Spying

By NEDRA PICKLER, ASSOCIATED PRESS

WASHINGTON -- The White House possibly broke the law by keeping intelligence activities a secret from the lawmakers responsible for overseeing them, the House Intelligence Committee chairman said Sunday.

Rep. Pete Hoekstra, R-Mich., said he was informed about the programs by whistleblowers in the intelligence community and then asked the Bush administration about the programs, using code names. Hoekstra said members of the House and Senate intelligence committees then were briefed on the programs, which he said is required by law.

By David Cole and Martin S. Lederman, http://www.acslaw.org/node/2897

An article from the symposium issue of the Indiana Law Journal on War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. The symposium was convened by the American Constitution Society for Law and Policy and the Indiana University School of Law–Bloomington on October 7, 2005.

As the title suggests, the authors undertake the effort of framing the legal debate on the NSA’s domestic surveillance program, also providing, as they say, “four documents that, taken together, set forth the basic arguments concerning the lawfulness of the secret NSA surveillance program. The debate outlined by the four documents raises important issues about statutory interpretation in the face of claims of constitutional conflict, executive power during times of war, fundamental privacy rights of Americans, and ultimately, the rule of law in the war on terror.” They conclude: “The question that these documents raise is not whether suspected al Qaeda members’ phone calls should be monitored, but whether wiretapping of Americans in pursuit of that objective should be done pursuant to law, or pursuant to secret orders issued by the President in contravention of law. Our view is that if the President finds federal law inadequate in some measure, the proper course is to ask Congress to change it. What the President cannot do in our democracy is order that the law be violated in secret.”

If you haven't already added Jane Mayer's New Yorker profile on David Addington, Cheney's Chief of Staff and chief architect of the administration's "legal theories" on the "war on terror" to your Must Read List, you should do so immediately. I thank my fellow Next Hurrah blogger emptywheel for bringing it to my attention.

This article, especially in combination with the recent PBS Frontline presentation, "The Dark Side," makes a solid and quite explicit case for something that many have been arguing for a long time, namely that the current administration's constitutional affrontery is a direct outgrowth of our collective failure to definitively and directly repudiate and exterminate the expansionist views of executive power represented by the Watergate and Iran-Contra scandals.

The legal mind behind the White House’s war on terror
By JANE MAYER, http://www.newyorker.com

KEY EXCERPT: John Murtha, the ranking Democrat on the House Appropriations Subcommittee on Defense, put a provision in the Pentagon’s appropriations bills for 2005 and 2006 forbidding the use of federal funds for any intelligence-gathering that violates the Fourth Amendment, which protects the privacy of American citizens. The White House, however, took exception to Congress’s effort to cut off funds. When President Bush signed the appropriations bills into law, he appended “signing statements” asserting that the Commander-in-Chief had the right to collect intelligence in any way he deemed necessary. The signing statement for the 2005 budget, for instance, noted that the executive branch would “construe” the spending limit only “in a manner consistent with the President’s constitutional authority as Commander-in-Chief, including for the conduct of intelligence operations.”

June 30 (Bloomberg) -- The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court.

The allegation is part of a court filing adding AT&T, the nation's largest telephone company, as a defendant in a breach of privacy case filed earlier this month on behalf of Verizon Communications Inc. and BellSouth Corp. customers. The suit alleges that the three carriers, the NSA and President George W. Bush violated the Telecommunications Act of 1934 and the U.S. Constitution, and seeks money damages.

Inslee Ammendment on NSA Spying "Thank and Spank"

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"Thank and Spank" Action for Schiff-Inslee Amendment on NSA Spying

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By PETE YOST, Associated Press

A Supreme Court ruling striking down military commissions seriously weakens the foundation of the Bush administration's domestic surveillance program, critics said Friday.

A congressional resolution President Bush relied on in creating commissions is a key rationale for the National Security Agency to listen in on phone calls without first obtaining a judge's permission.

http://blog.wired.com

It's not surprising that an expert hired by EFF should produce an analysis that supports the group's case against AT&T. But last week's public court filing of a redacted statement by J. Scott Marcus is still worth reading for the obvious expertise of its author, and the cunning insights he draws from the AT&T spy documents.

An internet pioneer and former FCC advisor who held a Top Secret security clearance, Marcus applies a Sherlock Holmes level of reasoning to his dissection of the evidence in the case: 120-pages of AT&T manuals that EFF filed under seal, and whistleblower Mark Klein's observations inside the company's San Francisco switching center.

The Total Information Awareness program was killed in 2003, but its spawn present bigger threats to privacy.
By Jonathan Turley, http://www.latimes.com

JONATHAN TURLEY is a law professor at George Washington University.

THE DISCLOSURE this week of a secret databank operation tracking international financial transactions has caused renewed concerns about civil liberties in the United States. But this program is just the latest in a series of secret surveillance programs, databanks and domestic operations justified as part of the war on terror.

By Catherine Komp, The NewStandard

While dozens of lawsuits challenging the Bush administration's warrantless surveillance of Americans slowly move through the courts, the Senate Judiciary Committee is poised to consider legislation that would effectively legalize the practice.

Civil-rights advocates and constitutional-law experts say several proposed bills attempt to "whitewash" executive wrongdoing before Congress has the opportunity to conduct hearings and gather the facts surrounding the National Security Agency's involvement in warrantless wiretapping and telecommunications data mining.

By ERIC LICHTBLAU and JAMES RISEN, New York Times

WASHINGTON, June 22 - Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.

By Kim Zetter, http://www.salon.com

Salon exclusive: Two former AT&T employees say the telecom giant has maintained a secret, highly secure room in St. Louis since 2002. Intelligence experts say it bears the earmarks of a National Security Agency operation.

In a pivotal network operations center in metropolitan St. Louis, AT&T has maintained a secret, highly secured room since 2002 where government work is being conducted, according to two former AT&T workers once employed at the center.

By New York Times

On Monday, the Bush administration told a judge in Detroit that the president's warrantless domestic spying is legal and constitutional, but refused to say why. The judge should just take his word for it, the lawyer said, because merely talking about it would endanger America. Today, Senator Arlen Specter wants his Judiciary Committee to take an even more outlandish leap of faith for an administration that has shown it does not deserve it.

Associated Press

The Bush administration has asked federal judges in New York and Michigan to dismiss two lawsuits filed over the National Security Agency's domestic eavesdropping program, saying litigating them would jeopardize state secrets.

In papers filed late Friday, Justice Department lawyers said it would be impossible to defend the program's legality without disclosing classified information that could aid terrorists.

http://www.eff.org

The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive and illegal program to wiretap and data-mine Americans' communications.

"Stop talking about impeachment!"

"Focus on the elections!"

"Win back the Congress, and then we'll have subpoena power and oversight authority!"

It seems to me that it's time to have a nuts and bolts discussion about what we're supposed to be gaining in exchange for agreeing to sit on our hands and watch what we say.

How exactly do we see subpoena power and oversight authority under a Democratic Congress actually playing out?

By Rep. John Conyers, http://www.dailykos.com

Last night, I filed an amicus brief with 71 other Democratic Members of Congress in two cases challenging the Bush Administration's illegal warrantless domestic spying.

It is very disturbing that, on the same day we learn that the NSA has been secretly collecting the phone records of tens of millions of Americans, we also learn that the Department of Justice has abruptly cancelled its investigation into the Agency's warrantless wiretapping program. These developments clearly point to the urgent need for oversight and review of this program. Congress has failed to provide this critical oversight which has led us to the courts.

By The Associated Press

Washington - The government has abruptly ended an inquiry into the warrantless eavesdropping program because the National Security Agency refused to grant Justice Department lawyers the necessary security clearance to probe the matter.

The Justice Department's Office of Professional Responsibility, or OPR, sent a fax to Rep. Maurice Hinchey, D-N.Y., on Wednesday saying they were closing their inquiry because without clearance their lawyers cannot examine Justice lawyers' role in the program.

By Onnesha Roychoudhuri, AlterNet
Posted on May 8, 2006, Printed on May 8, 2006
http://www.alternet.org/story/35807

Five months after news of the NSA's warrantless spying program broke, and after we've learned numerous details of the program's extent, a Portland, Ore., attorney may have finally obtained hard evidence of illegal wiretaps by the government.

Thomas Nelson has been practicing administrative law for most of his professional life, but after September 11th he first began offering pro bono work for immigrants detained in broad FBI terrorism sweeps. He is currently leading a little-discussed case that may contain the first documented evidence of an illegal wiretap, and believes that as a result, he himself has been subjected to warrantless -- and therefore illegal -- wiretaps and physical searches, the kind of clandestine operation that Nixon referred to as "black bag jobs." And as a result of extreme carelessness by the FBI, Nelson may have his hands on the only solid evidence of these searches.

CCR President Michael Ratner discusses the disclosure by the office of U.S. Attorney General Alberto Gonzales that the NSA domestic spying program may include spying on communications of attorneys with their clients. This article was originally published by Salon on March 31, 2006.

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It's hard to remember how shocked Americans used to be when their presidents broke the law. In a 55-page letter sent on March 24 the Senate Judiciary Committee, the office of U.S. Attorney General Alberto Gonzales brazenly asserted that President Bush had every right to secretly order the National Security Agency to engage in warrantless eavesdropping for what it called the "Terrorist Surveillance Program." On the last page, after he essentially refused to answer most of Congress' questions about the illegal program, which had been revealed in December ("It would be inappropriate to discuss in this setting the existence or nonexistence of specific intelligence activities"), Gonzales let slip a bombshell. "Although the Program does not specifically target the communications of attorneys or physicians," his office wrote, "calls from such sources would not be categorically excluded from interception."

John Dean blasts Bush's domestic spying; Rice admits "thousands" of errors in Iraq; school officials in Tucson concede they cannot stop momentum of student protests on illegal immigration legislation; the US propaganda machine; Thom Hartmann on today's immigration battle; and more ... Browse our continually updating front page at http://www.truthout.org

Join fellow bloggers at the t r u t h o u t Town Meeting. Get perspective on today's important issues from TO's editorial team and prominent guest bloggers.

Saudi Group Alleges Wiretapping by U.S.
Defunct Charity's Suit Details Eavesdropping

By Carol D. Leonnig and Mary Beth Sheridan
Washington Post Staff Writers
Thursday, March 2, 2006; Page A01

Documents cited in federal court by a defunct Islamic charity may provide the first detailed evidence of U.S. residents being spied upon by President Bush's secret eavesdropping program, according to the organization's lawsuit and a source familiar with the case.

Extent of Eavesdropping May Go Beyond NSA Work
By Charles Babington and Dan Eggen, Washington Post

Attorney General Alberto R. Gonzales appeared to suggest yesterday that the Bush administration's warrantless domestic surveillance operations may extend beyond the outlines that the president acknowledged in mid-December.

In a letter yesterday to senators in which he asked to clarify his Feb. 6 testimony to the Senate Judiciary Committee, Gonzales also seemed to imply that the administration's original legal justification for the program was not as clear-cut as he indicated three weeks ago.

By Suzanne Nossel, www.huffingtonpost.com

I'm assuming that it's man overboard for Dubai to take over ports in New York and other cities now that it has been revealed by the Jerusalem Post that the company supports an Arab boycott of Israel. The deal was already on the ropes, and this will push it into the deep blue.

But there could be one positive spillover from what otherwise looks like just another political foul-up for the Bush Administration. The Dubai deal has finally gotten politicians -- both nationally and in key coastal cities -- to start talking seriously about port security. Port security has been a watchword since right after 9/11, but while great plans have been laid on paper, and Bush has outlined a thorough maritime security agenda, virtually nothing has been implemented. Most Americans simply don't spend a lot of time thinking about boats, and its been tough to get political leaders to focus on unsexy imperatives like rigorous container inspection. My co-blogger Lorelei Kelly looks at some of the key steps that need to be taken here and why there's a standstill.

By Alan Gray, NewsBlaze

Scott Tooley, a Republican, and former Congressional aide and law school graduate, educated at renowned Christian universities, has filed suit against the President, Vice President and relevant federal agencies for their illegal surveillance programs.

By Richard Hoffmann, World Socialist Web Site www.wsws.org

On January 19, 2006 the US Department of Justice released a 42-page memorandum purporting to set out a legal justification for the spying activities of the Bush administration that have been undertaken by the National Security Agency (NSA).

Like statements made by the White House and the attorney general since the government’s domestic surveillance operations were revealed, the Justice Department’s legal brief is an aggressive, but spurious, attempt to establish that these operations have a basis in law. Its central plank is the contention that, since the United States is in a state of war with Al Qaeda, the president has unfettered power to conduct military operations against Al Qaeda, including spying on US citizens and legal residents within the United States.

By Rep. John Conyers, Jr. (Cross-posted at DailyKos)

You may recall that a few weeks ago I introduced a resolution of inquiry to obtain Justice Department documents about the President's domestic spying program.

Many of you are no doubt familiar with the procedure for resolutions of inquiry; however, for those who are not, a brief explanation. A resolution of inquiry requests information or documents from the Executive Branch. The Committee to which it is referred must vote on it within a specified period of time or the full House must consider it.

As a practical matter, if the Republicans want to dodge an issue, they refer the bill to Committee and then "adversely report" it, which kills it, stopping the request for documents and protecting every non-Committee Republican from having to vote on it.

Today, the House Judiciary Committee considered my resolution of inquiry on the domestic spying program. The Resolution was rejected 16 to 21, with all Democrats and one Republican (Congressman Hostetler) voting for it.

Bar association to oppose domestic spying
Chicago Sun Times February 11, 2006
BY ABDON M. PALLASCH Legal Affairs Reporter

The American Bar Association is preparing to weigh in against President Bush's eavesdropping on telephone calls going into and out of America.

Contrary to polls showing Americans divided on the issue, "our poll shows that average Americans and legal scholars alike agree that the awesome power of the government to penetrate citizens' most private communications must not be held in one set of hands," ABA President Michael Greco said Friday at group's annual midyear meeting in Chicago. "To prevent the very human temptation to abuse the power, there must be checks and balances in the form of oversight by the courts and Congress."

New York Review of Books
http://www.nybooks.com/articles/18650

By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne

Dear Members of Congress:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department's December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program.[1] Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

Here's a short audio clip from the Alternative State of the Union event hosted by the Progressive Caucus, the Nation Magazine, and the Institute for Policy Studies. The only voice you'll hear will be that of Congresswoman Maxine Waters, speaking about Bush, and saying:

"His message tonight will not deal honestly with the mistakes that he's made. And I believe that the latest revelations about him and his spying on American citizens - no matter how he tries to frame it - are impeachable offenses. I believe that this president is not only spying on American citizens in the way that he's describing it, but to indicate in any shape form or fashion that he's been authorized by Congress to do it on the vote that was taken after 9-11 is plain dishonest. And further to try to imply that he's supported by the Constitution of the United States is even more dishonest. And so, I think that this issue that he's been caught red-handed on is really typical of who he is, how he handles this presidency, and what his leadership is all about: spying and lying. And I think it is important for us to understand that all of the other issues that we're going to talk about today - and particularly the war in Iraq - will continue to exemplify how he has lied and misled the American public."