The Surveillance Regime

Editorial - The Nation

April 09, 2010 "The Nation" -- The recent California federal district court ruling that the Bush administration's warrantless wiretapping violated a 1978 surveillance law was the first significant judicial rebuke to post-9/11 government eavesdropping. For that reason alone, Judge Vaughn Walker's damages award to the Muslim charity Al-Haramain and its attorneys, targets of unlawful spying in 2004, is worthy of celebration. But the ruling won't change our current deeply troubling surveillance regime. In that sense, it is a timely reminder of unfinished business.

Ever since Barack Obama took office, accountability for rights violations during the "war on terror" has been thin. Victims of wrongful overseas detention, surveillance and torture have received no apology and no reparations. Despite an early commitment to close Guantánamo, 183 prisoners remain there. Indeed, Obama has released fewer detainees than Bush did during his last year in office. And despite an early promise to protect the First Amendment rights of Muslim charities, Obama has done nothing to change the onerous application of terrorism financing laws. Walker's decision is only the second to have ruled against the so-called Terrorist Surveillance Program. All other challenges--including one against the odious 2008 FISA Amendments Act (FAA), which The Nation has joined as a plaintiff--ultimately got booted at the courthouse door.

Even if Walker's opinion survives possible appeal, it will have no effect on the broad surveillance powers unleashed by the FAA, which passed with then-Senator Obama's support. Under that law, the government can dispense with individualized warrants, the cornerstone of Fourth Amendment privacy protections. Absent meaningful judicial review, we simply can't know how much surveillance the government is carrying out.

Continuity, not change, has characterized the conduct of Eric Holder's Justice Department. Walker documents, in his opinion, the government's persistent "refusal to cooperate with the court's orders," its improper use of procedural delays and even point-blank refusals to produce information. Yes, this was business as usual during the Bush era. But Walker was talking about events on Obama's watch.

Nor is Walker's experience unusual. In lawsuits by survivors of the CIA's "black sites" and Guantánamo's interrogation rooms, the government either keeps insisting that "state secrets" require outright dismissal or has stuck to the canard that noncitizens forcibly brought into US custody overseas lack all constitutional rights. In Guantánamo litigation, habeas lawyers complain about obfuscation, secrecy and delay not dissimilar from what they faced in the Bush era.

Blaming the lawyers is easy. But it is the otherwise near-absolute absence of accountability that makes Walker's opinion such a lonely beacon. This absence is, in large part, a result of the Obama administration's failure to explain to the American people that the surveillance program violated the Constitution, and that unlawful and futile torture was rife in Guantánamo and the black sites.

It is not too late to win the political, or the moral, battle. It is not too late to use the bully pulpit of the presidency to explain that reckless and illegal incursions into privacy rights are no road to security. It is only by taking on that battle that the Obama administration, and not just a handful of voices on the federal bench, can produce the real change its lawyers have been fighting.

Copyright © 2009 The Nation

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The Criminal NSA Eavesdropping Program

O.K, so the domestic spying program was and is illegal. What can be done about it. Do Bush Cheney and the others who made this decision just walk free. If so, why keep going on about it?

The precedent has been set. If no one pays for this illegality, presidents and vice presidents in the future will not hesitate to do something like it, or worse, again.

By PAUL ELIAS

March 31, 2010 "Salon" -- - While torture and aggressive war may have been the most serious crimes which the Bush administration committed, its warrantless eavesdropping on American citizens was its clearest and most undeniable lawbreaking.  Federal District Judge Vaughn Walker yesterday became the third federal judge -- out of three who have considered the question -- to find that Bush's warrantless eavesdropping program was illegal (the other two are District Judge Anna Diggs Taylor and 6th Circuit Appellate Judge Ronald Gilman who, on appeal from Judge Taylor's decision, in dissent reached the merits of that question [unlike the two judges in the majority who reversed the decision on technical "standing" grounds] and adopted Taylor's conclusion that the NSA program was illegal).  

That means that all 3 federal judges to consider the question have concluded that Bush's NSA program violated the criminal law (FISA).  That law provides that anyone who violates it has committed a felony and shall be subject to 5 years in prison and a $10,000 fine for each offense.  The law really does say that.  Just click on that link and you'll see.  It's been obvious for more than four years that Bush, Cheney, NSA Director (and former CIA Director) Michael Hayden and many other Bush officials broke the law -- committed felonies -- in spying on Americans without warrants.  Yet another federal judge has now found their conduct illegal.  If we were a country that actually lived under The Rule of Law, this would be a huge story, one that would produce the same consequences for the lawbreakers as a bank robbery, embezzlement or major drug dealing.  But since we're not such a country, it isn't and it doesn't.

Although news reports are focusing (appropriately) on the fact that Bush's NSA program was found to be illegal, the bulk of Judge Walker's opinion was actually a scathing repudiation of the Obama DOJ.  In fact, the opinion spent almost no time addressing the merits of the claim that the NSA program was legal.  That's because the Obama DOJ -- exactly like the Bush DOJ in the case before Judge Taylor -- refused to offer legal justifications to the court for this eavesdropping.  Instead, the Obama DOJ took the imperial and hubristic position that the court had no right whatsoever to rule on the legality of the program because (a) plaintiffs could not prove they were subjected to the secret eavesdropping (and thus lacked "standing" to sue) and (b) the NSA program was such a vital "state secret" that courts were barred from adjudicating its legality.

Those were the arguments that Judge Walker scathingly rejected.  All of the court's condemnations of the DOJ's pretense to imperial power were directed at the Obama DOJ's "state secrets" argument (which is exactly the same radical and lawless version, as TPM compellingly documented, used by the Bush DOJ  to such controversy).  From the start, the Obama DOJ has engaged in one extraordinary maneuver after the next to shield this criminal surveillance program from judicial scrutiny.  Indeed, their stonewalling at one point became so extreme that the court actually threatened the Obama DOJ with sanctions.  And what TPM calls the Obama DOJ's "Bush-mimicking state secrets defense" has been used by them in one case after the next to conceal and shield from judicial review a wide range of Bush crimes -- including torture, renditions and surveillance.  As the Electronic Frontiers Foundation put it:  "In Warrantless Wiretapping Case, Obama DOJ's New Arguments Are Worse Than Bush's."

That's why this decision is such a stinging rebuke to the Obama administration:  because it is their Bush-copying tactics, used repeatedly to cover up government crimes, which the court yesterday so emphatically rejected.  And it's thus no surprise that media accounts tie the Obama administration to the cover-up of this program at least as much as the Bush administration.  See, for instance:  Charlie Savage and James Risen in The New York Times ("A federal judge ruled Wednesday that the National Security Agency's program of surveillance without warrants was illegal, rejecting the Obama administration's effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush"); Time ("The judge's opinion is pointed and fiercely critical of the Obama Administration's Justice Department lawyers" and "The judge claims that the Obama Administration is attempting to place itself above the law").  The 9th Circuit Court of Appeals also previously condemned the Bush/Obama "state secrets" position as abusive and lawless.

In December, 2005, The New York Times revealed that the Bush administration had been doing for years exactly that which the law unambiguously said was a felony:  eavesdropping on the electronic communications of Americans (telephone calls and emails) without warrants.  We knew then it was a crime.   Three federal judges have now concluded that it was illegal.  And yet not only do we do nothing about it, but we stand by as the Obama administration calls this criminal program a vital "state secret" and desperately tries to protect it and the lawbreakers from being subject to the rule of law.  This decision may make it more difficult for the Obama administration to hide behind sweeping secrecy claims in the future, but it won't negate the fact that we have decided that our leading political officials are completely free to commit crimes while in power and to do so with total impunity.
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One related note:  back when Judge Diggs Taylor ruled that the Bush NSA program was unconstitutional, law professors Orin Kerr and Ann Althouse (the former a sometimes-Bush-apologist and the latter a constant one) viciously disparaged her and her ruling by claiming that she failed to give sufficient attention to the Government's arguments as to why the program was legal.  Althouse was even allowed to launch that attack in an Op-Ed in The New York Times.  But as I documented at the time, the argument made by these right-wing law professors to attack Judge Taylor was grounded in total ignorance:  the reason the court there didn't pay much attention to the legal justifications for the NSA program was because the Bush DOJ -- just like the Obama DOJ here -- refused to offer any such justifications, insisting instead that the court had no right even to consider the case.

That's why I find it darkly amusing that, today, the same Orin Kerr is solemnly lecturing The New York Times that Judge Walker here did not consider the merits of the claims about the program's legality because the Obama DOJ argued instead "that Judge Walker couldn't reach the merits of the case because of the state secrets privilege."  Kerr is wrong when he says that this ruling does not constitute a decision that the Bush NSA program was illegal -- it does exactly that, because the plaintiffs offered evidence and arguments to prove it was illegal and the Obama DOJ (like the Bush DOJ before it) failed to offer anything to the contrary -- but he 's right that Judge Walker did not focus on the merits of the defenses to the NSA program because the Obama DOJ (like the Bush DOJ) refused to raise any such defenses.  But exactly the same thing was true for Judge Taylor when she ruled three years ago that the NSA program was illegal, which is why the right-wing attacks on her judicial abilities back then (led by Kerr and Althouse) were so frivolous and misinformed.

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