Monday, July 20, 2009

San Francisco Chronicle Editorial: Wiretapping STILL Wrong!

If nothing else, we had two major California newspapers editorialize in favor of privacy and civil liberties today, one against the REAL ID Act and another in favor of accountability for the government's warrantless wiretapping program.

For now, I want to focus on the San Francisco Chronicles editorial on wiretapping, and hopefully can get to the Los Angeles Times piece on REAL ID by Wednesday.

As we all should know by now, until exposed by the New York Times, the Bush Administration had an ongoing, four year program that illegally spied on Americans' communications without warrants. Since that time there have been numerous additional revelations regarding this program...with one after the next only adding to the degree to which it subverted our Constitution and most certainly broke the law.

Amazingly, these revelations CONTINUE to leak out, yet we have had no formal investigations or prosecutions to show for it - only a continuation and expansion of the Executive Branch's power to commit similar acts.

Recent Revelations and Reports

Today's editorial in the Chronicle should not come as that big of a surprise in light of recent wiretapping revelations. The first, came about two weeks ago with a new government report that 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 information has led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis. 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.

Then we got another report, one that has only added to the building uproar (can it just explode already??) against this program and in favor of investigations and prosecutions. This new 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. In fact, NOT ONE instance could be cited that demonstrated the wiretapping program prevented any attack of any kind, ever. Nor did it lead to the capture of any terrorists.

In light of these facts, one would think that the Obama Administration would come down somewhere at least close to the position that candidate Obama espoused on the campaign trail. Sadly, the opposite has been true. In fact, all we have to show as a nation since this program was exposed is additional protections (and retroactive immunity) to telecom companies for sharing our private information with the government, and more legal cover for the Executive Branch to carry out similar efforts in the future.

Giving telecom companies immunity - another one of Obama's flip flops - serves the dual purpose of protecting the politicians from having the telecom companies share what they know about THEIR crimes!

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 their defense of the program in some important key respects.

Another Route: The Courts

The next question - and avenue for privacy advocates to explore - has been in the courts. A few months back, Chief U.S. District Judge Vaughn Walker threw out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President Bush after the 2001 terrorist attacks.

But, while he said the objections of the privacy groups were not strong enough to override the wishes of Congress, Judge Walker did show some sympathy for the plaintiffs’ claims. He had refused the government’s efforts to invoke the “state secrets” privilege and had moved toward compelling the Justice Department to turn over documents.

The Electronic Frontier Foundation and the ACLU are appealing the case - and perhaps this is where the San Francisco Chronicle Editorial comes into play: Judge Walker kept intact related claims against the government over the wiretapping program, as well as a suit by an Oregon charity that says it has evidence it was a target of wiretapping without warrants.

The Chronicle writes:

When it comes to wiretapping, Obama's position is mind-boggling. In this instance, Department of Justice lawyers are battling to bottle up a surveillance program that has San Francisco roots. One of the prime perches for spying on Americans making overseas calls was a so-called "secret room" in an AT&T office on Folsom Street. With no oversight from the courts or Congress, the telecom giant, along with others, siphoned phone calls and information to federal intelligence agencies after Sept. 11, 2001.

In the current case, several dozen phone customers are before a federal judge here asking that the government turn over data on eavesdropping. A prior suit against the phone companies for going along with the illegal surveillance was dismissed after Congress re-wrote domestic spying rules last year and indemnified the firms. Obama, then a senator, voted for changes in a surprising shift from his campaign-trail rhetoric that heavily criticized the abuses of civil liberties in the war on terrorism.

The Obama team is making the same arguments made by the Bush administration in denying it needs to explain anything. Allowing an open-court case will lay bare state secrets, your honor, and the country will lose a "crown jewel" piece of intelligence gathering, according to one Justice Department attorney. The spying may have been improper, but, sorry, we can't really talk about it.


The decision in his lap isn't an easy one. He can side with Obama lawyers and dismiss the case in the name of national security, a path that courts often take when confronted with a flag-waving invocation of homeland defense. Or he can open up a dark chapter in the nation's history to the plain light of legal examination. Such a decision would definitely roil the waters while the truth surfaces. But since the president won't do it, it's time the courts stepped in.

Click here to read the editorial in full.

What's more, the Obama Administration has really gone two steps further than Bush did in arguing AGAINST shining some sunlight on the government's illegal program by claiming that the US PATRIOT Act renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. In other words, the government cannot be held accountable for illegal surveillance under any federal statutes.

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. It goes without saying this is unconstitutional, but more than that, it demonstrates that the program itself is less about fighting terrorism, and much more about stifling dissent, increasing Executive Branch power, and monitoring "enemies", be they political (anti-war rallies, political opponents, etc.), be they journalists, and sure, be they terrorists too.

As with nearly every Bush Administration crime, the “usual and criminal suspects” are refusing 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.

And there we are. Still fighting in the courts - this time against the Obama Administration and its patently ludicrous defenses - for some semblance of justice. I'll finish by quoting myself...and hope this finds its way to the desk of Judge Walker :)

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 be accountable to the people too.

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