Two Groups File Domestic Spying Lawsuits

An anonymous reader writes "The Center for Constitutional Rights and the ACLU both recently filed lawsuits, in New York and Detroit respectively, claiming that President Bush's electronic eavsdropping program is illegal and exceeds his constitutional powers. From the article: 'The Detroit [ACLU] lawsuit, which names the National Security Agency and its director, said the program has impaired plaintiffs' ability to gather information from sources abroad as they try to locate witnesses, represent clients, do research or engage in advocacy.'

Bruce Schneier wrote about it in cryptogram.

[eddy]

"Bush's eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams" -- Project Shamrock [schneier.com]

ACLU Blog

[eldavojohn]

Here's a blog [reformthepatriotact.org] related to this ACLU Vs NSA lawsuit.

And from that blog, there's a great site [cdt.org] with all the documents which raise concern. There's a lot of info on there if you're really serious about reading up on what resources the ACLU is using to run this case.

Re:Why I Love the ACLU

[Erwos]

"But, no matter who you are, you have to admit that the ACLU prevents you from losing anything that might be considered a civil liberty."

Unless, of course, you're talking about the right to own a gun. The ACLU doesn't care much about that particular civil liberty. Or freedom from racism - unless you're a non-white-male.

The ACLU picks and chooses its issues. That's just not something you can deny. When the group first started, they were a lot more impartial. Back in the 1970s, when their membership became more left-wing, the group started down that path as well. There is more than a grain of truth in the idea that they are a left-wing organization at this point.

The ACLU does a lot of good things, and I applaud them for those things. But, do not mistake them for "defenders of all civil liberties, now and always". It's simply not true, and applying that sort of idealism to them is misleading.

-Erwos

Re:Echelon Project

[spge]

You just beat me to it :) Echelon still exists, although it uses a legal loophole that prevents (not that effectively, it would seem) governments from spying directly on their citizens. Instead, the US government allows the UK to spy on US citizens, while the UK government allows the US to spy on the British. Then they swap reports. The result is essentially the same as spying on your own people, and covers all phone calls, faxes and email transmissions. http://en.wikipedia.org/wiki/ECHELON [wikipedia.org]

Re:Bruce Schneier wrote about it in cryptogram.

[SimonInOz]

Eavesdropping goes back just a little bit further than 1978.

Ever heard of the Royal Mail? (Yes, in the UK).
It was established by Royal Charter to carry all mail.
Why?
So the King could read it all.

When? In 1516, by Henry VIII when he established the "Master of the Posts".

Things don't change much, do they? (This sounds better in French).

Re:Domestic Intelligence wiretaps YOU

[Cyberax]

Technically it was neccessary. In practice all required warrants were received retroactively.

PS: Yes, I live in Russia.

You sir need to recheck your facts

[Critical_]

WH press secretary McClellan claimed the Clinton-Gore administration had engaged in warrantless physical searches just as your post claims. However, what he was refering to was an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. He said Clinton's deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants. This resulted in McClellan saying today (of Gore) that, "I think his hypocrisy knows no bounds." Not only is your blanket statement wrong about the Clinton Administration engaging in similar activities as Bush Jr., but you are also incorrect in its scope. At the time of the Ames search in 1993 and when Gorelick testified a year later, the Foreign Intelligence Surveillance Act (FISA) required warrants for electronic surveillance for intelligence purposes, but did not cover physical searches. The law was changed to cover physical searches in 1995 under legislation that Clinton supported and signed. However, your post fails to mention both and furthermore fails to mention that Clinton never circumvented FISA to search US Citizen's overseas phone calls. It's sad that you'd pedal the same misinformation that the White House feeds everyone instead of presenting the facts to educate your fellow Slashdotters. It's just as bad as Bush's attorney general, Alberto Gonzales, making the same false arguments as McClellan during interviews Monday on CNN's "Larry King Live" and Fox News Channel's "Hannity & Colmes." Chew on that.

we are inching ever closer...

[way2trivial]

http://www.google.com/search?hl=en&q=protest+zones [google.com]

Re:Why I Love the Al Gore

[jabster]

http://gaypatriot.net/2006/01/16/law-school-dropou t-accuses-president-of-breaking-the-law [gaypatriot.net]

-john

Stop lying

[Anonymous Coward]

Really, I'm getting tired of this crap.

What you quoted is not the same as the thing Bush did. While you can of course be of the opinion that it's also problematic, it's legally an entirely different matter.

So stop acting as if it were the same.

Really, I can't understand why some people are so desperate about defending this administrations conduct in this matter that they are resorting to simply lying.

At the time the statement you quoted above was made, physical searches did not, I repeat not violate FISA, because physical searches weren't covered by FISA at the time.
However, what Bush authorized, clearly is covered by FISA and illegal according to it.

http://mediamatters.org/items/200601170014 [mediamatters.org]

Re:Why I Love the ACLU

[Aneurysm9]

A Congressional subcommittee was informed several times of what was going on and gave it's approval...even the Dems on the committee approved it several times.

You're living in la-la-land, aren't you? Some members of a Congressional committe were notified that the program was in place and required to keep confidential any knowledge they had regarding the program. They were not asked for approval, much less did they give it. They were not allowed to discuss the matter with counsel. They were not allowed to voice their disapproval in any meaningful way.

Re:Back when Clinton was wiretapping...

[d3ik]

Yet another "but Clinton..." argument. Okay, I'll bite. You realize that Clinton went through the FISA court (which was established for just these situations), right? The only time that President Clinton authorized a search without warrant was for physical searches, which at the time was not covered by FISA. After legislation was passed to allow FISA to issue warrants for physical searches so FISA was established as the gatekeeper for domestic wiretapping. Here's what Clinton said:

"My attitude was that once the Congress had spoken on it and given us the tools that we needed, we used it," he said. "We used the law. We either went there and asked for the approval or, if there was an emergency and we had to do it beforehand, then we filed within three days afterward and gave them a chance to second guess it, because I thought it was a good -- I think in the country you always have to try to balance these things out, so that's what we did."

And yes, within the rules of FISA in the case of an emergency you can initiate a wiretap as long as you bring FISA into the loop within 72 hours. So this entire comparison of "Clinton did it too" is ludicrous. He used the tool that was setup for these exact circumstances. The real question you Bush loyalists should ask yourselves is if there was already an established procedure for acquiring a wiretap (even after the fact), why was it necessary for Bush to bypass FISA and use his 'executive privilege'.

Re:You sir need to recheck your facts

[Anonymous Coward]

http://mediamatters.org/items/200512240002#9 [mediamatters.org]
http://mediamatters.org/items/200601170014 [mediamatters.org]

You're wrong...

[msauve]

even though interpreting that clause requires only a basic understanding of the English language.

"This argument misunderstands the proper role of such prefatory declarations in interpreting the operative language of a provision. A preface can illuminate operative language but is ultimately subordinate to it and cannot restrict it."

-"A Well Regulated Militia, being Necessary to the Security of a Free State" [usdoj.gov]

Re:Filing lawsuits? I don't understand it.

[Aneurysm9]

Yes, this refers to a civil lawsuit. Unfortunately, in this instance, the courts in the United States have no power other than to decide the cases and controversies brought before them. They cannot go out and pick cases they want to hear. The only entity with the power to bring criminal charges against Bush and Gonzales is, you guessed it, run by Bush and Gonzales. Congress could always start impeachment proceedings, but then again, it's controlled by Republicans, so the chances of that happening unless they try to retroactively impeach Clinton again are pretty slim.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Incorrect, sources provided

[Critical_]

It did not fall under the Foreign Intelligence Surveillance Act (FISA) because, at the time, there were no stipulations for physical searches only electronic. Secondly, Ames himself chose not to pursue having any evidence thrown out based on the issue of warrents as you seem to be claiming. Here is the Criminal Complaint form [jya.com] from Ames' Case. I'm going to highlight some important areas:

"Paragraph 11: As a result of information obtained through electronic surveillance authorized by the Foreign Intelligence Surveillance Court, searches authorized by the Attorney General pursuant to section 2.5 of Executive Order 12333, trash covers, and other investigation which is detailed herein, I believe AMES has traveled abroad to meet surreptitiously with KGB/SVRR."

So they had what was necessary to aquire the evidence.

Here is a link to and specifically Section 2.5: [cia.gov]

"The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order."

They had probable cause which allowed them to go warrentless. The next three instances, again pulled from the Ames Criminal Complaint form referenced above, we see that FISA was used throughout the investigation.

"Paragraph 18: Based on information acquired in an electronic surveillance of AMES' personal computer and software within his residence, which was authorized by the Foreign Intelligence Surveillance Court, on or about October 9, 1993, along with other information obtained through electronic surveillance and other means, I believe "B" refers to Bogota, Colombia. From electronically stored documents located in AMES' personal computer, "North" has been identified as a signal site used by the SVRR to contact AMES, and "Pipe" is a dead drop used by the SVRR to pass messages, instructions, and cash to AMES. In this message, AMES indicated he could not be contacted from the 13th through l9th of September. I have been advised by CIA officials and learned through electronic surveillance that AMES traveled to Turkey on official business on or about September 13 and returned to the U.S. on or about September 17, 1993.

Paragraph 28: Based on several factors, including but not limited to the following, I believe AMES signaled his assent to the November meeting in Bogota by placing a chalk mark at the mailbox, "SS Smile", on or about October 13, 1993:
        a. First, on or about October 12, 1993, FBI Special Agents monitored, by means of electronic surveillance authorized by the Foreign Intelligence Surveillance Court, a discussion between AMES and his wife ROSARIO AMES, substantially as follows:

Paragraph 48: Based on information obtained through electronic surveillance authorized by the Foreign Intelligence Surveillance Court, I believe AMES also owns two condominium apartments and a farm in Colombia. The condominiums are in Bogota and Cartagena; the farm is referred to as the "Guajira.""

As you can see, FISA was involved and the case itself never came down to contesting the gathering the evidence. So you see, everything was in order and our government was able to find a spy on our soil without gross violations of our Constitutional rights.

Re:Why I Love the ACLU

[Anonymous Coward]

Now then, where the F was the ACLU when the Clinton Admin was conducting physical searches without warrants?

If you are referring to searches before 1995 (e.g. Aldrich Ames), then, as reported by the Associated Press [forbes.com], you can eat your words.

Re:Why I Love the ACLU

[Peter La Casse]

What's with "owning a gun" such a high civil liberty? Doesn't freedom of expression come way before that?

The reasoning of those who consider "owning a gun" to be an important civil liberty is that it is the final protector of freedom of expression. The idea is that when the jackbooted thugs from the government threaten to take away your freedom, good citizens first protest, then vote against it, then take up arms in civil insurrection. Without firearms, civil insurrection is futile.

Now, you and I know that in this day and age, in a country with a professional military, civil insurrection is largely futile anyway. Gun nuts know this too, and that's why they're in favor of civilians being allowed to own military-grade weapons like machine guns and grenades. Most draw the line at WMD. I think the idea is that with military-grade weapons, a law-abiding citizen stands a chance of lasting against a government attack long enough for the courts to intervene, or something like that. I, personally, have my doubts.

To them, it's not a matter of choosing between freedom of expression and freedom to own firearms, it's a matter of choosing between having both, or having only freedom of expression (with nothing to back it up but faith that your government won't one day take it away.)

I say "them" and not "us" because I'm not sure where I put myself. I support the social changes that firearms made possible (liberal democracy etc.), but I am unsure about the morality of self-defense. I do note that my culture supports the right of self-defense, which is probably good enough to allow citizens to own firearms, and I do believe that it is useful socially for citizens to be able to defend themselves, so that's probably enough for most to consider me lumped in with the gun nuts, even though I'm not sure if I would choose to defend myself with a firearm.

Re:Why I Love the ACLU

[orcrist]

Was reading of theses stupid lawsuit web sites and they had a lawsuit that the ACLU is helpping to file where they are sueing a local council member.

No link? Kind of hard to refute then, but...

This crime, he sent out, using his own money and time(his wife made them), Christmas cards that showed the Statue of Liberty and a cross on them to friends and acquantices. They are claim it was illegal since he has a seat of authority that it is an official endorsement of a particular religion.

Then I presume there was some reason for them to conclude that he was acting in his official capacity. According to you the website claims it was "friends and acquantices (sic)" but I'm pretty sure ACLU would only get upset if he were doing it in a way which implies a government endorsement of his religious beliefs. Furthermore I know ACLU has fought for expression of Religion, it's just that usually it's the 'other' religions which need the most protection given the dominance of Judaism and Christianity in this country.

Here are a couple cases of ACLU fighting *for* expression of religion:

ACLU of Rhode Island Files Appeal on Behalf of Christian Prisoner Barred from Preaching at Religious Services: here [aclu.org]

ACLU of Michigan Defends Catholic Man Coerced to Convert to Pentecostal Faith in Drug Rehab Program (12/6/2005): here [aclu.org]

and from that second article:
"The ACLU frequently defends the rights of free religious expression for all people. In Michigan, high school officials agreed to stop censoring religious yearbook entries after the ACLU intervened on behalf of a Christian student. In other states, the ACLU has supported the rights of students to distribute Christian literature at school. Recently, the ACLU of Indiana defended the First Amendment rights of a Baptist minister to preach his message on public streets."

So, enough of this bullshit myth spread by the neo-cons and the religious right that the ACLU is anti-religion.

-chris

Re:Breaking the law for the sake of security?

[Anonymous Coward]

When I was serving in Bosnia in the late 90's, KBR built the plywood place that I lived in.
KBR built almost everything that I know of there, with the Navy SEEBEEs chipping in here and there.

So yes, they did have government contracts before Bush.

Re:Why I Love the ACLU

[tpgp]

America: still more rights than ANYWHERE else.

Well I am lucky enough to be living in the Netherlands (I am not dutch however) and here are three rights I have that you don't.

1) Marry a person of the same geneder.
2) Smoke marijuana in the privacy of a coffeeshop or my own home.
3) Protection from unscrupulous software patents (OK, this one isn't really a right.)

No other country has a many people wanting to move there. I don't see boat loads of immigrants going to UK, Italy, France, Russia or anywhere in Africa or South America.

You do see boat loads of immigrants to the UK, Italy and France - they're going there because they're rich countries with good economies where they can make money.

Exactly the same reason people go to the US.

Oh - and the country who takes the highest portion of refugees is Iran (for gods sake) - so I wouldn't go around equating peoples movement into a country with its freedom.

on topic: ACLU- A place that people went and sang Christmas Carols to attack them. A group of people who were hurt by Chrismas Carols sung outside thier offices. They did not sue against Clinton and Echelon/Carnivore. They are a tool of the wackiest lefties. If they do good work it is by accident or as a by product of other goals.

Thats not on topic. Thats a flame. How about you provide some evidence for those statements?

I notice every other right wing blog is making these claims here's a good example [cashill.com] quoting it:

If the ACLU or The New York Times, which is breaking the story, were shocked by the Clinton administration's politically-motivated spying on innocent and often prominent American citizens, there is no easily discovered record of the same.[emphasis mine]

No easily discovered records huh?

I guess they didn't bother using google to search the ACLU site [google.nl]

Re: OK for one guy, but not the other?

[Politburo]

So... it's OK to authorize the warrantless search of an American citizen, as long as you think he's a spy, but it's not OK to wiretap a call to a known Al Quaeda phone number in Iran?

You have to look at the history of the FISA laws. FISA was born from Supreme Court decisions in the 70s. The decisions bascially said that warrantless domestic surveillence was not constitutional, but warrantless taps of foreign powers/agents was fine. The FISA law setup the FISA court and warrant process for domestic electronic surveillance as it related to national security (note: non-domestic activities are generally all allowed under the Constitution). The Clinton Administration realized that the FISA law did not address physical searches. They felt that domestic physical searches should be permitted similar to electronic surveillance. However at that time the FISA law had no mechanism for physical searches, so they simply could not get a FISA warrant. It wasn't possible. The FISA court did not have the authority to do that in 1993. The only options the Clinton Administration had was to either get a traditional warrant, which would have tipped Ames off to the investigation and blown the whole thing, or not get a warrant and deal with it after the fact, which is what they did.

The Clinton Administration supported changing the FISA law to include physical searches and require FISA warrants for domestic national security searches. I see no such respect of the law from the Bush Administration. The mechanisms are all in place for what they want to do, and they are simply being ignored. This is unacceptable.

Here's why

[flyinwhitey]

"What's with "owning a gun" such a high civil liberty?"

Because the Supreme Court has repeatedly ruled that the government has no repsonsibility to protect private citizens.

Read that again.

THE GOVERNMENT HAS NO RESPONSIBILITY TO PROTECT PRIVATE CITIZENS.

Don't believe me? Read about it here.

http://writ.news.findlaw.com/hilden/20050329.html [findlaw.com]

None of the other rights matter if you can't protect your life.

Re:Why I Love the ACLU

[1u3hr]

he ACLU very much supports the right to freely exercise one's religion.
That is not really the case. Was reading of theses stupid lawsuit web sites and they had a lawsuit that the ACLU is helpping to file where they are sueing a local council member. This crime, he sent out, using his own money and time(his wife made them), Christmas cards that showed the Statue of Liberty and a cross on them to friends and acquantices. They are claim it was illegal since he has a seat of authority that it is an official endorsement of a particular religion.

This news story [mcall.com] mentions the Council for Secular Humanism, amongst other groups, complaining, but not the ACLU. And no mention of anyone being sued. Do you have a source for your claim?

Re: OK for one guy, but not the other?

[Johnny5000]

I find it intensely interesting that people will defend the warrantless search and seizure of an American citizen by the Clinton administration, yet will villify the recording of phone conversations of people who have known links to terrorist organizations.

Ames was a CIA agent. When you sign up to be a CIA agent, you give them permission to search your home any time they want. If a cop shows up at your door without a warrant, and you say "please come in and search the place," it's a legal search. It's basically the same thing when you sign up for the CIA.

And have you been keeping up with the news? The American citizens with "known links to terrorist organizations" who have been spied on without warrants, in violation of the constitution, have mostly been found to be innocent of any wrongdoing. The leads that the NSA gave to the FBI were almost all a waste of the FBI's time.

Re:Why I Love the ACLU

[scheming daemons]

Where was the ACLU during the Ruby Ridge or Waco?.... Oh silly me, that was a Democrat in the White House and it was us silly conservatives complaining.

Yes... silly you.

Might want to check your Republican talking points... Ruby Ridge occured in April of 1992... while George H.W. Bush was president. Nine months before Clinton took office.

If you're so loose with the facts on that... how can we take anything you say seriously? Blaming Clinton for Federal Government abuses that occured 9 months prior to his being sworn in as president? Geez.. you guys are really grasping now.

Re:The cycle continues!

[scheming daemons]

*cough*bullshit*cough*

Your entire post is one long stream of unsubstantiated bullshit.

- Rove was going to be taken down, and Bush impeached over revealing a covert CIA agent? [Who wasn't covert, and hadn't been for 6 years]

There was never a possibility of impeachment, what with both houses of congress being solidly in Bush's pocket.

BUT! Had the exact same situation occured when Clinton was in office, impeachment proceedings would be well underway.. and you know it.

- How the Conservatives were "cracking up", by wanting to withdraw Harriet Myers, yet it was actually a strengthening of the party's convictions (See also: Sam Alito)?

Hmmm.. Bush shows an utter and complete failure of judgement in selecting a nominee, is forced by public outrage (mostly on the right) to perfom a "do-over", and this somehow makes Bush a strong leader we should rally around? We hear all the time about him being a "man of his convictions" and "not interested in what the polls say, only what is right" and all that bullshit.. but when he shows that he is ONLY interested in his public approval and not willing to stand up for his choice on principle... that makes him a good leader?

- About 20 lawsuits against Halliburton, Clinton's favorite tool and the only non-French company that makes CITIES, came to nothing?

Investigating and prosecuting these lawsuits was the jurisdiction of the Executive branch. Hmmm... wonder which person and party is at the top of that branch?

- Rush Limbaugh was going to be jailed for taking prescription drugs, but the court found there was no evidence whatsoever, and the prosecutor was trying to take a fishing expedition?

Uh... the court did NOT find there was no evidence "whatsoever". In fact, Limbaugh admitted to becoming addicted to prescription pain medicine. How can that be construed as "no evidence whatsoever"? True, he was not prosecuted... but to claim there was no evidence of his addiction to pain medication? You really have to have drunk the koolaid to go there...

- How tax cuts would "bankrupt the country", but it's growing at the safest, strongest rate without being in a boom? [Also done by JFK, Ronald Regan, George Bush 41- NOT done by Jimmy Carter who *raised* taxes, and we were miserable.]

Check the deficit and debt numbers lately? Tax cuts were supposed to increase the revenue and lower the deficit, eventually leading to surplus and a lowering of the debt. Did that happen? Or has the deficit increased and the debt balooned under this President and his "smaller government" congress? Did you believe the lies that the Republicans were for "smaller government"? The largest NON-MILITARY increase in spending in the country's history has occured under a GOP President and GOP-controlled congress. Never again should a Republican be allowed to say that his party is the party of "small government".

- How almost every democratic congress-geezer moans about low military morale, but people are re-enlisting in numbers rivaled only by the second world war?

Man.. you just make up stuff as you go along, don't you? There is a current recruitment crisis going on, as another poster already pointed out and provided a link. All four branches are well below their recruitment goals. You need to read more.

- How "no WMDs" were in Iraq, but the New York Times reported (5/22/04) that Bush was harming the Iraqis by hauling out 500T of yellowcake uranium, and 2T of enriched uranium from the streets of Baghdad?

Your president and your party leaders, who have admitted that WMDs weren't found, disagree with you. Are you calling Bush a liar when he admitted that intelligence mistakes were made and that no WMDs were found?

- How Bush "went AWOL" from his Air National Guard duties in the vietnam era, but the papers were using Microsoft's font face?

Whether he went AWOL is immaterial... until morons like yourself compare

Re:Why I Love the ACLU

[Anonymous Coward]

> America: still more rights than ANYWHERE else.

        WRONG! The USA is rapidly falling behind many other countries in the world when it comes to civil rights. I live in Canada and no government agency here is able to request my library or book pruchase records.... and I could marry a same-sex partner if I wanted to and have national recognition of that marriage. Tey that in the USA....

Re: OK for one guy, but not the other?

[stonedown]

Most of the discussion of inherent presidential authority occurred before FISA. FISA was implemented in order to reign in the abuse of government surveillance which had taken place for decades.

If the president has an inherent authority to violate FISA, then the FISA court itself is unconstitutional and should be disbanded. Methinks that is not the case and will not happen.

Here's some good reading for those interested in this topic:

http://www.fas.org/sgp/crs/intel/m010506.pdf [fas.org]

There was no purpose for the Bush administration to bypass the FISA court. Clinton had some justification, since the FISA court did not oversee physical searches, but Bush had no justification whatsoever. He had the option of obtaining warrants up to 72 hours after the fact. He claims this wasn't fast enough. This is a very difficult story to believe.