Deeplinks Blogs related to NSA Spying
What Obama Can and Should Do to Stop Telecom Immunity
Deeplink by Kevin BankstonYesterday, the New York Times ran the story "Early Test for Obama on Domestic Spying Views", describing the national security-related issues facing the incoming Obama Administration. Chief among them is the issue of immunity for telecoms that illegally assisted in the National Security Agency's warrantless wiretapping program:
In perhaps the most critical test, civil liberties groups that are suing major phone companies that took part in the N.S.A. program are waiting to find out whether a federal judge will throw out the lawsuits based on immunity granted by Congress in June.
The Justice Department has already moved to take advantage of the immunity provision by certifying in court that the phone companies were complying with a presidential order. But the Electronic Frontier Foundation, a civil liberties group that has taken the lead in the lawsuit, maintains that Congress acted beyond its powers.
A hearing is set for Dec. 2. Cindy Cohn, legal director for the foundation, said that as the case moved forward the new administration could act to withdraw the immunity certification made by the Bush Justice Department.
“Nothing will be over by Jan. 20,” when Mr. Obama is inaugurated, Ms. Cohn said.
As President, it will be up to Obama whether or not the Administration wants to continue seeking dismissal of the lawsuits against AT&T and other telecoms based on the immunity provisions of the FISA Amendments Act (FAA). Specifically,
President Obama can end the immunity process. Consistent with his previous opposition to immunity — then-Senator Obama voted in favor of Senator Dodd's amendment to strip the immunity provisions out of the FAA altogether — Obama could instruct his new Attorney General to withdraw the government's motion to dismiss the lawsuits based on the immunity statute. Or,
President Obama can temporarily freeze the immunity process until he has learned all the details about the NSA program. Consistent with his support of Senator Bingaman's proposed FAA amendment to delay implementation of the immunity provisions, Obama could instruct his new Attorney General to ask the court for a temporary stay of the immunity proceedings. That would give the Administration time to review the classified details of the NSA program as well as the FAA-mandated reports about the program that are expected by this July from the Inspectors General of the Department of Justice, the NSA, and other agencies involved in the program. After having reviewed all the facts, the new administration can then re-evaluate whether it wants to continue to press for immunity in court, or drop its motion to dismiss and let the cases against the telecoms continue. Or,
President Obama can choose not to appeal if the immunity statute is found unconstitutional. If, after the hearing on December 2nd, Chief Judge Vaughn Walker of the federal Northern District of California agrees with EFF that the immunity statute is unconstitutional and denies the government's motion to dismiss, Obama could instruct his new Attorney General to not appeal that decision to the Ninth Circuit Court of Appeals.
All of these are things Obama could do — on his own and without any help from Congress — to stop the implementation of the immunity scheme that he repeatedly opposed during his presidential campaign.
These recommendations aren't EFF's alone: as part of the transition roadmap published yesterday by a broad coalition of groups including EFF, seventeen different civil liberties organizations signed onto national security surveillance recommendations that included the proposition that President Obama should "[d]irect the Attorney General to withdraw the government’s motion to dismiss pending privacy litigation brought against telecommunications carriers for assisting with unlawful warrantless surveillance, or seek a stay of those proceedings until such time as the Attorney General, based on review of the Inspectors’ General reports required by the FISA Amendments Act, determines that a grant of immunity is appropriate."
EFF's New NSA Spying Shirts
Announcement by Hugh D'AndradeA few weeks back, we produced a new graphic to accompany our new case against the government, Jewel v. NSA, challenging the Bush administration's illegal spying program. The graphic is a retooling of the NSA's logo, featuring a glowering eagle using his talons to illegally plug into the nation's telecommunications system — with the help of telecom giant AT&T.
By popular demand, we are now offering t-shirts featuring our NSA logo in an exclusive offer to members only. With a donation of $65 or more you can help us continue the fight against illegal spying and receive a shirt (as well as other premiums) in return. Your support makes our work possible! Thank you!
Colbert on NSA Spying
Announcement by Hugh D'AndradeIn his Word of the Day commentary yesterday, Stephen Colbert put forward a ringing defense of the NSA's spying program. Responding to reports that NSA employees are routinely listening in on the personal calls of US soldiers and aid workers stationed abroad, Colbert reminds viewers that "it's a lot easier to listen to Americans, they speak English."
The clip is also available here.
New NSA Whistleblowers Say NSA Spied on US Service Members and Aid Workers
Deeplink by Hugh D'AndradeThis has been a bad week for President Bush's warrantless wiretapping program. First, a government study reported that data-mining is actually a hindrance in the fight against terrorism. And now, two new whistleblowers have come forward with firsthand accounts of how innocent Americans' communications have been swept up in the NSA's dragnet.
According to ABC News and a new book by James Bamford, David Murfee Faulk and Adrienne Kinne witnessed and participated in the interception of hundreds of personal, intimate calls from American service members and aid workers. They say NSA employees have been routinely intercepting the calls of individuals with no involvement in terrorism.
Faulk, a linguist working as an "intercept operator" at the NSA complex in Fort Gordon, Georgia, says that NSA employees often shared personal communications from Americans living oversees just for the fun of it:
"Hey, check this out," Faulk says he would be told, "there's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out. It would be some colonel making pillow talk and we would say, 'Wow, this was crazy'," Faulk told ABC News.
Faulk said he joined in to listen, and talk about it during breaks in Back Hall's "smoke pit," but ended up feeling badly about his actions.
"I feel that it was something that the people should not have done. Including me," he said.
Adrienne Kinne, another linguist and intercept operator at the Fort Gordon facility, says communications from aid organizations like Doctors Without Borders and the International Red Cross were intentionally targeted, a practice that she says hampered legitimate intelligence gathering:
"By casting the net so wide and continuing to collect on Americans and aid organizations, it's almost like they're making the haystack bigger and it's harder to find that piece of information that might actually be useful to somebody," she said. "You're actually hurting our ability to effectively protect our national security."
(A few months ago, Kinne appeared on the radio show Democracy Now! with similar accusations, including her reports that the communications of journalists working out of the Palestine Hotel in Iraq were being monitored by the government.)
The whistleblowers say this is not a matter of rogue operators getting carried away. They say their supervisors responded to questions about the legality of transcribing personal calls by ordering them to proceed:
Coworkers of mine were ordered to transcribe these calls... Personal calls. Well, they were ordered to transcribe everything that came through. And when one of my coworkers went to a supervisor and said "But sir, these are personal calls," the supervisor said my orders were to transcribe everything.
The Bush Administration has repeatedly justified its warrantless wiretapping program by insisting that it is strictly limiting itself to communications from known terrorist organizations like Al Qaeda. And the administration says court oversight is unnecessary because government agencies can be trusted to respect Americans' privacy.
But whistleblowers keep cropping up, confirming what EFF and other civil libertarians have been saying all along: intelligence agencies cannot be relied upon to police themselves, and the privacy rights of innocent Americans are being violated. The mounting evidence confirms that the NSA spying program is operating far outside the bounds of the law, and abuses of power within the intelligence community are rampant. All the more reason to continue the fight against warrantless wiretapping.
Government Files to Dismiss NSA Telecom Surveillance Cases
Announcement by Kurt OpsahlLate Friday night, the Government started the formal process for retroactive immunity for the telecommunications companies sued by EFF and others for their involvement in the warrantless surveillance of millions of ordinary Americans. The immunity is a key part of the unconstitutional FISA Amendments Act passed by Congress in July. EFF will be challenging the new law as unconstitutional and that challenge is set for a hearing before federal judge Vaughn Walker, along with the government's dismissal motion [PDF], on December 2, 2008. To support its attempt to shut the courthouse doors on plaintiffs, the Government filed a "certification" from Attorney General Mukasey. The key substance of the Government's submission was filed in secret with the court, but the Attorney General also filed a public certification [PDF]. In addition, the Government submitted some legislative history documents [PDF].
New Details of Official Dissent in Spying Scandal
Commentary by Hugh D'AndradeA new book containing explosive details about the NSA's illegal spying program hits stores today. Barton Gellman's "Angler: The Cheney Vice Presidency," excerpted in the Washington Post in two parts (1 & 2), brings to light new information about the warrantless wiretapping scandal and the role played by the most powerful vice president in history.
A certain amount was already known about the behind-the-scenes intrigue concerning the spying program. Earlier reports have described the 2004 near meltdown within the administration, when the top echelon of the Justice department, including Deputy Attorney General James Comey, joined by FBI Director Robert Mueller, planned to resign en masse in protest against the flagrant illegality of the program. (The famous hospital episode — in which then-White House counsel Alberto Gonzales tried to bypass the acting AG by making a late night visit to the bedside of the ailing John Ashcroft — is now part of the sordid lore of the Bush years.)
But "Angler" adds some new insights into just how controversial the program was, and just how carefully it was guarded against a full internal review. From the excerpts published in the Post, we learn about the significant role the vice president and his counsel, David Addington, played a in developing and defending the program:
The command center of "the president's program," as Addington usually called it, was not in the White House. Its controlling documents, which gave strategic direction to the nation's largest spy agency, lived in a vault across an alley from the West Wing — in the Eisenhower Executive Office Building, on the east side of the second floor, where the vice president headquartered his staff.
The vault was in EEOB 268, Addington's office. Cheney's lawyer held the documents, physical and electronic, because he was the one who wrote them. New forms of domestic espionage were created and developed over time in presidential authorizations that Addington typed on a Tempest-shielded computer across from his desk [8].
It is unlikely that the history of U.S. intelligence includes another operation conceived and supervised by the office of the vice president. White House Chief of Staff Andrew H. Card Jr. had "no idea," he said, that the presidential orders were held in a vice presidential safe. An authoritative source said the staff secretariat, which kept a comprehensive inventory of presidential papers, classified and unclassified, possessed no record of these.
Cheney and Addington, the book reports, were so intent on keeping the spying program behind a veil of secrecy that details were carefully withheld even from top national security officials. According to Gellman, officials kept either totally or partially in the dark about the extent of the program include Homeland Security Secretary Tom Ridge, National Security Advisor Condoleeza Rice and the "Gang of Eight" — the ranking senators ordinarily kept in the loop on national security matters. The only lawyers allowed to review the program were Gonzales and John Yoo from the Office of Legal Counsel, and the NSA's lawyers' request for information was refused.
Even the president himself was kept in the dark about the internal dissent. Cheney shielded him from knowledge about the Department of Justice's legal concerns with the spying program for a full three months before Bush finally learned the extent of the rebellion. Even in the face of the Attorney General's refusal to certify the legality of the warrantless wiretapping, the president went ahead and signed a directive to renew the program on March 11, 2004 — without the signature of the Attorney General.
What Addington wrote for Bush that day... drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief. Only Richard M. Nixon, in an interview after leaving the White House in disgrace, claimed authority so nearly unlimited.
This renewal led to the brink of the mass resignation. When the president, under the impression that objections were being raised "at the last minute," took acting AG Comey aside to express his dismay, Comey reportedly replied:
"Oh, Mr. President, if you've been told that, you have been very poorly served by your advisers," Comey said. "We have been telling them for months we have a huge problem here."
"Give me six weeks," Bush asked. One more renewal.
[...]
"I think you should know that Director Mueller is going to resign today," Comey said.
Bush raised his eyebrows. He shifted in his chair. He could not hide it, or did not try. He was gobsmacked.
"Thank you very much for telling me that," he said.
Comey, who had drafted his resignation and was waiting only for the return of John Ashcroft to official duty for the opportunity to resign in tandem, was persuaded to meet with the president to forestall disaster for the Administration. In response to Comey's objections, the president agreed to make changes to his directive, and the program was modified in ways that remain unknown. On March 18, a new directive that satisfied Comey and Ashcroft was put into place.
What is known is that the fear within the Administration of prosecution for participation in the illegal program was likely a major factor in the decision to adjust course. The new information makes it all the more clear that Congress needs to have more hearings and investigations. In the meantime, we'll keep up the pressure.
The Secret Room: EFF Designer's Cartoon on Illegal Spying
Commentary by Hugh D'AndradeI was asked recently to create a mural-sized political cartoon (and to paint it live!) at a show of experimental drawings and cartoons at the Mission Cultural Center in San Francisco. I chose as my subject the NSA's "secret room" at AT&T's Folsom Street facility. As part of the Bush administration's massive and illegal spying program, the communications of millions of ordinary Americans are illegally intercepted and copied via fiber-optic splitter, and diverted into this secret room, which is controlled by the NSA.
What exactly goes on inside that room? Here's a time-lapse video of my fanciful answer to that question:
The finished piece is available for viewing now through September 14 at the Mission Cultural Center, along with lots of other great drawings by various artists. Video shot and edited by EFF staffers Chris Contolini and Richard Esguerra, with CC-licensed music by Skandalo Publico.
Appeals Court Remands Gov't Appeal in Hepting v. AT&T
News Update by Kurt OpsahlToday, the United States Court of Appeals for the Ninth Circuit returned the Hepting v. AT&T case to the District Court. In a two sentence order, the court wrote:
In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals.
The government and AT&T had appealed Judge Vaughn Walker's June 2006 decision rejecting the argument that the state secrets privilege prevented millions of ordinary American from having their day in court. Oral argument was held August 2007.
Over the next year, the litigation was stayed because the appeal was pending. In the interim, Congress bowed to the demands of the Bush Administration and passed the unconstitutional retroactive immunity bill, the FISA Amendments Act.
The Government has not yet invoked the FAA's new procedures. Nevertheless, the government moved to have the Ninth Circuit stay the state secrets appeal, effectively asking the court for two chances to get the underlying litigation tossed from the courthouse. EFF opposed, noting that it was already well-known that AT&T and the government cooperated in the warrantless wiretapping program. We requested:
that the Court deny the government’s motion to hold this case in abeyance and instead dismiss the appeal and remand the case to the district court.
Earlier, in a related ruling last year, the Ninth Circuit had remanded the Al Haramain case to Judge Walker to determine whether FISA preempted the state secret privilege. In July, Judge Walker held FISA did preempt, and suggested that the Hepting plaintiffs might be able to benefit from the FISA preemption because they can show “'independent evidence disclosing that plaintiffs have been surveilled' and a 'rich lode of disclosure to support their claims.'"
This decision is good news for the millions of AT&T customers who were illegally surveilled under the warrantless wiretapping program. While we still must convince the court that the retroactive immunity bill is unconstitutional, for now, the state secrets privilege will not keep the courts from dispensing justice.
Three Ways to Fight Immunity
Deeplink by Hugh D'AndradeIt’s been two weeks since the Senate’s cowardly vote to pass the FISA Amendments Act (FAA), caving in to the president’s demands. With this vote, Congress gave the president virtually all of the spying powers he has sought for so long, and delivered the one thing he demanded above all else: Immunity for his telecom buddies for their role in his illegal spying program.
EFF fought long and hard to prevent passage of immunity for the telecoms, and this vote was a serious setback for our case seeking to hold AT&T and the other telecoms accountable. But the fight is far from over. As we suggested in the immediate aftermath of the vote, Congress may have caved, but EFF has not. In the coming months and weeks, we will continue the fight against immunity on multiple fronts.
Here is a brief primer on what we are doing now to fight back against this unconstitutional bill:
1. New litigation against the government.
We are bringing our many years of experience fighting illegal spying to bear on a new case – and this time, rather than holding private actors accountable, we will be taking on the government. For the moment we are keeping the details of this litigation to ourselves. But the goal is the same: to stop the wholesale surveillance of millions of Americans and restore our constitutional protections.
2. Constitutional challenges in Federal court.
By interfering with the ongoing deliberations of the judicial branch of the government, the FAA’s immunity provisions violate the Constitution’s insistence on a separation of powers. As Senator Sheldon Whitehouse of Rhode Island said during the Senate debates on the FAA:
If you wish to see a case of legislative interference with private judgment of the courts, look no further than what we are doing today... Congress stepping in to pick winners and losers in ongoing litigation on constitutional rights not only raises separation of powers concerns but it veers near running afoul of the due process and takings clauses [as well]... If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning.
EFF will do just that, asking the Federal courts to find the FAA unconstitutional on this and other grounds.
3. Congressional repeal of immunity provisions.
The FAA passed Congress, but not by a wide margin. Key members of Congress actively opposed sections of the bill, including telecom immunity. Majority Leader Reid, Speaker Pelosi, and Presidential candidate Barack Obama have all voiced strenuous opposition to telecom immunity.
More importantly, the public remains opposed to immunity. As EFF members are well aware, the president faced an uphill battle against a rising tide of public opinion in his quest to secure immunity for lawbreaking telecoms. It took almost two full years, with multiple retrenchments, to pass the bill. And it was only by bucking their constituencies that many members of Congress acted to pass the bill.
In 2009, this opposition will only have grown stronger, setting the stage for a congressional repeal of immunity. EFF will be there, working the halls of Congress and coordinating with the many opponents of telecom immunity to strike this unconstitutional bill from the books as soon as possible.
We may have lost the congressional battle on telecom immunity, and we may lose other battles from time to time in the future. But EFF will not stop until the laws are changed, and the surveillance hubs that are illegally sweeping up the communications of millions of innocent Americans are physically removed from the country’s telecom infrastructure. As more revelations continue to appear in the press (see today’s article in Salon — log-in may be required), it is more clear than ever that we must continue our efforts to restore your rights.
You can help us in this fight. If you haven’t joined yet, now is the time. And stay tuned for more updates in the future. The next phase anti-immunity movement is underway, and we need your help.
The ‘Repeal Immunity’ Movement Begins Today
Deeplink by Tim JonesToday, EFF Senior Staff Attorney Kevin Bankston was invited to guest-blog at The Hill.com's Congress Blog on EFF's plans in the wake of the recent surveillance law overhaul:
Our long war against warrantless wiretapping has only just begun, and we will not stop until we get that legal ruling we’ve been fighting for. Wednesday we only lost a battle, not the war, and EFF’s struggle to hold the White House and the telecoms accountable for their lawbreaking will continue on multiple fronts — starting with a constitutional challenge to the immunity provisions...
While duking it out over immunity in the courts, EFF will also continue its fight in Washington, working in the next session of Congress — a Congress likely to be much different in its composition than today’s, and working with a different president — to wipe the stain of the FAA’s immunity provisions off the books.
