Bush Administration Seeks to Cover Up Criminal Surveillance of Dissidents

Because the Said So

http://www.nytimes.com/2008/02/10/opinion/10sun1.html

Even by the dismal standards of what passes for a national debate on intelligence and civil liberties, last week was a really bad week.

The Senate debated a bill that would make needed updates to the Foreign Intelligence Surveillance Act — while needlessly expanding the president’s ability to spy on Americans without a warrant and covering up the unlawful spying that President Bush ordered after 9/11.

The Democrat who heads the Senate Intelligence Committee, John Rockefeller of West Virginia, led the way in killing amendments that would have strengthened requirements for warrants and raised the possibility of at least some accountability for past wrongdoing. Republicans declaimed about protecting America from terrorists — as if anyone was arguing the opposite — and had little to say about protecting Americans’ rights.

We saw a ray of hope when the head of the Central Intelligence Agency conceded — finally — that waterboarding was probably illegal. But his boss, the director of national intelligence, insisted it was legal when done to real bad guys. And Vice President Dick Cheney — surprise! — made it clear that President Bush would authorize waterboarding whenever he wanted.

The Catch-22 metaphor is seriously overused, but consider this: Attorney General Michael Mukasey told Congress there would be no criminal investigation into waterboarding. He said the Justice Department decided waterboarding was legal (remember the torture memo?) and told the C.I.A. that.

So, according to Mukaseyan logic, the Justice Department cannot investigate those who may have committed torture, because the Justice Department said it was O.K. and Justice cannot be expected to investigate itself.

As it was with torture, so it was with wiretaps.

After the 2001 terrorist attacks, the president decided to ignore the Foreign Intelligence Surveillance Act, or FISA, and authorized wiretaps without a warrant on electronic communications between people in the United States and people abroad. Administration lawyers ginned up a legal justification and then asked communications companies for vast amounts of data.

According to Mr. Rockefeller, the companies were “sent letters, all of which stated that the relevant activities had been authorized by the president” and that the attorney general — then John Ashcroft — decided the activity was lawful. The legal justification remains secret, but we suspect it was based on the finely developed theory that the president does not have to obey the law, and not on any legitimate interpretation of federal statutes.

When Mr. Bush started his spying program, FISA allowed warrantless eavesdropping for up to a year if the president certified that it was directed at a foreign power, or the agent of a foreign power, and there was no real chance that communications involving United States citizens or residents would be caught up. As we now know, the surveillance included Americans and there was no “foreign power” involved.

The law then, and now, also requires the attorney general to certify “in writing under oath” that the surveillance is legal under FISA, not some fanciful theory of executive power. He is required to inform Congress 30 days in advance, and then periodically report to the House and Senate intelligence panels.

Congress was certainly not informed, and if Mr. Ashcroft or later Alberto Gonzales certified anything under oath, it’s a mystery to whom and when. The eavesdropping went on for four years and would probably still be going on if The Times had not revealed it.

So what were the telecommunications companies told? Since the administration is not going to investigate this either, civil actions are the only alternative.

The telecoms, which are facing about 40 pending lawsuits, believe they are protected by a separate law that says companies that give communications data to the government cannot be sued for doing so if they were obeying a warrant — or a certification from the attorney general that a warrant was not needed — and all federal statutes were being obeyed.

To defend themselves, the companies must be able to show they cooperated and produce that certification. But the White House does not want the public to see the documents, since it seems clear that the legal requirements were not met. It is invoking the state secrets privilege — saying that as a matter of national security, it will not confirm that any company cooperated with the wiretapping or permit the documents to be disclosed in court.

So Mr. Rockefeller and other senators want to give the companies immunity even if the administration never admits they were involved. This is short-circuiting the legal system. If it is approved, we will then have to hope that the next president will be willing to reveal the truth.

Mr. Rockefeller argues that companies might balk at future warrantless spying programs. Imagine that!

This whole nightmare was started by Mr. Bush’s decision to spy without warrants — not because they are hard to get, but because he decided he was above the law. Discouraging that would be a service to the nation.

This debate is not about whether the United States is going to spy on Al Qaeda, it is about whether it is going to destroy its democratic principles in doing so. Senators who care about that should vote against immunity.

Immunity means the U.S. government having full reign to target people for their political views, creating a climate subverting the 1st Amendment via subverting the 4th Amendment of the U.S. Constitution.

G.W. Bush - NSA Criminal Spying on the Public

From Citizens for Legitimate Government

'Within two weeks of taking office, the Bush administration was planning a comprehensive effort of spying on Americans' phone usage.' Wider Spying Fuels Aid Plan for Telecom Industry 16 Dec 2007 For months, the Bush regime has waged a high-profile campaign, including personal lobbying by President [sic] Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program... In December 2000, N.S.A. officials wrote a transition report to the incoming Bush administration, saying the agency must become a "powerful, permanent presence" on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues... A lawsuit filed in federal court in New Jersey claims that in February 2001, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it. [Since Bush bin Laden has been spying since December 2000, why wasn't he able to prevent the 9/11 terrorist attacks?]

APSU mock trial rules President Bush “guilty” of illegal domestic surveillance

Verdicts are in on the two day mock trial, U.S. vs. Bush. Bush was found guilty on the charges relating to illegal and unauthorized domestic surveillance and wiretapping of American citizens and violating the Separation of Powers and FISA by ordering a secret Executive Order authorizing such action.

More...

Standing from left: Lead Defense, Jessica Lance, Frankie A. DeJesus and Matt Harris, APSU Professor Dr. Rabidoux,; Lead Prosecutors Michael Hughey, Mike Price and Liz Borsavage. The Judges, seated from left, Kasey Henricks, Emery Walters, Enderson Miranda, Ryan Knight and Zach Suggs

How Courts Subvert the Constitution

Court ruling authorizes warrantless Web snooping

By Greg Moran UNION-TRIBUNE STAFF WRITER

July 10, 2007

Federal agents do not need a search warrant to find out the Web page addresses people visit or the e-mail addresses they correspond with, a federal appeals court has ruled in a case involving an Escondido drug lab.

The decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals hands law enforcement a powerful surveillance tool that it can employ with virtually no check or balance or judicial oversight, legal experts said.

It was the first time a federal court has decided the constitutionality of government surveillance techniques that capture the “to” and “from” addresses of e-mails sent by individuals, and the unique addresses of Web pages that an individual visits.

Known as Internet Protocol, or IP, addresses, they are a sequence of numbers that serve as a kind of street address for Web sites.

In their decision on Friday, the judges ruled that individuals have no privacy expectation when it comes to e-mail or IP addresses because they should know that all of their communications are going through a third party -- the user's Internet service provider.

By voluntarily turning over information to third parties, Internet users are therefore giving up any expectation of privacy, the court said.

The court likened the tactic to the use of a “pen register” -- a device that records the numbers dialed from a specific phone. The U.S. Supreme Court in 1979 ruled that police did not have to get a search warrant for that activity.

But one legal expert said that analogy ignores the fact that more information can be gleaned from an IP address than from a phone number.

“It overlooks the important differences between these kinds of communications,” said Shaun Martin, a law professor at the University of San Diego School of Law.

“Getting a list of IP addresses reveals far, far more information than a pen register ever would. And if it didn't, the government wouldn't be looking to get this information in the first place,” he said.

The 1979 decision said people should not expect privacy when it came to the numbers they dialed because the numbers went through a third party -- the phone company's switching equipment that completed a call.

The Supreme Court also ruled the pen register tactic was legal because police were collecting just the phone number and not the content of the communication.

In this case, the judges applied that logic to computer users. Simply gathering the electronic addresses is like collecting phone numbers, or reading addresses on envelopes and packages sent through the mail, Judge Raymond Fisher wrote in his opinion. Courts have held that obtaining information from the outside of mail without a warrant is also allowable.

Fisher said that by using the IP address tactic, the government is getting only basic information. It can learn who the person is e-mailing or what Web sites are being viewed, but does not “find out the contents of the messages or the particular pages on the Web sites the person viewed.”

The judge cautioned that the ruling only goes so far, “and does not imply that more intrusive techniques or techniques that reveal more content information” are acceptable.

The ruling said surveillance that tracks the Web pages a person visits on a site “might be more constitutionally problematic.” So while the government is now free to know that someone visited, for example, signonsandiego.com, it might be barred from knowing a user went to the Web page displaying this story.

Still, Martin said, many people who send an e-mail or visit a Web site probably expect that they are doing so in private.

He said under the ruling, the government can obtain such information from Internet service companies about anyone -- not just those suspected of a crime -- without a warrant.

The ruling opens the door to wider government surveillance, Martin said.

“The reason this is a novel issue is that up to now, police don't do this that much,” he said. “One of the important things about this decision is that once you say it is OK to do it, you are going to see police do it a lot more.”

The decision came in the case of Dennis Alba, a former Carlsbad man convicted in 2003 of leading a drug ring that produced massive amounts of the drug Ecstasy at an Escondido lab.

At the time, authorities said it was the largest Ecstasy operation they had seen -- pouring out 1.5 million pills a month and netting an estimated $10 million in profit per month.

In May 2001, authorities began to snoop on Alba's e-mail and Internet activity. They later used the information to obtain a search warrant to further investigate the case.

Alba's lawyer, Michael Crowley, objected to the tactics but was rebuffed by the trial judge. Crowley said he would seek a review of the decision by a larger panel of the appeals court.

“It's too important a decision to be decided by a three-judge panel,” he said. “It just gives the government unbridled authority to do what they want. There is no judicial oversight, no check or balance.”

Alba's appeal was joined with that of his co-leader of the drug ring, Mark Forrester. While upholding Alba's 30-year sentence, the judges reversed Forrester's identical prison term because of errors by the trial judge.

Todd Robinson, the federal prosecutor on the case, said the government will retry Forrester. Because Forrester's retrial is pending, the prosecutor declined to comment on the appeals court ruling on Alba's case.

This violates not only the 4th Amendment, but also the 8th Amendment with its 30 year sentence: hence making the former almost a dead letter as the latter.