Friday, April 17, 2009

NSA Abusing Wiretap Law - New and EXPECTED Revelations

Unfortunately a 45 minute post I did on this topic just got erased and I can't recover it. Since I don't have time to try and re-write all my comments (I think losing work like this is one of the worst frustrations that exists) I'm just going to post info from Glenn Greenwald's article as well as the New York Times. Sorry, just can't write the whole thing again:

This from constitutional scholar Glenn Greenwald:

In The New York Times last night, James Risen and Eric Lichtblau -- the reporters who won the Pulitzer Prize for informing the nation in 2005 that the NSA was illegally spying on Americans on the orders of George Bush, a revelation that produced no consequences other than the 2008 Democratic Congress' legalizing most of those activities and retroactively protecting the wrongdoers -- passed on leaked revelations of brand new NSA domestic spying abuses [1], ones enabled by the 2008 FISA law.

The article reports that the spying abuses are "significant and systemic"; involve improper interception of "significant amounts" of the emails and telephone calls of Americans, including purely domestic communications; and that, under Bush (prior to the new FISA law), the NSA tried to eavesdrop with no warrants on a member of Congress traveling to the Middle East. The sources for the article report that "the problems had grown out of changes enacted by Congress last July in the law that regulates the government's wiretapping powers."

Opponents of this bill were warning that exactly these abuses would occur if the bill was passed. Here's how I summarized some of the opposition to the FISA bill on June 21, 2008 -- just a couple of days before its passage:

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power." Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.

Abolishing eavesdropping safeguards was the central purpose of the FISA bill. It was why Dick Cheney and Michael McConnell were demanding its passage. Yale Law Professor Jack Balkin at the time wrote:

Most Americans don't realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush. President Obama will like having Congress authorize these new powers. He'll like it just fine. People aren't paying as much attention to this part of the bill. But they should, because it will define the law of surveillance going forward. It is where your civil liberties will be defined for the next decade.


Worst of all, Obama surrogates -- such as Cass Sunstein, Greg Craig and Nancy Soderberg -- were dispatched to tell people with a straight face that the FISA-gutting bill strengthened civil liberties protections and improved eavesdropping oversight. Needless to say, hordes of trusting Obama supporters immediately seized on that blatantly false assertion ("the bill Obama supports strengthens oversight!") and began reciting it in defense of their candidate. Now, a mere nine months later, The New York Times reports that the bill enabled and caused massive abuses of the NSA's eavesdropping powers. Imagine that: if you gut even the minimal oversight provisions designed to check presidential eavesdropping abuses, abuses will not (as Democrats and Obama surrogates claimed) decrease, but will actually increase substantially. Who could have guessed?


(1) The abuses which Risen and Lichtblau report last night are far from comprehensive. These are just isolated slivers that they are able to describe as a result of individuals leaking portions of what they know. Indeed, while the article emphasizes that the abuses are "significant and systemic" and "went beyond the broad legal limits," there are exceedingly few specifics in their story detailing exactly what the abuses were. In other words, most of the information about the NSA's abuses remain concealed. We have learned only a small fraction of what took place.

(2) Note the wall of extreme secrecy behind which our Government operates. According to the article, various officials learned of the NSA abuses and then secretly told some members of Congress about them, and those individuals have been secretly discussing what should be done. The idea that the Government or Congress should inform the public about the massive surveillance abuses doesn't seem to have occurred to anyone other than the whistleblowers who leaked what they knew to The New York Times.

(3) Since being elected President, Barack Obama has done everything in his power to block judicial proceedings that would examine allegations that the NSA has been abusing its eavesdropping powers and illegally intercepting the telephone and email communications of Americans. Put another way, Obama -- using radical claims of presidential powers of secrecy -- has been preventing disclosure of the very abuses disclosed by this article and preventing legal scrutiny, all by claiming that even George Bush's illegal NSA spying programs are "state secrets" that courts must not adjudicate. That's what the "state secrets" controversy is about -- Obama demanding that courts be barred from examining or ruling on any of these abuses and imposing consequences, based on his claim that these activities are so secret that they must never see the light of day.


It's true that the Times article claims that these abuses were uncovered as part of the DOJ's preparation of the semi-annual report which the 2008 FISA law requires be submitted in secret to the FISA court. And, once they knew that the Times had learned of and was preparing to write about these abuses, Obama officials claimed in response that the abuses are being corrected and that eavesdropping activities are now in compliance with the safeguards of the law. The problem, however, is that "the law" -- thanks to the Democratic Congress -- now has exceedingly few safeguards in it. It allows massive domestic spying without meaningful oversight, and renders these eavesdropping abuses inevitable. That was true in June, 2008 when the FISA-gutting law was passed, and it is just as true now.

Now some clips from the New York Times article:

The legal and operational problems surrounding the N.S.A.’s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees and a secret national security court, said the intelligence officials, who spoke only on the condition of anonymity because N.S.A. activities are classified. Classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.


The questions may not be settled yet. Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans’ privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them.


Officials would not discuss details of the overcollection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.


And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said. The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

Click here to read the rest of the article.

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