The American Bear

› Feds Won't Say if NSA Surveilled New York Terror Suspects | David Kravets

Federal authorities prosecuting brothers on allegations they plotted to blow up a high-profile target in New York City are refusing to confirm publicly whether they cracked the case by employing a style of warrantless electronic eavesdropping first introduced by President George W. Bush in the wake of 9/11.

The reason, attorneys affiliated with the defense suggest, is because such a concession would create the nation’s first eligible defendant to challenge the constitutionality of the surveillance tactics, which Congress codified into law in 2008 and then again in December.

The government has never publicly conceded it has used evidence in a criminal case obtained through the National Security Agency’s post-9/11 mass surveillance program. A single acknowledgment could open the floodgates to challenge the surveillance tactic, which Supreme Court Justice Stephen Breyer in February noted that “commonsense” (.pdf) tells us is being employed by federal investigators.

The terrorism case concerns brothers Raees Alam Qazi, 20, and Sheheryar Alam Qazi, 30. Among other things, prosecutors said the younger Pakistani-born brother surfed Al-Qaida internet sites to learn how to build a bomb [of course!]. The FBI recorded telephone calls linking him to a plot to blow up a New York landmark last year.

… [The Judge in the brothers’ case, U.S. Magistrate John] O’Sullivan, agreeing with a defense motion, ordered (.pdf) prosecutors last week to say whether the government first acquired evidence against the indicted brothers (.pdf) using the Bush-style surveillance, and then used that evidence to obtain the traditional warrant from the secret court.

… [T]he government has never publicly admitted in a prosecution that it employed warrantless surveillance under the FISA Amendments Act. Doing so likely would trigger legal challenges over whether the tactic is constitutional — and would threaten the Qazi brothers’ case and perhaps countless others.

“This could open the door again at the Supreme Court,” said Patrick Toomey, national security fellow at the American Civil Liberties Union.

The development comes nearly three months after a fractured Supreme Court halted a legal challenge to the warrantless surveillance law at issue in the brothers’ case.

A divided Supreme Court, ruling 5-4, set aside the challenge because the plaintiffs — journalists and human-rights groups — had no evidence they were surveilled under FISA Amendment Act authority [and therefore no standing to sue]. Justice Samuel Alito, writing for the majority, said the plaintiffs “merely speculate and make assumptions.”

But the court’s decision did not foreclose a constitutional challenge. The justices said that, if the government “intends to use” evidence obtained in such a manner, the defendant “may challenge the lawfulness of the acquisition.”

Justice Breyer, in dissent, said the case should have proceeded to trial. Of the spying, he wrote: “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”

In court documents Thursday, Assistant U.S. Attorney Karen E. Gilbert urged O’Sullivan to set aside his order in the Qazi matter.

Gilbert said that, within weeks, the authorities will file a declaration from U.S. Attorney General Eric Holder that the information O’Sullivan has ordered disclosed is “sensitive national security information.” [of course!] (.pdf)

More on the referenced SCOTUS case, Clapper v. Amnesty International, here.

› Surveillance Court's Opinions Must Remain Secret, Feds Say | David Kravets

The Obama administration is informing a federal judge that if it’s forced to disclose a secret court opinion about the government illegally spying on Americans, the likely result could be “exceptionally grave and serious damage to the national security.”

The statement came in response to a lawsuit demanding the administration disclose a Foreign Intelligence Surveillance Court opinion issued as early as last year. Sen. Ron Wyden (D-Oregon) was briefed on the opinion as a member of the Intelligence Committee and was authorized last year to reveal that the surveillance had “circumvented the spirit of the law” and was “unreasonable under the Fourth Amendment.”

The Electronic Frontier Foundation of San Francisco sought the ruling as part of a Freedom of Information Act request. The government rejected the request. The digital rights group sued in U.S. District Court for the District of Columbia.

In response, the government said that disclosure of the secret opinion should be barred because it “implicates classified intelligence sources and methods.” (.pdf)

Jacqueline Coleman Snead, a senior Justice Department counsel, added Monday that the EFF “cannot contend otherwise.”

Specifically, the EFF wants the government to make public a secret court ruling that found the feds had broken a 2008 wiretapping law, known as the FISA Amendments Act, that had legalized President George W. Bush’s warrantless wiretapping program that was implemented immediately after the 2001 terror attacks.

The public learned of the ruling only because of Wyden’s authorized statements about it last year.

The FISA Amendments Act allows the government to conduct widespread e-mail and phone surveillance inside the United States, without probable-cause warrants, targeting people or groups “reasonably believed to be located outside the United States to acquire foreign intelligence information.” In other words, the government can collect e-mails and phone calls in the United States so long as the target is a suspected terrorist group overseas. If the government collects e-mails that are sent by people believed to be American, the person’s identity is supposed to be given a pseudonym or “minimized.”

The government is required to get approval from a secret court known as the Foreign Intelligence Surveillance Court to conduct such surveillance. It’s opinions are secret, and the government wants to keep them that way.

That’s because the FISA Amendments Act generally requires the Foreign Intelligence Surveillance Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret court rejects the surveillance application.

Bonus: Remember a month ago when people were throwing around the idea of a FISC-like “drone court” to add “oversight” to the kill list? Even when the FISC finds evidence of wrong-doing the Executive just invokes “national security” and it’s like it never happened.

› ACLU Blasts Supreme Court Rejection of Challenge to Warrantless Spying Without Proof of Surveillance | Democracy Now!

The whole interview is worth watching, but I wanted to point out this exchange and its relationship to the drone “oversight” discussion:

NERMEEN SHAIKH: … You’ve also suggested that Justice Alito’s opinion seems to be based on the idea that a FISA court may at some point subject this law to constitutional review. What is a FISA court?

JAMEEL JAFFER: Right. So there is a—there’s a passage in Justice Alito’s opinion for the court that suggests that the result of yesterday’s decision isn’t that the law will be altogether immunized from judicial review. And he points to this FISA court system, this secret court system in which judges selected by the chief justice of the Supreme Court hear government proposals for surveillance. So there is this secret court system that most Americans don’t know about.

AMY GOODMAN: Where is it? Where are these courts?

JAMEEL JAFFER: It’s in Washington, D.C. They meet—they used to meet in the Justice Department building. My understanding is they have their own building now. It’s 11—

AMY GOODMAN: Secret building?

JAMEEL JAFFER: —eleven judges. They meet. They meet in secret. Only the government appears before them. They don’t customarily publish their decisions. And so, for Justice Alito to suggest that this is a sufficient check against the possibility of abuse or a sufficient system to ensure that our laws, like the Foreign Intelligence Surveillance Act, are actually constitutional, you know, obviously I think that that is beyond wrong. It’s—the idea that the Fourth Amendment will be protected in secret with secret opinions and only the government appearing before the court, I think is an idea completely foreign to the Constitution.

This is reason number ∞ that a “FISA-like” drone/targeted killing court is a terrible idea.

Judge James Robertson, a former Foreign Intelligence Surveillance (FISA) Court member, put it this way:

But — say the politicians, pundits and professors — courts routinely rule on government requests for search warrants and, in the national security context, on requests for foreign intelligence surveillance. Why not requests for drone strikes? The answer is simple: A search warrant is not a death warrant.

And the search warrant is just a rubber stamp.

› Senators Ask Surveillance Court to Summarize Opinions | Secrecy News

Several members of the Senate Intelligence Committee wrote to the Foreign Intelligence Surveillance Court this month to ask the Court to prepare summaries of classified opinions that represent significant interpretations of the Foreign Intelligence Surveillance Act in order to facilitate their declassification and public release.

Meanwhile, the U.S. Supreme Court ruled that plaintiffs challenging the constitutionality of the FISA Amendments Act lacked the requisite legal standing to pursue their case, effectively foreclosing public oversight of intelligence surveillance through the courts.

The Senate letter, the text of which was not released, stems from an amendment to the FISA Amendments Act that was introduced by Sen. Jeff Merkley in December to promote declassification of significant Surveillance Court opinons. The Merkley amendment was not adopted — none of the legislative proposals to increase accountability were approved — but Senate Intelligence Committee chair Sen. Dianne Feinstein promised to work with Sen. Merkley to advance the declassification of FISC opinions.

“An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute,” said Sen. Merkley at that time. “The opinions of the FISA Court are controlling. They do matter. When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.”

“I wish to address, if I could, what Senator Merkley said in his comments,” said Sen. Feinstein during the December 27 floor debate. “I listened carefully. What he is saying is opinions of the Foreign Intelligence Surveillance Court should, in some way, shape or form, be made public, just as opinions of the Supreme Court or any court are made available to the public. To a great extent, I find myself in agreement with that. They should be.”

“I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions,” Sen. Feinstein continued. “[…] When possible, the opinions of the Foreign Intelligence Surveillance Court should be made available to the public in declassified form. It can be done, and I think it should be done more often. If the opinion cannot be made public, hopefully a summary of the opinion can. And I have agreed with Senator Merkley to work together on this issue.”

That letter, signed by Senators Feinstein, Merkley, Ron Wyden and Mark Udall, has now been sent to the FISA Court, where it awaits an official response.

Though the letter itself is a modest step, the willingness of congressional overseers to assert themselves on behalf of public accountability takes on new importance in light of yesterday’s Supreme Court decision (by a 5-4 vote) to block a constitutional challenge to the FISA Amendments Act. That decision all but closes the door to public oversight of the law’s implementation through the courts. [++]

› Supreme Court Rejects Challenge to Surveillance Law | NYT

In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone. “They cannot manufacture standing by incurring costs in anticipation of non-imminent harms,” he wrote of the plaintiffs.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion.

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissenting opinion.

The decision, Clapper v. Amnesty International, No. 11-1025, probably means the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the attacks of Sept. 11, 2001.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails.

› Secret Surveillance Court Gets New Presiding Judge | David Kravets

Perhaps the only thing we know about the goings on of the secret Foreign Intelligence Surveillance Court — other than it granting the government unfettered spy powers — is that it’s getting a new presiding judge.

The 11-judge court was set up in the wake of the Watergate scandal in the President Richard M. Nixon era, and is best described as a rubber-stamp for giving the federal government carte blanche powers to spy on Americans at home or abroad.

The court is not in Iran or Venezuela, as one might expect, but meets in secret in the District of Columbia with federal authorities and doles out spy warrants without even knowing a target’s name. No probable cause is necessary, as long as the feds attest that the electronic eavesdropping is material to an investigation.

Chief Justice John Roberts — whose position as head of the Supreme Court is responsible for naming judges to seven-year terms, has appointed District of Columbia U.S. District Judge Reggie B. Walton as the presiding judge. Walton replaces U.S. District Judge John D. Bates, another District of Columbia judge whose secret-court term expires Feb. 21. Walton was on vacation Thursday and unavailable for comment.

[…] Congress clearly loves the secret court. Just last year, it thwarted efforts to require the Justice Department to publish unclassified versions of the court’s opinions.

Instead, Congress reauthorized for five years the secret court’s rubber-stamping abilities on Dec. 28, three days before they expired, under a law known as the FISA Amendments Act. (.pdf)

President Barack Obama signed the package on Dec. 30, reauthorizing the broad electronic eavesdropping powers that legalized and expanded President Bush’s warrantless wiretapping program secretly implemented in the wake of 9/11.

› Down the Rabbit Hole: The Obama Administration’s Version of Transparency | Falguni Sheth

[…] The “Alice in Wonderland” reference that Judge Colleen McMahon made in her ruling on drone strikes last week is an apt literary allusion to the craziness, the upside-downness, the inversion of meaning of all statements emerging from the White House and…its fore(wo)men?

Today, when a memo is prefaced with a statement about the need for transparency, one can be fairly certain that the purpose of the memo will be the opposite. When the POTUS’ allies insist that they are pushing for the renewal of FISA for the “safety” of the American people, what comes to mind are the Muslim men (who are known to be) in detention in the U.S. and the fear that non-whites have of being arrested, detained, or deported. It is clear that FISA is being used against the “safety” of Americans, and its absence of oversight is used to guard against detecting the misuse and abuse of secret surveillance privileges by government offices.

When Obama insists on nominating Brennan—a man who endorsed torture, denied civilian casualties, and was himself responsible for leaks—to be the next director of the CIA—literally biding his time for 4 years until the furor of Brennan’s notoriously unethical credentials inevitably died down (Feet! To the Fire!), I can only believe that Obama and his Administration are only interested in continuing—as Glenn Greenwald calls it—the never-ending War on Terror.

Perhaps it is hardly shocking that the POTUS–and our Senators and Congresspersons—continually refer to that ubiquitous, irrefutable, state of national security in order to invoke a continual state of emergency. But the unflinching, chest-strutting, arrogance with which they do so—while creating ever-growing secret kill lists and disposition matrixes, is in large part engendered by the voters who continue to rehire them on the grounds that torture, drones, renditions—are tastier, more flavorful, and absolutely more palatable when done by a liberal.

After all, would you rather have Romney?

› Leaked White House memo shows FISA was just as Obama wanted | Daily Dot

… The memo, acquired by Techdirt’s Mike Masnick, isn’t classified, though it wasn’t otherwise made public, either. It offers point-by-point rebuttals to each of the four senators who wanted to lessen FISA’s power. Notably, it strongly reflects the same arguments made by Dianne Feinstein (D-Calif.), who claimed on the Senate floor to be representing the White House’s position. Feinstein offered official rebuttal to each of the four amendments after they were presented to the Senate on Thursday [Dec. 27th].

The memo, just two pages long, is uncomplicated. It names each amendment and the senator who sponsors it, offers a one-sentence explanation of what it does, and lists “talking points” to debate against it. [++]

› Al-Haramain Will Not Appeal 9th Circuit Decision Immunizing Illegal Wiretapping | emptywheel

The single best chance to hold the government accountable for its illegal wiretapping, the al-Haramain suit, is over.

Our goal was for the judiciary to rule that the president may not disregard an act of Congress in the name of national security.

[snip]

Ironically, although we had sought a judicial pronouncement that the president may not violate FISA, the 9th Circuit instead proclaimed that he can get away with it.

[snip]

We have decided not to challenge the 9th Circuit’s ruling in the U.S. Supreme Court. We feel that, given the Supreme Court’s current ideological tilt, it is better to leave other courts free to disagree with the 9th Circuit than to risk a bad ruling by the current Supreme Court.

The Al-Haramain case is over. Perhaps someday another court will adjudicate the scope of the president’s domestic wiretapping powers in a national climate less charged by post-9/11 fears.

With these words, Jon Eisenberg, the lawyer representing al-Haramain in its suit against the government for violating FISA, publicly described his decision not to appeal the 9th Circuit’s finding that the government is immune from penalties for violating FISA.

The resolution of the al-Haramain case has been little noted in the halls of DC. But it really underlies the entire debate about the FISA Amendments Act extension.

Because as shitty as the law just renewed is, the government also now knows that they don’t even have to follow that law. They are effectively immune from the law.

› Should Auld Civil Liberties Be Forgot | Charles Pierce

Of course, while everyone in Washington, and the courtier press that serves them, were endlessly droning on and on about the Gentle Fiscal Incline, the Bill Of Rights closed out 2012 by having one of the worst weeks it’s had in the two centuries of its existence. But the courtier press paid that little mind, possibly because selling out the Bill Of Rights was done on a “bipartisan” basis, and the denizens of the various Green Rooms would endorse cannibal murder if both parties agreed to subsidize it.

First came the revolting vote on the reauthorization of FISA. Time was, and not that long ago, that the whole idea of a secret court issuing secret warrants was enough to raise hackles all on its own. (There even was an episode of Law And Order from 2004 that centered on the execution of a FISA warrant that sent liberal defense attorney Danielle Melnick, and assistant DA Serena Southerland, up the wall.) Now the old FISA regulations seem like they were drafted by George Mason, compared to what keeps getting reauthorized in the Senate.

This latest thing was to reauthorize the truly spooky FISA Amendments that were passed in 2008 when the president, in one of the actions he’s taken that really was a naked sellout of his previously enunciated principles, joined with a Senate majority to immunize the telecommunications companies that had participated in the Bush Administration’s lawlessness regarding wiretapping, as well as to authorize sweeping new wiretapping powers far beyond those against which the companies were being immunized. What the president did is not excused by the fact that he was running for president at the time. This wasn’t a flip-flop he took because he wanted to be elected. This was a flip-flop he took because he wanted to do some things once he was elected.

This year, as those amendments came up for reauthorization, what we had was a genuine horror show, and it was made worse by the awful debate that preceded the vote. There was enough boogedy-boogedy coming from the Democratic side to embarrass John Bolton. Glenn Greenwald already has written at length on this, but one comment from the now-inexcusable Dianne Feinstein is worthy of further comment.

“This is an effort to make that material public, and I think it’s a mistake at this particular time because it will chill the program, it will make us less secure, not more secure…I know where this goes, it goes to destroy the program. I don’t want to see it destroyed.”

In other words…no, wait, there are no other words. This is the argument of a totalitarian. You can’t know what we’re doing to protect you, even if we’re doing it to you, because then we can’t protect you and you will be killed by bad people and it will be your own fault. Somewhere in East Germany, an elderly ex-bureaucrat is getting a thrill up his leg and doesn’t know why.

Later, came the release of some FBI documents in which it seemed to indicate at least an unacceptable level of involvement by federal law enforcement in the crackdowns by local authorities on the various outposts of the Occupy movement. The hooley on the Left, which is going on vigorously over in the LG&M saloon, seems to center on whether or not federal authorities directed the activities of the local cops, or whether they simply provided logistical and intelligence support. (There’s also a great deal of swatting at Naomi Wolf, on which I will pass, thanks a lot.) To me, this is a distinction without a difference. You don’t have to go back too far — COINTELPRO, which began in 1956, and the CISPES busts in the 1980’s — to see how local and federal law enforcement can work together, at arms-length or closer, if necessary, to crack down on inconvenient political movements. The FBI opened a file on Fred Hampton in 1967. Through COINTELPRO, it sowed disinformation in Chicago, and it placed a mole named William O’Neal in the Black Panther Party hierarchy. (O’Neal eventually became Hampton’s bodyguard and, it is claimed, dosed Hampton with a barbituate on the night of his death.) On December 4, 1969, Hampton was murdered in his bed by officers of the Chicago Police Department. Eventually, his family sued, and won a settlement, from both the local and federal governments.

Did it ultimately matter whether or not the FBI was “directing” operations here, or whether it was merely part of an overall program?

Not to Fred Hampton.

… There is no question that the coordination between federal and local law-enforcement has grown tighter over the past 11 years. Anyone who’s been to a political convention since 2004 knows that. There are federal programs by which hayshaker police chiefs can get their hands on a ludicrous level of weaponry, and the federal government in general has played a significant role in the militarization of local police departments. It is hardly a conspiracy theory at this point to say that, if the local gentry wanted the local police to clear out the drum circles, then the feds would be more than happy to help out. The difference between local and federal law enforcement is passing thin right now.

And the most important point is that, say, the Oakland police work for the people of the city of Oakland. The feds work for me, and for every other citizen in the country. If the Oakland PD goes out and busts heads on its own, then that’s a matter for the citizens of Oakland. If, however, the FBI helps them do it, and helps them in any way, they’re doing it on my nickel, and I get to tell them they should knock it off. Suppose some of the Occupy people who got their heads busted want to take the local police who did it into federal court. Wouldn’t the involvement, at whatever level, of the FBI compromise the administration of justice in that case? (That’s a real question. I don’t know nearly enough law to answer it.) There’s enough in those documents to warrant a serious congressional investigation. There’s enough still left in the Bill Of Rights to demand one. [++]

› Echelon Redux | Annie Machon

… [Of] course the whole world now knows, post 9/11, that all foreigners are potential terrorists and are now being watched/snatched/extraordinarily rendered/tortured/assassinated with impunity. In Europe we have had many people suffer this way and some have managed to achieve recognition and restitution. That appears to do little to stop the drone wars and blood-letting that the USA has unleashed across the Middle East.

But the NDAA and the extended FISA should at least rouse the ire of Americans themselves: US citizens on US soil can now potentially be targeted. This is new, this is dangerous, right?

Well, no, not quite, as least as far as the interception of communications goes.

The Echelon system, exposed in 1988 by British journalist Duncan Campbell and reinvestigated in 1999, put in place just such a (legally dubious) mechanism for watching domestic citizens. The surveillance state was already in place, even if through a back door, as you can see from this article I wrote 4 years ago, which included the following paragraph:

ECHELON was an agreement between the NSA and its British equivalent GCHQ (as well as the agencies of Canada, Australia, and New Zealand) whereby they shared information they gathered on each others’ citizens. GCHQ could legally eavesdrop on people outside the UK without a warrant, so they could target US citizens of interest, then pass the product over to the NSA. The NSA then did the same for GCHQ. Thus both agencies could evade any democratic oversight and accountability, and still get the intelligence they wanted.

The only difference now is that FISA has come blasting through the front door, and yet people remain quiescent.