the conspiracy.
In fact, federal authorities announced Tuesday that one of their material witness detainees, a San Antonio
radiologist, had been set free. Dr. Al-Badr Al-Hazmi's release Monday came after numerous statements by some
federal govt sources describing him as a key player who had provided funds for the hijackers. Because of
the dramatic circumstances of Sept. 11, and the public clamor for justice, federal law enforcement officials are
taking full advantage of a wide range of federal statutes in trying to determine who helped 19 hijackers kill as many as 6,900 people. They are using immigration laws to hold suspects indefinitely and are detaining others as material witnesses by claiming they may have some knowledge of the conspiracy. Authorities can keep the detainees in jail simply by telling a judge that they might flee the country.
Because the case is so complex, law enforcement officials say it is crucial that no suspects be exonerated until
there is a clearer picture of the scope of the conspiracy. Indeed, the detention process that authorities are so
vigorously invoking is legal. Authorities are able to hold these suspects without first establishing probable cause
that they have committed a crime, an otherwise fundamental tenet of the American judicial system. On Monday,
Atty. Gen. John Ashcroft defended the process before the House Judiciary Committee. "We are conducting this
effort with a total commitment to protect the rights and privacy of all Americans and the constitutional protections
we hold dear," Ashcroft said. But, he added, "we cannot wait for terrorists to strike to begin investigations and make arrests. The death tolls are too high, the consequences too great."
The idea of using material witnesses is a relatively new tool for federal law enforcement. It began primarily to help
authorities along the U.S.-Mexico border investigate crimes involving suspected criminals and witnesses who are
illegal immigrants and who might want to flee the U.S.. It also has been used effectively in pursuing
organized crime figures and in the case of a man who killed two people eight years ago in front of CIA
headquarters in Washington. But recent history shows that federal agents racing to make arrests in high-profile
crimes sometimes have ended up with the wrong person. In some instances, those suspects endured agonizing
ordeals. Some have never recovered.
Wen Ho Lee, a nuclear weapon scientist, was held for 278 days on suspicion of espionage before his release last year from a New Mexico jail. An angry federal judge declared the govt's treatment of Lee had "embarrassed
this entire nation and each of us who is a citizen of it." James Nichols, whose brother Terry was sentenced to life in prison for conspiracy in the 1995 Oklahoma City bombing, served 32 days before he was cleared of any criminal involvement. During his days and nights in custody, he was constantly watched by prison guards in the hope that he would break down and confess. Finally, a federal judge declared that "there is not an iota of evidence of dangerous acts" by the Michigan farmer.
Also in the aftermath of the Oklahoma City bombing, Palestinian American Abraham Ahmad was arrested,
photographed, fingerprinted, strip-searched, handcuffed, paraded before the public and held for three days before
he was set free. An angry mob surrounded his house, spat on his front door and threw trash on his lawn. "The
U.S. was always a dream for me and my family," a tearful Ahmad said later. The arrest "was against
everything I thought the U.S. was supposed to be." When radiologist Al-Hazmi was arrested, he was not
allowed to contact his lawyers at first and was interviewed without their being present, one of his attorneys said. His wife, who does not speak English, worried for his safety as the case against him seemed to build. "This is exactly the wave of nationalism and pride and fear of 'them against us' in which Hitler rose to power," said Cynthia Orr, one of Al-Hazmi's lawyers. "It's in that zeal of responding to such a horrible atrocity that we are allowing atrocities to occur at our own hands."
Other defense lawyers and constitutional law experts worry where the hunt for suspects will lead--whether to actual criminal charges or to abuse. Mark Tushnet, a law professor at Georgetown University, noted the irony involved in being a material witness. Many of those detained in the last two weeks, unlike defendants already charged with crimes, do not automatically have a right to bail and other legal protections. "There's something troubling about doing things to people you cannot even show have probably committed a crime," he said. Stanley Cohen, a New York attorney who has represented many in the country's Islamic community, said what is taking place "proves the judiciary is being bullied by the FBI in all this hysteria. They are operating a chamber of horrors." Added Daniel Dodson, a spokesman for the National Assn. of Criminal Defense Lawyers in Washington: "I get a sense there's been a de facto suspension of habeas corpus, which I guess is allowed during a declaration of war."
It is unclear how many of those arrested are being held as material witnesses. The overwhelming majority were
swooped up on immigration violations. Some others have been snared for identification fraud and other offenses.
Many appear to have been brought to the New York area, where they are being held in detention centers. William
M. Baker, former chief of the FBI's criminal investigative division, said in an interview that agents must proceed
slowly and weigh each clue and arrest as the complex case develops. It is helpful, he said, to keep suspects in jail while everything is being sorted out, and that may mean holding people longer, whether they are ultimately charged in the case or released. "You need to use whatever legal remedies you have, and this is one of them," Baker said. The added bonus of holding people, he said, is that it tends to "sweat" some of them out. "You are applying pressure," he acknowledged.
When James Nichols was released after 32 days, he was near tears, but he never gave authorities information that tied him along with his brother and Timothy J. McVeigh to the Oklahoma City bombing. Nichols recalled being
taken from his farm in the thumb of Michigan and placed in a federal prison facility near Ann Arbor. There he
lingered, first as a material witness and later, to keep him longer, on a much less serious charge of detonating
small explosives on his farm. "They didn't have one shred of evidence," he said in a recent interview. "It was just a big game." His cell was 6 by 8 feet, he said. It was in a special housing unit far from other prisoners. He was
deprived of a radio, he said, and not given access to a TV until he complained. Two guards watched him at the
same time, all the time, taking notes on every word he said, on his mood, his attitude. "They hoped that I would
break down," Nichols said. "It's all part of their psychological warfare. . . . They wanted me to say whatever they
wanted, like I was some terrorist mad dog."
How the cases of those now being held will end is not known. Al Draibi, the 32-year-old sometime cabdriver, tried
to pass himself off as a U.S. citizen because he was frightened about being stopped on the day of the attacks, said his lawyer, Drewry Hutcheson Jr. He first was noticed because he was driving on the wheel rim of a flat tire, but then authorities quickly spotted some warning signs. He appeared to be deceptive. He seemed to be rootless,
without a real home, and told officers he was trying to get both to Richmond, Va., and to Washington. He also said he wanted to get a ticket from the Saudi Embassy to fly to Saudi Arabia. The flight manual found in his car was another red flag. FBI agents later learned Al Draibi had taken flight lessons several years ago in Bessemer, AL, and that he always paid in cash. But he never earned his wings, said Shawn Patterson, director of marketing for the Bessemer Aviation School. "He wanted to cut corners and not really follow procedures," Patterson said. "He just seemed to be a lazy pilot. He did things that jeopardized safety, and his instructors wouldn't fly with him
anymore."
Then, on Labor Day, just eight days before the terrorist hijackings, Al Draibi was stopped by the police chief in tiny
Guin, AL., for running a red light and driving without proof of insurance. Chief Bryan McCraw said Al Draibi seemed to be in a hurry. He complained that he had already gotten a traffic ticket that day in Mississippi and did not need another one. "He was belligerent; he just kept running his mouth," McCraw said. "I looked inside his car and he had papers scattered all about. I looked a little further in and saw a blanket and a pillow in the back seat." Were these signs of someone anxious and hot-headed? Of someone determined about something, someone on the move? Hutcheson, his lawyer, insists Al Draibi has done nothing to deserve being jailed and treated as a terrorist. "He said to me, 'This was not my lucky day. I've been arrested for what some other people did,' " Hutcheson said.
Hackers face life imprisonment under 'Anti-Terrorism' Act
Justice Dept proposal classifies most computer crimes as acts of terrorism.
9.22.01 Kevin Poulsen Security Focus
Hackers, virus-writers and web site defacers would face life imprisonment without the possibility of parole under
legislation proposed by the Bush Administration that would classify most computer crimes as acts of terrorism. The Justice Dept is urging Congress to quickly approve its Anti-Terrorism Act (ATA), a 25 page proposal that would expand the govt's legal powers to conduct electronic surveillance, access business records, and detain
suspected terrorists. The proposal defines a list of "Federal terrorism offenses" that are subject to special treatment under law. The offenses include assassination of public officials, violence at intl airports, some bombings and homicides, and politically-motivated manslaughter or torture.
Most of the terrorism offenses are violent crimes, or crimes involving chemical, biological, or nuclear weapons. But the list also includes the provisions of the Computer Fraud and Abuse Act that make it illegal to crack a computer for the purpose of obtaining anything of value, or to deliberately cause damage. Likewise, launching a malicious program that harms a system, like a virus, or making an extortionate threat to damage a computer are included in the definition of terrorism. To date no terrorists are known to have violated the Computer Fraud and Abuse Act. But several recent hacker cases would have qualified as "Federal terrorism offenses" under the Justice Dept proposal, including the conviction of Patrick Gregory, a prolific web site defacer who called himself "MostHateD"; Kevin Mitnick, who plead guilty to penetrating corporate networks and downloading proprietary software; Jonathan "Gatsby" Bosanac, who received 18-months in custody for cracking telephone company computers; and Eric Burns, the Shoreline, Washington hacker who scrawled "Crystal, I love you" on a U.S. Information Agency web site in 1999. The 19-year-old was reportedly trying to impress a classmate with whom he was infatuated.
The Justice Dept submitted the ATA to Congress late last week as a response to the Sept 11th terrorist
attacks in New York, Washington and Pennsylvania that killed some 7,000 people. As a "Federal terrorism
offense," the 5 year statute of limitations for hacking would be abolished retroactively, allowing computer crimes
committed decades ago to be prosecuted today, and the maximum prison term for a single conviction would be
upped to life imprisonment. There is no parole in the federal justice system. Those convicted of providing "advice or assistance" to cyber crooks, or harboring or concealing a computer intruder, would face the same legal
repercussions as an intruder. Computer intrusion would also become a predicate offense for the RICO
statutes.
DNA samples would be collected from hackers upon conviction, and retroactively from those currently in custody
or under federal supervision. The samples would go into the federal database that currently catalogs murderers
and kidnappers. Civil liberties groups have criticized the ATA for its dramatic expansion of surveillance authority,
and other law enforcement powers. But Attorney General John Ashcroft urged swift adoption of the
measure Monday. Testifying before the House Judiciary Committee, Ashcroft defended the proposal's definition of terrorism. "I don't believe that our definition of terrorism is so broad," said Ashcroft. "It is broad enough to include things like assaults on computers, and assaults designed to change the purpose of govt." The Act is
scheduled for mark-up by the committee Tuesday morning.
Global economic meltdown
7.4.02 Al Martin
In other news, the Office of Homeland Security has ordered the FBI to search public library records.
This
program is actually part of a national database effort undertaken by Homeland Security pursuant to the Office of
Internal Security's CTAC Program (Civilian Threat Assessment Classification). They're looking for any books that "espouse views contrary to the security of the state."
This is from the CTAC Memorandum conducted under the auspices of the Office of Internal Security, part of
Homeland Security program to establish a national database on all citizens, a national profile on all citizens by the
Off. of Internal Security to assign every American citizen a CTAC classification number.
Numbers will go from 1 to 8; 1 means that you are a loyal naïve flag waving GOP white heterosexual blond haired blue eyed.
Any citizen with a CTAC classification number of 4 or above will have their file referred to the yet to be created
Office of State Security, which will be under the auspices of the Defense Dept. The only thing that is holding up the creation of the Office of State Security is the overturning of posse comitatus. This can't be done until domestic law enforcement has been militarized.
Ordeal by hearsay
re The File auth. Penn Kimball
12.11.83 Thomas Powers N.Y. Times
Until now, the life of Penn Townsend Kimball has been without public blemish. He was editor of the college paper at Princeton and a Rhodes Scholar at Oxford, and then rose from private to captain as a marine in the Pacific during World War II.
Since then he has held a number of plum jobs in journalism, was an aide to Gov. Chester Bowles of Connecticut and Gov. W. Averell Harriman of New York, and he is a professor of journalism at Columbia University. He has never been divorced or arrested and, until now, has never caused a scene in a public place.
About the only thing you can say against Penn Townsend Kimball is that he had a shaky grasp of the mechanics of self-advancement. Every time one of his jobs began to look like the beginning of a serious career, he quit, generally for something doubtful but interesting like trying to elevate The New Republic into a liberal rival of Time and Newsweek, or trying to rescue Collier's magazine. It's an amiable fault.
Now Kimball published a book drawing the attention of the world to a fact that had been enshrouded in secret govt files for more than 30 years. In 1946, after 3 separate investigations by State Dept and F.B.I., the State Dept concluded Kimball was a Communist sympathizer, conceivably even a secret member of the party, too clever by half and unfit to be trusted with his country's secrets.
Kimball tells us, he was declared ''a definite security risk". In addition to revealing the charge, Kimball directed attention of govt investigators to evidence tending to support their case but overlooked back in 1946. One might safely assure him that, like other books, his will stir the interest of counterintelligence specialists at the C.I.A., who still sift through ancient files trying to unravel the code names of several dozen Soviet agents of the 1930's gleaned from intercepted cable traffic collectively referred to as the Venona material.
Until 5 years ago, Kimball did not even know he had a security problem. Now he hastened to tell the world. Why?
One reason was a chance discovery that 30 years earlier Arthur Schlesinger Jr. had described Kimball in a memo ''as a smart and cool party liner, at least.'' Schlesinger, then a leader of Americans for Democratic Action, had prepared the memo for the A.D.A., Mr. Kimball says, and circulated it ''among friendly and influential journalists'' after meeting Kimball and other editors of The New Republic at a staff lunch in 1947.
In 1977, an academic friend of Kimball found a copy of the Schlesinger memo among the papers of the columnist Joseph Alsop in the Library of Congress. Kimball then remembered that in 1950 Sen. William Benton told him Schlesinger had telephoned to warn him against appointing Kimball his executive secretary on the grounds he was either a Communist or a fellow traveler.
Benton checked with a friend at State Dept who told him there was something in a file about Kimball's employment by the liberal New York newspaper PM in the 1940's. Benton, who had once owned stock in PM, hired Kimball.
But mention of Schlesinger's memo, even though it was not part of a govt dossier, piqued Kimball's interest in the govt file he vaguely remembered, and he formally requested to see it under the Freedom of Information Act.
Thereupon followed 5 years of what Kimball calls ''trial by postal service'' during which he prodded govt agencies by mail and received irregular replies while govt chewed its way through hundreds of pages of documents, inked out the names of ''confidential informants'' and slowly released Mr. Kimball's files in dribs and drabs between 1978 and 1982.
a routine case of small consequence among the thousands of security investigations conducted over the years.
In 1946, Kimball had applied to join the Foreign Service. He passed the various examinations and was offered a post in Saigon. But he decided to take a job with Time magazine instead and requested a postponement. It was granted. His application had triggered a routine background investigation.
One informant suggested that Kimball's employment at PM ''might indicate his sympathies". The F.B.I. was invited to join the case by State Dept dir. of security Robert L. Bannerman. The initial check concluded Kimball was no security risk, but a second said he was.
A third investigation was undertaken when another official at State thought the latter conclusion rested on shaky ground since it consisted mainly of hearsay and disregarded the testimony of leading journalists and govt officials like David Lawrence of U S News and World Report, Kenneth Crawford of Newsweek and Philip Kaiser, later an ambassador under Presidents Kennedy and Carter, who said Kimball was able and conscientious, loyal and reliable, a model citizen eminently qualified to serve govt.
But along the way unnamed informants, peripheral figures in Kimball's life, some of whom he managed to identify after he got his file, kept saying he was a liberal, or ''Communistic,'' or at least definitely not on the side of the anti-Communists.
New York Post editor and columnist James Wechsler, who died recently and who had worked at PM, told the investigators that Kimball was not on his side, the antiCommunist side, at least in the ideological wars that bedeviled PM and split the members of the American Newspaper Guild who worked there into bitter factions.
Kimball hoped that Wechsler's testimony now would clear him in a new hearing if he could obtain one. Wechsler did everything he could to avoid discussing Kimball's file with him, but finally he did. Kimball says, ''Once I knew the identity of a confidential source, I could persuade a fair-minded person to look at the case against me in the proper context. Wechsler, for what it was worth, had denied the accuracy of the statements attributed to him and cast doubt on the competence of the special agents who had interviewed him".
A ''supervisor'' at Time drove in the final nail with a claim that Kimball was ideologically untrustworthy. Kimball managed to guess the identities of some Government informants, but others eluded him and he made a determined, even obsessive, attempt to figure out who they were.
''It takes a while to sense the full bouquet of a govt security file,'' he writes. The ''charges'' against him boil down to casual remarks overheard in corridors by colleagues. In November 1946, Bannerman summed up the case against Kimball as ''a definite security risk'' and the verdict was accepted by the State Dept.
Thereafter his file stirred occasionally as various govt agencies asked for a look. In the late 1950's, the C.I.A. took an interest, apparently when it was considering approaching Kimball about a job of some kind. The only complete copy of the file now resides at the C.I.A., since the F.B.I., the State Dept and the Office of Naval Intelligence (which had a file because Mr. Kimball had been in the Marines) all claim to have destroyed their documents.
It is possible that the file squelched Kimball's chances of getting various govt jobs at one point or another; the prospects mysteriously evaporated. Kimball doesn't know. He remarks that Bannerman's name disappears from State Dept biographic registers in 1947.
''The hand of God?'' He wonders about the disappearance of the man who found him unworthy of trust when he was young and trying to pick up his career at the end of World War II. ''Off to some new secret mission?'' Again Kimball doesn't know. But his second guess, as it turns out, was the right one.
Bannerman joined the Office of Security at the C.I.A. when the agency was founded in 1947, rose to become director of security in 1963 and later assistant director for administration before retiring in 1970. He now lives in Florida, where I reached him by telephone. He said, predictably, that he remembers nothing whatever of the case of Penn Kimball. Many thousands of security investigations crossed his desk over the |