Monday, July 19, 2010

Top Secret America

The Washington Post has launched its feature "Top Secret America."   The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."   

The project also includes a searchable online database detailing private contractors and specific locations.  The Editorial explanation is worth reading; here is a bit of it:

The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

Picture 2

The feature should be of interest to anyone working on state secrets doctrine and theory.   The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable.  The Washington Post explanation above also implicates First Amendment concerns.

RR

http://lawprofessors.typepad.com/conlaw/2010/07/top-secret-america.html

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Following 9/11 Bush II set into motion counter-surveillance networks, that allowed NSA illegal wiretaps and surveillance of Americans private emails—allegedly to prevent terrorists attacking America. Subsequently U.S. Government counter-surveillance networks have become huge, supported by thousands of government employees and private contractors, many duplicating work. There are now tens of thousands of U.S. Government counter-surveillance agents, employees and private contractors monitoring U.S. Citizens private records and communications with no Congress or U.S. Citizens’ oversight. It is probable spies have already infiltrated private contractor industries stealing or buying vast amounts of intelligence information.

What this report does not mention, in the U.S., government-private contractors and their operatives work so close with police exchanging information to arrest Americans and or share in the forfeiture of their assets, they appear to have merged with police. Similarly in 1933 after the German Parliament building was set afire, Hitler used the fire as vehicle to use taxpayer money to expand his private police, the Gestapo and increasing merged it with German national security. Even before the Gestapo was consolidated with the German Government, the Gestapo arrested Citizens and confiscated private property with no legal authority." However U.S. Government has already granted that power to private contractors. In 1939 all German Police agencies including the Gestapo were put under the control of the "Reich Main Security Office” the equivalent of U.S. Homeland Security.

Can History repeat itself? It is foreseeable that should there be a radical change in U.S. Government, many of the current government private contractors would continue working for e.g. a fascist U.S. Government; communist or other despot government against the interests of Americans. Consider the German police first work for a democracy; then under Hitler worked for the Nazi Fascists; then worked for the Soviet Union running the East German Police (Stasi) believed to be the world most oppressive police force until the German Wall came down.

Now consider the power Congress, perhaps negligently has given police and Black Box counter-surveillance entities; including private contractors to spy on U.S. Citizens. Under Bush II NSA illegally wiretapped your phone, fax and private email communications: Now NSA will monitor your Internet. In 2008 Telecoms were granted government immunity after they helped U.S. Government spy on millions of Americans’ electronic communications. Since, Government has not disclosed what happened to NSA’s millions of collected emails, faxes and phone call information that belong to U.S. Citizens? Could those wiretaps perhaps illegal, become a problem for some Americans? Neither Congress nor the courts—determined what NSA electronic surveillance could be used by police or introduced into court by the government to prosecute Citizens.

In 2004, former Attorney General John Ashcroft asked government prosecutors to review thousands of old intelligence files including wiretaps to retrieve information prosecutors could use in “ordinary” criminal prosecutions. That was shortly after a court case lowered a barrier that prior, blocked prosecutors from using illegal-wire tap evidence in Justice Dept. “Intelligence Files” to prosecute ordinary crimes. It would appear this information, may also be used by government to prosecute civil asset forfeitures.
See: http://www.securityfocus.com/news/5452

Considering that court case, it appears NSA can share its electronic-domestic-spying with government contractors and private individuals that have security clearances to facilitate the arrest and forfeiture of Americans’ property—-to keep part of the bounty. Police too easily can take an innocent person’s hastily written email, fax, phone call or web post out of context to allege a crime or violation was committed to cause an arrest or asset forfeiture.

There are over 200 U.S. laws and violations mentioned in the Civil Asset Forfeiture Reform Act of 2000 and the Patriot Act that can subject property to civil asset forfeiture. Under federal civil forfeiture laws, a person or business need not be charged with a crime for government to forfeit their property. Again, in the U.S., private contractors and their operatives work so close with police exchanging information to arrest Americans and or share in the forfeiture of their assets, they appear to merge with police.

Rep. Henry Hyde’s bill HR 1658 passed, the “Civil Asset Forfeiture Reform Act of 2000” and effectively eliminated the “statue of limitations” for Government Civil Asset Forfeiture. The statute now runs five years from when police allege they “learned” that an asset became subject to forfeiture. With such a weak statute of limitations and the low standard of civil proof needed for government to forfeit property “A preponderance of Evidence”, it is problematic law enforcement and private government contractors will want access to NSA and other government wiretaps perhaps illegal and Citizens’ private information U.S. Government agencies glean monitoring the Internet, to arrest Americans and to seize their homes, inheritances and businesses under Title 18USC and other laws. Of obvious concern, what happens to fair justice in America if police and government contractors become dependent on “Asset Forfeiture” to pay their salaries and operating costs?

Under the USA Patriot Act, witnesses including government contractors can be kept hidden while being paid part of the assets they cause to be forfeited. The Patriot Act specifically mentions using Title 18USC asset forfeiture laws: those laws include a provision in Rep. Henry Hyde’s 2000 bill HR 1658—for “retroactive civil asset forfeiture” of “assets already subject to government forfeiture”, meaning "property already tainted by crime" provided “the property” was already part of or “later connected” to a criminal investigation in progress" when HR.1658 passed. That can apply to more than two hundred federal laws and violations Government can forfeit property—requiring only “A Preponderance of Civil Evidence” little more than hearsay.

Posted by: Ross Wolf | Jul 20, 2010 11:14:12 AM

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