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Obama Lawyers Invoke “State Secrets” to Block Warrantless Spying Lawsuit April 6, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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Posted by Liliana Segura, AlterNet at 10:15 AM on April 6, 2009.

It’s not the first time Obama’s DOJ has employed the tactic so often used by the Bush administration to block accountability for government crimes.

Oops, they did it again: lawyers for Barack Obama’s Department of Justice have invoked the “state secrets” privilege to block a lawsuit seeking to reverse one of the most scandalous policies of the Bush administration.

In a motion filed in a San Francisco court on Friday, attorneys for the Obama administration moved to dismiss a challenge to the National Security Agency’s notorious warrantless wiretapping program. “The information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” DOJ lawyers argued in the 36-page brief, echoing an argument made ad nauseum by the Bush administration.

 

 

The case, Jewel v. NSA, was filed in September of 2008 on behalf of five AT&T customers “to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records,” according to the Electronic Frontier Foundation, the civil liberties organization that brought forth the suit. “Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.”

Klein, the whistleblower who blew the lid off AT&T’s participation in the NSA spying program, was an employee at AT&T for 22 years but showed no qualms about exposing the company. “If they’ve done something massively illegal and unconstitutional — well, they should suffer the consequences,” Klein told the Washington Post in 2007. Teaming up with EFF, Klein has played a critical role in furnishing the evidence for multiple lawsuits brought against the NSA’s spying program, including Hepting v. AT&T, a class-action lawsuit against AT&T itself. (That case was brought forth in 2006, before Congress passed legislation granting immunity to telecoms that participated in the government’s warrantless wiretapping program.)

Although Jewel v. NSA is not a lawsuit against AT&T, the DOJ’s court motion displays its full support for the company. “All of plaintiffs’ claims require the disclosure of whether or not AT&T assisted the Government in alleged intelligence activities, and the (Director of National Intelligence) again has demonstrated that disclosure of whether the NSA has an intelligence relationship with a particular private company would also cause exceptional harm to national security”

It may have been fantasy to imagine that the Obama DOJ would allow AT&T — whose corporate logo graced the official goody bags at the Democratic National Convention this summer — to be at all vulnerable to litigation for its role in the warrantless wiretapping scheme, particularly after Obama himself cast a vote for telecom immunity. But its invoking of the state secrets privilege is a disturbing move — particularly because it is not the first time it has done so.

 

 

On Monday EFF sent out a press release condemning the Obama administration’s use of state secrets privilege to conceal the government’s criminal activity. “President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties,” Senior Staff Attorney Kevin Bankston said in a written statement. “But with the Obama Justice Department continuing the Bush administration’s cover-up of the National Security Agency’s dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a ‘secret’ that cannot be reviewed by the courts, it feels like deja vu all over again.”

Why is the Obama Administration Protecting Bush Officials?

Over e-mail, Cindy Cohn, legal director of EFF, called the legal filing by Obama’s DOJ “very significant.” “Obama is attempting to block the courts from considering serious constitutional issues raised in this case entirely,” she said. “This is the sort of disdain for the rule of law and the role of the courts that he campaigned against.”

 

 

Cohn added, “It’s also a continuation of the outrageous secrecy claims that Bush was criticized for — after all, the warrantless wiretapping is hardly a secret. We presented a box of Congressional testimony, Congressional admissions, news stories, and even a few books to the court describing it. The argument that this is still a secret really strains belief.”

 

 

Jewel v. NSA is not just a lawsuit against the NSA. It is also a lawsuit against the individuals who created the government’s spying program, including George W. Bush and his senior staff.

 

 

As Raw Story’s John Byrne points out, “in attempting to block a San Fransisco court from reviewing documents relating to the NSA program, the Obama Administration is also protecting other individuals named as defendants in the suit: Vice President Dick Cheney, former Cheney chief of staff David Addington and former Bush Attorney General Alberto Gonzales.” These, of course, are the same individuals many Americans would like to see prosecuted for their role in implementing the government’s “harsh interrogation” policies. But on the question of torture, the Obama administration has shown no inclination to bring former Bush officials to account.

Quite the opposite. In February Obama lawyers used the same “state secrets” tactic to block a lawsuit brought by the ACLU on behalf of five victims of extraordinary rendition — the CIA’s famed kidnap and torture program. “This case cannot be litigated,” Department of Justice lawyer Douglas Letter declared on February 9th, arguing that the case, Mohamed et al. v. Jeppesen Dataplan, should be thrown out. “The judges shouldn’t play with fire in this national security situation.”

ACLU director Anthony Romero decried the move. “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government.”

 

 

Now, warrantless spying can be added to the list.

 

 

“In our case we have no reason to believe that the warrantless wiretapping has ended,” said Cohn, “so at some point we have to call it Obama’s warrantless wiretapping.”

Liliana Segura is a staff writer and editor of AlterNet’s Rights and Liberties and War on Iraq Special Coverage.

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Obama’s Black Widow December 25, 2008

Posted by rogerhollander in Barack Obama, George W. Bush.
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Thanks to Bush and Obama, the National Security Agency now knows more about you

By Nat Hentoff, the Village Voice

Tuesday, December 23rd 2008

Barack Obama will be in charge of the biggest domestic and international spying operation in history. Its prime engine is the National Security Agency (NSA)—located and guarded at Fort Meade, Maryland, about 10 miles northeast of Washington, D.C. A brief glimpse of its ever-expanding capacity was provided on October 26 by The Baltimore Sun’s national security correspondent, David Wood: “The NSA’s colossal Cray supercomputer, code-named the ‘Black Widow,’ scans millions of domestic and international phone calls and e-mails every hour. . . . The Black Widow, performing hundreds of trillions of calculations per second, searches through and reassembles key words and patterns, across many languages.”

In July, George W. Bush signed into law the FISA Amendments Act of 2008, which gives the NSA even more power to look for patterns that suggest terrorism links in Americans’ telephone and Internet communications.

The ACLU immediately filed a lawsuit on free speech and privacy grounds. The new Bush law provides farcical judicial supervision over the NSA and other government trackers and databasers. Although Senator Barack Obama voted for this law, dig this from the ACLU: “The government [is now permitted] to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and e-mail addresses it intends to monitor, where its surveillance targets are located, why it’s conducting the surveillance or whether it suspects any party to the communication of wrongdoing.”

This gives the word “dragnet” an especially chilling new meaning.

The ACLU’s Jameel Jaffer, director of its National Security Project, adds that the new statute, warming the cold hearts of the NSA, “implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind.”

Why did Obama vote for this eye-that-never-blinks? He’s a bright, informed guy, but he wasn’t yet the President-Elect. The cool pragmatist wanted to indicate he wasn’t radically unmindful of national security—and that his previous vow to filibuster such a bill may have been a lapse in judgment. It was.

What particularly outraged civil libertarians across the political divide was that the FISA Amendments Act gave immunity to the telecommunications corporations—which, for seven years, have been a vital part of the Bush administration’s secret wiretapping program—thereby dismissing the many court cases brought by citizens suing those companies for violating their individual constitutional liberties. This gives AT&T, Verizon, and the rest a hearty signal to go on pimping for the government.

That’s OK with the Obama administration? Please tell us, Mr. President.

Some of us began to see how deeply and intricately the telecoms were involved in the NSA’s spying when—as part of an Electronic Frontier Foundation lawsuit—it was revealed by a former AT&T technician, Mark Klein, that he had found a secret AT&T room in which the NSA was tapping into the telecom giant’s fiber-optic cables. On National Public Radio on November 7, 2007, he disclosed: “It’s not just AT&T’s traffic going through these cables, because these cables connected AT&T’s network with other networks like Sprint, Qwest [the one firm that refused to play ball with the government], Global Crossing, UUNet, etc.”

What you should know is that these fruitful cables go through “a splitter” that, as Klein describes, “just copies the entire data without any selection going on. So it’s a complete copy of the data stream.”

Under the new FISA Amendments Act, there are no limits on where this stream of data can be disseminated. As in the past, but now with “legal” protection under the 2008 statute, your suspicious “patterns” can go to the FBI, Homeland Security, the CIA, and state and local police that are also involved in “fusion centers” with the FBI.

Consider the enormous and bottomless databases that the government—and its NSA—can have a ball with. In James Bamford’s The Shadow Factory (Doubleday)—a new book that leads you as far as anyone has gone into the bowels of the NSA—he notes: “For decades, AT&T and much of the rest of the telecommunications industry have had a very secret, very cozy relationship with the NSA.” In AT&T’s case, he points out, “its international voice service carried more than 18 billion minutes per year, reaching 240 countries, linking 400 carriers, and offering remote access via 19,500 points of presence in 149 countries around the globe.”

Voilá! Also, he notes: “Much of those communications passed through that secret AT&T room that Klein found on Folsom Street in downtown San Francisco.”

There’s a lot more to come that we don’t know about. Yet. In The Shadow Factory, James Bamford quotes Bush’s Director of National Intelligence Mike McConnell as saying that this wiretapping program was and is “only one program of many highly secret programs approved by Bush following the attacks on 9/11″ (emphasis added). McConnell also said of the NSA’s nonstop wiretapping: “This is the only aspect of those various activities whose existence has officially been acknowledged.”

Come on, Mike. Bush acknowledged the NSA’s flagrant contempt of the First and Fourth amendments only after The New York Times broke the story in December 2005. When the Times executive editor, Bill Keller, first decided to hold the explosive story for a year, General Michael Hayden—the former head of the NSA who is currently running the CIA—was relieved because he didn’t want the news to get out that “most international communications pass through [these telecommunications] ‘switching,’ ” Bamford reports. It would blow the cover off those corporate communicators. Now, AT&T, Verizon, et al., don’t have to worry, thanks to the new law.

There are increasing calls, inside and outside of Congress, for President Obama to urge investigations by an independently bipartisan commission—akin to the 9/11 Commission—to get deeply into the many American and international laws so regally broken by Bush and his strutting team.

But there is so much still to find out about the NSA’s “many highly secret programs” that a separate commission is sorely needed to probe exclusively into the past and ongoing actions of the Black Widow and other NSA lawless intrusions into our privacy and ideas.

President Obama could atone for his vote that supported the FISA Amendments Act of 2008 by appointing such a bipartisan commission composed of technology experts who are also familiar with the Constitution.

Bamford says that the insatiable NSA is “developing an artificial intelligence system designed to know what people are thinking.” Here come the thought police!

Nat Hentoff: What Obama Doesn’t Know December 18, 2008

Posted by rogerhollander in Barack Obama, George W. Bush.
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Much has been hidden from the new president by the Bush team

Nat Hentoff, Village Voice

December 18, 2008

No presidential transition team in recent history has ranged as widely as Barack Obama’s in its attempt to find out what minefields he may be walking into. For example,The Washington Post notes, 10 teams of 135 explorers, wearing yellow badges, have descended on dozens of Bush administration offices and agencies to look into their programs, policies, and records.

However, I keep remembering a dark warning to the successors of the Bush-Cheney legacy in a January 3 letter to The New York Times by Arthur Gunther of Blauvelt, New York: “Mr. Bush and Mr. Cheney have so deeply embedded tacit approval for illegal acts in government agencies that wrongdoing by their philosophical sympathizers will continue in shadow operations for years to come.”

How many of those shadow sympathizers will remain deep in the CIA, the FBI, Homeland Security—and, as I shall later emphasize, in the omnivorous National Security Agency, with its creatively designed submarine that, on the bottom of the ocean floor, will be tapping into foreign cables carrying overseas communications, including those of Americans?
 

Will the Obama sleuths be able to peer into plans of the military Special Operations forces around the world, whose SWAT-style moves can quickly inflame even our allies? Covertly authorized four years ago by Donald Rumsfeld, these warriors are empowered to attack secretly any apparent terrorist venture, anywhere. No press allowed.

Will the new president, cognizant of the proliferation of retaliatory nuclear arms, presumably among our enemies, insist on signing off on each of those Special Operations forays?

Back at home, will President Obama order the countermanding of the FBI’s return to the unbounded surveillance practices of J. Edgar Hoover? In an order implemented as recently as this December—by FBI Director Robert Mueller (who says he’d like to stay on) and Attorney General Michael Mukasey—the FBI can start an investigation without requiring any evidence of wrongdoing. That is not change we can believe in.

Among many Obama voters, much optimism is created when he pledges that we will not torture. But even if he makes his intent official, emphasizes Mark Kukis (Time, December 8), “the Executive Order would have to be sweeping and reach deep into the government’s darker recesses. That’s because the Bush team has written so many legal memos okaying various techniques for interrogators working at a wide range of agencies [not just the CIA]. Some of these opinions have been disclosed publicly, but an unknown number remain classified.”

It will be up to the new Attorney General, Eric Holder—not a notably passionate constitutionalist in his previous role in the Justice Department—to, as Kukis adds, “issue new legal guidance that supersedes all those legal opinions, seen or unseen, if he hopes to prevent a return to such practices in the future” (emphasis added).

So, keep an eye on Mr. Holder. And if he does bury those John Yoo–style torture memos and other (and, here, I use the term loosely) “legal opinions,” Holder should be tasked by the president to reveal what they permitted.

For a long time, Senate Judiciary chairman Pat Leahy, a Democrat, and leading Republican member Arlen Specter have been trying to get those deeply hidden authorizations for war crimes that contradicted the broken-record insistence (”We do not torture!”) of George W. Bush and Condoleezza Rice.

Of all our intelligence agencies, the most unabashedly un-American is the NSA, because it has the continually expanding technological resources to make George Orwell’s Big Brother look like a cantankerous infant. No American president has come close to reining in the NSA, let alone bringing its officials up on charges of murdering our Fourth Amendment privacy rights.

In case you’ve forgotten, those specific constitutional protections were a result of the general searches conducted by British soldiers that turned American colonists’ homes and offices upside down. NSA’s eavesdropping on our phones and Internet activities have largely destroyed some of our rights as mentioned in the Constitution: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued but on probable cause. . . .” (Computers and the Internet are now included.)

Of all the investigators of the formidably guarded privacy of the NSA, the most feared by these omnipresent spies is James Bamford, who for years has been penetrating their secrets in his books—Body of SecretsThe Puzzle Palace, etc. This year, he’s gone much deeper into that bottomless cavern than ever before, in The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America (Doubleday). I hope President Obama reads this book himself and demands that his intelligence directors also plumb it and give him their reactions—or better yet, their confessions of complicity with NSA.

There will be more on the “Shadow Factory” next week, as well as on Senator Obama’s startling (to me) vote for the FISA (Foreign Intelligence Surveillance Act) Amendments of 2008—after he had insisted he would filibuster against its passage. In view of the sweeping spying powers that this law, championed by George W. Bush, provides the NSA, will President Obama be a dependable restorer of at least some of our privacy rights?

John McCain, of course, would not have been.

Bamford ends his new book by bringing back one of my Bill of Rights heroes, the late Senator Frank Church of Idaho, whose Senate investigating committee, during the 1970s, first uncovered the frightening range and depth of NSA’s spying on us. “That capability,” said Church, “at any time could be turned around on the American people, and no American would have any privacy left, such [is the NSA’s] capability to monitor everything. . . . There would be no place to hide. . . . If this government ever became a tyranny . . . the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because resistance . . . is within the reach of the government to know.”

After quoting that warning from Frank Church, Bamford ends: “There is now the capacity to make tyranny total in America. Only law ensures that we never fall into that abyss—the abyss from which there is no return.” Are you listening, President Obama?