- Once the government can make any act a secret under the
guise of National Security, immune from independent assessment by the courts,
no prosecution of government conduct is possible. It's like government
granting itself the power to plead the 5th Amendment against self-incrimination.
Two key lawsuits attacking government warrantless eavesdropping on domestic
telecommunications are crucial, not only because of the illegal eavesdropping,
but because of the government's claim of total immunity from the scrutiny
of the courts. In the end, I don't believe the courts will stop this process,
though they may place a few token restrictions on the government. But these
can never be verified, given that a government violation would itself be
a "state secret!" Even Congressional 'oversight' is a sham since
all briefings come from the executive branch with no independent verification
allowed!
-
- Dan Eggen of the Washington Post started out with this
summary of the case: "In 2003, Room 641A of a large telecommunications
building in downtown San Francisco was filled with powerful data-mining
equipment for a 'special job' by the National Security Agency, according
to a former AT&T technician [Mark Klein]. It was fed by fiber-optic
cables that siphoned copies of e-mails and other online traffic from one
of the largest Internet hubs in the United States, the former employee
says in court filings. What occurred in the room is now at the center of
a pivotal legal battle in a federal appeals court over the Bush administration's
controversial spying program, including the monitoring that came to be
publicly known as the Terrorist Surveillance Program.
-
- "A three-judge panel will hear arguments on whether
the case, which may provide the clearest indication yet of how the spying
program has worked, can go forward. So far, evidence in the case suggests
a massive effort by the NSA to tap into the backbone of the Internet to
retrieve millions of e-mails and other communications, which the government
could sift and analyze for suspicious patterns or other signs of terrorist
activity, according to court records, plaintiffs' attorneys and technology
experts. 'The scale of these deployments is . . . vastly in excess of what
would be needed for any likely application or any likely combination of
applications, other than surveillance,' says an affidavit filed by J. Scott
Marcus, the senior Internet adviser at the Federal Communications Commission
from 2001 to 2005."
-
- However, as I pointed out in prior briefs, the government
has always had surveillance equipment installed in telephone companies
since the 1950s--supposedly to do specific wiretaps with a warrant. But
no telephone company executive has ever had the temerity to ask to see
a warrant, nor demand to know what kind of equipment the government installs
inside their switching networks. It's a mutual pact of silence, a "Don't
ask, Don't tell" kind of legal perversion. So what the government
is really seeking to do by quashing these lawsuits is to establish a precedent
for complete immunity against judicial oversight of anything the government
deems a "State Secret." That's a very broad and dangerous agenda
that in one fell swoop destroys a major portion of our constitutional separation
of powers.
-
- Lawsuits of this type allow for an investigative process
called "discovery," which the Bush administration fears will
lead the plaintiffs and the court to discover the vast network of surveillance
already in existence, with the collusion of telephone executives. The government
also fears that telephone executives, who are parties to these suits charged
with violating people's privacy, will admit under questioning the extent
of government eavesdropping at their facilities (which doesn't stop at
internet traffic).
-
- The Wired.com blog is one of the most active sites where
savvy internet people discuss the ramifications of the government eavesdropping.
David Kravets noted on August 13, "The Bush administration said Monday
the constitutionality of its warrantless electronic eavesdropping program
cannot be challenged. Two senior Justice Department officials, speaking
on condition of anonymity in a teleconference with reporters, reiterated
the administration's position that it was invoking the so-called 'state
secrets privilege' in arguing that the 9th U.S. Circuit Court of Appeals
must dismiss the cases because they threaten to expose information authorities
say is essential to the nation's security.
-
- "'The case cannot be litigated in light of the national
security interest involved,' one official said...[yet] two judges have
ruled recently that the defense does not apply in two lawsuits challenging
Bush's surveillance program. President Bush acknowledged in 2005 that the
government was eavesdropping without warrants on communications in the
United States as long as one of the parties to the communication was suspected
of terrorism and outside the United States." This is obviously not
the case in the Seattle AT&T eavesdropping case, according to the whistleblower,
employee Mark Klein.
-
- THE COURTS AGONIZE ON THE ISSUES BUT LOOK FOR A WAY OUT
-
- The three appellate justices are obviously in a bad situation.
They have secret marching orders to let the government have its way, but
in doing so, must necessarily appear as selling out the constitutional
duty of the judiciary to reign in the tendency of the executive branch
to seek absolute power.
-
- I'll quote from a few of the many commentators who witnessed
this historic showdown [my comments in brackets]. First Declan McCullagh,
of News.com: "A federal appeals court on Wednesday appeared unwilling
to end a pair of lawsuits that claim the Bush administration engaged in
widespread illegal surveillance of Americans. The 9th U.S. Circuit Court
of Appeals repeatedly pressed Gregory Garre, the Bush administration's
deputy solicitor general, to justify his requests to toss out the suits
on grounds they could endanger national security by possibly revealing
'state secrets.'
-
- "Judge Harry Pregerson wondered: 'We just have to
take the word of members of the executive branch that it's a state secret.
That's what you're saying, isn't it?' [this is a crucial point-but he fails
to press it home, demanding some form of independent verification, to which
the court is entitled.] A moment later Judge Michael Hawkins suggested
that granting the request could 'mean abdication' of our duties [The judges
do understand how big the issue is--but this is merely a cover in hopes
that witnesses will remember their agony rather than the sellout which
will come months later when they render their decision. Meanwhile the eavesdropping
goes on].
-
- "At the heart of both cases is the U.S. Department
of Justice's argument that any lawsuit claiming illegal activity on behalf
of AT&T and the National Security Agency--even if the eavesdropping
is known to have taken place--cannot proceed because they could let enemies
and terrorists know how the government's surveillance apparatus works [totally
untrue. In no case does this case require that government reveal the specifics
of the equipment used. The Plaintiffs are only seeking the admission that
the government captures and screens everything. How it does that is immaterial]....
-
- "The second case, Al-Haramain Islamic Foundation
v. President Bush, is unique: it involves a classified document that the
U.S. Treasury Department accidentally turned over to an attorney for the
foundation. The top-secret document showed, according to the group, 'Al-Haramain
and its attorneys had been subjected to warrantless surveillance in violation
of federal law.' They responded by filing another lawsuit in February 2006
alleging violations of the Foreign Intelligence Surveillance Act. The Justice
Department says the Al-Haramain case must be thrown out because it, too,
could endanger state secrets [No, it must be thrown out because the government
has no defense. The document they mistakenly delivered was a de facto confession.
The "State Secrets" is being used to shield government officials
from prosecution].
-
- [Incredibly], "The foundation's attorneys must not
even be allowed to refer to it, government attorney Thomas Bondy said Wednesday,
because their 'mental recollections of the documents are also out of the
case.' 'The bottom line here is that once the executive declares that certain
activity is a state secret, that's the end of it?' Pregerson asked. 'No
cases, no litigation, absolute immunity? The king can do no wrong?'"
That's really getting into the nitty gritty of the issue, but the judge,
once again, doesn't press home for an answer. He leaves it like a rhetorical
question!
-
- "Another odd twist was the repeated reference to
the Bush administration's public claim that there is no widespread surveillance
of Americans--meaning a kind of suspected electronic dragnet that would
permit the NSA to sift through a large chunk of Internet communications....
But administration officials have never been willing to deny [under oath,
which is telling] a dragnet program in a signed affidavit made under penalty
of perjury. That might derail the lawsuit against AT&T for now, but
on the other hand, it could carry threat of criminal prosecution if the
affidavit turned out to be a lie.
-
- "'What would be wrong with a simple affidavit denying
that the government has intercepted the telephone conversations of American
citizens without a warrant,' Hawkins asked. The court was trying to find
a way out of ruling by relying on this future affidavit to say, "We
have the government's word that they are not eavesdropping, and so we will
accept that unless there is actual evidence of perjury. But that is a cop-out.
The only way to find out if the government is perjuring itself is to allow
the suit to proceed which authorizes DISCOVERY --the ability of non-government
lawyers to search through what the government has surveilled to see if
it involves warrantless eavesdropping on citizens. It surely would--millions
of illegal recordings.
-
- "US Attorney Garre replied that such an affidavit
is unnecessary because the president has already made a public statement."
But Hawkins responded that a public statement wasn't an oath before a court,
and could not arise to perjury. In an oath before the court, "At least
the public (would have) the benefit of a sworn statement from a public
official,"
-
- But, no government official would be willing to certify
under oath to a lie--unless he knew beforehand that the courts would make
sure he is off the hook (which happens). The Foreign Intelligence Surveillance
Act allows criminal penalties of up to five years in prison for government
officials who engage 'electronic surveillance under color of law except
as authorized by statute.' It also includes civil penalties, including
punitive damages and attorney's fees that someone who has been illegally
"subjected to an electronic surveillance" can win in court.
-
- The president also made other statements that are patently
false. Jon B. Eisenberg highlights the latest big fib from our Liar In
Chief: "'These calls are not intercepted within the country.' That's
how President Bush has described the so-called 'Terrorist Surveillance
Program' -- the president's warrantless wiretapping of communications between
persons inside and outside the United States when the government claims
a link to al-Qaida....In little-noticed testimony before a Senate committee
on May 1, National Security Agency director Keith Alexander explained that
a FISA warrant is required because the communication is 'collected in the
United States.'" That's NOT ONLY because the fiber-optic routers are
located here, but because the US is tapping ALL the traffic.
-
- Interestingly, "AT&T is asking that the lawsuit
against it be dismissed in part because it claims to be unable to defend
itself properly without veering into terrain that the Bush administration
has staked out as state secrets." That's another lame excuse. AT&T
is simply saying, "We'll be forced to blame this on the government,
and we are afraid of what the government will do to us if we expose them
to what we all know is going on."
-
- Here's a slightly different, but crucial perspective
from Blogger Ryan Singel: While the same three 9th Circuit Appeals Court
judges heard arguments in two different spying cases today, they seemed
to be two entirely different sets of judges. When listening to the government
attempt to bury, on the grounds of national security, a lawsuit against
AT&T for allegedly helping the government engage in a dragnet surveillance
program aimed at Americans, the judges expressed dismay that the government
and AT&T could not simply show documents proving the surveillance did
not exist.
-
- "That case relies heavily on company documents provided
to the Electronic Frontier Foundation by former AT&T technician Mark
Klein. Large chunks of those documents were published by Wired News last
year. But in the second half of Wednesday's hearing, the judges hardly
asked any questions of the government attorney. He argued that a case directly
aimed at the government's admitted warrantless wiretapping of Americans'
overseas phone calls had to be thrown out because the document the plaintiffs
want to use to prove they were surveilled was 'totally classified.' That
document was accidentally given to them as part of a proceeding to put
an Oregon Islamic charity known as Al-Haramain on a terrorist watch list.
The attorney for Al-Haramain, Jon Eisenberg, impassionately pleaded that
his case wouldn't put state secrets at risk, but the judges seemed immune
to his pleas."
-
- He's right. The document doesn't give a long list of
others surveilled, but only reveals surveillance of Al Haramain and his
attorney, which was illegal without a warrant. It doesn't mention anyone
else, so it is no threat to other terrorists or the goverment's ability
to go after terrorists. It is simply an open and shut confession, and the
judges know it. This part of the hearing indicates that the judges are
controlled by the same insiders that control the Bush administration. And
don't think that former Democratic administrations were not part of this.
This is a system that has been going on for decades.
-
- After last week's sellout by the phony Democratic opposition
in acquiescing to the Bush demands to revise FISA, the anti-administration
public is quickly losing confidence in the Democratic party--which will
have consequences in the election of 2008. As a recent Wall Street Journal
editorial put it, " The editorial "'Get Smart' in Washington"
(Aug. 3) does not discuss the fact that the administration's proposal to
gut the Foreign Intelligence Surveillance Act (FISA) isn't about listening
to foreign-to-foreign calls; it's about undercutting constitutional and
statutory protections from intrusive and abusive government actions.
-
- "This rush to gut FISA comes after a federal judge
denied a 'blanket warrant' request encompassing multiple targets. FISA
judges very rarely deny warrant requests, and this one unusual instance
in which a FISA judge ruled against the administration is no reason to
gut the law. In fact, it should give Congress great pause about whether
it should be stampeding ahead.
-
- "This is the same administration that has gone to
great lengths to mislead Congress and the American public about the illegal
warrantless wiretapping program and hide basic facts about the program
from the media, Congress and public review. Now it wants Congress to grant
President Bush these extraordinary powers to spy on Americans without ever
coming clean about the extent of the lawbreaking." Indeed, that's
the agenda.
-
-
- World Affairs Brief - Commentary and Insights on
a Troubled World.
-
- Copyright 2007 Joel Skousen. All Rights Reserved
-
- Partial quotations with attribution permitted.
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- Cite source as Joel Skousen's World Affairs Brief
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