Monday, July 13, 2009

New Warrantless Wiretapping Revelations...and other High Crimes

A new government report has disclosed that President Bush authorized secret surveillance activities that went beyond the previously disclosed NSA program – raising the prospect of additional unlawful conduct. This new internal report reveals that Bush also played a direct role in instructing Alberto Gonzales and Andrew Card to go to former Attorney General John Ashcroft's hospital bed and urge him to personally approve warrantless wiretapping on Americans.

Perhaps most importantly, from a legal standpoint, is that Bush justified his warrantless wiretapping program by relying on Justice Department attorney John Yoo's theories of unlimited presidential wartime powers, and started the spying operation even before Yoo issued a formal opinion.

As Jason Leopold makes clear in his article in ConstiumNews:

Essentially, President Bush took it upon himself to ignore the clear requirement of the 1978 Foreign Intelligence Surveillance Act that all domestic intelligence-related electronic spying must have a warrant from a secret federal court, not just presidential approval. Illegal wiretapping is a felony under federal law.

Additionally, it also notes that...wait for it...the wiretapping program had NO identifiable counterterrorism successes!! And that it "generally played a limited role in the F.B.I.’s overall counterterrorism efforts". The Central Intelligence Agency and other intelligence branches also viewed the program, which allowed eavesdropping without warrants on the international communications of Americans, as a useful tool but could not link it directly to counterterrorism successes, presumably arrests or thwarted plots.


The July 10 report by the inspectors general of the CIA, National Security Agency, Justice Department and Defense Department also didn’t identify any specific terrorist attack that was thwarted by what was known as the President’s Surveillance Program (PSP), although Bush has claimed publicly that his warrantless wiretapping “helped detect and prevent terrorist attacks on our own country.”


Though the undisclosed elements of the PSP remain highly classified, the report gave some hints to its scope by noting that the program originated from a post-9/11 White House request to NSA Director Michael Hayden to consider “what he might do with more authority.”


In other words, the PSP stretched the limits of what the NSA could accomplish with its extraordinary capabilities to collect and analyze electronic communications around the world. Various journalistic accounts have suggested that Bush’s spying program crossed the line from zeroing in on specific surveillance targets to “data-mining” a broad spectrum of electronic communications.


Regarding the PSP, Bush’s White House guided the CIA in hyping the threat of more terrorist attacks, the inspectors general found. At the end of the first CIA-prepared threat assessment after 9/11, the chief of staff for CIA Director George Tenet added a paragraph saying the groups discussed in the memo “possessed the capability and intention to undertake further terrorist attacks within the United States,” the report said.

Tenet’s “Chief of Staff recalled that the [alarming] paragraph was provided to him initially by a senior White House official,” the report said. “The paragraph included the [CIA director’s] recommendation to the President that he authorize the NSA to conduct surveillance under the PSP.”

Having the CIA present as grim a terrorism threat as possible – producing what became known inside the government as the “scary memos” because they were made as scary as possible – was institutionalized as the PSP continued through periodic reauthorizations by Bush, the report said.


Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would "be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."Yoo also wrote in the memo that domestic surveillance activities, such as monitoring telephone calls without a court's permission, might be proper notwithstanding the Fourth Amendment’s ban on the government conducting unreasonable searches and seizures, without court warrants.

Again, Jason Leopold's piece fits the larger framework that those of us who oppose this program outright have been constructing for years now: its obviously unconstitutional, but more than that, its really not about fighting terrorism, but much more about stifling dissent, increasing Executive Branch power, and monitoring its "enemies", be they political (anti-war rallies, political opponents, etc.), be they journalists, and sure, be they terrorists too.

From the latest article by James Risen and Eric Lichblau in the New York Times:

While the Bush administration had defended its program of wiretapping without warrants as a vital tool that saved lives, a new government review released Friday said the program’s effectiveness in fighting terrorism was unclear.

The report, mandated by Congress last year and produced by the inspectors general of five federal agencies, found that other intelligence tools used in assessing security threats posed by terrorists provided more timely and detailed information.

Most intelligence officials interviewed “had difficulty citing specific instances” when the National Security Agency’s wiretapping program contributed to successes against terrorists, the report said.

Watch Olbermann's interview the New York Times James Risen on Countdown regarding whether Bush altered CIA threat assessment to justify warrantless surveillance...

And, be sure to also watch Professor Jonathan Turley discuss the various legal implications of all this...and whether the Obama Administration is prepared to anything about it.

Jonathan has more at his blog, in a post entitled "Reports Shows Additional Undisclosed Surveillance Programs — And Likely Unlawful Conduct by Bush Administration". He writes:

A new government report has disclosed that President Bush authorized secret surveillance activities that went beyond the previously disclosed NSA program – raising the prospect of additional unlawful conduct by the Bush Administration. At the same time, a House member has revealed that CIA Director Leon Panetta has shutdown a program that was never revealed to Congress in direct violation of federal law. I will be discussing these stories tonight on MSNBC Countdown.

In a notable change, the report now describes the entire program as the “President’s Surveillance Program,” going beyond the domestic surveillance program. It also highlights the individual who is most accountable for criminal violations as well as the failure of the Obama Administration to allow investigations into unlawful surveillance or torture. As the evidence of such unlawful conduct mounts, the blocking of a criminal investigation by Attorney General Holder grows more serious as an abdication of his oath to uphold our laws.

Notably, the “usual suspects” refused to be interviewed: former CIA Director George Tenet, former Attorney General John Ashcroft, former White House Chief of Staff Andrew Card; former top Cheney aide David Addington; and John Yoo, who served as a deputy assistant attorney general. Given the potential incrimination prospects, they have at least acted in deference to the criminal code even as Holder appears to ignore it.

For those that want a quick rehash of the wiretapping issue, it 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.

It was only a month ago that a New York Times article by James Risen and Eric Lichtblau added 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".

Obama Administration Takes Bush Approach

Sadly, 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 worse than that is how 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.

As a United States Senator, Obama was clear and correct in his assertion that the warrantless wiretapping program was illegal. And, the new Attorney General Eric Holder expressed the same view, both as a private citizen and at his confirmation hearing. As we now all know, both Obama and Holder have completely reversed themselves, by not only refusing to prosecute or investigate the program and/or those that carried it out, but have even expanded it in some important key respects.

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.

The question now then is this: will this report and these latest revelations of Bush crimes change how the Obama administration views this program and/or whether to prosecute past lawbreakers? Would you be surprised if I said I'm not holding my breath?

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