Jul 312009
 July 31, 2009  Posted by  Govt, Surveillance, U.S.

For the past three and a half years there has been a major debate over the National Security Agency’s warrantless wiretapping program. This program, which involved the surveillance of communications between Americans and people outside of the country, began shortly after September 11.

It was brought to public light in December 2005, was the subject of legislation in 2007 and 2008, and was described in a report written by five Inspectors General released last month. On Monday, former Central Intelligence Agency and NSA Director Michael Hayden wrote an op-ed in the New York Times concerning the “value and legality” of the warrantless surveillance program. I have a different perspective.

General Hayden wrote that the surveillance activities were lawful and had “been consistently deemed lawful by the Justice Department.” This is misleading, because until Congress passed the Protect America Act in 2007, these surveillance activities (acknowledged by President Bush in 2005) were conducted outside of the governing law, the Foreign Intelligence Surveillance Act of 1978 (FISA). That was done despite a provision in law that specifically stated FISA was to be the “exclusive means” by which electronic surveillance could be done for foreign intelligence purposes.

Read more of Senator Feinstein’s comments on the Huffington Post.

Jul 112009
 July 11, 2009  Posted by  Featured News, Govt, Surveillance

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.

Jul 102009
 July 10, 2009  Posted by  Court, Surveillance, U.S.

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

And thus began the latest round in Al-Haramain v. Obama, a case seeking a ruling that the Terrorist Surveillance Program implemented during Bush’s administration was illegal. Al-Haramain, a now-defunct Saudi charity, claims that they and their lawyers were wiretapped in phone calls to Saudi Arabia without a warrant after the charity had been designated an organization that funded terrorist operations.

What makes this case somewhat unique is that the plaintiffs reportedly had hard evidence in their hands, accidentally provided by the government. Once the government realized its error, it reclaimed the documents and got the court to agree that no reference could be made to the documents and that they could not be used in any shape or manner. The plaintiffs, then, had to find another way to demonstrate that they were “aggrieved persons” under FISA and would, hence, having standing to bring suit. Relying on publicly available materials, including interviews and statements given by government officials, the plaintiffs provided what they hope will establish that they have standing to bring suit. The government has tried repeatedly to get the case dismissed on grounds that to defend against the suit, they would have to reveal state secrets.

The court will hear oral arguments on September 1.

Documents can be found on EFF’s site.