Monday, January 25, 2010

Court Rules Mass Surveillance of Americans is Immune From Judicial Review

For those that might have missed last week's bit of bad news, a federal judge dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails. The group plans to appeal the decision.

For a little backdrop on this ongoing story, let me refresh our memories. First, to highlight the gravity of this issue and why its still critically important to address: Last year, a government report was released 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 had 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 against this program and in favor of investigations and prosecutions. This new report, mandated by Congress 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.

As we now all know, both Obama and Holder have completely reversed themselves on the issue of wiretapping, 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.
So another route was taken by EFF: The Courts. Initially, Chief U.S. District Judge Vaughn Walker of San Francisco ruled in 2006 that the AT&T customers could sue the company for allegedly allowing federal agents to intercept their calls and e-mails and seize their records without a warrant.

Last year, 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 appealed the case - a case in which 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.

As the Chronicle editorialized last year:

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.

And now that brings us to last week's latest disappointment coming out of the courts. As the San Francisco Chronicle reported:

Unlike the AT&T suit, which was based on the company's contracts with its customers and its duty to maintain their privacy, the new suit was a claim of government wrongdoing that required evidence that the plaintiffs were the targets, Walker said.

To establish the right to sue, a private citizen must demonstrate a "direct, personal stake in the outcome" and cannot merely claim "a right to have the government follow the law," Walker said. Because the AT&T customers have no evidence that they were personally wiretapped, he said, they cannot differentiate themselves from "the mass of telephone and Internet users in the United States."

Walker is still considering a lawsuit by an Islamic group that was accidentally sent a government document reportedly showing it had been wiretapped.

Click here to read the rest of the Chronicle article.

In the decision, Judge Walker held the peculiar position that the privacy harm to millions of Americans from the illegal spying dragnet was not a "particularized injury" but instead a "generalized grievance" because almost everyone in the United States has a phone and Internet service.

in response to this interpretation, EFF stated: "We're deeply disappointed in the judge's ruling. This ruling robs innocent telecom customers of their privacy rights without due process of law. Setting limits on Executive power is one of the most important elements of America's system of government, and judicial oversight is a critical part of that."

"The alarming upshot of the court's decision is that so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional. With new revelations of illegal spying being reported practically every other week -- just this week, we learned that the FBI has been unlawfully obtaining Americans' phone records using Post-It notes rather than proper legal process -- the need for judicial oversight when it comes to government surveillance has never been clearer."

Jewel v. NSA is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. That same evidence is central to Hepting v. AT&T, a class-action lawsuit that's currently under appeal in the U.S. Court of Appeals for the 9th Circuit.

Click here to read more from EFF.

To recap: according to the Bush and Obama Administrations, and unfortunately this court, 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. And now, we discover a new addition to this twisted logic: Since no individual can prove the harm done specifically to him/her, and this invasion of privacy threatens EVERYONE, there's nothing the court can do in the peoples defense. Nice.

I'll be following the appeal...

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