Tug Of War Over Wiretapping

(CBS/AP)  With legislation that would legalize President Bush's eavesdropping program entangled in a battle over the side issue of corporate immunity, the White House sought to move the process forward by acceding to requests from the Senate Judiciary Committee to view classified documents its members have long demanded.

However, the White House continued to draw a line between Senators and House members.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., had demanded that other members of the panel have the same access to the same documents before he considers giving immunity to telecommunications companies that may have tapped Americans' telephones and computers without court approval. The measure is an amendment in the Senate's version of the bill rewriting the Foreign Intelligence Surveillance Act (or FISA).

White House Counsel Fred Fielding had offered to let Chairman Patrick Leahy and ranking Republican Arlen Specter see documents that might persuade them to include liability protection for telephone companies, but initially only to them.

Later Thursday, the White House agreed to expand the documents' distribution.

"Fred Fielding's offer to Sens. Leahy and Specter extends to the other senators and staff they designate," said White House spokesman Tony Fratto, adding that any such lawmakers and staff would have to be given a classified briefing first.

"The chairman and the ranking member can work this out," Fratto added.

Leahy told reporters he expected to see the documents as early as Monday.

The committee's endorsement of the immunity plan is needed for the broader legislation to move forward. Some senators refuse to consider the matter without seeing the classified documents.

"Immunity suggests that there's been a violation of the law and they want to be absolved from any liability," Sen. Dick Durbin, D-Ill., told reporters. "I would like to know what happened before I absolve anyone from liability."

The documents have so far not been made available to congressional counterparts on the House Intelligence and Judiciary Committees.

The Senate bill would direct courts to dismiss lawsuits against telecommunications companies if the attorney general certified that a company gave assistance between Sept. 11, 2001, and Jan. 17, 2007, in response to a written request authorized by the president, in trying to detect or prevent an attack on the United States.

Suits also would be dismissed if the attorney general certified that a company named in a case provided no assistance to the government. The public record would not reflect which certification was given to the court.

The House version of the FISA bill does not include immunity from lawsuits for the telecoms, after vociferous opposition from privacy and consumer advocates.

"Let the courts decide whether these companies, or some of them, were acting patriotically, with nobility and legally, or whether they were breaking the law." Rep. Jerrold Nadler, D-N.Y., said.

In noting the difference between the two bills, Fratto told The New York Times that the White House would continue to withhold those documents from House Committees unless the provision is added.

"If the committees say they have no interest in legislating on the issue of liability protection, we have no reason to accommodate them," he was quoted.

A Hold On Immunity

But it may not even make it into the Senate version. After the immunity clause survived the Senate Intelligence Committee, Sen. Chris Dodd, D-Conn., announced that he would place a hold on the bill, effectively keeping it from coming to the floor.

"For six years this President has used scare tactics to prevent the Congress from reining in his abuse of authority," said Dodd today, denouncing the measure.

When Sen. Majority Leader Harry Reid suggested he might push the bill to a vote anyway, several other Democrats (including Barack Obama, Joe Biden and Russ Feingold) announced that they would back a filibuster to keep the provision out.

Telecoms like AT&T are facing lawsuits claiming that they willingly participated in eavesdropping of U.S. citizen's communications, including phone calls, e-mails and Internet traffic, at the request of the government, without the government providing warrants, as required.

In one lawsuit, filed by the Electronic Frontier Foundation, AT&T is accused of allowing the National Security Agency to monitor its customers' private communications through special equipment installed in AT&T offices across the country.

This summer, National Intelligence Director Mike McConnell said that if the lawsuits were successful, "it would bankrupt these companies."

In a curious twist in the insider trading trial of Former Qwest Chief Executive Joe Nacchio, his defense introduced papers suggesting that Qwest's refusal to participate in the secret spying program cost the company government contracts.

After the program of warrantless wiretaps was revealed by The New York Times in December 2005, the White House promised to incorporate judicial oversight to its surveillance program (as had existed before September 11, 2001), while maintaining that the president's inherent authority allowed him to authorize warrantless eavesdropping. The push-pull over this authority led to the temporary Protect America Act, and the permanent version now being debated.

The current FISA program is set to expire in February. Under these rules, the government can monitor Americans' phone and computer lines outside the country if the attorney general certifies that the American is believed to be an agent of a foreign power. The new bill would require the government to get a court order to eavesdrop on Americans wherever they are in the world.

Mr. Bush emphasized that passage of a new FISA bill authorizing his eavesdropping program was vital to "staying a step ahead of the terrorists who want to attack us."

However, at the same time he suggested that passing a simple reauthorization the Protect America Act was not enough, by saying he would veto any bill which did not include immunity for the telecoms.

The government has refused to acknowledge what assistance the telecoms provided, and has invoked the "state secrets" privilege to prevent AT&T, Verizon and Qwest from either confirming or denying their participation in the program when requested by Congress.

Civil liberties advocates have strongly opposed the amnesty effort.

"Why is the president of the United States trying to get the telecommunications companies off the hook for their illegal activity?" said Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union. "He is supposed to be upholding laws, not encouraging companies to break them."

[usaprophet]

What''s Ron''s message? Whatever you think Dr. Paul''s campaign is about, the main thing it has done thus far is to serve as a clearinghouse for voters like me who feel unrepresented by New World Order Fasciscts (mainstream Republicans) and their Socialist comrades in crime (mainstream Democrats). They''re actually one and the same. There is no real difference between the two parties. Most people, though, are too distracted, dumbed-down, or outright brainwashed by mainstream media, which endlessly regurgitates scientifically-crafted streams of information and entertainment aimed at imprisoning your mind and keeping your eyes closed to the realities of the world around you, to recognize this. Those currently in power, and those being groomed to take [major] political power, are the global elite, and we are their "plebs." People on the right and those on the left have many differences, maybe irreconcilable ones. But they have a lot of common beliefs too, and their numbers and anger are of a considerable magnitude. No matter what happens in 2008, I personally believe Ron Paul will influence the national conversation about what the role of the federal government is, how much power should government have over our lives, how much liberty we should give up for security. These are important issues, and frankly, no one''s talking about them as seriously and sincerely as Ron Paul. What''s for sure is that his growing army of supporters like me will be a force to be reckoned with in 2008.

[mudrose-2009]

Posted by thefarrier

Rubbish.

[usaprophet]

Like Ron Paul, I believe the biggest threat to your privacy is the government. We must drastically limit the ability of government to collect and store data regarding citizens'' personal matters. We must stop the move toward a national ID card system (e.g., The Real ID Act). Under this new law, states are currently issuing new driver''s licenses embedded with standard identifier data (RFID chips). Although, some states like Montana are refusing to comply. A national ID with new tracking technologies means we''re heading into an Orwellian world of no privacy. Ron Paul was one of the few members of Congess who voted against the Real ID Act. Also, under current medical privacy protection rules, which Ron Paul also opposed, insurance companies and other entities have access to your personal medical information. Finally, there''s the so-called Patriot Act, which Congressman, Ron Paul also voted against. As originally proposed, it expanded the federal government''s ability to use wiretaps without judicial oversight; allowed nationwide search warrants non-specific to any given location, nor subject to any local judicial oversight; made it far easier for the government to monitor private Internet usage; authorized sneak and peek warrants enabling federal authorities to search a person''s home, office, or personal property without that person''s knowledge; and required libraries to turn over records of books read by their patrons. Ron Paul sponsored a bill to overturn the Patriot Act.

[mudrose-2009]

Prior to the enactment of FISA, domestic wiretaps were routinely done for "national security purposes" under nothing more than Presidential authority. Presidents from Roosevelt to Nixon ordered domestic wiretaps to protect national security. Indeed, prior to the enactment of the FISA statute, there used to be an exception in the wiretap criminal statute that provided, "[n]othing contained in this [statute] shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities..." The Nixon administration used this exception to conduct surveillance and interception without warrants on a host of domestic "subversive" groups. When this was revealed, Congress stepped in to limit the abuses by giving the President a mechanism for conducting foreign intelligence (and now terrorism) investigations by passing the Foreign Intelligence Surveillance Act (FISA).

[mudrose-2009]

It was pursuant to this authority, for example, that the President ordered the detention of Yaser Esam Hamdi, a U.S. citizen, and the Supreme Court affirmed his authority to do so, citing in part the AUMF resolution. Similarly, the United States Court of Appeals for the 4th Circuit affirmed the authority of the government to seize U.S. citizen Jose Padilla also under the AUMF resolution, although they later rejected the government''s efforts to remove him to Florida as a potential pretext to moot a US Supreme Court review. Both courts held that the AUMF, although silent on the issue, authorized the President to detain U.S. citizens on U.S. soil if he designated them as combatants.

[mudrose-2009]

In addition to the general war powers, the President and the Attorney General have relied on an act of Congress - the Authorization for Use of Military Force (AUMF) passed on September 18, 2001 - indeed while the embers of the Pentagon and World Trade Centers were still burning. This is important because the wiretapping laws make it a crime to engage in warrantless wiretaps unless otherwise authorized by statute. The administration is reading the AUMF as the "statute" that authorizes the wiretapping, even while Members of Congress are emphasizing that they intended no such thing.

The AUMF empowered the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks. The President''s war powers, even during this "war on terrorism" or "war on Islamic fundamentalism" or "Global War on Terror," have traditionally trumped limiting statutes.

[usaprophet]

Most Americans just don''t seem to care that our country, along with the Constitution upon which it was founded, is being flushed-down the NWO toilet by our nations ruling elite. Most of Congress and the President warn and insite fear in the sheeple about the prospect of terrorism, while they at the same time fund and conduct illegal wars overseas that do nothing but encite the terrorism which they say their new Draconian Laws like the Patriot Act and The Real ID Act pretend to protect us from. Think about it. What would you do, if someone invaded the U.S. for no reason, and took over. You''d be mad as hell, and you''d be making trips to their country in order to give a little payback. Wake up America! It''s not about protecting you from terrorism, or saving our planet from Global Warming, or any of that fear-mongering garbage the tube feeds you 24/7. It''s about feeding the military industrial complex and facilitating the ruling elite''s ability to ratchet-down control over the American people, placing them into a total control grid where they can surveille, track and control everywhere you go and everything you do. It''s the groundwork for totalitarianism. I weep for my country, and for those who are so distracted, dumbed-down, or outright brainwashed by mainstream media, which endlessly regurgitates scientifically-crafted streams of information aimed at keeping their eyes closed to the realities of the world around them, that they fail to recognize this. Go Ron Paul!.

[mudrose-2009]

Under that authority, you could lock up editors and publishers (that was, northern editors and publishers) for writing unfavorable articles, prevent newspapers from having mailing privileges, and even seize the property (slaves) of southerners (The Emancipation Proclamation) to cause hardship and economic suffering to the enemy. You can punish as seditious libel that which would otherwise be free speech (the Alien and Sedition Acts passed under President John Adams), and lock up tens of thousands of U.S. citizens based upon nothing more than their ethnicity (the Japanese detention cases during World War II.) Historically, the Courts have been reluctant to look beyond the declarations of the executive branch during time of war concerning the necessity of some acts to protect the American people. Indeed, only when President Truman attempted to use the Korean War (a conflict?) as justification for seizing the steel mills did the courts deny his assertion of Presidential war power.

[mudrose-2009]

Balanced against this Constitutional provision is that of Article II Section 2, which designates that the President of the United States is the Commander in Chief. There are certain things that the government has historically done in wartime, which might have been otherwise illegal, but hey - as General William T. Sherman said, "War is all hell." Indeed, during his famous march on Atlanta near the close of the Civil War, he did not get court orders authorizing the seizure of southern farms, livestock or property - he just took it - cause that''s what you do in wartime. If you suspect that someone (back in the Civil war, that meant a U.S. citizen) was working with the enemy, you arrested them. We would hardly expect General Sherman''s army to follow the niceties of search warrants or special writs to be able to listen in on telegraph communications between Confederate Generals. That is the nature of the power of the government in time of war. Warrantless foreign intelligence collection has been an established practice of the Executive Branch for decades. The Supreme Court has noted that warrantless electronic surveillance "has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946. Warrantless electronic surveillance has been used by the Executive to collect intelligence information since at least the mid-1800s" .

[mudrose-2009]

The first place to start any analysis of privacy, search, seizure and surveillance is with the U.S. Constitution itself. The Fourth Amendment provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." So you would read that to mean that you would need a warrant to search for and seize things - including electronic mail messages, right? Wrong. You see, there are two independent clauses there - no unreasonable searches and seizures, and a necessity for warrants. It there is a search without a warrant, but it is reasonable, then it''s okay. In fact, there are probably more searches and seizures without warrants than with them. If the search is done with consent (and here is the tough part - maybe with just the consent of the ISP), or because of some imminent harm or exigent circumstance, or to protect the safety of the police, or for a whole host of other exceptions carved out by the Supreme Court (including because its in a car), then no warrant is necessary.