Wednesday, June 17, 2009

Wiretapping Revelations: Feingold Schools Holder/Obama, and an American Surveillance State is Confirmed

The last two days worth of revelations to emerge in regards to the ILLEGAL (formerly its law), warrantless wiretapping program has me feeling like I just got injected with a high potency dose of despair (don't ask me why I used that analogy...I'm distraught). If there's a synonym for "anti-hope", that would describe my frame of mind well right now. Betrayed, yes? Deceived, definitely. Disenchanted, absolutely. Disgusted, confirmed.

I don't even know where to begin today. Thankfully I've got Glenn Greenwald, James Risen, Russ Feingold, and Keith Olbermann to do most of the heavy lifting for me today, because I'm not sure I can properly communicate the outrage and righteous indignation I feel right now.

Just quickly, this all began with The New York Times article in December, 2005, that exposed an ongoing, four year program of the Bush administration that illegally spied on Americans' communications without warrants. Since that time there have been numerous additional revelations regarding this mind numbing, illegal spying program orchestrated by a rogue government run by a mishmash of corporatists, neo-conservatives, and religious fundamentalists (among others)...all with one undeniable shared value: disdain for the Constitution.

Yesterday's New York Times article by James Risen and Eric Lichtblau adds to this increasingly tragic narrative almost exactly how one would have predicted: "recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged". Wonderful.

Political Grandstanding in Defense of the Surveillance State!

I've followed this issue like a hawk for two years on this blog, and I'm beginning to see a pattern, one that has expertly led us to the precipice we now stand.

It goes something like this: a disturbing surveillance state revelation is leaked (our government is listening in on our calls and emails!), this then leads to a wave of phony outrage and false promises made by a host of pandering Democrats (some are for real, like Feingold and Kucinich), then the government promises action and delivers either nothing or something that makes legal what was just illegal (nice), soon we then have another leak and new revelations that the crimes were worse than we even thought, and then comes more pandering, grandstanding, fake outrage, and promises of "tough questions", a "thorough review", and "strict oversight". Then rinse, and repeat.

So yes, the Bush Administration's illegal warrantless wiretapping program is still alive and well, with the additional protection provided by giving retroactive immunity to the telecom companies for sharing our private information with the government, which serves the dual purpose of protecting the politicians from having the telecom companies share what they know about THEIR crimes!

But it gets better, now the spying program is legal, FISA has been weakened, and the same tactics utilized by Bush and Co. (of course, we don't know what they might have used it for compared to Obama) have been adopted by former critic, and current President, Barack Obama.

But, before I get to these latest revelations reported in the New York Times, as well as Feingold's grilling of Attorney General Eric "warrantless wiretapping is not illegal anymore" Holder, Glenn Greenwald's masterful analysis, AND Olbermann's interview of James Risen on Countdown, let's first take a stroll down "horrible nightmarish memory lane", and review some of my past posts on this issue as it developed.

The Evolving Soap Opera: Some of my Past Posts

As you also may remember, it was "candidate Obama" (apparently this was just a look alike) that very specifically and articulately promised to herald 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.

Obama Sides with Bush on "States Secrets"

As I wrote a few months back:

What is so disturbing about the Obama Administration's adoption of the Bush position is that it completely distorts the original purpose of the State Secrets privilege: the government's right to keep secret specific pieces of evidence or documents that directly relate to the case at hand and that demonstrably pose a threat to national security if released.

Now, the Obama Administration and its predecessor, have been using the privilege as a way to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security. No better example of this re-interpretation is the way it has been used to defend Bush and company's warrantless wiretapping program.


To recap: according to the Bush and Obama Administrations, since citizens cannot show their messages were intercepted, they have no right to sue, because all such information is secret. And, disclosure of whether AT&T took part in the program would tip off our enemies, so we can't have that either. How convenient for the Government and their ongoing efforts to cover up gross Constitutional abuses! Government officials are not above the law. If we can continue to fill our jails with non-violent drug users and addicts certainly its not too much to ask that those responsible for breaking the law and subverting the Constitution must also be accountable to the people.

Now let's get to the latest chapter in this Stephen King novel:

"E-Mail Surveillance Renews Concerns in Congress":,

The New York Times reports:

The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said.


Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

Both the former analyst’s account and the rising concern among some members of Congress about the N.S.A.’s recent operation are raising fresh questions about the spy agency. Representative
Rush Holt, Democrat of New Jersey and chairman of the House Select Intelligence Oversight Panel, has been investigating the incidents and said he had become increasingly troubled by the agency’s handling of domestic communications. In an interview, Mr. Holt disputed assertions by Justice Department and national security officials that the overcollection was inadvertent.


The inquiries and analyst’s account underscore how e-mail messages, more so than telephone calls, have proved to be a particularly vexing problem for the agency because of technological difficulties in distinguishing between e-mail messages by foreigners and by Americans. A new law enacted by Congress last year gave the N.S.A. greater legal leeway to collect the private communications of Americans so long as it was done only as the incidental byproduct of investigating individuals “reasonably believed” to be overseas.


The N.S.A. is believed to have gone beyond legal boundaries designed to protect Americans in about 8 to 10 separate court orders issued by the Foreign Intelligence Surveillance Court, according to three intelligence officials who spoke anonymously because disclosing such information is illegal. Because each court order could single out hundreds or even thousands of phone numbers or e-mail addresses, the number of individual communications that were improperly collected could number in the millions, officials said. (It is not clear what portion of total court orders or communications that would represent.)


But even before that, the agency appears to have tolerated significant collection and examination of domestic e-mail messages without warrants, according to the former analyst, who spoke only on condition of anonymity.

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

Click here to read the entire New York Times article.

Experts Analyze Implications of Latest Developments

Glenn Greenwald of writes:

Congress never does anything about these revelations other than enact new laws that increase the government's spying powers still further and gut the few remaining oversight mechanisms that exist (while immunizing the lawbreakers). All of that compels the conclusion that Congress -- regardless of which party controls it -- is either indifferent to or in favor of this unchecked illegal government spying. What other conclusion could a rational person possibly reach?


A similar pattern occurs each time Congress enacts new laws to increase even further the Government's surveillance powers -- the Patriot Act of 2001, its full-scale renewal in 2006, the Protect America Act of 2007, the FISA Amendments Act of 2008. Each time, warnings are issued that the new law will not only permit, but will ensure, massive abuses and unchecked domestic spying. Those issuing those warnings are dismissed as fringe civil libertarian extremists and hysterics. The Serious mainstream of both political parties and the establishment media class unite to insist on the need for greater spying powers. Shortly after passage, new spying abuses are revealed, and proponents of the increased spying powers strut around expressing how shocked and troubled they are by these revelations. As Kagro succinctly put it yesterday: "We've had 2 presidential & 3 Congressional elections since the NYT found out we were being illegally spied on. And they're still finding it."

When Lichtblau and Rosen reported similar eavesdropping abuses in April of this year, I compiled the statements issued by opponents of the FISA Amendment Act of 2008 warning that exactly those abuses would ensue, and also compiled the smug, dismissive assurances by proponents of that bill that there were more than adequate safeguards in place to "protect the civil liberties of Americans." The abuses revealed in April stemmed directly from that 2008 expansion of government eavesdropping powers under the Democratic Congress, and were 100% predictable -- and predicted.


If that isn't the picture of a rampant, lawless Surveillance State, what is? How, at this point, are they even able to read from this same absurd script with a straight face? And what else could the key members of Congress -- other than a Russ Feingold here and a Rush Holt there -- possibly do to make clear that they not only acquiesce to all of this, but actively support it?

Read the rest of Greenwald's article here.

Keith Olbermann Interviews NY Times James Risen

Feingold Schools Attorney General Eric Holder

What can you say about Feingold? The ONE SENATOR to have voted against the Patriot Act is still fighting the good fight, winning elections, and standing up to the surveillance state.

Watch him grill Attorney General Eric Holder yesterday about the warrantless wiretapping program and whether it is, or isn't, ILLEGAL: Then watch Holder squirm.

Shocker of the day: "Holder not only refuses to say that Bush's NSA spying program was "illegal," but does the opposite: invoking standard, still-not-withdrawn Bush DOJ executive power theories, Holder suggests that -- though the spying program was "in contravention" of FISA -- it was not "illegal."

As writer Marcy Wheeler put it:

"It's bad enough that Holder's trying to weasel out of statements he made a year ago. But I just saw the Attorney General all but suggest that contravening a law does not constitute breaking it"

Feingold to Obama: "Defend the Rule of Law"

In a letter dated June 15, 2009, Senator Russ Feingold urged the White House to stand up for the rule of law, saying, in part:

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping. As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal. Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

It is my hope that you will formally confirm this position as president, which is why I sent you a letter on April 29, 2009, urging your administration to withdraw the unclassified and highly flawed January 19, 2006, Department of Justice Legal Authorities Supporting the Activities of the National Security Agency Described by the President ("NSA Legal Authorities White Paper "), as well as to withdraw and declassify any other memoranda providing legal justifications for the program.

Particularly in light of two recent events, I am concerned that failure to take these steps may be construed by those who work for you as an indication that these justifications were and remain valid.

Let me finish with Tim Jones, EFF's Activism and Technology Manager, who pointed out another important evolution of the Obama Administrations position on the power of the Executive Branch:

The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

The Obama administration's pro-secrecy -- and implicitly pro-warrantless-wiretapping -- stance has disappointed people who remember his campaign-trail criticisms of the last president's "wiretaps without warrants." After eight years of a growing security state, Obama was widely hoped to be the champion of badly eroded civil liberties.

Wow...that's all for me today...

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