Bush's FISA Duck and Cover

Just like the Torture Bill pardoned his tortures, Bush wants FISA law changed to cover his illegal spying


The recent Sixth Circuit court dismissed an ACLU wiretapping suit on the bizarre, Kafkaesque grounds that the organization couldn't sue because they couldn't prove they had been harmed. Even though the records which could answer the question remain classified, the court ruled that a “reasonable expectation” their organization's name would be found in the domestic warrantless surveillance program's target lists didn't give them enough 'standing' to claim injury and advance their lawsuit.

It's not just the ACLU who has reason to believe their communications were intercepted by the NSA. The intelligence agency was running a 'data-mining' program under the authorization of a presidential order signed by Bush in 2002. For three years, without informing Congress, Bush and the NSA had been monitoring telephone calls and e-mail messages of thousands of United States citizens without warrants.

The sixth Circuit's ruling, while stifling ACLU attempts to crack the domestic spying program open for inspection, did not get as far as deciding the issue of whether the program had actually violated the FISA Act; or ruled on it's constitutionality under the First and Fourth Amendments. The reason Bush is so eager to have Congress pass a series of accommodations to the Justice Dept's exercise of the surveillance law is to preempt any other challenge which might force them to end the practice.

More important to the Bush administration is to have Congress join them in codifying their warrantless spying by merely agreeing to modify it; instead of pressing forward with their determination that Bush actually broke the law they already had in place. In his radio address today, Bush complains that the FISA law he ignored for the three years he was sneaking around it, is "out of date," despite his neglect in saying anything at all to Congress in that period about 'updating' it.

He preferred, instead, to hide his actions from Congress and the American people; even today with his continued refusal to provide the public (or Congress) with the knowledge of which of our citizens' private communications was subject to NSA intercepts.

Bush's sudden interest in pressing Congress to pass his FISA revisions "before they leave town," has to also be seen as an attempted insulation of his embattled Attorney General, Alberto Gonzales. Repeatedly forced into perjurious contradictions as he's defended Bush's surveillance programs before congressional committees, Congress is demanding Gonzales explain his previous testimony that his late-night dash with the FBI chief into Ashcroft's intensive care ward in 2004 had nothing to do with the data mining operation. Democrats are especially interested in FBI Director Mueller's testimony this week, in which he clearly contradicted Gonzales, saying that the conversation at Ashcroft's bedside was, in fact, all about the "much discussed" surveillance program.

Bush quoted Mike McConnell, the Director of National Intelligence, in his address, as he complained of being "significantly burdened" because Congress hasn't given him the absolution he demands from the legal restraints on the president has already ignored. While giving lip-service to 'civil liberties' and 'privacy' interests, one of the provisions Bush mentioned would change the law to allow them to "work more efficiently with private-sector entities like communications providers" -- much like the administration did when they secretly conspired with nation's telecommunications giants to get them to the point where they could manipulate the transmissions so that their intercepts would be technically legal.

Today's report in the NYT, quoting 'current and former officials' who witnessed a near mutiny over the data-mining program in it's inception, suggests a spying effort which was even larger than previously disclosed. Despite the vain, transparent attempt by the paper to provide Gonzales cover by suggesting the existence of some other program Mueller could have been referring to -- parsing the difference between 'eavesdropping' and 'data-mining' -- there should be no question that the entire effort by the administration was to subvert the requirements of the FISA, especially the warrants.

On July 26, Senate Judiciary Committee Chairman Patrick Leahy sent a letter to Gonzales giving him a chance to avoid perjuring himself further, giving him an August 3 deadline to change his tune. But it looks like the WH is intent on standing their ground on their convoluted explanation that Mueller couldn't have contradicted Gonzales because, in doing so, he would have to reveal national security secrets; so desperate to avoid having their their tacky, despicable attempt to steamroll the sedated Ashcroft devolve into a full-blown perjury investigation that they were willing to (partially) reveal yet another one of their illegally operated, domestic spying schemes.

It just makes sense that, before we even consider allowing this administration (or any other) to unravel the protections provided under the Foreign Intelligence Surveillance Act , that we demand and ensure -- through the courts as well as in the legislature -- that there is enough of an incentive to comply by tightening review and enforcement provisions. At the very least, we should continue to demand that this administration be held accountable in court for the FISA laws (and others) they've already admitted breaking.


http://journals.democraticunderground.com/bigtree

And it unfortunately detracts from the more meritorious points in the article.

Before any court can hear a case it must first address the issue of jurisdiction, i.e., "standing". Without jurisdicition, a court has no legal power/authority to hear a case. A case must be "ripe" and involve "real parties in interest". In order to qualify, there must be someone who has already suffered actual harm which has not yet been redressed. Speculative injury, even cloaked in the phrase "reasonable expectation" of harm does not suffice.

The ACLU knows this, and should have found a real plaintiff to represent instead of representing themselves as nothing more than a "potential target". I don't get it. The ACLU is generally better than that. They knew or should have known they'd never get past the initial jurisidictional issues.

So when this article begins by saying the suit was "dismissed... on the bizarre, Kafkaesque grounds that the organization couldn't sue because they couldn't prove they had been harmed" it detracts from and undermines all the valid points it makes later on in the article.

Such tactics and language undermine legitimate efforts to right the criminal cabal's wrongs.

or tell constitutional scholar Bruce Fein, who called it an 'Orwellian opinion' : http://washingtontimes.com/article/20070710/COMMENTARY02/107100011/1012/COMMENTARY

Remember the government's spying on the likes of John Lennon, Charlie Chaplin and Albert Einstein. Moreover, whereas FISA requires the government to destroy intercepted communications that prove innocuous, the WSP lacks any corresponding obligation enforceable by the judiciary. Finally, the NSA had been hijacked for nonforeign intelligence purposes prior to enactment of FISA as unearthed by the so-called "Church Committee" of the U.S. Senate.

The plaintiffs in ACLU included journalists, academics and lawyers who routinely communicate with persons overseas. They claimed a well-founded fear that their e-mails and phone calls abroad would be illegally intercepted by the NSA with no controls on the dissemination of the contents of their communications. Thus, they were compelled to desist to protect their communications privacy against indiscriminate government snooping — a concrete injury in the eyes of both FISA and the Fourth Amendment's prohibition on unreasonable searches. Both honor the individual right to be left alone, the right most treasured by civilized people.

The plaintiffs were unable to claim to a certainty they had been targeted under the WSP because the NSA keeps its targets confidential under the state secrets doctrine. But based on the public record, the plaintiffs reasonably feared that their communications would be illegally intercepted, retained and disseminated by the NSA.

In sum, only an ingenue or fool would believe the WSP targets only known terrorists and confines the dissemination of intercepted communications it intercepts to national security purposes.

Judge Batchelder, nevertheless, scoffed at the plaintiffs' apprehension that they would become spy targets: "First, there is no evidence in the record from which to presume that the information collected by the NSA via warrantless wiretapping will be used or disclosed for any purpose other than national security. Next, there is no evidence in the record from which to presume that the information collected by the NSA is not complying with, or even exceeding, FISA's restrictions on the acquisition, retention, use, or disclosure of this information (i.e., FISA's minimization techniques.)"

In other words, according to Judge Batchelder, President Bush may have resorted to the WSP to impose new and more exacting limits on collecting foreign intelligence because he believed FISA's constraints were too anemic. And as to fearing the NSA's misuse of information, she insisted the plaintiffs were out of luck because the government's state secrets privilege blocked them from discovering evidence of misuse or its probability. The law presumes President Bush and his spies are angels. Evidence to the contrary will not be entertained unless volunteered by the White House.


from the ACLU:

It's been a year and a half since we first found out that our own government has been tapping our phones and reading our e-mails. In that year and a half, the Senate Judiciary Committee has asked the Bush Administration nine times for information about the NSA's illegal spying. On June 27, the Senate Judiciary Committee issued subpoenas to the White House, Vice President and the Justice Department for documents about this warrantless surveillance program. The deadline for compliance was July 18. It is high time we found out how our privacy was violated and whether our private information has been used against us.

The decision "insulates the Bush administration’s warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails," said ACLU Legal Director Steve Shapiro. He added the ruling "did not uphold the legality of the government’s warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful."

the ACLU's claims about the standing issue.

from Why the News Media Sucks: http://mickarran.com/2007/07/07/the-6th-district-wiretapping-decision/

1. A Mayor announces publicly that he’s given himself the right to walk into any house in town and go through anybody’s personal effects, without permission from either them or a court, if he thinks they might be involved in criminal activity.

2. A number of prominent members of the Mayor’s opposition, along with critics of his policies, notice shortly thereafter that someone broke into their homes and searched them. They call the police.

3. The police investigate but when the homeowners try to find out what the evidence shows, they discover that the Mayor has declared the evidence “secret” on the grounds that releasing it might tip his hand to criminals, and he refuses to allow it to be seen by anyone except himself, select members of his re-election team, and police officers loyal to him.

4. The homeowners bring suit against the Mayor on the grounds that they have “a reasonable expectation” that the Mayor was the one who broke into their homes, seeing as how he announced that’s what he planned to do, and ask the court to declare the Mayor’s assumption of such powers to be illegal - which, absent the Mayor’s solo declaration that it isn’t, it is.

5. The Judge agrees with them, but when the Mayor appeals to the City Superior Court - where, of the three judges, two are loyalists of his party and one of them was appointed by him - the Superior Court overturns the Judge’s ruling because the plaintiffs can’t prove it was the Mayor (what with the evidence being locked up and all) and therefore “have no standing” - ie, they can’t prove that a) “they were harmed”, or b) the Mayor was the one who did it.

That’s essentially what just happened in the 6th District Court of Appeals over the ACLU’s wiretapping suit.

In a split decision, two Reaganite judges, one of them appointed to the 6th Circuit by Bush, dismissed the ACLU suit on the grounds that, even if they were in fact wiretapped by a Federal agency, the plaintiffs couldn’t prove they’d been harmed by it or who had done it. They couldn’t even prove it had been done because the wiretapping records are “national secrets”. “A reasonable expectation” - the grounds on which the Detroit judge found in their favor - was not enough.

more: http://mickarran.com/2007/07/07/the-6th-district-wiretapping-decision/

My first post was merely a response to the OP as written.

If in fact the ACLU can prove it was wiretapped without a warrant, and alleges such in its complaint, it has set forth grounds to satisfy the standing hurdle, because that's a violation of the ACLU's Fourth Amendment rights against unreasonable searches and seizures (unreasonable because they were warrantless) and such a privacy violation constitutes "actual harm" as a matter of law. The court was clearly wrong to rule otherwise.

July 29, 2007 at 10:31:49

Bush's FISA Duck and Cover

by Ron Fullwood