On Warrantless Wiretapping and Domestic Spying, Obama Administration Obfuscates and Jettisons Transparency

A BUZZFLASH NEWS ANALYSIS
by Christine Bowman

Attorney General Eric Holder is talking the talk. Is it reasonable to assume that he will also walk the walk and go to the ropes to defend Americans' Fourth Amendment rights to private communication? It's tough to say. The Attorney General's recent statements and actions have been, alternately, resolute, and vague.

Privacy rights and domestic spying are back in the news this week, in part due to the work of The New York Times reporters Eric Lichtblau and James Risen, the same guys who blew the lid off Bush's domestic spying program with their reporting on the topic in 2005. An unknown amount of interception of phone calls and Americans' personal e-mails has been occurring since 2001. Both the Electronic Frontier Foundation (EFF) and the ACLU currently are challenging the government surveillance program in the courts. In those cases, the Obama DOJ as the lawsuits' defendant has not abandoned the Bush Administration's arguments of "state-secrets privilege." In fact, Holder's team has added a new argument of "sovereign immunity" citing the PATRIOT Act as justification, as BuzzFlash reported earlier in the week.

Perhaps the courts ultimately will put an end to broad invasions of privacy, but the Congress chose to go the opposite way in its initial response. After Lichtblau's and Risen's 2005 revelations that the Bush Administration had bypassed the FISA court and not sought warrants before authorizing "war on terror" domestic spying, in July 2008, Congress enacted the FISA Amendments Act (FAA) granting spy agencies even broader powers to monitor citizens' communications. It passed with bipartisan support, including then-Senator Obama's.

The 2008 FAA gave approval to the monitoring of citizens' communications via telecom "gateways," without seeking warrants, if it was believed the communications were coming from outside the U.S. Under the new law, a warrant from the FISA court would still be required to lawfully intercept citizens' communications within the U.S. In addition, as Pamela Hess at Huffington Post explains, "The [2008 FAA] law allows the government to obtain broad, yearlong intercept orders from the FISA court that target foreign groups and people inside the United States.

Now that law, too, has been breached. Lichtblau and Risen report that intelligence officials have told them the NSA's spying on citizens "in recent months" has involved "significant and systemic" "overcollection." Others have termed it a dragnet. The Justice Department acknowledged that "there had been problems ... but said they had been resolved." Opponents of the law such as Senator Russ Feingold were not surprised that there have been problems, but Senator Intelligence Chair Dianne Feinstein appeared to be.

There are allegations that even America's Congressional delegates were spied upon in 2005-2006. Names have not been named, but ongoing speculation at Huffington Post (with many updates) mentions former Rep. Cynthia McKinney and Sen. Bill Nelson and quite a few others as possibly having been the illegally targeted duly elected delegate/spying victim.

The recent NSA overreaching was discovered, evidently, by a periodic review of the operation by the Department of Justice. An obtuse statement from the Office of the Director of National Intelligence said "when inadvertent mistakes are made, we take it very seriously and work immediately to correct them." In those official words, there appears to be neither an admission nor an apology.

What does AG Holder have to say about all this? A vaguely worded DOJ statement said they "took comprehensive steps to correct the situation." No clear description of "the situation" was included. From Lichtblau and Risen, again:

It is not clear to what extent the agency [NSA] may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them...

... the issue appears focused in part on technical problems in the N.S.A.'s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies' fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.

One official said that led the agency to inadvertently "target" groups of Americans and collect their domestic communications without proper court authority. Officials are still trying to determine how many violations may have occurred.

Meanwhile, oddly, Attorney General Holder gave a speech Wednesday at West Point in which he said, "We will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security." Josh Gerstein at Politico quoted him also in what appears to be hedging:

"Even as we usher in a new period of openness and transparency, many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars," Holder said, according to the prepared text of his remarks. "But a need to act behind closed doors does not grant a license to pursue policies, and to take actions, that cannot withstand the disinfecting power of sunlight. In fact, it is in those moments when no one is watching when we must be most vigilant in relying on the rule of law to govern our conduct."

Holder, evidently, is telling the American people that he is watching the NSA -- at least that much is good news -- but that we should just trust him. However, Holder has not gone one step further to enable the American people themselves, or for that matter, journalists, to provide their own oversight directly. Since our democracy is predicated on the governement's accountability to its informed citizenry, that's a strange failure, indeed, on the part of the nation's top guarantor of justice, and top law enforcer.

Still more discouraging is the real possibility that dragnet-style domestic spying, Constitutional or not, may serve no real purpose, unless you like the number of government jobs it must necessitate. Jonathan David Farley, a security expert at Stanford University, argued that position -- that "the National Security Agency's entire spying program seems to be based on a false assumption," and so is ineffective -- very convincingly in his 2006 NYT Op-Ed, "The N.S.A.'s Math Problem."

If Farley is correct, Attorney General Holder is hiding details and blurring Constitutional lines, despite his own espoused ideals, in order to "keep us safe" -- with neither real pragmatism nor Constitutional law to justify it.

The ACLU is calling for the expanded 2008 domestic surveillance law to be struck down.

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More reporting:

Remarks as Prepared for Delivery by Attorney General Eric Holder at West Point's Center for the Rule of Law Grand Opening Conference --West Point, N.Y., Wednesday, April 15, 2009

Not to be trusted, Dan Froomkin, 4/16/09, The Washington Post

DOJ Urges Dismissal of Warrantless Wiretapping Case Brought on Behalf of AT&T Customers, Christine Bowman, 4/7/09, BuzzFlash

Obama DOJ Invokes State-Secrets Privilege and Patriot Act To Justify Continued Bush Warrantless Wiretaps, Christine Bowman, 4/9/09, BuzzFlash

Head of Senate Panel Calls for Hearing on Wiretaps, Eric Lichtblau and James Risen, 4/16/09, The NY Times

Listening in on Congress, Kevin Drum, 4/15/09, Mother Jones

The NYT's predictable revelation: new FISA law enabled massive abuses, Glenn Greenwald, 4/16/09, Salon

A BUZZFLASH NEWS ANALYSIS

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