Nov 212009
 November 21, 2009  Surveillance Comments Off on Editorial: Speech and privacy

The following editorial appeared in the Providence Journal:

It may have been mere incompetence, but it is chilling that the Obama Justice Department sent a subpoena for an undeclared reason to an Internet news site,, demanding records of all traffic to that site on June 25, 2008. Even more ominously, it demanded “all other identifying information” of people who visited, including e-mail addresses, physical addresses, Social Security numbers, bank-account numbers, credit-card numbers, etc.

Finally, it issued a “gag order,” requiring the operators of the Web site of the Philadelphia-based Independent Media Center “not to disclose the existence of this request.” That is a form of government prior restraint of free speech, which is usually not permitted under the First Amendment.

When the administrator who provided space for the Web site balked, and called in a First Amendment lawyer, the Justice Department backed down and withdrew the subpoena. But it’s not explaining itself, and it is hard to tell what it was trying to do.


Sep 252009
 September 25, 2009  Featured News, Govt, Laws, U.S. Comments Off on A Problematic New Policy on State Secrets

Commentary on the DOJ’s new policy on invoking the “state secrets” privilege has suggested that although it is a slight improvement over the Bush administration policies, it does not go far enough.  Steven Aftergood of Secrecy News adds to the growing chorus of concerns:


More surprisingly, the policy seems to have fumbled the question of judicial review.  A Justice Department news release about the Attorney General’s memorandum declared promisingly that “in order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence [justifying the privilege] to the court for review.”

But strangely, the memorandum itself says no such thing (as noted by Bill Leonard).  Questioned about the discrepancy, a Justice Department official said yesterday that the intent to submit the evidentiary record to the court for review, though left unstated by the Attorney General, was “a necessary inference” and he said that it would be done “in every case.”  Maybe so.

And over on The Volokh Conspiracy, Amanda Frost comments:


By voluntarily checking its own assertion of the privilege, the Administration may have slowed the momentum by these other two branches to establish greater restrictions on executive use of the privilege. For those, like myself, who are concerned about the privilege’s abuse in the hands of any executive, the new policy is a mixed blessing. Yes, I am happy to see the Administration voluntarily establish constraints on its use of the privilege, but I am hesitant to leave the privilege completely to the executive’s discretion. Ironically, then, the very policy shift that limits the privilege today may be the one that prevents courts and Congress from limiting abuse of the privilege in the future.

Jul 222009
 July 22, 2009  Court, Featured News, Govt, Surveillance, U.S. Comments Off on EFF demands intelligence agencies’ reports

Lawsuit Seeks Public Disclosure of Oversight Records Amidst New Questions About Accountability

San Francisco – The Electronic Frontier Foundation (EFF) filed suit today against the Central Intelligence Agency (CIA) and a half-dozen other federal agencies involved in intelligence gathering, demanding the immediate release of reports about potential misconduct. EFF filed suit under the Freedom of Information Act (FOIA), requesting records of intelligence agencies’ reporting of activities since 2001 that might have been unlawful or contrary to presidential order.

“By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence,” said EFF Open Government Legal Fellow Nate Cardozo. “Intelligence agencies are given a wide berth for national security reasons, but at a minimum they’re required to act within the limits of the law. These records hold important details about how well the Executive Branch’s internal checks operate.”

The members of the Intelligence Oversight Board were appointed by the president to advise on intelligence
matters. Until last year, all intelligence agencies were required to report to the board “any intelligence
activities of their organizations that they have reason to believe may be unlawful or contrary to Executive order or Presidential directive.” The board was tasked with reviewing those reports, summarizing them, and forwarding to the president those that it believed described violations of the law. Last year, President Bush
reassigned many of these responsibilities, including reviewing agency reports, to the Director of National

A storm of media coverage following this month’s disclosure that the CIA chose to keep Congress in the dark about a plan to train anti-terrorist assassin teams has brought the lack of transparency in intelligence reporting to a head. Lawmakers have accused the CIA of deliberately misleading Congress and are calling for an investigation into officials’ conduct. The reports the agencies have provided to the Intelligence Oversight Board undoubtedly contain information that will shed some light on incidents such as this — information that is necessary in order to provide appropriate oversight.

In addition to the CIA, EFF’s lawsuit names the Department of Homeland Security, the National Security Agency, the Department of Defense, the Department of Justice (including the FBI), the Office of the Director of National Intelligence, the Department of Energy, and the Department of State — all of which failed to comply with FOIA requests seeking records and reports of concerns about intelligence activity that might have stepped over the bounds of the law.

“The CIA is not the only agency that has faced questions about the legality of its intelligence programs,” said EFF Staff Attorney Marcia Hofmann. “Electronic surveillance and other intelligence activities have come under increasing scrutiny during the past several years. We’re seeking information that will shed light on incidents of intelligence misconduct, how often they happen, and how effective oversight is for controversial programs. The agencies must follow the law and release these records to the public.”

For the full complaint:

Source: EFF

Jul 112009
 July 11, 2009  Featured News, Govt, Surveillance Comments Off on Bloggers react to the PSP report

I’ve been reading a number of mainstream news sources and columnists on the report that was released yesterday about the President’s Surveillance Program. It’s interesting to see what others feel the headline should be or the take-home message should be.

Glenn Greenwald highlights one aspect of the report that I didn’t mention in my commentary yesterday but that certainly raised my eyebrows:

To say that “a viable legal rationale could not be found” and that there is no “legal basis to support” these Other Intelligence Activities is to say that they are criminal. And even DOJ lawyers so extreme that they were willing to approve the illegal NSA program we know about concluded this was so. Nonetheless, they went on for two years at least, and Bush ordered them to continue even after his own DOJ concluded they were criminal. Revealingly, Alberto Gonzales explicitly told top DOJ lawyers that the White House didn’t care about their views that what Bush was doing was illegal because that renowned legal scholar — George W. Bush himself — declared that they were legal:


But perhaps Jack Balkin wins the non-existent prize for best perspective and roundup of the report and where we go from here:

In sum: the Bush Administration used an illegal program that wasn’t effective, and when the public found out, it repeatedly used this ineffective program to scare Congress into passing laws that legitimated many of its illegal practices and gave the intelligence agencies greater leeway with less oversight.

Nice move, eh?

The lesson of this story is not that the Bush Administration used to do very bad things and thankfully we don’t do them anymore. The lesson of this story is that Congress needs to require the Executive Branch to implement New FISA in ways that are accountable both to Congress and to a set of ombudsmen in the executive branch that Congress should now create. Congress needs to require audits of the kinds of surveillance programs the executive branch is now running. It needs to create a set of new checks and balances within the executive branch in order to prevent the sloppiness and the end-runs around consultation and checks on abuse we saw in the Bush Administration. Thanks to a successful strategy of repeated and shameless demagoguery, President Bush has handed enormous new powers of surveillance off to his successor, and to every President thereafter, regardless of party. The question now is what, if anything, Congress plans to do to prevent future abuses.

See the sidebar for video of constitutional lawyer Jonathan Turley on Keith Olbermann’s show, discussing the report.