Mojo - August 2012

The US Government Can Track Your Location at Any Time Without a Warrant

| Thu Aug. 16, 2012 5:01 AM EDT

Is law enforcement tracking your cell phone's GPS more like intercepting a phone call or tailing someone on the street? A federal court decision says it's more like following you—which means the authorities don't need to get a warrant to find out where you are at any given time.

The case involves a marijuana courier, Melvin Skinner, whose disposable cell phone was being tracked by the Drug Enforcement Agency as he moved his cargo from Arizona to Tennessee. The DEA got a court order (not a warrant) compelling Skinner's cell phone company to share his GPS information—the release of which led to Skinner's capture and arrest.

Skinner's lawyers argued the DEA tracking his cell was a violation of his Fourth Amendment rights against unreasonable search and seizure because the location information being given off by his phone wasn't publicly available.

Two judges on the three judge panel of the Sixth Circuit Court of Appeals disagreed, concluding that Skinner did not have a "reasonable expectation of privacy" regarding his cell phone GPS data. "If a tool used to transport contraband gives off a signal that can be tracked for location," wrote Judge John Marshall Rogers," certainly the police can track the signal."

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We're Still at War: Photo of the Day for August 15, 2012

Wed Aug. 15, 2012 3:18 PM EDT

Cadets rush to get their Zodiac raft with all their equipment out of the water after crossing Lake Popolopen during Steele Challenge on Camp Buckner at the U.S. Military Academy at West Point, N.Y., Aug. 9, 2012. US Army photo by Mike Strasser.

National Archives Sued Over Financial Crisis Documents

| Wed Aug. 15, 2012 11:45 AM EDT

It's been 18 months since the Financial Crisis Inquiry Commission (FCIC), the bipartisan group charged by Congress with discovering the causes of the 2008 financial meltdown, released its final report (PDF). At the time, the commissioners promised that many of the documents the FCIC gathered during its investigation—including testimony from bank officials and internal bank emails and memos—would "eventually be made public." But the National Archives and Records Administration (NARA), which holds the documents, has so far refused to release many of them, saying that it has put a five-year restriction on their release. "Eventually," it turns out, means half a decade.

Cause of Action, a Washington transparency watchdog that filed a Freedom of Information Act request seeking the FCIC documents last year, thinks the American public should not have to wait that long. Late Tuesday, the group sued NARA in federal court in Washington, DC, aiming to force the disclosure of thousands of pages of as-yet-unreleased documents.

"The FCIC had a big impact on the national discussion about what caused the financial crisis and all Americans have an interest in what really happened," Mary Beth Hutchins, Cause of Action's communications director, told Mother Jones. "We have an administration that from day one promised greater transparency in government, and what we've seen is that instead of having the public interest in mind, they're bowing to the whims of this commission. It's important that people be able to draw their own conclusions and judgments in addition to those the commission may have drawn from these documents."

In the lawsuit, Cause of Action writes that NARA's five-year restriction on the release of the documents (except for certain documents FCIC had pre-designated for release) is the same restriction that Phil Angelides, the commission's Democratic chairman, advocated in a letter he sent to NARA in February 2011. But Cause of Action goes on to note that Peter Wallison, a Republican member of the commission, has said that he believes "the public should have access to all FCIC documents except those records provided to the FCIC on condition of confidentiality" and that he was "not even aware" of Angelides' letter, "which expresses a position materially inconsistent with his own views." (Hutchins said Wallison made those statements in phone conversations with Cause of Action's legal team.)

I've reached out to NARA and Angelides for comment on this story; I'll update if they respond. 

You can read Cause of Action's full legal filing here:

 

FBI Sting Lawsuit Blocked by "State Secrets" Doctrine

| Wed Aug. 15, 2012 11:17 AM EDT

It was like a James O'Keefe hidden camera operation gone wrong: In 2006, despite no evidence of wrongdoing, the FBI sent informant Craig Monteilh to spy on a California mosque, only to have Ahmadullah Sais Niazi, the guy Monteilh was trying to convince to launch a fake terrorist operation, report the informant to the authorities. (Naturally, in 2009 the FBI then unsuccessfully tried to prosecute Niazi anyway).  

The Monteilh-Niazi incident was part of "Operation Flex," an FBI counterterrorism program that involved surveillance of the Muslim community in Southern California. Three local Muslims, Sheikh Yassir Fazaga, Ali Uddin Malik, and Yasser AbdelRahim, sued the FBI in February 2011 arguing that the FBI violated their constitutional rights. The Obama administration responded by invoking the state secrets doctrine, which often serves as a sort of get-out-of-court-free card for the government, and asking Judge Cormac J. Carney to dismiss most the case because it would force disclosure of materials that could jeopardize national security. Carney did just that on Wednesday, accepting the government's argument that the case would endanger state secrets. In doing so, Carney dismissed the plaintiffs' argument that embracing the state secrets doctrine in the Monteilh case would lead to a state of affairs where "any practice, no matter how abusive, may be immunized from legal challenge by being labeled as 'counterterrorism' and 'state secrets.'"

"Such a claim assumes that courts simply rubber stamp the Executive's assertion of the state secrets privilege. That is not the case here," Carney wrote. "The Court has engaged in rigorous judicial scrutiny of the Government's assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye." Judge Carney nevertheless allowed part of the lawsuit, a claim that FBI officials involved in Operation Flex handlers violated the plaintiff's rights under the Foreign Intelligence Surveillance Act, to go forward. 

The case involves two key elements of the Obama administration's approach to national security: The use of FBI informants and fake terror plots and the aggressive use of the state secrets doctrine to keep its counterterrorism operations secret. As Trevor Aaronson reported in his award-winning story for the September/October 2011 issue of Mother Jones, "With three exceptions, all of the high-profile domestic terror plots of the last decade were actually FBI stings."

As for the state secrets doctrine, the Obama administration has used it not only to shield its own counterterrorism operations from scrutiny but also to foil attempts to hold facilitators of the Bush administration's extraordinary rendition policy legally accountable. That's despite promises from Attorney General Eric Holder that the state secrets privilege would only be used sparingly. (Prior to the Bush administration, the state secrets doctrine was used to block individual pieces of evidence, not to dismiss entire cases.)

The bottom line is that the FBI can send an informant into your house of worship to spy on you or even try to entice you to commit an act of terrorism. And if you try to sue, the FBI can avoid any legal accountability by saying that the lawsuit could expose information that might jeopardize national security. 

Correction: A previous version of this post suggested the entire lawsuit was dismissed, in fact that judge allowed part of the suit to go forward. 

No, Chicago Is Not More Dangerous Than Afghanistan

| Wed Aug. 15, 2012 9:48 AM EDT

Comparing urban crime to literal war-zones is an unfortunate rhetorical device that never seems to go away. On Tuesday, Gawker's Cord Jefferson, attempting to illustrate the vast disparity in attention given to mass shootings like the recent incidents in Colorado and (to a lesser extent) Wisconsin and the high homicide rate in Chicago, wrote that "The Windy City's murder rate is worse than the murder rate in Kabul, a literal war zone." If that sounds too nuts to be true, that's because it is. 

This bogus "fact" seems to have originated with an overzealous headline writer. Jefferson was citing a June The Daily column by David Knowles, whose dek reads "City officials fight back as murder rate outstrips N.Y., L.A. – even Kabul." The column itself makes no such claim, nor does it even come close to describing the "murder rate" in Kabul. Instead, it looks at the total number of US servicemember deaths in Afghanistan in 2012, then looks at the total number of deaths in Chicago in 2012. It turns out there had been more murders in Chicago (228) than there have been US servicemember deaths in Afghanistan (144) at the time the column was written. "The streets of Chicago are officially more dangerous than a war zone," Knowles wrote, "Homicide victims in the Windy City outnumber U.S. troops killed in Afghanistan this year."

You see what the problem is here, right? Chicago is a city of nearly three million people, while there are about 90,000 US troops in Afghanistan (which is not the same as Kabul). The murder rate (not the total number of deaths) in Chicago based on those numbers is 8.42 per 100,000 residents. Given that US troops in Afghanistan are involved in an international armed conflict, it's odd to refer to the all the deaths of US servicemembers as "murders," but if you were to call this the "murder rate" it would be 160 per 100,000 troops. In other words, being a US servicemember in Afghanistan is about nineteen times as deadly as being a resident of Chicago. 

Jefferson wasn't the first person to cite Knowles' bogus statistic (and the point of his post doesn't really rely on it) but it was also reproduced all over the Internet. The problem with referencing "facts" like this one, however, goes beyond its statistical wrongness: Jefferson and Knowles were trying to awaken people to an unacceptable level of suffering in Chicago. Unfortunately, comparing Chicago to a war zone creates more emotional distance than resonance, conjuring up images of some far-flung foreign battlefield. It also primes the reader to accept militarized solutions to the issue of crime—after all, if Chicago is like a "war zone," then police are more justified in using escalated levels of force, innocents caught in the crossfire are easily rationalized as "collateral damage," and "criminals" become implacable enemies rather than fellow citizens. The war zone metaphor foments the very complacency Jefferson is trying to shake people out of: After all, people die all the time in wars. Part of what gave the Colorado movie theater shooting its emotional impact is that it occurred outside the places many of us have cordoned off as "war zones" in our heads. We implicitly accept triple-digit casualties in places like Chicago as an unalterable fact of urban life, when of course they aren't. 

Since I already wonder about the wisdom of turning mass shootings into national moments of collective trauma, I'm also skeptical of "nationalizing" Chicago's homicide problem. Certainly people outside Chicago should know about it, and Jefferson and Knowles were doing an admirable thing by bringing it to people's attention, but I'm not really convinced that Chicago's murder rate would be better dealt with if everyone Felt Really Bad About It the way we Feel Really Bad about mass shootings, since the emotional signifying rarely leads to the kind of coherent public policy response that might actually change things for the better. Mostly, it seems like we participate in these national mourning rituals because they remind us that our own lives are limited and precious, not because they invoke a real sense of obligation towards those whose time on Earth might be cut short. 

Ex-Wisconsin Gov. Tommy Thompson Nabs GOP Senate Nomination

| Wed Aug. 15, 2012 12:52 AM EDT
Former Wisconsin Gov. Tommy Thompson.

A decade after ending his four-term run as Wisconsin governor, the man known in the Badger State simply as "Tommy" is back in the running. On Tuesday night, Thompson clinched the Republican nomination in the fight to replace outgoing Democratic Sen. Herb Kohl. In November, Thompson will face liberal hero Rep. Tammy Baldwin (D-Wisc.) (whom I profiled here) in the first statewide race of her career.

Thompson is a household name in Wisconsin, but his primary victory was far from a lock. Hedge fund manager and political newcomer Eric Hovde, who dumped more than $5 million of his own money into his campaign, led Thompson in several polls leading up to Tuesday's primary. Also on the losing end of Tuesday's Wisconsin primary were ex-congressman Mark Neumann, a tea party favorite, and state Assembly speaker Jeff Fitzgerald.

Thompson claimed 34 percent of the vote, while Hovde won 31 percent, Neumann 23 percent, and Fitzgerald 12 percent.

Democrats would have preferred any of Thompson's defeated opponents come November. He's the clear frontrunner, having led Baldwin in three consecutive Marquette University Law School polls this summer—by 8 percent in June, 4 percent in July, and 5 percent in August. His name recognition surpasses that of Baldwin, polls show, and after a career of deal-brokering in Wisconsin and Washington, he is a masterful fundraiser. He's raised $2.5 million so far this campaign, with $350,000 currently in the bank.

Baldwin, who if elected would be the first openly gay senator in US history, is no fundraising rookie. She's banked $7.1 million this campaign, and boasts an impressive $3.1 million in the bank. Her own primary night speech on Tuesday made no mention of Thompson. But in a statement, she slammed the former governor as being too cozy with special interests and inside players in Washington. "Tonight, the Republican primary electorate presented Wisconsin voters with a clear choice for the November election," she said. "Make no mistake, Tommy Thompson will stand with those who already have too much power and influence in Washington."

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Insurgent Veterinarian Ted Yoho Beats Top Planned Parenthood Foe in Florida Primary

| Tue Aug. 14, 2012 10:30 PM EDT
Florida congressional candidate Ted Yoho (R)

Updated, 12:38 a.m., 8/15/12: Although Politico initially declared Stearns the loser, the incumbent has yet to concede. But he trails Yoho by 829 votes with 100 percent of the precincts reporting.

Update II, 1:27 p.m., 8/15/12: It's official: Stearns has conceded. Yoho will face Gaillot in November.

On Tuesday, in perhaps the biggest surprise of the 2012 cycle to date, Florida Rep. Cliff Stearns, a well-funded 12-term incumbent, lost his Republican house primary to Ted Yoho, a little-known large-animal veterinarian with no political experience. Stearns had expanded his profile over the last year by instigating a congressional investigation into Planned Parenthood, and held a 16 to 1 campaign cash advantage.

So how'd Yoho do it? Rumors of an FBI investigation into Stearns' conduct (for allegedly bribing another candidate to get out of the race) probably had some effect. Yoho also had some tea party support, although his platform—fighting "socialism," cutting taxes, curbing spending—didn't really distinguish him from the competition. In the wake of Tuesday's result, Yoho's only television ad—in which three men in suits (representing big government) eat out of a pig trough—has been the focus of most of the press attention:

The "Pigs" ad is something of a mixed metaphor, since tea partiers' qualm with Washington isn't that congressmen are pork; it's that they vote for it. For that reason, Yoho's earlier pitch, in which he talks with an actual George W. Bush impersonator about an upcoming fundraiser, is much more effective:

If that doesn't work, here's a song about Yoho's campaign—released by Yoho's campaign:

Now that he's won the nomination, Yoho's path to Washington is relatively smooth. The third district is solidly Republican, and the new Democratic nominee, J.R. Gaillot, has barely updated his campaign website (the "issues" page contains mostly dead links, although Gaillot tweets that he'll update it soon). Still, progressives can rest a little easier knowing they won't have Cliff Stearns to kick around any more.

We're Still at War: Photo of the Day for August 14, 2012

Tue Aug. 14, 2012 9:39 AM EDT

Sgt. Brain Reid, Alaska National Guard, talks with a local Afghan child during a dismounted patrol to a Department of Public Works facility on Aug. 8, 2012, in Kandahar, Afghanistan. Photo by US Army.

Just How Libertarian Is Paul Ryan?

| Mon Aug. 13, 2012 3:41 PM EDT

Rep. Paul Ryan (R-Wis.), Mitt Romney's new running mate, has been hailed as the closest thing to a libertarian on the Republican ticket since Rep. Ron Paul (R-Texas). "Ryan is going to be very attractive to the broad libertarian voters," the Cato Institute's David Boaz told Buzzfeed. But aside from his Ayn Rand-reading, entitlement-busting ways, just how libertarian is Ryan?

Thankfully, MoJo's Josh Harkinson made this handy Venn diagram showing the various flavors of American libertarianism, from cranky Ron Paulism to traditional free-market and social liberalism. Sticking Ryan on the diagram shows that while he has a lot in common with small-government, antitax libertarians, he has a lot in common with mainstream conservatives. He has supported extending the Patriot Act, voted to fund the wars in Iraq and Afghanistan, and voted for the bank bailout—all big no-nos for old-school libertarians.

Ryan is hardly the purists' pick, but as Reason noted before Romney tapped him, "For advocates of limited government, Ryan remains one of the most important allies in Congress."

Obama Has Attended, On Average, One Fundraiser Every 60 Hours While Running for Reelection

| Mon Aug. 13, 2012 1:57 PM EDT
President Obama.

This weekend, President Obama attended the 200th fundraiser of his reelection campaign. By the end of Sunday, the president had reached 203 fundraisers since officially launching his re-election bid in April 2011. That's more fundraisers than any presidential candidate in history.

Put another way, that's an average of one fundraiser roughly every 60 hours for Obama.

Of course, Obama's fundraisers come in fits and starts. For instance, on Sunday Obama raked in campaign cash at five different fundraisers: He attended a "small roundtable" with a $40,000-a-head entry price, a reception for young supporters who paid $51 to get in, a fundraiser-cum-birthday-party at his Chicago home with a five-figure entry free, and two more private events in the evening. His total haul: $6.5 million, according to CBS News' Mark Knoller.