The FBI has withdrawn a National Security Letter issued to the Internet Archive after a legal challenge from the Electronic Frontier Foundation and the American Civil Liberties Union, those groups said on a conference call moments ago.

Under a settlement agreement, the FBI has lifted the NSL’s gag and agreed to the case’s unsealing, making all the filings public and letting Archive founder Brewster Kahle speak out for the first time about his battle against the records demand.

“The FBI served the Internet Archive with a letter last November demanding information about a patron of the Internet Archive,” Kahle said. “I couldn’t discuss it with anybody, I couldn’t bring it to the board, I couldn’t discuss it with the rest of the staff. Even our lawyers couldn’t share information with their peers about what was going on.”

“Gagging librarians is horrendous,” Kahle said. “We don’t think this is necessary and were very happy to be able to speak up now to all librarians and the public.”

The Internet Archive — a nonprofit founded in 1996 and based in San Francisco’s Presidio — is building an Internet library of online books, music, videos and “snapshots” of Web pages, offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format.

The government uses these secret NSLs to access personal customer records from Internet service providers, financial institutions, and credit reporting agencies among other companies. In most cases, recipients are forbidden from disclosing even that they received the letters. The Internet Archive fought this NSL because it believed the letter exceeded the FBI’s limited authority to issue NSLs to libraries; this was the first case to assert protections for libraries that Congress set in 2006’s reauthorization of the USA PATRIOT Act.

EFF senior staff attorney Kurt Opsahl said the FBI’s letter demanded an Archive user’s name, address, length of service, electronic communication transaction history and other data. But the Archive doesn’t collect IP addresses of users who upload and download files, he said, only their unverified e-mail addresses; he said he wouldn’t disclose what information the Archive did give the FBI on this person, other than to say it was publicly available information. Meanwhile, the EFF – joined by the ACLU – sued to challenge the gag order’s constitutionality, and after four months of legal negotiations, the FBI backed down.

ACLU National Security Project attorney Melissa Goodman said about 200,000 NSLs were issued from 2003 to 2006, yet only three including this one have been challenged in court. In each of these three cases, the FBI agreed to withdraw its request; Goodman said this calls into question how important the information was in the first place, and how wide a net the FBI is casting without judicial review, shielded from public eyes.

“The gag orders that are part and parcel of almost every NSL that gets issued are unhealthy in a democracy,” said ACLU of Northern California staff attorney Ann Brick, who noted the Justice Department Inspector General’s audits have found the FBI regularly abuses its NSL power.

Brick also said this secrecy “distorts the public debate over national security letters, including the debate in Congress” – when an ACLU attorney testified before Congress last month about NSLs, he couldn’t even talk about the Internet Archive’s case.

Brick said she hopes this case will inspire more libraries and other organizations to file lawsuits challenging NSL’s constitutionality.

Apparently a Berkeley law professor has a pretty radical interpretation of our constitutional right to be protected from unreasonable search and seizure: It doesn’t apply to domestic military operations.

From today’s Washington Post:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

Although the existence of the memo has long been known, its contents had not been previously disclosed.

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

John Yoo, of course, is now a professor at the University of California, Berkeley’s Boalt Hall School of Law. He already has taken a lot of heat for previously released memos in which he advocated the possible legality of torture, and for denying enemy combatants protection under the Geneva Conventions.

Read the newly released memo here, and please take a look at footnote 10 on page 8:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).

Read that sentence I emphasized once more: “(T)he Fourth Amendment had no application to domestic military operations.”

Here’s the Fourth Amendment, lest we forget: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, support by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But according to this footnote, Yoo — a little more than one month after the Sept. 11, 2001 attacks — issued a memo finding that doesn’t apply to everyone within our borders, a sentiment never made public until now.

The American Civil Liberties Union today issued a news release saying this still-secret 2001 Yoo memo “was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued. As a component of the Department of Defense, the NSA is a military agency.”

The ACLU has challenged the withholding of the October 2001 memo and the issue is pending before the U.S. District Court for the District of Columbia.

The California Commission on the Fair Administration of Justice — created by the state Senate to probe causes of wrongful convictions and make recommendations and proposals to ensure fair and accurate administration of criminal justice — will hold the last of its three public hearings on issues surrounding the death penalty from 9:30 a.m. to 12:30 p.m. next Friday, March 28 in the California Mission Room on the lower level of Santa Clara University’s Benson Student Center, 500 El Camino Real.

About an hour will be reserved for public comment at the hearing’s end, with each public participant limited to no more than 3 minutes and sign-ups accepted on a first-come, first-served basis; if you’re interested, e-mail Chris Boscia at cboscia@scu.edu.

Expert testimony at this hearing will include a report on the gubernatorial clemency process in California death cases, prepared for the commission by University of the Pacific, McGeorge School of Law professors Linda Carter and Mary Beth Moylan.

Others scheduled to testify include:

This will be the 22-member commission’s ninth and final public hearing; earlier sessions addressed the problems surrounding eyewitness misidentification, false confessions, testimony by in-custody informants, forensic evidence, professional responsibility of prosecutors and defense lawyers, and remedies for wrongful conviction.

But Gov. Arnold Schwarzenegger in October vetoed three bills based on the commission’s recommendations — SB 756, appointing a task force to develop guidelines for police line-ups and photo arrays to increase accuracy of eyewitness identification; SB 511, requiring electronic recording of police interrogations in police stations, jails, or other holding facilities for homicides and other violent felonies; and SB 609, requiring corroboration of testimony by jailhouse informants.

The commission’s final report will be issued in June.

The House voted 213-197 today to update the 1978 Foreign Intelligence Surveillance Act, expanding intelligence agencies’ powers to match new technologies but not granting immunity to telecommunications companies that cooperated with the Bush Administration’s warrantless wiretapping, as the President demanded. See the full story here.

Rep. Barbara Lee, D-Oakland:

House Speaker Nancy Pelosi, D-San Francisco:

And, in news releases…

Rep. Ellen Tauscher, D-Alamo:
“This is a call for us to come together and work in a bipartisan effort in the best interests of our nation’s security without diminishing equally important guarantees of privacy for American citizens. With this legislation, the U.S. intelligence community gets enhanced authorization for a wide range of surveillance methods without the blanket immunity for telecom companies that the President wanted. The balance of security and privacy rights is always hard to achieve, but I believe this bill finds common ground that enhances both.”

Rep. Jerry McNerney, D-Pleasanton:
“The FISA Amendments Act protects Americans against terrorists while at the same time safeguarding our liberties by striking a balance between the constitutional rights of American citizens and the needs of the intelligence community. This bill will provide the government the authority it needs to intercept terrorist communications, while safeguarding the phone calls, emails, and other private communications of American citizens.”

So here is the report from Move America Forward — the grassroots conservative group which has spearheaded efforts to shame and boycott Berkeley for the city’s hostile stance toward its U.S. Marine Corps recruiting station – listing acts of civil disobedience, vandalism or violence at military recruiting stations across the nation in recent years.

Part A is a list of such events since 2003.

Part B is titled “Behind The Scenes: Anti-War Activists Exposed.” And that’s where I’m left underwhelmed.

MAF found several instances in which morons posted comments to the Internet approving of crimes such as the vandalism of a recruiting center in Spokane, Wash.; the arson of a center in San Jose; and the recent bombing of a center in New York City’s Times Square. What’s clearly missing, however, is any evidence of the vast left-wing conspiracy implied by MAF’s news releases earlier this week.

“Move America Forward has also documented discussions by anti-military activists coordinating attacks against military recruiting centers and suggesting ways to reduce the chance of facing criminal prosecution,” said the group’s Thursday news release. Instead, what we’ve got are a handful of nobodies gloating over actions they almost certainly had nothing to do with, spouting rhetoric on publicly accessible blogs — hardly an insurgency.

And the left doesn’t have a monopoly on spitting rhetoric on blogs.

Judge for yourself. Here are a few of the passages highlighted in MAF’s report:

Compare those to some of the comments left in the past week by MAF members and supporters in response to items on this very blog:

Those who commit civil disobedience, vandalism, arson or bombings should be prosecuted, but painting everyone with the words or actions of a demented few is idiocy. Sometimes cretins at either end of the political spectrum say too much, but that’s the freedom we enjoy here — deal with it, embrace it, revel in it.

All of this “debate” — really just empty rhetoric — from both sides during the height of the Berkeley recruiting flap is just a distraction. Substantive discussion about foreign policy has been eclipsed by silly semantics.

When I was out there covering the protests outside Berkeley City Hall on Feb. 12, I saw a few moments in which people on the two sides actually started talking to one another and listening to what each other had to say. That’s what we should be striving for, not the blustery crap documented in MAF’s report or contained in some of the comments on this blog.

That’s the only way we can move America forward.

UPDATE @ 12:53 P.M. FRIDAY: This just in from MAF chairwoman Melanie Morgan:

Josh,

I’m writing to you from Ryan’s computer in D.C after holding our national news conference denouncing the tactics of CodePink, International ANSWER, Global Exchange and other Radical activist groups.

Unfortunately, I experienced a big ‘See, I told You, So’ moment when we were attacked during our news conference by the same people who descended on Berkeley, New York, Washington, Denver and St. Louis to shut-down the recruiters.

In fact, a group of activist/anarchists were thrown out at the national Press club because they infiltrated under false pretenses, and screamed obscenities during my presentation

Later, I was chased down in the streets of D.C. and further harassed, as well as Congressman John Carter and his staff.

So, tell me again about that business on your blog about the business of needing to ‘dialogue’ with each other.

Your contention that our people’s comments live up to the left-wing real life physical bombing, burning, and shootings is simply absurd.

Melanie Morgan

The documentary “SOUL OF JUSTICE: Thelton Henderson’s American Journey” will have its television premiere Monday, telling the story of a civil rights crusader who became one of our nation’s first African-American federal judges and still sits on the bench in San Francisco today.

Producer/director Abby Ginzberg — who, like Henderson, lives in the East Bay — has crafted a film detailing how, as the first black attorney in the Civil Rights Division of the Kennedy Justice Department in the 1960s, Henderson confronted the complex challenges of being a black man in authority in the largely all-white world of the American legal system. The movie seeks to put the viewer in Henderson’s shoes as he grapples with tough choices over four decades, including the decision to loan a car to Dr. Martin Luther King, Jr., a crucial act for which he was ultimately fired.

Named to the bench in 1980 by President Jimmy Carter, Henderson has earned a reputation for tenacity in seeing that his rulings are implemented — he has, for example, taken control of California’s prison health care system, which he deemed constitutionally inadequate.

It’ll start airing on certain public television stations across the nation this Monday, Jan. 21 in observance of Martin Luther King Jr. Day, and it’s scheduled to air here in the Bay Area at 6 p.m. Sunday, Feb. 17 on KQED-Channel 9. Meanwhile, here’s a peek:

Any U.S. Senator will get unhappy visitors now and again, but Dianne Feinstein, D-Calif., has had a tough couple of days.

Everyone knew she would take heat for announcing Friday that she’ll give former judge Michael Mukasey a crucial Democratic vote in the Judiciary Committee for his confirmation as Attorney General. (Read her rationale for the vote here.) Sure enough, CodePink protestors went to Feinstein’s home in San Francisco’s Pacific Heights on Sunday with a simulated waterboarding device so people could try it out and decide for themselves whether or not the interrogation technique amounts to torture. Several Democrats including Judiciary Chairman Patrick Leahy, D-Vt., refused to support Mukasey’s confirmation after he wouldn’t definitively say during his confirmation hearings that waterboarding is torture.

Feinstein was in D.C. on Sunday… and so were other CODEPINK activists (including co-founder Medea Benjamin of San Francisco) who enacted a live waterboarding demonstration for Feinstein as she entered CNN’s studios there:

At about 4 p.m. today, children ages 2 to 16 will arrive at Feinstein’s San Francisco office (as well as the Los Angeles office of Sen. Barbara Boxer, D-Calif.) to invite the Senators to their homes to experience Thanksgiving on $1 a meal — the amount most Food Stamp recipients can afford.

Sent by the California Association of Food Banks, the kids are urging lawmakers to support full funding for the Food Stamp program in the 2007 Farm Bill (H.R. 2419), which reaches the Senate floor today and will set the program’s budget for the next five years. Though the Senate recently made a move to increase funding for the Food Stamp program by $1 billion over 5 years, neither of California’s Senators have guaranteed that they would vote “yes” on a funding increase. About 2 million Californians, or about 5.5 percent of the state’s population, rely on Food Stamps; about 80 percent of those households include children.

The kids will bring home-baked pumpkin “pie charts” depicting the percentage of a modest Thanksgiving meal that the current average Food Stamp benefit of $1.09 per person per meal can purchase (8.9%). Although the minimum monthly benefit has remained frozen at just $10 since the Food Stamp program’s inception in 1977, the price of a Thanksgiving meal for a California family of four has risen by more than 300 percent.

At least the activists aren’t planning to waterboard the kids in her office’s lobby.

Oakland got a shout-out from the American Civil Liberties Union’s California affiliates this week with the issuance of their report, “Under the Watchful Eye: The Proliferation of Video Surveillance Systems in California.”

The report finds that “(p)ublic video surveillance systems threaten privacy and, especially in combination with other technologies, have a real potential to radically change the relationship between the public and the government. Despite that risk, cities and agencies throughout California are increasingly deploying surveillance camera systems with little public debate or consideration of potential consequences. This is a serious mistake.”

As for Oakland, it says:

There is a Better Way: Oakland Rejects Video Surveilance Twice
While many California cities rush to roll out video surveillance programs, one city considered and rejected them—twice. The Oakland city council, in both 1997 and 1999, rejected proposals to spend between $500,000 and $1 million on a video surveillance system.
Council members fully evaluated both privacy concerns and evidence of the systems’ effectiveness. Council member Henry Chang, an immigrant from China, reflected on his decision to come to the United States, saying, “We came because we don’t want to be watched by Big Brother all the time.” Council member Nancy Nadel rejected the monetary tradeoffs, arguing
that “it made me feel physical pain — the idea that we would spend public dollars on cameras before spending money to fight illiteracy.”
Council member Ignacio De La Fuente cast the deciding vote, citing a lack of evidence that cameras are effective in reducing crime and concluding that the program was not “worth the risk of violating people’s privacy rights.”
Then-Mayor Jerry Brown concurred, saying that “reducing crime is something the community and police must work on together. Installing a few or a few dozen surveillance cameras will not make us safe. It should also not be forgotten that the intrusive powers of the state are growing with each passing decade.”
While the city has rejected a broad city-run camera system, it has allowed some public money to be used to fund cameras for businesses in public-private partnerships.

House sources say Armed Services Committee Chairman Ike Skelton, D-Mo., and Judiciary Committee Chairman John Conyers Jr., D-Mich., tomorrow will introduce a bill restoring the right of habeas corpus to foreign-born unlawful enemy combatants held by the federal government in the war on terror. Armed Services Committee member Ellen Tauscher, D-Alamo, has been saying for weeks that she’ll be an original co-sponsor of this bill.

Habeas corpus, for the Latin-challenged, essentially is the right to be brought to the court for a determination of whether one is imprisoned lawfully and whether one should be released. It dates back to the 12th Century, preceding its 1215 codification in the Magna Carta’s section 39; our Constitution’s Article I, Section 9, says it “shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” Yet under last year’s Military Commissions Act of 2006, non-citizens whom the government deems “unlawful enemy combatants” no longer have this right.

There had been rumors last month that the Armed Services Committee would attach a rider restoring habeas corpus to the National Defense Authorization Act for 2008, H.R. 1585, which approves Pentagon spending for the next year. But no such rider materialized; Skelton’s staff said he felt so strongly about the issue that it deserved a bill of its very own.

A similar Senate bill was introduced in January by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Arlen Specter, R-Pa.; their committee reported it out favorably June 7. California’s Senators, Barbara Boxer and Dianne Feinstein, are among that bill’s 22 co-sponsors.

Kevin Lawlor, spokesman for Rep. Ellen Tauscher, D-Alamo, told me today that he’s heard House Armed Services Committee Chairman Ike Skelton, D-Mo., will introduce a bill next week to restore habeas corpus rights to all within U.S. jurisdiction.

Habeas corpus, for the Latin-challenged, essentially is the right to be brought to the court for a determination of whether one is imprisoned lawfully and whether one should be released. It dates back to the 12th Century, preceding its 1215 codification in the Magna Carta’s section 39; our Constitution’s Article I, Section 9, says it “shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” Yet under last year’s Military Commissions Act of 2006, non-citizens whom the government deems “unlawful enemy combatants” no longer have this right.

There had been rumors that the Armed Services Committee, on which Tauscher serves, would attach a rider restoring habeas corpus to the National Defense Authorization Act for 2008, H.R. 1585, which approves Pentagon spending for the next year. But no such rider materialized; Skelton’s staff said he felt so strongly about the issue that it deserved a bill of its very own.

So people have been waiting eagerly since HR 1585 passed last week to see when the habeas bill might drop. Lawlor said today the delay has been because Skelton was waiting for the Senate Judiciary Committee to assemble an equivalent bill of its own.

“We’re going to go at the same time as they do it so it’s easy to reconcile the two bills in conference,” he said. “It’s going to be when we come back from this recess. … We’ll look at it next week.”

And when Skelton’s bill does drop, Lawlor said, Tauscher will be among the original co-sponsors.