July 31, 2008

Your Bank Helped President Violate FISA

Most of the attention on the President's illegal FISA violations has been on the telecoms. There's apparently no discussion on how the President provided the telecoms with the information they used to assist the President. One answer are the illegal Presidential orders to financial institutions to turn over without a warrant your personal contact information including your non-public emails and phone numbers. FISA expressly addresses these financial institution issues during wartime:

"A person who, in good faith, produces tangible things under an order
pursuant to this section shall not be liable to any other person for
The intelligence committees whitewashed the WMD investigations. There's been no adequate public discussion of what records the intelligence committee has or has not reviewed related to the financial institution's collusion with the President on FISA violations:
"the Attorney General shall fully inform the
Permanent Select Committee on Intelligence of the House of
and the Select Committee on Intelligence of the Senate
concerning all requests for the production of tangible things"
Someone right now knows whether the AG and/or Members of Congress have or haven't done their job. We need to publicly examine and discuss these aspects of the declassified versions of these AG reports to Congress. The right answer is not to grant immunity to sweep the following issues under the rug:
A. Either the AG complied with this requirement, or he did not;

B. Either the Congress received this information, or it did not; and

C. Either the AG and Congress did or did not meet their legal obligations under the Constitution.
We're still not clear what the Congress and President hoped to shield with this grant of immunity. The grant of telecom community implicitly means there was no adequate or lawful order for either the telecoms or the financial institutions. It defies reason to believe the President and Congress granted immunity only to the telecoms because the financial institutions had "fully complied" with FISA. NSLs have been abused, but we haven't had accountability within the financial services:
A full account and public discussion over the financial institutions conduct when they knew or should have known about the illegal FISA activity.

A. When did the banking institutions discuss their concerns with legal counsel;

B. How do these discussion timelines in the banking sector compare to DOJ OLC discussions with telecoms; and

C. Did the banking board of directors raise issues which, on the telecom side, the Qwest CEO raised?
Investigations are needed outside Congress. The public should broaden it's view of the FISA violations from what the telecoms did or didn't do; and ask who helped the banks, President, and telecoms to:
A. Transfer this information;

B. Bypass the warrant requirements; and

C. Agree to share your personal information outside your financial institution with the President and telecoms, in violation of your privacy rights and agreements with your financial institution.
Your State Attorney Generals may have reviewed the narrow question of telecom collusion with the President. Vermont, Deleware, and New Jersey are only some that are taking the telecoms to court. The State AGs in Federal court are alleging your right to privacy was violated.

The Department of Justice failed to convince Judge Vaughn Walker to dismiss the cases. The litigation against the telecoms continues, and the EFF plans to challenge the recent bill granting immunity to the telecoms. Arguably, the grant of immunity to the telecoms is illegal: The President and Congress unlawfully exercised judicial power in affecting the outcome of pending cases.

he broader questions include:
A. How the President acquired this information;
B. Which financial institutions and other entities had access to your phone numbers and emails, and provided these illegally to the President, telecoms, or others;

C. How did the President convince financial institutions you trust to breach their agreements with you;

D. Which overseas entities and intermediaries did the President use to bypass the FISA requirements, and unlawfully coordinate the transfer of information from your financial institution, through intermediaries, to the President and telecoms to support the NSA's illegal activity;

E. How was a DoD military analyst-like propaganda program developed with Presidential approval and review to distract attention from these legal compliance issues; and

F. How did the President and Congress use the illegal NSA monitoring to craft media messages designed to ensure toleration for this illegal activity?
There should have been warrants to access, use, and transfer this information, especially this many years after 9-11. Telecom immunity means Congress has not adequately conducted oversight. Without this information, there is inadequate public attention to review the compliance programs.

The FISA violations and AG comments indicate the US government still is not securing warrants. This suggests despite the United States President well passing the 15-day window authorizing warrantless surveillance, something else is convincing the financial institutions and others to provide your personal information to the President without a warrant.

FISA Violation Conspiracy Between President, Members of Congress, Financial Institutions, Telecoms

One argument is "the FISA statute does not expressly prohibit" the transfer of information from the banks to the President; nor does it relate to the transfer of information which does not relate to electronic surveillance.

This misses the point. Once the President openly admits he's violating FISA, the question turns on who knew or should have known their assistance to the President was and remains material in his FISA violations. Arguably, the banking system has well known, or should know, the illegal FISA violations were only possible if the banks provided this information to the President and telecoms.

When you open an account at a financial institution, you and the bank agree to terms and conditions. Those are not unilateral conditions the bank only imposes on you. Rather, when you open your account you should reasonably expect the bank internal controls to only disclose your personal information when there are lawful requirements. Arguably, when the President's agents appears at your bank demanding information, your banks should do what the telecoms refused to do: Demand warrants.

It appears the President is not, in all cases, securing the required warrants to access your banking information; and not adequately justifying to the court why, on his assertion alone, he needs your email and private contact information. The President said he wasn't trolling your emails. He didn't rule out the possibility that he was trolling non-public databases to get email accounts and other private information.

The integrity of the financial reporting system appears to have been compromised. The issue isn't merely which bank boards have colluded with the President, but which bank auditors and examiners have ignored this illegal cooperation; and have not ensured there are strict controls on how the information in your accounts is transferred.

he public needs to have a discussion about the lessons we've learned from the telecom support of FISA violations. Granting immunity to the telecoms is one way the Congress and President can squash any broader examination. Note the similarity in the questions to issues raised with the telecoms and DOJ OLC memos on POW abuse in violation of Geneva:
A. Members of Congress refused to investigate war crimes.

How long have the Members of Congress on the banking committees known about the illegal transfer of your private contact information to the President, but did not investigate this material support required to support FISA violations?

B. The Qwest CEO was investigated.

How many bank board of directors were threatened or fired because they refused to cooperate with this illegal data transfer from your financial institution to the President and telecoms?

. Congress granted the telecoms immunity, despite having no judicial power to affect ongoing litigation.

As with the telecoms, which bank directors have lobbied the President to thwarte FISA enforcement, get immunity, or other retroactive protections?

D. The President legalized unlawful activity against POWs.

As with the POW abuse memos, where are the copies of the DOJ OLC memos which retroactively "legalized" this unlawful transfer of information, without a warrant, from your bank to the President and telecoms?

E. Congress Has Been Intimidated Not to Investigate the President For Impeachable Offenses

What are the details of the plans to dissuade the public from conducting investigations against bank officials for their unlawful cooperation with the President, and failure to secure warrants before data was transferred to the telecoms?
The banks are only part of the problem. Other data warehouses include the internet websites, the email accounts, and other data-mining operations which gather emails. The questions include:
A. How the President acquired these emails and telephone numbers;

B. Did the President bypass the FISA warrant requirements to secure some non-telecom records;

C. What are the names of the intermediaries and overseas entities helping the President violate FISA;

D. Who in Congress knows about this, but has done nothing.
One issue to consider is the "backlog" of NSA intercepts. Once the President and others use this massive vacuum cleaner to troll through email accounts and phone numbers, the President and others need to explain what they're doing with this information, how it is safeguarded, and how the private contact information is adequately safeguarded so that it is not exploited, misused.

For example, once the President and law enforcement illegally acquire your email or telephone number -- and know that that information relates to you -- without a warrant, they could troll through anything waiting for you to "possibly" be involved with something questionable.

Arguably, the President and others are doing things which even the State AGs don't know about. This may be behind how Governor Spitzer was caught. When he was AG he knew or should have known about the emails and NSA; but it appears the President and others are doing things and accessing private information without a warrant using methods the leading prosecutors may not want to openly discuss, much less admit.

he Framers intended for warrants to regulate how the executive conducted searches. The idea was to have a magistrate review the facts and ensure the search is reasonable, not arbitrary, as the Red Coats were doing. This President appears to have too much information, not enough justification, and an inadequate legal compliance program.

It appears Members of Congress have secretly endorsed these methods, including the roving teams conducting warrantless interrogations. Using information the President and others acquired from your bank, the IRS, and other sources, the President has questions about transactions. He's not arguing that you're engaged in criminal activity; he's only asserting -- because his databases are incomplete -- that he needs to interrogate you, without a lawyer, because your job is to explain the gaps in his database.

FISA expressly prohibits the President and others from -- as it appears he is doing -- punishing people for engaging in Constitutionally protected activity, and targeting them for surveillance:
FISA: "(B)
not be conducted of a United States person solely
upon the basis of activities protected by the first amendment to the
Constitution of the United States."
Consider the still secret DOJ OLC opinions. The President's legal counsel likely uses unconvincing criteria to argue something is "not substantially" linked with protected rights.

That's not a reasonable search. It's the President using his incompetence and ignorance as the pre-text to put the attention on you.
Illegal presumption of guilt: The President, using your financial data, is starting with the incorrect presumption: "All inexplicable gaps are possible evidence; and that you, as the target, must explain away his ignorance."
The correct approach is for the President and others to develop a case using evidence, and for the government to prove the case.

We must examine the broader scope of these FISA violations; and ask who else must have helped the President violate FISA. The answer isn't to grant immunity for FISA violations; but to broaden the legal restrictions against the illegal support of FISA violations. FISA needs to be strengthened, not explained away as trivial.

What You Can Do

1. Contact your state AGs and ask them whether they have or have not discussed the broader illegal support for the President's unlawful FISA violations. Ask them whether they plan to work with the other State AGs reviewing telecom violations of State privacy statutes, and broaden the investigation from telecoms to including other illegal support for these privacy violations.

2. Raise this issue with your financial institution board of directors. Ask them whether they've been threatened if they discuss the ongoing illegal transfer of information outside the warrant requirements.

3. Contact Members of Congress on the House and Senate banking Committees. Ask for the Congressional correspondence logs showing who members of Congress on the banking committee were talking to to grant immunity to the bank board of directors for their assistance to the President and telecoms.

4. Ask through FOIAs to see the DOJ OLC opinions related to the banking institutions cooperation with the President on these FISA violations;

5. Secure copies of the concerns banks' legal counsel raised with DOJ staff counsel on the liability financial institutions would have when this illegal support was disclosed?

No comments: