Saturday, December 21, 2013

NSA domestic phone data gathering Unconstitutional says Judge

 ( Judge Leon is a HERO ) Thank you, Your Honor

Judge: NSA domestic phone data-mining unconstitutional

By Bill Mears and Evan Perez, CNN
updated 8:52 PM EST, Mon December 16, 2013
Watch this video

Analyst: NSA ruling only affects two

  • Snowden says he knew the surveillance would not withstand legal review
  • The limited ruling opens the door to possible further legal challenges
  • The NSA data-mining can continue, pending a likely appeal
  • Classified leaks by Edward Snowden revealed the extent of the data-mining
Washington (CNN) -- A federal judge said Monday that he believes the government's once-secret collection of domestic phone records is unconstitutional, setting up likely appeals and further challenges to the data mining revealed by classified leaker Edward Snowden.
U.S. District Judge Richard Leon said the National Security Agency's bulk collection of metadata -- phone records of the time and numbers called without any disclosure of content -- apparently violates privacy rights.
His preliminary ruling favored five plaintiffs challenging the practice, but Leon limited the decision only to their cases.
NSA phone surveillance unconstitutional?
"I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval," said Leon, an appointee of President George W. Bush. "Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment."
Leon's ruling said the "plaintiffs in this case have also shown a strong likelihood of success on the merits of a Fourth Amendment claim," adding "as such, they too have adequately demonstrated irreparable injury."
He rejected the government's argument that a 1979 Maryland case provided precedent for the constitutionality of collecting phone metadata, noting that public use of telephones had increased dramatically in the past three decades.
Leon also noted that the government "does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature."
However, he put off enforcing his order barring the government from collecting the information, pending an appeal by the government.
A Justice Department spokesman said Monday that "we believe the program is constitutional as previous judges have found," but said the ruling is being studied.
Democratic Sen. Mark Udall of Colorado, a critic of the NSA data mining, said Leon's ruling showed that "the bulk collection of Americans' phone records conflicts with Americans' privacy rights under the U.S. Constitution and has failed to make us safer."
He called on Congress to pass legislation he proposed to "ensure the NSA focuses on terrorists and spies - and not innocent Americans."
Explosive revelations earlier this year by Snowden, a former NSA contractor, triggered new debate about national security and privacy interests in the aftermath of the September 2001 terrorist attacks.
Snowden's revelations led to more public disclosure about the secretive legal process that sets in motion the government surveillance.
In a statement distributed by journalist Glenn Greenwald, who first reported the leaks, Snowden said he acted on the belief that the mass surveillance program would not withstand a constitutional challenge, and that Americans deserved a judicial review.
"Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans' rights. It is the first of many," according to Snowden, who is living in Russia under a grant of asylum to avoid prosecution over the leaks in the United States.
Greenwald said the judge's ruling vindicates what Snowden did.
"I think it's not only the right, but the duty of an American citizen in Edward Snowden's situation to come forward, at great risk to himself, and inform his fellow citizens about what it is their government is doing in the dark that is illegal," the journalist told CNN's "Anderson Cooper 360" Monday night.
The NSA has admitted it received secret court approval to collect vast amounts of metadata from telecom giant Verizon and leading Internet companies, including Microsoft, Apple, Google, Yahoo and Facebook.
The case before Leon involved approval for surveillance in April by a judge at the Foreign Intelligence Surveillance Court (FISC), a secret body that handles individual requests for electronic surveillance for "foreign intelligence purposes."
Verizon Business Network Services turned over the metadata to the government.
Leon's ruling comes as the Obama administration completes a review of NSA surveillance in the aftermath of the Snowden leaks.
CNN's Jake Tapper reported Monday that tech company executives would meet with President Barack Obama at the White House on Tuesday to discuss the issue.
Obama plans to sit down with Tim Cook of Apple and Eric Schmidt of Google, as well as executives from Twitter, Microsoft, Facebook, Salesforce, Netflix , Etsy, Dropbox, Yahoo!, Zynga, Sherpa Global, Comcast, LinkedIn and AT&T, a White House official said.
Some of those companies issued a joint letter last week calling on the government to change its surveillance policies in the wake of the Snowden revelations.
Last month, the Supreme Court refused to take up the issue when it denied a separate petition, which was filed by the Electronic Information Privacy Center. Prior lawsuits against the broader NSA program also have been unsuccessful.
Days after the Snowden disclosure in June, some Verizon customers filed legal challenges in the D.C. federal court.
The left-leaning American Civil LIberties Union also filed a separate, pending suit in New York federal court.
Under the Foreign Intelligence Surveillance Act of the 1970s, the secret courts were set up to grant certain types of government requests-- wiretapping, data analysis, and other monitoring of possible terrorists and spies operating in the United States.
The Patriot Act that Congress passed after the 9/11 attacks broadened the government's ability to conduct anti-terrorism surveillance in the United States and abroad, eventually including the metadata collection.
In order to collect the information, the government has to demonstrate that it's "relevant" to an international terrorism investigation.
However, the 1978 FISA law lays out exactly what the special court must decide: "A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person."
In defending the program, NSA Director Gen. Keith Alexander told the Senate Judiciary Committee last week that "15 separate judges of the FISA Court have held on 35 occasions that Section 215 (of the Patriot Act) authorizes the collection of telephony metadata in bulk in support of counterterrorism investigations."
Initially, telecommunications companies such as Verizon, were the targets of legal action against Patriot Act provisions. Congress later gave retroactive immunity to those private businesses.
The revelations of the NSA program and the inner workings of the FISC court came after Snowden leaked documents to the Guardian newspaper. Snowden fled to Hong Kong and then Russia to escape U.S. prosecution.
The case is Klayman v. Obama (13-cv-881).
CNN's Tom Cohen contributed to this report.

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ICE union head backs claim that gov't delivering smuggled kids to parents in US | Fox News

ICE union head backs claim that gov't delivering smuggled kids to parents in US | Fox News

Homeland Security

ICE union head backs claim that gov't delivering smuggled kids to parents in US

In this July 12, 2011 file photo, an illegal immigrant is transferred to an awaiting plane bound for Guatemala by U.S. Immigration and Customs Enforcement (ICE) officials in Mesa, Ariz.Reuters
The head of the union representing thousands of federal immigration officers backed a federal judge's claim that the Department of Homeland Security is delivering children smuggled across the U.S.-Mexico border to their illegal immigrant parents.
"This is exactly what's happening," Chris Crane, head of the National ICE Council, told
Crane was reacting to a blistering court order from U.S. District Judge Andrew S. Hanen, which detailed the alleged policy. The Texas judge said the "dangerous" practice is effectively aiding human traffickers and particularly the drug cartels, which run many of these operations.
It remains unclear, though, which agency may ultimately be responsible and how widespread the practice is.
The Department of Homeland Security claimed in a statement to Fox News that it was following the law, and that its officers are committed to the "safe, fair and humane treatment" of minors.
But a law enforcement official claimed that in many cases, minors crossing the border are transferred to the Department of Health and Human Services. The official cited The Homeland Security Act of 2002, as well as the Trafficking Victims Protection Reauthorization Act, in describing how "unaccompanied alien children must be treated at entry including requiring formal removal proceedings and the need to quickly be transferred to the care of HHS."
The official described how only certain minors could be returned without going through that process.
However, the 2002 law cited by the official was the same one that Judge Hanen argued did not apply in these cases. The relevant section of that law refers to "unaccompanied alien" children who have no parent in the U.S.
The judge noted that the children in question were all accompanied by the person smuggling them over the border, and did have a parent in the U.S.
"There is nothing in this Act that directs and authorizes the DHS to turn a blind eye to criminal conduct," he wrote, adding the 2002 law "provides no excuse" for the practice.
Crane claimed that immigration officers are in fact shepherding children who cross the border illegally and delivering them to parents in the U.S., at least in some cases.
"That's what we do now, we babysit kids," he said.
He concurred with Hanen in arguing that, despite the humanitarian interest in connecting children with their parents in the U.S., the government could be putting more children in danger by inadvertently encouraging smuggling.
"The very people patting themselves on the back as humanitarians are putting these children at more risk than they've ever been before," he said.
The federal judge's statement last week was prompted by the case of Mirtha Veronica Nava-Martinez. She was arrested at the Texas-Mexico border in May and pleaded guilty to trying to smuggle a 10-year-old child originally from El Salvador. After the sentencing, the judge wrote, he decided to go public with additional details from the case.
He wrote that the "conspiracy" started when an illegal immigrant in Virginia hired smugglers to get her daughter from El Salvador to Virginia. She paid $6,000 in advance. But after the smuggling operation was interrupted by federal agents, he wrote, "the DHS delivered the child to her."
Further, he wrote, this was the fourth case he'd seen in as many weeks along these lines. In one case, he claimed, the U.S. government "flew a child to multiple locations" in the U.S. at the expense of U.S. taxpayers.
The administration, though, stresses that DHS is focused on "sensible, effective immigration enforcement" that prioritizes deporting "criminal aliens" and "egregious immigration law violators."
Immigration and Customs Enforcement announced Thursday that in fiscal 2013, the agency removed 368,644 people, most of whom were caught while or shortly after trying to enter the U.S. illegally. Nearly 60 percent had a criminal record.
Fox News' Jake Gibson contributed to this report.

Friday, December 13, 2013

Plaintiff Edith Windsor greets the crowd outside the Supreme Court after arguments in her case against the Defense of Marriage Act. (Jonathan Ernst/Reuters)
Where you stand on the legal events of 2013 depends entirely upon who you are. If you are an advocate of gay rights, for example, it was a year of breathtaking success in court and state legislatures. So, too, if you are a corporate executive or shareholder or lobbyist benefiting directly from the U.S Chamber of Commerce's remarkable string of victories at the United States Supreme Court. And it was a great year for George Zimmerman, at least for a few months anyway.
If you are a poor person of color in the South, or a young or elderly person who doesn't drive, it was a terrible year after the Supreme Court gutted the heart of the Voting Rights Act. So, too, if you are a woman who might want to visit an abortion clinic in the 24 counties in Texas now without one. It wasn't a good year either for the nation's spies or for the hundreds of millions of people they spied upon. And it was another bad year for O.J. Simpson.

Boston Killers Face Justice

A courtroom sketch of Dzhokhar Tsarnaev in federal court in July 2013 (Margaret Small/Associated Press)
If you are a federal prosecutor it was a good year. America's most notorious mobster, James "Whitey" Bulger, age 84, finally received some measure of justice. After being convicted in federal court following a dramatic trial trial he was given two life sentences for the murder and mayhem he caused for decades in South Boston. Bulger never will leave prison alive. Nor, likely, will Dzhokar Tsarnaev, the alleged Boston Marathon bomber. He ends 2013 wondering whether the feds will seek the death penalty against him.

Secret-Tellers Deal With Consequences

Kevin LaMarque/Reuters
If you are Chelsea ( Bradley) Manning it was a bad year. The former Army intelligence analyst got a 35-year sentence from a military judge for leaking classified information to Wikileaks. Whether fellow leaker Edward Snowden had a good year or a bad year in 2013 depends entirely upon whom you ask. He began the year as a consultant. He ends the year as an international fugitive—or hero—depending, again, upon your point of view.

The President Finally Fills Empty Ropes

President Barack Obama nominated Patricia Ann Millett in June for the D.C. Circuit Court of Appeals. The Senate finally confirmed her this past Tuesday. (AP)
If  you are a federal judicial nominee, 2013 ended up being a pretty good year. The end of the judicial filibuster for lower-court nominees means that you and dozens of your fellow candidates are finally getting substantive votes on your nominations so you can get robes and begin to chip away at the dozens of "judicial emergencies" that now exist in one jurisdiction after another all across the country. This also makes 2013 a good year for frustrated federal litigants, whose trials have been long delayed because of understaffed benches.

The Gun Lobby Remains All-Powerful

Adrees Latif/Reuters
If you are an advocate of gun control, 2013 was a terribly frustrating year. The gun lobby is so strong not even the slaughter of children in a Connecticut elementary school in December 2012 generated meaningful legislative reform on Capitol Hill. Meanwhile, in Colorado, scene of the 2012 Aurora theater shooting massacre, tepid new state gun laws were immediately met by a successful recall election against the local politicians who endorsed them. The feds were even unable or unwilling to repeal a Bush-era law that affords special protection against liability to gun manufacturers.

Wednesday, December 4, 2013

How the US gave guns to Mexican cartels | New York Post

How the US gave guns to Mexican cartels | New York Post

How the US gave guns to Mexican cartels

In September 2009, John Dodson, an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, was assigned to the ATF’s Phoenix office. What he found there shocked him. The bureau was encouraging gun dealers to sell weapons in bulk to known straw buyers, who would funnel those guns to Mexican drug cartels. Known as Operation Fast and Furious, it ended with the death of at least one American law enforcement officer. Dodson became a congressional whistleblower, and the investigation into the operation is ongoing. In this exclusive excerpt from his new book, “The Unarmed Truth,” Dodson explains how tragically inept Fast and Furious was.
‘It’s like the underwear gnomes,” my ATF colleague Lee Casa told me one time as we recounted the latest bizarre goings-on in Phoenix.
“What?” I asked.
“You ever watch ‘South Park’? There’s this episode where all the boys get their underwear stolen by these underwear gnomes. They track them down to get it back and one of them asks why they are stealing everyone’s underwear. The gnomes break out this PowerPoint and reveal their master plan: Phase One: Collect underpants . . . Phase Two: ? . . . Phase Three: Profit.”
“We’re doing the same thing,” he explained. “We know Phase One is ‘Walk guns’ and Phase Three is ‘Take down a big cartel!’ ”
Both of us were laughing now; a more fitting and appropriate allegory could never be found. Casa concluded, “Just nobody can figure out what the f–k Phase Two is!”
What was happening did at times almost seem like a spoof. Letting guns “walk” was a tactic that I had never before seen or even contemplated. It simply wasn’t done.
I couldn’t understand how anyone could argue that allowing guns that ought to have been in law-enforcement custody to go to known or suspected criminals — people who shouldn’t have been near a gun, people who almost certainly would be passing them on to Mexico’s most brutal drug cartels — wasn’t madness.


As the weeks went on, it was the same routine. Hope MacAllister, the case agent for the operation she dubbed “Fast and Furious,” would get a call from a gun dealer advising that one of our low-level knuckleheads was in the store, or on their way there, and purchasing high quantities of the same make and model weapons all at one time.
We’d rush out to the respective gun shop, set up in the parking lot, and watch, taking pictures or video as they exited the store, arms full of boxes containing weapons. Sometimes there would be so many, they would have to wheel them out on a store cart. Then we watched as they loaded them into their vehicles and then casually drove away. One of the suspects purchased as much as 40 AK-variant rifles in the same day.
As had become our routine, we would follow the straw purchasers to a stash house or other location. On occasion, they would meet up with another vehicle and pass box after box from one car to the other. I struggled to reconcile us knowing what was in each one of those boxes, where the guns were headed to, and what they were going to be used for, with how could we just watch them drive away.
There were several times we actually saw money change hands. We were ordered to always stay on the known straw purchaser, the one we already knew everything about, rather than follow the new player who left with the guns.
We recorded everything we witnessed, wrote reports about it each time and kept every document. Other than that, we just allowed it all to happen month after month.
In all, we watched thousands of weapons leave, all bound for the carnage-riddled fron‑tera, the Mexican border.


One rung above this group of straws, and still very much a pawn by cartel standards, was Manuel Celis-Acosta. Short and stocky, in his mid-30s with dark hair atop his full face, Acosta was a first-level manager and organizer. Acosta was running his own straw-purchasing ring. He appeared to be a subcontractor for various drug-trafficking organizations and drug cartels.
We had Acosta identified from the beginning. We knew who he was and what rung of the ladder he occupied.
We even had his network mapped out. One of the frequent purchasers on his behalf was Jacob Chambers (before being dubbed “Fast and Furious,” after the movie of the same name, our investigation was titled after him). In that beginning phase, Hope had done a routine query of several federal law-enforcement and phone-number databases to see if any of our targets had pinged any other agency’s radar. They had.
On Dec. 15, 2009, DEA agents working on a similar case met with Hope. Dubbed a “deconfliction” meeting, it became clear that ATF and DEA were working some of the same people.
Since the case didn’t involve drugs, the DEA agents were eager to punt whatever information they had about firearms trafficking to ATF.
Shortly thereafter, DEA called again and dropped a fresh new nugget of intel. Acosta was planning a transfer of 32 semiautomatic AK-variant rifles to his cartel contacts in El Paso who would then take them the rest of the way into Mexico. The break of all breaks — it doesn’t get any better than that.
If the purpose of the case is to stop firearms trafficking, then you interdict this load and shut the group down. If the purpose was to get evidence on Acosta, DEA had just provided all that was needed to catch him in the act. If the purpose was to do a wire, DEA was already up on one and intercepting Acosta’s calls on the other end. If the purpose was to take down a cartel, DEA had just given us the chance to jump one rung of the ladder higher than Acosta before we ever even got up and running.
However, four days later, on Dec. 19, 2009, when DEA called with more information about the pending weapons transfer, Hope outrageously told them that we were too short on bodies because of Christmas to staff a surveillance team and so we wouldn’t be covering it.
DEA later learned through their case that the delivery had in fact taken place, just as their sources said it would, in El Paso, Texas, on Dec. 22. Thirty-two more guns to the cartels.


Later, in March 2010, DEA   again contacted ATF with yet more intelligence. Agents from another one of their divisions had fully identified the suspect to whom they believed Acosta had delivered the weapons in El Paso.
Then DEA dropped a bomb: Through their own deconfliction protocols, they had learned that those two suspects, both above Acosta in hierarchy, were already subjects of a joint DEA-FBI investigation being worked out of another division that had begun back on Dec. 9, 2009.
This was major news, or at least should have been. If those higher than Acosta were already being investigated by other federal agents, then, like it or not, our case had a ceiling imposed. There was no reason to keep following Acosta because we couldn’t get to his bosses; they were already wrapped up by the other investigation, which had priority since it involved a higher level of criminal element.
Later we learned that these folks Acosta was reporting to weren’t just targets of the joint DEA-FBI investigation; they had been cultivated as informants and were in fact assets of the FBI. More shocking, they had been using FBI money to ultimately purchase a significant portion of the firearms.
Take the government out of this equation and nothing gets done. No guns get purchased, because there is no FBI money to pay for them; no guns get sold, because ATF is not coercing the gun dealers to sell them; and no guns get trafficked, because ATF is not using the guise of a “big case” to allow it all to happen.
And yet the Justice Department was happy to let the farce continue, telling my ATF bosses they were doing a great job.
You can’t make this s–t up!


I  had suggested that we use GPS trackers so that we could better track the weapons and ensure their interdiction before making it south of the border. When my bosses agreed, I felt a sense of relief. Finally we were going to start doing something.
We hid a GPS device into an AK-variant rifle. One of the straws took the bait and purchased the rifle harboring the GPS along with a group of others. As so many times before, we had enough to arrest him on the spot, but we let him drive out of the parking lot with a trunk full of guns. This time, at least, we could track the guns.
We were told to keep a loose surveillance; no need to risk heating them up — to let the GPS tracker do its job.
“Seventeen South,” Hope said over the radio as she relayed the information she was getting over the phone. “Still southbound— Passing Camelback Road.”
Unknown to Casa and I, there was a delay in the information we were getting; the GPS was being monitored by a technician who was then relaying the information to an analyst, who then relayed it over the phone to Hope in the Strike Force office, who then relayed it over the radio to us. Although it was ridiculous that so many links need to be in the chain in the first place (we should have had the capability to monitor the GPS directly), it wasn’t overly problematic, until . . .
Hope’s voice came out over the radio, “Does anyone have eyes on the vehicle?”
Shaking my head, I thought, You told us to stay back so we couldn’t be seen; if it can’t see us — we probably can’t see it.
Someone answered, “Negative.”
After a brief pause, the radio crackled again as Hope’s voice broke the static: “We’ve lost the tracker. It may have went down or gone somewhere where the signal can’t get out.”
Looking around as I drove the last known route it was headed, I saw warehouses, storage facilities, acres of tractor trailers parked alongside each other as if someone had sat out a giant set of dominoes, and nearly an entire city block covered with shipping containers and Conex boxes stacked 30 feet high, three or four deep.
My head on a swivel looking around for the vehicle, I pressed hard on the mic key and asked, “Last known location?”
“Fifty-First near Buckeye,” she answered. “Eleven minutes ago.”
Eleven minutes ago! Do you have any idea what can happen in eleven minutes? How far a vehicle can travel in eleven minutes? Needless to say — it was gone.
The maiden voyage of our tracker had lasted less than an hour. Back at the office, the only concern expressed was for the loss of the GPS equipment and their having to account for that.
The guns getting away . . . well, that was business as usual.


One of the regular straw buyers was a man named Jaime Avila. Many times I remember following him in frustration after buys beginning in December 2009. We tracked his many purchases. We listed him in our database. We knew, in real time, whenever he purchased a weapon or when one he had purchased was recovered at a violent crime somewhere along the border.
The only things we hadn’t ever done: interdict him, arrest him, interview him or anything else that might hinder his firearms trafficking.
On Dec. 14, 2010, Border Patrol Agent Brian Terry came across a group of suspected illegal immigrants near Mexico.
He was shot and killed by an AK-47 variant rifle.
It was a gun Avila had bought in January 2010. A gun we let go.
Some politicians and the media like to think the Fast and Furious scandal is over, that we know what happened and it’s no big deal. But three years later, the White House still refuses to release all documents on the operation. Officials refuse to say who knew about the gun walking. The Mexican government say 211 people have been killed by guns from Fast and Furious, including police officers. The body count will only increase.
And Attorney General Eric Holder, despite being held in contempt by Congress, still has a job.
We gave thousands of guns to Mexican drug cartels. Americans died. Where is the outrage?
Copyright (c) 2013 by John Dodson from the forthcoming book “The Unarmed Truth” by John Dodson. To be published by Threshold Editions, a division of Simon & Schuster, Inc., this Tuesday. Printed by permission.

The Unarmed Truth and Persevering Persistance to tell it - ATF Whistleblower, Courageous Hero in Truth Telling

Homeland Security

ATF tries to block Fast and Furious whistle-blower from publishing book

The ATF agent who blew the whistle on Operation Fast and Furious has been denied permission to write a book on the botched anti-gun trafficking sting "because it would have a negative impact on morale," according to the very agency responsible for the scandal.
After first trying to stop the operation internally, ATF Agent John Dodson went to Congress and eventually the media following the death of Border Patrol Agent Brian Terry in December 2010. Two guns found at the murder scene were sold through the ATF operation.
Dodson's book, titled "The Unarmed Truth," provides the first inside account of how the federal government permitted and helped sell some 2,000 guns to Mexican drug cartels, despite evidence the guns killed innocent people.
Dodson, who is working with publisher Simon & Schuster, submitted his manuscript to the department for review, per federal rules. However, it was denied.
Greg Serres, an ATF ethics official, told Dodson that any of his supervisors at any level could disapprove outside employment "for any reason."
Serres' letter said: "This would have a negative impact on morale in the Phoenix Field Division and would have a detremental effect [sic] on our relationships with DEA and FBI."
The ATF said in a statement, though, that they did not actually block Dodson from publishing.  
"ATF has not denied the publishing of a manuscript or an individual's 1st Amendment rights. We have denied Mr. Dodson outside employment which can be denied for any reason by a supervisor," the agency said. "While his supervisor stated morale and interagency issues for the denial, the fact remains no agent may profit financially from information gained through his federal employment while still an employee.
"This is not about 1st Amendment rights: this is about a current employee trying to profit financially from knowledge he has gained while currently employed as a special agent."
The national office of the American Civil Liberties Association is representing Dodson as he fights the decision. ACLU attorney Lee Rowland says the agency's restriction is overly broad.
Rather than provide a specific objection which would allow for a line-by-line redaction, ATF used a policy that "grants supervisors the discretion to censor critical speech simply because it annoys or embarrasses the ATF," Rowland wrote in a letter delivered Monday.
"Given the national importance of both the Fast and Furious operation and ATF practices more broadly, ATF faces an extremely high burden in demonstrating that its interests outweigh Agent Dodson's right to speak -- and the public's right to hear -- his views about Operation Fast and Furious," she explained.
First Amendment rights are especially strong when the speech affected deals with public policy, Rowland said, requiring the government to meet a very high bar. Precisely because Dodson's views differ dramatically from those of his supervisors, his "thoughts and opinions" should not be censored, Rowland said.
Fox News legal analyst Lis Wiehl said the federal code prohibiting employees from outside compensation from speeches and writing could pose a significant problem for Dodson.
"He is still an agent with the ATF and the ATF has very strict restrictions," Wiehl said. "You can't receive compensation for outside employment, including writing a book, without permission."
On the other hand, Wiehl said, the ATF may have overplayed its hand by saying it can deny publication "for any reason."
"What kind of hubris is that when a whistle-blower wants to go on public record -- the First Amendment says he should be able to go forward," she said. "The ATF created their own embarrassment, maybe its own negligence -- that agent Dodson had the courage to reveal. And now he is being punished for that."
The ACLU argues ATF rules are "constitutionally inadequate (and result) in impermissible censorship of the speech of a public employee."
Dodson says "The Unarmed Truth" will come out in January, with or without the ATF's permission.
William La Jeunesse joined FOX News Channel (FNC) in March 1998 and currently serves as a Los Angeles-based correspondent.

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Whistleblower exposes truth about 'Fast & Furious'

Insider account of botched gun-running operation

Whistleblower exposes truth about 'Fast & Furious' | Fox News Video

Whistleblower exposes truth about 'Fast & Furious' | Fox News Video