It is "reasonable" for law enforcement officials to decide whether to place a tracking device on the car of a private citizen, one of the five members of President Obama's NSA review group charged with recommending surveillance policy has argued.
University of Chicago law professor Geoffrey Stone addressed the tracking issue in a February 12, 2012, Stanford Law Review article entitled, "A Reasonableness Approach to Searches After the Jones GPS Tracking Case."
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The Jones case centered on a private citizen, Antoine Jones, who was suspected of drug trafficking. Police had received a warrant to attach a GPS device to Jones' car for a limited period of time, but then exceeded the warrant by tracking him for a month and beyond the geography limited in the warrant.
The case went to the Supreme Court, which sided with Jones' attorneys, who had argued the police trespassed on private property – Jones' car – and had conducted an unreasonable search against the constraints of the Fourth Amendment.
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In his brief, Justice Stephen Breyer wrote to the police: "[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States."
"[I]f you win, you suddenly produce what sounds like 1984…"
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Justice Sonia Sotomayor warned about "the government's unrestrained power to assemble data" and its "unfettered discretion" to track citizens, which "may 'alter the relationship between citizen and government in a way that is inimical to democratic society.'"
However, Stone took issue with the Supreme Court ruling.
He looked to other case law to define reasonable "search or seizure" as that which is determined by law enforcement, pending judicial review after the fact.
Wrote Stone: "Some 'searches,' however, do not require warrants under existing case law. For instance, the mechanism of court review of new technologies could be similar to that for a Terry stop, the brief detention of a person by police based on reasonable suspicion.
"For Terry stops, the initial decision about reasonableness is made by law enforcement officials. The role of the courts is to review the reasonableness of the police behavior after the fact."
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He recommended "courts review the reasonableness of the police behavior after the fact."
According to Stone's plan for tracking, "The reasonableness of procedures for GPS tracking or other searches would be assessed by law enforcement initially. Courts would test that reasonableness only in a concrete case, after surveillance was conducted pursuant to the procedures."
He continued: "Effective procedures for a type of surveillance can and should be crafted in advance. Where a prior judicial warrant is not required, 'reasonableness' should still be required of police officers at the time of the action, and then tested after the fact by judicial scrutiny. Failure to craft procedures will often not be reasonable, nor will failure to comply with established procedures."
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Stone is just one of several controversial figures on Obama's NSA review panel.
The panel includes a controversial former administration official who once advocated government agents infiltrate chat rooms and online social networks.
Also on the panel is a resigning CIA official fingered in the scandal surrounding the White House's edited Benghazi talking points.
Cass Sunstein, Obama's former regulatory czar, is among the "high-level group of outside experts" probing government surveillance programs.
Also on the panel is recent acting head of the CIA, Michael Morell, who announced his resignation in June, the news network reported.
Obama announced the panel's formation in August, stating at the time the group will "consider how we can maintain the trust of the people [and] how we can make sure that there absolutely is no abuse."
Sunstein's role in the panel may not go a long way toward inspiring confidence in the group.
As WND previously reported, Sunstein advocated infiltrating the chat rooms and social network sites of private citizens, actions similar to what the National Security Agency is now accused of doing.
In a 2008 Harvard law paper, "Conspiracy Theories," Sunstein and co-author Adrian Vermeule, a Harvard law professor, ask, "What can government do about conspiracy theories?"
"We can readily imagine a series of possible responses. (1) Government might ban conspiracy theorizing. (2) Government might impose some kind of tax, financial or otherwise, on those who disseminate such theories," the paper answers.
In the 30-page paper – obtained and reviewed by WND – Sunstein argues the best government response to "conspiracy theories" is "cognitive infiltration of extremist groups."
Continued Sunstein: "We suggest a distinctive tactic for breaking up the hard core of extremists who supply conspiracy theories: cognitive infiltration of extremist groups, whereby government agents or their allies (acting either virtually or in real space, and either openly or anonymously) will undermine the crippled epistemology of believers by planting doubts about the theories and stylized facts that circulate within such groups, thereby introducing beneficial cognitive diversity."
Sunstein said government agents "might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action."
Sunstein defined a conspiracy theory as "an effort to explain some event or practice by reference to the machinations of powerful people, who have also managed to conceal their role."
Some "conspiracy theories" recommended for covert action by Sunstein include:
- "The theory of global warming is a deliberate fraud."
- "The view that the Central Intelligence Agency was responsible for the assassination of President John F. Kennedy."
- "The 1996 crash of TWA flight 800 was caused by a U.S. military missile."
- "The Trilateral Commission is responsible for important movements of the international economy."
- "That Martin Luther King Jr. was killed by federal agents."
- "The moon landing was staged and never actually occurred."
Sunstein allowed that "some conspiracy theories, under our definition, have turned out to be true."
He continued: "The Watergate hotel room used by Democratic National Committee was, in fact, bugged by Republican officials, operating at the behest of the White House. In the 1950s,
the CIA did, in fact, administer LSD and related drugs under Project MKULTRA, in an effort to investigate the possibility of 'mind control.'"
White House talking points
Morell, meanwhile, is also on the panel probing government surveillance.
Morell, who announced his resignation in June, may have misled lawmakers when he told senators in a briefing that references to terrorism and al-Qaida were removed from the White House's Benghazi talking points to "prevent compromising an ongoing criminal investigation."
A 46-page House Republican report from April probing the Benghazi attacks detailed how lawmakers who led the investigation were given access to classified emails and other communications that prove the talking points were not edited to protect classified information – as Morell had originally claimed – but instead to protect the State Department's reputation.
"Contrary to administration rhetoric, the talking points were not edited to protect classified information," states the "Interim Progress Report for the Members of the House Republican Conference on the Events Surrounding the Sept. 11, 2012, Terrorist Attacks in Benghazi."
"Evidence rebuts administration claims that the talking points were modified to protect classified information or to protect an investigation by the Federal Bureau of Investigation (FBI)," the report continues.
The report charges that the talking points were "deliberately" edited to "protect the State Department."
States the report: "To protect the State Department, the administration deliberately removed references to al-Qaida-linked groups and previous attacks in Benghazi in the talking points used by [United Nations] Ambassador [Susan] Rice, thereby perpetuating the deliberately misleading and incomplete narrative that the attacks evolved from a demonstration caused by a YouTube video."
The tale of the talking points began when U.S. intelligence officials testified behind closed doors in early November 2012 and were reportedly asked point blank whether they had altered the talking points on which Rice based her comments about the Benghazi attacks.
On Sunday, Sept. 16, 2012, Rice appeared on five morning television programs to discuss the White House response to the Benghazi attacks. In nearly identical statements, she asserted that the attacks were a spontaneous protest in response to a "hateful video."
Other Obama administration officials made similar claims.
Two congressional sources who spoke to Reuters on condition of anonymity said Morell, then acting CIA director, along with Director of National Intelligence James Clapper and National Counterterrorism Center Director Matthew Olsen, each testified behind closed doors that they did not alter the talking points.
On Nov. 16, 2012, former CIA director David Petraeus testified before the same congressional intelligence committees and also replied no to the question of whether he had changed the talking points, three congressional sources told Reuters.
Then, on Nov. 27, the CIA reportedly told lawmakers that it had in fact changed the wording of the unclassified talking points to delete a reference to al-Qaida, according to senators who met with Morell that day.
The Nov. 27 meeting was between Morell, Rice and Republican Sens. John McCain, Lindsey Graham and Kelly Ayotte.
The three senators said in a statement that Morell told them during the meeting that the FBI had removed references to al-Qaida from the talking points "and did so to prevent compromising 'an ongoing criminal investigation'" of the attack on the U.S. mission.
The senators' joint statement reads: "Around 10:00 this morning in a meeting requested by Ambassador Rice, accompanied by acting CIA Director Mike Morell, we asked Mr. Morell who changed the unclassified talking points to remove references to al-Qaida.
"In response, Mr. Morell said the FBI removed the references and did so to prevent compromising an ongoing criminal investigation. We were surprised by this revelation and the reasoning behind it," the senators wrote.
Morell's claim of changing the talking points for security reasons is now contradicted by the new Republican probe.
Further, on Nov. 28, 2012, CBS News reported the CIA then told the news agency that the edits to the talking points were made "so as not to tip off al-Qaida as to what the U.S. knew, and to protect sources and methods."
That same report quoted a source from the Office of the Director for National Intelligence who told Margaret Brennan of CBS News that the source's office made the edits as part of the interagency process because the links to al-Qaida were deemed too "tenuous" to make public.
Meanwhile, a few hours after his meeting with the senators, Morell's office reportedly contacted Graham and stated that Morell "misspoke" in the earlier meeting and that it was, in fact, the CIA, not the FBI, that deleted the al-Qaida references.
"CIA officials contacted us and indicated that Acting Director Morell misspoke in our earlier meeting. The CIA now says that it deleted the al-Qaida references, not the FBI. They were unable to give a reason as to why," said the senators' statement.
"This was an honest mistake and it was corrected as soon as it was realized. There is nothing more to this," an intelligence official said about Morell’s briefing to the senators.
The official said the talking points "were never meant to be definitive and, in fact, noted that the assessment may change. The points clearly reflect the early indications of extremist involvement in a direct result. It wasn't until after they were used in public that analysts reconciled contradictory information about how the assault began."
However, the intelligence community clearly at first portrayed the edited White House talking points as a bid to protect classified information.
White House fingers Morell
Morell's involvement in the talking points was further called into question in a New York Times article quoted administration officials who said Morell deleted a reference in the draft version of the talking points to CIA warnings of extremist threats in Libya, which State Department officials objected to because they feared it would reflect badly on them.
The officials said Morell acted on his own and not in response to pressure from the State Department.
According to the interim House report on Benghazi, after a White House deputies meeting on Saturday, Sept. 15, 2012, the administration altered the talking points to remove references to the likely participation of Islamic extremists in the attacks.
The administration also removed references to the threat of extremists linked to al-Qaida in Benghazi and eastern Libya, including information about at least five other attacks against foreign interests in Benghazi.
Charged the report: "Senior State Department officials requested – and the White House approved – that the details of the threats, specifics of the previous attacks, and previous warnings be removed to insulate the department from criticism that it ignored the threat environment in Benghazi."
The report authors said that they went through email exchanges of the inter-agency process to scrub the talking points. They wrote the emails do not reveal any concern with protecting classified information.
"Additionally, the bureau itself approved a version of the talking points with significantly more information about the attacks and previous threats than the version that the State Department requested," the report concluded. "Thus, the claim that the State Department's edits were made solely to protect that investigation is not credible."
In a particularly stinging accusation, the report states that when draft talking points were sent to officials throughout the executive branch, senior State Department officials requested the talking points be changed "to avoid criticism for ignoring the threat environment in Benghazi."
"Specifically, State Department emails reveal senior officials had 'serious concerns' about the talking points, because members of Congress might attack the State Department for 'not paying attention to agency warnings' about the growing threat in Benghazi," the report claimed.
With research by Brenda J. Elliott.