The Criminal NSA Eavesdropping Program
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.
* * * * *
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.
75 Comments so far
Show AllThe law in this country is whatever the ruling elite (the corporations and their major shareholders) want.
They don't want their best boys punished for doing the work they were asked to do. End of story.
The Constitution doesn't exist any more. Justice has always been a crap shoot in this country, now it is a distant memory.
I don't find it so unusual that both Bush and Obama are committing the same crimes against Americans if one follows Noam's reasoning about the "powers that be" behind the politicians.
Cicero: "Freedom is participation in power."
The black political class won't even touch the ugly truths Greenwald points out about Obama.
This is the saddest thing of all. Not enough of them learned anything from MLK about the corrupting influence of the run amok military industrial complex so not enough of them taught it to their children. None of them will stand up today and call Obama out for what he is. MLK's anti-war stance was unpopular with most blacks when he publicly took it, but it was perhaps his most revolutionary insight of all. His speech against the Vietnam War in 1967 at the Riverside Church is even more broadly applicable now than it was then--both to America's lost potential and to how it was diverted to into atavistic colonial wars that profit only oil, munitions and mercenary companies.
So long as Bush and henchmen remained unhanged at Nuremberg, I see no reason for the rest of us Murkns to obey any laws we find inconvenient.
Well, at least they aren't doing it anymore.
;^>
Darn it, you made me spew my morning coffee......;-)
:-)
Obama's a fascist, enabling "liberal" senators like Michigan's Stabenow and Levin are fascists. Democracy in this country is a farce, and how are Obama's supporters any less ignorant than Bush's, or Hitler's for that matter?
Is anyone shocked anymore at Mr. Obama and his administration?
Not really, methinks.
According to Homeland Security Advisory Threat Level Yellow:
All Americans should continue to be vigilant, take notice of their surroundings, and report suspicious items or activities to local authorities immediately.
Is anyone shocked?
VeniVidi writes, earlier:
"I'm old enough to remember the Nixon times. Believe it - or not - we DID prosecute the perps - Haldeman, Erlichman, the Attorney General Mitchell himself, and a host of their minions. These people did serve time - not enough IMHO - but, they were held accountable for their myriad Felonies and Justice was served. Nixon himself had to be Pardoned. That was 40 years ago. So much has changed.
"Now, clear violations of the Law are not even prosecuted."
I'm old enough to recall the Watergate hearings, which back then were televised practically daily on non-cable TV and had me glued to my chair. I considered those hearings a vindication for my view that the Executive Branch had exceeded its authority with CoIntelPro and American policy in SE Asia. (We had a very active anti-war movement back then...)
Unfortunately for the world, Dick Cheney took the opposite view, feeling that the Legislative Branch had compromised the just powers of the Executive, and he spent the interval doing his best to compromise democracy. He succeeded...so far.
As for expecting a serious Congressional investigation into any of this, in these times, forget it. They voted twice FOR the PATRIOT Act, they voted to immunize the telecoms, elimination of Habeus Corpus, etc. In essence, they've bought into the Unitary Executive crap because it has been made lucrative for them to do so, while many of them are personally compromised (am I thinking of, e.g., Jane Harman?).
Meanwhile, the War on Terror is really a war on domestic resistance: it sends a message to everybody and anybody, if they can toss a 15-year-old kid into Guantanamo and hold him for years without charges, you, too, can be disappeared. So just shut up and eat your Cheerios. They're heart healthy.
Keep it up, Glenn. You are becoming a national treasure. I hope somebody is archiving your electronic files as hard copy somewhere...
-30-
This is what I just sent everyone in my email list:
Thank-you Jesus for elevating Obama to the rank of King so that George Bush could be forgiven for killing Muslim sapiens.
Bless you, Mass Murdering Savior!
Happy Easter!!!
It must be awful when one is a professor of law, and yet a legal decision as major as this goes against one.
'Twould be enough to make one doubt one's everyday judgment, I should think, and possibly even one's sanity.
On the plus side, one could say, "I decided to hold a health care summit. Who now can dispute the wisdom of that?"
On the negative side, however, there is, among other things, drilling alongside of the east coast, lionization of magnet schools that don't do better than our public schools, and most of all-- way above all other American concerns-- the deliberate continuance and escalation of the Afghan War.
So lock these a-holes up for High Crimes and Misdemeanors. Obama is continuing this violation of the law, the constitution and human dignity. OBAMA is the problem now since he isn't being part of the solution. BTW, I just got banned for life from HuffPost for implying a 'conspiracy' between Bush and Obama. Freedom is dead on HuffPost. Post your views about any 'conspiracy' theory you have considered and see what happens. Screw them.
no big loss, it looks more and more like the national enquirer. lol
She's a regular on Bill Maher. That should say it all.
You're so right. Huffpost is all about giving Ariana the credentials to be a talking head on mainstream media, and if theres anything that propaganda machine won't forgive, its the truth. Arriana argues for effect. Its a debating game to her that she can make a lot of money on. All truly meaningful comments are brutally censored.
Considering that Huffington is independantly wealthy ( ex hubby Michael Huffington is an oil zillionare and ex Senator) and can easily afford to live the life of the idle rich your comment makes little sense and contains less fact.
Far too many simply enjoy tearing folks down, for whatever reason, or whatever personality defect. I wonder where your magic wands are ,folks, as you seem to think yourselves able to effect much needed change all by yourselves.
Bart Stupak was threated to be followed for the rest of his life, that he would have to look over his shoulder everywhere he goes, by a female caller.
Trust me when I tell you, that is not an idle threat , our nation has an extensive nation wide Christian gang stalking network of torture freaks , they are well funded , well organized , and have infiltrated all forms of business, law enforcement, first responders, and government.
They operate above the law, and since 1995 have grown in numbers and power. Just google gang stalking, and you wont believe how dangerous these people are.
They have been allowed to operate, and the Department of Justice gets over 200 complaints a month from victims of this torture network.
They are easy to spot, if you are constantly surrounded by cars or people where ever you go, day or night, ambulances, or fire trucks sound sirens when you open your car door, 90 percent of all traffic light turn red when you get within 30 yards , they have superman stickers, tinker-bell stickers, Jesus stickers, iaff stickers on their cars, and your constantly surrounded by them, people are around you in stores and walk right up and look in your buggy's, and the worst thing they do is tail gate you no matter how fast you go, oh , and super bright headlights or one bright light and one dim light.
If this stuff is happening to you 24/7, you have been singled out for destruction by torture. be careful where you eat, what you drink , where you get your car serviced , who you let in your home, and what work is done to your home.
This is known as cointell pro slander and destruction , the people doing this to you have been told you are evil,, a pervert, pedophile , drug dealer or addict,
These fake Christians are your judge jury and executioner, and they hire all kinds of people who will do anything they are told to do.
NSA wire tapping is just one problem , foot patrol spying and torture of innocent people, is slow murder.
Bornfreemen -
April fool?
Bill from Saginaw
Our political leaders and the oligarchs truly are not held accountable.
Let's face it, the US is hypocritical in the extreme and the voters are oblivious. Our leaders loudly and frequently proclaim that we are a nation of laws, but only the poor and powerless are held accountable.
We are blessed indeed to have Glen Greenwald.
Jim Shea
Agreed - and we are truly blessed in this country to have the Electronic Frontier Foundation constantly watching out for American liberties and freedom! Sometimes we owe a debt of gratitude to folks we've not known nor ever met. EFF, this under-appreciated organization, deserves the support of each progressive and libertarian reader of Common Dreams. Sign up for their news list (which I first did in 1994).
Trylon
Obama? more imperialistic than Cheney and Bush. more of a tyrant than Cheney or Bush. more corporate than Cheney or Bush. P-U, what a stinker.
Greenwald sez: "From the start, the Obama DOJ has engaged in one extraordinary maneuver after the next to shield this criminal surveillance program from judicial scrutiny."
***
Actually, it was well before "the start".
Obama announced this to everyone while he was still running in the summer of '08, with his FISA vote upholding telecom immunity.
That vote had nothing to do with protecting telecoms and everything to do with muzzling testimony that might eventually infringe upon the unitary executive.
I recall that as the precise moment this "Constitutional law scholar" told me he was not interested in my vote that November.
Goebbels sez -
Your voting preference instincts may have been prescient, but when Obama bailed on his promises and voted for (rather than against) immunity for the telecoms in the summer of '08, I believe he did so for reasons other than "muzzling testimony that might otherwise infringe on the unitary presidency." Obama's disenheartening shift on FISA immunity in the summer of 2008 was pure, pristine two-party tactical posturing at its very worst.
When the telecom/spy immunity bill was dumped into the pressure cooker of pre-recess Washington DC with the upcoming fall election looming large, former NSA director/then CIA director Michael Hayden was personally lobbying individual incumbent members of the House and Senate with the vilest forms of Cheneyesque partisan blackmail: the FISA chatter was blinking red, another 9/11 level terror strike was imminent, and if you, Senator Milquetoast, shut down this desperately essential program that keeps America safe by voting against immunity at this critical moment, then the blood of those innocent American victims will be on your hands when something goes boom in the night. I warned you personally. And your constituents will be reminded come November, if it turns out the nation's intelligence chief was right, and events prove your naive political judgment was dead wrong.
With that style of backroom hardball in play, meanwhile in the outside media circus GOP attack ads were already running in a handful of Congressional Districts. They depicted how NSA "electronic terrorist surveillance" was a vital national security tool, a weapon in the war on terror that Congressman Milquetoast would recklessly take away. In one such ad I saw on U Tube, there was even a color graphic showing an incoming telephone call from the Afghan border region heading towards the American heartland being intercepted in mid-air like a Star Wars shield, quickly followed by a similar graphic with the strike succeeding because the NSA program had been cravenly removed. Below the belt demagoguery indeed, but real ads being viewed by real Main Street voters.
Even more important than the "unknown unknowns" breathlessly peddled by Hayden, Faux News, and the doomsday framers was the financial and partisan political clout of the corporate interests that were most desperate to get an immunity bill passed. Do you, an electoral politician, want to tell ABC, NBC, CBS, Fox, ATT, Verizon, Sprint, and all their multibillion dollar affiliated holding companies to shove it, right before the election coverage starts? Do you think shielding these giant, interlocking corporate entities with immunity from millions of dollars in potential civil liability might perhaps influence the flow of millions of dollars in campaign contributions, as well as the spin of the big telecoms' broadcast news coverage? Maybe just a little bit?
Barack wet his finger, stuck it in the wind, and went with the flow. Avoid the big risk that something might go boom in the night. Curry favor with those who can make you, who are also the folks who can break you. Play it safe. The Democratic nomination is in sight. Better safe than sorry.
The so-called "unitary executive theory" was Federalist Society mumbo jumbo when John Yoo and his cohorts in crime first disseminated it - a legalistic fig leaf (now wholly discredited in responsible legal circles) painted by the right wing think tank crowd upon the codpiece of the warfare state.
Candidate Obama bailed out on an important matter of Fourth Amendment principle in the summer of 2008 by cynically evaluating risk and reward. I don't believe an ideological fixation with phallic executive branch power, or muzzling somebody's testimony, had much if anything to do with it.
Bill from Saginaw
Okay, once again I say the same thing as before but now in response to a different issue.
Who do we primary against Obama in 2012? I will NOT vote for Obama in my caucus, even if there is no one challenging him.
Yet another excellent article.
Now, about that ethnic cleansing and genocide that occurred on the North American continent as the USA was created.
The FISA law also states specifically that no U.S. citizen, including a sitting President, is exempt from prosecution.
You know, I'm just about 3 miles from ole Bush's Dallas digs - want me to bounce on over, slap the cuff on, make a Citizen's Arrest?
I'm sure his SS detail will let me waltz right in once I explain that their boss has been found guilty of extreme Constitutional violations by 3 judges and counting... If they refuse, would that be considered Harboring a Known Criminal?
Constitution? Constitution? We don't need no stinkin' Constitution!
With apologies to the "Treasure of the Sierra Madre."
Finally we going to put these guys in jail so that all the future leaders will learn a lesson.
The bastards blood will pay for our combined future freedom by putting the fear of God into Obomber and the rest to follow.
Oh wait, it is April first...
I guess the future criminals need not worry!!
Jokes on us poor citizens.
Typical excellent analysis by GG.
As much as anything, this decision illustrates Nancy Pelosi's complicity in Bush & Co's criminal wiretapping.
She was the one who frustrated Dennis Kucinich's valiant efforts to enforce the law through interpretation.
Face it, America is a facist, terrorist country. We can invade any country we want, prop up dictators, fund war lords, ect.
It can let millions of it's own citizens die in the name of profits. Where this will end will be bad. The rich get richer. The poor go to jail and thousands starve, die from lack of healthcare and are unemployed or homeless.
Obama is just another crooked politician. How very very sad for all of us. And we have no say. We protest and march. Sign petitions and make phone calls to no avail. Ben Franklin was right.
"We protest and march. Sign petitions and make phone calls to no avail."
I hope nothing like this ever happens, because it would be illegal and possibly violent. I would never participate in such an action, and I would highly recommend no one else does either, but I can foresee some people, some without sufficient self control and socialization, might decide to take the law into their own hands. What am I talking about? Kidnapping and vigilante justice. Don't do it!! We are a nation of laws, and we simply must not allow ourselves to degenerate into a land of anarchy. Don't do it! Do NOT kidnap Henry Paulson, or Lloyd Blankfein, Timothy Geithner or any of those other bastards that ripped off the country to the tune of almost 5 trillion dollars, and subject them to what would be nothing less than a kangaroo court. We are, after all, unlike them, civilized.
Do you think the Brits might rent out their Tower of London to incarcerate these 'celebrity' criminals?
Wouldn't that depend on the price?
I'm old enough to remember the Nixon times. Believe it - or not - we DID prosecute the perps - Haldeman, Erlichman, the Attorney General Mitchell himself, and a host of their minions. These people did serve time - not enough IMHO - but, they were held accountable for their myriad Felonies and Justice was served. Nixon himself had to be Pardoned. That was 40 years ago. So much has changed.
Now, clear violations of the Law are not even prosecuted. I am disgusted that people in possession of Pot - a clearly victimless crime - are held in jail in countless numbers, while these heinous felonious Monsters not only run free, but hold High Office.
NSA, I hope you are reading this - you F#$%ers.
VeniVidivici,
This is an interesting point. So what would make it possible to prosecute now? Is there anything?
(Wasn't it George Carlin who used to end his phone calls with something like your last line?)
Had Nixon not been pardoned & rehabilitated & then lionized on his death, his then-young aides & admirers would never have pulled off the destruction of restraints that Nixon attempted.
Under Clinton & Gore, the Democrats for Nixon/Democratic Leadership Council, rid the party of any too-scrupulous legislators & law enforcers, and Gore acceded to the coup in 2000.
What will come of this ruling? warrants? arrests? prosecutions? by whom? If nothing happens then the entire system is a sham, which we know already; supreme rule by supreme leaders.
Representative democracy in the US is a joke.
there is a WAY OUT of these problems - of the USA not living up to its CLAIMS....
JUST POINT FINGERS at some OTHER country...
china, russia, cuba, venezuela, iran, "socialist france"........
and VOILA - all problems in and of the USA disappear and the USA is again as "it always was" :
A Nation of "law, justice, truth, liberty and above all: HONESTY".......
there ya go - it's the american WAY.
in fact i had occasion just yesterday witnessing people i know, co-workers really,
loudly talking with each other -- as "in a mature discussion" -- about
"how cuba was wrong to CHOOSE RUSSIA..."...
or -- REHASHING :
"it's too bad about iraq -- but we DIDN'T really know they DIDn'T have WMD's and he was such a THREAT to the world".....
"everything is getting cut - medicaid, medicaire, social security....we JUST CAN"T AFFORD IT"......AFTER they just justified the EMPIRE's WARS that "we can't afford"..
and it went on and on -- with nary a thought about how LUNATIC they all sounded . ..after all the problems of their own country's making....
An outstanding, timely, and insightful analysis by Glenn of a very complex, murky criminal conspiracy undertaken by the Bush/Cheney regime with connivance of some of this country's largest telecommunications providers.
For all the reasons Greenwald mentions (plus a few more - like the parallels between this NSA snooping program, Watergate, and the FBI/CIA/NSA COINTELPRO domestic spy program against antiwar and civil rights activists during the Vietnam era) this issue should immediately be made a subject for a Congressional Committee hearing or two.
Subpoena the perps and give the whistleblowers a public forum. Create the time line and identify the key decision makers. Grant immunity in exchange for honest testimony as may be required.
Once the factual record is fleshed out in the light of day, then call out AG Eric Holder to simply do his job.
Bill from Saginaw
Bill from Saginaw April 1st, 2010 1:18 pm -- You, as a lawyer, know that a criminal law is just ink on paper unless a law enforcement officer, prosecutor, or grand jury acts upon it. That would be the ultimate point of congressional hearings: to motivate prosecution. The experience of recent years with illegal and unconstitutional acts committed in the "war on terror" shows that the lack of will to prosecute, not a lack of evidence of criminality or of criminal laws, is the problem. To counteract that, people like us need to find out who can really take the ball and run with it, and convince them that they won't be fired or killed or disgraced if they actually make the attempt to enforce the law. There's little to be gained from preaching to the choir, unless the choir is going to show up singing on the doorsteps of those with the power to actually do something. Let's start by identifying people, other than lost causes like Holder and other DOJ officials, who could make a difference if their callow consciences were reinforced.
manning120 -
What you say about the need for law enforcement officials and DOJ prosecutors to act is completely true. My point is the way you create the internal political pressure to make them do their jobs is by Congress flexing its investigative powers.
A forum is created. Despite some grandstanding and posturing by various politicians, real live witnesses who know where the bodies are buried, and who know who brought pressure to bear upon whom, emerge into the light of public day. Hearings backed with subpoena power create a forum for whistleblowers and honest public officials to step forward, for documents (even classified ones) to be produced. Those involved in the conspiracy can be forced to testify, or assert the Fifth. If they assert the Fifth, they can be offered some meaningful form of immunity or leniency for their own wrongdoing, in exchange for assembling an honest and complete historical record.
What happens from there on is pure politics. The Watergate hearings, and later the Church Committee hearings, created the pressure for passage of the FISA Act in the first place. What the Bushies did is an executive branch insult to both the legislative branch of government and to the courts. If the real goal is to criminally prosecute decision makers who flagrantly violated the Bill of Rights and the FISA felony statute, a good Congressional Committee hearing is far more effective than marching in the streets, sending email petitions to Eric Holder, or blustering about how the war criminals should be impeached and/or whisked off to the Hague, since the whole system is hopelessly corrupt to the core.
Sometimes when the investigative wheels start churning, smoking gun revelations actually do get unearthed that build real momentum. For instance, specifically as to virtually every news account published to date about the Bush/Cheney warrantless misuse of NSA electronic surveillance technology, the official narrative showcases how the secret program all began "after the 9/11 terrorist attacks", "in response to the threat of another 9/11" etc. etc.
Just think how fast that cover story - wholly planted and routinely parroted back in the mainstream media by anonymous, high security clearance sources and by very prominent public officials like Dick Cheney and Michael Hayden who orchestrated the whole criminal conspiracy - would come completely unraveled if creation of a real world time line proved otherwise. There are whistleblower sources who have credibly maintained in some of the civil litigation against the telecoms that NSA splitters were installed on both the east coast and on the west coast to sweep up and monitor domestic US phone, FAX and email communications very shortly after Bush's inauguration - weeks, perhaps even several months, prior to September 11, 2001.
What if irrefutable documentary evidence or incontestably truthful testimony surfaced at a Congressional hearing that showed this misuse of our NSA spook technolology on American soil started long before the evildoers smote America? What happens then to the neocons' mumbo jumbo legalism claim that FISA and the Fourth Amendment can both be ignored due to the President's inherent war power authority?
9/11 did not cause events that occurred long before 9/11. Big lies have been told by big players, who played the media for suckers. Wouldn't that be a pretty shitstorm to refer over to Eric Holder's desk for appropriate legal remedy? The simple time frame is but one potential smoking gun. Also, follow the money.
There's strength in numbers, particularly if your darkest fears have substance. That's why Congress should initially take the ball and run with it, because it is Congress's FISA statute that was flagrantly disregarded. They won't all be killed or fired or disgraced.
Before the choir can assemble to sing in unison on the Department of Justice's doorstep, Congress first should write the lyrics.
Bill from Saginaw
I think that some correction is in order. Although I'm sure Bush/Cheney vastly increased the use if illegal surveillance, there have been articles published showing that it began under Clinton. I wouldn't be surprised to find it happening as far back as Reagan. And I've been reading about such things as Echelon at least as far back as Reagan. There have also been articles published about agreements between the U.S./UK/Israel in which, because of the illegality of these states spying on themselves, illegal domestic surveillance was done by one nation for the other, and vice-versa.
kog -
"It began under Clinton. I wouldn't be surprised to find it happening as far back as Reagan."
Illegal, warrantless wiretapping by state and federal law enforcement officials began back in the day of party land line telephone technology. Low level, mid-level, and (surprize!) upper level people in Mr. Hoover's Bureau bugged Americans on American soil with a wink and a nod way back in the 30's. During World War II, my own father (according to his self-published autobiography) did black bag jobs when he worked as a special agent for the FBI in New York City. On several occasions he took part in breaking into apartments of suspected Nazi and/or Soviet spies, clandestinely searching, gathering evidence, and sometimes leaving hidden listening devices behind. Such wartime daring-do was all done without a warrant of course, and with deniability at the top of the chain of command if something, unfortunately, ever did go wrong.
The central essence of the Watergate scandal was the involvement of the very top of the executive branch of the federal government - Nixon, Haldeman, Erlichman, Attorney General John Mitchell - in helping US spies (and military spooks, and some anti-Castro Cuban subcontract employees) focus such rogue surveillance tactics against the rival political party's headquarters, and against antiwar and black nationalist grassroots political groups - targets designated by the President and/or his closest advisors. That scandal, and the COINTELPRO program later undercovered by the Church Committee and other Congressional investigations during the 70's, is what caused Congress to eventually enact the FISA warrant process in the first place.
You are correct that during the Reagan presidency (with Bill Casey heading up the CIA, and Robert Gates as his right hand man) Admiral John Poindexter tried to set up a huge warrantless electronic data mining operation in the name of national security. When the dimensions of the program leaked out from the classified world into the public domain, the Omnivore eavesdropping program was promptly scuttled. Too much danger that it would invite the evils that gave us Watergate, you see.
Echelon as I understand it was a data mining effort involving international, satellite-based electronic communications intercepts. Also, there indeed have been stories about how "cooperating foreign intelligence services" might have done a black bag job or two inside the United States as a quid pro quo for occasional similar services done abroad for them by NSA and the CIA. Bill Clinton did some dicey stuff, but given the very cool political relationship between the Big Guy and CIA director James Woolsey, I find it hard to believe Woolsey would have been likely to play the role of an E Howard Hunt if Clinton had ever made any such request. George Tenet I'm not so sure about.
Regardless, it is against that background that I think we need to evaluate the importance of pinning down the onset date for George W. Bush's domestic NSA eletronic surveillance program. The spooks and the politicians, each and every one, all knew the absolute illegality of what was afoot. There was a FISA warrant process expressly in place to prevent claims of "national security necessity" from short circuiting the judicial warrant requirement.
The Bushies' warrantless data mining operation never leaked into the public domain until after the 2004 election had assured Bush a second term. When Senators like Patrick Leahy, Russ Feingold, and others with a civil liberties' sensitivity began to voice objections, the salvo back from the Bush/Cheney White House and the intelligence agencies was that it was all about 9/11 - keeping America safe from another 9/11 - if only tools like the NSA program and the Patriot Act had been in place, maybe 9/11 might have been avoided.
That cover story may have an Achilles heel. Dates, please.
If the Bush White House gave a green light for NSA and the CIA to muscle cooperation out of several big US telecommunication providers after taking office, but well before any planes hit the WTC towers, everyone of those guys knew they were violating the FISA felony statute, a law which grew directly out of the abuses of Watergate. Pin down the time line. And follow the money.
Bill from Saginaw
Bill from Saginaw April 1st, 2010 5:53 pm -- I'm not counseling against Congress getting involved, although it seems to me there have been rumblings there already (I defer to your superior knowledge).
I don't have your degree of confidence that the current crop of elected officials have the courage to really go after it the way you imagine they could. Plus, congressional hearings will really drag this thing out, with no guarantee of getting a single prosecution started.
The example that keeps popping into my head is Jim Garrison. I'm sure you know the details of the Garrison story; some of the younger people may need to bone up by checking Wikipedia. I never even saw the Oliver Stone movie, but seems like I did because so much has been written about it.
Stone lionized Garrison, mistakenly. I think his cause was illusory, as demonstrated by the Clay Shaw fiasco. But Garrison had one redeeming trait to go with his many character defects. He marched to a different drummer; he put his reputation on the line. Although history may see him as a somewhat pathetic figure, after the Shaw trial he apparently went on to enjoy a fairly long life as a judge.
We need to find another Garrison and motivate him/her to take the bold step.
"What if irrefutable documentary evidence or incontestably truthful testimony surfaced at a Congressional hearing that showed this misuse of our NSA spook technolology on American soil started long before the evildoers smote America? What happens then to the neocons' mumbo jumbo legalism claim that FISA and the Fourth Amendment can both be ignored due to the President's inherent war power authority?"
Yea, but they've neutralized Joseph Nacchio by jailing him for securities fraud so you'll need the Quest lawyers from February 2001 who advised against complying with NSA requests for customer records without a warrant. Imagine that, lawyers who said the company should follow the law!
TheProf -
Thanks for the memory jog.
So let's have Congress subpoena Quest's 2001 records, and have Mr. Nacchio brought over for his testimony in an orange jump suit if need be. It wouldn't be the first time Congress has taken testimony from an incarcerated witness.
And while we're at it, let's subpoena the invoices for the splitter technology apparatuses and their installation which the telecom companies permitted to be placed within their corporate facilities. Dates, please. Follow the money. Follow the grunts who lugged in and installed the cables, the geeks who put in the software. Dates, please.
If the NSA program started days, weeks, or months before 9/11/01, then you can bet your sweet ass that Gonzales, Hayden, Cheney, and Bush are caught red handed, violating the FISA felony statute before there were any "war powers" to assert.
How ironic.
By going to the well once too often with the that shop worn, blood stained "9/11 changed everything" gambit, the perps get busted for running with the phoniest public explanation for their wrongdoing since the whoppers about Saddam's weapons of mass destruction.
Bill from Saginaw
Once the factual record is fleshed out in the light of day, then call out AG Eric Holder to simply do his job.
--------------------
Holder's doing exactly what he was hired to do.
Holder has attempted to begin investigations into a number of Bush administration suspected illegalities, only to have his efforts stifled from above. Rather an unfair conclusion on your part I think.
Cygnus-X1-isaHole April 1st, 2010 3:09 pm -- Exactly right.
"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." –(Glenn Greenwald)
...And it won't.
America doesn't even have the grace to revel in its own Fascism.
We might have had accountability if the Attorney General, on his first day on the job, had fired everyone in the DOJ hired between 2000 and 2008. And if some of them could not be fired, he could have transferred them to someplace such as Homer, Alaska, where they could not do any more harm.
But he did not, so accountability goes out the window.
Yeah, Cindy Sheehan spends 2 days in a cold jail cell with no bed, no heat, and no shoes for crossing over a line and hurting no one --- and these gangsters in our government mafia keep getting away with one horrendous crime after the other! NOT ONE DAY OF JAIL will these hoodlums do! The good sane people are in prison and the evil-doing psychotics sit in their mansions.
Still another reminder of the lapidary couplet from Bob Dylan/Jacques Levy's "Hurricane":
"Now all the criminals in their coats and their ties
Are free to drink martinis and watch the sun rise..."
And from "Sweetheart Like You"--
"Steal a little and they throw you in jail
Steal a lot and they make you king."
The Rule of Law is DEAD and BURIED.
No one will ever be held legally accountable for violating the 4th amendment.
No vote you place at the ballot box will change this fact.
The truth is the greatest threat to the ruling elite.
The truth, therefore, must remain a State's Secret.
So I wonder how many thousands (or millions) of felony eavesdropping counts both Bush/Cheney and Obama/Biden have racked up? I'll bet they'll get a bulk discount. I mean, it's no secret that the NSA has spliced right into the major communications backbones at all the major telecoms. I've even read that they have their own floors in these buildings, with equipment set up to filter every byte of traffic that flows through them.
It's worse than just warrantless wiretapping. The US Federal Government has had thought reading technology for sixteen years (at least) and has been using that, coupled with selective broadcasting and dream manipulations to attempt to actually change peoples personalities and memories.
Why does the President want to continue to hide illegal Thought Reading activities by the government under the ruse of ‘State Secrets? Why did Obama hire so many Clinton employees in his White House, including Eric Holder who was in the Clinton Admin in when I was first abused by this technology? Why is Obama’s Admin so against holding government personnel responsible for crimes that they commit in office? Doesn’t a man who ran for President partly on the recommendation of his resume as a Constitutional Scholar KNOW that Thought Reading technology is anti-Constitutional against unlawful search and seizures?
This technology is what was exposed due to whistle blowers Atty. Mann (Newsweek 12/22/08) and Russell Tice (Countdown with Keith Olbermann 1/21/09) with reference to surveillance by NSA. I believe that this technology supplies the intelligence that Attorney Mann reported to Michael Isikoff as being supplied to the D.O.J. under Attorney General-only approval and being back-doored through warrantless wiretaps. The method of information gathering (thought reading) that supplies the back-door information later attributed to warrantless wiretaps is hidden under the governments 'State Secrets' privilage.
I believe that this is the technology that Russell Tice referred to as the ‘avenue’ that was keeping some un-terrorist Americans under surveillance 24/7 (he mentioned one group: journalists). Both men are under threat of prosecution for revealing some facets of NSA’s activities, which the government claims violates 'State Secret' laws. I am not.
Until recently, information on the method of their ‘remote’ verbal broadcasting (which can be heard by the victim, but not by others in the same vicinity) was not known. But the
August 5th 2002 edition of Newsweek has an article “Hearing is Believing” (written by Jamie Reno and N’gai Croal) that explains the manipulation of sound waves to isolate a target to hear what others around them cannot.
Kathleen Heckman
echoes44442002@yahoo.com
we are electronic creatures...that some would study this, and attempt to use it to further their agenda, is certain...
some developments, like tasers, or canons shooting sound or microwaves, are blatant in their use and effect...others are much more subliminal...intentionally...
the general public does not suspect their own vulnerabilities in this area...this makes it difficult for them to believe another might attempt to exploit such...
when one combines the nature of our minds and bodies, clandestine organizations, and the technological web we are physically weaving around this world, the potential is very disturbing...
April, uhm . . . .April fools . .. I hope . . . ?
Kathleen ,the mind reading and thought/dream manipulation is really scary but doesn't bother me as much as the new genital shrinking rays!I hear these rays have been directed at every "liberal,progressive,or left leaning"Congress critter for years.
Lead is the new black!
peace
lol
When it comes to serious constitutional matters, the Democratics protect the Republicans; and vice-versa. The fighting between the two parties is done within a set of unwritten bounds as not to spoil the two party oligopoly on political power.
Kinda like the syndicate....eh?
We got Maddox, why not Bush and Cheney? And Rove? But of course we are busy filling jails with kids who smoke pot and get caught with some.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both
punishable by not more than is what it says
changes a little when you say "subject to"
For a nation that has the world's highest per capita rate of incarceration, U.S. law and order sure does seem to be highly selective. In fact, one could get the impression that, beyond a certain level, enforcement becomes inversely proportional to the magnitude of the crime. Violations of constitutional "supreme law" don't even rate prosecution as misdemeanors.
So, now that the wiretapping has been deemed illegal, we can expect the Obama DOJ to charge the perpetrators with felonies---right????
Wrong.
George W. Obama has given "constitutional law professors" a very bad name indeed!
so...what's the holdup? getting some cops & a prosecutor to swear out some arrest warrants?
oh, but it's the obama DOJ (& thus FBI) that would have to do that, so nothing will happen. failure to stop & prosecute a crime when that crime is on-going, as it assuredly is as g.g. has so abundantly documented, is itself a crime.
quis custodet custodes?
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both
punishable not more than is what it says
changes a little when you say "subject to"
"punishable not more than is what it says
changes a little when you say "subject to""
Subject to means that the person is subject to (may receive) the penalty which in this case, and most cases, has a range.
Saying that someone is subject to the maximum penalty is commonly used and is generally understood in this way.
*Comment deleted by site administrators for violating our Comment Policy*
see: http://www.commondreams.org/comment-policy
Judging by some of the comments that haven't been deleted in CD, boysgramps' comment must have been awesome.
Did anyone actually see this comment and can the give the jist of why it was censored?
Great article by Greenwald BTW more of this identifying the real crimes committed by both parties in power.