A License To Spy On Citizens
This column was written by Patricia J. Williams.
I don't get it. All summer we listened to incoherent testimony from the Attorney General of the United States. Alberto "prohibitions against torture are quaint" Gonzales, the guy who believes "there is no express grant of habeas in the Constitution," had tried to bully a near-comatose John Ashcroft into OK-ing a secret warrantless wiretapping program that illegally spied on citizens. Gonzales's general uncooperativeness was so great that there was loud Congressional discussion of censure or even impeachment.
Yet here we are, only a few weeks after all the brouhaha about his fronting for President Bush's pursuit of an ever more secretive unitary executive — and Congress passes a law that legalizes precisely the kind of warrantless wiretapping the Bush Administration, through Gonzales, was seeking. The Protect America Act of 2007, or Section 1927 of the Foreign Intelligence Surveillance Act (FISA), starts with a clever limitation of the meaning of "electronic surveillance." To provide a little background, "electronic surveillance" has always been characterized as a domestic police power that requires a warrant issued by a court in order to protect the privacy interests of citizens. Foreign intelligence gathering, on the other hand, is not covered by FISA — i.e., no warrant necessary — the underlying rationale being that noncitizens who are threats to national security need not be accorded a right to privacy. This general objective is controversial, but let's allow that it is reasonable enough as an overarching proposition. The new law, by contrast, effectively removes the expectation of rights distinguishing citizens from noncitizens, as well as collapses the wall between the furtive functions of foreign intelligence gathering and the public accountability constitutionally mandated in domestic law enforcement.
The problem the law ostensibly seeks to address is that many of the fiber-optics nodes through which global telecommunications flow are located here in the United States. Should we require a warrant to monitor parties located outside the country whose text messages pass through a phone center in California? This is an interesting legal issue, but the pressing conundrum raised by the breadth of Section 1927 is whether the realities of modern technology require American citizens to forsake any expectations of privacy as a consequence. Some would say yes. In an op-ed in the Los Angeles Times, David Rivkin Jr. and Lee Casey, former Justice Department officials under Reagan and Bush I, argue: "Our privacy is compromised daily by government and nongovernment actors. This is the price of living in a modern society. The real question is how to strike the balance. Americans may, for example, be subject to physical search without a warrant or judicial oversight whenever they leave or enter the United States. The same should apply to electronic communications coming into or going out of the United States; they should not be subject to a more stringent rule."
This sounds fair until you realize that every time you call a customer hot line or directory assistance there's a good chance you've been switched to someone in India or the Philippines. So the reality is that Section 1927 offers nothing like "balance" when it comes to phone or computer privacy. It allows for blanket data-mining of any and all electronic and telephonic communication by anyone, anywhere, whether chatting with a spouse, shopping for sex toys, making a doctor's appointment or confessing to a priest. And even if airport searches target dangerous objects, we do not thereby license airlines to indiscriminately search through our wallets, read our diaries or Xerox the contents of our briefcases.
You say you want to sue? Section 1927 excludes from judicial oversight all "surveillance directed at a person reasonably believed to be located outside of the United States." Technically, the term "person" includes citizens, even though media summaries discuss it as though it applies only to foreigners. Furthermore, anyone can be the object of investigation so long as it is "significantly" related to foreign intelligence — the substantiality of that relationship to be determined by our delightful Attorney General in tandem with the director of national security.
Paradoxically, the notion of "significance" is not connected to any outside review of substance. Indeed, the certification of data collection need not "identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed." Rather, the executive must simply present a set of "procedures...reasonably designed to ensure that acquisitions" are within the exception to FISA. "The court's review shall be limited to whether the Government's determination is clearly erroneous." But it is hard to imagine how a court could ever find specific improprieties in information-gathering if it can't consider substance. Procedures are rarely "clearly" wrong in the abstract: It's the application wherein trouble lies.
If, however, there were a judicial finding of clear error under Section 1927, the executive could then appeal all the way to the Supreme Court; and any surveillance would be allowed to "continue during the pendency of any appeal." Even assuming that the Supreme Court did strike down a particular operation, the law eliminates any cause of action — possibly even malicious prosecutions — "against any person for providing any information, facilities, or assistance in accordance with a directive under this section." Apparently the government claims a right to privacy (i.e., secrecy) even as it withdraws that right from its citizens.
According to Rivkin and Casey, however, 1927 isn't broad enough. They reject the notion of "a judicial imprimatur to the procedures used to intercept" what they and the Bush Administration wrongly characterize as exclusively overseas communications. They suggest that even the very limited power of courts to review procedures under 1927 exceeds the judicial limitation to individual cases, controversies and the issuance of warrants. I predict that this is an issue the Administration would like to see go before the Supreme Court. Any bets about what the Roberts Court would say about that swipe at checks and balances?
By Patricia J. Williams
Reprinted with permission from the The Nation
The Nation I don't get it. All summer we listened to incoherent testimony from the Attorney General of the United States. Alberto "prohibitions against torture are quaint" Gonzales, the guy who believes "there is no express grant of habeas in the Constitution," had tried to bully a near-comatose John Ashcroft into OK-ing a secret warrantless wiretapping program that illegally spied on citizens. Gonzales's general uncooperativeness was so great that there was loud Congressional discussion of censure or even impeachment.
Yet here we are, only a few weeks after all the brouhaha about his fronting for President Bush's pursuit of an ever more secretive unitary executive — and Congress passes a law that legalizes precisely the kind of warrantless wiretapping the Bush Administration, through Gonzales, was seeking. The Protect America Act of 2007, or Section 1927 of the Foreign Intelligence Surveillance Act (FISA), starts with a clever limitation of the meaning of "electronic surveillance." To provide a little background, "electronic surveillance" has always been characterized as a domestic police power that requires a warrant issued by a court in order to protect the privacy interests of citizens. Foreign intelligence gathering, on the other hand, is not covered by FISA — i.e., no warrant necessary — the underlying rationale being that noncitizens who are threats to national security need not be accorded a right to privacy. This general objective is controversial, but let's allow that it is reasonable enough as an overarching proposition. The new law, by contrast, effectively removes the expectation of rights distinguishing citizens from noncitizens, as well as collapses the wall between the furtive functions of foreign intelligence gathering and the public accountability constitutionally mandated in domestic law enforcement.
The problem the law ostensibly seeks to address is that many of the fiber-optics nodes through which global telecommunications flow are located here in the United States. Should we require a warrant to monitor parties located outside the country whose text messages pass through a phone center in California? This is an interesting legal issue, but the pressing conundrum raised by the breadth of Section 1927 is whether the realities of modern technology require American citizens to forsake any expectations of privacy as a consequence. Some would say yes. In an op-ed in the Los Angeles Times, David Rivkin Jr. and Lee Casey, former Justice Department officials under Reagan and Bush I, argue: "Our privacy is compromised daily by government and nongovernment actors. This is the price of living in a modern society. The real question is how to strike the balance. Americans may, for example, be subject to physical search without a warrant or judicial oversight whenever they leave or enter the United States. The same should apply to electronic communications coming into or going out of the United States; they should not be subject to a more stringent rule."
This sounds fair until you realize that every time you call a customer hot line or directory assistance there's a good chance you've been switched to someone in India or the Philippines. So the reality is that Section 1927 offers nothing like "balance" when it comes to phone or computer privacy. It allows for blanket data-mining of any and all electronic and telephonic communication by anyone, anywhere, whether chatting with a spouse, shopping for sex toys, making a doctor's appointment or confessing to a priest. And even if airport searches target dangerous objects, we do not thereby license airlines to indiscriminately search through our wallets, read our diaries or Xerox the contents of our briefcases.
You say you want to sue? Section 1927 excludes from judicial oversight all "surveillance directed at a person reasonably believed to be located outside of the United States." Technically, the term "person" includes citizens, even though media summaries discuss it as though it applies only to foreigners. Furthermore, anyone can be the object of investigation so long as it is "significantly" related to foreign intelligence — the substantiality of that relationship to be determined by our delightful Attorney General in tandem with the director of national security.
Paradoxically, the notion of "significance" is not connected to any outside review of substance. Indeed, the certification of data collection need not "identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed." Rather, the executive must simply present a set of "procedures...reasonably designed to ensure that acquisitions" are within the exception to FISA. "The court's review shall be limited to whether the Government's determination is clearly erroneous." But it is hard to imagine how a court could ever find specific improprieties in information-gathering if it can't consider substance. Procedures are rarely "clearly" wrong in the abstract: It's the application wherein trouble lies.
If, however, there were a judicial finding of clear error under Section 1927, the executive could then appeal all the way to the Supreme Court; and any surveillance would be allowed to "continue during the pendency of any appeal." Even assuming that the Supreme Court did strike down a particular operation, the law eliminates any cause of action — possibly even malicious prosecutions — "against any person for providing any information, facilities, or assistance in accordance with a directive under this section." Apparently the government claims a right to privacy (i.e., secrecy) even as it withdraws that right from its citizens.
According to Rivkin and Casey, however, 1927 isn't broad enough. They reject the notion of "a judicial imprimatur to the procedures used to intercept" what they and the Bush Administration wrongly characterize as exclusively overseas communications. They suggest that even the very limited power of courts to review procedures under 1927 exceeds the judicial limitation to individual cases, controversies and the issuance of warrants. I predict that this is an issue the Administration would like to see go before the Supreme Court. Any bets about what the Roberts Court would say about that swipe at checks and balances?
By Patricia J. Williams
Reprinted with permission from the The Nation
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Posted by twylacrat
Poorly conceived judgments. Well, gee, isn't the Constitution good enough for you or is it the daily propoganda that counts more? I am not giving you my ill conceived judgments, dolt, I just quoted from the constitution. It really is tiresome to have to hear some of the rants on this site. And they are rants just like yours. Sorry your tired of the truth. You can post on the Daily Kos. There you can say just about anything your tired, troubled, small little mind can rant about. Ta, dimwit.
During the course of our travels on airplanes and trains, people have accepted intrusive government searches of their luggage and person without the slightest showing of probable cause. People in the streets of our cities use cell phones to communicate with each other and we don%u2019t have to try very hard to hear some segment of their private lives unfolding in the public square. It is not the President, but Congress that is trampling on the rule of law first, by creating the FISA statute which attempts to reduce the president's constitutional authority, and secondly, by inserting judges into the intelligence-gathering business where they do not belong. Even the courts have acknowledged that "the president does have the authority" and "FISA cannot encroach" on the president's constitutional power. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. Please keep this in mind next time you hear Congress telling you that they are protecting our rights. They aren't. And they aren't protecting our national security either.
The reason that I say we are all being duped is that the President has a very powerful instrument to back him up when it comes to eavesdropping on agents of foreign powers situated overseas who are hell bent on killing Americans. And that instrument is called the American Constitution. For nearly 200 years it was understood by all three branches of government that the grant of "executive power" to the president included control over intelligence gathering, especially in "wartime". It is an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. And, for constitutional purposes, the joint resolution that passed with but a single dissenting vote by Congress on Sept. 14, 2001, was "the equivalent of a formal declaration of war". Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order," ultimately the test being whether the legitimate government interest involved in discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists.
Congressional Democrats and their left-wing media supporters truly don't give a *** about our national security. It's all about politics and convincing the American public under the guise of oversight that what has been going on throughout this President's tenure is an arrogant attempt by the Executive to trample on the rule of law. However, it is this Congress and solely the Democrats and their media cohorts that are duping the people by spoon feeding the public on a daily basis that it is they and they alone who are so valiantly struggling to protect our rights. Consequently most Americans these days seem to feel that "it is Congress that has capitulated to the Bush administration's relentless insistence that it needed yet more power to eavesdrop without judicial review". Apart from making George Bush seem Imperial and God-like which, alas, he is not, I am sorry to say that you have bought into this ruse this hypocritical Congress has perpetuated in its attempt to vilify George Bush at every possible turn.
Last December former CIA operatives. Began carrying credentials
Identifying Themselves as : FBI agents.
Intelligence Agents that - Never had a background or Experience
in Law Enforcement. - No formal Law Enforcement training.
Have now been Injected into the FBI
Why do intelligence agents need to disguise themselves
as Federal Law enforcement Agents to do Background
Investigations - on the Civilian Populace ? ?
Since it is - Not - For the purpose of a Law Enforcement action
Then it must be - An act of Intelligence Gathering
What does Bush call this Echelon of : The FBI ? ? ?
Hitler had his own Secret Intelligence - Law Enforcement Agents
he called them : The Gestapo
Neither : Bush nor Mueller will - Disclose the name of this Echelon
Which is now a part of : The FBI.
______
To study Hitler - is to - Predict Bush
_____
Research :
Sen. Prescott Bush (Guardian Unlimited)
copy and paste (Google)
There was a time when : "Treason" was a : Criminal Offense
Little wonder why : The Bush Administration is :
Immune from : "Criminal Complaints" or "Criminal Prosecution"
Lastdance
it's for your own good ... there's no need to worry ... they have never misled before.
Most of the people I know are too busy working two jobs and just trying to figure how they're going to make the week out.
Personally, I use to believe that there was just the right amount of oversight within our governemnt to curtail the type of shenanigans pulled by both political parties. But lets face it folks, both parties will always strive to install officials in positions who will/can rubber-stamp their private agendas for wealth and greed.
It is time that we protest through any means to put the government back into the hands of people who understand first hand what it is like to work two jobs and care for family on $8.00 an hour.
Hitler, Saddam, Castro, and others also had "unchecked power"
Get ready kids it gonna be a bumpy ride!