Monday, April 10, 2006

Spygate - Illegal NSA warrantless wiretapping plot thickens



There appears to be a new twist in the controversial issue of illegal domestic wiretapping where
President Bush authorized the NSA to conduct warrantless electronic surveillance of United States citizens making calls outside of the United States. By now everyone is aware of the story of domestic spying which was first broken by the New York Times on December 16, 2005 after witholding the story for over a year because of pressure from the White House (which doesn't say much for the Fourth Estate protecting the people in a timely and dilligent manner), and later added to with detail by The Washington Post and USA Today in February of 2006. The scope of the spying, already thought by many to be far in excess of presidential authority, may far exceed what was first reported, and may indeed encompass not only communication between domestic and foriegn parties but may also include communication entirely within the United States.

During a hearing before the House Judiciary Committee on Thursday, April 6, Attorney General Alberto Gonzales hinted that warrantless wiretaps were possible solely within the United States. In this hearing of the Judiciary Comittee Representative Adam Schiff (D-Calif.) asked the Attorney General point blank whether the administration believes it has the authority to wiretap purely domestic calls between two Americans without seeking a warrant. "I’m not going to rule it out," replied the Attorney General. A partial transcript can be found on the Congressman's website here .

This revelation is hardly without precedent, as can be noted in a document by the Attorney General on the Department Of Justice website itself specifically addressing the legality of these illegal warrantless wiretaps released January 27, 2006 entitled "THE NSA PROGRAM TO DETECT AND PREVENT TERRORIST ATTACKS MYTH V. REALITY" which can be found here . Some excerpts from the document like this:

Myth: The NSA program is a domestic eavesdropping program used to spy on innocent

Reality: The NSA program is narrowly focused, aimed only at international calls and
targeted at al Qaeda and related groups. Safeguards are in place to protect the civil
liberties of ordinary Americans.

don't seem to make much sense in light of this new revelation of domestic-domestic spying. And further accentuated by this bullet point:

• The program only applies to communications where one party is located outside of the
United States.

However, the Attorney General seemed to provide himself some cover from future recriminations in the same document further on, when he stated:

Myth: The NSA program violates the Foreign Intelligence Surveillance Act (FISA).

Reality: The NSA activities described by the President are consistent with FISA.

Clearly indicating, by the fact of qualifying that the NSA activities "described by the President" are consistent with FISA, and by omission admitting that other, undescribed NSA activites are possibly in violation of FISA. It is important to note that this statement is 'prepared' and available on the DOJ website. It is not an off the cuff remark to reporters, but something well thought out and obviously consulted on and in writing. The fact that it is being made by the highest law enforcer in the land and contains such an obvious escape-clause qualification should not be overlooked, especially when taken in conjunction with the recent avowage that domestic-only calls may be 'legally' monitored without warrants.

These new comments seem to contradict statements Attorney General Gonzales made on December 19, 2005 which can be found here and state in part:

The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States.

That last sentence seems rather telling in retrospect.

Several things jump out here to ring alarm bells. First of all, why is the Bush administration once again facing down congress? It was only recenly that the Patriot Act was up for renewall, and Bush said that he would be enforcing it weather Congress passed it or not. Further, during the Dubai Port controversy, Bush threatened
to veto any legislation passed by Congress to block that deal and later admitted he hadn't even read the reports yet. Let me re-iterate; Before knowing any details of a deal both the american people and congress were concerned about, President Bush was going to veto (slap-down) any opposition, sight unseen. This not only seems to be a
complete disrespect for the Legislative branch of the government, it is an outright slap in the face. Now, when both parties are grumbling about warrantless wiretaps being illegal between America and overseas, we find out that is only the tip of the iceberg and not only are domestic communications being surveiled, but possibly all forms of communication anywhere are being surveiled and recorded for use at a later date. It is astonishing that while congress scrambles to push through bills which would supposedly retroactively allow the President his illegal spying under the auspices of some future oversight, practically bending over backwards and begging for some face saving compromise which would allow them to continue to pretend to have some power, they are only being spat upon and laughed at by the administration.

Ladies and Gentlemen of the jury, I present you with exhibit B. Press release from EFF, The Electronic Frontier Foundation, in its ongoing case vs AT&T alleging complicity with the NSA in violating the privacy rights of U.S. citizens can be summed up with this initial statement:

The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive and illegal program to wiretap and data-mine Americans' communications.

of which the full text can be found here.

Furthermore, the EFF reported on April 6 that it filed 'Evidence in Motion to Stop AT&T's Dragnet Surveillance' in this ongoing case against AT&T, which would indicate that the EFF has concrete evidence to support its motion to stop AT&T from disclosing information to the NSA. After supressing the EFF's documents while being reviewed,the DOJ finally allowed them to be filed under seal, whereas only the judge and the litigants are allowed to see them and the public is barred access. Strangely enough and in defiance of this rule, the government, who is not a party to the case appears to be maintaining a strict watch and tight leash on all information.

Some interesting technical information on this as well as the shadowy ties between the industry and intelligence groups can be found here.

It is interesting to note that the White House, while skirting the edges of legality in the past regarding illegal wiretapping of foriegn-domestic calls has turned to admitting illegal surveilance of domestic-domestic calls just (on the same day) at the time when someone (the EFF) was going to blow the case wide open. One has to wonder if this is some sort of pre-emptive damage control, and one has to wonder how this was organized and ready ahead of time without the abuse of purely domestic surveilance on groups such as the EFF.

- Tsoldrin Benjari