Nearly seven months after the first shots were fired, the Pentagon has released its full report detailing the night of chaos and horror that left 42 patients and staffers dead at a Doctors Without Borders hospital in Kunduz, Afghanistan. In publishing the highly anticipated account, the military concluded that its attack did not amount to a war crime because its effects were not intentional, a view at odds with certain interpretations of international law.
In the wake of the attack, Doctors Without Borders, also known by its French name, Médecins Sans Frontières, or MSF, described the October 3 raid as “abhorrent and a grave violation of international humanitarian law,” adding, a “war crime has been committed.”
In announcing the report today, Gen. Joseph Votel, the head of U.S. Central Command, argued that was not the case.
“The label ‘war crimes’ is typically reserved for intentional acts — intentional targeting [of] civilians or intentionally targeting protected objects or locations,” the general said. The Americans “had no idea,” they were targeting the hospital, Votel said, and once they recognized what was happening, they called off the attack.
In a statement, MSF said it had not had an opportunity to review the military report before it was posted online, though the organization did receive a two-hour verbal briefing from Votel on Thursday. The humanitarian group fired off a set of unanswered questions, and repeated its call for an independent inquiry into the attack by the International Humanitarian Fact Finding Commission.
“MSF and other medical care providers on the front lines of armed conflicts continually experience attacks on health facilities that go uninvestigated by parties to the conflict,” the statement read. “However, MSF has said consistently that it cannot be satisfied solely with a military investigation into the Kunduz attack.”definition, “war crimes are violations that are committed willfully, i.e., either intentionally…or recklessly…The exact mental element varies depending on the crime concerned.” Following the release of the report, Patricia Gossman, Human Rights Watch’s senior researcher in Afghanistan, tweeted, “It is established principle of customary international law that war crimes can be committed through recklessness.”
What’s more, Votel’s claim appeared inconsistent with the military’s own law of war manual, which states, “In some cases, the term ‘war crime’ has been used as a technical expression for a violation of the law of war by any person; i.e., under this usage, any violation of the law of war is a war crime. This has been longstanding U.S. military doctrine.” According to the findings of their report, the investigators looking into the Kunduz attack noted violations of the rules of engagement, and also breaches of the laws of war.
MSF president Meinie Nicolai said that “a grave breach of international humanitarian law” is not determined solely by whether or not the act was intentional.
“With multinational coalitions fighting with different rules of engagement across a wide spectrum of wars today, whether in Afghanistan, Syria, or Yemen, armed groups cannot escape their responsibilities on the battlefield simply by ruling out the intent to attack a protected structure such as a hospital,” Nicolai added.
The Kunduz report comes in the context of a disturbing trend of attacks on medical facilities. This week, an MSF-supported hospital was bombed in Syria, killing three doctors. MSF says seven medical facilities that it works with in Syria have been hit this year, while four have been bombed in Yemen.
Votel, who was the head of U.S. Special Operations Command at the time of the Kunduz raid, confirmed that more than a dozen U.S. service members were disciplined for their roles in the airstrike — they would not, however, face criminal charges in connection with the ordeal. Repeating much of what the military has already claimed with respect to the attack — an account that has changed multiple times — Votel framed the tragedy as the result of overlapping human and technological errors.
“The investigation found that the incident resulted from a combination of unintentional human errors, process errors and equipment failures, and that none of the personnel knew they were striking a hospital,” the general said. “The trauma center was a protected facility but it was misidentified during this engagement.”
According to the general, the AC-130 involved in the attack had come under fire early in its mission from a surface to air missile, and as a result was searching for Taliban attackers on the ground. “Instead they found the Doctors Without Borders trauma center,” Votel said of the hospital, which provided crucial medical services in northern Afghanistan.
With more than 65 witnesses interviewed, Votel described the military’s report as “a thorough investigation.” It found that there was no gunfire coming from the hospital at the time of the attack, and the American forces believed they were engaging a target some 400 meters away.
The Taliban had overrun Kunduz in the preceding weeks and the Americans, along with their Afghan allies, were on edge. “This was an extraordinarily intense situation,” Votel told reporters.
The general confirmed that the hospital was on a “no strike” list but said that because the mission was launched more than an hour earlier than planned, in an effort to provide support to U.S. and Afghan forces on the ground, the list was not loaded onto the plane’s internal information systems.
A total of 16 U.S. personnel — including a two-star general, the crew of the Air Force AC-130 gunship that carried out the raid, and Army special forces members — have been disciplined as a result. One officer was sent home from Afghanistan. The remaining personnel received more mild reprimands.
Commenting on the punishments Friday, Votel said they “can carry severe repercussions” including “possible separation from the service,” and were “appropriate to address the errors they made.”
While the letters of reprimand could be career-ending, they will likely serve as cold comfort for the family members of the victims.
The military’s response does not assure the future of MSF’s work in one of Afghanistan’s most volatile regions.
“We can’t put our teams – including our colleagues who survived the traumatic attack – back to work in Kunduz without first having strong and unambiguous assurances from all parties to the conflict in Afghanistan that this will not happen again,” Nicolai, the MSF president, said.
The Pentagon has approved a $5.7 million effort to rebuild the facility it destroyed, and as “a gesture of sympathy,” more than 170 individuals have received condolences for loved ones injured or killed, Votel said. “$3,000 for wounded and $6,000 for killed,” he said.
On Thursday, The Intercept published a months-long investigation into the attack on the hospital, based on dozens of interviews with American and Afghan officials, witnesses, regional experts and survivors of the air raid. The picture that emerged was one of remarkable confusion about who was in charge, and of a divergence between how American and Afghan forces viewed the situation.
Afghan authorities claimed that the Taliban were using the hospital to launch attacks — despite fervent denials from MSF that there were armed fighters in the compound, and a lack of evidence to back up the Afghan officials’ claims. A senior Western official told The Intercept that the Afghans’ “biggest fear after the strike was that this would put a chill on their being able to request U.S. air support when shit hits the fan.”
Though the United States pulled back its operations in Afghanistan at the end of 2014, the Afghan military is still heavily dependent on U.S. air support. Last year, the rate of civilian casualties from U.S. airstrikes in Afghanistan actually increased to its highest point since 2008, leading to concerns that strikes were becoming less accurate or that targeting standards had changed.
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The post Pentagon Denies War Crimes Allegations In Kunduz Hospital Killings appeared first on The Intercept.
At first glance, the heated argument two members of the British Labour Party conducted in front of reporters’ iPhones on Thursday, sparked by accusations that one of their colleagues posted anti-Semitic comments on Facebook, seems like a story of interest mainly to political junkies in London.
Watch this. Extraordinary. John Mann MP: You're a disgusting Nazi apologist, Livingstone'. pic.twitter.com/1wlbA1BmND
— Chris Ship (@chrisshipitv) April 28, 2016
When the debate is unpacked, however, it becomes clear that what’s at stake is something much broader: whether critics of Israel, who question its government’s policies or its right to exist as a Jewish state, are engaged in a form of coded anti-Semitism. That matters because attempts to disqualify all critics of Israel as racists are widespread across the globe.
In the United States, for instance, supporters of a movement to boycott Israel until it grants Palestinians full civil rights have recently been condemned as anti-Semites by Hillary Clinton; last month, the University of California, adopted a policy on discrimination that implies anti-Semitism is behind opposition to Zionism, the political ideology asserting that the Jewish people have a right to a nation-state in historic Palestine.
But how did this issue come to dominate the political debate in Britain, a week before important local elections?
The uproar in began on Tuesday, when Paul Staines, a right-wing political blogger who writes as Guido Fawkes, reported that a Labour member of Parliament, Naseem Shah, had shared a Facebook meme in 2014 suggesting that Israelis should “relocate” en masse to the United States.
— Guido Fawkes (@GuidoFawkes) April 26, 2016
As Shah scrambled to explain and apologize, pointing out that she endorsed the meme “before I was elected as an MP” and “at the height of the Gaza conflict in 2014, when emotions were running high,” Staines uncovered two more anti-Israel comments she posted on Facebook that same summer.
I am truly sorry and I will be putting out a more detailed explanation later. pic.twitter.com/x74FDKNCJE
— Naz Shah MP (@NazShahBfd) April 26, 2016
One of Shah’s Facebook posts, from late July, 2014, pointed to an article by a former deputy prime minister, John Prescott, who argued that Israeli air strikes on Gaza that month were “so brutally disproportionate and so grossly indiscriminate” as to constitute “war crimes.” At the time, Shah urged her Facebook followers to voice their agreement with Prescott in an online poll at the foot of the page since, she said, “The Jews are rallying to the poll at the bottom and there is now 87% disagreeing.”
— Guido Fawkes (@GuidoFawkes) April 26, 2016
In another Facebook update discovered by Staines, Shah had added the comment #APARTHEID ISRAEL to a repurposed meme created by an American Tea Party group. The meme displays a mugshot of Dr. Martin Luther King Jr. taken after his arrest during the 1956 Montgomery bus boycott above a quote from his 1963 “Letter from Birmingham Jail.” The words are part of King’s justification for breaking unjust laws through civil disobedience: “never forget that everything Adolf Hitler did in Germany was ‘legal.'”
The meme, clearly intended in its original form to equate Obama to Hitler — and so justify disobeying American laws considered tyrannical by the far-right — was used by Shah to suggest something else: that Israel’s treatment of the Palestinians is akin to the way Nazi Germany treated its Jewish population and Apartheid-era South Africa subjugated black Africans. (The meme also omits what comes next in King’s letter: “It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers.”)
Staines, who functions like an opposition researcher for conservative causes, correctly reported that Shah had compared Israel to Hitler’s Germany. But as the story spread across the British press, several journalists mistakenly referred to the meme as evidence Shah had claimed Hitler’s persecution of the Jews was not objectionable because it was legal.
In the context of British politics, the timing could not have been worse, coming just a week before local elections and amid an investigation into allegations that Oxford University’s student Labour club had supported Israeli Apartheid Week on campus because of what one former member called “some kind of problem with Jews.”
One Labour activist, Jon Lansman, told the BBC that he suspected Conservative opposition researchers had been “trawling Twitter feeds and Facebook pages looking for evidence which has been stored until a week before the local elections and the London mayor elections.”
Shah, who is of Pakistani Muslim origin, apologized at greater length on Wednesday, in print and in the House of Commons, acknowledging that “referring to Israel and Hitler as I did is deeply offensive to Jewish people.” She was also suspended by the party. Still, some of her colleagues continued to defend her.
Ken Livingstone, the former mayor of London, denied that Shah’s posts were anti-Semitic in a BBC radio interview on Thursday. “She’s a deep critic of Israel and its policies,” Livingstone said. “Her remarks were over the top but her remarks were not anti-Semitic.”
Livingstone, whose far-left politics and affection for his pet newts have made him a figure of ridicule for the right-leaning press for decades, added that he was defending his colleague because of a wider principle. “There’s been a very well-orchestrated campaign by the Israel lobby to smear anybody who criticizes Israeli policy as anti-Semitic,” he told the BBC. “I had to put up with 35 years of this.”
But when he was asked why Shah’s use of the meme about Hitler was not anti-Semitic, Livingstone veered off-topic, into an over-simplified and misleading account of German history that enraged many of his own colleagues. “Let’s remember, when Hitler won his election in 1932, his policy then was that Jews should be moved to Israel — he was supporting Zionism,” Livingstone claimed. “This was before he went mad and ended up killing six million Jews.”
Within minutes, as Livingstone’s comments were reported in shorthand as “Hitler was a Zionist,” senior members of his party, including Sadiq Khan, Labour’s candidate in next week’s London mayoral election, called for him to be expelled for what sounded like an absurd attempt to smear Israel by numbering history’s most infamous anti-Semite among the ranks of its supporters.
Ken Livingstone's comments are appalling and inexcusable. There must be no place for this in our Party.
— Sadiq Khan MP (@SadiqKhan) April 28, 2016
A period of silence from Ken Livingstone is overdue, especially on antisemitism racism & Zionism. It’s time he left politics altogether
— Jon Lansman (@jonlansman) April 28, 2016
I am appalled by Ken Livingstone's despicable comments. There is no place in our party for racism, bigotry or intolerance of any sort.
— David Lammy (@DavidLammy) April 28, 2016
Some of the more printable remarks used by members of both Corbyn and McDonnell's offices about Ken: "What fucking planet is he on?"
— Paul Waugh (@paulwaugh) April 28, 2016
Then, as he was walking along the street, and conducting another radio interview by phone, Livingstone was suddenly confronted by John Mann, a Labour MP who has been lauded for his work by the American Jewish Committee for his leadership of a parliamentary group fighting anti-Semitism.
That exchange, which made for riveting viewing, started with Mann calling his colleague “a disgusting Nazi apologist,” for suggesting that Hitler had supported efforts to establish a Jewish state in Palestine during his 1932 election campaign. As Mann stressed, Hitler had, in fact, derided Zionists as charlatans in his 1925 memoir, “Mein Kampf,” arguing that a Palestinian Jewish state would be just a haven for criminals bent on world domination.
Livingstone, for his part, acknowledged that “Hitler was a mad anti-Zionist, he wanted to kill all Jews,” but insisted that “his policy in ’32, when he won that election, was to deport Germany’s Jews to Israel, and the Zionist movement had secret meetings with his administration talking about that.” Mann, Livingstone said, should “check your history.”
Although the expulsion of German Jews to Palestine was certainly a trope of Nazi literature, Hitler was not, of course, elected in 1932 because he promised to move Jews to Israel, a state that would not exist until 16 years later and be populated, in part, by survivors of the Holocaust.
The vile things the Nazis were actually saying about the Jews that year is captured in a chilling propaganda pamphlet produced by Goebbels which called for “A solution to the Jewish question,” through “the systematic elimination of foreign racial elements from public life in every area.” A Nazi government, the platform said, would introduce “a sanitary separation between Germans and non-Germans on racial grounds exclusively, not on nationality or even religious belief.” There was no endorsement of the Zionist project or plan to expel German Jews there.
So what was Livingstone talking about? He appears to have been using “Hitler” as shorthand for the Nazi government and referring to a real instance of cooperation between Germany and the Zionist movement that began in 1933 — an episode Livingstone discussed at length in his 2011 memoir, “You Can’t Say That.” Just months after Hitler came to power, in 1933, the Zionist-led Jewish Agency in British-administered Palestine did strike an agreement with the Nazis to facilitate the emigration of about 20,000 German Jews to Palestine over the next decade. As the Israeli historian Tom Segev described it in his book, “The Seventh Million,”
The haavara (“transfer”) agreement — the Hebrew term was used in the Nazi documents as well — was based on the complementary interests of the German government and the the Zionist movement: the Nazis wanted the Jews out of Germany; the Zionists wanted them to come to Palestine.
Segev notes that the agreement, which remained in force until the middle of World War II, was a point of contention between the Zionist leadership in Tel Aviv and Jewish leaders in the United States, who still hoped in 1933 that an international economic and diplomatic boycott of Germany could “force the Nazis to halt their persecution, so that Jews could continue to live in Germany.”
(Given the current furore in London, it is interesting to note that Segev presents evidence in another book, “One Palestine, Complete,” that the senior British officials who committed their government to the creation of a Jewish homeland in 1917 were, “in many cases, anti-Semitic.” Those officials, Segev argued, agreed to help the Zionists, because of they had embraced anti-Semitic conspiracy theories so fully that “They believed the Jews controlled the world.”)
In his book, Livingstone recounts learning of this history from “Zionism in the Age of Dictators,” by the Jewish-American activist and writer Lenni Brenner. That book, which was published in Britain because Brenner could not find an American imprint, also described a 1937 visit to Palestine by a Nazi official, Adolf Eichmann, when the SS briefly considered and then rejected the idea of deporting Germany’s Jews there. “Brenner’s book helped form my view of Zionism and its history,” Livingstone wrote, “and so I was not going to be silenced by smears of anti-Semitism wherever I criticized Israeli government policies.”
In a phone interview on Friday, Brenner told The Intercept that he has been friends with Livingstone since a U.K. book tour in 1983. He added that he was certain that when the former mayor said Hitler “was supporting Zionism,” that was “shorthand for ‘the Nazis supported'” the Zionist project in 1933 through the haavara agreement, which also permitted the transfer of some Jewish wealth to Palestine. “A German Jew would give money to the Nazi government,” Brenner explained, “the Nazi government would then send German goods to Palestine, where the Zionists would sell them, then give most of the money to the German Jew when he arrived in Palestine.”
“Hitler had to know some of that,” Brenner argued, “you don’t do things like that in a dictatorship without the dictator knowing — and on so central an issue to them as the Jews.”
In subsequent television interviews on Thursday, Livingstone tried to avoid questions about Hitler and return to his argument that Shah’s criticism of Israel was not anti-Semitic.
— BBC News (UK) (@BBCNews) April 28, 2016
“We can’t confuse criticizing the government of Israel with anti-Semitism,” he told the BBC. “If you’re anti-Semitic, you hate Jews — not just the ones in Israel, you hate your neighbor in Golder’s Green, or your neighbor in Stoke Newington. It’s a deep personal loathing, like racism. And one of my worries is that this confusion of anti-Semitism with criticizing Israeli government policy undermines the importance of tackling real anti-Semitism — the attacks that are made on Jews.”
After that interview, as he made his way out of the BBC’s Milbank Studios in London, Livingstone was surrounded by reporters, including the BBC’s John Sweeney, demanding to know why he brought up Hitler in the first place.
It seemed like a fair question, but Livingstone, who was suspended by his party later in the day, tried to dodge it, by claiming that he was just responding to a question about Shah’s Facebook post. In reality, it seems fair to say that Livingstone was trying to discredit Zionism as a form of extreme nationalism by reminding listeners that its leaders had once cooperated with Hitler’s government. As an ardent defender of Palestinian rights, Livingstone comes from a part of the British left that supported the effort to have Zionism condemned “as a movement based on racial superiority” at a United Nations conference on racism in Durban, South Africa in 2001.
While that language was never adopted, thanks in part to pressure from the United States and Israel, there remains a lot of sympathy for the position in Britain today. According to Jim Waterson, BuzzFeed UK’s politics editor, on Thursday night, the top comments on the Facebook pages of almost every major British news organization were “very, very strongly pro-Ken.”
All the top comments on the Facebook page of almost every major UK news outlet are very, very strongly pro-Ken. pic.twitter.com/R6xamdViDm
— Jim Waterson (@jimwaterson) April 28, 2016
Of course, Hitler is also regularly used by Israeli officials in rhetorical attacks on their enemies, some of them displaying even less regard for historical accuracy than Livingstone.
Just five months ago, Prime Minister Benjamin Netanyahu baffled historians when he claimed that, as late as November of 1941, when the Nazi leader met with an anti-Semitic Palestinian official, “Hitler didn’t want to exterminate the Jews at the time, he wanted to expel the Jews.” Netanyahu went on to claim, despite a total lack of evidence, that it was Haj Amin al-Husseini, the grand mufti of Jerusalem, who convinced Hitler to “burn” rather than simply expel the German Reich’s Jewish population, out of fear that they would emigrate en masse to Palestine.
Like Livingstone, Netanyahu brought up Hitler, or a fictional version of Hitler, to help make a broader argument. In this case, to support the claim, regularly put forth by his government, that Palestinian hatred and violence is in no way a reaction to any Israeli action, but simply an expression of a pathological hatred of Jews by Muslim fanatics equal to if not greater than that of the Nazis and their European collaborators.
In response to Netanyahu’s bizarre “fairytale about Hitler,” which strangely dovetails with Livingstone’s, Tom Segev observed in the Guardian:
The mufti’s support for Nazi Germany definitely demonstrated the evils of extremist nationalism. However, the Arabs were not the only ones who were seeking a deal with the Nazis. At the end of 1940 and again at the end of 1941, before the Holocaust reached its height in the extermination camps, a small Zionist terrorist organization – Fighters for the Freedom of Israel, also known as the Stern Gang – made contact with Nazi representatives in Beirut, hoping for support for the struggle against the British. One of the Sternists, in a British jail at the time, was Yitzhak Shamir, a future Israeli prime minister.
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On the morning of April 15, Pat Hartwell drove up from her home in Houston, Texas, to the Crowne Plaza Hotel in Austin, where the Texas Department of Criminal Justice, which runs the state’s prisons, was holding a board meeting. The board only offers a public comment period during two of its meetings each year, and this would be the first time in 2016 that the public would have a chance to air grievances or concerns about agency operations, for example, or prison conditions.
For Hartwell, a well-known anti-death penalty activist in Texas, the timing of the meeting was opportune; roughly a week earlier, word had spread among prisoners, family members, and activists that the director of the TDCJ had established a new rule forbidding any prisoner from maintaining a social media presence. Hartwell has for years maintained a Facebook page for a death row inmate she is certain is innocent, and she wanted some answers.
In a section of the 146-page Offender Orientation Handbook reserved for “standards of behavior” — between a rule requiring prisoners to “show respect” in their interactions with others and another forbidding “fighting, scuffling, horseplay, or similar activities” — there had appeared a seemingly incongruous new rule stating that prisoners “are prohibited from maintaining active social media accounts for the purposes of soliciting, updating, or engaging others, through a third party or otherwise.”
Hartwell and others only found out about it because the wife of a death row prisoner happened to be visiting her husband on the day inmates there discovered the new policy. The lack of explanation or guidance concerning its provenance was disconcerting (as far as anyone knew, the rule was never vetted by the department’s board). And they were confused about why it hadn’t been brought directly to anyone’s attention (the responsibility for keeping abreast of new rules falls squarely on the offenders, activists say prisoners were told).
But more importantly, prisoners and their advocates didn’t understand the scope of the new rule. In Texas (as in most places), prisoners have no direct access to the internet, so anything about them that appears online is posted by a third party — by definition, a person who is not under the supervision of the department of corrections. As such, the new rule would infringe on the free speech and expression rights of ordinary citizens — a proposition of dubious constitutionality, says David Fathi, director of the ACLU’s National Prison Project.
They also didn’t understand why social media was being targeted — or whether the rule was intended to include other uses of the internet, including websites and blogs dedicated to prisoner artwork, exposing abuses inside facilities, or drawing attention to specific cases of apparent wrongful conviction. And since the same information published on a website could easily be — and often is — posted to Facebook and other social media platforms, there was concern the rule was made to be flexible enough that TDCJ could easily broaden its scope to attack other online content.
Upon learning of the rule, Hartwell penned an email to agency spokesperson Jason Clark with a list of questions. When she didn’t hear back, she emailed the head of TDCJ, its general counsel, and its ombudsman. The day before the April board meeting, she got a short reply from the ombudsman that didn’t exactly assuage her concerns — or directly address the majority of her questions. It was, she would tell the board, an “inadequate answer.” Restating the new rule, the ombudsman said that it applied to all social media, and not only would offenders be punished for violating it, but outside third parties would be as well, by having their ability to visit or correspond with their loved ones suspended.
By the time Hartwell arrived at the Crowne Plaza for the meeting, she was mad; she felt forced by the TDCJ to take offline the Facebook page she had long maintained. And that quickly turned into frustration when a board coordinator approached to deliver a bit of confounding news. Because there were so many people signed up to speak during the public comment period (including three who wanted to speak about the social media rule), the board’s chair had decided to chop in half each speaker’s normal allotted time of three minutes. How many people were signed up? The board rep didn’t know; this is what the chairman has decided, she said.
But throughout the comment period, the rules kept changing, and not everyone got the promised 1 1/2 minutes. First, Chair Dale Wainwright, a former jurist on the Texas Supreme Court, announced that individuals who’d signed up to speak on the same topic would have to coordinate among themselves to figure out who would abridge and deliver comments on behalf of the group — regardless of whether the individuals had similar comments to make. For social media comments, he would offer a total of two minutes. Midway through the meeting, Wainwright changed the rules again, offering each speaker just 60 seconds to communicate their complaints and concerns.
After the comment period — during which board members did not respond to questions (Wainwright promised each speaker would later receive a written response) — Hartwell was quick to link the chair’s actions to concerns about the social media rule. If the board so easily bent its rules for citizen communications, what was to keep the agency from bending its social media rule too? “They’re very arbitrary,” she told The Intercept. “They do what they want to do, and this is what scares me about this stuff.”
The new rule first made news on April 12, when a reporter for the local FOX station in Houston essentially took credit for its creation. According to the reporter, the rule followed from a story he did back in January that drew attention to a Facebook page maintained for a prisoner named Elmer Wayne Henley Jr., who in the early 1970s, was an accomplice to the sexual assault and murder of more than two dozen teenage boys. In addition to written posts, Henley’s page was apparently displaying jewelry for sale and other art that he made in prison.
Although he didn’t mention Henley directly, TDCJ spokesperson Jason Clark later said the rule was necessary because some inmates had misused their accounts. “Offenders have used social media accounts to sell items over the internet based on the notoriety of their crime, harass victims or victims’ families, and continue their criminal activity,” he told Fusion in an email. Of course, trying to sell so-called murderabilia or threatening or harassing victims is already prohibited under TDCJ rules. Given that the content for Facebook and other internet sites must be transmitted from prison via mail, phone, or in-person visit, all of which are heavily monitored, it is hard to see how banning social media for all prisoners would be necessary to ferret out such violations.
When asked to provide details on incidents that prompted adoption of the rule, Clark referred The Intercept to the agency’s Office of the Inspector General, suggesting we file an open records request for the information. In a follow-up email, he said there was “not one specific incident related to an offender that prompted the new rule.” Rather, he wrote, it was that “it had become more difficult to have an offender’s social media account take down because the agency had no policy that specifically prohibited it.”
As it turns out, Facebook, at least, has been censoring prisoner pages for a number of years — despite its stated goal of giving “people the power to share and to make the world more open and connected.” According to reporting by the Electronic Frontier Foundation, from at least 2011 through early 2015, prison officials and Facebook shared a “special arrangement” whereby a prison could provide Facebook with links for prisoner pages it wanted removed, and Facebook would then suspend those profiles, “often [with] no questions asked, even when it wasn’t clear if any law or Facebook policy was being violated.”
Records obtained by EFF showed that Facebook had censored hundreds, if not thousands of accounts in this fashion. In the wake of the revelations, Facebook revised its procedures, creating a form for prison officials to fill out that includes not only information about the prisoner in question, but also a requirement that the complaint include a link to “applicable law or legal authority regarding inmate social media access,” EFF reported. If no rule or law is in place, the prison must provide “specific” safety-related reasons that the page should be taken down.
In an email to The Intercept, Clark confirmed that TDCJ had benefited from a chummy relationship with Facebook: Prior to adopting its new rule, the agency had requested that prisoner pages be suspended, and Facebook had granted those requests. He did not say how many requests TDCJ made or how many suspensions occurred as a result — again suggesting that we send an open records request to the OIG for the information. (The Intercept has submitted such a request.)
Clark insists the rule is aimed only at social media and that third party-maintained prisoner blogs and websites are still allowed. When asked why that is, if the content is essentially the same, he explained that the agency has no mechanism to request the removal of other web content. So, if such a mechanism existed, would TDCJ prefer that all online prisoner-related content be eliminated? “I’m not going to get into some hypothetical, ‘if there was a rule,’ are we going to try to get that off,” he said.
The real issue, Clark wrote in an email, is that the prisoner Facebook pages not only violate TDCJ’s new rule, but also the company’s own terms of service — including a provision that the TDCJ believes forbids third parties from updating a page. “We are asking social media companies to take down accounts of offenders who are not updating them themselves, which would be a violation of their terms of agreements,” he wrote. “Speech on platforms such as Facebook and Twitter is as free as the terms of their agreements permit.”
But it isn’t clear that the agency’s reading of Facebook’s terms of service is accurate. The company forbids sharing a password or allowing anyone to “access your account” — which is one kind of third-party access. But offenders don’t actually create their own pages (unless, of course, the page was set up by a prisoner using a contraband cellphone — but that would be its own, separate TDCJ rules violation). The other kind of third-party access — having a person who is not in prison create and maintain the account — is not expressly forbidden by Facebook’s terms.
Facebook did not respond to requests for comment for this story.
Texas isn’t the only state where corrections officials have tried to tamp down prisoner access to the online world — though it is hard to know exactly how many states have such a rule on the books. New Mexico has a rule (EFF and other activists have asked that it be repealed), as do Alabama and South Carolina. South Carolina’s rule is particularly punitive; it is a violation of the highest level and can land a prisoner in solitary confinement for years. As EFF has reported, one South Carolina inmate was given 37 years in solitary for violating the social media rule. In Texas, the offense isn’t considered as serious. Still, violating the rule can get an inmate confined to his cell for up to 30 days at a time.
And although Texas insists its policy does not violate the free speech rights of either prisoners or the public, the ACLU’s David Fathi disagrees. “They are purporting to regulate the speech not only of prisoners, which is problematic, but they’re purporting to regulate the speech of non-prisoners in the entire world and they can’t constitutionally do that,” he said. Prisons have the right to regulate speech “to the extent that it’s necessary for prison safety and security,” he said. Since the speech in question happens “completely outside the prison,” he argues that any link to an actual penological interest “seems extremely attenuated or nonexistent.”
A federal court case decided in 2003 supports Fathi’s position. In 2000, Arizona legislators passed a law prohibiting prisoners from any internet access; at least five inmates were subsequently punished after officials found mention of them online. In 2002, the Canadian Coalition Against the Death Penalty — represented by Fathi and the ACLU — sued, arguing the restriction was unconstitutional. A year later, a federal district judge agreed. Although Arizona had argued its ban was necessary to prevent nefarious activity — like harassing victims, a motivation Texas cited in creating its rule — there were already rules and statutes prohibiting such conduct, which is also true in Texas. Ultimately, the Arizona judge found that the state could advance its penological interests without the internet ban — by enforcing existing regulations.
Anthony Graves, who spent 18 years in prison in Texas, including 12 on death row, before being exonerated for a grisly multiple murder that he did not commit, expressed his concern that unless the rule is repealed, wrongful convictions like his will go unnoticed. “I don’t see this as a security breach because its been going on” for a long time, he said, referring to prisoners’ presence on social media. “It’s another way to oppress an inmate,” blocking him from interaction with family and others in the outside world, “and it takes away a tool from those with legitimate claims of innocence,” he said. “The most powerful tool innocent people have is social media.”
Fathi says the Texas rule and others like it not only do damage to free speech rights, but simply make no sense. “Some prison officials fear the internet. They don’t really understand it and they attribute to it magical powers. And I think that lies at the root of nonsensical rules like this,” he said. “Everyone agrees that a prisoner could write a letter to the New York Times and place an ad saying, ‘I’m innocent.’ So what’s the difference if he writes a letter [to a friend] and says, ‘Post this on Facebook’? Like, what is the difference?” he asked. “If you think about it for 30 seconds, it doesn’t make any sense.”
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A trade group for the nation’s largest banks has asserted a constitutional right to risk-free profit from the Federal Reserve.
Rob Nichols, the chief lobbyist for the American Bankers Association, argued in a comment letter Thursday that a recent federal law reducing the dividend on the stock that banks purchase as part of membership in the Federal Reserve system, violates the Fifth Amendment clause banning the uncompensated seizure of property.
Congress reduced the dividend as part of a deal to pay for transportation projects. Dividends for the stock, which cannot be bought or sold, had been set at 6 percent since the Federal Reserve’s inception in 1913. Banks cannot ever lose money on the stock; they’re even paid out if their regional Fed bank disbands. So the dividend represented a risk-free profit, earning back its investment in full every 17 years.
The dividend cut, from 6 percent to the current interest rate on the 10-year Treasury note, is estimated to reduce the banks’ payments by roughly $7 billion over 10 years. The change only applies to banks with more than $10 billion in assets.
“The Takings Clause of the Fifth Amendment provides that ‘private property’ shall not ‘be taken for public use, without just compensation,’” Nichols wrote in his comment letter to the Fed, which is preparing to implement the dividend cut. Nichols added that “The dividend rate remained unchanged for over 100 years, and it has long been considered fundamental to the Federal Reserve’s ability to attract member banks.”
Contrary to Nichols’s statement, nationally chartered banks are required by law to become members of the Federal Reserve system. And while state banks can opt in or out, they must nevertheless abide by the standards of membership. Moreover, Fed membership offers many perks, from the ability to process payments to access to cheap borrowing, through the Fed’s discount window. So the dividend is just a vestigial sweetener that never went away, pumping billions of dollars in public money to the banks for no discernible reason.
Given those facts, Nichols’s argument amounts to saying that the 6 percent dividend rate itself is constitutionally protected, because it’s been around for a long time. Nichols effectively asserts that the risk-free dividend is bank property.
The letter appears to be a prelude to a legal battle over the dividend cut. The claims about constitutionality are precisely what the banks would argue before the Supreme Court. And by filing a formal comment letter protesting the law, the ABA can argue that they exhausted their administrative options before filing suit.
Friday is the last day for public comments on the Fed’s dividend change. Outside of the ABA, only one other comment has been filed.
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(The English version of this article can be read here)
Dez dias atrás, o fotógrafo Mauricio Lima foi festejado pelos grandes meios corporativos de comunicação do Brasil, quando ganhou o Prêmio Pulitzer 2016 na categoria Breaking News Photography, o primeiro brasileiro a ganhar o prêmio. Lima compartilhou o Pulitzer com os colegas, também fotógrafos do New York Times, Sergey Ponomarev, Tyler Hicks e Daniel Etter, com quem trabalhou para produzir uma impressionante série de fotografias documentando a jornada de uma família de refugiados sírios, os Majids, enquanto eles viajavam da Grécia à Suécia para pedir asilo. No ano anterior, Lima, com dois colegas, foi finalista na mesma categoria do Pulitzer por seu trabalho no New York Times mostrando a devastação da guerra na Ucrânia. Na semana passada, um colunista d’O Globo citou a definição de Joseph Pulitzer sobre o propósito do jornalismo para afirmar que “não há melhor definição para descrever o trabalho de Mauricio Lima.”
Mas na noite de ontem, Lima lançou um duro e direto ataque aos mesmos meios de comunicação que dias antes o saudavam como um herói. Lima, junto com os mesmo três colegas do NYT, foi declarado vencedor do prêmio John Faber pelo Overseas Press Club pela “melhor reportagem fotográfica do exterior em jornais ou serviços de notícias.”
Em um comovente discurso de três minutos, Lima aceitou o prêmio em nome de seus colegas e o dedicou a “cada refugiado com quem cruzei no último ano, pessoas oprimidas pelas guerras e pela injustiça social.” Ele prestou uma homenagem especial à família Majid, que “aceitou por 29 dias um estranho com uma câmera como parte de sua família.” Mas ele dedicou a última parte do seu discurso aos eventos em seu país, o Brasil.
“Eu acho muito importante dizer algumas palavras – eu sou do Brasil”, começou ele, adicionando: “Tenho certeza que todos aqui sabem o que está acontecendo no Brasil neste momento.” Ele continuou: “Eu gostaria de expressar meu apoio à liberdade de expressão e à democracia – o que é exatamente o que não está acontecendo no Brasil agora.” Para finalizar seu argumento, uma simples sentença: “Então, eu sou contra o golpe.”
Notadamente, o ganhador do Pulitzer contrastou o “muito alto nível dos profissionais do jornalismo daqui” – os que se reuniam na cerimônia em Nova York – com os meios de comunicação no Brasil incitando abertamente os protestos de rua e fazendo agitação para a saída da presidente eleita. Para enfatizar seu argumento, ele mostrou uma placa com as palavras “Golpe: Nunca Mais” onde a letra “o” foi substituída pela logomarca da Globo, maior e mais influente meio de comunicação do Brasil, que passou 20 anos saudando o golpe de 1964 e a ditadura militar que se seguiu, e que no último ano usou flagrantemente suas múltiplas plataformas de mídia para fazer propaganda em favor do impeachment de Dilma.
A mídia brasileira perdeu completamente o controle da narrativa no exterior, mas também vem perdendo cada vez mais no Brasil. Seu plano desonesto para instalar na presidência o Vice-Presidente Michel Temer, acusado de corrupção, profundamente impopular e servo das oligarquias – que, nesta semana, de maneira indescritivelmente Orwelliana, chamou as propostas de “novas eleições” de um “golpe” – está se tornando insustentável.
Figuras proeminentes e universalmente respeitáveis estão cada vez mais se posicionando em relação ao perigoso assalto à democracia; o mais recente foi o ganhador do Prêmio Nobel da Paz em 1980, por seu corajoso trabalho contra a ditadura militar em seu país, o argentino Adolfo Pérez Esquivel, que essa semana, em visita ao Brasil disse: “Está muito claro que o que está sendo montado aqui é um golpe de estado disfarçado, o que chamamos de um golpe branco,” adicionando: “Seria um grave retrocesso para o continente. Sou um sobrevivente dos dias da ditadura [militar argentina]. Fortalecer as instituições democráticas nos custou caro. E agora elas estão sofrendo ataques.”
Dada sua posição no jornalismo internacional, a contundente denúncia de Lima em relação ao impeachment e o notável papel não-jornalístico da Globo, certamente acelerará esse processo. Você pode assistir a seu discurso aqui:
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Ever since the U.S. last October bombed a hospital run by Doctors Without Borders (MSF) in Kunduz, Afghanistan, the U.S. vehemently denied guilt while acting exactly like a guilty party would. First, it changed its story repeatedly. Then, it blocked every effort – including repeated demands from MSF – to have an independent investigation determine what really happened. As May Jeong documented in a richly reported story for The Intercept yesterday, the Afghan government consistently admitted that the hospital was targeted, claiming that doing so was justified, and they wanted to publicly endorse calls for an independent investigation, which the U.S. refused to let them do; what is beyond dispute, as Jeong wrote, is that the “211 shells that were fired . . . were felt by the 42 men, women, and children who were killed.” MSF insisted the bombing was “deliberate,” and ample evidence supports that charge.
Despite all this, the U.S. military is about to release a report that, so predictably, exonerates itself from all guilt; it was, of course, all just a terribly tragic mistake. Worse, reports The Los Angeles Times‘ W.J. Hennigan, “no one will face criminal charges.” Instead, this is the “justice” being meted out to those responsible:
One officer was suspended from command and ordered out of Afghanistan. The others were given lesser punishments: Six were sent to counseling, seven were issued letters of reprimand, and two were ordered to retraining courses.
MSF continues to insist that the attack was a “war crime” and must be investigated by an independent tribunal under the Geneva Conventions. In a statement this week, Amnesty International said that it has “serious concerns about the Department of Defense’s questionable track record of policing itself.” The LA Times story notes that Physicians for Human Rights said in a letter to the White House that “the gravity of harm caused by the reported failures to follow protocol in Kunduz appears to constitute gross negligence that warrants active pursuit of criminal liability.”
But none of that matters. The only law to which the U.S. government is subject is its own interests. U.S. officials scoffed at global demands for a real investigation into what took place here, and then doled out “punishments” of counseling, training classes, and letters of reprimand for those responsible for this carnage. That’s almost a worse insult, a more extreme expression of self-exoneration and indifference, than no sanctions at all. But that’s par for the course in a country that has granted full-scale legal immunity for those who perpetrated the most egregious crimes: from the systemic fraud that caused the 2008 financial crisis to the worldwide regime of torture the U.S. government officially implemented.
Yesterday in Syria, an MSF-run hospital was targeted with an airstrike, almost certainly deliberately, by what was very likely the Syrian government or the Russians, killing at least 50 patients and doctors, including one of the last pediatricians in Aleppo. On behalf of the U.S. government, Secretary of State John Kerry pronounced: “We are outraged by yesterday’s airstrikes in Aleppo on the al Quds hospital supported by both Doctors Without Borders and the International Committee of the Red Cross, which killed dozens of people, including children, patients and medical personnel.” On the list of those with even minimal credibility to denounce that horrific airstrike, Kerry and his fellow American officials do not appear.
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After President Obama announced on Monday that he would deploy 250 additional special operations troops to Syria, State Department spokesperson John Kirby tried to deny that Obama had ever promised not to send “boots on the ground” there.
“There was never this ‘no boots on the ground,’” said Kirby. “I don’t know where this keeps coming from.”
The problem for Kirby was that Obama has repeated the promise at least 16 times since 2013:
For instance, on August 30, 2013, Obama said: “We’re not considering any boots-on-the-ground approach.”
On September 10, 2013, he said: “Many of you have asked, won’t this put us on a slippery slope to another war? One man wrote to me that we are ‘still recovering from our involvement in Iraq.’ A veteran put it more bluntly: ‘This nation is sick and tired of war.’ My answer is simple: I will not put American boots on the ground in Syria.”
On September 7, 2014, he said: “In Syria, the boots on the ground have to be Syrian.”
After reporters pointed out the mistake, Kirby tried to walk back his claim by defining the phrase “boots on the ground” to exclude special forces.
“When we talk about boots on the ground, in the context that you have heard people in the administration speak to, we are talking about conventional, large-scale ground troops,” said Kirby. “I’m not disputing the fact that we have troops on the ground, and they’re wearing boots.”
The new deployment will result in a six-fold increase to the 50 U.S. special forces troops already in Syria. There are also 4,000 U.S. troops in Iraq. The White House has insisted that its forces “do not have a combat mission,” and are deployed in an “advise and assist” capacity only, helping to train local militias that engage ISIS directly.
There is, as Kirby indicated, a distinction between a large-scale ground invasion and, say, a small group of advisers hanging back from the front. But the line between “combat” and “assist” missions is not always so clear.
In Iraq, when a U.S. special forces soldier was killed during a raid on an ISIS-held prison, the White House insisted that U.S. forces were only flying helicopters carrying Kurdish commandos, and that it was a “unique circumstance.” They refused to call the exchange “combat,” prompting outrage from veterans groups.
A second American soldier was killed in a rocket attack in northern Iraq last month, while guarding a U.S. base near Mosul. The White House called it “an enemy action,” not “combat.”
“Advise and assist” may also include providing targeting intelligence for U.S. airstrikes, according to Dan Glazier, a former Marine in Afghanistan and Iraq who is now a fellow with the Center for Defense Information at the Project on Government Oversight. “With a force the size they’re talking about, they’re probably there to help provide fire support,” Grazier said.
Some veterans are outraged by the administration’s semantics.
“It is a grossly silly assertion that American men and women who are participating in the killing and dying in Iraq and Syria, whether it be directly or indirectly, do not count as boots on the ground,” said Matthew Hoh, who has served as a Marine and at the Pentagon and State Department. “Boots on the ground,” he said, is “a phrase that serves as a dog whistle to those of us who have actually been to war.”
Tyson Manker, a Marine Corps corporal during the invasion of Iraq, argues that the distinction between “boots on the ground” and special forces is meaningless to soldiers overseas. In a statement emailed to The Intercept, Manker wrote: “To Obama, sure it’s meaningful. For the … Marines on the ground shooting and getting shot at, not so meaningful.”
The Obama administration has company in Democratic presidential frontrunner Hillary Clinton. During a Democratic debate in February, Clinton said “we will not send American combat troops back to Syria or Iraq. That is off the table. But we do have special forces.”
The administration is also refusing to limit the number of special forces it might send in the future. At a separate press conference Monday, Pentagon Press Secretary Peter Cook wouldn’t deny that the U.S. might send hundreds more special forces soldiers in coming weeks. “We’re going to continue to look at every single opportunity we have, working with our local partners, to see how we can accelerate this campaign,” Cook said.
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The post As More American Boots Hit the Ground in Syria, U.S. Parses “Boots” and “Ground” appeared first on The Intercept.
Ten days ago, the photographer Maurício Lima was feted by Brazil’s large corporate media when he won the 2016 Pulitzer Prize for Breaking News Photography, the first Brazilian ever to win the award. Lima shared the Pulitzer with fellow New York Times photographers Sergey Ponomarev, Tyler Hicks and Daniel Etter, with whom he worked to produce a series of stunning photographs documenting the journey of a Syrian refugee family, the Majids, as they traveled from Greece to Sweden to seek asylum. The year before, Lima, along with two colleagues, was named a Finalist in the same Pulitzer category for his work in The New York Times showing the devastation from the war in Ukraine. Last week, one columnist for O Globo quoted Joseph Pulitzer’s definition of journalism’s purpose and gushed that “there is no better definition to describe the work of Maurício Lima.”
But last night, Lima launched a direct, unflinching attack on the same Brazilian media outlets which, just days ago, were hailing him as a hero. Lima, along with the same three NYT colleagues, was named the winner by the Overseas Press Club of the John Faber award for “best photographic reporting from abroad in newspapers or news services.”
In a moving 3-minute speech, Lima accepted the award on behalf of his colleagues, and dedicated the prize to “every single refugee I came across last year, people oppressed by wars and social injustice.” He paid particular tribute to the Majid family, who “accepted for 29 days a stranger with a camera as part of their family.” But he devoted the last part of his speech to events in his home country, Brazil.
“I consider it very important to say a few words – I’m from Brazil,” he began, adding: “I’m pretty sure everyone here knows what’s going on in Brazil at the moment.” He continued: “I would like to express my support for freedom of speech and democracy — which is exactly what’s not going on in Brazil at the moment.” Punctuating his point was this final, simple sentence: “So I’m against the coup.”
Most notably, the Pulitzer winner contrasted the “very high level professionals in journalism here” – those gathered at the ceremony in New York – with the media outlets in Brazil openly inciting street protests and agitating for the exit of the elected president. To underscore the point, he held up a sign that read “Golpe: Nunca Mais” – “Coup: Never Again” – with the “o” in “Golpe” replaced by the logo of Globo, Brazil’s largest and most influential media outlet that spent 20 years cheering the 1964 coup and military dictatorship that followed, and which has spent the last year flagrantly using its multiple media properties to propagandize in favor of Dilma’s impeachment.
Brazil’s media has completely lost control of the narrative internationally, but also increasingly within Brazil. Their sleazy plan to install as President the corruption-tainted, deeply unpopular, oligarch-serving Vice President Michel Temer – who just this week, in a indescribably Orwellian manner, called proposals for “new elections” a “coup” – is becoming untenable. Prominent, universally respect international figures are becoming increasingly vocal about the dangerous assault on democracy; the latest is the Argentine Adolfo Pérez Esquive, who won the 1980 Nobel Peace Prize for his courageous work against his country’s military dictatorship and this week said during a visit to Brazil: “It’s very clear that what’s being mounted here is a concealed coup d’état, which we call a bloodless coup,” adding: “It would be a serious setback for the continent. I’m a survivor from the days of the [military] dictatorship [in Argentina]. To strengthen democratic institutions cost us a great deal. And here they’re under attack.”
Given his standing in international journalism, Lima’s blunt denunciation of impeachment and the distinctly non-journalistic role of Globo, is certain to accelerate this process. You can watch his speech here:
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The Supreme Court on Thursday approved changes that would make it easier for the FBI to hack into computers, many of them belonging to victims of cybercrime. The changes will take immediate affect in December, unless Congress adopts competing legislation.
Previously, under the federal rules on criminal procedures, a magistrate judge couldn’t approve a warrant request to search a computer remotely if the investigator didn’t know where the computer was—because it might be outside his or her jurisdiction.
The rule change, sent in a letter to Congress on Thursday, would allow a magistrate judge to issue a warrant to search or seize an electronic device if the target is using anonymity software like Tor. Over a million people use Tor to browse popular websites like Facebook every month for perfectly legitimate reasons, in addition to criminals who use it to hide their locations.
The changes, which would allow the FBI go hunting for anyone browsing the Internet anonymously in the U.S. with a single warrant, are already raising concerns among privacy advocates who have been closely following the issue.
“Whatever euphemism the FBI uses to describe it—whether they call it a ‘remote access search’ or a ‘network investigative technique’—what we’re talking about is government hacking, and this obscure rule change would authorize a whole lot more of it,” Kevin Bankston, director of Open Technology Institute, said in a press release.
Ahmed Ghappour, a visiting professor at University of California Hastings Law School, has described it as “possibly the broadest expansion of extraterritorial surveillance power since the FBI’s inception” because it could potentially allow the FBI to hack a large number of computers domestically and abroad.
The Supreme Court ruling also expands the warrants to allow the FBI to hack into computers in five or more districts that have been hacked, such as those infected by a botnet—a type of malware that gives criminal hackers the power to take over many innocent “zombie” computers to distribute spam or spread viruses.
This part of the ruling would allow the FBI to search the victim’s property, explained Amie Stepanovich, senior policy counsel for digital rights group Access Now in a message to The Intercept.
“On account of their distributed nature, investigations of unlawful botnets undoubtedly pose a significant barrier to law enforcement,” she said in testimony before an obscure judiciary committee that considered the rule change before it got to the Supreme Court.
However, “the proposed amendment unilaterally expands [FBI] investigations to further encompass the devices of the victims themselves, those who have already suffered injury and are most at risk by the further utilization of the botnet.”
It’s up to Congress to propose legislation that would modify or reject the proposed changes to the criminal procedure rules. Lawmakers have until Dec. 1, otherwise the new policies would immediately take affect.
“These amendments will have significant consequences for Americans’ privacy and the scope of the government’s powers to conduct remote surveillance and searches of electronic devices,” Senator Ron Wyden, D-Ore., wrote in a press release. “I plan to introduce legislation to reverse these amendments shortly, and to request details on the opaque process for the authorization and use of hacking techniques by the government.”
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