September 02, 2008

FISA Foils ACLU Yet Again

Secret Spying Court Stays Secret, Rejects ACLU Plea Again
By Ryan Singel / August 29, 2008

For the the third time in a year, a secret spying court rejected an ACLU request to let some sunshine pierce its dark curtains of secrecy, ruling late Thursday that national security prohibits publishing even unclassified versions of court documents or allowing non-government lawyers to argue in the court.

The Foreign Intelligence Surveillance Court was reacting to an ACLU petition in July to be part of the court's review of new wiretapping powers handed to the Administration by Congress in July. Under the new law ---known as the FISC Amendments Act -- the nation's spies can order companies like AT&T and Google to help the government drop dragnets into domestic internet and phone facilities to capture all communications suspected to involve at least one foreigner.

Previously, the law said that such wiretaps had to be approved on an individual basis if done inside the U.S., while more lax rules held sway if the govenrment wiretapped such communications outside the U.S. That legality did not stop the Bush Administration, which began a secret spying program after 9/11 that included targeting these kinds of communications.

The ACLU argued that the new law expanded the government's powers so broadly that the court needed to make exceptions to its ultra-secret hearings that never allow any opposition.

Foreign Intelligence Surveillance Court judge Marya McLaughin dismissed those pleas, saying (.pdf) that there was no right for the public to know about the workings of the court.
The FISC has no tradition of openness, either with respect to its proceedings, its orders or to Government briefings filed with the FISC. [...]

Although it is possible to identify some benefits which might flow from public access to Government briefs and FISC orders ... any such benefits would be outweighed by the risks to national security created by the potential exposure of the Government's targeting and minimization procedures.

ACLU attorney Jameel Jaffer expressed frustration, yet again -- saying that secrecy should not be wrapped around a new law that affects every American's privacy.

"The Bush administration says that the new law is necessary to protect the country against terrorism, but there’s nothing in the law that prevents the government from monitoring the communications of innocent Americans," Jaffer said in a written statement. "The intelligence court should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear."

The ACLU also wanted to file a brief contesting the constitutionality of the targeting procedures and the law, but McLaughin declined, saying that the group's analysis would not be helpful since only the government and the court know how the spying works.

The FISC was given a little authority in the new law to oversee the procedures the National Security Agency will use to make sure it does not intentionally target Americans or snag purely domestic communications with its new dragnets. Under the rules, the NSA can't point the microphone at a particular American to monitor their overseas communications without a court order naming the target, but can monitor all Americans by targeting anyone outside the country using a new blanket order.

The ACLU also asked the court to make the government file unclassified versions of the documents it has to file with the court that describe the dragnets. Other than a yearly accounting of how many surveillance court orders it has granted or denied, little is known of the court and it has only released a handful of decisions in its 30-year history -- including three in the last 12 months denying the ACLU's petitions to open itself up.

The ACLU also filed suit in federal district court to contest the law, which also provides retroactive amnesty for telecoms that helped the government warrantlessly spy on Americans.

Source / Wired


Anonymous said...

[ for publication ]

One GOP theme has been putting country first, before party. Putting aside the false dichotomy, the claim contradicts the email evidence.

The DoD emails show the United States government supported an unlawful, disproportionate use of force in violation of the laws of war.

The President has been linked with the DoD emails. His staff is mentioned as having met to discuss the military analysts.

What the GOP neglected to mention was that they're using the idea of country to justify something not lawfully permitted: A wider crusade to impose American values regardless the legality of that Agenda.

Just War Theory

There are legal standards regulating how much force may be lawfully used. This is the principle of proportionality. The use of lawful force must be proportionate to the threat. When a country uses disproportionate force, they have under the laws of war committed a war crime.

The Administration knew or should have known there ewas no imminent threat from Iraq. To distract from the lack of imminent threat -- a clear war crime -- one discussion in the DoD emails shows a nuanced argument: To find a method to justify a disproportionate use of force.

The Administration has distracted attention from the legal standards related to an imminent threat, and focused on the ethics of warfare: When is a disproportionate use of force morally -- not legally -- justified.

Subordinating Laws of War To Just War Exceptions

Under a Just War theory (Jus ad bellum) , the religious leadership said the rules related to a just war can be waived during a crusade. In the view of the clergy, disproportionate force can be used to achieve success:

disproportionate measures are required to achieve success

America's leadership has sought, in the wake of 9-11, jus in bello justice in war, regardless the legality of the war itself. 9-11 was the excuse to wage warfare. The DoD emails show the planned expansion of this warfare from Iraq was into Syria and Iran.

The DoD emails show the Administration and military analysts exchanged ideas on justifying a disproportionate, and illegal use of force. A reasonable conclusion is the United States, after 9-11, viewed itself as being in a crusade against all others who did not embrace the American agenda.

This explains why the Administration supported using nuclear weapons against Iran:

7535: Advocating disproportionate force:

"First, that we couldn't allow ourselves to be weakened by empty rhetoric urging a 'proportional response.' Our response to the 9-11 attacks had to be decisive, and to be so our counterattack had to be in proportion to our strength and not the enemy's relative size or weakness."

The irony is the Administration was arguing to use nuclear weapons against Iran for their possible use of nuclear weapons. Certain warfare today by the United States to thwart a possible, speculative future war by someone else. That fails to meet the "imminent threat" standard required under the laws of war.

The GOP with DNC collusion have jointly embraced an illegal justification for an unlawful use of force: The American leadership have implicitly embraced the excuse of a crusade as an illegal exception to the laws of war permitting only proportionate use of force.

The Americans changed the debate from whether the use of force was lawful or linked with an imminent threat; to whether the amount of force could be justified.

Do we wage illegal war using big bombs or nuclear bombs?

The issue isn't whether the party or country should be first; but for the American civilian leadership to be held accountable for putting the rule of law second to both their party and unlawful national military objectives.

Senators Obama and McCain have -- now -- the power to lead investigations in the Senate. What both refuse to do as Senators is a signal of what they have no plan to do as Commander in Chief or President:

Lead an effort to ensure America's civilian leadership remain accountable to the rule of law when the Federal Government and States refuse to put the law before party.

We need something more than empty rhetoric. We need leadership in the Senate.

Discussion Questions

Food for thought:

A. GOP Agenda of War Crimes Justification

To what extent is the the "country first"-theme intended to justify a false choice between the party and the country?

B. Distraction from Geneva

Why is there a distraction from the lack of imminent threat in the DoD emails, with the false claim that disproportionate power may be used?

C. Prosecuting GOP Civilian Leadership

What is to be said of civilians who distract attention from legal standards, and make excuses to use disproportionate force against non-military targets which are not imminent threats?

D. GOP Reckless Geneva Compliance Program

What can we say about civilians who distract attention from legal compliance programs under the laws of war to whether or not they can hide or destroy evidence of those war crimes?

E. Loyalty to Party and Deception

Why should there be a truth a reconciliation process where witnesses are granted immunity when the witnesses before Congress have lied under oath despite a promise of immunity from prosecution?

Disingenuous Truth and Reconciliation

It is absurd to seriously discuss a "truth a reconciliation" process on the issues of American war crimes. The Americans have not shown an interest in complying with disclosure or any truth. Even when promised immunity from prosecution, the American witnesses (Goodling, Libby) before Congress and the Grand Jury have lied.

The Americans are not interested in disclosing the truth. They're interested in putting their party agenda before the national security interests of the United States.

America's security interests depend on legal compliance program. The Americans have not shown a respect for the rule of law, but for the excuses to justify disproportionate force.

Senators McCain and Obama have jointly not provided the expected leadership in the Senate on the issues of war crimes. To show they are serious about change, the Senators must outline their plan -- now, as Senators -- to lead in the Senate their plan to conduct fact finding.

The American approach to post 9-11 events has been a reckless disregard for civilized rules. The American political leadership has made excuses for barbarity. The FISA requirements were applicable during wartime. The DoD emails show there was an arrogant discussion to distract attention from the laws of war and lawful use of force; and focus on creating excuses for the disproportionate, illegal use of force.

These are not moral questions. These are issues of international criminal law. The civilian leadership in the United States -- at the Federal, State, and local levels -- has been complicity with this illegal activity. They've embraced the war crimes as a policy; continued to refuse to challenge that illegal activity; and have not timely led prosecution efforts or investigations at the local, state, or federal level.

America's Leadership Problem

This is a reckless collapse of law and order. The Constitution does not expressly prevent the military from arresting civilian leaders who refuse to enforce the Geneva Conventions; and timely ensuring this is a peaceful transfer of power to the next in line to the leadership positions.

The American political parties have recklessly wasted time pretending they are for a legislative agenda, and failed to ensure the American Constitution and Geneva Conventions were fully enforced, as required by oath. The American leadership cannot be trusted.

GOP Rallying Americans For War Crimes

The worst thing is for the GOP to argue for "America first" when America under GOP has been an outlaw nation. "America first" is a code word meaning, "Ignore all legal constraints on the myth of 9-11."

The GOP leadership, not American citizens in combat gear, should be first in line to the war crimes tribunals. Until America confronts this reckless disregard for the rule of law at home, foreign powers might conclude American can only be subdued using military force.

The GOP leadership is actively mobilizing Americans to ignore the laws of war, and rally around the flag.

We must rally around the rule of law, not the criminals leading the GOP and DNC -- the domestic enemies of American citizens and the Constitution. There is no statute of limitations for war crimes, especially for those at the local, state, and federal level who have been complicit with this illegal activity, and decision not to enforce the law.

[ end comment for publication ]

Anonymous said...

[ for publication ]

The DOJ IG report reveals a disturbing piece of information about the United States government's NSA legal compliance program: Congress and the President for at least two years were not in agreement, as they should have been, that the NSA was or was not fully meeting all FISA wartime requirements.

The record suggests rather than gather information to make a decision about whether NSA surveillance did or didn't comply, it was only the NYT reporting which prompted (some of ) the needed oversight, discussion, and legal compliance review.

Despite many unanswered questions, Congress granted immunity. The DOJ IG report helps us understand what Members of Congress most likely knew: There was an Executive-Legislative agreement, long before the NYT reporting, to do nothing about FISA violations during wartime.

DOJ IG Shows Congress Knew About FISA Surveillance Before 2004

The DOJ IG disclosed some important timing information related to Congressional notifications, the timing of FISA briefings, and what Gonzalez did.

This means Gonzalez briefed Members of Congress before 2004:

3 of 32: The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders when Gonzales was the White House Counsel;

This means Congress was briefed before Gonzalez became attorney General:

White House: Alberto R. Gonzales was sworn in as the nation's 80th Attorney General on February 3, 2005

Relying only on the DOJ IG report, the DOJ IG knows that some members of Congress were been briefed as late as Feb 2005; and could have been briefed more than one (1) year before the Attorney General publicly commented after the NYT reporting.

Wait for what the DOJ IG should have done, but Congress did not force the DOJ IG to do.

Recall, Senator Roberts documented in a handwritten not to Vice President Cheney July 23, 2003. His note shows Members of Congress agreed to hear this information on condition that they not discuss these legal issues with counsel.

Surely, once the legal issues became self-evident after 2005, this review should have occurred. Yet, the Senate complained in 2006 they were still waiting for information. FISA requirements impose on the AG:

FISA: "a summary of significant legal interpretations of this chapter"

DOJ OPR shows us they are involved with the legal interpretations, yet the AG says he won't enforce investigate FISA or Geneva violations. We need to see the memos, and when individual Members of Congress before 2004 were provided with classified copies of these convoluted legal arguments.

Nobody needs information when the legal requirement is for a full briefing to Congress; and a certification that the activity complies with FISA. The lack of information is a subsequent offense. which Congress also refused to investigate before approving amnesty.

By openly asserting they still did not have information, Congress was implicitly admitting it knew Gonzalez had not complied -- as attorney General -- with the reporting requirement. . . but Congress did nothing to close that loop before granting immunity.

Now that we know Gonzalez was the one who gave (one of) the briefings to Members of Congress, let's revisit his parsing in his White House briefing from Dec 19, 2005:

- - - - -

Q Gentlemen, can you say when Congress was first briefed, who was included in that, and will there be a leaks investigation?

ATTORNEY GENERAL GONZALES: Well of course, we're not going to -- we don't talk about -- we try not to talk about investigations. As to whether or not there will be a leak investigation, as the President indicated, this is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we'll just have to wait and see.

And your first question was?

Q When was Congress first briefed --

ATTORNEY GENERAL GONZALES: I'm not going to -- I'm not going to talk about -- I'll let others talk about when Congress was first briefed. What I can say is, as the President indicated on Saturday, there have been numerous briefings with certain key members of Congress.

Obviously, some members have come out since the revelations on Saturday, saying that they hadn't been briefed.

This is a very classified program. It is probably the most classified program that exists in the United States government, because the tools are so valuable, and therefore, decisions were made to brief only key members of Congress. We have begun the process now of reaching out to other members of Congress. I met last night, for example, with Chairman Specter and other members of Congress to talk about the legal aspects of this program.

And so we are engaged in a dialogue now to talk with Congress, but also -- but we're still mindful of the fact that still -- this is still a very highly classified program, and there are still limits about what we can say today, even to certain members of Congress.

- - - -

Again, Congress, still (supposedly) not getting the legal details, passed immunity for those who violated FISA, which Members of Congress knew or should have known was applicable during wartime.

During the 2005 White House press conference Gonzalez mentioned Senator Specter.

Does this mean Gonzalez had still not yet briefed Specter; if not, who in Congress did Gonzalez specifically brief in the DOJ IG-referenced briefing on the NSA surveillance?

One of the ruses has been the excuse of "we didn't know the details of the program" and "didn't know the activity violated FISA."

What questions did Members of Congress raise to Gonzalez at this DOJ IG referenced briefing; and did Members of Congress full review the FISA-compliance requirements?

Senator Leahy addressed these issues:

Leahy, 2006: "For example, the Attorney General's letter suggests that the Administration is operating other secret programs that invade the rights and liberties of Americans. But it refuses to answer our questions regarding the scope and the purported legal basis of those programs."

Leheay is pointing to the "answers" but not addressing what classified memos he was provided. In theory, if Congress and Gonzalez were fully complying with FISA during wartime, Leahy would not have to wait for these answers in 2006. Gonzalez would have either provided or not provided that information in his original briefing to Congress before 2004. There should be no question in 2006 about information which Gonzalez and Congress should have addressed two (2) years earlier.

This strongly suggests Congress and the Executive for more than two (2) years, 2004-6 knew or should have known there was insufficient information about the NSA surveillance to make any independent review of the legality of that activity; or that the legal compliance program was adequate; or that the FISA wartime requirements were fully met. This defies reason.

More likely, Congress has been given (another) classified briefing which they (still) have not expressly discussed, and have agreed to keep secret.

Congress should have been able to conduct a review of the program before 2004 when Gonzalez originally briefed the material to Congress: They would know or not know before 2003 whether the program complied with FISA. They never challenged the legality.

The DOJ IG report confirms Members of Congress have been in collusion with FISA violations.

Did Members of Congress agree, in secret, with the President to block the DOJ IG/OPR from reviewing the details?

It appears so, otherwise they would have demanded an explanation why they were "blindsided" and not passed immunity "for the telecoms." The DOJ IG report opens the questions:

Congress Complicit With Election-Related Prosecution Decisions

Individual members of Congress and Executive Branch officials gain by granting immunity, blocking a review of what Congress really knew, and why Congress did not fully enforce the FISA violations during wartime?

They have delayed a legal resolution until after the 2008 election.

Other questions:

A. DOJ IG Reporting To Congress

The inspector Generals have a reporting requirement to Congress. Congress cast the leverage of investigations aside when it granted immunity.

(1) When did the DOJ IG report, beyond what Members of Congress may have revealed, know there was a legal compliance problem; or an unanswered question?

(2) What is the plan of Congress to enact legislation to ensure this abuse does not happen again?

B. Presidential Decision

The President has classified memos, arguing they were deliberative. However, the DOJ IG information changes the equation. These memos after 2004 are no longer deliberative, but part of a post-decision-narrative. These are subject to the crime-fraud exception to privilege.

(3) When did the President really work with Gonzalez to shut down any DOJ IG/OPR investigation into this illegal activity?

(4) Why has Congress not asked for these specific Presidential decision memoranda related to the pre-2004 decisions, as the DOJ IG report (implicitly) confirms?

C. Attorney Reporting of Peer Misconduct

There are some mandatory reporting requirements for legal counsel when they have evidence their peers in the legal community have not fully complied with the statutes.

(5) How many DOJ, Congressional, or Executive Branch staff counsel have known about the illegal activity, but did not documented their knowledge of this illegal activity?

Regardless of what information Congress did or didn't get, there are other questions about Congressional oversight:

D. Funding Despite Unanswered Questions

The mandate for change called for Congress to change. Yet, we still have rubber stamping of GOP war crimes and FISA violations.

(6) Why did Congress during this two year window from 2004-6, when the legal compliance was unclear, continue agreeing to provide funds?

E. Emails through Intel Link, Sipr Net

The DoD emails show DoD does use the SIPR net.

(7) What information and notes did Members of Congress send to the President about their concerns;

(8) How were these questions addressed and archived within the DoD classified email systems, outside the White House control?

[ end comments for publication ]