Yes, Once Again: Meet The New Boss ...

... same as the old boss (indeed):

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Obama Administration quietly expands Bush's legal defense of wiretapping program

In a stunning defense of President George W. Bush's warrantless wiretapping program, President Barack Obama has broadened the government's legal argument for immunizing his Administration and government agencies from lawsuits surrounding the National Security Agency's eavesdropping efforts.

In fact, a close read of a government filing last Friday reveals that the Obama Administration has gone beyond any previous legal claims put forth by former President Bush.

Responding to a lawsuit filed by a civil liberties group, the Justice Department argued that the government was protected by "sovereign immunity" from lawsuits because of a little-noticed clause in the Patriot Act. The government's legal filing can be read here (PDF).

For the first time, the Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of US law. They maintain that the government can only be sued if the wiretaps involve "willful disclosure" -- a higher legal bar.

"A 'willful violation' in Section 223(c(1) refers to the 'willful disclosure' of intelligence information by government agents, as described in Section 223(a)(3) and (b)(3), and such disclosures by the Government are the only actions that create liability against the United States," Obama Assistant Attorney General Michael Hertz wrote (page 5).

Senior Staff Attorney Kevin Bankston at the Electronic Frontier Foundation, which is suing the government over the warrantless wiretapping program, notes that the government has previously argued that changes to the Patriot Act protected the government from lawsuits surrounding eavesdropping. But he says that this is the first time that they've made the case that the Patriot Act protects the government from all surveillance statutes.

"They are arguing this based on changes to the law made by the USA PATRIOT Act, Section 223," Bankston said in an email to Raw Story. "We've never been fans of 223--it made it much harder to sue the U.S. for illegal spying, see an old write-up of mine at: http://w2.eff.org/patriot/sunset/223.php --but no one's ever suggested before that it wholly immunized the U.S. government against suits under all the surveillance statutes."

Salon columnist and constitutional scholar Glenn Greenwald -- who is generally supportive of progressive interpretations of the law -- says the Obama Administration has "invented a brand new claim" of immunity from spying litigation.

"In other words, beyond even the outrageously broad 'state secrets' privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they 'willfully disclose' to the public what they have learned," Greenwald wrote Monday.

He also argues that the Justice Department's response is exclusively a product of the new Administration, noting that three months have elapsed since President Bush left office.

"This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials," Greenwald wrote. "Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance."

"Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of 'state secrets' to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself," he adds.

Both the Electronic Frontier Foundation and the American Civil Liberties Union say the "sovereign immunity" claim in the context of the case goes farther than any previous Bush Administration claims of wiretap immunity.

Writing about the changes to the Patriot Act last year, the EFF asserted that revisions to the Act involved troubling new developments for US law.

"Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping," the Foundation wrote. "That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court."

Moreover, they said, "Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 significantly reduced a judge's ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!"

In short: I told you so, didn't I?

Meanwhile, in other news ...

Then go read Glenn Greenwald.

Any questions?

(sigh)


(Cross-posted from APOV)

That Convenient Rationale Of Security Agencies - Here We Go Again

(Updated Below) (Updated Again)

In this older post, I brought attention to the NSA (under the Obama administration) seeking to expand its powers regarding matters of cybersecurity.

The point I reiterated then is that police and security agencies will always demand more and more spying powers in order to fullfill their self-ascribed "mission". And said mission is the following:

Because any activity may or may not - immediately or at some point in time or never at all - lead to acts which may or may not "threaten the safety and security of citizens or the integrity of the country's critical infrastructure", then monitoring, surveying and spying on the citizenry constitute the only means to keep the nation safe.

Which in turn defines the ever convenient rationale of security agencies to abuse power.

Well, looks like yours truly is being proven right yet again (emphasis added):

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Director of FBI Urges Renewal of Patriot Act
Portions of Law to Expire This Year

FBI Director Robert S. Mueller III urged lawmakers yesterday to renew intelligence-gathering measures in the USA Patriot Act that are set to expire in December, calling them "exceptional" tools to help protect national security.

The law, passed shortly after the Sept. 11, 2001, terrorist attacks, created divisions between proponents, who said it was necessary to deter terrorism, and privacy advocates warning that it tramples on Americans' civil liberties. Portions of the law are up for reauthorization this year.

Mueller told members of the Senate Judiciary Committee he hopes that the reauthorization of two provisions would be far less controversial than in previous years. One of those provisions, which helps authorities secure access to business records, "has been exceptionally helpful in our national security investigations," he said.

In response to a question from Sen. Benjamin L. Cardin (D-Md.), Mueller said that his agents had used the provision about 220 times between 2004 and 2007. Data for last year were not yet available, he said.

The measure allows investigators probing terrorism to seek a suspect's records from third parties such as financial services and travel and telephone companies without notifying the suspect. The American Civil Liberties Union has criticized the provision, saying it violates the First Amendment rights of U.S. citizens.

Another provision, permitting roving wiretaps of terrorism suspects, was used 147 times and has helped eliminate "an awful lot of paperwork," Mueller said. In the past, authorities had to seek court approval for each electronic device carried by a suspect, from a cellphone and a BlackBerry to a home computer. But under the provision, one warrant can cover all of those machines.

The ACLU issued a report this month describing "widespread abuse" of government authority under the Patriot Act.

News of the ACLU's report can be found here (and the report in pdf format can be downloaded by clicking this link). In short, the report demonstrates that while surveillance steadily increased between 2002 and 2008 (such as through FISA orders - 2370 total in 2007 alone -, national security letters - 49425 total in 2006 alone -, and suspicious activities reports - 1250439 total in 2007 alone -), such massive increment of data collection actually ran contrary to a steady drop of prosecutions of FBI international terrorism cases (only 34 in 2008), yet paralleled by an gradual increase in the percentage of FBI international terrorism referrals declined for prosecution by the DOJ (a staggering 87% in 2006 alone).

In other words (again): increased, indiscriminate domestic spying powers (or abuses of) and consequent trampling of constitutional civil rights do not increase security, nor do these result in catching and prosecuting more terrorists.

However, what these do result into is an increment of innocent people being snared by such wide surveillance nets, and consequently tagged as potential security threats by the always paranoid-driven security agencies, for nothing more than exercizing their most basic civil rights. As a reminder of this tragic fact of reality, here are previous APOV posts which describe numerous examples of such resulting abuses and injustices (including Canadian examples) - all in the sacro-saint name of Security:

The Security State And Omerta;

Security Agencies And Their Neverending Need For Increased Powers;

Can You Taste Teh Democracy And Freedom?

Tougher Anti-terror Laws In Canada ...;

Enabling Police Abuse;

Got Protest? Lose All That You Own - Including Your Rights;

Shhhhh ... Don't Speak, Don't Say A Word ...;

Loopholes In Domestic Spying For No Need Of Warrants?

The Problems With The FISA Capitulation Bill;

Domestic Spying: I *Did* Tell You So, Didn't I?

Domestic Spying In Canada: Ok. *Now* I'm Saying "I Told You So";

Domestic Spying Reloaded: I Told You So ...;

Domestic Spying Abuse: You Were Warned;

Your Privacy - Government Style;

Security, Hallowed Be Thy Name And Dominion;

Security - Hallowed By Thy Name;

Domestic Spying In Canada: It Happened And It Is Still Happening;

More Case Of Abusive, Paranoid-Driven Security State Domestic Spying;

The Authoritarian Security State At Work;

Domestic Spying In Canada: Here We Are;

While No One Was Paying Attention ...;

Brownshirts 'R US;

Reloaded: Gitmo U.S.A.;

Domestic Spying: The Ever Convenient Rationale Of The Security State;

Welcome To The Security State Of North America;

North American Security State: I Told You So ...

The Bush Legacy Equation: Authoritarianism + Corporatocracy = Fascism;

Losing Ourselves Beyond Redemption;

Whither Goest Thou, America?

There Can Be No Security Without Human Rights.

Proof again that no one is safe - because police and security agencies will always abuse any domestic spying powers granted to them, due to their pathological (non)reasoning that anything must be viewed through the narrow, paranoid prism of criminality, terrorism and threats to security.

And it is now all-too-evident that "anything" means anything.

From blogging to writing a dissenting letter to a newspaper editor to a journalist trying to do investigative work to gathering at a coffee shop to rant about politics to reading "suspicious" stuff (books, blogs) to organizing/participating in activist actions (letter/phone/email campaigns, peaceful protests), etc., etc., etc.

It is in the nature of police and security agencies to view such ordinary, mundane exercizes of civil rights as suspicious activities.

So why are we ever willing to grant them such powers?

The question brings me back to this:

So, my American friends and fellow Canadians ...

Maybe you remain unfazed by all of this, your smug reasoning reassuring you that nothing like that could ever happen to you, that it is inconceivable that some "tracker" has been listening (or may yet still) to your most private conversations on the phone, or parsing through your emails, or credit card/bank statements, and so on.

Or maybe you remain approving of indiscriminate domestic spying, confident that such setting aside of constitutional rights serves the ultimate purpose of catching them evul ter'rists (which, as it turns out, is a false premise), while also being of the mind that such "accidental" abuses happen to others - never to you. In other words, you are one who would gladly proclaim "Security - Hallowed Be Thy Name" with much gratitude, patriotic fervor and conviction.

But regardless, how would you know whether or not you have been caught in the "wide-net" approach to electronic surveillance already adopted by Police and Security Agencies?

How would you possibly become aware that some faceless "tracker" is sharing all that was caught of your most private, intimate conversations - all the while sharing laughs with colleagues in so doing? That complete strangers have become quite familiar with your private life?

That faceless, shadowy men and women have been endowed with the power to act as nothing more than peeping toms, all-too-eager to watch and listen into every and all facets of your privacy, of your intimacy?

And how would you know whether or not you will be branded a security threat just because you went on strike, or because someone "out there" has decided that some of the books/newspapers/magazines that you read may be suspicious, or simply because you were overheard complaining about the government?

That is the question, isn't it?

(...)

All of the above once again demonstrate the harsh, ugly reality in this post-9/11 world driven by fear and the willingness to accept the ludicrous fallacy that we need to surrender "some" of our basic constitutional rights in order to improve security against terrorist attacks.

Yet always forgetting that abuse of security measures is as inevitable as the sun rising and setting - especially without any significant oversight, or even refusal of such.

Better wake up fast on your own and now, instead of being awaken by the thundering sound of jackboots just outside your home ... mere moments before your door is crashed open and you get picked up in a "pre-emptive security sweep".

Do you get it now?

Hence, it still remains to be established indeed whether we, Americans and Canadians alike, will stand up for our constitutions, our democracy-based societies, or let fear and paranoia sweep them away in lieu of authoritarianism - as we keep allowing our elected representatives to grant vast powers to security agencies.

More than ever, we better wake up before it is too little, too late ...

If it isn't already.


Update 03/27/2009: As is yours truly did not need further evidence to prove the point herein - well, there you go, folks (emphasis added):

Missouri retracts police memo which labeled activists as 'militia'

The Missouri Department of Public Safety has retracted a controversial profiling memo which linked libertarian activists, Christians, constitutionalists, supporters of Congressman Ron Paul and other traditionally conservative groups to underground militias.

It also specifically cautioned police to be on the lookout for bumper stickers advertising third party candidates, or people with copies of the United States Constitution.

"[Lt. Gov. Peter] Kinder called on Nixon to place Department of Public Safety Director John Britt on administrative leave pending an investigation of how the report came about," reported the Springfield News-Leader. "[Gov. Jay] Nixon's office did not comment on Kinder's demand, but said it backed Keathley's plans to reform the process of releasing [Missouri Information Analysis Center] intelligence reports.

"In a lengthy statement, Keathley expressed remorse for the lack of oversight in the creation and distribution of the report, but he did not apologize for its contents. Keathley said his office 'would undertake a review of the origin of the report by MIAC.'"

The News-Leader published a copy of the memo (PDF link).

"Due to the current economical [sic] and political situation, a lush environment for militia activity has been created," the memo reads. It goes on to cite possible militia members as people who talk about the New World Order conspiracy, express anger with the Federal Reserve banking system, resist paying taxes, warn other citizens about the percieved dangers of radio frequency identification (RFID) or lobby for a return to strict constitutionalism as possible threats to law enforcement.

While the memo does offer something of a lopsided summary of many of the various groups which swelled enormously following the terrorist attacks of Sept. 11, 2001, it also links individuals who are otherwise peaceful with the Ku Klux Klan and other violent organizations.

It also specifically highlighted former presidential candidates Ron Paul, Chuck Baldwin and Bob Barr as icons of the militia movement.

The apology and retraction only came after all three men signed a letter to Gov. Nixon (PDF link) demanding an about-face.

What else can one say, but "Q.E.D."?


Update 03/31/2009: Meanwhile, back in Canada ... CSIS has decided in its grandiose (and utterly ignorant) wisdom that intelligence gained from torture is swell and A-OK. Hey - it worked so well for the U.S.A., eh? And never mind Canadian laws.

Could someone tell me how I can get back to my world - you know, the one whereby laws against torture are not ignored and torture itself is viewed as something barbaric, savage and uncivilized? I seem to have wandered accidentally into the present, hypocritical one ...


(Cross-posted from APOV)