Open Letter to President Obama

February 4, 2014

 

Dear President Obama,On January 17, 2014, speaking on NSA reforms, you stated "The world expects us to stand up for civil liberties, prevent government control." There are no reforms that can be made for willful violations of the law and the Constitution. How can you expect Americans to trust what you are telling us when government officials have a history of violating the law and abusing citizen rights under the guise of national security? Remember, the FBI's abuse of National Security Letters (NSL's) on domestic investigations of Americans?  How can any foreign government expect the United States to respect their privacy concerns, when it won't respect the legal rights of its own citizens? While your intentions to protect Americans may be noble, an end justifies the means approach to the law or privacy encourages systemic abuse and outright violations of the law. That is simply unacceptable to the American public.

 

Remember the word "systemic" as you read on.In your speech you said "...the combination of increased digital information and powerful supercomputers offers intelligence agencies the possibility of sifting through massive amounts of bulk data to identify patterns or pursue leads that MAY thwart impending threats. It's a powerful tool.  But the government collection and storage of bulk data also creates the potential for abuse." We are way beyond potential abuse in this country. It is ubiquitous throughout our federal law enforcement and intelligence agencies.The very collection of all the personal phone and email records of Americans is the abuse and a clear Fourth Amendment violation. Each American needs to ask themselves is the NSA sifting through their personal phone and email records going to help keep America safe?

 

If the answer is no, it serves no useful purpose for the government to have it. The government is wasting taxpayer money to purchase supercomputers to sift through billions of records of useless personal data.  Garbage in equals garbage out.You and the courts are justifying NSA misfeasance by reasoning that Americans forfeit their privacy when they give their personal information to a third-party service provider such as a phone company, email service provider, or bank.  Americans provide that information and/or money to these companies as part of a business transaction in exchange for a service.  That personal information is required for specific business purposes such as billing, customer service, shipping information, etc., and should not to be used for other purposes as the company or government sees fit.

 

So why is our privacy forfeited because we pay for a service? Many citizens pay the U.S. Postal Service to deliver mail but it is illegal for the government just too arbitrarily open and sift through it. Just because technology empowers easy searches of digitally stored emails doesn't make it right. It is just plain wrong, desperately abusive and violent violation of our Fourth Amendment rights. Our government is sometimes just too close to the mirror of national security to clearly see their impingement of our rights.The government cannot just arbitrarily search the personal car of a citizen without probable cause or a search warrant even though the car is travelling over public highways.

 

That car is personal possession and subject to illegal search and seizure. It is a violation of the Fourth Amendment to arbitrarily attach a tracking device to track personal locations and movements. Likewise, a cell phone, is a personal possession.  All data, including meta-data from a cell phone call is generated from the very personal and private action of the individual. It is illegal to wiretap a line without a warrant. How then is it legal to acquire the personal meta-data created by an individual making a phone call from their personal device? The rationalization and justification by government officials that citizens voluntarily surrender their privacy because they use the services of a business is schizophrenic-like thinking and the epitome of overreach.As you know President Obama, intelligence gathering and criminal investigations involves targeted analysis of information on individuals and others linked to them suspected of engaging in criminal activity.

 

To collect personal phone data on hundreds of millions of Americans with no involvement in criminal activity is a Fourth Amendment violation of epidemic proportions. On November 19, 2013, the Guardian Newspaper reported on the content of a FISA court order by Judge Colleen Kollar-Kotelly that found the NSA engaged in "systemic over collection" of American's phone records. Congressman Peter King (R-NY) on January 23, 2014, told CNN's Wolf Blitzer that law enforcement and intelligence officials say they need bulk cell phone data to help protect Americans and that no specific case abuse of a single individual has been reported. The very act of systemic collection and storing of our personal records is violation of the Fourth Amendment. Further acts of isolated personal abuse would be even more heinous. The NSA should not have our phone records for any reason whatsoever unless a judge has found probable cause exists and issues an order for the government to access the records.

 

The bottom line is that most Americans don't trust government officials with their records, especially given their track record. American's distrust of government officials concerning their privacy is well-founded given the FBI's abuse of national security letters.Your previous FBI Director Robert Mueller testified before Congress related to a 2006 Inspector General report which described the bureau's abuse of the Patriot Act's national security letters as "systemic failures".

 

In a 2008 CNN report on the FBI's use of NSLs Senator Patrick Leahy (D-Vermont), Chairman of the Senate Judiciary Committee stated that the IG report "outlines more abuses and what appears to be the improper use of national security letters in a systemic failure throughout the FBI". Mueller confirmed that FBI agents had fraudulently obtained personal telephone records from telecommunications companies by falsely representing that a federal grand jury had requested the records. This is not mere misfeasance, it is a federal crime. 18 U.S.C. 1001, Statements or entries generally, makes it a crime to (1) falsify, conceal, or cover up by any trick, scheme, or device a material fact, (2) make any materially false, fictitious, or fraudulent statement or representation, or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, which is punishable up to 5 years in prison.

 

Mueller told Congress that he was going to conduct a "special inspection" to determine if there were any "internal control lapses". What about a criminal investigation?

 

Are FBI agents above the law? It appears so.It is not an irony that both Judge Kollar-Kotelly and the Inspector General used the term "systemic" to describe the failures and abuses of the NSA and FBI. The reality is that our federal law enforcement agencies have "systemic" problem with abusing and violating the law and constitutional rights of American citizens. There is no legal deterrent or fear of punishment to keep them from doing so. This is what concerns me and other Americans about the NSA collecting and storing our personal information. Have you heard of the IRP6 case?  Attorney General Holder and U.S. Attorney John Walsh of Colorado knows all about it. The IRP6 case presents examples misfeasance of the FBI and U.S. Attorney's Office in Colorado abusing the secrecy component of Patriot Act and malfeasance of officials related to the Court Reporter's Act.

 

Evidence in the IRP6 case indicates the FBI violated the law by using NSLs to illegally gain access not only to banking records of The Colorado Springs Fellowship Church, but also some of the parishioners for use in the investigation and prosecution of the IRP6.  When parishioners checked with their banks they were told that there was not a subpoena issued for the records. So what method did the FBI use to force the banks to turn over the records and violate church member’s right to financial privacy?  How did the government circumvent very specific legal requirements to gain access to the church's 501(3)(c) non-profit corporation banking records? NSLs contain a gag order, prohibiting the recipient of the letter from disclosing the letter was ever used. Court records show that the government obtained banking records of parishioner’s years before a grand jury was ever empaneled.

 

In fact, the grand jury questioned FBI Agent Smith on where he obtained the records, substantiating the fact the grand jury did not issue the subpoena. So what tactic was used to get the records if the grand jury didn't make the request? IRP6 attorneys filed a motion requesting for the government to turn over alleged subpoenas used to obtain the banking records after the grand jury was already discharged and the records were no longer sealed.  Federal Rule of Criminal Procedure 6(e)(6) states "...subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before the grand jury."

 

The government vigorously opposed turning over the alleged subpoenas. Assistant United States Attorney (AUSA) Matthew Kirsch cavalierly responded to IRP6's request by stating "Even if the records were improperly obtained", it was irrelevant to our case. Sounds like an implicit admission by AUSA Kirsch that the records were improperly obtained. Kirsch went on to say "Part of what is confidential about the subpoenas, themselves, is the manner in which the government makes the request for these materials (banking records); that revealing the subpoenas would reveal part of the tactics by which the government conducts its investigation." Grand jury subpoenas are common and ubiquitous throughout our legal system. Kirsch's use of the word "tactics" implies some special process was used to get the records, which I believe was an NSL.

 

Now, the Court Reporter's Act.Malfeasance by the U.S. Attorney's Office in Colorado occurred when officials failed in their duty to enforce compliance of the Court Reporter's Act, which resulted in six men (IRP6) being wrongfully imprisoned. Six pro se defendants alleged that federal Judge Christine Arguello violated their 5th Amendment right by forcing them under threat to testify in their criminal proceeding. Arguello disputed that she ever compelled their testimony so the IRP6 requested the transcript to resolve the dispute. The transcript of those events mysteriously disappeared or became unavailable as stated by the court reporter. Many requests for the transcript were made by the IRP6 and AUSA Kirsch opposed every request. The IRP6 requested an investigation by your Attorney General, Mr. Eric Holder but while AG Holder admits to being aware of the situation, he simply refuses to act.  Public requests have poured into his office requesting an investigation into the missing transcript but your Attorney General remains reticent while six men sit in prison and their families suffer great loss. Let me wrap this up and make you aware of something.

 

President Obama, I am one of the IRP6, writing this letter from a prison in Florence, Colorado. First, I am 100% innocent.  Second, I wouldn't be here if government officials chose to abide by the law. Certainly you can understand why I and many Americans don't trust in the fidelity of those in our intelligence and law enforcement agencies with our personal information when many of them don't have the integrity to legally handle court-related information and enforce associated laws. I have heard you state many times that we are a nation of laws. That rings hollow with myself and many Americans when they see what routinely happens and specifically what has happened in the IRP6 case.

 

The IRP6 case is heavily followed on the Internet and the justice advocacy and judicial accountability organization, A Just Cause, have given numerous national and local radio interviews, to include Dr. Wilmer Leon, Carl Nelson in the District of Columbia and Janice Graham, all working at the grass roots level to spread the news of the IRP6 case.I sincerely hope that this letter finds you well and my words are meaningful.  I don't have any political clout that you should be mindful of me. I am just an ordinary citizen, but I speak from my heart and I speak the truth, whole truth and nothing but the truth so help me God. I hope you have the humility to hear me and order the DOJ to investigate the issues discussed herein related to our case. For more information Google "IRP6"Please do the right thing President Obama.  I voted for you because I thought you would.

 

Respectfully,David Banks

 

 

 

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