Daily Archives: April 3, 2010

Federal Judge Finds N.S.A. Wiretaps Were Illegal

NY Times | Mar 31, 2010

By CHARLIE SAVAGE and JAMES RISEN

WASHINGTON — A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.

The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.

The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”

That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

Because the government merely sought to block the suit under the state-secrets privilege, it never mounted a direct legal defense of the N.S.A. program in the Haramain case.

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”

A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”

The ruling is the second time a federal judge has declared the program of wiretapping without warrants to be illegal. But a 2006 decision by a federal judge in Detroit, Anna Diggs Taylor, was reversed on the grounds that those plaintiffs could not prove that they had been wiretapped and so lacked legal standing to sue.

Several other lawsuits filed over the program have faltered because of similar concerns over standing or because of immunity granted by Congress to telecommunications companies that participated in the N.S.A. program.

By contrast, the Haramain case was closely watched because the government inadvertently disclosed a classified document that made clear that the charity had been subjected to surveillance without warrants.

Although the plaintiffs in the Haramain case were not allowed to use the document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public information — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.

Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs.

But Judge Walker limited liability in the case to the government as an institution, rejecting the lawsuit’s effort to hold Robert S. Mueller III, the F.B.I. director, personally liable.

Mr. Eisenberg said that he would seek compensatory damages of $20,200 for each of the three plaintiffs in the case — or $100 for each of the 202 days he said they had shown they were subjected to the surveillance. He said he would ask the judge to decide how much to award in punitive damages, a figure that could be up to 10 times as high. And he said he and his colleagues would seek to be reimbursed for their legal fees over the past five years.

The 2005 disclosure of the existence of the program set off a national debate over the limits of executive power and the balance between national security and civil liberties. The arguments continued over the next three years, as Congress sought to forge a new legal framework for domestic surveillance.

In the midst of the presidential campaign in 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the program. As a senator then, Barack Obama voted in favor of the new law, despite objections from many of his supporters. President Obama’s administration now relies heavily on such surveillance in its fight against Al Qaeda.

The overhauled law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said.

But since Mr. Obama took office, the N.S.A. has sometimes violated the limits imposed on spying on Americans by the new FISA law. The administration has acknowledged the lapses but said they had been corrected.

Auctioneer arrested, fined £1,000 and put in DNA database for selling oak cabinet containing birds’ eggs

Auction: Jim Railton was arrested after selling this cabinet with 100-year-old birds eggs inside

Court ordeal for auctioneer fined £1,000 for selling oak cabinet containing bird eggs

Daily Mail | Apr 1, 2010

By Paul Sims

When Jim Railton was asked to sell an Edwardian oak cabinet at his auction house he thought nothing of the 100-year-old birds eggs inside.

The parish councillor put an estimate of £30 to £40 on the chest of drawers, moved it to one side and simply waited for the day of sale.

He had almost forgotten about it until police arrived with a search warrant and arrested him for advertising the cabinet – complete with eggs – for sale.

The 57-year-old was driven to a police station where his fingerprints were taken and his mouth swabbed for a DNA sample, before enduring a tape-recorded interview.

He thought that was heavy-handed and went to court yesterday expecting to receive just an absolute discharge.

Instead, magistrates fined him £1,000 and ordered him to pay £70 costs and a £15 victim’s surcharge.

Outside court Mr Railton, who has been an auctioneer for two decades, said: ‘I am amazed. To give me a criminal record on the basis of what I have done is totally inequitable. This is more Big Brother. These kind of things are damaging the reputation of the legal system. I’m thinking of appealing but it’s the hassle.’

He had no idea that under the 1981 Wildlife and Countryside Act it is illegal to sell eggs but not illegal to own them.

Mr Railton said he never thought to remove the eggs. He added: ‘It was obvious they were very old and most were broken. I just thought they were of no use.’

It was last October that a NHS executive took the chest to Mr Railton’s auction house in Alnwick, Northumberland, who put it in the brochure for a forthcoming sale.

A member of the public noticed the birds eggs – including herring gull and guillemot – and told the Royal Society for the Protection of Birds which called in the police.

The legislation was intended to protect endangered species from rogue collectors. The eggs in the drawers, however, came from some of the most common species.

A former RSPB member, Mr Railton admitted exposing for sale wild birds eggs.

Christopher Brown, defending, told Alnwick Magistrates Court: ‘You can recognise this is a technical breach of the law and therefore an absolute discharge could be an adequate marking of this matter.’

But magistrate Terry Broughton told Mr Railton: ‘As an auctioneer you should have known, and ignorance of the law is never a defence.’

The eggs will be returned to the cabinet owner who has moved to Berkshire. He was interviewed by police but not charged.

A spokesman for the RSPB said: ‘We are very happy with the result. The fine imposed by the magistrates shows the importance of these cases.’

Feds: Homes with Chinese drywall must be completely gutted

Feds: Homes with Chinese drywall must be completely gutted

AP | Apr 3, 2010

By CAIN BURDEAU

NEW ORLEANS — Thousands of U.S. homes tainted by Chinese drywall should be completely gutted, according to new guidelines released Friday by the Consumer Product Safety Commission.

The guidelines say electrical wiring, outlets, circuit breakers, fire alarm systems, carbon monoxide alarms, fire sprinklers, gas pipes and drywall need to be removed.

“We want families to tear it all out and rebuild the interior of their homes, and they need to start this to get their lives started all over again,” said Inez Tenenbaum, chairwoman of the commission, the federal agency charged with making sure consumer products are safe.

About 3,000 homeowners, mostly in Florida, Virginia, Mississippi, Alabama and Louisiana, have reported problems with the Chinese-made drywall, which was imported in large quantities during the housing boom and after a string of Gulf Coast hurricanes.

The drywall has been linked to corrosion of wiring, air conditioning units, computers, doorknobs and jewelry, along with possible health effects. Tenenbaum said some samples of the Chinese-made product emit 100 times as much hydrogen sulfide as drywall made elsewhere.

The agency continues to investigate possible health effects, but preliminary studies have found a possible link between throat, nose and lung irritation and high levels of hydrogen sulfide gas emitted from the wallboard, coupled with formaldehyde, which is commonly found in new houses.

U.S. Sen. Bill Nelson, D-Fla., said now the question is who pays to gut the homes.

“The way I see it, homeowners didn’t cause this. The manufacturers in China did,” Nelson said. “That’s why we’ve got to go after the Chinese government now.”

Southern members of Congress have sought to make it easier to sue Chinese manufacturers and to get the Federal Emergency Management Agency to help homeowners pay for costs not covered by insurance. They also say the U.S. needs to pressure the Chinese government, which allegedly ran some of the companies that made defective drywall.

About 2,100 homeowners have filed suit in federal court in New Orleans against Chinese manufacturers and U.S. companies that sold the drywall. U.S. District Judge Eldon Fallon is expected to rule soon in a pivotal case against the Knauf Plasterboard Tianjin Co., the only Chinese company that has responded to U.S. suits.

Separate claims by thousands more homeowners against Chinese manufacturers are pending, said Jordan Chaikin, a Florida lawyer whose firm represents about 1,000 homeowners.

They are “continuing to live in their homes with Chinese drywall, patiently waiting for this thing to be resolved so they can move on with their lives,” Chaikin said. “We’re not waiting for the government to move quicker than we are in the courts.”

In some cases, homebuilders have paid to gut and rewire homes. In others, homeowners who can afford it have paid for the work themselves. Knauf Plasterboard has offered to pay for remediation in homes where its defective drywall was installed.

Daniel Becnel, a New Orleans lawyer representing Chinese drywall plaintiffs, including Sean Payton, the head coach of the Super Bowl champion New Orleans Saints, said the government guidelines issued Friday were “word for word what our experts said.”

He also said Congress should give homeowners grants to cover the cost of home gutting.

“Get these people out of this environment,” he said. “You’re making these people sicker and sicker and sicker. You will have long-term effects.”

In Cape Coral, Fla., Joyce Dowdy, 71, and her husband Sonny, 63, plan to move out of their $150,000, 1,600-square-foot home while it is gutted to get rid of tainted Chinese drywall.

Joyce Dowdy said she suffers from nose bleeds and her husband has a persistent cough. They blame the drywall.

“We can’t live like this anymore,” Joyce Dowdy.

They’re borrowing money to do the gutting, which means that instead of a mortgage-free retirement they will be paying monthly bills cover the costs of repair.

“It’s costing us as much as we paid for the house,” Joyce Dowdy said. “But we can’t just walk away … Our house is worth nothing at the moment.”

But Randy Noel, past president of the Louisiana Home Builders Association, said the Chinese drywall problem has been exaggerated. He called the new guidelines “overkill.”

“Nobody has come up with a house yet that has caught on fire from the Chinese drywall, no one has come up yet with a house that leaks water or gas because of Chinese drywall,” he said.

He has examined numerous homes containing Chinese drywall and found minor problems, he said.

“It’s a black soot on top of the copper, brass and silver,” he said. “You wipe the stuff off and it looks as good as new.”

US pilots on drugs cleared for take off

Depressed pilots may fly with medication, FAA says

The agency approves four drugs it says can treat the condition without adverse side effects. Pilot groups hail the move.

LA Times | Apr 3, 2010

Pilots taking antidepressants will be permitted to fly after U.S. regulators dropped a decades-old ban on four drugs.

Risks from side effects such as drowsiness that are associated with the medications used to treat depression don’t pose a safety threat, the Federal Aviation Administration said Friday.

“We have a better understanding of the drugs,” FAA Administrator Randy Babbitt said. “We know more about the illness, we know more about how to treat it.”

The policy, which goes into effect Monday, may cover as many as 10,000 pilots, said Fred Tilton, the federal air surgeon.

Organizations led by the Aircraft Owners and Pilots Assn., which represents 415,000 small-plane pilots, and the Air Line Pilots Assn., the largest union for commercial cockpit crews, had sought to lift the restriction. The FAA said its action was consistent with the views of the groups.

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“We really need to remove the stigma, if you will, of being treated for an illness,” Babbitt said.

The FAA decision reflects extensive study of the medication issue, said Bill Voss, president of the nonprofit Flight Safety Foundation in Alexandria, Va.

“The FAA knows this is going to be a controversial ruling because of the stigma attached to depression,” Voss said. “I’m sure they doubly did their homework.”

Under the policy, pilots can seek FAA permission to take one of four drugs — Eli Lilly & Co.’s Prozac, Pfizer Inc.’s Zoloft or Forest Laboratories Inc.’s Celexa or Lexapro. Prozac, Zoloft and Celexa have lost patent protection and are available in generic form.

All four drugs are in a class of antidepressants called SSRIs, which help regulate mood by blocking reabsorption of the chemical serotonin, believed to play a role in behavior. The drugs give the brain access to more serotonin.

FAA policy bans pilots from flying if they have depression because the condition can be distracting in the cockpit and pose a safety risk, according to the agency. Under the new policy, pilots with depression can seek treatment with one of the four medications and keep flying.

Steven Chealander, a former American Airlines captain and National Transportation Safety Board member, called the policy a “big deal” for pilots who would face disqualification because they take antidepressants.

“A lot of guys I know for various reasons haven’t been able to get their medical” certificate because of health conditions or prescriptions, said Chealander, now a vice president of training for Airbus in Miami. “You’ve got to be in such good medical condition.”

An estimated 20 million people in the U.S. have depression, which can cause thoughts of suicide, sadness and feelings of worthlessness, according to the National Institutes of Health. Pilots who show success controlling their depression for 12 months using one of the medications will be able to seek permission to fly

Official: Children MUST go through the naked body scanners

“Why risk giving perverts and those looking to make a fast buck the opportunity to spy on us?”

– Dylan Sharpe, Big Brother Watch

Children must go through airport scanners, says Adonis

BBC | Mar 29, 2010

Children selected to walk through the full body scanners at airports must do so, the transport secretary has said.

Lord Adonis, announcing a consultation on a code of conduct for the scanners, said to exclude children risked undermining the security measures.

Civil rights groups had raised concerns that the resulting images would breach child pornography laws.

The scanners are being introduced after a failed attempt to blow up a plane in the US in December.

The government’s code of practice on the scanners said airport security staff had all been vetted, including a check of criminal and security service records.

‘Sensitive’ staff

They had also been trained in aviation security and “customer service” to carry out their jobs “in a sensitive and proportionate manner.”

The government said it was aware of concerns under the Protection of Children Act, but that there were also provisions for the prevention, detection or investigation of crime.

The government described its privacy controls as sufficient, but added that “some individuals, such as trans-gendered, disabled or elderly passengers, or passengers with particular religious or other beliefs might, notwithstanding the existing privacy controls, have concerns about undergoing a security scan.”

It said staff would be able to handle such situations “sensitively”.

Dylan Sharpe, campaign director of Big Brother Watch, said: “It beggars belief that the government is to force young children through these body scanners.

“Only last week a security guard was exposed as having abused the technology. How many more cases like that do we need before the transport secretary admits that the operators have not had sufficient training and vetting to handle this technology?

“Security minister Lord West admits that the scanners are only 50-60% effective, so why risk giving perverts and those looking to make a fast buck the opportunity to spy on us?”

‘Naked’ images

The launch of the consultation comes after a Heathrow Airport security guard was given a police warning after he was allegedly caught staring at images of a female colleague in a body scanner.

The scanners, to be phased in gradually, will initially operate alongside metal detectors, and are eventually planned for use for all flights in and out of the UK.

The £80,000 full body scanners produce “naked” images of passengers.

They work by beaming electromagnetic waves on to passengers while they stand in a booth. A virtual three-dimensional image is then created from the reflected energy.

Airports around the world began introducing them after Nigerian Umar Farouk Abdulmutallab, now in custody, was accused of trying to detonate a bomb on a plane bound for the US on 25 December.

. . .

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Sneaky flying spy cameras provoke civil liberty fears

Civil liberties groups have condemned a plan for Scottish police forces to spy on ordinary citizens

dailyexpress.co.uk | Mar 29, 2010

By Rod Mills

CIVIL liberties groups have condemned a sinister new plan for Scottish police forces to spy on ordinary citizens using unmanned surveillance drones.

The Big Brother-style move will mean the public could be monitored constantly, under the pretext of a crime crack-down.

The Association of Chief Police Officers in Scotland (ACPOS) has joined forces with their English counterpart to form the Unmanned Aerial Systems Steering Group, which meets regularly to discuss the use of the planes, and reports to the Home Office.

The drones have already been tested by Strathclyde Police who used one in rescue operations in rural Argyll.

Scotland’s largest police force is keen to be at the forefront of the new technology. But pressure groups yesterday warned the step was being taken without the consent or support of the public and risked transforming Scotland into a “surveillance state”.

Alex Deanie, of Big Brother Watch, said: “It’s pretty scary that more and more police forces are considering using these.

“They invade our privacy and are being brought in without proper public consultation or support. We need a proper debate about the use of this type of surveillance and its effect on civil liberties before the police start to use these devices.”

There are two types of the military-designed drones that are being looked at by police. The first is a remote-controlled helicopter with CCTV cameras and infra red imaging built in. Flying up to 300 feet at 30mph, they are being tested by Merseyside Police.

But it is the second type that is causing the most concern – flying at 20,000 feet it is invisible to the human eye.

Patrick Harvie, leader of the Scottish Green Party, said: “Some people in the Home Office won’t be happy until they have everyone under 24-hour surveillance and every step towards that should be resisted.” Yesterday Tory justice spokesman Bill Aitken backed the plans, adding: “There are perhaps civil liberties questions, but basic and more important questions are whether or not we want to cut crime.”

Arms manufacturer BAE Systems is adapting the planes – currently used by the Army in Afghanistan – for the police forces to test. A spokesman for ACPOS yesterday said: “The steering group was set up to consider the implications for policing of such technology.”

Vatican: Attacking Pope for his role in child abuse scandal ‘akin to anti-Semitism’

Vatican officials have tried to shift the blame for the abuse scandal

London Times | April 2, 2010

Richard Owen in Rome and Roger Boyes in Berlin

The Pope’s preacher today likened recent attacks on the pontiff over the Catholic sex abuse scandal to the “most shameful acts of anti-Semitism”.

The controversial intervention by Father Raniero Cantalamessa, preacher to the papal household, came as one Catholic leader attempted to draw a line under the affair.

In Germany Archbishop Robert Zollitsch, chairman of the German Bishops’ Conference, said that the Church had committed serious mistakes and done too little to help the victims of priestly abuse.

“The caring responsibility towards the victims was insufficient in the past because of our own disappointment at the painful failure of the perpetrators, and out of a falsely understood concern for the standing of the church,” he said.

But in Rome, as the Pope prepares to make a major address to the world for Easter Sunday, the Vatican is fighting back.

Father Cantalamessa, noting that this year the Jewish festival of Passover and Easter fell during the same week, said that Jews throughout history had been the victims of “collective violence” and drew a comparison with current attacks on the Church over the scandal.

Speaking during a ceremony at St Peter’s Basilica commemorating Christ’s Passion, he read to the congregation, which included the Pope, part of a letter that he had received from an unidentified Jewish friend, who said that he was following “with indignation the violent and concentric attacks against the church, the Pope and all the faithful of the whole world”.

“The use of stereotypes, the passing from personal responsibility and guilt to a collective guilt remind me of the more shameful aspects of anti-Semitism,” Father Cantalamessa said his friend wrote to him.

In the sermon he referred to the sexual abuse of children by clergy, saying: “Unfortunately, not a few elements of the clergy are stained by the violence.” But Father Cantalamessa said that he did not want to dwell on the abuse of children, saying: “There is sufficient talk outside of here.”

The Vatican later distanced itself from Father Cantalamessa’s remarks. Father Federico Lombardi, the Pope’s spokesman, said Father Cantalamessa’s remarks were “not the official position of the Church” and the papal preacher had not been speaking “as a Vatican official”.

However, Vatican officials have tried to shift the blame for the abuse scandal engulfing the church onto the previous Pope John Paul II and the media.

Cardinal Christoph Schönborn, the Archbishop of Vienna — a staunch supporter of the pontiff and seen as a possible successor — laid the blame on John Paul II and his close advisers for failure to take action against Cardinal Hans Hermann Groer, Cardinal Schönborn’s predecessor as Archbishop of Vienna and a serial child abuser.

Cardinal Schönborn told Austrian television and L’Osservatore Romano, the Vatican newspaper, that as head of the Congregation for the Doctrine of the Faith, which dealt with clerical sex abuse, the Pope had pressed John Paul in vain to investigate Groer. He eventually stepped down in 1995 after being accused of sexually molesting a schoolboy.

After Cardinal Groer resigned allegations surfaced that he had also sexually abused young monks. He was never defrocked, however, and died in Germany in 2003. Cardinal Schönborn said that Vatican officials — who he did not name — had persuaded John Paul not to investigate Cardinal Groer because of the bad publicity that it would give the Church.

“I still remember very clearly the moment when Cardinal Ratzinger told me with sadness that the other side had prevailed,” Cardinal Schönborn said. He added that the Pope is not “someone who covers things up”.

“Having known the Pope for many years, I can say that is certainly not true … I have known him for 37 years and he has always been in favour of shedding light on these cases, something that was not always to the Vatican’s liking,” he said.

As well as from discrediting the Pope’s predecessor, the Vatican has also launched a counter-attack against the media for its reporting of the sex abuse scandal.

Cardinal Angelo Scola, the patriarch of Venice, said that the Pope was the victim of “deceitful accusations.”

Monsignor Timothy Dolan, the Archbishop of New York, said that the Pope was “suffering some of the same unjust accusations, shouts of the mob and scourging at the pillar as did Jesus”.

He said: “Truth and falsehood are scandalously mingled in the New York Times reconstructions. You begin to wonder, is there an agenda of bias here?”

However, David Clohessy, head of The Survivors Network of Those Abused by Priests, said: “It is, at best, disingenuous and, at worst, deceitful and unhealthy to try to shift focus away from child sex crimes and cover-ups and onto the alleged motives of journalists.” The New York Times said that none of its reports had been factually rebutted.