“Known unknowns” and the Protect America Act

August 21st, 2007

Because the Sunday pundit shows were wall-to-wall with the pudgy face of Karl Rove … everywhere you turned — Mr. Blowing-Sunshine-Up-Yer-Ass … I hunted around for something else and stumbled on the court proceedings involving the ACLU against AT&T and the government on C-SPAN; the judge was RIGHT — it WAS down the rabbit hole … from A to Z.

In brief, the whole of the affair was the Bushie legal eagle attempting to convince that there was no defense necessary to a State Secret because the secret could not be defended without revealing it … nor did it need to be. The hijinks went on for hours of double-speak and jabberwocky — watching the appellate judges respectfully attempt to untangle such a notion was like watching a monkey try to pull an object out of a small-mouthed jar, unable to pull his fist past the opening. There was NO WAY to get to it … because what needed to be gotten to was SECRET …. SHHHHH! And that was what prompted one of the annoyed judges to comment, “The bottom line here is the government declares something is a state secret, that’s the end of it. No cases… The king can do no wrong.” That was the same judge that suggested impeachment as a possible remedy.

Seriously, dearhearts — it was the damnedest thing I’ve ever sat through; and the lamest defense I’ve ever heard. [Well — it wasn’t a defense, donchaknow, ‘cuz there was nothing to defend; it was a vortex of backwards babble and argued non-argument that seemed to never end!]

This falls squarely into the Rummy categories of “unknown knowns” and “known unknowns” — and, ultimately, the “known known” is that it won’t matter WHAT the court thinks, the Dubby will set his pit bulls on any court decision, ignore the legal restraints on his own decisions and use signing statements to do what he damned well wants to, anyhow!

The whole nation seems to be AWARE that a Bushian Coup has been performed against their will, and the administration may not acknowledge it, but they’re about 6 1/2 years late on a “trust me!” argument. Thing is — they don’t care a whisker’s worth; they’re on a roll.

I can’t imagine the judiciary swallowing this whole — the majority of them still remember their Constitutional oath. This is going to get bigger and badder … as it SHOULD. Early suspicions that the surveillance is broader than we ever dreamed has already been confirmed, even though the details remain “unmentionable.”

The absurdity of this is not lost on me — and while the American psyche flirts with an appreciation of mystery and covert “go bump in the night” projects, they don’t like being lied to. The mood of the nation is volatile now … even here in the Patch.

Here’s the news and reads of the day on all this … heating up and coming to boil … along with ‘toons and an excellent Fiore. I added a John Dean piece that’s a few weeks old, bottom, because I appreciate his voice.

There are a couple of articles here on Cheney’s stonewall too — the scope of his power is truly amazing; remember when Vice Presidents were Door Stops? Ahhhhhh — the good old Dan Quayle days when all you had to anticipate was embarrassment; now we have to worry about that from the Prez, his-own-self, while his Veep is the one with his gnarly, old finger on the button!

Jude

Pat Oliphant ‘toon

Tom Toles ‘toon

Aye, Spy!
Mark Fiore
8/8/07

When secrets are secret
Toledo Blade Editorial
Sunday, August 19, 2007

A COURT challenge to the Bush Administration’s warrantless wiretapping program has run squarely into a comic-book caricature of a monolithic government slapping aside all challenges to its power by invoking the Kafkaesque distortion of the legal system inherent in the concept of “state secrets.”

This Bizarro World tableau, playing out for real in a federal appeals court in San Francisco, is far more menacing than it is entertaining, however. Indeed, it threatens the very foundation of the American system of justice.

When the defendants in a criminal action cannot see the evidence against them on the grounds that the evidence itself is a secret, the Constitution is being subverted.

And that goes double for the administration’s increasingly frequent - and dubious - claims of “national security” involving electronic eavesdropping.

The al-Haramain Islamic Foundation filed a lawsuit claiming that the now-defunct Oregon charity was illegally spied on by the federal government. The basis for the suit was a document a government official inadvertently sent to the foundation showing that illegal wiretapping took place.

Government lawyers, as is the custom these days in cases involving warrantless surveillance, contend that the lawsuit should be dismissed because pursuing it could reveal “state secrets.”

This twisted argument led to legal contortions that have no place in a free society.
Lawyer Jon Eisenberg was required to write his legal brief for the foundation under federal guard in a windowless federal office, forced to rely solely on his memory without books or notes. This was in response to the government’s argument - which he wasn’t allowed to see.

Government motions in preparation for the court appearance were filed under seal or were heavily redacted, as were some of Mr. Eisenberg’s briefs as well. While federal lawyers were able to read the blacked-out bits from Mr. Eisenberg’s filings, he was not permitted to read theirs.

When lawyers for both sides presented their arguments before three judges of the 9th U.S. Circuit Court of Appeals, it was evident that the foundation’s lawyers were playing on a legal field tilted sharply in favor of the administration.

Where, outside of the movies - Brazil (1985) - or George Orwell’s 1949 novel, 1984, can such sham justice be given credibility?

No one would deny the federal government a legitimate interest in protecting limited types of secrets, especially in times of war. But the current administration, with its secret courts, secret prisons, and, now, secret evidence, takes secrecy to an Alice in Wonderland extreme.

One of the pillars of Western jurisprudence is the adversarial system, which allows both sides to have access to the evidence that may be relevant to the case. In this case, however, the administration is saying, “Hey, we can’t let you see the evidence but, take our word, we looked at it and we’re innocent.”

If such specious logic prevails, there is no limit to the power that can accrue to a government intent on doing whatever it wishes in the name of national security.

Federal officials, the courts, and the American people would do well to remember that guarding secrets for the sake of secrecy overwhelms the precious liberty which the nation has fought to protect for more than 200 years. ++

~ from Talking Points Memo
Steve Benen
08.19.07

Following up on an item from last night, the NYT reported that Congress, by changing the meaning of “electronic surveillance” under FISA, inadvertently gave the Bush administration more powers that lawmakers even realized.

But just as striking as the sloppy lawmaking was the administration’s response.

…Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

That’s the important thing to remember: the White House considers the legislation “just advisory,” so it doesn’t much matter whether or not lawmakers gave up too much authority to the president. He’s going to do what he wants to do. ++

In Unprecedented Order, FISA Court Requires Bush Administration to Respond to ACLU’s Request That Secret Court Orders Be Released to the Public
Government Must Respond by August 31
8/17/07
FOR IMMEDIATE RELEASE

WASHINGTON - In an unprecedented order, the Foreign Intelligence Surveillance Court (FISC) has required the U.S. government to respond to a request it received last week by the American Civil Liberties Union for orders and legal papers discussing the scope of the government’s authority to engage in the secret wiretapping of Americans. According to the FISC’s order, the ACLU’s request “warrants further briefing,” and the government must respond to it by August 31. The court has said that any reply by the ACLU must be filed by September 14.

“Disclosure of these court orders and legal papers is essential to the ongoing debate about government surveillance,” said Anthony D. Romero, Executive Director of the ACLU. “We desperately need greater transparency and public scrutiny.We’re extremely encouraged by today’s development because it means that, at long last, the government will be required to defend its contention that the orders should not be released.”

The ACLU filed the request with the FISC following Congress’ recent passage of the so-called “Protect America Act,” a law that vastly expands the Bush administration’s authority to conduct warrantless wiretapping of Americans’ international phone calls and e-mails. In their aggressive push to justify passing this ill-advised legislation, the administration and members of Congress made repeated and veiled references to orders issued by the FISC earlier this year. The legislation is set to expire in six months unless it is renewed.

“These court orders relate to the circumstances in which the government should be permitted to use its profoundly intrusive surveillance powers to intercept the communications of U.S. citizens and residents,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “The debate about this issue should not take place in a vacuum.It’s imperative that the public have access to basic information about what the administration has proposed and what the intelligence court has authorized.”

FISC orders have played a critical role in the evolution of the government’s surveillance activities over the past six years. After September 11, President Bush authorized the National Security Agency (NSA) to inaugurate a program of warrantless wiretapping inside the United States. In January 2007, however, just days before an appeals court was to hear the government’s appeal from a judicial ruling that had found the NSA program to be illegal in a case brought by the ACLU, Attorney General Gonzales announced that the NSA program would be discontinued. Gonzales explained that the change was made possible by FISC orders issued on January 10, 2007, which he characterized as “complex” and “innovative.” Those orders are among the documents requested by the ACLU.

Since January 2007, government officials have spoken publicly about the January 10 orders in congressional testimony, to the media and in legal papers - the orders remaining secret all the while. They have also indicated that the FISC issued other orders in the spring that restricted the administration’s surveillance activities. House Minority Leader John Boehner stated that the FISC had issued a ruling prohibiting intelligence agents from intercepting foreign-to-foreign calls passing through the United States. To a large extent, it was the perception that the FISC had issued an order limiting the administration’s surveillance authority that led Congress to pass the new legislation expanding the government’s surveillance powers. Yet the order itself, like the January 2007 order, has remained secret.

The ACLU’s request to the FISC acknowledges that the FISC’s docket includes a significant amount of material that is properly classified. The ACLU argues, however, that the release of court orders and opinions would not raise any security concern to the extent that these records address purely legal issues about the scope of the government’s wiretap authority, and points out that the FISC has released such orders and opinions before. The ACLU is seeking release of all information in those judicial orders and legal papers the court determines, after independent review, to be unclassified or improperly classified.

A copy of the FISA court order, the ACLU’s motion to the FISC, as well as information about the ACLU’s lawsuit against the NSA and other related materials are available online at: www.aclu.org/spying

In addition to Jaffer, lawyers on the case are Steven R. Shapiro, Melissa Goodman, and Alexa Kolbi-Molinas of the ACLU and Art Spitzer of the ACLU of the National Capital Area. ++

ACLU Lawyer: Patriot Act Gag Order is Unconstitutional
August 17, 2007
Editor and Publisher

NEW YORK — Congress does not have the power to demand silence from people forced to turn over electronic communications such as Internet records used to investigate terrorism, an American Civil Liberties Union lawyer argued yesterday.

During oral arguments in U.S. District Court in Manhattan, ACLU lawyer Jameel Jaffer told Judge Victor Marrero he must strike down a part of the USA Patriot Act that lets the FBI request the records without the kind of court order required for other government searches.

“It doesn’t allow for meaningful judicial review,” Jaffer said of the so-called national security letters, or NSLs, investigative tools used by the FBI to compel businesses to turn over customer information without a judge’s order or grand jury subpoena.

He said the law also disregards First Amendment rights by permitting law enforcement authorities to ban those who receive the letters from talking about them.

“We do think it’s a classic prior restraint because it conditions speech on the permission of executive officers,” he said.

Assistant U.S. Attorney Jeffrey S. Oestericher said it was within the government’s power to ban people from talking about the letters.

“We’re talking about information someone learns as part of a confidential government investigation,” he said.

The judge did not immediately rule yesterday.

In 2004, the judge ruled that the letters violate the Constitution because they amount to unreasonable search and seizure. He found that the nondisclosure requirement violated free speech.

The case pertained to an unidentified Internet access firm that received one of the letters, in which the FBI certified that phone or Internet records are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”

The 2nd U.S. Circuit Court of Appeals in Manhattan later returned the case to the judge to reconsider the issues after Congress changed the law in 2005 to specify that an NSL can be reviewed by a court and to let those who receive the letters tell their lawyers about them.

The ACLU said, however, that Congress’ 2005 revision of the NSL law didn’t go far enough to protect people because it still meant that the government could give people letters before a court review and that people who received them couldn’t speak about them publicly.

After Congress revised the law, Circuit Judge Richard Cardamone wrote that concerns about national security in terrorism investigations should be balanced with “common sense so as not forever to trump the rights of the citizenry under the Constitution.”

He was critical of what he called the government’s recent insistence that a permanent ban on speech is sometimes permissible under the First Amendment. He said he suspected “a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional.” ++

Cheney has warrantless wiretapping documents, won’t turn them over
Nick Juliano, Raw Story
Tuesday August 21, 2007

Vice President Dick Cheney’s office has in its possession more than 50 documents related to a congressional investigation of the Bush administration’s warrantless wiretapping program, but Cheney’s lawyer on Monday refused to hand over the documents in response to a subpoena.

In a letter sent to Senate Judiciary Committee Chairman Patrick Leahy (D-VT), the vice president’s lawyer, Shannen W. Coffin, identified dozens of presidential authorizations of the program and Justice Department memos on its legal justifications in Cheney’s possession. Coffin refused to hand over the documents, citing a president’s right to keep deliberations with his advisers private.

“The Office of the Vice President possesses copies of documents … that we understand to be of the most interest to the Committee and with respect to which a claim of Executive Privilege if made would clearly be valid,” Coffin wrote in the letter Leahy released to reporters Monday.

Among the documents are “copies of Top Secret/Codeword Presidential Authorizations” issued between Oct. 4, 2001, and Dec. 8, 2006. President Bush approved the warrantless wiretapping program, which allows the National Security Agency to eavesdrop on foreign calls without prior court approval, in response to the Sept. 11 attacks. He was required to issue reauthorizations every 45 days.

The documents also include 10 Justice Department memos related to the program, including some that could shed more light on a March 2004 dispute over the program. Justice Department officials threatened to resign over aspects of the program they thought were illegal, but the details of the dispute have not been made public.

In her letter to Leahy, Coffin asked for more time to comply with the subpoena and insisted the vice president’s office wanted to work out “an accommodation that protects the constitutional interests of all concerned.”

The Judiciary Committee earlier this summer authorized subpoenas to the White House and Justice Department related to its wiretapping investigation. So far it has received none of its requested documents, and Leahy threatened to begin contempt proceedings if the administration continues to withhold the documents.

White House Counsel Fred F. Fielding also requested more time to comply with the subpoena, but the administration insists it is trying to cooperate with Congress.

“We have approached these discussions in a positive way that will not take us down the path of confrontation,” White House spokesman Tony Fratto said in a statement, according to the Washington Post.

However, Leahy blasted the White House’s claims of negotiating in good faith during a Capitol Hill press conference Monday.

“The only accommodations we tend to get from the White House is, ‘Do it our way and we’ll be happy,” he said. ++

Leahy: Cheney Told GOP-Led Congress It Was ‘Not Allowed To Issue Subpoenas’
ThinkProgress
8/20/07

Today in a press briefing, Sen. Patrick Leahy (D-VT) revealed that the White House had missed its 2:30 PM deadline to turn over documents to the Senate Judiciary Committee regarding legal justifications for the National Security Agency’s eavesdropping program. The Committee had already pushed back the original July 18 deadline twice after the White House requested more time.

Leahy said that the administration’s stonewalling amounted to “contempt of the valid order of the Congress,” and pointed out that these subpoenas were passed by broad bipartisan votes. In fact, the Senate Judiciary Committee in the conservative-led 109th Congress, chaired by Sen. Arlen Specter (R-PA) also attempted to ask questions about the program’s legal justifications. But Vice President Cheney personally barred him from issuing subpoenas:

In fact, we were about to issue subpoenas then and one of the senators came to our meeting and said that the vice president had met with the Republican senators and told them they were not allowed to issue subpoenas.

Not quite sure that’s my understanding of the separation of powers, but it seemed to work at that time.

[Open link for video]

Leahy also said that while he didn’t receive the requested documents, he did receive “a letter this morning from the Office of the Vice President identifying some documents that would be responsive to the committee’s subpoena.” In the letter, the administration claims the Office of the Vice President is not part of the Executive Office of the President.

Leahy responds, “Well, that’s wrong. … [O]h, incidentally, at least this morning, as I left Vermont, I checked the White House Web site. And even their own Web site, this morning, at least, says that the Executive Office — that the vice president is part of the Executive Office of the President.” ++

Concerns Raised on Wider Spying Under New Law
JAMES RISEN and ERIC LICHTBLAU, NYT
August 19, 2007

WASHINGTON, Aug. 18 — Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.

They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.

The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought.

It also offers a case study in how changing a few words in a complex piece of legislation has the potential to fundamentally alter the Foreign Intelligence Surveillance Act, a landmark national security law. The new legislation is set to expire in less than six months; two weeks after it was signed into law, there is still heated debate over how much power Congress gave to the president.

“This may give the administration even more authority than people thought,” said David Kris, a former senior Justice Department lawyer in the Bush and Clinton administrations and a co-author of “National Security Investigation and Prosecutions,” a new book on surveillance law.

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.

These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.

It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month’s Congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans.

“We did not cover ourselves in glory,” said one Democratic aide, referring to how the bill was compiled.

But a senior intelligence official who has been involved in the discussions on behalf of the administration said that the legislation was seen solely as a way to speed access to the communications of foreign targets, not to sweep up the communications of Americans by claiming to focus on foreigners.

“I don’t think it’s a fair reading,” the official said. “The intent here was pure: if you’re targeting someone outside the country, the fact that you’re doing the collection inside the country, that shouldn’t matter.” Democratic leaders have said they plan to push for a revision of the legislation as soon as September. “It was a legislative over-reach, limited in time,” said one Congressional Democratic aide. “But Democrats feel like they can regroup.”

Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions. Whether intentional or not, the end result — according to top Democratic aides and other experts on national security law — is that the legislation may grant the government the right to collect a range of information on American citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas.

In effect, they say, the legislation significantly relaxes the restrictions on how the government can conduct spying operations aimed at foreigners at the same time that it allows authorities to sweep up information about Americans.

These new powers are considered overly broad and troubling by some Congressional Democrats who raised their concerns with administration officials in private meetings this week.

“This shows why it is so risky to change the law by changing the definition” of something as basic as the meaning of electronic surveillance, said Suzanne Spaulding, a former Congressional staff member who is now a national security legal expert. “You end up with a broad range of consequences that you might not realize.”

The senior intelligence official acknowledged that Congressional staff members had raised concerns about the law in the meetings this week, and that ambiguities in the bill’s wording may have led to some confusion. “I’m sure there will be discussions about how and whether it should be fixed,” the official said.

Vanee Vines, a spokeswoman for the office of the director of national intelligence, said the concerns raised by Congressional officials about the wide scope of the new legislation were “speculative.” But she declined to discuss specific aspects of how the legislation would be enacted. The legislation gives the director of national intelligence, Mike McConnell, and Attorney General Alberto R. Gonzales broad discretion in enacting the new procedures and approving the way surveillance is conducted.

Bush administration officials said the new legislation, which amends FISA, was critical to fill an “intelligence gap” that had left the United States vulnerable to attack.

The legislation “restores FISA to its original and appropriate focus — protecting the privacy of Americans,” said Brian Roehrkasse, Justice Department spokesman. “The act makes clear that we do not need a court order to target for foreign intelligence collection persons located outside the United States, but it also retains FISA’s fundamental requirement of court orders when the target is in the United States.”

The measure, which President Bush signed into law on Aug. 5, was written and pushed through both the House and Senate so quickly that few in Congress had time to absorb its full impact, some Congressional aides say.

Though many Democratic leaders opposed the final version of the legislation, they did not work forcefully to block its passage, largely out of fear that they would be criticized by President Bush and Republican leaders during the August recess as being soft on terrorism.

Yet Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

Brian Walsh, a senior legal fellow at the conservative Heritage Foundation who attended the same private meeting with Justice Department officials, acknowledged that the meeting — intended by the administration to solicit recommendations on the wiretapping legislation — became quite heated at times. But he said he thought the administration’s stance on the president’s commander-in-chief powers was “a wise course.”

“They were careful not to concede any authority that they believe they have under Article II,” Mr. Walsh said. “If they think they have the constitutional authority, it wouldn’t make sense to commit to not using it.”

Asked whether the administration considered the new legislation legally binding, Ms. Vines, the national intelligence office spokeswoman, said: “We’re going to follow the law and carry it out as it’s been passed.”

Mr. Bush issued a so-called signing statement about the legislation when he signed it into law, but the statement did not assert his presidential authority to override the legislative limits.

At the Justice Department session, critics of the legislation also complained to administration officials about the diminished role of the FISA court, which is limited to determining whether the procedures set up by the executive administration for intercepting foreign intelligence are “clearly erroneous” or not.

That limitation sets a high bar to set off any court intervention, argued Marc Rotenberg, executive director of the Electronic Privacy Information Center, who also attended the Justice Department meeting.

“You’ve turned the court into a spectator,” Mr. Rotenberg said. ++

Sky Snoops: We Should Have Seen this Coming
Baltimore Sun (Maryland)Editorial
Sunday, August 19, 2007

Should have seen this one coming.

Once the federal government had rationalized its authority to violate the privacy of Americans by tapping their phones, reading their e-mail, surveying their library selections and poking through their bank records, it was only a matter of time before the Department of Homeland Security would point spy satellite cameras intended for foreign enemies into the private lives of Americans as well.

Indeed, the country is becoming so inured to the Big Brother tactics of the Bush administration, news of this intrusive new eye in domestic skies has provoked little outrage. Congress has apparently given the plan its blessing, totally abdicating its oversight role.

When they return to Washington next month, lawmakers should halt the program before it begins, and conduct hearings on the dangers of overruling the long-standing policy against using the American military against its fellow citizens.

As usual, the Bush administration is trying to sell domestic use of these sky snoops as an anti-terrorism tool, presumably aiming at those would-be offenders who are homegrown.

Beyond that, officials note, these powerful satellite sensors can also be used to find drug smugglers and illegal immigrants. It’s hard to quarrel with those purposes, but who says where it ends?

Spy satellites have served benign civilian purposes for decades, including mapmaking, conducting environmental studies and assessing damage after natural disasters. The administration has decided to broadly expand satellite use, however, to include not only security functions but to assist federal, state, local and tribal authorities in the enforcement of criminal and civil laws.

Effectively, there is no limit on the use of this high-tech equipment, which includes visual and nonvisual capabilities that can sense electromagnetic activity, radioactivity and chemical traces.

According to the Department of Homeland Security, Congress has signed off on this expanded use of spy satellites and provided funding for it to begin this fall. An aide to the Senate Intelligence Committee confirmed the committee was aware of the program and was monitoring it. Yet, there appears to have been no plan to make it public until The Wall Street Journal broke the story last week.

Congressional acquiescence in violating the freedom of innocent Americans not to be spied upon by their government is outrageous - but somehow not surprising coming from a group of Democratic-led lawmakers who recently got rolled by President Bush on the issue of domestic wiretapping without court approval.

This Congress claims it is not going to be a rubber stamp for Mr. Bush, as its Republican predecessors were. If so, the first place to apply that principle would be to stop sacrificing fundamental freedoms for the false promise of greater security. ++

The So-Called Protect America Act:
Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well
JOHN W. DEAN, FindLaw
Friday, Aug. 10, 2007

Congressional Democrats are getting a lot of well-earned heat from rank-and-file members of their party, not to mention editorial writers and bloggers, for their lack of spine in refusing to reject the Bush/Cheney Administration’s sweeping amendments to the Foreign Intelligence Surveillance Act (FISA). Just before Congress departed for its August recess, the Administration jammed through in five days - from start to finish — the dubiously titled Protect America Act (PAA) of 2007, over the protest of the Democratic leadership. The only thing good about the PAA is that it is temporary - with a six month expiration date (although surveillance programs authorized under it can operate for up to one year.)

On her Democracy NOW daily program, Amy Goodman’s (streaming video) interviewed Salon.com’s law blogger, Glenn Greenwald, and the president of the National Lawyers Guild, Marjorie Cohn, about the PAA. The interview nicely sets forth what happened and its broad implications. Simply stated, Bush threatened to make a political issue of any effort by Congressional Democrats to protect the civil liberties of American. Bush surely succeeded beyond his most fervent hope in his intimidation of sixteen Democratic members in the Senate and forty-one Democratic members in the House, earning these members a place on “the roll of shame” in the blogosphere.

A Threat Greater Than That to Civil Liberties: Executive Aggrandizement

The Washington Post, the New York Times, and politically-diverse organizations ranging from the John Birch Society and the Cato Institute to the American Civil Liberties Union all agree that the PAA is a serious mistake, and threat to the civil liberties of Americans. They point out that the law ignores the Fourth Amendment while, at the same time, hiding its actual operations in national security secrecy. Indeed, Congress was not even certain about the full extent of what it has authorized because President Bush and Vice-President Cheney refused to reveal it.

It is not likely that law-abiding Americans will even know that the U.S. Government’s intelligence gathering operations are listening in on their calls to and from foreign countries, or similarly scanning emails. For this reason, it is not to be expected that many Americans will care about what the Democratic Congress has given a Republican president who has proven himself insensitive to anyone’s privacy other than his own.

There is, however, a threat in this new law even greater than its robbing Americans of their communications privacy, which commentators and critics have virtually ignored. This law is another bold and blatant move by Bush to enhance the powers of the Executive branch at the expense of its constitutional co-equals.

Congress was willing to give Bush the amendments to FISA that would make this law effective under current technology. The 1978 law did not account for the fact that modern digital communications between people outside the United States often is routed through the United States, yet the FISA Court said surveillance of such routed communications required a warrant. Nevertheless, Bush rejected the legislation proposed by the Democrats because it also contained checks on the use of surveillance powers.

This, of course, is consistent with Bush and Cheney’s general drive to weaken or eliminate all checks and balances constraining the Executive. This drive was evidenced by countless laws enacted by the Republican-controlled Congresses during the first six years of the Administration, and in countless signing statements added by the President interpreting away any constraints on the Executive. Thus, when even the GOP Congresses required presidential compliance and reporting, they were thwarted.

The most stunning aspect of the Democrats’ capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president’s power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.

Fixing the Dangerously Deficient Albeit Quickly Sunsetting Protect America Act And Ignoring the White House’s Requests For Even More Power

Though it is quite certain abuses of the surveillance powers under the Protect America Act will occur, they have not yet occurred. The failure to provide a check on such potential abuses, however, has already occurred. It represents the greatest failing of the Democratic Congress in acceding to the demands of Bush and Cheney. It is this failure that should be a paramount concern of the Congress when it next addresses this temporary law.

Speaker of the House Nancy Pelosi sent a letter to the chairmen of the House Judiciary Committee and the House Intelligence Committee, requesting they develop legislation “addressing the many deficiencies” of the temporary law as soon as Congress returns from its recess.

Even though the White House got everything it demanded from Congress, it is requesting even more. When signing the Protect America Act, Bush said, “When Congress returns in September, the Intelligence Committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director of National Intelligence Mike McConnell, including the important issues of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.”

Bush also wants legislative immunity for the American companies, and government officials (including himself), to protect them from criminal prosecution for violating the criminal provision of FISA. As readers will recall, before Congress caved and gave Bush power to conduct this surveillance, he - and telecommunication companies simply opted to do so illegally. Now, Bush will claim, with some justification, that because Congress has now made legal actions that were previously illegal, it should retroactively clear up this nasty problem facing all those who broke the law at his command.

If the Democrats fail to stand up to the bullying of this weak president, and ignore his demands for more unaccountability, they might as well start looking for another line of work. Not only are their fellow rank and file Democrats going to turn on them in 2008, but the overwhelming numbers of independents who assisted them in regaining power are going to desert them in droves.

At bottom, Democrats truly only need to add one fix to this dangerous law: meaningful accountability. They must do so, or face the consequences.

No one wants to deny the intelligence community all the tools it needs. But regardless of who sits in the Oval Office, no Congress should trust any president with unbridled powers of surveillance over Americans. It is not the way our system is supposed to work. ++

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

Entry Filed under: Political Waves

“Known unknowns” and the Protect America Act

August 21st, 2007

Because the Sunday pundit shows were wall-to-wall with the pudgy face of Karl Rove … everywhere you turned — Mr. Blowing-Sunshine-Up-Yer-Ass … I hunted around for something else and stumbled on the court proceedings involving the ACLU against AT&T and the government on C-SPAN; the judge was RIGHT — it WAS down the rabbit hole … from A to Z.

In brief, the whole of the affair was the Bushie legal eagle attempting to convince that there was no defense necessary to a State Secret because the secret could not be defended without revealing it … nor did it need to be. The hijinks went on for hours of double-speak and jabberwocky — watching the appellate judges respectfully attempt to untangle such a notion was like watching a monkey try to pull an object out of a small-mouthed jar, unable to pull his fist past the opening. There was NO WAY to get to it … because what needed to be gotten to was SECRET …. SHHHHH! And that was what prompted one of the annoyed judges to comment, “The bottom line here is the government declares something is a state secret, that’s the end of it. No cases… The king can do no wrong.” That was the same judge that suggested impeachment as a possible remedy.

Seriously, dearhearts — it was the damnedest thing I’ve ever sat through; and the lamest defense I’ve ever heard. [Well — it wasn’t a defense, donchaknow, ‘cuz there was nothing to defend; it was a vortex of backwards babble and argued non-argument that seemed to never end!]

This falls squarely into the Rummy categories of “unknown knowns” and “known unknowns” — and, ultimately, the “known known” is that it won’t matter WHAT the court thinks, the Dubby will set his pit bulls on any court decision, ignore the legal restraints on his own decisions and use signing statements to do what he damned well wants to, anyhow!

The whole nation seems to be AWARE that a Bushian Coup has been performed against their will, and the administration may not acknowledge it, but they’re about 6 1/2 years late on a “trust me!” argument. Thing is — they don’t care a whisker’s worth; they’re on a roll.

I can’t imagine the judiciary swallowing this whole — the majority of them still remember their Constitutional oath. This is going to get bigger and badder … as it SHOULD. Early suspicions that the surveillance is broader than we ever dreamed has already been confirmed, even though the details remain “unmentionable.”

The absurdity of this is not lost on me — and while the American psyche flirts with an appreciation of mystery and covert “go bump in the night” projects, they don’t like being lied to. The mood of the nation is volatile now … even here in the Patch.

Here’s the news and reads of the day on all this … heating up and coming to boil … along with ‘toons and an excellent Fiore. I added a John Dean piece that’s a few weeks old, bottom, because I appreciate his voice.

There are a couple of articles here on Cheney’s stonewall too — the scope of his power is truly amazing; remember when Vice Presidents were Door Stops? Ahhhhhh — the good old Dan Quayle days when all you had to anticipate was embarrassment; now we have to worry about that from the Prez, his-own-self, while his Veep is the one with his gnarly, old finger on the button!

Jude

Pat Oliphant ‘toon

Tom Toles ‘toon

Aye, Spy!
Mark Fiore
8/8/07

When secrets are secret
Toledo Blade Editorial
Sunday, August 19, 2007

A COURT challenge to the Bush Administration’s warrantless wiretapping program has run squarely into a comic-book caricature of a monolithic government slapping aside all challenges to its power by invoking the Kafkaesque distortion of the legal system inherent in the concept of “state secrets.”

This Bizarro World tableau, playing out for real in a federal appeals court in San Francisco, is far more menacing than it is entertaining, however. Indeed, it threatens the very foundation of the American system of justice.

When the defendants in a criminal action cannot see the evidence against them on the grounds that the evidence itself is a secret, the Constitution is being subverted.

And that goes double for the administration’s increasingly frequent - and dubious - claims of “national security” involving electronic eavesdropping.

The al-Haramain Islamic Foundation filed a lawsuit claiming that the now-defunct Oregon charity was illegally spied on by the federal government. The basis for the suit was a document a government official inadvertently sent to the foundation showing that illegal wiretapping took place.

Government lawyers, as is the custom these days in cases involving warrantless surveillance, contend that the lawsuit should be dismissed because pursuing it could reveal “state secrets.”

This twisted argument led to legal contortions that have no place in a free society.
Lawyer Jon Eisenberg was required to write his legal brief for the foundation under federal guard in a windowless federal office, forced to rely solely on his memory without books or notes. This was in response to the government’s argument - which he wasn’t allowed to see.

Government motions in preparation for the court appearance were filed under seal or were heavily redacted, as were some of Mr. Eisenberg’s briefs as well. While federal lawyers were able to read the blacked-out bits from Mr. Eisenberg’s filings, he was not permitted to read theirs.

When lawyers for both sides presented their arguments before three judges of the 9th U.S. Circuit Court of Appeals, it was evident that the foundation’s lawyers were playing on a legal field tilted sharply in favor of the administration.

Where, outside of the movies - Brazil (1985) - or George Orwell’s 1949 novel, 1984, can such sham justice be given credibility?

No one would deny the federal government a legitimate interest in protecting limited types of secrets, especially in times of war. But the current administration, with its secret courts, secret prisons, and, now, secret evidence, takes secrecy to an Alice in Wonderland extreme.

One of the pillars of Western jurisprudence is the adversarial system, which allows both sides to have access to the evidence that may be relevant to the case. In this case, however, the administration is saying, “Hey, we can’t let you see the evidence but, take our word, we looked at it and we’re innocent.”

If such specious logic prevails, there is no limit to the power that can accrue to a government intent on doing whatever it wishes in the name of national security.

Federal officials, the courts, and the American people would do well to remember that guarding secrets for the sake of secrecy overwhelms the precious liberty which the nation has fought to protect for more than 200 years. ++

~ from Talking Points Memo
Steve Benen
08.19.07

Following up on an item from last night, the NYT reported that Congress, by changing the meaning of “electronic surveillance” under FISA, inadvertently gave the Bush administration more powers that lawmakers even realized.

But just as striking as the sloppy lawmaking was the administration’s response.

…Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

That’s the important thing to remember: the White House considers the legislation “just advisory,” so it doesn’t much matter whether or not lawmakers gave up too much authority to the president. He’s going to do what he wants to do. ++

In Unprecedented Order, FISA Court Requires Bush Administration to Respond to ACLU’s Request That Secret Court Orders Be Released to the Public
Government Must Respond by August 31
8/17/07
FOR IMMEDIATE RELEASE

WASHINGTON - In an unprecedented order, the Foreign Intelligence Surveillance Court (FISC) has required the U.S. government to respond to a request it received last week by the American Civil Liberties Union for orders and legal papers discussing the scope of the government’s authority to engage in the secret wiretapping of Americans. According to the FISC’s order, the ACLU’s request “warrants further briefing,” and the government must respond to it by August 31. The court has said that any reply by the ACLU must be filed by September 14.

“Disclosure of these court orders and legal papers is essential to the ongoing debate about government surveillance,” said Anthony D. Romero