S/SW blog philosophy -

I credit favorite writers and public opinion makers.

A lifelong Democrat, my comments on Congress, the judiciary and the presidency are regular features.

My observations and commentary are on people and events in politics that affect the USA or the rest of the world, and stand for the interests of peace, security and justice.

Sunday, March 15, 2009

What's happening with FISA?


We know it started with the T.S.P. -- The existence of the Terrorist Surveillance Program was acknowledged by President Bush in 2005. It was an illegal program because it operated outside of the authorization of Foreign Intelligence Surveillance Act (FISA) court warrants to do foreign intelligence gathering from mass communications within the U.S. To quote Wired - Threat Level:

It authorized the NSA to intercept, without warrants, international communications to or from the United States that the government reasonably believed involved a member or agent of al-Qaeda, or affiliated terrorist organization. Congress authorized such spying activity in July as part of the immunity legislation.

T.S.P. revealed by NYT -- Many of us have been following this story for years, actually ever since the Terrorist Surveillance Program was revealed by the New York Times on December 13 of 2005. After a couple of years I began to discover bloggers who were dedicated to learning and revealing all they could about these ongoing issues. Wired is a blog does great investigative reporting in the civil liberties field. There are several others upon which I came to regularly rely, to learn most definitively what is happening in the constitutional arena. They include Firedoglake's emptywheel, the ACLU blog, and my favorite,'s Glenn Greenwald.

Where is the Constitution? It is one of his posts early this month that provides much of the best argument against the Obama administration's actions that are counter to the Fourth Amendment protections of the Constitution. From 2/28/09, it is titled "Obama's efforts to block a judicial ruling on Bush's illegal eavesdropping." Glenn [begins regarding the Jeppesen case],

But it's now safe to say that far worse is the Obama DOJ's conduct in the Al-Haramain case -- the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush's NSA warrantless eavesdropping program.

[and Glenn concludes:] Ultimately, the real question is not whether you think Obama will use these powers the same way Bush did (nobody can know that), but rather: do you want the secrecy and detention architecture built by George Bush, Dick Cheney and David Addington to remain in place so that -- even if it remains dormant now -- Obama or some future President can decide at any time to revitalize and use it at will? Thus far, Obama's answer to that question seems to be a resounding "yes."

2009 sees no change at DOJ --It began to be clear to many civil libertarians that the Obama administration might side with the some of legal arguments of the previous administration when they went into court on Feb. 25 to support granting immunity to the telecommunications companies being sued by the Electronic Frontier Foundation in the 9th Circuit court of Judge Vaughn Walker. To quote:

Obama opposed immunity but voted for it because it was included in a new spy bill that gave the U.S. presidency broad, warrantless-surveillance powers. Justice Department spokesman Matthew Miller said in a statement that the immunity bill "is the law of the land, and as such the Department of Justice defends it in court."

Congress crafted the bill after Walker refused to dismiss separate challenges brought by EFF accusing the nation's telecoms of violating the rights of millions of Americans for allegedly funneling electronic communications to the National Security Agency without warrants.

. . . The EFF claims Congress was prohibited from legalizing what the EFF termed was unconstitutional activity by the telecommunication companies. The government claimed immunity was necessary (.pdf) because the spying allegations threatened to expose state secrets.

OLC memos released --As background, on March 2, the Attorney General, Eric Holder released a number of secret OLC memos detailing what Bush administration could legally do following the attacks on 9/11. At Firedoglake, "looseheadprop" began laying out the questions emerging as people began to pour over the newly released memos: "Rule of Law vs. Just Gut FISA: Newly Released OLC Opinions Reveal Possible Early Tension within Bush DOJ." The tension could have been, the author postulates, between David Kris (now set to be in the Obama DOJ), and the unitary executive types such as John Yoo. And, as Ryan Singel of Wired put it a couple of days later, "known unknowns remain." The post provides very useful lists of information about what we have still to learn. To quote:

There are now 61 known Bush Administration OLC opinions relating to domestic spying, torture, rendition and detention, according to the ACLU's latest tally (.pdf). Most are still unpublished.

On Monday, we learned that for nearly seven years the Bush Administration operated under the theory that the military could be deployed domestically to interrogate, detain, raid and spy on Americans, without having to heed the Bill of Rights protections.

FISA after 9/11 --As further background to the current situation, a post named "The FISA Dance in the wake of 9/11," also by emptywheel (3/4/09), illuminates how the Fourth Amendment was systematically nullified by the Bush administration shortly after 9/11/01. It explains how the President, his Office of Legal Council, and Congress circumvented the Foreign Intelligence Surveillance Act to grant authority for the U.S. military (in its surveillance mode) to operate in the United States without the authorization of Congress or any court. The piece included a great timeline that clarifies the sequence of what happened during those few weeks in the fall of 2001.

Judge Walker's decision --According to emptywheel (written on 3/10/09), the statute of limitations on former President George W. Bush's March 11, 2004 illegal wiretapping expires today. This means that the alleged illegal government (al Haramain case) wiretap charges, now in contention in a set of consolidated cases in Judge Vaughn Walker's 9th Circuit court, may be moot. To quote:

Congratulations George Bush, Dick Cheney, David Addington, and Alberto Gonzales! With your stonewalling and delay, you appear to have avoided legal consequences for this particular crime committed while in office. You have deliberately violated a law designed to check presidential abuse of power, and Mukasey and Congress and Obama have let you get away with it.

9th Circuit ruling --More recently (3/14/09), emptywheel discussed a new government motion to dismiss a similar case, McMurray vs. Verizon. The post also examined the Takings Clause argument against which the government must defend itself, in the very liberal 9th Circuit Court in San Francisco. Judge Walker's decision is still pending for all the reasons explained in the above two excerpts. The post asserts that "Obama becomes Bush as we wait for Walker's ruling."

See also Behind the Links, for further info on this subject.

Carol Gee - Online Universe is the all-in-one home page for all my websites.

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