Friday, May 29, 2009

NSA Wiretapping Case Nears Conclusion

The continuing and increasingly disappointing Obama Administration on issues of executive power and privacy, may finally get its just deserve today. That's right, Friday, May 29th is the court ordered deadline for the Administration to convince a federal judge not to levy sanctions against the government for “failing to obey the court’s orders” in a key NSA wiretapping lawsuit.

As most of you probably know, the Administration has been ardently defending the Bush administration's warrantless wiretapping program. In this case, the Administration is fighting a lawsuit filed by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.

As you also may remember, it was "candidate Obama" (apparently this was just a look alike) that very specifically and articulately promised to hearken in a new era of government transparency and accountability, end the Bush DOJ's radical theories of executive power, and reform the PATRIOT Act. Instead, we have seen Obama's own DOJ now argue that under the PATRIOT Act the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

Worse, over the past few months information continues to trickle out (similar to the issue of torture and the Administration's protection of those crimes) that demonstrates these spying abuses were "significant and systemic" and 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 even eavesdropped - without a warrant - on Congresswoman Jane Harman.

But it gets even worse. We have also come to find out that the government's wiretapping program actually expanded in scope AFTER Congress enacted a new, and supposedly improved, FISA law last July - actually claiming it would better regulate the government's wiretapping powers. Opponents of this bill warned that exactly the kinds of abuses that we now know followed the bills signing would occur.

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."

You can check out four recent posts about these revelations - and Obama's crushing silence on the matter - here, here, here, and here.

Obviously I would really like to know more about those specific cases in which probable cause was not established and the tracking was done without warrants. We have seen too many examples of the Bush Administration using surveillance technologies not to protect Americans or "fight terrorism", but rather to stifle dissent, monitor political "enemies" (i.e. peace protesters, environmentalists, Democrats, etc.) and even eavesdrop on journalists.

While these hopes may be pie in the sky dreams when considering the Obama Administration's strict adherence to the Bush line on this issue, at least we are nearing a decision by the that could sanction the Department of Justice for refusing to share documents about the secret program with the plaintiff’s counsel under the agreement that they would still remain secret - even from their clients or the public.

What I do know is that "candidate Obama" would have readily agreed that such a just, straight forward, and fair request from this Judge should be followed without question by the government. Instead, we are forced to wait for the court to step in...

Wired Magazine reports:

U.S. District Judge Vaughn Walker is threatening (.pdf) to summarily decide the 3-year-old lawsuit in favor of the plaintiffs, and award unspecified monetary damages to two American lawyers who claim their telephone calls were illegally intercepted by the NSA under the Bush administration. The lawyer represented a now-defunct Saudi charity that the Treasury Department claimed was linked to terrorism.

If it survived appeal, such a ruling would be a blow to the government, but it would fall far short of deciding the important question the case asks: Can a sitting president, without congressional authority, create a spying program to eavesdrop on Americans’ electronic communications without warrants, as George W. Bush did in the aftermath of the 2001 terror attacks?


The Justice Department, under the Bush and Obama administrations, has repeatedly maintained that the lawsuit should be dismissed because it threatens to expose state secrets....A similar process has been applied to lawyers representing Guantanamo Bay prisoners. This month the Obama administration refused to comply with Walker’s order.


Walker is the same judge overseeing a class-action lawsuit targeting the nation’s telecommunication companies of being complicit in Bush’s once-secret spy program. Congress, with the vote of then-Sen. Barack Obama, legalized the spy program last summer.

That legislation allows electronic eavesdropping of Americans without obtaining a warrant if the subjects of the wiretap are communicating overseas with somebody believed connected to terrorism...The legislation authorizing the spy powers also immunized the telcos from being sued for their part in Bush’s eavesdropping program. Walker is entertaining a constitutional challenge to the immunity legislation.

The good news, and this is just based on what I have read to date, Judge Walker might just be what the doctor ordered...because someone, somehow, has to to check an Executive Branch that seems to have lost control of its senses...or just needs to go back and read the Constitution.

Click here to read more.

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