Disappointment On Civil Liberties

I think I was too soon in my tempered praise for Obama's decision on Bagram Air Force Base. Yes, prisoners there will have an opportunity to challenge their detention, but basically using the same process found unconstitutional when tried at Guantanamo. This still denies prisoners basic habeas rights in a court of law and allows the government to abduct anyone and send them to Bagram indefinitely, where they cannot challenge their detention properly. In fact, since the action was in response to a court order to allow non-Afghan prisoners a right to plead their case, the detainees will probably have no opportunity to act on this until years of litigation over whether this system can pass Constitutional muster. As one of the representatives for Gitmo detainees said yesterday, "It’s another stall. And one I would have expected from the Bush administration but not the Obama administration."

Boy, how many times have we heard that? In addition to turning Bagram into Guantanamo East and seemingly stocking prisoners there outside any review process, this Administration wants to create a legal process for preventive detention, enabling them to hold anyone without charges indefinitely, which Russ Feingold has called "a hallmark of abusive systems that we have historically criticized around the world." Obama's CIA continue to use the state secrets privilege to get out of a host of different accountability measures. And just yesterday, the Administration announced that they support renewing all sections of the Patriot Act.

The Obama administration has for the first time set out its views on the controversial USA Patriot Act, telling lawmakers this week that legal approval of government surveillance methods scheduled to expire in December should be renewed, but leaving room to tweak the law to protect Americans' privacy.

In a letter from Justice Department officials to key members of the Senate Judiciary Committee, the administration recommended that Congress move swiftly with legislation that would protect the government's ability to collect a variety of business and credit card records and to monitor terrorism suspects with roving wiretaps.

But Assistant Attorney General Ronald Weich also told Democrats that the administration is "willing to consider" additional privacy safeguards advocated by lawmakers, so long as the provisions do not "undermine the effectiveness of these important authorities."

The three provisions set to expire Dec. 31 allow investigators to monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers, obtain business records of national security targets, and track "lone wolves" who may be acting alone on behalf of foreign powers or terrorist groups. The government has not employed the lone wolf provision, but department officials want to ensure they can do so in the future.

Well, that's nice, they're "willing to consider" privacy safeguards. It's not like we've had multiple reports of the FBI violating privacy through unauthorized national security letters or wiretaps that capture the information of individual Americans. With Russ Feingold and Dick Durbin working on a bill including these safeguards, some advocacy groups are optimistic, but given the Administration record on civil liberties to this point, I'm not sure why.

The President, a Constitutional scholar, is doing what executives in the executive branch typically do - aggrandize their power in the manner of the previous occupant of the office. The courts and Congress need to do what's necessary to stop them. But when the previous President so flagrantly abused the privacy protections and civil rights of American citizens and violated the country's laws, you'd think that the new man on campus would trim his sails a little bit.

Conflicting Statements On FISA

There's considerable evidence that House and Senate negotiators are deadlocked on whether to give Bush everything he wants, including immunity for his lawbreaking, on FISA.

House Majority Leader Steny H. Hoyer said Wednesday the House will not take up an electronic surveillance measure this week, further delaying any decisions on the controversial measure.

Hoyer said in his weekly press conference that he hoped to wrap up work on an update to the Foreign Intelligence Surveillance Act; “towards the end of this week or the beginning of next week.”

However, the majority leader acknowledged that there were “still disagreements” within the Democratic caucus over the issue of granting immunity to telecom companies who aided the government in the wiretapping program [...]

Although Democratic leaders insist they are working feverishly to iron out their differences, one House member—speaking on the condition of anonymity—suggested it could be a long time, if ever, before the bill was brought for a vote.

“A lot of people think the politics of doing nothing on this issue are very good for both sides of the political spectrum,” they said.

Behind the scenes, it appears that there are internal differences between Democrats over the immunity issue. However, House Speaker Nancy Pelosi pointed to exclusivity as the real issue.

In a conference call with bloggers today, House Speaker Nancy Pelosi (D-CA) made it clear that her highest priority for a surveillance bill was that it contain a so-called "exclusivity" provision -- a measure that would explicitly state that the bill would be the "exclusive means" by which the government would conduct surveillance, or in other words, the president does not have the power to ignore the law if he/she so pleases.

"Exclusivity is the issue," she said.

Of course, the original FISA bill had "exclusivity" in it. Bush broke the law. Making FISA the exclusive means for intelligence gathering and surveillance is nice, but it just says you can't break the law. Amnesty says that breaking the law doesn't matter.

I think what's causing this new-found concern against amnesty within the Democratic caucus are the stories about major privacy violations as a result of national security letters, which allowed the FBI to illegally obtain personal information of Americans, and this new question about emails, which puts the fight over FISA into an entirely new context:

The fight in Congress and the big push for expanded wiretapping powers has nothing to do with intercepting foreign-to-foreign phone calls inside the United States without a court order. In fact, it turns out that the nation's secret wiretapping court is fine with that.

That extraordinary admission came from Assistant Attorney General for National Security Kenneth Wainstein at a breakfast on Monday, according to the Washington Post.

"At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States."

That would make sense since email doesn't go directly to a device in most cases, it goes to a server that holds the email until the recipient(s) come to pick up the email -- which could be and often is from different parts of the world -- think of any business traveler.

DNI Michael McConnell, the serial exaggerator who claims to be a non-political straight shooter, himself kept saying the NSA lost 70 percent of its capabilities after the ruling.

If that's the case, that means that 70 percent of what the NSA does is collect emails inside United States telecom infrastructure and service providers.

Really? If that's what tens of billions of dollars are going to the NSA for annually, we don't need to give them more power to read emails, we need to get them to learn to do real intelligence collection.

I think that Democrats took a look at the loss of privacy on all these other fronts and decided that they want to actually know the breadth of it with regard to telecom surveillance. You cannot give cover to the executive to gather intelligence at his discretion without oversight or judicial review and expect there to be no abuses. This is all devastating evidence in favor of stopping any talk of immunity. DFA is fighting very hard against those who would give the President and his corporate buddies full carte blanche to break the law. We need to fight for justice on this one. No amnesty.

Civil Liberties, Checks and Balances Making A Comeback

This week we have seen a couple court cases that strike back at the Bush Administration's grabbing of new and extreme executive powers for the executive branch. A federal judge demanded that the Administration provide documents to the court relating to an ACLU lawsuit against the government's warrantless spying program. The government sought to dismiss the case based on the state secrets privilege, and denied even those in the court with security clearance to see the documents requested under the Freedom of Information Act.

While the court is certainly sensitive to the government's need to protect classified information and its deliberative processes, essentially declaring "because we say so" is an inadequate method for invoking Exemption.

Then, a major portion of the Patriot Act was struck down.

A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act "offends the fundamental constitutional principles of checks and balances and separation of powers."

This specifically deals with National Security Letters, which implements a gag order on those businesses summoned with one. No grand jury subpoena or judge's order was required to issue a National Security Letter, meaning the government could deploy them at will to force businesses to turn over customer records without oversight. These letters were previously shown to be misapplied by the FBI.

Even the long-ago-forgotten LEGISLATIVE branch got into the act by criticizing the new use of spy satellite technology.

Senior House Democrats called on the Bush administration yesterday to delay a planned Oct. 1 expansion of the use of powerful satellite and aircraft spy technology by local and federal law enforcement agencies, challenging the plan's legality and charging that the administration is failing to safeguard the privacy of Americans.

House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) and two Democratic subcommittee chairmen jointly asked the Department of Homeland Security to provide the legal framework for the domestic use of classified and military spy satellites, and to allow Congress to review privacy and civil liberties protections.

"You let this thing go, it may be another blank check to the executive. It may morph into things that will terrify you if you really understand the capabilities of satellites," said Rep. Jane Harman (Calif.), former ranking Democrat on the House intelligence committee.

Next thing you know, they'll start fighting efforts to give away massive new spying powers to the President!