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Profile: Bruce Afran
Bruce Afran was a participant or observer in the following events:
According to a 2006 lawsuit against three major US telecommunications firms that alleges the companies illegally cooperated with the NSA’s warrantless surveillance program (see May 12, 2006), NSA officials meet with AT&T officials to discuss that firm’s participation. (Days later, NSA officials will also meet with officials from Qwest, who refuse to cooperate—see February 27, 2001). The officials discuss replicating an AT&T network center in Bedminster, New Jersey, to give the agency access to all the global phone and e-mail traffic that runs through it. According to an AT&T engineer’s court statements, the NSA officials want to “listen in” with unfettered access to communications that they believe may have intelligence value, as well as the ability to store those communications for later review. There is no discussion of limiting the monitoring to international communications, the engineer says: “At some point, I started feeling something isn’t right.” Two other AT&T employees will contradict the engineer’s claims, saying that the NSA merely wanted to upgrade its own internal communications. The lawsuit’s legal counsel, Bruce Afran and Carl Mayer, will say that internal AT&T documents can verify the engineer’s account. Mayer will say that the engineer sees “decisive evidence that within two weeks of taking office, the Bush administration was planning a comprehensive effort of spying on Americans’ phone usage.” [New York Times, 12/16/2007]
Two public interest lawyers sue Verizon Communications for $5 billion, claiming the telecommunications firm violated privacy laws by giving the phone records of its customers to the NSA for that agency’s secret, warrantless domestic surveillance program. Lawyers Bruce Afran and Carl Mayer are asking that Verizon stop turning over its records to the NSA without either a court order or the consent of the customer. Afran says of the NSA program, “This is the largest and most vast intrusion of civil liberties we’ve ever seen in the United States.” [CBS News, 5/12/2006] Days later, AT&T and BellSouth are added to the lawsuit. [CNN, 5/17/2006]
Verizon Helped Build an NSA Database? - The day before, the press reports that the NSA has built a database of millions of domestic phone records since shortly after the 9/11 attacks, using records from Verizon, BellSouth, and AT&T (see May 11, 2006). Former Qwest CEO Joe Nacchio, whose firm refused to cooperate with the NSA, says that he was approached months before the attacks to help set up such a program (see February 27, 2001). The NSA has the power, under President Bush’s interpretation of his wartime authority, to have the agency eavesdrop on international calls made to or from the US, but cannot legally eavesdrop on internal calls unless it has a court order. The lawsuit claims that the telecoms violated the Constitution and the Telecommunications Act by giving its records to the government without court authorization. The lawsuit seeks $1,000 for each violation of the Telecommunications Act, or $5 billion if the case is certified as a class-action suit. The lawyers are seeking documents detailing the origins of the NSA program, as well as Bush’s own role in authorizing the program. “Federal law prohibits the phone companies from giving records to the government without a warrant,” says Afran. “There was no warrant, nor was there any attempt to get warrants, which is in violation of the constitution and the Telecommunications Act.” [CBS News, 5/12/2006; CNET News, 5/15/2006] Afran says, “One of the purposes of this case is to, quite frankly, hold the threat of financial destruction over the heads of the phone companies to make them abandon this policy of cooperating with warrantless searches by the government.” [National Public Radio, 5/17/2006] The lawsuit alleges that Verizon constructed a dedicated fiber optic line from New Jersey to a large military base in Quantico, Virginia, that allowed government officials to gain access to all communications flowing through the carrier’s operations center. A former consultant who worked on internal security will later say he had tried numerous times to install safeguards on the line to prevent hacking on the system, as he was doing for other lines at the operations center, but he was prevented from doing so by a senior security official. One of the allegations against Verizon in the lawsuit is made by Philadelphia resident Norman LeBoon, who says after he read of the alleged surveillance of US citizens, he began asking Verizon if his landline communications were being shared. LeBoon says he eventually spoke with “Ellen” in Verizon customer service, who told him, “I can tell you, Mr. LeBoon, that your records have been shared with the government, but that’s between you and me.… They [Verizon] are going to deny it because of national security. The government is denying it and we have to deny it, too. Around here we are saying that Verizon has ‘plausible deniability.’” [Truthdig, 8/9/2007]
AT&T Grants Unlimited Access? - The lawsuit claims that in February 2001, days before Qwest was approached, NSA officials met with AT&T officials to discuss replicating an AT&t network center to give the agency access to all the global phone and e-mail traffic that ran through it (see February 2001).
Earlier Reporting Made Key Error - Earlier reporting of the NSA’s cooperation with the telecoms got a key detail wrong, says telecom analyst Scott Cleland: “What I think people got wrong with the original reporting, was that this was local phone companies tracking local phone calls. What is clear now is they were tracking long distance calls.” [National Public Radio, 5/17/2006]
Lawyers file court documents alleging that the National Security Agency (NSA) worked with AT&T to set up a domestic wiretapping site seven months before the 9/11 attacks. The papers are filed as part of a lawsuit, McMurray v. Verizon Communications, which cites as plaintiffs AT&T, Verizon, and BellSouth customers whose privacy was allegedly violated by the NSA warrantless wiretapping program (see May 12, 2006); it also alleges that the firms, along with the NSA and President Bush, violated the Telecommunications Act of 1934 and the US Constitution. AT&T, Verizon, and BellSouth have been accused of working with the NSA to set up domestic call monitoring sites (see October 2001). Evidence that the NSA set up domestic surveillance operations at least seven months before the 9/11 attacks is at the core of the lawsuit (see Spring 2001). The suit is similar to one filed against AT&T by the Electronic Frontier Foundation (EFF—see January 31, 2006) and other such lawsuits. A lawyer for the plaintiffs in McMurray, Carl Mayer, says: “The Bush administration asserted this [the warrantless wiretapping program] became necessary after 9/11. This undermines that assertion.” AT&T spokesman Dave Pacholczyk responds, “The US Department of Justice has stated that AT&T may neither confirm nor deny AT&T’s participation in the alleged NSA program because doing so would cause ‘exceptionally grave harm to national security’ and would violate both civil and criminal statutes.” Verizon has denied being asked by the NSA for its customer phone records, and has refused to confirm or deny “whether it has any relationship to the classified NSA program.” BellSouth spokesman Jeff Battcher says: “We never turned over any records to the NSA. We’ve been clear all along that they’ve never contacted us. Nobody in our company has ever had any contact with the NSA.” The NSA domestic wiretapping program is known as “Pioneer Groundbreaker,” a part of the larger “Project Groundbreaker” (see February 2001). According to Mayer and his fellow lawyer Bruce Afran, an unnamed former employee of AT&T provided them with information about NSA’s approach to AT&T. (That former employee will later be revealed as retired technician Mark Klein—see Late 2002, July 7, 2009, December 15-31, 2005, and April 6, 2006). The lawsuit is on a temporary hiatus while a judicial panel rules on a government request to assign all of the telecommunications lawsuits to a single judge. [Bloomberg, 6/30/2006]
Entity Tags: Verizon Wireless, US Department of Justice, National Security Agency, George W. Bush, Jeff Battcher, Bruce Afran, BellSouth, AT&T, Mark Klein, Carl Mayer, Electronic Frontier Foundation, Dave Pacholczyk
Timeline Tags: Civil Liberties
A journalist and activist sues to overturn provisions in a US defense spending bill that authorize indefinite military detention, including of US citizens, who are accused of being associated with groups engaged in hostilities with the United States (see December 15, 2011, December 31, 2011). The indefinite detention provisions in the NDAA caused considerable controversy from the time they were first proposed (see July 6, 2011 and after). Chris Hedges, formerly of the New York Times, and his attorneys, Carl J. Mayer and Bruce I. Afran, file the suit seeking an injunction barring enforcement of section 1021 (formerly known as 1031) of the 2012 National Defense Authorization Act (NDAA), alleging it is unconstitutional because it infringes on Hedges’ First Amendment right to freedom of speech and association and Fifth Amendment right to due process, and that it imposes military jurisdiction on civilians in violation of Article III and the Fifth Amendment. President Obama and Secretary of Defense Leon Panetta are named as defendants in the initial complaint, individually and in their official capacities. [TruthDig, 1/16/2012] Six other writers and activists will later join Hedges as plaintiffs in the lawsuit: Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, “US Day of Rage,” Kai Wargalla, and Birgitta Jónsdóttir, who is also a member of parliament in Iceland. Senators John McCain (R-AZ), Harry Reid (D-NV), and Mitch McConnell (R-KY), and Representatives Nancy Pelosi (D-CA), John Boehner (R-OH), and Eric Cantor (R-VA), will be added as defendants, in their official capacities. [Final Complaint: Hedges v. Obama, 2/23/2012 ] The plaintiffs, their attorneys, and two supporting organizations, RevolutionTruth and Demand Progress, will establish a Web site to provide news and information related to the case, including legal documents. [StopNDAA.org, 2/10/2012] The Lawfare Blog will also post a number of court documents related to the case, including some not available at StopNDAA.org, such as the declarations of Wargalla, O’Brien, and Jónsdóttir. [Lawfare, 4/4/2012] Journalist and activist Naomi Wolf will file an affidavit supporting the lawsuit. [Guardian, 3/28/2012] The judge in the case, Katherine B. Forrest, will issue a preliminary injunction enjoining enforcement of the contested section, finding it unconstitutional (see May 16, 2012).
Entity Tags: Chris Hedges, US Congress, US Department of Defense, United States District Court, New York, Southern Division, Carl Mayer, Birgitta JÃ³nsdÃ³ttir, RevolutionTruth, Alexa O’Brien, Barack Obama, Noam Chomsky, White House, Mitch McConnell, Harry Reid, Eric Cantor, Daniel Ellsberg, Jennifer Bolen, Bruce Afran, Nancy Pelosi, Kai Wargalla, John McCain, Katherine B. Forrest, Leon Panetta, John Boehner
Timeline Tags: Civil Liberties
US District Court Judge Katherine B. Forrest (Southern Division, New York) finds a controversial section of the 2012 National Defense Authorization Act (NDAA) unconstitutional and issues a preliminary injunction barring enforcement. Section 1021(b)(2) of the NDAA authorizes indefinite military detention without trial of any person “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces” (see December 15, 2011). The law makes no exception for US persons. It has been under review by the court because seven individuals (journalists, activists, and politicians) sued, alleging this section is unconstitutional because it violates their First Amendment right to freedom of speech and association and Fifth Amendment right to due process, and that it imposes military jurisdiction on civilians in violation of Article III and the Fifth Amendment (see January 13, 2012). [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]
Judge Finds NDAA Undermines Protected Speech and Association - The plaintiffs argued that, due to their association with and/or reporting on al-Qaeda and the Taliban in the course of their work as journalists and activists, they might be subject to detention under § 1021, and that, due to the vagueness of the law, there was no way to know if the law could be used against them. In testimony and briefs, the plaintiffs gave examples of how they had altered their speech and behavior out of fear they might be subject to detention. In her Opinion and Order, Forrest notes: “The Government was unable to define precisely what ‘direct’ or ‘substantial’ ‘support’ means.… Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.” And: “The Government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs—or others—are not within § 1021. It did not. This Court therefore must credit the chilling impact on First Amendment rights as reasonable—and real. Given our society’s strong commitment to protecting First Amendment rights, the equities must tip in favor of protecting those rights.” [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]
Judge Rejects All Three Arguments Made by the Government - Forrest summarizes the government’s position in this way: “[F]irst, that plaintiffs lack standing; second, that even if they have standing, they have failed to demonstrate an imminent threat requiring preliminary relief; and finally, through a series of arguments that counter plaintiffs’ substantive constitutional challenges, that Section 1021 of the NDAA is simply an ‘affirmation’ or ‘reaffirmation’ of the authority conferred by the 2001 Authorization for Use of Military Force.” Rejecting the first and second arguments, Forrest finds the plaintiffs do have standing because their fear of imminent indefinite detention without charge or trial is reasonable, due to the vagueness of § 1021 and the government’s failure to state that the plaintiff’s activities aren’t covered under section 1021, leaving the plaintiffs with no way of knowing if they might be subject to detention. Furthermore, Forrest finds the plaintiffs have suffered actual harm, evidenced by incurring expenses and making changes in speech and association due to fear of potential detention. Regarding the third argument, Forrest rejects the idea that § 1021 could simply be affirming the AUMF, because “[t]o so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning”; otherwise § 1021 would be “redundant” and “meaningless.” Furthermore, Forrest finds § 1021 of the NDAA is substantively different than the AUMF; it is not specific in its scope and “lacks the critical component of requiring… that an alleged violator’s conduct must have been, in some fashion, ‘knowing.’” [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]
Judge Finds Lawsuit Will Likely Succeed on Merits, Justifying Injunction - Based on the information put forward by the seven plaintiffs and the government, Forrest concludes the lawsuit will likely succeed on its merits, thus it should be allowed to proceed, stating: “This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.” Forrest also notes that issuing a preliminary injunction barring enforcement is unusual, but called for given the evidence and circumstances, stating: “This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.” [OPINION AND ORDER: 12 Civ. 331 (KBF) Hedges et al v. Obama, preliminary injunction enjoining enforcement of NDAA Section 1021, 5/16/2012]
Entity Tags: Chris Hedges, US Department of Defense, Carl Mayer, United States District Court, New York, Southern Division, White House, Birgitta JÃ³nsdÃ³ttir, US Congress, Alexa O’Brien, Barack Obama, Noam Chomsky, US Department of Justice, Mitch McConnell, Harry Reid, Eric Cantor, Daniel Ellsberg, Jennifer Bolen, Nancy Pelosi, Leon Panetta, John Boehner, Katherine B. Forrest, John McCain, Bruce Afran, Kai Wargalla
Timeline Tags: Civil Liberties
President Obama’s Justice Department files a motion urging a federal judge to reconsider a ruling and order that blocked enforcement of a law authorizing indefinite military detention. The case is Hedges v. Obama and the law at issue is section 1021 of the 2012 National Defense Authorization Act (NDAA). The filing calls Judge Katherine B. Forrest’s preliminary injunction barring enforcement of Section 1021(b)(2) of the NDAA (see May 16, 2012) “extraordinary” as it restricts the president’s authority during wartime. It also questions whether “an order restraining future military operations could ever be appropriate,” and disputes Forrest’s finding that the plaintiffs who had sued to overturn the law (see January 13, 2012) have standing to sue. In footnote 1, the government states that it is construing the order “as applying only as to the named plaintiffs in this suit.” Forrest will clarify in a subsequent Memorandum Opinion and Order that by blocking enforcement of § 1021(b)(2), the only remaining persons covered are those defined in § 1021(b)(1): “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” (see June 6, 2012). [Hedges v. Obama: Government's Memorandum of Law in Support of Its Motion for Reconsideration of the May 16, 2012, Opinion and Order, 5/25/2012]
Background - The NDAA was passed by Congress on December 15, 2011 (see December 15, 2011) and signed into law by President Obama on December 31 (see December 31, 2011). The provision for indefinite military detention of any person accused of supporting groups hostile to the United States, without charge or trial, began to generate controversy soon after it was disclosed (see July 6, 2011 and after).
Entity Tags: Noam Chomsky, US Congress, White House, US Department of Justice, United States District Court, New York, Southern Division, US Department of Defense, Mitch McConnell, Nancy Pelosi, Katherine B. Forrest, Carl Mayer, Bruce Afran, Birgitta JÃ³nsdÃ³ttir, Barack Obama, Alexa O’Brien, Chris Hedges, Leon Panetta, Kai Wargalla, Daniel Ellsberg, John McCain, John Boehner, Jennifer Bolen, Eric Cantor, Harry Reid
Timeline Tags: Civil Liberties
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