Yesterday, a federal district court judge, Vaughn Walker, ruled the Bush era warrantless wiretap program was illegal. This was the program which side-stepped FISA (the Federal Intelligence Surveillance Act) because, according to the Bush Administration at the time, there were circumstances where the 72-hour after the fact (grandfathered) approval requirement was simply too slow (meaning, even though they could start surveillance, they somehow couldn't possibly get to a judge in 72 hours), and that it "might not be approved" even though in the 25 years or so since FISA was enacted (in part to stop the excesses of the Nixon White House which spied on US Citizens for political purposes) - well, even though in that 25 year period only 9 requests (of more than 9000) had been rejected.
Bush's claims then were so weak (when this program was found out), that despite his claims the program was legal, a friendly, Republican controlled Congress moved swiftly to change the law to give the President cover.
President Obama chose to keep this program alive, and for that, he was wrong and deserves the scorn of the American people. The program was (prior to Congress' changes) illegal, and it remained so even with them. Due process is a fundamental protection in this country.
When taken to court, both Bush and Obama have attempted to circumvent constitutional challenges by compounding their error (crime) in claiming any review would reveal state secrets. Such a claim was laughable on its face, the FISA judges were already holders of security clearances, and any court review would be in a closed court room, but the further point is, if you get to shield yourself behind state secrets any time you want to, you can do anything.
As Justice Walker described it, this state secrets claim represented an expansive use of the so-called state-secrets privilege amounting to "unfettered executive-branch discretion."
Unfettered, meaning without restraint, the executive branch could effectively do ANYTHING, including spying on political opponents, exactly as Nixon had done - exactly what FISA was passed to stop.
Judge Walker went further. In what is an eloquent rebuttal of the entire "you just have to trust them", "they know better than us" and "We have to make sacrifices in war time" argumentation that both characterized the Bush Administration (and its followers) and allowed for enormous grabs at liberty, Walker said that this state secrets claim had (from the StarTribune),
"obvious potential for government abuse" and that the position of the White House (Bush AND Obama) would enable government officials to flout the warrant law even though Congress had enacted it "specifically to rein in and create a jucicial check for executive-branch abuses."
In short, FISA was enacted to require the government to show cause, and both the warrantless tap program and the excessive use of state-secrets provisions were nothing short of side-step constitutional checks and balances. The Republicans spent 8 years advocating an ascendant and powerful executive branch, and they supported repeated attempts to strip Americans of basic liberties as "necessary during war time" - even though they weren't necessary, FISA gave them everything they needed. Those same "patriots" supported side-stepping constitutional checks against such abuses, and attacked media organizations like the New York Times for exposing such abuses. Nothing new I suppose, but when I hear about what patriots they are and how much they hate big government, I want to say -
If the choice is big government or Big Brother, I'll take big government seven days a week and twice on Sundays.
Candidly, I'm not surprised this was struck down - it didn't for one minute pass the sniff test. I am surprised however that Obama defended it. He, and everyone else who thought this was a good idea (both the warrantless searches and the shady practice of claiming state-secrets protection) everyone who defended that, should be ashamed.
Here here!
ReplyDeleteI completely agree that Obama should not be emulating the expansion of power / power grab for the executive branch that we witnessed in the past administration. I had hoped for the opposite from both this administration, and that congress would put up more push back than this.
There are some strange inconsistencies from the Obama White House. There is clearly an attempt to repeal and repudiate don't ask don't tell, and yet apparently the DoJ is advancing in legal arguments to defend Don't ask don't tell the 19990s views of Colin Powell -- even though Powell now, currently, supports repeal and does not any longer support Don't Ask Don't Tell.
If the prevailing view of the top brass is to get rid of it, and members of congress have proposed legislatively to repeal it, and the white house wants to get rid of it............what the heck is the point of bringing in out of date Colin Powell comments in support of it? They must know that the best refutation - Powell himself - is available to refute that argument. How stupid is this?
Ditto some of the internal problems within DoJ - career professionals argue one thing, on merits, and political appointees over rule them. It makes no sense.
Hooray for the judical branch checking the executive this time. Well done!
I've been continuously disappointed with President Obama's justice department. They have essentially white-washed some of the most egregious civil rights violations in American history that took place under the Bush administration, and they have refused to prosecute or even look into prosecuting those Bush administration officials responsible. They refused to refer cases to the various state bar disciplinary authorities on several justice department attorneys who (at best) were grossly incompetent, if not criminally stupid in some of their written decisions.
ReplyDeleteI truly don't understand the two-faced attitude of the Obama administration. This is not the administration I voted for, this is the administration I voted against, just with a different name.
A different name ToE, and a third term....
ReplyDeletePersonally I think when Obama got in the White House and heard the daily security briefings he decided not to remove some of these things. I work with some guys who used to be at Ma Bell and later AT&T. They told me how the wiretap searches are done. The FBI will get a number, usually off a cell phone of a dead Al Queda guy in Afghanistan. They then go to the phone company and mine for any numbers in the US that called that number or were called by that number. Then they check calls those numbers made against other numbers known to have been owned by a terrorist. If there are enough matches on a regular basis to known terrorists they ask for a wiretap. Until they ask for the wiretap all they have is a list that shows the two phone numbers, the date, and the duration of the call. Now the thing everyone argues about is where in the process they have to get a warrant. From what I understand if both ends of the call are in the US they have to have a warrant before the wiretap is in place. If one end is outside the US the FISA rules kick in and they have the 72 hrs or whatever it was changed to.
ReplyDeleteThe other thing this law did that I don't think anyone disagrees with was update the wiretap laws to account for cell phones. Under the old law if the FBI got a warrant from Tarrant county to tap my phone and I went to Dallas county to place a call they needed a new warrant. When all phones were anchored in place this made sense, but when I can hit 4 counties in the space of an hour or so and take the phone with me it made wiretaps useless. The new law says if they obtain a warrant to tap my phone they can tap it even if I cross a county line and I think it allows the tap to cross state lines.I doubt anyone will repeal that part of the law as it was a much needed update and still required a warrant to tap a phone just eliminated the need for 4 or 5 warrants.
ttucker,
ReplyDeleteI agree with you that this is the process that is likely being followed. Some would argue that even to look at the call records requires a warrant. I don't know the precise wording of the "warrantless" procedure, so I won't comment, but based upon my experience (and I have some) I suspect it is indeed more complex than many might imagine.
Leslie, tuck, It may very well be complex - and I trust THIS predident to deal well with complexity - but complex can still go through the warrant channels. I'm not persuaded that complexity should provide that degree of freedom from all accountability, A familiarity with our history - think nixon - should make it clear why.
ReplyDeleteTOE, presidents do not go back and prosecute past presidents for mistakes. At the time the Bush administration asked for these laws we had just been attacked by people we invited here on student visas. There were somewhere close to 100,000 more student visas roaming around the country from Arab or mostly Muslim countries. About 95% of Congress voted in favor of the laws and so it would be a bit hypocritical to vote to allow the administration to do some things and then prosecute them for actually doing it. Suppose that 5 yrs from now the supreme court finds it is a gross violation of civil rights to require people to buy health insurance, should we impeach Obama (if he is still in office) for signing an unconstitutional law? or congress for passing it? That is not how we do things. The court invalidates part of the law (which has been done for parts of the Patriot act) and you vote the people that passed it out and we are done.
ReplyDeleteI do think that the Obama admin justice system should prosecute those violations of rights that did not comply with the laws as they existed - including using the FISA courts. The law is the law and even presidents should have to adhere to those laws or face the consequences.
ReplyDeleteDG, Tuck, Leslie,
ReplyDeleteWe're a bit off the mark here.
Ex Post Facto prosecution is un-Constitutional, there is no argument of that, nor has anyone here advocated for it.
Conversely, those who break the law, President or otherwise - should be held accountable for their actions. The standard of not criticizing past Administrations is THAT, not criticizing - it does not extend (other than Gerald Ford) to IMMUNIZING a President from prosecution once they leave office. However, it is generally not done because it exposes the country to embarrasment.
Second, what, why, and when of who attacked us is also immaterial. Obviously BAD people did BAD things. The point here is that we did not need to violate this law. FISA was FULLY effective, and fully able to provide the access needed. Even if it wasn't, and it WAS, that's not the point. We created a nation which above ALL else, believe the government had to show it's cause to intrude upon the rights of citizens. We setup our Constitution to prevent excesses of power, JUST this kind of excess in fact, and this judge RIGHTLY ruled that using 'state secrets' to stop investigations of the correctness of acts by the President or anyone else, is unlawful. It was not a close call, it was WHOLLY and TOTALLY unlawful.
If we decide to, out of fear of 100,000 students, begin stripping away our liberties, then Bin Laden won.
The effectiveness of what was done is also immaterial. Clearly, beating or raping the wife of some suspect will be effective to gain cooperation, but would it be right?
You have the right to be free from random search - including random wire-tapping of your conversation - unless the state can show you are a person of interest. It is NOT a high bar - and has only been denied 9 times EVER.
The issue here ultimately, however, is that the President and his staff chose to side-step FISA, not because they NEEDED to, but because the WANTED to. There was no need whatsoever.
ReplyDeleteThen, when challenged, they chose AGAIN to violate our rights by claiming state secrets rather than produce the REASONING for their searches. That kind of conduct is not the conduct of someone we should be trusting, but more, proved entirely why the government is prohibited, and SHOULD be prohibited, from this kind of action. We have the right to ask our government to PROVE why it is invading our rights and privacy and the RIGHT to expect them to answer for it. The effecitiveness of what they did, or why they did it on some general euphamistic level, is totally, and utterly irrelevant - and THAT is precisely what this justice was saying and precisely what our founding fathers understoo.
and finally and in closing.
ReplyDeleteRepublicans phumper and complain and scream about "Big Government", but they are the first to clamour for an ascendent executive branch, seeming - in war time at least - one without fetters of any kind.
That would, frankly, lead to creating a dictator if the President chose to exert that kind of unfettered authority. They (Republicans) showed themselves wholly in favor of putting the President above the Congress during Reagan's years, and here showed themselves equally ready to put the President above the courts, saying that the court COULDN'T EVEN ASK.
That's an extraordinarily dangerous thing. I wouldn't want Barack Obama, John Kennedy or John the Baptist to have that kind of authority. We created checks and balances, seemingly we are all educated about why they are important, but equally seemingly, some of us believe we should "just trust the government" in wartime. I'm not willing to do so. The Government is a tool, it can be used for great good, or it can be used for great ill, and the only safegaurd against the latter is a vigilant populace demanding it perform to it's listed duties. What those duties are, and how far they extend, we may debate, but whether they have to account for their acts is of no debate.
Perhaps I was misunderstood.
ReplyDeleteI do not and did not advocate prosecution for any offense ex post facto. The offenses I advocate prosecution of were crimes long before the Bush administration took office.
Torturing of prisoners is a crime both under US Law and under our international treaty obligations. Messrs. Bush, Cheney and Rumsfeld are responsible for some of the most egregious treatment of prisoners in recent US history, and if they are not ultimately held responsible for their crimes, then the US has lost any right to complain if (read when) a US citizen or serviceperson is held and tortured by someone we don't like.
The whole argument over the warrantless wiretaps had to do with where the person being tapped was. Here is a quote from an article.
ReplyDeleteThe administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad[57][58] a foreign agent residing in the US[59][60][61][62] and a US citizen abroad.[63] The warrantless exception was struck down when both the target and the threat was deemed domestic.[64] The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames.[65]
The case last week was when the courts made a broad ruling on it that went against what Bush was doing. To prove he broke the law as written before any court rulings you would have to prove he knowingly tapped two US citizens who were in the US at the time and not acting as an agent of a foreign power. That would be very hard to prove and since he is out of office now Obama probably does not want to spend the time and money trying to prove it. The problem is the whole balance of powers thing. Congress cannot make a law that restricts the executive branches ability to run foreign intelligence operations and you had one side claiming that if a US citizen was on one end of the call it was domestic and the Bush administration saying if a member of Al Queda was on the other end it was foreign. Until one of the courts rules on it there is a huge grey area there and the lower courts ruled in Bushs favor.
Also my bringing up the fear of the other 100,000 students in the US was not justifying the law but more looking at what Congress was thinking about when the patriot act was passed
I'd have to go back and do a little digging for the specifics, but it is my understanding that there have been multiple instances of warrantless wiretapping that did not substantiate a connection to a foreign power, and where all parties were in the US at the time. Further, the wholesale evesdropping has been essentially farmed out to independent contractors, which I doubt has ever been the intention of congress.
ReplyDeleteDG, you're right, it's been used on parties both of whom were in the US (against what was SUPPOSEDLY the law).
ReplyDeleteBut that's never been the point, the point is, claiming state secrets to STOP an inquiry is a fundamental violation of the precepts of liberty we established. The Courts have the right to check the executive, and any claim they don't simply for states secrets allows the executive branch to claim this whenever it's convenient or whenever they want to cover things up. FISA allowed for a fully functional inquiry system - no one prior to Bush had any issue with it, not even Reagan during the Cold War - Bush used this as a power grab, and it was 100%, no question, utterly, totally, indisputably, indefensibly wrong. NO amount of circumstances, nothing, justified it. FISA could have been used instead and maintained at least some (kangaroo court) semblence of oversight. This allowed Bush (and Obama) to sidestep all checks, all oversight, and even IF it was used 100% for good reasons, it was one in a 100% bad way. It begs the question whether we should simply trust the government at all times and in all ways. Allowing a state secrets defense says we HAVE to trust them, no matter what, no matter what they EVER do, from secret prisons, to rendition, to murder (all of which happened). I am absolutely baffled that those (faux) patriots who phumper about tea bags watched this happen (and STILL watch) and say nothing. As power grabs and an abusive government go, this is FAR more dangerous than requiring people to buy insurance (such as car insurance). This is putting the executive branch outside the reach of the law for ANYTHING it wants to do, from spying to theft to anything. All it has to stay is "it's a secret" and we all get to twiddle our thumbs and just take it.
I agree with you on refusing to talk to the FISA courts. The Russians had one of the best intelligence services around and FISA managed to keep things from them so it should have worked with Al Queda. My argument is that, historically, unless it has been a very blatant violation, like Nixon, presidents do not want to start a precedent of prosecuting past presidents. In this case Congress left some loopholes and a couple of circuit courts even said it was ok. I don't have a problem with it if one end of the call is a known foreign terrorist. What I would like to know is who they were monitoring where both ends were in the US and why? From what I know about them this type of surveillence is time consuming, manpower intensive, and very tedious work. Did they mix up a name with someone who is a foreign agent, ie. the wrong John Smith, or was it someone who they did not have enough evidence for a warrant so they did it anyway?
ReplyDelete