NBC published a fascinating article yesterday that provided new and interesting details on the events surrounding the escalation of drone strikes in Yemen that took place in response to the “intercepted conference call” that wasn’t a conference call. Matthew Cole, Richard Esposito and Jim Miklaszewski report on the personnel and policy changes that were taking place in the Obama administration as these events unfolded and how these changes had led to a decrease in drone strikes:
Obama announced that he had chosen Lisa Monaco to replace Brennan as his top counterterror official on January 25, and she officially assumed the role of Homeland Security Advisor on March 8. The U.S. launched four strikes on Yemen between January 19 and January 23, just before Obama’s announcement about Monaco, but didn’t launch another until April 17.
“With Brennan going over to CIA and Monaco replacing him, it took time,” said a senior counterterrorism official. “This was a while coming. JSOC (the Pentagon’s Joint Special Operations Command) was pushing for more strikes and more operations but the White House slowed everything down.”
Those three strikes in mid-April were followed by another lull in strikes until mid-May, when there were two strikes just before Obama’s drone policy speech:
In tandem with the drone speech, the President issued new internal guidance to officials that tightened controls on what targets could be hit and who could make the decision to launch a drone.
What followed, sources said, was more frustration from Defense Department officials, and a third, seven-week-long interruption in drone strikes that led to a backlog of identified militant targets in Yemen.
But the “targeting” done by JSOC in Yemen isn’t of the same quality as the information prepared for targeting by the CIA for strikes in Pakistan, according to the NBC report:
In May, around the time of Obama’s speech, senior military officials prepared “targeting packages” for Monaco, with a roster of suspected militants in Yemen that they wanted to eliminate. The “targeting packages” contain background information on the identified targets. The CIA’s packages for Pakistan are often very detailed, while the Defense Department’s research on Yemeni targets was sometimes less detailed.
In fact, the JSOC apparently even admitted that some of these recent targeting packages pertained to lower level targets, but in an apparent use of pre-cogs, they claimed these were going to be important al Qaeda figures in the future and the administration had to deal with the question of “pain now, or pain later” in their recommendation to take out these lower level operatives.
Keep in mind that these meetings to discuss drone targets, also know as “Terror Tuesday” meetings, are populated by high level security personnel from many agencies. Both JSOC, as the target developer for drone strikes in Yemen, and NSA, as the purveyor of information gleaned from surveillance, would of course be present.
As @pmcall noted to me on Twitter, the “intercept” then magically appeared and opened the floodgates for strikes:
@JimWhiteGNV Let’s see military frustrated no drone strikes approved & all of a sudden a magic message intercepted. Full speed ahead again
— pmcall (@pmcall) August 16, 2013
Here’s how the NBC article described that: Continue reading
I was in court, so I didn’t see it, but apparently there was a little hearing over at House Judiciary Committee this morning on “Oversight of the Administration’s Use of FISA Authorities“. There was an august roll of Administration authorities and private experts: Mr. James Cole, United States Department of Justice; Mr. John C. Inglis, National Security Agency; Mr. Robert S. Litt, ODNI; Ms. Stephanie Douglas, FBI National Security Branch; Mr. Stewart Baker; Mr. Steven G. Bradbury; Mr. Jameel Jaffer; and Ms. Kate Martin.
Hmmm, let’s take a look and see if anything interesting occurred (as reported by Pete Yost of AP). Uh, well, there was THIS:
For the first time, NSA deputy director John C. Inglis disclosed Wednesday that the agency sometimes conducts what’s known as three-hop analysis. That means the government can look at the phone data of a suspect terrorist, plus the data of all of his contacts, then all of those people’s contacts, and finally, all of those people’s contacts.
If the average person calls 40 unique people, three-hop analysis could allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.
The government says it stores everybody’s phone records for five years. Cole explained that because the phone companies don’t keep records that long, the NSA had to build its own database.
Go read all of Yost’s report, there is quite a bit in there that is stunning in the blithe attitude the Administration takes on this hoovering of data and personal information. Also clear: Congress has no real grasp or control of the government’s actions. The Article I brakes are out and the Article II car is accelerating and careening down the road.
In a white paper claiming “the American people deserve to know what we are doing to protect both” privacy and liberty, and security, the government (Ellen Nakashima, at least, doesn’t specify which agency generated this) also includes this assertion:
The [dragnet metadata] program is subject to strict controls and oversight: the metadata is segregated and queries against the metadata are documented and audited.
The detail is one that NSA Director Keith Alexander had already claimed in his testimony before the Senate Appropriations Committee last week. He claimed,
Every time we query that database, it’s auditible by the committees, by DOJ, by the court, by the Administration.
In a telling comment to the press the other day, though, Dianne Feinstein, whose staffers on the Intelligence Committee would be the ones auditing the queries, said this:
Asked to confirm that intelligence officials do not need a court order for the query of the number itself, Feinstein said, “that’s my understanding.”
I found it really strange that a person who should be solidly in the thick of the audits Alexander was boasting about didn’t even seem sure about how someone accessed the database.
But then, Alexander said they were “auditable,” not that they were audited by all these people.
One of just a few explanations about oversight in a document trying to prove the government protects our privacy and liberty might be more persuasive if they weren’t presented in the passive voice. It doesn’t sound like DiFi knows Congress could audit the document; I wonder if the FISA Court, which Alexander claims also can audit the data, knows it can (I’d also like to see someone audit the claim it is segregated; is it ever copied?).
The white paper’s statements about the 702/PRISM program are equally unsatisfying.
Congress requires the Government to develop and obtain judicial approval for “minimization” procedures to ensure appropriate protection of any information about U.S. persons that may be incidentally acquired. The Government did that, and its procedures were approved by the Foreign Intelligence Surveillance Court.
As I’ve noted repeatedly, the FISC doesn’t get to review compliance with these procedures, only the adequacy of them if applied as promised. And since this white paper makes no claims that the government can’t access this US person data — which, after all, includes content and metadata — it suggests the most sensitive collection for Americans has only internal (DOJ and ODNI review) safeguards for Americans’ Internet communications.
Effectively, in addition to providing further evidence for Mark Udall’s assertions that the government could accomplish what it says it is doing via other, far less sensitive means, this document only serves to show how inadequate the oversight of these programs is.
There is only one substantive case left in litigation with the ability to bring tangible accountability for the illegal and unconstitutional acts of the Bush/Cheney Administration’s warrantless wiretapping and surveillance program. That case is Al-Haramain v. Bush/Obama. Yes, there is still Clapper v. Amnesty International, but that is a prospective case of a different nature, and was never designed to attack the substantive crimes of the previous Administration.
A little over a couple of hours ago, late morning here in the 9th, the vaunted “most liberal of all Circuit Courts of Appeal”, the Ninth Circuit, drove what may be the final stake in the heart of Al-Haramain by declining to conduct an en banc review of its August 7, 2012 opinion. The notice from the court today is brief:
The opinion filed on August 7, 2012, and appearing at 690 F.3d 1089, is hereby amended. An amended opinion is filed concurrently with this order.
With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.
The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.
Before going further with analysis, a word about the “amendments” to the opinion. The “Amended Opinion” is here. You can compare for yourself to the August 7 original opinion linked above, but the difference is pretty slight.
It appears all the court did is delete a few sentences here and there about 18 USC 2712(b). The court did not address, nor change, their erroneous assertion that plaintiffs’ Al-Haramain could have sued under 1806(a), or restore the misleadingly-omitted (by elipsis) language from 1806(a). Nor did the Continue reading
[Part 1 & Part 2 have been the conventional parts of the Keith case analysis. Now we are going to get into areas that involve less what has happened, and more what is happening and opinion as to how what has happened might have an impact, depending upon the arguments raised to the court. So keeping in mind that on the opinion front, you get what you paid for, let’s see where this takes us. To evaluate the impact of the Keith case in a states secrets context, we have to back up and look at the Reynolds case.]
Parameters of the State Secrets Privilege Recognized in the Reynolds’ Case
The Reynolds’ case, United States v. Reynolds took place during World War II. The Government was sued for negligence resulting in the crash of a B-29, killing three civilians. When the families brought a lawsuit for damages, the DOJ sought to block any access to information relating to the crash. After a failed claim that Air Force regulations made the information privileged from disclosure, the Secretary of the Air Force tried a different argument. He filed a document called a “Claim of Privilege” and, while he made the regulations argument again, this time he added another argument and a few carrots to the widows to try to win the court over:
[The Secretary] then stated that the Government further objected to production of the documents “for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force.” An affidavit of the Judge Advocate General, United States Air Force, was also filed with the court, which asserted that the demanded material could not be furnished “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.” The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a “classified nature.”
The District Court ruled that the Government would have to show the court in camera why national security was at risk if the witnesses were given information on how their husbands died. The DOJ countered that it would make witnesses available to the widows to examine, but it was not going to produce documents. The District Court then ruled that the appropriate response to the obstruction of discovery was to treat the issue of negligence as being decided against the Executive. On appeal, the Circuit Court agreed.
Cut now to the Supreme Court.
The Supreme Court created a privilege (or if you believe in international law ;-) it recognized an exception used in other countries) for the Executive to protect military secrets even in cases where this meant that a litigant would lose their opportunity to pursue a claim against the government. The Court believed that the military testing nature of the information and the fact that we were currently in a state of war counterbalanced the rights of the litigants, especially since they were being provided with the alternative opportunity of interviewing witnesses.
In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests.
The Court then described the procedures the Executive would need to follow to successfully raise the privilege.
It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.
If such a formal claim of privilege (here, a “Reynolds’ Affidavit”) was filed by the government in a civil setting and there was a chance that military secrets would be revealed, the Reynolds Affidavit procedure could be used to not only bar a court from demanding that the government turn over information, but to prevent the court from ruling that allegations against the government be deemed admitted in light of the failure to provide discovery. Emphasis on the “could” because the court went on to provide a preliminary standard for review for a Reynolds’ Affidavit that involved weighing various interests:
In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail.
While the court on the one hand said that “even the most compelling necessity” is outweighed if military secrets are at stake, it still attempted to carve out as an exception cases where the use of the privilege would be “unconscionable,” as in a criminal setting:
Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented.
So the judicial review analysis from Reynolds (some of which was dicta, as it did not involve a case before the court)was that:
a) there is no privilege unless the Executive properly invokes it;
b) if the privilege is properly invoked, the court weighs necessity to the litigant (or, as I might argue later, to the judicial system) versus need for the privilege;
c) if military secrets in a time of war are involved, no amount of necessity can overcome the privilege (with a possible exception for [unconscionable activity – edited]);
d) if necessity is “dubious” (as in Reynolds, since the widows were being given access to the witnesses) then a mere formal claim of privilege will prevail without further weighing the interests;
e) if the privilege is properly invoked, the court will not determine the non-disclosed facts against the government in civil litigation against it; but
e) if the privilege is properly invoked in a criminal case, then the government is required to release the defendant and drop the prosecution.
[In 2000, information relating to the Reynolds case was declassified, revealing that the crash resulted from a fire that started in the engine. Attempts were made to have the Supreme Court reopen the case by filing a writ of coram nobis (fraud on the court) but this was denied with no opinion. Plaintiffs then refiled in the lower courts, seeking to set aside the 50 year old settlement, but the Third Circuit decided that it did not believe that there had been a fraud on the court and that it might have been necessary to keep information about the workings of the B-29 secret or to keep details of the craft’s mission secret]
Reynolds at Work in the Keith Case.
In the Keith case, Attorney General Mitchell filed an affidavit that met the Reynolds’ requirements. As the head of the Department of Justice, who had control over the warrantless surveillance program and who had given personal consideration to and authorized the surveillance, Mitchell filed a formal claim that the information from the surveillance could not be released to a criminal defendant because of national security interests, despite Alderman (which had not involved a formal invocation of the privilege) and despite the Reynolds dicta that criminal cases involving a claim of national security privilege would be required to be dismissed.
Mitchell’s claims went well beyond what the Reynolds dicta had contemplated and asked that the court look beyond “legality” of surveillance in a criminal setting and instead elevate national security above the Fourth Amendment in the area of “intelligence” surveillance. This is where the Keith case and how the Supreme Court handled that case offers insight into the states secrets privilege. Mitchell and the DOJ were claiming that the Executive’s “national security” function was so separate and severable from its law enforcement function that when it said it was acting for national security purposes, its actions were not reviewable by the judiciary and law enforcement cases could not be impeded based upon the acts of the Executive in pursuing its “national security” function.
Justice White and the “on the statute” Argument.
I think here the most interesting place to start is the separate concurrence of Justice White. Justice White wanted to handle the Keith case, not on Fourth Amendment grounds, but rather as a case of conflict between the Reynolds’ Affidavit Mitchell had given, and the requirements of the Congressional statute. Trevor Morrison, in an article found at the Columbia Public Law and Legal Theory Working Papers site, The Story of (United States v. United States District Court (Keith): The Surveillance Power expands on the context of the Keith case. In this draft (beginning on page 22), Morrison describes Supreme Court bargaining involving the Keith case opinions. In part, he discloses that Justice White’s position originally had support from Justices Burger and Blackmun as well.
Justice White’s “on the statute” argument was that, because of the fairly recent Congressional statute governing wiretaps, which spelled out what was required to be exempt from the statute, an affidavit invoking “national security” was not enough to sustain privilege. Rather, the Attorney General was required, because of the statute, to affirm within his affidavit the specific exemption provided by Congress and that the Executive’s actions fell within that exemption.
Morrison notes in his discussions that the Justice White approach could have reduced the Keith case to being about drafting rather than about the underlying issue of warrantless surveillance, and would have been followed quickly by a new affidavit from the Attorney General.
A statutory holding would simply tell future Attorneys General that their affidavits must more closely track the language in Title III’s disclaimer provision. It would amount to little more than a lesson in affidavit drafting.
I believe, though, that Morrison sells the drafting requirements a bit short with that analysis. In Reynolds, neither Congress nor the Constitution had spoken as to the government actions (military test flights) at issue. By contrast, in the Keith case, both Congress and the Constitution had spoken, at least in some fashion, to the government actions (seizing and searching private communications) at issue. In the Keith case, the Court was looking at a comprehensive statutory scheme that provided some exemptions for Executive “security” actions, but only limited exemptions.
White argued was that the first analysis should be whether the Attorney General affirme compliance with the statute.
Congress had established two branches of Executive action that it said was exempt from the statutory wiretap requirements. The first branch involved possible or potential hostile acts by foreign powers, collecting foreign intelligence essential to the national security or protecting national security information against foreign intelligence. The second branch involved overthrow of government and dangers to the structure and existence of government. The affidavit provided in the Keith case failed to specifically claim that the Executive’s warrantless surveillance of Plamdon, and hence its national security claim, fell under either branch of exemption.
Justice White’s opinion layered a second level of requirements on the national security privilege when there was a Congressional statute on point. The first level was Reynolds and applied for military secrets and in the absence of Congressional input. The second test, per Justice White’s approach, involves requiring the Executive to affirm compliance with applicable statutes including recitations as to the exemptions that applied if exmptions were relied upon. Under Justice White’s approach, where Congressional statutes sspeak to activities the Executive is using to “collect intelligence,” then the Executive would be required to comply with both tests.
However, since Justice White’s opinion was only a separate concurrence, though, let’s look at the impact of the majority opinion on the invocation of states secrets.
The Powell Decision Impact on State Secrets.
Powell and the majority of the court met the Executive branch’s warrantless surveillance of Americans with a constitutional, rather than statutory, argument. The focus of the opinion was that (unlike Reynolds) the Keith case involved a set of government conduct that was specifically covered by the Constitution. The Powell majority argued that even if Congress had authorized the Executive’s warrantless surveillance by statute, it would not matter because the Constitution and Fourth Amendment controlled over both Congressional statute and Executive national security claims.
In the case before it, the Court’s only remedy for the unconstitutional behavior was to affirm Judge Keith’s right to retain the illegal surveillance records and require that they be turned over to the defense, even over a national security interest claim by Mitchell. This aspect of Keith gets lost, but its clear holding was that when a procedurally proper Reynolds invocation attempts to apply a state secrets privilege to actions barred by the Constitution, it fails.
But Powell was obviously troubled by the need for the government to at times engage in domestic surveillance for a domestic security need separate from law enforcement. The Powell majority collectively engaged in dicta to speculate as to how Congress (not the Executive internally) migh address the warrant requirement in a domestic security situation. That dicta is worth examining for its impact on states secrets invocations as well.
While the Powell majority dismissed the impact of Congressional acts if they attempted to overcome the requirements of the Fourth Amendment, it did want to encourage Congress to act to authorize domestic surveillance in a way that would be consistent with the Fourth Amendment and the Court’s judicial review holding in Keith. The warrantless Plamondon surveillance was held clearly unconstitutional, but Powell speculated that wide latitude might be shown for surveillance involving only “foreign powers” or their agents: “We have not addressed and express no opinion as to the issues which may be involved with respect to activities of foreign powers or their agents.” Powell signaled, as had lower courts, that where there was no Congressional effort to address surveillance involving only foreign powers, that kind of surveillance would likely fall within Executive power and outside of the Fourth Amendment.
Powell then went on to discuss more generically domestic security intelligence surveillance v. criminal surveillance and provided a speculative list of actions that Congress might attempt to create a situation whereby the Executive could engage in domestic security intelligence surveillance in a manner that would allow that intelligence surveillance to be in compliance with the Fourth Amendment and exempt from Alderman production during a criminal trial.
Congress may wish to consider protective standards for the [domestic security surveillance] which differ from those already prescribed for specified crimes
It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of [criminal surveillance warrant applications] but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in [criminal surveillance warrant applications.]
. . . We do not attempt to detail the precise standards for domestic security warrants … We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe. (emph. added)
The takeaway from the Powell decision is that, even under a claim of national security privilege, the Fourth Amendment required prior judicial approval for the Court to hold that such surveillance for domestic security purposes was constitutional. The Court felt Congress might be able to come up with a statutory scheme which could provide for prior judicial approval of domestic security surveillance and that the Court might deem such a judicially authorized seizure and search of communications based on less than criminal probable cause to comply with the Fourth Amendment.
The combined takeaway from the White and Powell opinions is that every member of the Court who considered the case believed the Reynolds invocation of national security interests failed – Justice Powell and the majority because it did not comply with Constitutionally required prior judicial approval; Justice White because the Reynolds affidavit did not clearly state, on its face, compliance with Congressional statutes or exemptions (which he wanted to resolve before looking at the Constitutional argument).
Next up – Congressional efforts with FISA to first rein in, and now reel out, Executive power while avoiding judicial review and options that may still be open .
[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]
District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.
Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:
The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.
Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.
However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.
DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.
Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.
Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.
[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]
It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.
At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.
Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.
Dear Congressman Blumenauer:
I must say, I was both surprised and heartened to see you intrepidly and doggedly pursuing the existence and nature of indemnification agreements from the United States government insulating and immunizing private companies such as Halliburton/KBR from damage liability they would otherwise accrue for heinous, illegal and/or unconscionable acts committed in their participation in national security and the war on terror. Excellent work sir!
However, now that you are up to speed on the insidious use and abuse of such provisions, maybe you would like to continue your fine work – and give honor to your oath of office to defend the Constitution – and ask the same questions, and demand answers thereto, regarding indemnification agreements given to telcos by the Bush Administration in conjunction with the telcos’ participation in the illegal and unconstitutional warrantless wiretapping program instituted by the Bush/Cheney Administration. And we know the program was illegal and unconstitutional because a United States Federal Judge directly and specifically declared it to be just that.
So, what you need to know is that the same type of craven indemnification agreements you have pluckily exposed for Halliburton/KBR were almost certainly given to the telcos participating in the President’s Wiretapping Program, and you owe it to your constituents and the citizens of this country to look into it and get answers just as you have done here.
Now I know this may be a lot to grasp and there is much for you to learn in order to successfully pursue this matter, but by great and fortuitous luck, I have already laid out everything you will need to get going. In fact, I did it nearly three years ago, and here is a taste:
For the foregoing reasons, the telcos are already protected by the immunity of existing statutory safe harbor provisions for legal conduct requested by the Administration and will have indemnity for other acts demanded by the Administration. I respectfully submit that the telcos are already sufficiently protected from the Spectre (some pun intended) of massive financial peril of the existing civil lawsuits; and that the only real reason for the desperate push for immunity is panic among Administration officials that their craven illegality will be exposed and they will be held to account. We now know for a fact, that which we have always suspected, thanks to Mike McConnell, namely that the entire belligerent push for FISA reform is all about immunity, and not about what George Bush would call “protectun Amarikuh”.
The minor issues with FISA that need tweaking could have been easily accomplished and, indeed, Congress offered long ago to work with them to do just that; but, of course, were belligerently spurned because, as Dick Cheney famously bellowed, “We believe… that we have all the legal authority we need”. This furious push has been about immunity, from the start, to prevent discovery of the Administration’s blatant and unconscionable criminal activity. The House of Representatives, and the cave-in Administration cover-up specialists in the Senate as well, should take a long, hard look at what is really going on here and steadfastly refuse the Administration’s self serving craven grab for the cover of telco immunity.
But, alas, Congress, which you were a member of, went along like a bunch of blind lemmings with the Bush/Cheney Administration’s demand for immunity for telcos that, along with the dishonest assertion of state secrets, has completely eviscerated citizens’ ability to know and understand what illegal and unconstitutional actions the US government is taking in their name, not to mention ability to seek proper redress for the crimes and acts.
So, now that you are all hardwired in on indemnification abuse, and on a roll of success, how about you go ahead and pursue this part of it? Come on Earl, it is your duty after all. Thank you in advance for your attention and cooperation in resolving this important matter.
As you may know, there was quite a lot of buzz this week about Google potentially leaving China over the hacking of Google’s system. From MSNBC/Reuters:
Google, the world’s top search engine, said on Tuesday it might shut down its Chinese site, Google.cn, after an attack on its infrastructure it believed was primarily aimed at accessing the Google mail accounts of Chinese human rights activists.
Unlike ordinary viruses that are released into cyberspace and quickly spread from computer to computer, the type of attack launched against Google and at least 20 other companies were likely handcrafted uniquely for each targeted organization.
It appears to be a problem that is quite deep according to an in depth article in MacWorld:
Google, by implying that Beijing had sponsored the attack, has placed itself in the center of an international controversy, exposing what appears to be a state-sponsored corporate espionage campaign that compromised more than 30 technology, financial and media companies, most of them global Fortune 500 enterprises.
The U.S. government is taking the attack seriously. Late Tuesday, U.S. Secretary of State Hillary Clinton released a statement asking the Chinese government to explain itself, saying that Google’s allegations “raise very serious concerns and questions.”
But the Macworld article goes on to explain why the United States government may be taking this much more seriously than they let on:
“First, this attack was not just on Google. As part of our investigation we have discovered that at least twenty other large companies from a wide range of businesses – including the Internet, finance, technology, media and chemical sectors – have been similarly targeted,” wrote Google Chief Legal Officer David Drummond in a Tuesday blog posting.
“Second, we have evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists.”
Drummond said that the hackers never got into Gmail accounts via the Google hack, but they did manage to get some “account information (such as the date the account was created) and subject line.”
That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.
“Right before Christmas, it was, ‘Holy s***, this malware is accessing the internal intercept [systems],'” he said.
Uh, “account information”, “subject line”, “search warrants” and “intercept systems”. That ring a bell? This appears to indicate that the state-sponsored Chinese hackers have hacked into the portion of the Google infrastructure that deals with government warrants, intercepts, national security letters and other modalities pertinent to the Terrorist Surveillance Program. That, if true, could be very problematic, one would think.
Now, this is based upon information and belief, but it is my understanding that Google doesn’t store any gmail data in China, which means that this search warrant/intercept machine was located in the US, likely in Mountain View California
That is, if Google’s Mountain View HQ search warrant search interface/computer was hacked, we are probably talking about the same computer used by the Google Legal Department to perform queries in response to DOJ warrants, subpoenas, national security letters, and FISA orders.
Yeah, if that is the case it could be a problem.
Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!
This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.
The EFF describes what transpired next in their press release:
On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.
Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.
Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.
Judge White’s five page Order has some really sweet passages:
There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.
White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.
Then White sets the table for dissection of the DOJ specimen: Continue reading