WASHINGTON – Invasion of privacy in the Internet age. Expanding the reach of law enforcement to snoop on e-mail traffic or on Web surfing. Those are among the criticisms being aimed at the FBI as it tries to update a key surveillance law.

With its proposed amendment, is the Obama administration merely clarifying a statute or expanding it? Only time and a suddenly on guard Congress will tell.

Federal law requires communications providers to produce records in counterintelligence investigations to the FBI, which doesn’t need a judge’s approval and court order to get them.

They can be obtained merely with the signature of a special agent in charge of any FBI field office and there is no need even for a suspicion of wrongdoing, merely that the records would be relevant in a counterintelligence or counterterrorism investigation. The person whose records the government wants doesn’t even need to be a suspect.

The bureau’s use of these so-called national security letters to gather information has a checkered history.

The bureau engaged in widespread and serious misuse of its authority to issue the letters, illegally collecting data from Americans and foreigners, the Justice Department’s inspector general concluded in 2007. The bureau issued 192,499 national security letter requests from 2003 to 2006.

Weathering that controversy, the FBI has continued its reliance on the letters to gather information from telephone companies, banks, credit bureaus and other businesses with personal records about their customers or subscribers — and Internet service providers.

That last source is the focus of the Justice Department’s push to get Congress to modify the law.

The law already requires Internet service providers to produce the records, said Dean Boyd, a spokesman for the Justice Department’s national security division. But he said as written it also causes confusion and the potential for unnecessary litigation as some Internet companies have argued they are not always obligated to comply with the FBI requests.

A key Democrat on Capitol Hill, Senate Judiciary Committee chairman Patrick Leahy of Vermont, wants a timeout.

The administration’s proposal to change the Electronic Communications Privacy Act “raises serious privacy and civil liberties concerns,” Leahy said Thursday in a statement.
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Countless prisoners are being denied justice under a federal statute whose intent was to reduce frivolous law suits, two prominent legal authorities say.

Law professors Margo Schlanger of Washington University, St. Louis, and Giovanna Shay of Yale indict the federal Prison Litigation Reform Act(PLRA) of 1996 for “undermining the rule of law in America’s prisons” by “preventing inmates from raising legitimate claims” against their keepers.

The professors trace the subsequent “dramatic decline” in prisoner law suits to the fact that “constitutionally meritorious cases are now faced with new and often insurmountable obstacles.”

What’s more, the PLRA “undermines the rule of law,” Schlanger and Shay say, “by shielding corrections officials from accountability even in situations in which law violations are clear.”

In an article published in the Fall, 2009, issue of The Long Term View, the magazine of the Massachusetts School of Law at Andover, the professors say that PLRA’s provision requiring prisoners to exhaust internal grievance procedures before filing suit has “drastically shrunk” the number of federal cases filed from 26 per thousand inmates in 1995 to 11 per thousand inmates in 2005.
Juvenile prisoners, often the targets of molestation and rape, have been affected because so many of them “are not able to follow the complex requirements imposed by the statute,” the law professors write. Instead, the law holds incarcerated youth “to an impossibly high standard of self-reliance.”

“Wardens and sheriffs routinely refuse to engage inmate grievances because they commit minor technical errors, such as using the incorrect form,” Schlanger and Shay write, and “each such misstep by a prisoner bars consideration of even an otherwise meritorious civil rights action.”

“Juvenile detainees,” they remind, “are young, often undereducated, and have very high rates of psychiatric disorders” and generally do not have access to law libraries.

The co-authors point to a case in South Bend, Ind., where a young male was repeatedly beaten with “padlock-laden socks” and raped and subsequently suffered a seizure. Even though the Civil Rights Division of the U.S. Justice Department found the South Bend Juvenile Facility “fails to adequately protect the juveniles in its care from harm,” a district court dismissed the claim of the inmate’s family on grounds the youth had not filed a grievance in the facility. Often, inmates fear retaliation if they file such grievances.
“PLRA’s exhaustion rule,” Schlanger and Shay continue, “actually provides an incentive to administrators in the state and federal prison systems and the over 3,000 county and city jail systems to fashion ever higher procedural hurdles in their grievance processes. After all, the more onerous the grievance rules, the less likely a prison or jail, or staff members, will have to pay damages or be subjected to an injunction in a subsequent lawsuit.”

The law professors write the PLRA does not allow inmate plaintiffs to recover damages for “mental or emotional injury suffered while in custody without a prior showing of physical injury.” Result: “Proven violations of prisoners’ religious rights, speech rights, and due process rights have all been held non-compensable, and thus placed largely beyond the scope of judicial oversight,” the law professors write.

Moreover, some courts have deemed sexual assault does not constitute a “physical injury” within the meaning of the PLRA. One district court held that not even an allegation of coerced sodomy constituted physical injury.

“In case after case,” Schlanger and Shay write, “courts have held even serious physical symptoms insufficient to allow the award of damages because of PLRA’s physical injury provision.” They note one case where the inmate plaintiff alleged a correctional officer severely beat him and dropped him on his head, causing widespread bruises and swelling. “Nonetheless, the district court held the claim insufficient under the PLRA’s physical injury provision,” the law professors write. “In another, burns to the plaintiff’s face were deemed insufficient, because those burns had ‘healed well,’ leaving no lasting effect.”

The point is that PLRA “has made it far more difficult for prisoners to enforce any non-physical rights—including freedom of religion and freedom of speech—and to seek compensation for any mental rather than physical harm, no matter how intentionally, even torturously, inflicted,” Schlanger and Shay say. The Massachusetts School of Law at Andover is a 21-year-old law school whose pioneering mission is to inexpensively provide rigorous legal education, a pathway into the legal profession, and social mobility to members of the working class, minorities, people in midlife, and immigrants.

Through its television shows, videotaped conferences, an intellectual magazine, and internet postings, MSL – - uniquely for a law school – - also seeks to provide the public with information about crucial legal and non legal subjects facing the country.

Elisha Strom

A 34-YEAR-OLD woman, the mother of a 12-year-old girl, has been locked up in a Virginia jail for three weeks and could remain there for at least another month. Her crime? Blogging about the police. Yes it has happened in America, and I don’t want to hear any crap about it being a “post 9/11 society” that is total BS, this should not EVER happen in this country, what a shameful tragedy!

Elisha Strom, who appears unable to make the $750 bail, was arrested outside Charlottesville on July 16 when police raided her house, confiscating notebooks, computers and camera equipment. Although the Charlottesville police chief, Timothy J. Longo Sr., had previously written to Ms. Strom warning her that her blog posts were interfering with the work of a local drug enforcement task force, she was not charged with obstruction of justice or any similar offense. Rather, she was indicted on a single count of identifying a police officer with intent to harass, a felony under state law.

It’s fair to say that Ms. Strom was unusually focused on the Jefferson Area Drug Enforcement task force, a 14-year-old unit drawn mainly from the police departments of Charlottesville, Albemarle County and the University of Virginia. (Her blog at http://iheartejade.blogspot.com, expresses the view that the task force is “nothing more than a group of arrogant thugs.”) In a nearly year-long barrage of blog posts, she published snapshots she took in public of many or most of the task force’s officers; detailed their comings and goings by following them in her car; mused about their habits and looks; hinted that she may have had a personal relationship with one of them; and, in one instance, reported that she had tipped off a local newspaper about their movements.

Predictably, this annoyed law enforcement officials, who, it’s fair to guess, comprised much of her readership before her arrest. But what seems to have sent them over the edge — and skewed their judgment — is Ms. Strom’s decision to post the name and address of one of the officers with a street-view photo of his house.

All this information was publicly available, including the photograph, which Ms. Strom gleaned from municipal records. The task force’s officers may have worked undercover on occasion, but one wonders about their undercover abilities, given that Ms. Strom was able to out them so consistently. Chief Longo warned Ms. Strom that her blog posts were scaring off informants and endangering the officers and their families, but he provided no evidence. At no point did Ms. Strom’s blog express a threat, explicit or otherwise, to police or their sources.

Ms. Strom is not the most sympathetic symbol of free-speech rights. She has previously advocated creating a separate, all-white nation, and her blog veers from the whimsical to the self-righteous to the bizarre. But the real problem here is the Virginia statute, in which an overly broad, ill-defined ban on harassment-by-identification, specifically in regard to police officers, seems to criminalize just about anything that might irritate targets.

It should not be a crime to annoy the cops, whose raid on Ms. Strom’s house looks more like a fit of pique than an act of law enforcement. Some of her postings may have consisted of obnoxious speech, but they were nonetheless speech and constitutionally protected. That would hold true right up through her last blog post, written as the police raid on her home began at 7 a.m.: “Uh-Oh They’re Here.”

With all the attention that’s been paid lately to long federal sentences for drug offenders, it’s surprising that a far more troubling phenomenon has barely hit the media’s radar screen. Every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law or regulation and end up serving time in federal prison.

What is especially disturbing is that it could happen to anyone at all — and it has.

We should applaud Reps. Bobby Scott (D-Va.) and Louie Gohmert (R-Texas), then, for holding a bipartisan hearing today to examine how federal law can make a criminal out of anyone, for even the most mundane conduct.

Federal law in particular now criminalizes entire categories of activities that the average person would never dream would land him in prison. This is an inevitable result of the fact that the criminal law is no longer restricted to punishing inherently wrongful conduct — such as murder, rape, robbery, and the like.

Moreover, under these new laws, the government can often secure a conviction without having to prove that the person accused even intended to commit a bad act, historically a protection against wrongful conviction.

Laws like this are dangerous in the hands of social engineers and ambitious lawmakers — not to mention overzealous prosecutors — bent on using government’s greatest civilian power to punish any activity they dislike. So many thousands of criminal offenses are now in federal law that a prominent federal appeals court judge titled his recent essay on this overcriminalization problem, “You’re (Probably) a Federal Criminal.”

Consider small-time inventor and entrepreneur Krister Evertson, who will testify at today’s hearing. Krister never had so much as a traffic ticket before he was run off the road near his mother’s home in Wasilla, Alaska, by SWAT-armored federal agents in large black SUVs training automatic weapons on him.

Evertson, who had been working on clean-energy fuel cells since he was in high school, had no idea what he’d done wrong. It turned out that when he legally sold some sodium (part of his fuel-cell materials) to raise cash, he forgot to put a federally mandated safety sticker on the UPS package he sent to the lawful purchaser.

Krister’s lack of a criminal record did nothing to prevent federal agents from ransacking his mother’s home in their search for evidence on this oh-so-dangerous criminal.

The good news is that a federal jury in Alaska acquitted Krister of all charges. The jurors saw through the charges and realized that Krister had done nothing wrong.

The bad news, however, is that the feds apparently had it in for Krister. Federal criminal law is so broad that it gave prosecutors a convenient vehicle to use to get their man.

Two years after arresting him, the feds brought an entirely new criminal prosecution against Krister on entirely new grounds. They used the fact that before Krister moved back to Wasilla to care for his 80-year-old mother, he had safely and securely stored all of his fuel-cell materials in Salmon, Idaho.

According to the government, when Krister was in jail in Alaska due to the first unjust charges, he had “abandoned” his fuel-cell materials in Idaho. Unfortunately for Krister, federal lawmakers had included in the Resource Recovery and Conservation Act a provision making it a crime to abandon “hazardous waste.” According to the trial judge, the law didn’t require prosecutors to prove that Krister had intended to abandon the materials (he hadn’t) or that they were waste at all — in reality, they were quite valuable and properly stored away for future use.

With such a broad law, the second jury didn’t have much of a choice, and it convicted him. He spent almost two years locked up with real criminals in a federal prison. After he testifies today, he will have to return to his halfway house in Idaho and serve another week before he is released.

The other hardened criminal whose story members of Congress will hear today is retiree George Norris. A longtime resident of Spring, Texas, Norris made the mistake of not knowing and keeping track of all of the details of federal and international law on endangered species — mostly paperwork requirements — before he decided to turn his orchid hobby into a small business. What was Norris’s goal? To earn a little investment income while his wife neared retirement.

The Lacey Act is an example of the dangerous overbreadth of federal criminal law. Incredibly, Congress has made it a federal crime to violate any fish or wildlife law or regulation of any nation on earth.

Facing 10 years in federal prison, Norris pled guilty and served almost two. His wife, Kathy, describes the pain of losing their life savings to pay for attorneys and trying to explain to grandchildren why for so long Poppa George couldn’t see them.

Federal criminal law did not get so badly broken overnight, and it will take hard work to get it fixed. It is encouraging that members of Congress such as Reps. Scott and Gohmert are now paying attention to the toll over criminalization takes on ordinary Americans. Congress needs to begin fixing the damage it has done by starting to restore a more reasonable, limited and just federal criminal law. Today’s hearing is an excellent first step.

The government is using secretive prison facilities on U.S. soil, called Communication Management Units, to house inmates accused of being tied to “terrorism” groups. They overwhelmingly include Muslim inmates, along with at least two animal rights and environmental activists.

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Little information is available about the secretive facilities and the prisoners housed there. However, through interviews with attorneys, family members, and a current prisoner, it is clear that these units have been created not for violent and dangerous “terrorists,” but for political cases that the government would like to keep out of the public spotlight and out of the press.

OPENED QUIETLY AND PERHAPS ILLEGALLY

In April of 2006, the Department of Justice proposed a new set of rules to restrict the communication of “terrorist” inmates. The proposal did not make it far, though: during the required public comment period, the ACLU and other civil rights groups raised Constitutional concerns. The program was too sweeping, they said, and it could wrap up non-terrorists and those not even convicted of a crime.

The Bureau of Prisons dropped the proposal. Or so it seemed. Just a few months later, a similar program (now called the Communication Management Unit, or CMU), was quietly opened by the Justice Department at Terre Haute, Ind.

Then, in May of 2008, a handful of inmates were moved, without warning, to what is believed to be the second CMU in the country, at Marion, Il.

Both CMUs are “self-contained” housing units, according to prison documents, for prisoners who “require increased monitoring of communication” in order to “protect the public.”

WHO IS HOUSED AT CMUs?

The CMUs are less restrictive than, say, ADX Florence, the notorious supermax prison for the most dangerous inmates. The supermax holds al-Qaeda operative Zacarias Moussaoui and Unabomber Theodore J. Kaczynski.

CMU inmates stand in sharp contrast to the Moussaouis and Kaczynskis of the world, though.

• They include Rafil A. Dhafir, an Iraqi-born physician who created a charity called Help the Needy to provide food and medicine to the people of Iraq suffering under the U.S.-imposed economic sanctions. He was sentenced to 22 years in prison for violating the sanctions.
• They include Daniel McGowan, an environmental activist sentenced to seven years in prison for a string of property crimes in the name of defending the environment. He was previously at FCI-Sandstone, a low-security facility, and was transferred without notice to the CMU, and told it was not for any disciplinary reason.
• And, until recently, they included Andrew Stepanian. Stepanian was convicted of conspiring to commit “animal enterprise terrorism” and shut down the notorious animal testing laboratory Huntingdon Life Sciences, in a landmark First Amendment case pending appeal. The government’s case focused on a controversial website run by an activist group that published news of both legal and illegal actions against the laboratory. He was sentenced to three years in prison, and is currently on house arrest in New York City. Stepanian is believed to be the first prisoner ever released from a CMU.

VIOLATION OF DUE PROCESS RIGHTS

Attorneys and prisoners have said that inmates are transferred to the CMUs without notice and without opportunity to challenge their new designation, in what seems to be a clear violation of their due process rights.

“No one got a hearing to determine whether we should or should not be transferred here,” said Daniel McGowan in a letter from the CMU in Marion, Ill.

Similarly, Rafil A. Dhafir said in a letter to his family from the CMU in Terre Haute, Ind., that he was put in isolation for two days before the move. “No one seems to know about this top-secret operation until now,” he wrote. “It is still not fully understood… The staff here is struggling to make sense of the whole situation.”

“We are told this is an experiment,” Dhafir says. “So the whole concept is evolving on a daily basis.”

OUT OF SIGHT, OUT OF MIND

The CMU “experiment” limits prisoner contact with the outside world through a list of restrictive policies. According to prison documents giving a skeleton of CMU policies, called institution supplements, they include:

• Phone calls: Only one phone call per week, limited to 15 minutes, live-monitored by staff and law enforcement (according to attorneys, this includes the NSA) and scheduled one and half weeks in advance. It must be conducted in English. Other prisoners get about 300 minutes a month.
• Mail: All mail must be reviewed by staff prior to delivery to the inmate or processing at the post office. This means significant delays in communications (and, in my personal experience, letters frequently not being received by inmates).
• Visits: Four hours of personal visits per month, non-contact, behind glass, and live-monitored by staff and law enforcement. It must be conducted in English. By comparison, at FCI Sandstone (where McGowan was previously housed) prisoners can receive 56 potential visiting hours per month. I have learned from attorneys and prisoners that when a CMU inmate is transferred to the visiting room, the entire facility goes on lock-down.

For many inmates in federal prisons, phone calls, mail and visits are flecks of light in the darkness. Virtually eliminating all contact with family, friends and the outside world can have a devastating psychological impact on prisoners, and raises serious concerns about basic human rights.

WHY ARE THEY THERE?

It is difficult to discern the rationale behind why some inmates are transferred to the CMU and others are not. For instance, John Walker Lindh, the “American Taliban,” is housed at the CMU in Terre Haute. He pleaded guilty to supporting the Taliban and carrying a rifle and grenades on the battlefield in Afghanistan. However, the government announced last month it is actually easing restrictions on his communication.

In the case of Andy Stepanian, he was one of six codefendants, and by the admission of prosecutors he was one of the minor players in the case. He is not accused of any violent crime or any property destruction, and had no disciplinary problems while incarcerated. Stepanian received the second-lowest sentence of the group, and his codefendants are not in CMUs.

Daniel McGowan’s notice of transfer to the CMU gives some indication of the government’s reasoning. It says that he has been identified “as a member and leader in the Earth Liberation Front (ELF) and Animal Liberation Front (ALF), groups considered domestic terrorist organizations.”

But in a letter from the CMU, McGowan wrote: “It’s funny–I have like 13 codefs [codefendants] + there are 11 other eco prisoners and I end up here.”

Part of the explanation for his transfer to the CMU, it seems, is that he is a vocal, prominent activist with a large group of active supporters. For McGowan, his near celebrity status within the environmental movement, along with his continued activism, has become a liability. When I attended his sentencing hearing in Eugene, Ore., in 2006, the judge made a point of criticizing his media appearances and his website, SupportDaniel.org.

Attorneys, prisoners and their supporters speculate there may be legal calculations involved as well. The CMUs have been overwhelmingly comprised of people of color since their inception, and lawsuits have been filed alleging discrimination and racial profiling.

“Throwing a few white kids into the mix makes it appear less like an American Guantanamo,” said one attorney who did not want to be identified. “And it also sends the message to the prisoners and to the movements that supporter them. It’s meant to have a chilling effect.”

CONTINUING A TREND

The creation of secret facilities to primarily house Muslim inmates accused of non-violent charges, along with a couple animal rights and environmental activists, marks both a continuation and a radical expansion of the “War on Terrorism.”

First, it is a continuation of the “terrorism” crackdown that Arab and Muslim communities have intensely experienced since September 11th. Guantanamo Bay may be closing. But as Jeanne Theoharis beautifully wrote recently: “Guantánamo is not simply an aberration; its closure will not return America to the rule of law or to its former standing among nations. Guantánamo is a particular way of seeing the Constitution, of constructing the landscape as a murky terrain of lurking enemies where the courts become part of the bulwark against such dangers, where rights have limits and where international standards must be weighed against national security.”

Second, it is an expansion of the lesser-known “terrorism” crackdown against animal rights and environmental activists by corporations and the politicians who represent them. This coordination campaign to label activists as “terrorists” and push a political agenda—the “Green Scare”—has involved terrorism enhancement penalties, FBI agents infiltrating vegan potlucks, and new terrorism legislation like the Animal Enterprise Terrorism Act, and it all has proceeded unobstructed and unseen. There has been a near-complete media blackout on the Green Scare, and transferring vocal, public Green Scare prisoners to CMUs sends a clear message that the government hopes to keep it that way.

“SECOND-TIER TERRORISTS”

When the CMU at Terre Haute was created, Dan Eggen at The Washington Post described it as a facility for “second-tier terrorism inmates.”

What Eggen was clearly getting at is that the CMU overwhelmingly held Arab Muslim inmates rounded up and smeared by the government as “terrorists,” even though they had not done anything violent or “terrorist.”

But the CMUs are not “second-tier terrorism” prisons. They are political prisons. All of the defendants—Muslim, environmentalist, animal rights activist—are housed there because of their ethnicity, their religion, their ideology, or all of the above.

The mere existence of the CMUs should be yet another warning call to all Americans concerned about the future of this country. If we allow the government to continue widening the net of who is a “terrorist,” and expanding the scope of what punishments are applicable (and what rights are inapplicable) when that word comes into play, it places us all at risk. The reckless expansion of the War on Terrorism didn’t stop with Arabs and Muslims, and it won’t stop with environmentalists or animal rights activists.

The power to create and maintain secretive prison facilities for political prisoners is antithetical to a healthy democracy. If there is one thing that we should learn from history, from governments that have gone down this path, it is this: If there is a secretive prison for “second-tier” terrorists, it will only be followed by a secretive prison “third-tier terrorists,” and “fourth-tier terrorists,” until one by one, brick by brick, the legal wall separating “terrorist” from “dissident” or “undesirable” has crumbled.