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DOJ Report On NSA Wiretaps Finally Released 174

Posted by ScuttleMonkey
from the drilling-giant-holes-in-secure-communications dept.
oliphaunt writes "As regular readers will recall, after the 2004 elections the New York Times revealed that the NSA had been conducting illegal wiretaps of American citizens since early 2001. Over the course of the next four years, more information about the illegal program trickled out, leading to several lawsuits against the government and various officials involved in its implementation. This week several of these matters are coming to a head: Yesterday, the lawyers for the Al-Haramain Islamic Foundation filed a motion for summary judgment in their lawsuit against the Obama DOJ. The motion begins by quoting a statement made by Candidate Obama in 2007, acknowledging that the warrantless wiretap program was illegal. US District Judge Vaughn Walker has given indications that he is increasingly skeptical of the government's arguments in this case. In what might just be a coincidence of timing, today the long-awaited report from the DOJ inspector general to the US Congress about the wiretapping program was declassified and released. Emptywheel has the beginnings of a working thread going here."
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DOJ Report On NSA Wiretaps Finally Released

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  • It's the last whitewash report we expect to receive on the matter.

    See you in Baghram!

  • Ah yes (Score:5, Informative)

    by Vinegar Joe (998110) on Friday July 10, 2009 @05:49PM (#28655331)

    The Al-Haramain Islamic Foundation.....based in Saudi Arabia, tied to Al-Qaeda and banned by the United Nations Security Council Committee 1267.

    http://www.un.org/sc/committees/1267/ [un.org]

    • Ah yes (Score:5, Insightful)

      by Qzukk (229616) on Friday July 10, 2009 @06:41PM (#28655739) Journal

      American lawyers.... based in America, and protected by the Constitution no matter how fast the Republicans spin the word "People".

      The lawyers are the aggrieved party here, having received a copy of their own wiretap in the mail and therefore being the only people outside of the government able to prove that these wiretaps occurred. That they just happen to be lawyers for an Islamic foundation that gives all its money to a bunch of murderers would be a good reason to put in a request for a warrant from the secret FISA court that rubber-stamped almost every single request ever, shame Bush's administration just couldn't be bothered to obey the law.

      • Re:Ah yes (Score:5, Insightful)

        by DeadCatX2 (950953) on Friday July 10, 2009 @06:49PM (#28655823) Journal

        See my other post in this thread. Not all of al-Haramain's money went to al-Qaida. A lot of it went to very poor people for food, education, or health care. Only a small minority of it was skimmed by a few sympathizers.

        That's the problem with the guilt-by-association game. If you're a large charity and any one of your employees helps al-Qaida, your whole charity's image is permanently tarnished, even if your employee was acting outside of official capacity.

      • that gives all its money to a bunch of murderer

        First of all, I do thing that Al-Quaeda is a bunch of crimial assholes.
        But let's be objective for a minute:

        You are paying how many taxes to the US government?
        And how much of that budget goes into the war budget?
        And how many people were killed by US soldiers because of that war? (Hind: A multiple of that of all terrorist attacks ever.)
        So by your own definition you are not much better than that foundation, are you?

        Now you might say that this as an unfair comparison, because the people that are killed by US so

      • So if they got a warrant, even if it were rubber stamped by the FISA court, it isn't illegal. Duh.
    • Re:Ah yes (Score:5, Insightful)

      by fuzzyfuzzyfungus (1223518) on Friday July 10, 2009 @06:44PM (#28655769) Journal
      Since they are such an awful bunch(and to be fair, they do seem to be), it would have been really fucking easy to do the surveillance in a legal manner.

      But hey, anything goes, right?
      • Re:Ah yes (Score:5, Insightful)

        by sumdumass (711423) on Friday July 10, 2009 @07:20PM (#28656047) Journal

        The preception by the administration was that it was a legal manner.

        Your sort of arm chair quarterbacking here and using the later presumption of not being legal to invalidate the entire idea of thinking it was legal at the time it was done. Let's see if I can put this in a car analogy, if you checked your blindspot and thought it was safe to change lanes only to find later the you missed a car and hit it when changing lanes, did you act maliciously and intentionally to hit the car or did you think you were being legal and safe but erred?

        • Re: (Score:3, Informative)

          by Chyeld (713439)

          In the eyes of the law, it wouldn't have mattered, you were still at fault and liable for damages. Especially if you claimed you checked your blindspot and missed them, since that implies that you weren't paying close enough attention.

          Similarly, in the eyes of the law, it doesn't matter that they 'thought' it was legal. Legal in this instance being them going to their lawyers and saying "I want you to tell me this is legal so I can claim I was told it was legal". It only matters if it actually were legal.

          • by sumdumass (711423)

            In the eyes of the law, it wouldn't have mattered, you were still at fault and liable for damages. Especially if you claimed you checked your blindspot and missed them, since that implies that you weren't paying close enough attention.

            Yes, but your not looking at the context. You are at fault if you hit someone. If it is an accident, you pay a fine and move on. If you hit the person intentionally, you are then charge with vehicular assault and face fail time.

            The point is that the administration was under

        • Re: (Score:3, Insightful)

          by hondo77 (324058)

          It doesn't matter whether you were malicious or merely erred, you were still at fault and should be held accountable for your actions.

          • by sumdumass (711423)

            It doesn't matter whether you were malicious or merely erred, you were still at fault and should be held accountable for your actions.

            It certainly does matter. Accidents are usually minor misdemeanors and don't carry any jail time. If it was malicious, then it can be a felony carrying several years in prison.

        • Re:Ah yes (Score:5, Insightful)

          by fuzzyfuzzyfungus (1223518) on Friday July 10, 2009 @08:25PM (#28656499) Journal
          I think your analogy gives the administration way too much credit. The fact that you can find a hardcore loyalist who has passed the bar to tell you what you want to hear is hardly an excuse.

          For the car analogy, if you pasted a picture of a nice, clear road onto your rearview mirror, and, after carefully checking that, hit another vehicle, it'd be all kinds of your fault.
          • by oliphaunt (124016)

            Or had your drunk 6-year-old child change lanes with his eyes closed. Which, when you think about it, is actually a pretty apt description of the way the Bushies ran the country.

        • by DeadCatX2 (950953)

          The administration got a hack lawyer to say it was legal. It was so hacky that other administration officials who came on board later had no choice but to revoke the legal justifications used for the program. Any legitimate legal scholar who reads that opinion will point out that it's complete bullshit (it makes me wonder how many people they had to ask before they found one who would write the bullshit they wanted to hear)

          Allow me to extend your analogy. You ask your passenger to tell you there's no one

          • Re: (Score:2, Insightful)

            by Teufelsmuhle (849105)
            Asking enough "experts" until they found one that gave them the answer they wanted was par for the course amongst the Bush Administration, and it was hardly restrained to legal matters. This behavior was common in a variety of scientific, environmental, and economic areas as well.
          • by sumdumass (711423)

            The administration got a hack lawyer to say it was legal. It was so hacky that other administration officials who came on board later had no choice but to revoke the legal justifications used for the program. Any legitimate legal scholar who reads that opinion will point out that it's complete bullshit (it makes me wonder how many people they had to ask before they found one who would write the bullshit they wanted to hear)

            Allow me to extend your analogy. You ask your passenger to tell you there's no one in

            • by DeadCatX2 (950953)

              Presumed legal, indeed.

              If you want to pick nits about the definition of legal, then how about this. They could have gotten wiretaps that were consistent with the statutory law passed by the legislative branch and upheld by the judicial branch, rather than using some half-baked Unitary Executive Theory to justify ignoring clear case law and legislation involving national security wiretaps.

              Normally, OLC opinions are peer-reviewed; this one was not. Even the head of OLC was unaware of this memo; it's that se

        • by bogjobber (880402)

          Looks like the administration didn't check their blindspot as well as you think. [nytimes.com] It appears that the wiretapping program was approved in the same way most decisions in the administration were approved. They made their decisions, then cherrypicked the evidence and strongarmed those that disagreed with those decisions.

          From the linked article:

          The investigation stopped short of assessing whether the wiretapping program broke the law that required the Justice Department to get a court-ordered warrant before it

          • by sumdumass (711423)

            And your point is what? Did they or did they not assume the program was legal until it was determined not to be?

            The op I respondid to said if those guy were so bad, they could have gotten a legal tap. Well, when that tap was made, they thought it was legal so the in effect did get a legal tap.

            I'm in no way arguing their innocence with the comment. I'm stating that if something was thought to of been legal, no matter how they reached that conclusion, they were getting a legal tap even though later they found

            • by bogjobber (880402)

              I'm stating that if something was thought to of been legal, no matter how they reached that conclusion, they were getting a legal tap even though later they found it to be illegal.

              That's absolutely, completely wrong. So very, very, very, very, very wrong. Whether or not you *believe* something to be illegal has no effect on whether it *is* legal, even if you're the president. And even if they acted in good faith, they can't use that defense because they didn't have a proper inquiry as to the legality o

              • by sumdumass (711423)

                That's absolutely, completely wrong. So very, very, very, very, very wrong. Whether or not you *believe* something to be illegal has no effect on whether it *is* legal, even if you're the president. And even if they acted in good faith, they can't use that defense because they didn't have a proper inquiry as to the legality of the wiretapping program.

                You are so wrong here is isn't funny. Where you are wrong is in the perception, the law has nothing at all to do with it. If a person a person does X believi

        • by Chris Burke (6130)

          The preception by the administration was that it was a legal manner. Your sort of arm chair quarterbacking here and using the later presumption of not being legal to invalidate the entire idea of thinking it was legal at the time it was done. Let's see if I can put this in a car analogy, if you checked your blindspot and thought it was safe to change lanes only to find later the you missed a car and hit it when changing lanes, did you act maliciously and intentionally to hit the car or did you think you w

          • by sumdumass (711423)

            Oh please. The legal situation here is actually not terribly complex.

            At the time, Bush and his legal advisers never claimed that the search programs respected the 4th Amendment, because they obviously didn't. The official legal argument was that it didn't apply because the President said it was important to executing his Presidential Duties that it not. So, it basically comes down to whether you buy that bullshit. Does the Constitution say the President can just write a note that says that he doesn't think

        • by Bob9113 (14996)

          if you checked your blindspot and thought it was safe to change lanes only to find later the you missed a car and hit it when changing lanes, did you act maliciously and intentionally to hit the car or did you think you were being legal and safe but erred?

          Better analogy: Suppose you are a surgeon who wants to perform a dangerous operation. You start asking other surgeons to back up your decision, and promise them the most prestigious position in their specialty if they do. Suppose you find a surgeon who acc

          • by sumdumass (711423)

            I understand what you are saying but the question comes down to, at the time, did the surgeon believe he had a right to do the job or not. Even if he found the right somewhere and made arrangements to cover it up if something went wrong, the fact is he still believed he had a right to do the procedure.

            So in the context of the parent post (not law or right or wrong or anything), saying that he should have done it legally would have resulted in the same exact actions because bush initially believed it to be l

            • by Bob9113 (14996)

              Ignorance of the law is no excuse. Especially for the number one cop in the number one country.

              • by sumdumass (711423)

                I never said ignorance of the law was an excuse. What I said is given the option of being legal or not, the same decisions would have been made. It's a matter of only knowing what they knew then and not knowing what we know now. If Bush thought he was acting legally, then saying he should have did it legally would have resulted in the same exact actions happening given what he claims to of known at the time.

                As I said in the previous post, in the context of the op and not the law or morals or anything, the a

    • Re:Ah yes (Score:5, Informative)

      by DeadCatX2 (950953) on Friday July 10, 2009 @06:44PM (#28655775) Journal

      Right, because it's okay to violate the rights of bad guys. We never, ever get the "bad guy" designation wrong. Just ask Haji Sahib Rohullah Wakil [mcclatchydc.com]

      It's not like the vast majority of the donations to al-Haramain went to feed hungry Somalis, teach poor Indonesians, or help sick Kenyans [cbsnews.com]. It couldn't possibly be that there were a few sympathizers working in al-Haramain were skimming the money for al-Qaida.

      No, no, no, we don't care about any of that. Some very, very important people tell us that these other people are evil, so why should we care if their rights get trampled on? They're only terrorists, just like Wakil.

  • What is the Federal Government going to do with all the data that has already been collected? Personally, I'd like to see it destroyed. That and I'd like to have a monopoly on a magical river of inflation-proof cash.
  • Campaign promises? (Score:5, Informative)

    by R2.0 (532027) on Friday July 10, 2009 @05:51PM (#28655345)

    There's no way on earth a judge is going to hold that a statement made on a campaign is anything binding. If he were to, Obama would be utterly buried in lawsuits, as would every other president.

    • by Rene S. Hollan (1943) on Friday July 10, 2009 @06:11PM (#28655505)

      And this would be a bad thing?

      • by CajunArson (465943) on Friday July 10, 2009 @06:54PM (#28655867) Journal

        Yes, because the president is supposed to lead the country, not waste taxpayer money every time somebody has a real or imagined beef with the federal government. If you want to change the government, the Constitution has these things called "elections", not "lawsuits". I don't even agree with Obama on most topics, and I'm 100% convinced that his expansions of the federal government that Slashdot seems to completely approve of will have a vastly higher negative impact on my individual rights than the hypothetical outrage that people here feel that somebody in Al Queda might have had his "right to privacy" intruded upon. However, the proper way for me to affect change in the government is not by suing every time they adopt a policy I don't agree with.

        • s/affect/effect near the end there... preemptive grammar strike.

        • No one is suggesting that the president should be open to a lawsuit over every minor disagreement over how the government is run. It makes perfect sense, however, that all politicians--the president included--should be held liable for the promises they make during their campaigns, to at least the same extent that commercial entities are held liable for their advertising promises. Promising something to get elected and failing to carry out that promise afterward can reasonably be considered a form of fraud.

          A

          • by hondo77 (324058)

            Promising something to get elected and failing to carry out that promise afterward can reasonably be considered a form of fraud.

            Only if one is a simpleton.

        • by TheRaven64 (641858) on Friday July 10, 2009 @07:53PM (#28656279) Journal

          Yes, because the president is supposed to lead the country

          Does anyone remember when we elected people to represent us, not to lead us?

          • by Chris Burke (6130) on Saturday July 11, 2009 @12:14AM (#28657663) Homepage

            Does anyone remember when we elected people to represent us, not to lead us?

            No, I don't remember, from my life or from history. The President has always been Leader, not representative. Do you think the people voted General George Washington to represent or to lead the nation? We vote for Congressmen, aka Representatives, to represent our interests in creating the law that governs us. We vote for Presidents to lead the nation, to guide its direction in war or peace. You vote for a leader you think is capable of the task, and who wants to lead the country in a direction you want to go. They're the Executive both in name and in terms of the powers granted them in our Constitution. That's what President means -- leader of the Republic.

            • by k1e0x (1040314)

              In America we have no leaders. We lead ourselves.

              Sovereign (n.)
              1 a: one possessing or held to possess sovereignty b: one that exercises supreme authority within a limited sphere c: an acknowledged leader : arbiter

              I am a Sovereign Individual, not Obama's subject. You can be a subject if you like.

              • by Chris Burke (6130)

                Oh please. And when I was a Boy Scout Patrol Leader, that made the other scouts my Subjects who'd sacrificed their self-determinacy to me. That you had to specifically pluck a word from the dictionary with the connotation you want just proves how vacuous the argument is. The President isn't a King, that's why he can't just order the people around. There are different types of leader [reference.com] than just sovereigns.

        • Elections do not change our government. In the last election we had the choice of continuing Bush's foreign policy OR continuing Bush's foreign policy with nicer rhetoric. We had the choice of bailing out our economy with favours to those corporations that favour fascism or bailing out our economy with favours to those corporations that favour socialism. We basically had the choice of Bush the third in white or Bush the third in black.

          They don't let us vote on real change, allowing the people a choice on th

        • by dwpro (520418)

          With your mention of the constitution, I would think you wouldn't have to put "right to privacy" in quotes. Illegal wiretaps are a clear violation of "the right of the people to be secure...from unreasonable searches", and are due more than hypothetical outrage.

          Our presidents take an oath and are bound by the constitution, and if we don't hold them to that, we deserve the government we get.

          You seem to imply that the proper way to effect change is to wait until the next election and vote the

    • by oliphaunt (124016)

      I don't think the intent is to make the promise binding on this case. I think the intent is to make Obama look like a hypocrite in front of the whole world. The problem isn't with this judge, it's with the Obama administration's approach to dealing with the wholesale criminality of their predecessors. People can try to change that policy by winning lawsuits, or they can try to change it by shaming Obama into actually sacking up and doing something about it. This case just presents a nice opportunity to

      • by sumdumass (711423)

        Obama can't do anything legally. Public officials are pretty much exculpated from acts done in good faith in public office. Breaking a law to avoid a death is a common excuse to violate the law. For instance, it you jaywalk in order to pull a small child out of the street, should you be cited. If you are, a legal principle called "necessity" would get you out of the fine. It's illegal to shoot someone, illegal to discharge a firearm within so many feet of a dwelling and illegal to discharge a firearm within

  • by Tackhead (54550) on Friday July 10, 2009 @05:59PM (#28655415)

    US District Judge Vaughn Walker has given indications that he is increasingly skeptical of the government's arguments in this case. In what might just be a coincidence of timing, today the long-awaited report from the DOJ inspector general to the US Congress about the wiretapping program was declassified and released.

    "NSA is now funding research not only in cryptography, but in all areas of advanced legal analysis including legislation, lobbying, and litigation. If you'd like a circular describing these research opportunities, just pick up your phone, call your lawyer, and ask for one!"

    - With apologies to any crypto geeks who got hired by talking to their grandmothers about mathematics on an open line :)

  • Comes down to the same BS of: "We told our lawyers to tell us it was legal, and so it was." Will the Bush administration EVER answer for their crimes? I think not at this point.

  • by oliphaunt (124016) on Friday July 10, 2009 @07:06PM (#28655961) Homepage

    Since I wrote the summary, the EFF has a new page up with some analysis and commentary. [eff.org]

    the IG report does confirm that the warrantless surveillance involved "unprecedented collection activities," beyond the surveillance program of Al-Qaeda touted by President Bush. The report described the scope of the additional spying only as "Other Intelligence Activities." Collectively, the so-called terrorist surveillance program and the Other Intelligence Activities were referred to as the "President's Surveillance Program." The report does not use the program's code name, Stellar Wind, which remains classified. Given the scope of the Nixon Administration's illegal spying (which led to FISA in the first place), it is sobering to consider that the Other Intelligence Activities were unprecedented.
    [...]

    The report damns the effectiveness of the program with faint praise. [...]

    The IG report provided a dramatic summary of the dispute in March 2004, when dozens of Bush Administration officials nearly resigned in protest over the Other Intelligence Activities. The Department of Justice could find no legal support for these activities, and found that the factual basis for prior legal opinions was substantially incorrect. [emphasis mine]

    that last bit is referring to some of John Yoo's embarrassingly shoddy 'legal' work, which (now 9th Circuit Judge-for-life) Jay Bybee signed off on.

  • My heart bleeds (Score:5, Insightful)

    by Frantactical Fruke (226841) <renekita@d[ ]fi ['lc.' in gap]> on Saturday July 11, 2009 @05:22AM (#28658621) Homepage

    The NSA tapping American phones? I would feel really bad about that, if I did not just recall that I'm European and that the NSA requires no warrant or reason to invade my privacy. It was expressly created for that. Do not expect me to feel sympathy when a Chinese agency snoops on your communications. You never gave it a thought whether indiscriminate spying on 'them danged furriners', i.e. me, was ethically justified.

  • Imagine you are a staff attorney being asked to sign off on the legality of a secret government program. You read the legal analysis, written earlier by your successor, and realize that not only are parts of the analysis legally flawed, but some the facts aren't even right. Not only does the analysis set aside an entire act of Congress, it fails to describe accurately the program itself.

    In its current state, there's no way you could sign off. Problem is, the President of the United States has already bee

  • Not backing up the NSA in any way but WAS it in fact judged illegal by a court? I thought the matter was still to be decided by the judicial system?

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