Wiretapping in America: The Moment of Decision Is Near
    By Bill Simpich
    t r u t h o u t | Perspective

    Friday 25 August 2006

    Two district court rulings in the last month focus on whether the National Security Agency (NSA) will be free to eavesdrop on Americans as a matter of domestic policy. Since the end of World War II, the United States intelligence agencies have amassed a remarkable record of tiptoeing past the gaze of any watchdog, with the nation's courts always providing a large amount of slack. The odds are good that both of these cases will be heard by the United States Supreme Court before George Bush completes his term of office, if they are not mooted by the passage of the National Security Surveillance Act this autumn.

    The outcome of these NSA cases and this autumn's Congressional vote 0awill affect the entire future of this country. One case is a class 0aaction filed by the Electronic Frontier Foundation, alleging that AT&T 0ahas given the National Security Agency (NSA) secret, direct access to 0athe phone calls and emails going over its network and handing over 0acommunications logs detailing the activities of millions of ordinary 0aAmericans. The government has intervened and demanded that the case be 0adismissed last month because the suit could expose "state secrets." 0aHighly classified documents were transported under armed guard to San 0aFrancisco for viewing by Judge Walker. The plaintiffs' attorneys were 0anot allowed to see the documents. Last month, US District Judge Vaughn 0aWalker ruled that the case could go forward: "The compromise between 0aliberty and security remains a difficult one. But dismissing this case 0aat the outset would sacrifice liberty for no apparent enhancement of 0asecurity."

    Many other cases have now been consolidated with the EFF suit being heard in San Francisco under the aegis of Judge Walker, a Bush appointee who has a libertarian streak but is no civil rights activist. Walker has ruled against the Bush administration argument that the "state secrets" privilege is implicated, but it is virtually certain that his ruling will be stayed pending appeal to the Ninth Circuit and the United States Supreme Court.

    The second case is even more important, as it challenges Bush's power to order the NSA to engage in this eavesdropping. Bush will argue that he had the right to eavesdrop based on both the president's duty to protect the populace in Article II, Section 2 of the Constitution and a 2001 "Authorization for Use of Military Force" issued by Bush himself pursuant to his inherent war powers in the Constitution.

    This case was filed by the ACLU in Detroit, and there was a favorable ruling by Judge Anna Diggs Taylor on August 17 holding that "The defendants are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (TSP) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III ..."

    She further declared that the program "violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III." (Note: FISA regulates the government's collection of "foreign intelligence" information to assist US counterintelligence agencies, while Title III (also known as "the Wiretap Statute") sets forth the stricter guidelines over domestic law enforcement surveillance.

    As in the AT&T case, Judge Taylor's ruling will undoubtedly be stayed until it is heard by the Supreme Court. Although her ruling was heavily criticized by both sides for being overly general and for cribbing large quotes from the Keith decision (discussed below), a review of the ruling indicates that the first-day critics did not have a good grasp of the facts. The judge's ruling had more vague statements than one would expect, precisely because the government refused to provide any significant facts to the judge that had not already been leaked by the New York Times and other media sources.

    The reason that the stakes are so high in these cases is explained 0ain the aphorism, "If the CIA is the eyes of US surveillance, the NSA 0ais the ears." NSA's mission is to eavesdrop, through the use of the 0aInternet, telephone calls, radio, and other intercepted forms of 0acommunication. Author James Bamford explains 0athat one 0amethod is to "take entire streams of communications coming down from 0asatellites, which can contain millions of communications, and they 0asort of intercept those communications with large dishes and filter 0athe information through very quick computers that are loaded with 0anames of people, words that they're looking for ..." Bamford adds that 0aif the communications are by microwave or undersea cable, the NSA can 0aeavesdrop on all of these techniques, either using satellites in space 0aor ground stations or submarines that can actually tap into undersea 0acables."

    Many observers have stated that it is apparent that Bush wants to attack a Vietnam-era ruling known as "Keith" - rather than the rather exotic "US v. US District Court" - relied on by Judge Taylor in last week's ruling. Judge Damon Keith was the courageous Michigan district court judge who ruled against government wiretapping of White Panther activists Pun Plamondon, John Sinclair and John Forrest, despite Nixon's contention that it was necessary for "national security." In a landmark decision, Judge Keith held that the Fourth Amendment and case law flatly prohibited the federal government from conducting electronic surveillance without a court order. President Nixon challenged Keith all the way to the Supreme Court, and lost in a unanimous decision in 1972.

    Many Washington insiders believe that the Keith decision was key in Nixon's resignation, as after the Supreme Court had reached its decision on Friday, June 16, 1972, there was a leak that the decision would be announced publicly on Monday, June 19. Members of the Committee to Reelect the President had previously installed bugs at offices of Democrats in the Watergate Building. The thinking goes that in view of the impending Supreme Court ruling, the White House ordered that the bugs be removed. Howard Hunt and the rest of Nixon's Plumbers came to the Watergate on Saturday night. The fallout from the break-in was what led to Nixon's resignation in 1974, and then to the investigation of the NSA itself in 1975 that exposed the rogue role of the NSA.

    In the post-Watergate atmosphere, the Church Committee took a hard 0alook at the NSA for the first time. It emerged 0athat from 0aits inception in 1952 until mid-70s, the NSA worked hand in glove with 0aWestern Union in "Operation Shamrock," reading every telegram that 0acame in and out of the United States (Statement of James Bamford, 0aDemocracy Now!, 12/19/2005). Even more insidious was the exposure of "Operation Minaret," revealing that between 1970 and 1975, the agency 0aalso monitored the calls of thousands of anti-Vietnam War protesters 0awho were violating no laws (Statement of James 0aBamford).

    After these revelations became public and during the Church Committee hearings in 1975, there was serious talk of prosecuting NSA higher-ups. Because of the institutional difficulties in prosecuting intelligence officers, the government opted to enact the Foreign Intelligence Surveillance Act and then the Foreign Intelligence Surveillance Court to act as a firewall (Bamford). For the first time in US history, a super-secret court was created to provide a stamp of approval on intelligence eavesdropping.

    Until recently, the FISA court was a rubber stamp. The Seattle Post-Intelligencer reports that the court denied "only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered [by the FISA court] which modified or denied the requested authority" submitted by the government.

    "But since 2001," the Post Intelligencer continues, "the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered 'substantive modifications' took place in 2003 and 2004 - the most recent years for which public records are available." Even this tiny amount of independence was apparently too much for the Bush administration and the intelligence establishment.

    Legal commentator Eugene Volokh points out that the Keith opinion concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection. (Volokh Conspiracy blog, 8/17/2006). Without judges like William Brennan, Thurgood Marshall, and William Douglas on the bench, the ruling could be quite different on this score.

    Nations around the world are highly alarmed by the NSA's unlimited powers. A report issued by the European Parliament in January 1998 revealed a giant US spy technology network, known as ECHELON, that tracks telephone, fax and email information throughout the world, but particularly in the European Union (EU) and Japan. (Steve Wright, An Appraisal of Technologies of Political Control, European Parliament: Scientific and Technologies Options Assessment, Luxembourg, January 6, 1998. Also see Bruno Giussani, "European Study Paints a Chilling Portrait of Technology's Uses," The New York Times, February 24, 1998.) What makes a bad situation even worse, according to famed attorney Martin Garbus, is that when the Bush administration admitted to this wiretapping, the claim was that "it was wiretaps for surveillance between domestics and people overseas. Now, they've admitted it's the wiretapping and investigation of people within the Unted States, domestic calls to domestic calls." The import of Garbus's remark is clear. By the time this case gets to the Supreme Court, the integrity of the Keith decision itself may be in question. Simultaneously, Senator Arlen Specter has introduced S 2453 to be heard this autumn, the National Security Surveillance Act, which would increase the president's authority to act outside of FISA, eliminate the longstanding exclusivity of FISA, and allow the president to exercise unchecked authority to wiretap American citizens and enter their homes without a warrant. Will the American people be indefinitely subjected to secret government eavesdropping? Does Congress have the gumption to tie the hands of the NSA if the Supreme Court goes the wrong way? Or is the USA prepared to admit that there is simply no way to control its intelligence agencies?

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    Bill Simpich is a civil rights attorney specializing in suits against confidence artists both in and out of government. He is a resident of San Francisco and active in United for Peace and Justice and the upcoming Declaration of Peace mobilization to take place September 21-28, 2006, in Washington, DC, and throughout the country.