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Judge Orders White House To Produce Wiretap Memos 178

Posted by Soulskill
from the show-and-tell dept.
sv_libertarian sends this excerpt from the Associated Press: "A judge has ordered the Justice Department to produce White House memos that provide the legal basis for the Bush administration's post-Sept. 11 warrantless wiretapping program. US District Judge Henry Kennedy Jr. signed an order (PDF) Friday requiring the department to produce the memos by the White House legal counsel's office by Nov. 17. He said he will review the memos in private to determine if any information can be released publicly without violating attorney-client privilege or jeopardizing national security. Kennedy issued his order in response to lawsuits by civil liberties groups in 2005 after news reports disclosed the wiretapping."
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Judge Orders White House To Produce Wiretap Memos

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  • Assuming an Obama win on Tuesday and a serious shift towards Democrats (what polls largely suggest), are we finally going to see some serious investigations and accountability for this current administration?

    I know the wheels of justice are often rather slow. But I do hope the courts eventually get around to reeling back in the egregious power-grabs of the current executive. I also hope the next executive doesn't attempt to maintain such.

    • Re:Accountability ? (Score:5, Informative)

      by CRCulver (715279) <crculver@christopherculver.com> on Sunday November 02, 2008 @10:30AM (#25602361) Homepage

      Assuming an Obama win on Tuesday and a serious shift towards Democrats (what polls largely suggest), are we finally going to see some serious investigations and accountability for this current administration?

      A Democratic administration doesn't necessarily mean a stance against wiretapping. Many of the "ECHELON" activities which came to the public's attention with the 2001 European Parliament report were instituted under President Clinton, who also was a fan of "leveling the playing" field between American and foreign businesses through eavesdropping. A good introduction to the troubling rise of violation of privacy in the 1990s, which coincided with a popular Democratic president, is James Bamford's Body of Secrets [amazon.com] .

      • Re: (Score:3, Interesting)

        I'm pretty sure that Echelon has a far worse bark than bite.

        I haven't changed my sig (which is also my email sig) since 1998.

        • Echelon is a pretty old buzz word that has not been used by anyone within the UKUSA setup for at least 20 years now, but your sig still serves the greater purpose none the less.

          So long as ones name isn't ~in~ any of the end product reports, then sure, the bark is worse than the bite :-)

          ---
          Disgruntled former Defence Signals Directorate drone, no longer willing to exchange secrets for beer or carbonated diet beverage.

    • Re:Accountability ? (Score:4, Informative)

      by Anonymous Coward on Sunday November 02, 2008 @10:50AM (#25602453)

      No.

      Obama voted for the bill that pretty much rubber stamps Bush's current surveillance and wiretapping regime.

    • Re:Accountability ? (Score:5, Interesting)

      by Thrip (994947) on Sunday November 02, 2008 @11:44AM (#25602817)

      ... are we finally going to see some serious investigations and accountability for this current administration?

      I'm not holding my breath. On the one hand, the party in power generally prioritizes the things it wants to get done over the things it would like to see punished. On the other hand, if you dig too deeply into anything in Washington, you're going to find wrongdoing on both sides. And on the other other hand, presidents don't generally act to limit their own power.

      There may actually be an opportunity here to break the back of the Repbulican party, but it's not clear that that would benefit the Democrats. The timesharing arrangement they've got going now seems to work out pretty well for them. How much do you think they want to face a wave of conservative activists energized to build a new party?

      • by TubeSteak (669689)

        There may actually be an opportunity here to break the back of the Repbulican party, but it's not clear that that would benefit the Democrats. The timesharing arrangement they've got going now seems to work out pretty well for them.

        Works out pretty well for them?
        What about us?

        The one thing Republicans and Democrats seem to agree on is that, with enough pork for both sides, any bill is passable.

    • Re: (Score:2, Interesting)

      by phorm (591458)

      Or maybe the courts are just being "allowed" to draft in restrictions now because the Reps have already figured that they're not going to be in this time around...

      • by jamstar7 (694492)
        Funny, from my old civics classes back in the Stone Age, it was the job of the Federal Courts to rein in the government when it got out of hand, and the job of the Supreme Court to rule on the constitutionality of any law in any case brought before them. Of course, now that the SCOTUS is packed with neocon sympathisers...
    • by xs650 (741277) on Sunday November 02, 2008 @12:04PM (#25602933)
      More likely there will be a major fire in the Whitehouse records department on the 5th.
    • by swillden (191260)

      Assuming an Obama win on Tuesday and a serious shift towards Democrats (what polls largely suggest), are we finally going to see some serious investigations and accountability for this current administration?

      That would risk reducing the power of the office of the president. Obama won't do that, not once it's his power that would be reduced.

    • Re: (Score:3, Interesting)

      by will_die (586523)
      No, for the simple reason that President Bush keeps top Congress members appeased on what he was doing. This has come up a few times when something has hit the news and Democrat members have said they did now know of it and then the White House would release the listing of attendees and there were the Democrats.
      if the Democrats were to do anything it would just lead them to having to try their own members, so it is far better for them to stay quiet and let the rumors spread that something illegal was done
      • There's lots of speculation about telecomm lobbyists and whatnot, but I don't really think the degree of lockstep on this issue can be explained simply by AT&T dollars. Moreover, if they just wanted to shield AT&T, they could've allowed investigations to go through, but capped damages for anything that AT&T could show the government had ordered them to do to a very nominal figure, or even agreed to have the government cover the damages.

        They pretty clearly though, in both parties, didn't want thi

    • Re: (Score:2, Informative)

      by mattytee (1395955)
      Considering that Obama voted for allowing retroactive immunity to the telcos, do you think he's going to call for accountability here?

      It's rare for any branch that has expanded its powers to relinquish them. Usually this is done legally, by declaring such action unconstitutional.

      Maybe we'll get some moderates/lefties in SCOTUS and some of the nonsense will be so declared.
    • Why do people persist in believing that there is a difference in Democrats and Republicans? They make *speak* differently, but follow the damned voting records and see how often they actually disagree.

    • by jo42 (227475)

      Don't worry your geeky little head. McTard is going to win on Tuesday.

    • Qwest lost pentagon contracts for refusing to illegal wiretap [washingtonpost.com] when it was asked to in February 2001 [fiercetelecom.com] . The 9/11 attacks are a strawman argument for the executive branch grabbing as much power as they can.

      As to impeachment, Pelosi has said impeachment is off the table [nytimes.com] for quite awhile. Kucinich has tried to start impeachment hearings but they got killed in subcommittees. The two parties may bicker at some level but they wouldn't actually want to oh, follow the law or anything when it comes to trampling pers

      • by sumdumass (711423)

        Qwest lost pentagon contracts for refusing to illegal wiretap when it was asked to in February 2001 . The 9/11 attacks are a strawman argument for the executive branch grabbing as much power as they can.

        Well, the only person who claims that is the former CEO at Qwest and he did so in his trial for securities fraud. No one at Qwest has stated the same things or even confirmed the story about losing contract. The government denies it.

        As to impeachment, Pelosi has said impeachment is off the table for quit

  • by thisissilly (676875) on Sunday November 02, 2008 @10:22AM (#25602321)
    I thought it was fairly well established that the Bush administration's warrantless wiretapping predates 9/11 [nytimes.com]. The NSA was meeting with Qwest executives in February 2001, trying to pressure them into allowing it. They said no, other carriers buckled.
    • As I recall those who went along were paid well for their participation. So I question the use of the term "buckling" which suggests force was applied as opposed to selling their soul for 30 pieces of silver plus overtime which is what really happened.

  • Too long (Score:5, Insightful)

    by jonaskoelker (922170) <jonaskoelker@gnuUMLAUT.org minus punct> on Sunday November 02, 2008 @10:34AM (#25602381) Homepage

    Posted [...] on 2008-11-02

    Kennedy issued his order in response to lawsuits by civil liberties groups in 2005 after news reports disclosed the wiretapping.

    It has taken three to four years, roughly a whole term, to get a judge to dig up this bit of the current administration's {,mis,ab}use of power.

    What will the consequences for the Bush et al. be, if their practices are found to be unconstitutional? Is there a real incentive to uphold the constitution if it takes so long to dig up the dirt?

    • Re:Too long (Score:5, Insightful)

      by n3tcat (664243) on Sunday November 02, 2008 @11:34AM (#25602739) Homepage

      roughly a whole term

      now you're catching on. They're waiting till almost everyone that was ever involved is out of office so that the backlash on the state is far less severe than the backlash that will happen on the individuals involved.

      once bush is out of office, they don't care if the people lose faith in him anymore because he doesn't represent the country any longer.

      • Re: (Score:3, Interesting)

        by swillden (191260)
        Also, if it becomes clear that any backlash that reduces the power of the presidency will limit *Obama's* power, there's litle incentive to avoid it.
        • by jamstar7 (694492)
          The only ones wanting to limit or decrease the President's power are the neocons, and only if Obama gets elected. Reducing the power of the Presidency is a Not Good Thing for any career politician. If your guy can't do the job, what's the point of pushing him into office? At the end of the day, the Democrats scream "You're one!!", the Republicans scream "You're another!!" and after the close of the session, go off to drink together like the Good Ol' Boys And Girls Club it really is. Why are you expectin
          • by swillden (191260)

            Why are you expecting anything different?

            I'm not. Not in any significant way, anyway.

    • by PMuse (320639)

      It has taken three to four years, roughly a whole term, to get a judge to dig up this bit of the current administration's {,mis,ab}use of power.

      Oddly, the ruling issued exactly one news cycle before election day. Google News has 327 articles and counting. [google.com]

  • by txoof (553270) on Sunday November 02, 2008 @10:34AM (#25602387) Homepage

    FISA - The Foreign Intelligence Surveillance Act [wikipedia.org] - of 1978 provided the president a method to tap communications without a warrant in a "Ticking Time Bomb" situation. FISA allows investigators begin surveillance without proper documents as long as the activities are reported to a judge for review within 72 hours. In any Time-Bomb scenario, 72 hours should be ample time for the investigators to gather the needed information to prove that their hasty wire-tap was legitimate. The judge will sign the warrant and everybody is happy.

    In any other case, the judge will surveillance must be shut down and the records sealed immediately. This law has been so effective that out of the hundreds of FISA taps exactly ZERO have been denied.

    This is why the Bush administrations new warrantless wiretapping is so distressing. The system wasn't broken! It worked very well. This is simply yet another attempt by the administration to do an end run around due-process. Bush and Cheney have done more to erode the constitution than any other duo in this country's history.

    Lets all hope that our next president will restore some order to the land and respect the laws that provide his power. If we allow our executive to choose which laws he will follow, we're on a short trip to the disaster that won't be unlike Russia's "Democracy".

    • by Dr. Donuts (232269) on Sunday November 02, 2008 @10:51AM (#25602465)

      Sure, if you think in terms of tapping an individual line, FISA worked. Now, what if you want to tap thousands or millions of calls simultaneously?

      I suspect that Bush's primary reason for the warrantless wiretapping simply boils down to they didn't know exactly who/what/where to look and wanted to perform a dragnet on foreign calls. Something that would have been impossible to do under FISA.

      • by mrscorpio81 (177852) on Sunday November 02, 2008 @11:00AM (#25602509)

        I would say that tapping millions of calls simultaneously is going too far to protect from terrorism, and should be rejected.

        A wire tap is a tool used to pin down one guy, or see who picks up on a specific phone, to stop crime. Monitoring a million calls at once is not wiretapping, it's surveillance, and should be, would be, and is prohibited by the 4th amendment. Bush's new laws essentially nullify the 4th and Bush's actions go beyond the bill he himself requested!

        • Too many wire taps? (Score:5, Interesting)

          by PolygamousRanchKid (1290638) on Sunday November 02, 2008 @11:47AM (#25602835)

          The Stasi (http://en.wikipedia.org/wiki/Stasi), East Germany's secret police, ended up collecting so much information on its citizens that it was impossible to process and analyze it all. "Some calculations have concluded that in East Germany there was one informer to every seven citizens."

          Sure, the NSA has all kinds of wizz-bang gadgets to sort and process their stuff, but I wonder if the same thing is happening with them?

          • by Immostlyharmless (1311531) on Sunday November 02, 2008 @11:59AM (#25602901)
            Which is exactly why having access to all this information makes us MORE vulnerable to another terrorist attack, not less. Look at how much information the FBI already had on the 9/11 hijackers. They *literally* had the American populace calling them on the phone and saying "I think we have some terrorists here."

            They still couldn't figure it out. Somehow now with a deluge of information of the sort they now have access to, they are going to do any better? Me thinks not...
            • On the other hand, they'll have enough information that if someone comes to them and says, "I want to destroy X person's life," they will happily be able to supply all of the dirt necessary.
              • You do realize just how staggeringly large the public communications infrastructure is don't you? Not even the multi-billion dollar budgets of all the worlds 3 letter agencies combined could put a tiny dent in those kinds of data rates.

                Slaving a collection system to a single pipe is one thing, but what does it get you? You still have to break it down to component parts - voice or fax in the clear is largely a thing of the past, an expensive waste of bandwidth for the telco, now everything is buried a few mu

                • by jamstar7 (694492)
                  You do realise how much money the government has at its disposal, don't you? Throw a few hundred billion at the problem, they'll get results. And the contractors will make a killing. What's a couple trillion more dollars worth of deficit at this stage of the game? The US is already so bankrupt now that our great great great grandkids will be in poverty or hyperinflation.
          • by dpilot (134227) on Sunday November 02, 2008 @12:04PM (#25602929) Homepage Journal

            Which after having done any test engineering, which I have, or reading practically anything by Bruce Schneier, which I also have, then you see that the percentages are against you on mass dragnets like this.

            If you're looking for say, a dozen terrorists, looking through 120,000,000 phone calls, that's well under 1 part per million. A really good false positive rate might be 0.01%. That's still 1 part per 10,000 - you're looking for 12 terrorists in 12,012 hits. That's even assuming that your dragnet is 100% effective, that it's 12,012 hits and not 12,011 or 12,006. (12,000 false positives and 12, 11, or 6 true positives.)

            This just isn't even a good way to start the job. Intelligence on the ground is, then you can refine your wiretaps and such before you even start, so you're not sifting through so much information. Oh, and FISA would be just fine for that scenario.

      • by TheLink (130905) on Sunday November 02, 2008 @11:38AM (#25602773) Journal
        What you have to decide is which is more dangerous.

        If indeed Bush and friends trampled on your beloved Constitution and laws in doing so, I say they're more dangerous to you than what they claim they were protecting you from.

        If they could have justified it, why didn't they just push the law through Senate et all first? It's not like they have had that much difficutly in pushing through lots of crappy laws.

        The fact that they didn't even bother (and only did the retroactive BS later) shows you how much contempt they have for the Law and the People of the USA.
        • by Dr. Donuts (232269) on Sunday November 02, 2008 @12:07PM (#25602945)

          "If they could have justified it, why didn't they just push the law through Senate et all first? It's not like they have had that much difficutly in pushing through lots of crappy laws."

          Because if they had attempted to change the laws, people would have become aware of what they wanted to do. Simpler to invoke "War Powers" and push through immunity after the fact for those that go along with questionable actions, rather than make your intents known and possibly have someone tell you "No, you can't do that".

          It's an ugly state of affairs any way you look at it. The amount of money, legislation, rule-bending and even forging wars all in the name of "Fighting Terrorism" is ridiculously out of proportion. As is typically the case with politics, a boogey-man is used to justify increased scope and powers of the state.

        • Re: (Score:2, Insightful)

          by Hatta (162192)

          If indeed Bush and friends trampled on your beloved Constitution and laws in doing so, I say they're more dangerous to you than what they claim they were protecting you from.

          This much is obvious. Look at how many Americans died because of Bin Laden's orders. Roughly 3000. How many Americans died because of Bush's orders? Over 4000 in Iraq and over 600 in Afghanistan. How many American dollars were wasted because of the 9/11 attacks? We may have lost half a trillion dollars [navy.mil] in GDP. But the Iraq war wi

          • Re: (Score:2, Funny)

            by moortak (1273582)
            I fully support Bush living in a cave in Pakistan.
          • Look at how many Americans died because of Bin Laden's orders. Roughly 3000.

            Small nitpick: Though it's true only 3,000 people died on September 11th, there were over 17,000 people in the towers at the time of impact. That doesn't include the intentions of the other two targets.

            • by pfleming (683342)

              Look at how many Americans died because of Bin Laden's orders. Roughly 3000.

              Small nitpick: Though it's true only 3,000 people died on September 11th, there were over 17,000 people in the towers at the time of impact. That doesn't include the intentions of the other two targets.

              Shortly after the attacks, Bin Laden expressed surprise and elation that his attacks had been so successful. Based on this, even he did not expect the death toll nor the physical destruction to be so high. Until this point terrorism (of the Bin Laden type) had actually claimed very few lives.

      • I suspect that Bush's primary reason for the warrantless wiretapping simply boils down to they didn't know exactly who/what/where to look and wanted to perform a dragnet on foreign calls. Something that would have been impossible to do under FISA.

        Right, they were building social network graphs based on call routing data from phone calls. They were looking for hidden nodes in the graph, intermediaries they suspected were there but couldn't find. In this scenario recording voice data isn't interesting nor c

    • Re: (Score:3, Informative)

      >In any other case, the judge will surveillance must be shut down and the records sealed immediately. This law has been so effective that out of the >hundreds of FISA taps exactly ZERO have been denied.

      Not to nitpick, but some FISA taps have in fact been denied (granted, not many):

      http://epic.org/privacy/wiretap/stats/fisa_stats.html [epic.org]

      To add a thought, just because the ratio is historically so low doesn't necessarily justify as a fact that the whole game isn't rigged in the first place.
      • by txoof (553270)

        Indeed, I didn't do my research carefully enough. Thanks for pointing that out.

        I think that even if FISA taps are biased, at least there is some oversight. I appreciate that there is, if nothing else, an illusion of oversight. There is a judge who is not directly linked to the investigation reviewing and vetting the requests. Under the current warrantless system, no one outside the investigation ever gets to know what's going on. There's not even an illusion of oversight. We all just have to hope that

    • by lawpoop (604919)
      Sir, you are much too naive.

      The plan was to create a giant database of *everyone*, including every bit of electronic data available about them. Think of it as a FaceBook that includes everyone in the nation, with all your medical records, financial records, credit card records, phone calls, and emails. It was called "Total Information Awareness" [wikipedia.org], and the Latin Phrase on its logo was Scientia est Potentia -- "Knowledge is Power". Therefore, Total Information Awareness means absolute power.

      The wikipedia ar
  • by nathan.fulton (1160807) on Sunday November 02, 2008 @10:59AM (#25602503) Journal
    The court order mandates an in camera (in chambers) review of the memos, and only those that have not been granted summary judgment. Meaning that there is still a chance that the most putrid examples of abuse of civil rights are screened out for "national security" reasons. The OUTCOME of this review will be far more interesting (and indicative of the amount of justice that will be serves) than the order for its release.
    • by corsec67 (627446)

      Unless the government pulls another "we aren't going to tell you anyways", like they did in US v. Reynolds [wikipedia.org], as depicted in the book Claim of Privilege [amazon.com]. Even getting an in camera review is a gain, so don't overlook that.

  • ... or these crooks get away scott-free in the long run.

    • Swearing in won't take place till early January, just ahead of the presidential inauguration on January 20. Don't expect any action on Nov 5 :)
      • by swillden (191260)
        Impeachments come from Congress, not from the President, so the date of the swearing in is irrelevant, except that, per the GP's point, if they're going to happen they need to happen BEFORE Jan 20. However, you're right that nothing will happen on Nov 5th.
        • Congress will be lame too. Ya know. But either way, drop this impeachment shit, it ain't gonna happen. Bush is gonna retire rich and fat somewhere and there is nothing anyone can do about it.

  • by smchris (464899) on Sunday November 02, 2008 @11:12AM (#25602579)

    Oh, right. Never mind.

  • we've already seen what happens when you subpoena evidence like that. "accidents happen".

  • Yeah, sure (Score:4, Informative)

    by Legion303 (97901) on Sunday November 02, 2008 @06:47PM (#25605961) Homepage

    I predict it will play out something like similar demands have in the past:

    GWB: Fuck you.
    Federal judge: Yes sir. Sorry to have bothered you.

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