Sunday, May 21, 2006

Big Brother Is (Illegally) Watching You Much More Extensively Than Previously Thought

'Data Mining' of Phone Records Without Court Approval Violates At Least Two Federal Laws -- And the Fourth Amendment. Meanwhile, the White House Appears to be Girding for a Constitutional Showdown With Congress, the Courts and the News Media

(Updated 7:30 a.m. EDT Wednesday, May 23, 2006)

By Skeeter Sanders


As Air Force General Michael Hayden, President Bush's nominee to head the Central Intelligence Agency, insisted at his Senate confirmation hearing last week that the Bush administration's controversial warrantless surveillance program was legal, new revelations emerged that Big Brother is watching you without court approval far more extensively than previously thought.

And, contrary to Hayden's claims, none of it is legal. Because it is being conducted without court approval, the program, in fact, violates at least two federal statutes -- not to mention the Fourth Amendment of the U.S. Constitution.

And it now appears that the Bush administration is girding for a constitutional confrontation with the courts, the Congress and the news media over its national security policies.

The Justice Department acknowledged last week it secretly sought the telephone records and other documents of over 3,500 people last year under a provision of the USA Patriot Act that does not require judicial oversight.

At the same time, the FBI acknowledged that it is increasingly seeking journalists' telephone records in its ongoing investigations aimed at finding out who has been leaking information to reporters in the scandal surrounding the outing of CIA operative Valerie Plame.

Records Sought Under "National Security Letters"


The telephone records were sought with the use of what are known as "national security letters," or NSLs, which can be signed by an FBI agent and, according to the agency, are issued for use only in terrorism cases. The letters require telephone companies to keep secret even the existence of the request for records.

Assistant Attorney General William Moschella told Congress last month that over 9,200 NSLs were issued in 2005, involving more than 3,500 people.

ABC News, citing federal law-enforcement sources, reported last Tuesday that the NSLs are being used to obtain the telephone records of reporters at the TV network, The New York Times, The Washington Post and other news organizations in an attempt to learn the identities of confidential sources who may have provided classified information.

Gonzales: Reporters, News Organizations May Face Prosecution

Attorney General Alberto Gonzales said Sunday that the federal government "appears to have the authority" to prosecute journalists or the news organizations they work for over the publication or broadcasting of classified information -- an action that, if carried out, would likely set off the most serious constitutional confrontation between the government and the news media since the Nixon era.

The Justice Department is also investigating to find out who disclosed the government's secret domestic surveillance program to The Times, which broke the story in December.

"There are some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility," Gonzales said told ABC's This Week when asked if the government could prosecute journalists for making public classified information.

Gonzales did not rule out prosecuting The Times or its reporters for publishing the leak. "We are engaged now in an investigation about what would be the appropriate course of action in that particular case, so I'm not going to talk about it specifically," Gonzales said.

Media Likely to Fight Back With First Amendment Lawsuits if Prosecuted

Legal scholars say that even if the plain language of the Patriot Act and other national-security laws could be read to apply to journalists, Congress never intended those laws to apply to the news organizations they work for.

In any event, these scholars warn, prosecuting reporters -- and their news organizations -- over publication or broadcasting of classified information would surely trigger an all-out legal battle between the Bush administration and the news media.

While reporters can themselves be prosecuted over obtaining classified material, prosecuting news organizations institutionally for publishing or broadcasting such material would almost certainly be challenged by the news organizations with lawsuits accusing the government of violating their First Amendment right to freedom of the press.

Gonzales said that the administration "promotes and respects the rights of a free press" that are protected under the First Amendment. "But it can't be the case that [freedom of the press] trumps over the right that Americans would like to see -- the ability of the federal government to go after criminal activity," he said. "And so those two principles have to be accommodated."

There was no immediate comment Sunday from The Times, which fought -- and won -- a First Amendment court battle with the Nixon administration in 1971 over its publication of a previously-secret archive of documents relating to the Vietnam War that came to be known as the Pentagon Papers.

The Nixon White House sued the newspaper to block publication of the documents, saying that their publication would damage national security. The Times immediately challenged the constitutionality of the government's lawsuit, charging the administration with attempting an unlawful "prior restraint" on its First Amendment right to publish the archive.

The newspaper cited the fact that the Pentagon Papers were of an historical nature showing how the U.S. went to war in Vietnam in the early 1960s under then-President Lyndon Johnson.

The Supreme Court, by a vote of 6-3, ruled in favor of The Times. In the 35 years since the Pentagon Papers case, no administration has even contemplated prosecuting the news media for making classified documents public -- until now.

A Clash Between Laws: National Security Vs. Privacy Protection

The FBI says its request for reporters' phone records are made in compliance with the Patriot Act. But this section of the anti-terrorism law stands in direct conflict with the Electronic Communications Privacy Act of 1985 (ECPA), which bars telephone companies from turning over records of their customers' calls to the government unless they're served with a subpoena issued by either a court or by Congress.

In addition, Section 2709 of the Patriot Act, which allowed the FBI to issue NSLs to Internet service providers ordering them to disclose records about their customers, was ruled unconstitutional last year under the First (and possibly Fourth) Amendments by a federal appeals court. To date, the government has not appealed that ruling to the Supreme Court.

USA Today reported on May 11 that three of the nation's largest phone companies -- AT&T;, Verizon and BellSouth -- provided the NSA with the telephone records of millions of their customers, even though the super-secret agency did not serve the companies with court subpoenas. All three companies denied the report -- with BellSouth demanding that the newspaper publish a retraction.

It will be some time before the truth or falsity of the USA Today report is finally made clear. One thing is certain, however: If the report turns out to be true, then the phone companies would be held liable for violating the ECPA.

Suit Filed Against AT&T to Force NSA to Get Court Orders for Phone Records

Indeed, a lawsuit was filed Monday in U.S. District Court in Chicago on behalf of author Studs Terkel and other professionals that seeks to force AT&T; to comply with the ECPA and require the NSA and other government agencies to obtain court orders before it can turn over its customer phone records.

The plaintiffs, who also include a doctor and an Illinois state lawmaker, accuse the telephone giant of violating the ECPA. The lawsuit says they rely on confidentiality in their work and are worried that their clients will be less likely to telephone them if they think the government collects lists of the numbers they are calling.

The lawsuit, filed by the American Civil Liberties Union, seeks to include all Illinois AT&T customers as plaintiffs in a class action. The plaintiffs are not seeking monetary damages.

Hayden Grilled on His Running of Warrantless NSA Surveillance

"Clearly, the privacy of American citizens is a concern constantly," Hayden told the Senate Intelligence Committee at his confirmation hearing. "We always balance privacy and security."

Hayden was peppered by as many questions about the NSA -- which the four-star Air Force general headed from 1999 to 2005 -- as about his vision for the future of the CIA, whose outgoing director, Porter Goss, abruptly announced his resignation late last month after 18 tumultuous months on the job.

[The Senate Intelligence Committee voted 12-3 on Tuesday to approve Hayden's nomination and pass it on to the full Senate, which aims to have a final vote by Friday, when Goss' resignation takes effect.]

Hayden stood firm in his insistence that the NSA's program of eavesdropping without court warrants on conversations and e-mails believed by the government to involve terrorism suspects is legal.

But he steadfastly refused to comment on the USA Today report that the NSA has been keeping tabs -- again, without court approval -- on the "tens of millions" of phone calls made and received by ordinary Americans.

September 11 Attacks Forced Us to Act Fast, Hayden Says

After the terrorist attacks on September. 11, 2001, President Bush decided that there was a need for more extensive surveillance against suspected terrorists than the NSA had previously been doing, said Hayden.

He acknowledged that he decided to go ahead with the then-secret surveillance program, believing it to be both legal and necessary despite the lack of court orders. "When I had to make this personal decision in October 2001 ... the math was pretty straightforward. I could not [fail to] do this," Hayden said.

The CIA director-designate insisted the NSA surveillance program used a "probable cause" standard that made it unlikely that information about average Americans would be scrutinized.

Hayden's Claims Don't Jibe With FISA Law -- And a 1972 Supreme Court Ruling

Unfortunately for Hayden -- as well as for his boss, the president -- there's one big problem with his claim that the NSA surveillance is legal: Under the 1978 Foreign Intelligence Surveillance Act, the government must obtain a court order before it can initiate such electronic eavesdropping.

That was the clear will of Congress when it passed the law establishing the Foreign Intelligence Surveillance Court in the wake of a major scandal of widespread abuses of power by the CIA and other intelligence agencies during the Nixon era.

Nor does the program comply with a unanimous 1972 U.S. Supreme Court ruling that it is unconstitutional under the Fourth Amendment's ban on unreasonable searches and seizures for the government to initiate eavesdropping, for national security purposes, on the private electronic communications of American citizens on U.S. soil without prior judicial approval (Read my January 22, 2006 blog article, "Bush to Americans: You have No Privacy").

Administration Is Crossing a Constitutional Line It Should Not Cross

The Bush administration has been arguing for months that it has the authority under the Patriot Act to initiate eavesdropping without court orders -- an argument that many constitutional experts and members of Congress, Republican and Democrat alike, hotly dispute.

To date, the White House has not furnished any solid legal evidence to justify its claim, even as it fights two other lawsuits filed against it.

The administration has responded to the lawsuits by filing motions to dismiss them, saying they threaten to divulge state secrets and jeopardize national security.

And in an argument sure to raise eyebrows at the Supreme Court, the administration also says in its motions that the courts cannot decide the constitutionality of the president's asserted wartime powers to eavesdrop on Americans without warrants.

The administration already has quashed an internal Justice Department investigation into the program by refusing to grant the department's investigators security clearances.

The administration's arguments against judicial review, however, raises the issue of the constitutional separation of powers between the executive and judicial branches of government.
It is a stretch to say that the courts have no authority to review a president's wartime powers -- especially when those powers are used in a manner that is constitutionally suspect.

Then there's the third branch of government: Congress. If the Democrats recapture control of even just one house of Congress in next November's election, the administration would almost certainly face a myriad of congressional probes.

House Minority Leader Nancy Pelosi (D-California) already has vowed that if her party takes back the House, it will not hesitate to exercise its investigative powers -- including the power to issue subpoenas -- to "get to the truth" of, among other things, how and why the Bush administration led the U.S. to war in Iraq.

And the congressional probes, if they do take place, surely won't stop there. The warrantless NSA eavesdropping program, the CIA leak scandal, the treatment of terrorist suspects at Guantanamo Bay and Iraq's Abu Ghraib prison and the administration's response to Hurricane Katrina are also likely to be investigated.

Clash Between Capitol Hill and White House Looms Over FBI Raid on Congressman's Office

In a related development, the FBI's raid on a congressman's office set off an angry reaction on Capitol Hill Tuesday, with House GOP leaders protesting to President Bush and predicting a constitutional showdown in the Supreme Court.

Lawmakers predict this may be the beginning a long dispute over the FBI's search of Rep. William Jefferson's Capitol Hill office last weekend. Historians say it was the first raid of a representative's quarters in the 219-year history of the nation's legislature.

Although Jefferson, who represents Louisiana, is a Democrat, House Speaker Dennis Hastert (R-Illinois) was so angry over the raid that he vehemently protested to Bush about the FBI's conduct.

"My opinion is that they took the wrong path," Hastert said of the FBI, after meeting with Bush in the White House. "They need to back up, and we need to go from there."

FBI agents searched Jefferson's office in pursuit of evidence in a bribery investigation. The search warrant, signed by U.S. District Court Judge Thomas Hogan, was based on an affidavit that said agents found $90,000 in cash wrapped and stashed in the freezer of Jefferson's home.
Jefferson has not been indicted and has denied any wrongdoing.

The search brought Republican and Democratic leaders together in a rare bipartisan alliance, denouncing what they branded a breach of constitutional boundaries between the executive and legislative branches of government.

White House officials said they did not learn of the search until after it happened. They pledged to work with congressional leaders.

An Administration That Thinks It's Above the Law

As one who is old enough to remember the Nixon administration's stonewalling obstruction of the Watergate investigation, this blogger is beginning to wonder: Is the Bush administration doing the same thing Nixon did -- namely, invoking "national security" as an excuse to cover up evidence of illegal and unconstitutional activity by the government?

It's sure starting to smell like a new Watergate-style cover-up to me.

But it's far more serious than that. This administration, much more so than Nixon's, thinks that it can operate above the law and override more than two centuries' worth of legal and constitutional protections against an all-powerful, Orweillian "Big Brother" dictatorship that has no regard for the civil, constitutional and human rights of the American people.

The administration -- and its supporters -- argues that because America is at war, these measures are necessary. Excuse me, but the last time this country was at war -- the Gulf War of 1991 -- the first President Bush never authorized government spying without court orders.

In fact, when the senior Bush was CIA director under President Gerald Ford in 1976, his one-year tenure at the agency's helm was marked by a dramatic restoration of the CIA's morale and integrity after it was rocked by the abuse-of-authority scandal of the early '70s under Nixon. In 1999, the CIA headquarters building in Langley, Virginia was renamed in his honor.

What the current president has been doing -- and is doing -- in the critical area of national security and foreign policy is a disgrace to the legacy of his father. Just because this country is now at war does not give the president carte blanche to override our laws and our Constitution -- which he is bound by his oath of office "to preserve, protect and defend." Implicit in that oath is a requirement of the president to also obey the Constitution.

Benjamin Franklin said that "Those who are willing to trade their freedom in exchange for security deserve neither freedom nor security." The Bush administration, whether it realizes it or not, is destroying everything that this country stands for with its recklessness -- and in the process, is handing the enemies of democracy and freedom a victory by stooping to their level.

Wake Up, America! Pogo was right: We have indeed met the enemy, and they are us -- Namely, the people now running our government.


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Volume I, Number 26
Copyright 2006, Skeeter Sanders. All rights reserved.




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