America... Spying on Americans II

Saturday, April 01, 2006
The President's "good faith" defense

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By Anonymous Liberal
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In its article covering Friday's censure hearing, the New York Times reports:

Quote:

Several Republicans argued that whatever the legal status of the spying program, it did not deserve punishment because, unlike Nixon, Mr. Bush had acted in good faith.

"This is apples and oranges," Senator Lindsey Graham, Republican of South Carolina, told Mr. Dean. "Anybody who believes that Richard Nixon was relying on some inherent-authority argument is recreating history."

Oh really. Here's a passage from the same 1969 Time Magazine article Glenn highlighted yesterday:

Quote:

If anything, the Nixon Administration has been less than apologetic about the practice. Last month, in a memorandum filed during the Chicago trial of eight men charged with conspiring to incite acts of violence during the Democratic National Convention, the Justice Department claimed the inherent right to bug or wiretap-without court orders-any time it felt that the "national security" was in jeopardy.

As authority for this broad power, the Government cited the President's oath to "preserve, protect and defend the Constitution" from domestic subversion as well as foreign enemies. Contending that every President since Franklin Roosevelt had permitted such wiretaps, the Government went on to imply that they were even more important now because of the growing violence and rioting in the nation's cities and on its campuses.

Not only did Nixon rely on an inherent authority argument, but he had an infinitely stronger case because Congress had not yet passed FISA. Nice try, though, Senator Graham.

I also want to take a moment to address the emerging "good faith" defense of the President, which is being advanced by Republicans like Senators Graham and Specter who are clearly skeptical of the NSA program's legality. The argument seems to be that while Bush may have acted illegally, he did so based on a good faith belief that his actions were legal, and therefore he does not deserve harsh criticism or Congressional sanction.

I can see why Republicans like Graham and Specter have gravitated toward this argument. It allows them to express their genuine skepticism about the legality of the program without having to criticize the President for authorizing it.

But there's a major problem. Everything the administration has done for the past four and a half years indicates that it does NOT have a good faith believe in its own legal arguments. If Bush administration officials had any confidence whatsoever in their legal theories, they could at any point seek judicial blessing of the NSA program. All they would have to do is try to introduce evidence obtained via warrantless surveillance in court, either in a criminal prosecution or in an application for a FISA warrant. Either move would force the court to address the legality of the NSA program. In the latter context, the administration would have the benefit of being able to present its case ex parte and in secret.

But they are unwilling to do this, and for one simple reason: they are pretty certain they will lose. This paragraph from a U.S. News & World Report story last week is particularly revealing:

Quote:

White House lawyers, in particular, Vice President Cheney's counsel David Addington (who is now Cheney's chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials.

So they were willing to deceive judges and to drop entire prosecutions rather than test their legal theories in court. If that's not good faith, what is? The article goes on to make the obvious point:

Quote:

[John] Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."

But that's not the only evidence that the administration doesn't have much confidence in its own legal theories. The administration has worked feverishly to scuttle any further investigation into its activities and to challenge the standing of litigants (like the ACLU) who have sought to have the legality of the NSA program adjudicated in court.

And, perhaps most glaringly of all, there's the fact that the administration's primary legal argument was apparently conceived years after the program was first authorized. It's pretty hard to have a good faith belief in the merits of an argument you haven't even thought up yet. The administration is so confident in the merits of its legal theories that it won't even release the relevant OLC legal opinions, despite repeated requests.

No, despite what "several Republicans" argue, this administration does not and has never had a good faith belief that its legal theories will prevail in court.

But, you may protest, perhaps Bush did have a good faith believe that his actions would help prevent terrorism, even if he knew they were probably illegal. Isn't this a mitigating factor? Sure, if it's true. And for all I know it is. But there are two points we must not lose sight of.

First, because this surveillance is taking place in secret and without judicial review, we have no way of knowing who is actually being spied upon and why. We must simply take the administration's word. But history has shown that a president's word isn't worth a whole lot in this area. Surveillance authority was abused not only by the Nixon administration, but by his Democratic predecessors. The whole point of FISA was so we wouldn't have to take the president's word anymore. Even if you trust Bush to use this power only on terrorists and never on anyone else, can you really say the same about all future presidents?

Second, even if Bush's motives are as pure as the driven snow, it doesn't justify knowingly violating the law, at least outside of very extreme and short-term emergency scenarios. The viability of our system of constitutional government depends on the willingness of our leaders, particularly the president, to take seriously the concepts of separation of powers and checks and balances embodied in our Constitution. Subverting these concepts is dangerous. AsJohn Dean said at Friday's hearing:

Quote:

I must add that never before have I felt the slightest reason to fear our government. Nor do I frighten easily. But I do fear the Bush/Cheney government (and the precedents they are creating) because this administration is caught up in the rectitude of its own self-righteousness, and for all practical purposes this presidency has remained largely unchecked by its constitutional coequals.

Amen to that.

posted by Glenn Greenwald | 8:00 AM

What the FISA judges really said

Yesterday the Washington Times published an article with the headline: "FISA judges say Bush within law." The article, by Brian DeBose, reported:


A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

Bush's defenders wasted no time jumping to the conclusion that Bush had been vindicated and all this talk of FISA and illegality was utter nonsense. One small problem: the article is complete and utter rubbish. . . .

The transcript of the hearing--which is very long--is only available via subscription, so you're going to have to take my word for now. A total of five judges testified in person, and one submitted written testimony. All of the judges made it crystal clear that they had no intention of opining on the legality of the NSA program ("we will not be testifying today with regard to the present program implemented by President Bush"). The judges were there to testify about FISA and about the merits of Sen. Specter's proposed legislation to amend FISA.

The bulk of the testimony by the judges was in praise of FISA and in praise of Specter's proposed bill (which is clearly why Specter called them to testify in the first place). Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance.

Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. If the DeWine bill passes, the FISA court will be utterly marginalized. These judges realize that some sort of legislation is likely to be passed, and they'd undoubtedly prefer something along the lines of Specter's bill, which would at least require the court to approve surveillance on a program-wide level.

I can assure you, though, that at no point did any of the judges come anywhere close to saying that the president "did not act illegally" or that he acted "within the law" when he authorized the NSA warrantless surveillance program. So the Washington Times story is complete rubbish. It could not possibly be more misleading. . . .

MSNBC.com



The Associated Press
Updated: 11:30 a.m. ET April 6, 2006

WASHINGTON - The Republican chairman of the House Judiciary Committee pointedly criticized Attorney General Alberto Gonzales Thursday for "stonewalling" by refusing to answer questions about the Bush administration's warrantless eavesdropping program.

Rep. James Sensenbrenner, R-Wis., said Gonzales was frustrating his panel's oversight of the Justice Department and the controversial surveillance by declining to provide information about how the program is reviewed inside the administration and by whom.

"How can we discharge our oversight if, every time we ask a pointed question, we're told the program is classified?" Sensenbrenner asked Gonzales near the start of a lengthy hearing on the department's activities. "I think that ... is stonewalling."

Gonzales did not budge, defending the eavesdropping as lawful and telling Sensenbrenner and other lawmakers on the panel that he would not discuss classified matters.

"I do not think we are thumbing our nose at the Congress or the courts," Gonzales said in response to a question from Michigan Rep. John Conyers, the committee's senior Democrat.

Domestic surveillance defended

President Bush confirmed in December that the National Security Agency has been conducting the surveillance when calls and e-mails in which at least one party is outside the United States are thought to involve al-Qaida. Gonzales has been at the center of the administration's defense of the program in the face of criticism from Congress and civil liberties groups.

Gonzales also would not discount that the president could order the NSA to listen in on purely domestic calls without first obtaining a warrant from a secret court established nearly 30 years ago to consider such issues.

He said the administration, assuming the conversation related to al-Qaida, would have to determine if the surveillance were crucial to the nation's fight against terrorism, as authorized by Congress following the Sept. 11 attacks. "I'm not going to rule it out," Gonzales said.

The attorney general acknowledged that there had been disagreement about the monitoring inside the administration. But he took issue with published reports that detailed some of those disputes.

"They did not relate to the program the president disclosed," he said. "They related to something else and I can't get into that."

In written responses to questions from Congress, the Justice Department last month would discuss disagreements among the departments' attorneys about the program or a Newsweek story about a Justice Department controversy over the program in 2004 that led to a visit from senior White House officials to then-Attorney General John Ashcroft, who was in a hospital at the time.

© 2006 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

© 2006 MSNBC.com

URL: http://www.msnbc.msn.com/id/12186313/from/RSS/

Now some Republicans are getting pissed as well. Let's see if they have the balls to push further on this issue.

Gonzales also would not discount that the president could order the NSA to listen in on purely domestic calls without first obtaining a warrant from a secret court established nearly 30 years ago to consider such issues.

Whitman disputed critics' assertions that the program amounted to Pentagon domestic spying, although he declined to state the nature of these entries or the people they involved, saying the database's contents are classified. Whitman stressed that to be properly placed in the database, a threat must have a suspected link to international terrorism.

Under the Talon system, Defense Department civilian and military personnel are asked to report on activities they deem suspicious. These reports go in the Cornerstone database, handled by a Pentagon agency called the Counterintelligence Field Activity, or CIFA.

The review was ordered in December by Stephen Cambone, under secretary of defense for intelligence, after revelations that the database included information on U.S. citizens including peace activists and others who did not represent a genuine security threat.

'SUSPICIOUS'

NBC News and defense analyst William Arkin disclosed at the time a sample of the database containing reports of 1,519 "suspicious incidents" between July 2004 and May 2005, including activities by antiwar and anti-military protesters.

This included a military intelligence unit monitoring a Quaker meeting in Lake Worth, Florida, on plans to protest military recruiting in high schools.

The Pentagon is legally restricted in the types of information it can gather about activities and individuals inside the United States.

NSA has massive database of Americans' phone calls

Updated 5/11/2006 12:30 AM ET
By Leslie Cauley, USA TODAY

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.The usefulness of the NSA's domestic phone-call database as a counterterrorism tool is unclear. Also unclear is whether the database has been used for other purposes.The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources saidThe NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest's financial health. But Qwest's legal questions about the NSA request remained.

Unable to reach agreement, Nacchio's successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.

Contributing: John Diamond

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This article is about the spy network; for other uses see Echelon (disambiguation).

Antenna 4 (through the wire) in former Echelon intelligence gathering station at Silvermine, Cape Peninsula, South Africa.
Enlarge
Antenna 4 (through the wire) in former Echelon intelligence gathering station at Silvermine, Cape Peninsula, South Africa.

ECHELON is a highly secretive world-wide signals intelligence and analysis network run by the UKUSA Community. [1] ECHELON can capture radio and satellite communications, telephone calls, faxes and e-mails nearly anywhere in the world and includes computer automated analysis and sorting of intercepts. [2] ECHELON is estimated to intercept up to 3 billion communications every day.

If the Dems are against the NSA program, why haven't they tried to shut it down? They are merely playing politics.

Conyers, Harman introduce bill to kill NSA phone call database
05/11/2006 @ 4:13 pm
Filed by RAW STORY

Reps. Jane Harman (D-CA) and John Conyers (D-MI) today introduced the "Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act" (The LISTEN Act), RAW STORY has learned.
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The Act would require any attempt to listen in on Americans or collect telephone or e-mail records to be be conducted in accordance with the Foreign Intelligence Surveillance Act of 1978 (FISA), or Title III of the criminal code. In both cases, court warrants based on probable cause are required. The Act states that FISA is the exclusive way to conduct electronic surveillance of U.S. persons on U.S. soil for intelligence purposes.

It also explicitly states that the Authorization to Use Military Force, passed by Congress in October 2002, did not constitute authority to engage in electronic surveillance outside of FISA.

According the Representatives, the legislation provides tools to expedite emergency warrant applications, and authorizes funds to incorporate standardization, electronic filing and streamlined review procedures at the NSA and Department of Justice. It also requires the President to ensure that resources are adequate to process warrants, and requires the Administration to comply with FISA at all times.

"We need to know if terrorists are plotting to attack us," said Harman, Ranking Member on the House Intelligence Committee. "But we must never retreat from the principle that every intercept requires a warrant based on probable cause. Since some in the Administration claim the FISA process is antiquated, this bill puts the burden on them to request additional resources."

"It is a sad day when the Congress of the United States must compel the President to abide by the Constitution," said Congressman Conyers, the Ranking Member on the House Committee on the Judiciary. "I regret that we have to legislate once again on an issue that was clearly settled by this Congress nearly 30 years ago in the Foreign Intelligence Surveillance Act."

Congressman Conyers added, "This legislation could not be more timely. Today's USA Today article made clear that the Administration's eavesdropping is larger than anyone imagined and sweeps in the activities of millions of innocent Americans. If this Congress does not rein in the President and his Administration now, there is no telling how far it will go."

But beyond that, when the NSA scandal first broke, the administration's principal political defense was to continuously assure Americans that they were eavesdropping only on international calls, not domestic calls. Many, many Americans do not ever make any international calls, and it was an implicit way of assuring the heartland that the vast bulk of the calls they make - to their Aunt Millie, to arrange Little League practice, to cite just a few of the administration's condescending examples - were not the type of calls being intercepted. The only ones with anything to worry about were the weird and suspect Americans who call overseas to weird and suspect countries. If you're not calling Pakistan or Iran, the Government has no interest in what you're doing.

That has all changed. We now learn that when Americans call their Aunt Millie, or their girlfriend, or their psychiatrist, or their drug counselor, or their priest or rabbi, or their lawyer, or anyone and everyone else, the Government is very interested. In fact, they are so interested that they make note of it and keep it forever, so that at any time, anyone in the Government can look at a record of every single person whom every single American ever called or from whom they received a call. It doesn't take a professional privacy advocate to find that creepy, invasive, dangerous and un-American.

"These are not phone calls within the United States," Bush said. "This is a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States.

The NSA has your number
This sounds like a vast and unchecked intrusion on privacy

Published May 11, 2006


The National Security Agency has been amassing a vast, secret database with records of tens of millions of telephone calls made by Americans, USA Today reported on Thursday. Telephone companies started to turn over records of millions of their customers' phone calls not long after the Sept. 11, 2001, terrorist attacks. The government has created the largest database ever assembled, according to an anonymous source quoted by the newspaper.

The government apparently has even bigger plans "to create a database of every call ever made within the nation's borders" to identify and track suspected terrorists.

Think about that. Every phone call ever made.

No, not so fast.

This sounds like a vast and unchecked intrusion on privacy. President Bush's assurance Thursday that the privacy of Americans was being "fiercely protected" was not at all convincing.

We need to know more about this. The government, though, didn't offer confirmation or elaboration on Thursday. Based on the newspaper's reporting, this effort appears to go far beyond any surveillance effort that would be targeted at terrorist operations.

At first blush this program carries troubling echoes of Total Information Awareness, a proposed Defense Department "data-mining" expedition into a mass of personal information on individuals' driver's licenses, passports, credit card purchases, car rentals, medical prescriptions, banking transactions and more. That was curbed by Congress after a public outcry. It seems the people who wanted to bring you TIA didn't get the message.

This program seems to be far broader than the NSA surveillance of communications between the U.S. and overseas, which prompted great concern when it was revealed last December. Though that program is more intrusive-it involves eavesdropping on conversations-it is at least focused on communications between people in the U.S. and people abroad who are suspected of being connected to terrorism.

That overseas surveillance effort, this page has argued, could be justified and extended if it included some modest judicial oversight.

But this vast mining of domestic phone records … this is something else.

Alarmed members of Congress demanded answers on Thursday. Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, said he would summon the phone companies providing the information-AT&T, Verizon, and BellSouth-for a hearing. ``We're really flying blind on the subject [of domestic surveillance] and that's not a good way to approach the Fourth Amendment and the constitutional issues involving privacy,'' Specter said.

Yes, we're flying blind.

Why would the government seek and store records of every telephone call to your doctor, your lawyer, your next door neighbor?

Tell us.

Leahey is demandinfg that the Senate get Gonzalez in front of the committee to testify under oath. This is big. Really big. With Specter signing on to this, perhaps, we will finally get the truth.

As the Republicans cut loose Nixon (finally) we might see history repeating itself.

FUN WITH SURVEILLANCE. Turns out the NSA, with the collaboration of every phone company except Qwest, is monitoring all of our calls -- not to listen in to what's being said, but simply to gather data about the calls and draw inferences from that. It's important to link this up to the broader chain. One thing the Bush administration says it can do with this meta-data is to start tapping your calls and listening in, without getting a warrant from anyone. Having listened in on your calls, the administration asserts that if it doesn't like what it hears, it has the authority to detain you indefinitely without trial or charges, torture you until you confess or implicate others, extradite you to a Third World country to be tortured, ship you to a secret prison facility in Eastern Europe, or all of the above. If, having kidnapped and tortured you, the administration determines you were innocent after all, you'll be dumped without papers somewhere in Albania left to fend for yourself.

Once you start in with this business, it's a widening cycle of lawlessness with almost endless possibilities for abuse. Tellingly, the reason Qwest wound up not cooperating with the NSA on this is that the NSA couldn't be bothered to get a court order. Shame on the other phone companies for simply giving in to a request without legal backing.