The Obama Administration’s Deadly Playbook Released

Author’s Note:  this article was originally published on Newsbud.com over a year ago and may contain outdated information.  I am posting it here now because it is no longer available on that website (more about that here).  I will be posting a couple additional articles that I wrote for Newsbud that are also no longer available there.

Katie Aguilera

America’s Lethal Drone Strike Policies and the Normalization of Killing with Robots

On August 6, 2016, the American Civil Liberties Union, or ACLU, announced the long sought release of a redacted version of the Presidential Policy Guide, or PPG, for drone strikes outside of areas of “actual hostilities” as a result of a Freedom of Information Act lawsuit brought by the ACLU.  The ACLU published the document, which has been referred to as “the Playbook,” on their website along with three other related documents that were released.

ACLU Deputy Legal Director Jameel Jaffer was quoted in the announcement as saying, “the PPG provides crucial information about policies that have resulted in the deaths of thousands of people, including hundreds of non-combatants, and about the bureaucracy that the Obama administration has constructed to oversee and implement those policies.  The PPG should have been released three years ago, but its release now will inform an ongoing debate about the lawfulness and wisdom of the government’s counterterrorism policies.  The release of the PPG and related documents is also a timely reminder of the breadth of powers that will soon be in the hands of another president.”

The PPG itself states that it “establishes the standard operating procedures for when the United States takes direct action, which refers to lethal and non-lethal uses of force, including capture operations, against terrorist targets outside the United States and areas of active hostilities.”  It goes on to say that the primary goal is to capture, not kill, any targeted individuals, that “lethal action should be taken in an effort to prevent terrorist attacks against U.S. persons only when capture of an individual is not feasible and no other reasonable alternatives exist to effectively address the threat.”  The PPG adds that lethal action should not be punitive or a “substitute for prosecuting a terrorist suspect.”

The truth is, the PPG has a lot of vague language that allows for an awful lot of leeway that the administration has already demonstrated a willingness to take in the use of drones to target individuals.  It talks of “near certainty that the individual being targeted is in fact the lawful target and located at the place where the action will occur,” and that there is “near certainty” that no non-combatants will be harmed in the attacks.

Considering what we already know from The Drone Papers and numerous whistleblowers about how targets are identified, located, and attacked, the pronouncement of any near certainty involved in drone strikes would be laughable if the consequences weren’t so deadly and horrible.  Just as the administration’s definition of an “imminent threat” is rather loose, with the Pentagon and CIA having 60 days to strike a target after approval, the definition of near certainty appears to be wide open.

Andrew Walker points out another disturbing truth in his August 10, 2016 Anti-War.com article about the PPG when he writes, “if anyone other than the targeted individual is ultimately engaged with kinetic action (which happens all the time) than the procedures are meaningless.  Where is the interagency and legal review for those individuals, even if they are classified as combatants?  It doesn’t exist.  Consequently, by authorizing kinetic action against certain individuals, the Obama Administration almost guarantees that people that have not been reviewed will end up dead—and many of them turn out to be innocent civilians.”

I wrote several months ago that “it is not a question of whether the entire program of targeted killing through drone strikes is moral, humane, effective, or even truly supported by national and international law.  It is a question of whether the laws can be explained in such a way as to make drone strikes legal.  To make state-sponsored assassination legal, at least as long as it is called ‘targeted killing’ and is not utilized by enemies of the west.

After all, it is clear that the US and UK have no qualms about violating international law by inventing justifications to invade a sovereign nation. Neither did the US hesitate to create documentation that justified its use of torture.”

The policies are crafted simply to justify and normalize counterterrorism strategies that have already been utilized and embraced by the administration and the military for years.  The media announces the release of the policies, giving the administration a pat on the back for transparency.  But little time is spent discussing the reality behind these policies, the devastating effects these strategies have on the lives of countless people around the world.  Additionally, it moves us further down the road of desensitization to the idea of drone strikes on US soil.

In spite of the PPG’s statement that it sets procedures for strikes outside of the US, CNN casually slid this comment into their August 6, 2016 article about the PPG release:  “if the target is a US citizen or someone living in the US…it will be submitted to the President for a decision.” [Emphasis added].  As if to inject the idea of drone strikes on US soil into the national conscience, to make the idea as easily accepted as the idea of US police killing a man with a robot-mounted bomb.

In a July 23, 2016 blog post, Laurie Calhoun, author of the book We Kill Because We Can, writes the following about the Dallas Police Department’s use of a robot with a bomb mounted on it to kill Micah Johnson.  “US citizens have grown accustomed to their government killing people abroad, but the decision to kill by remote control in the homeland was extraordinary in that no attempt was made to incapacitate the suspect instead.”  She goes on to state, “the precedent set by this action would seem to be yet another step down an ever-more lethal continuum rendered considerably more so by the current US president, Barack Obama, whose policy it is to kill rather than capture suspected terrorists located abroad.”

It seems only a matter of time, with the increasingly alarmist rhetoric about domestic terrorists and self-radicalized lone-wolves, that drone strikes will come home to US soil.  Americans have largely ignored the growing reliance on targeted killing with drones in countries far away (along with all the death and destruction caused by them), and we barely blinked when an American was blown up by a robot-delivered bomb in Dallas.  Will we remain so apathetic and silent when drone strikes happen here?  Will we just accept that it is all part of “the most important policy objective” of protecting American lives, as stated in the PPG?  When we see the death firsthand, will we allow these policies, crafted solely by those who seek to justify their illegal strategies, to stand as humane and ethical operating procedure?

 

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Jury Nullification in Defense of Justice

Author’s Note:  this article was originally published on Newsbud.com over a year ago and may contain outdated information.  I am posting it here now because it is no longer available on that website (more about that here).  I will be posting a couple additional articles that I wrote for Newsbud that are also no longer available there.

Katie Aguilera

In 1794, US Supreme Court Justice John Jay stated in his opinion in the case Georgia v. Brailsford “…on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide.  But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as the fact in controversy…it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law.  But still both objects are lawfully, within your power of decision.”

This opinion is considered by many to have set the precedent for a little spoken of right of jurors in US criminal cases known as jury nullification that has roots dating back to at least the Magna Carta. It is defined here as “a sanctioned doctrine of trial proceedings wherein members of a jury disregard either the evidence presented or the instructions of the judge in order to reach a verdict based upon their own consciences.  It espouses the concept that jurors should be the judges of both law and fact.”

This means that every US juror in any criminal case has the right to acquit the defendant even when the evidence presented proves the defendant’s guilt.  At first glance, that might seem odd, why acquit someone proven guilty?  But consider that this nation has had no shortage of unconstitutional and tyrannical laws, and excessive punishments, on the books throughout its history. Jury nullification serves as a last defense for people prosecuted under such laws.

In this August 2, 2016 article, Nathan Tschepik writes, “jury nullification is the constitutionally guaranteed right of every juror and jury to vote and issue any verdict they see fit without fear of punishment.  This freedom from penalty frees the jurors to vote according to their conscience and not be bound to unjust or extraneous laws and punishments.  The jury, therefore, has the right not only to judge the facts in a trial, but the very law itself—a right that undergirds the efficacy and basis of the jury system as a check on government power.”

On February 9, 2016, Kirsten Tynan wrote in an article for the Fully Informed Jury Association that the only US Supreme Court justice to preside over a jury trial has also spoken in support of the right jurors have to acquit defendants with nullification.  Tynan writes, “current Supreme Court Justice Sonya Sotomayor is now on record: she says the prevailing Second Circuit view of jury nullification is too harsh and that juries could benefit from being aware of their option of jury nullification.”  Tynan cites a talk given at New York University’s School of Law by Justice Sotomayor discussing a 1997 case in the Second Circuit “that savaged jury nullification as lawlessness.”

Historically, jury nullification has been practiced by US juries that acquitted defendants charged with violating the Fugitive Slave Act of 1850, juries who would not convict workers who were charged with illegally striking, and juries that refused to convict defendants charged under alcohol prohibition laws.  In a case that is heralded as a hallmark for freedom of the press in the US, the jury in John Peter Zenger’s 1733 libel trial voted to acquit in spite of the judge’s order to the jury to find Zenger guilty if the evidence proved Zenger had printed material critical of the government.  Even after it was proven that Zenger had printed the material, the jury voted to acquit him because they believed the law itself was wrong.

Of course, jury nullification has been misused in history as well, most notably in juries that acquitted defendants charged in violent crimes against minorities and civil-rights activists in spite of proof of guilt.  Paul Butler writes in this December 20, 2011 New York Times Op-ed however, that “nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.”

Unfortunately, the average juror in the US today is likely unaware that they have the right to acquit a defendant, no matter the facts in a case, but rather based on the legitimacy of the law, the appropriateness of the punishment, or simply on their conscience.  In 1895 in a split decision, the US Supreme Court ruled that courts, the judges and the lawyers, no longer were required to inform jurors of this right.  According to this history of jury nullification, the Supreme Court made this ruling “under pressure from large corporations,” after the “giant corporations had lost numerous trials against labor leaders trying to organize unions” who were often acquitted at trial as a result of nullification.  Ever since that ruling it has become largely accepted that not only are judges and lawyers not required to inform juries of this right, but that they should not inform juries of this right.

Jurors must now learn of this right by means outside of the court they serve in, perhaps through fictional courtroom dramas in film or books, or more likely, through community outreach programs that seek to educate Americans about this critically important bit of knowledge.  This is often accomplished by handing out informative fliers on the street that explain jury nullification, most often outside of courthouses.  Unfortunately, the legality of this activity is often questioned as activists are accused of tampering with juries.

In a comprehensive article published in 1996 entitled “Jury Nullification:  the Top Secret Constitutional Right,” James Joseph Duane describes the fight to keep jury nullification out of the realm of public knowledge.  He writes about Yvonne Regas who “almost landed in prison for her efforts to help spread the word to jurors.  When her son went on trial for charges in federal court, [she] and a friend papered the windshields of nearby parked cars, hoping to let the jurors learn the completely unexpected fact that her son faced 450 years in prison for a single drug transaction nine years earlier.  Federal authorities charged her with jury tampering and obstruction of justice, but eventually dropped the charges.”

More recently, in March of this year, felony charges were dismissed in the case of a former pastor, Keith Wood, who was charged for “distributing pamphlets on jury nullification outside a Michigan courthouse.”  Wood still faces a misdemeanor charge for his attempts to educate the public, but his attorney, David Kallman, expressed confidence his client would prevail against the charge.  Kallman stated, “this is such a clear violation of the First Amendment.”

In 2011, Julian Heicklen, was indicted for jury tampering after he had spent several years handing out fliers with information on jury nullification.  He “stood outside courthouse entrances…and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.”  According to this November 27, 2011 New York Times article by Benjamin Weiser, the prosecutors in the case explained the indictments by “arguing in a brief that his ‘advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.”  The prosecutors also wrote, “his speech is not protected by the First Amendment.”

In the Weiser article, associate legal director of the New York Civil Liberties Union, Christopher Dunn, is quoted as saying, “the government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification.  Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”

John Richards, in this March 3, 2011 article, argues that “if jurors learned about, and formed their opinions on, jury nullification through the ordinary course of their lives, it’s obvious that there would be no problem with this [passing out jury nullification pamphlets near courthouses].  I don’t see why it should be any different if a juror happens to find out about jury nullification right before serving on a jury.  After all, courts have repeatedly held that jurors are allowed to engage in jury nullification without any repercussions, so it probably shouldn’t matter if they learned about the concept of nullification a month or an hour before serving on a jury.”

In the end, the charge against Julian Heicklen was dismissed.  One would hope that had the charge not been dropped and Heicklen had gone to trial, the jury of his peers would’ve acquitted him regardless of the proof the prosecution presented against him.

In today’s highly charged climate of political activism against war, police brutality, etcetera, combined with the prevalence of mandatory minimum sentences and increasingly over-reaching laws, the importance of knowing and understanding the right of US jurors to practice jury nullification cannot be understated.  It is critical that US citizens remember that the United States was founded on the principle of government that serves the people. A jury of peers, fully apprised of their rights and responsibilities as jurors, is one of the greatest protections of that principle.

How Sentence Enhancements Increase Plea Deals And Reduce Transparency in America’s Justice System

Author’s Note:  this article was originally published on Newsbud.com over a year ago and may contain outdated information.  I am posting it here now because it is no longer available on that website (more about that here).  I will be posting a couple additional articles that I wrote for Newsbud that are also no longer available there.

Katie Aguilera

Most Americans today are aware of mandatory-minimum sentences in federal and state criminal sentencing guidelines and the often excessive punishments they place on offenders. What is perhaps less well known is the existence of sentence enhancements in the US judicial system. These are defined as “facts and circumstances that, if present in your case, allow the sentencing judge to increase or ‘enhance’ the sentence that normally applies to the crime.”

This means a sentence determined by sentencing guidelines or mandatory-minimum requirements can be increased, or enhanced, for reasons such as the use of a weapon while committing the crime, repeat offenses, or the age of the victim. The increase in sentence length is then decided upon solely by the judge in the case.

When offenders find themselves facing such large sentences, and their defense attorney is, from the start, likely to be far behind the prosecutors in knowing what the facts of the case are, it becomes all too easy for prosecutors to push for and achieve a plea deal. A deal that allows for a much shorter sentence is a powerful enticement to encourage a defendant to admit guilt, regardless of whether genuinely guilty or not.

Consider this from a 2015 Texas A&M Law Review report: “our criminal justice system…suffers from practices related to sentencing enhancements and the resulting wave of wrongful convictions by guilty plea.”

An astounding 97% of federal criminal cases are resolved in plea bargains, as of 2013, according to this article by Jed S. Rakoff, published in November 2014. He adds that this is mirrored in state felony cases, with most states showing an average of around 95% of cases ending with plea bargains. Rakoff writes, “in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little to say, and the judge even less.”

The Sixth Amendment guarantees Americans the right to a public trial with an impartial jury. But, as Rakoff writes, “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.” No jury of peers to hear both sides of the story and weigh the arguments and evidence, or to decide on an appropriate sentence in the case of a guilty verdict.

One enhancement that carries significant weight and is quietly being used is the terrorism enhancement. This enhancement elevates a defendant’s criminal record to the highest level, therefore allowing a large increase in the recommended sentencing range. According to Shane Harris in this July 13, 2007 article, “the application of the terrorism enhancement has largely been overlooked by the media, legal scholars, Congress, and terrorism analysts.”

Harris writes in this article published the same day, “just figuring out how many times the government had sought the enhancement proved impossible–the U.S. Attorneys Office doesn’t track that figure. But I was able to determine that judges have applied the enhancement at least 57 times in the past eight years. I studied more than half those cases–35–and learned that prosecutors sought the enhancement more often against domestic defendants, as opposed to members of international terrorist groups.”

He adds that this enhancement most commonly targets offenders who weren’t religiously motivated and often “consciously avoided human casualties” in their attacks; that most were motivated by “political outrage, and specifically targeted government facilities.” His article highlights the case of Daniel McGowan who was arrested and charged on counts of arson and conspiracy in Oregon after starting a fire at a lumber mill in protest of logging operations. A terrorism enhancement was added in his case, and facing a life sentence, McGowan accepted a non-cooperation plea agreement and was sentenced to seven years in prison.

In fact, Harris points out, the terrorism enhancement can be applied simply because the judge in a case is convinced by the government that “the crime in question was aimed at the government and that it ‘involved, or was intended to promote’ a specific act of terrorism—even one that was never carried out.”

Consider the case of Ahmed Abassi, a student from Tunisia who, upon arriving in the US, was immediately caught up in an ongoing sting operation when he moved into an apartment wired with recording devices, hosted by an FBI undercover agent. Abassi was not one to hold back when talking about his dislike for the US. He was caught on tape discussing “the principle that America should be wiped off the face of the earth” and suggesting “putting bacteria in the air or water supply.”

However, when pushed to action, Abassi refused repeatedly. As Wendy Gillis points out in this March 12, 2015 article, the US federal prosecutor in the case, Michael Ferrera wrote in a court submission, “to be clear, there is no dispute that Abassi repeatedly and emphatically refused to participate in terrorist and violent plots.”

Abassi was arrested in the sting operation, and faced a terrorism enhancement in his case. He spent months in jail, and his attorney, US federal defender Sabrina Shroff said “it was apparent to her that Abassi had not provided the evidence the FBI needed to make its case, that he had not stepped over the line into active participation…Prosecutors told Shroff they would drop the terrorism enhancements if Abassi agreed to plead guilty to the charges that included putting false information on an application for a green card…”

According to Gillis, Abassi “plead guilty to two minor immigration offenses and was deported to Tunisia last fall.” Even though the terrorism enhancement was dropped, Abassi states, “I am still, in the eyes of the world, a terrorist.”

Plea deals are often sought to alleviate pressure on an already over-booked judicial system by keeping cases out of court, or to protect sources such as confidential informants, undercover officers, and cooperative witnesses. But the use of sentence enhancements in cases such as McGowan’s and Abassi’s raises the possibility of prosecution that is the result of a particular agenda. One possibility is that plea deals might be sought in conspiracy cases in order to put pressure on the other defendants allegedly involved in the crime. Another agenda might be making the case for increased measures to prevent acts of domestic terrorism. If the number of defendants charged with terrorism increase, raising fear within the American public, justification can be made for even greater loss of freedoms.

Achieving a plea deal to keep a case out of trial also allows for suppression of the evidence that would enter the public domain during a trial. Plea deals are negotiated out of the public’s view, with no scrutiny of evidence used against the defendant. This can allow questionable investigations, illegal evidence gathering, and an unknown number of innocent people being imprisoned without trial. Ultimately, a plea deal is an assured conviction as it eliminates the risk of a jury finding a reasonable doubt as to the defendant’s guilt.

This fact certainly benefits the private prison industry since convictions usually come with a prison sentence. According to Nicole Goodkind in this article published August 6, 2013, “private prisons bring in about $3 billion in revenue annually.” Even though sentences are generally shortened by plea deals, the rising number of convictions due to these deals over the past decades still ensures a viable supply of prisoners to fill private prisons.

The value of this growing market isn’t lost on the prison industrial complex, and companies invested in this industry have taken steps to ensure it continues to grow. Two of the largest private prison owners, Corrections Corporation of America and GEO, have become influential lobbyists, spending large sums of money to effect policy that benefits the growing business of incarcerating people. Michael Cohen wrote in Washington Post on April 28, 2015, that Corrections Corporation of America stated in it’s 2014 annual report:

The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction of parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”

As long as the federal government and large corporations continue to benefit from mandatory minimum sentencing and sentence enhancements, it seems unlikely that such policies will be changed. More laws will undoubtedly arise, creating even more crime, and America will continue to house the second largest prison population of countries with the most prisoners per 100,000 inhabitants.

The Expanding Use of National Security Letters

Author’s Note:  this article was originally published on Newsbud.com over a year ago and may contain outdated information.  I am posting it here now because it is no longer available on that website (more about that here).  I will be posting a couple additional articles that I wrote for Newsbud that are also no longer available there.

Katie Aguilera

Last month, the US senate came up two votes short of the necessary number needed to pass an amendment to a criminal justice spending bill that would have expanded the type of information that can be obtained with the use of a warrantless surveillance technique known as a national security letter. The Federal Bureau of Investigation has been pushing for this expansion for some time, and after the June 12th Pulse Nightclub shooting in Orlando, Florida, many expected the amendment would pass. It will likely be voted on again, as Senator Mitch McConnell (R-KY) has already filed to bring the measure back before the Senate.

A national security letter is a demand by law enforcement conducting national security investigations for information from companies about an individual’s use of services. National security letters, or NSLs, have been issued to libraries, internet service providers, telephone companies, even doctors and insurance companies, among others. The information sought might include records of internet usage, records of telephone calls, and banking and credit information. NSLs do not require approval from a judge, and they forbid the recipient from disclosing any details about the request to the public or the individual the requested information pertains to.

The use of national security letters (NSLs) by law enforcement to obtain data has greatly increased since the passing of the Patriot Act in 2001, and it shows no sign of slowing with this renewed push to expand the type of information that can be obtained with the use of NSLs. According to this transparency report on the use of National security authorities, 12,870 NSLs were issued in 2015. It is unlikely the FBI would not take advantage of expanded NSL capabilities, after all, they have demonstrated a willingness to abuse the NSL system already, in multiple cases.

As reported by the Intercept, the FBI continued to issue NSLs requesting data “’electronic communications transaction records’ — email metadata and header information, URL browsing data, and more,” even though, in 2008, President Bush’s Office of Legal Counsel advised that the FBI “was not entitled to anything more than basic subscriber information, including name, address, and toll billing records.”

According to a letter to the Senate judiciary committee signed by many civil liberty groups and businesses, an Office of the Inspector General audit from 2007 “found that the FBI illegally used NSLs to collect information that was not permitted by the NSL statutes.” It also points out that data collected from NSL demands was stored indefinitely, used to access information not related to any FBI investigation, and “NSLs were used to conduct bulk collection of tens of thousands of records at a time.”

The letter argues against the amendment, writing that the proposed expansion of the information susceptible to NSLs “would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight. The provision would expand the categories of records…that the FBI can obtain using administrative subpoenas called NSLs, which do not require probable cause.”

The letter goes on to say, “the new categories of information that could be collected using an NSL…would paint an incredibly intimate picture of an individual’s life. For example, [they] could include a person’s browsing history, email metadata, location information, and the exact date and time a person signs in or out of a particular online account.”

In the aftermath of various terrorist attacks like the Paris attacks of November 2015 and the recent Istanbul airport attack, as well as the San Bernardino attack last December and the mass shooting in Orlando last month, the rhetoric has grown increasingly alarmist about the possibility of more frequent and more harmful “lone-wolf” attacks. Proponents of increasing the reach of NSLs argue that such expansion will aid in identifying potential threats before they can attack. Senator John McCain stated on the floor of the Senate, “right now, there are unfortunately young people in this country that are self-radicalized, and what vehicle is doing the self-radicalization? It’s the internet.”

This argument is in spite of the fact that the Chairman of the Intelligence Committee, Senator Richard Burr (R-NC) admitted before the Senate vote on the NSL expansion amendment that it “would not have prevented the mass shooting in Orlando, or the attacks in San Bernardino in December of last year.” It also disregards the fact that FBI Director James Comey stated the FBI had conducted a full investigation into the Orlando, Florida shooter, Omar Mateen, under current laws, prior to the attack. He is quoted in this Bloomberg article as saying:

“We had the resources to do a 10-month investigation that based on my review was quite complete involving surveillance, sources, a review of electronic records, international records,” Comey said Monday, adding that agents recorded conversations with the shooter and reviewed ‘transactional records from his communications.’”

This raises the question, exactly how will expanding the use of an information gathering tool that is already arguably unconstitutional, and demonstrably ineffective, help to prevent future attacks? Ultimately, what would this expansion of the FBI’s ability to profile individuals as potential future threats based on data collected without a warrant accomplish?

It may very well present a number of opportunities to identify potential target sites for internet censoring such as is already being called for in the European Union. It also may effectively stifle transparency as NSLs are used to obtain information on journalists, and their sources. Consider this report in the Intercept last week on the FBI’s classified rules, leaked to the Intercept, for the use of NSLs to obtain information on journalists. As this Freedom Of The Press Foundation article states:

“First, the rules clearly indicate—in two separate places—that NSLs can specifically be used to conduct surveillance on reporters and sources in leak investigations. This is quite disturbing, since the Justice Department spent two years trying to convince the public that it updated its ‘Media Guidelines’ [found here] to create a very high and restrictive bar for when and how they could spy on journalists using regular subpoenas and court orders. These leaked rules prove that the FBI and DOJ can completely circumvent the Media Guidelines and just use an NSL in total secrecy.”

This will likely have the effect of intimidating and discouraging potential sources and whistleblowers for fear that NSLs demanding email and phone records will expose them, subjecting them to the Obama administration’s aggressive targeting of whistleblowers. If law enforcement can obtain such detailed information on an individual without any judicial oversight, people will be much less likely to risk speaking out on crimes committed by the government. This suggests that, rather than protecting the people from acts of terrorism, the use of national security letters ultimately serves to protect the Federal government from scrutiny.