DOJ To Claim National Security in NSA Case

deblau writes "Wired is reporting that the federal government intends to invoke the rarely used 'State Secrets Privilege' in the Electronic Frontier Foundation's class action lawsuit against AT&T. The case alleges that the telecom collaborated with the NSA's secret spying on American citizens. The State Secrets Privilege lets the executive branch step into a civil lawsuit and have it dismissed if the case might reveal information that puts national security at risk."

I think...

[Dance_Dance_Karnov]

that this action by the fed pretty much confirms the EFF's claims here.

Re:I think...

[jrmcferren]

I think it is in the best intrest to let the case go on. The approval rating of the administration is very low and we are talking atomic bomb low. While I voted for Bush, this issue should not be covered up. The Bush administration's approval rating will drop either way, but the effects may not be as damaging if the truth is told instead of covered up. BTW: I wish Bush was censured, spying on American Citizens is wrong without just cause.

Re:I think...

[Phoenix666]

Agreed. Where there's smoke, there's fire. I hope people keep after government spying. It brought down one administration, and it can bring down another. Once it starts to unravel, we're going to find out more about the vast conspiracy that is the neo-con movement, from rigging the ballot to treason to war profiteering and on and on. It will shake the republic to its very roots. But once we excise them from the body politic and expunge their backers (the ultra-wealthy who are behind it all), we'll be a much stronger country. See, those people think they're born with the divine right of kings and think they can command the rest of us like sheep. What they fail and have ever failed to understand is that America's strength is in her people.

Re:I think...

[Triskele]

What they fail and have ever failed to understand is that America's strength is in her people.

I wish I had your faith in the people, friend. Or perhaps to put it another way, if America's strength is in the people, then the brains directing it to their own goals is the elite.

Re:I think...

[tenchiken]

It's not quite that simple, any more then invoking the 5th admendment implies guilt. The reality is that there are good and sane reasons for some government wiretaps. The government could also be invoking the state secrets priviledge simply to keep details on how the current system works (legaly) out of the press and the court.

If you don't think this matters, take the recent article about the Madrid bombings. The Bombers knew that their email would be read if they sent it from Hotmail or from Yahoo mail. So

Re:I think...

[SillyNickName4me]

If you don't think this matters, take the recent article about the Madrid bombings. The Bombers knew that their email would be read if they sent it from Hotmail or from Yahoo mail. So they shared a email account between them, shared the password, and hence never hit any of Europe's security flags.

Please don't treat this stuff as if it were all one dimensional and simple. This is a complex issue, and a knee jerk reaction just proved how incapable people are of thinking through the issues.

You see, there are a

Re:I think...

[ThatDamnMurphyGuy]

> Did it ever ONCE cross your mind that the government could actually be spying on people who need to be spied on?

That's not the problem. The NSA was built to spy on people who need spying on. The problem is, they, and the administration, are not following the laws set forthe to do so such spying (getting warrants, even after the fact). THAT is the problem here. They are breaking the law because they feel like it, and they believe they do not have to be accountable for doing so,

Re:I think...

[Anonymous Coward]

Well said. That is the point people are missing here. Nobody, especially the president, is above the law. If the law is there, they have to follow it, or ask congress to change the law (which they probably would have done).

They broke the law. There is no getting around that. You cannot spy on us citizens without a warrant. There is a system set up to get that warrant secretly, and "speedily". They chose to not get a warrant (or 10,000 warrants). It is that simple.

Using "national security" as a reason is not good enough. I think the supreme court already said this [cnn.com] Even if we had all of our communications monitored, that would not stop a terrorist who is determined to kill himself and take people with him. Giving up privacy will not help us stop the terrorists. Even if we imposed "martial law", as long as they have the determination, they would keep trying to kill themselves.

Look at Iraq now, we have how many hundreds of thousands of troops there, who have the authority to impose curfews, search without warrants, etc, and STILL there are many, many suicide bombings every month.

And, furthermore, since this is a war without a clear end, when will we know they are not monitoring our communications? Will they come out and say it, or will we just have to "take their word for it"? Sorry, that's not good enough. They have no credibility.

Re:I think...

[inKubus]

I think it's pretty obvious that everyone needs get excited.

A. Vote in the upcoming election
B. Send a letter to their congressperson/senator
C. Donate $10-100 to the EFF or OTHER reputable HUMAN RIGHTS ORGANIZATION (don't have starbucks for 2 days and SEND MONEY.)

DO IT! DO IT! DO IT! If you don't, you're a piece of shit.

Agreed and furthermore

[einhverfr]

The government's argument here is a very dangerous one. They seem to argue (in the actual filing) that national security is a greater interest than constitutionality-- i.e. that they can continue such a program indefinitely without judicial oversight simply because they can argue that national security information would be compromised in such a lawsuit.

This is part of a larger pattern, unfortunately. In defending this program, AG Gonzalez has stated that the AUMF of 2001 allows such a program because, in its words, it allows the president to take action against all "states, persons, or organizations that he determines" were involved in the 2001 attacks. Such an interpretation would essentially mean the official end of the American republic and the rise of an imperial military dictatorship. At the risk of invoking Godwin's law, this is not fundamentally different to *how* the Nazis took power after the Reichstag was burned. Our system is designed to protect against this exact danger.

The problem is not the spying per se. It is instead the way the program is run without adequate safeguards to the system of government of our democratic republic. I certainly hope that the court in this case does not give the Executive a free pass in this area. Allowing the State Secrets privilege to be invoked as a way to quash judicial oversight of such a program would be such a free pass.

All most of us are asking is for judicial oversight.

Re:I think...

[Legion303]

"Did it ever ONCE cross your mind that the government could actually be spying on people who need to be spied on?"

Did it ever cross yours that it should do it in the manner proscribed by the fourth amendment, which has worked great for the past 220 years?

"liberals hate the word 'Constitution' because they know that if the American public were to actually read and understand the Constitution, the liberal platform would literally crumble into dust."

Gosh, literally? I think you've been hitting that peace pipe a little yourself, hippie.

Re:I think...

[Alsee]

Did it ever ONCE cross your mind that the government could actually be spying on people who need to be spied on?

I won't belabor this point. The other replies have you nailed to the wall here. The issue is that if the government should be spying on certain people then the government damn well must do so within the confines established by the constitution and withing the the law. This administration has no respect for the constitution and beleives it is above the law, and the current story is about efforts to block the corts from looking at whether the current spying is being done within the law or being done illegally.

No, of course not, because people like you immediately think that everybody in the world is going to get along if we all smoke the peace pipe together.

Pardon me, but bullshit.

That is nothing but your own bias and imagination. Nothing but you setting up a straw man and pretending that your opponent is some demon that he is NOT.

I will lay strong odds that the person you are reffering to supported the war in Afghanistan, and I defy you to identify any meaningful percentage of "people like him" who opposed the war in Afghanistan.

Someone who (for example) opposes the war in Iraq and who absolutely despises the current administration, that person is NOT some anti-war coward anti-american hippy peacenik if they were also "pro-war" on Afghanistan.

And you automatically assume that the government is evil

Heay, that not too far off from the position of the Founding Fathers and teh very basis of our Constitution. That basis being that the government is made up of humans, and that humans are sometimes wrong or currupt, and that even good people sometimes abuse power and do Bad Things even with the best of intent, and that no branch of government should be trusted! That every branch of government and every peice of power withing the government must be subject to checks and balances and review by other parts of government. And this very case is about the judicial branch exercising it's Constitutional Power to review the legality of actions by the executive branch, and the executive branch desiring to exercize it's power independantly and without checks and without balances and without review. It's about the executive branch saying "Trust Us", we are doing Something Good, and we shouldn't have any pesky checks and balances looking over our shoulders making sure that we respect the Constitution and that we obey the law.

I'm sorry, but NO. The very basis of the Constitution is that no part of government should be trusted to police itself. The single most important time NOT to trust some part of government is when they make the very claim "Trust Us" and attempt to evade review.

and that conservatives eat little African babies for a snack before dinner.

Oooo! How recursive! A strawman of a straw man!

Come on, there is no vast neo-con conspiracy going on.

Well, I don't know exactly how "vast" it is, and maybe "conspiracy" is a bit grandiose, but many of the top positions of government are in fact held by self-professed neo-con,s and those self-professed neo-cons do self admittedly work and plan (aka 'conspire') with each other in furtherance of neo-con goals and policies.

So while you might quibble that the language was loaded, you cannot dispute the fact that there is a very distinct group with a distinct non-mainstream philosophy working and planing with each other ('conspiring') for that distinct agenda.

And don't even pretend to equate neo-con and conservative. There are a very large number conservatives becoming increasingly vocal of increasingly vocal in distancing "True Conservatives" from the policies and agenda of "Neo-Con".

The current administration has an approval rating of 32%. You don't hit an abysmal number like 32% without seriously screwing up and pissing off a substantion percentage of even your own party loyalists. Ev

Bingo

[Kludge]

People on /. have been complaining about the EFF filing lawsuits that they don't win. They may not win this one either, but it proves a point: The gov't is spying on a lot of us and doesn't want us to know it.

EFF Loss = New Precedents against our Civil Rights

[sakusha]

The problem is not just that the EFF loses cases. The problem is that for every lost case, a new legal precedent is established that permanently reduces our civil rights. In this case, the EFF has given the government an opportunity to use a new legal theory, that they are immune from lawsuits to prevent illegal violations of the Fourth Amendment (i.e. illegal search and seizure) merely by invoking Executive Privilege with a National Security Letter.

With their ill-conceived, poorly planned and poorly execut

Re:EFF Loss = New Precedents against our Civil Rig

[Bogtha]

In this case, the EFF has given the government an opportunity to use a new legal theory, that they are immune from lawsuits to prevent illegal violations of the Fourth Amendment (i.e. illegal search and seizure) merely by invoking Executive Privilege with a National Security Letter.

This is by no means a new legal theory. The State Secrets Privilege was first recognised by a judge in United States v. Reynolds, 1953 [findlaw.com], and he drew on existing English case law to make that judgement. The precedent was set over fifty years ago, it's hardly being set by the EFF.

Re:EFF Loss = New Precedents against our Civil Rig

[sakusha]

You obviously didn't read US v. Reynolds. The plaintiffs were seeking federal data to support their CIVIL lawsuit. The case established the Government's right to invoke Executive Privilege to stop disclosure in a tort.

The EFF case is entirely different. The government claims that Executive Privilege is a higher power than the 4th Amendment in the Bill of Rights. And the EFF, in the process of losing their lawsuit, will permanently erode the 4th Amendment, and place the Executive Branch beyond the reach of the courts.

Re:EFF Loss = New Precedents against our Civil Rig

[Bogtha]

Whether or not the executive branch believes it can ignore the Fourth Amendment is beside the point. The State Secrets Privilege is all about dismissing lawsuits before they even get to a point at which such a thing can be discovered.

This can be used to cover up abuses of power, but that doesn't mean precedents can be set making the abuses of power legal. That doesn't make sense. To set such a precedent would mean that the lawsuit wasn't dismissed but went ahead anyway.

Re:EFF Loss = New Precedents against our Civil Rig

[Tim C]

Well, seems to me that they have two choices.

Either they go ahead with the prosecution and risk creating this precedent that you fear. Or, they do not, and the government gets away with it.

Either way, with no consequences to their actions, the government is (or might as well be) above the law. At least with the EFF trying to prosecute, they

a) have a chance of doing something about it
b) bring it to people's attention
c) in the event of losing, sow the seed in people's minds that they *must* have been up to something in order to quash the case like that

Incidentally, you also mustn't forget that precedent is a guide, not an iron clad rule. Judges are free to rule differently; precedent just gives them something to use as guidance, and to point at in the event of their ruling being questioned.

Re:I think...

[dougsyo]

I saw the government's weasel words about how their action shouldn't be construed as any confirmation. My response to the government: "If you haven't done anything wrong, then you have nothing to hide." The government tries to tell us that often enough.

I'm not a court of law, but I'm sufficiently convinced that the government's done something fishy (again) and gotten caught at it (again).

Doug

Re:I think...

[fatman22]

Aside from there being something fundamentally not right with the term "state secrets" being applied to the activities of a telephone company, if the phone company and the government have done nothing wrong, what do they have to worry about? Let the discovery proceed.

Re:I think...

[Tim C]

That was my first thought too. However, it is just possible that it could also mean "we're not doing that, but in order to prove it we'd have to tell you stuff that we simply can't tell you - ie, the real reason why all those packets are coming to us. We're not spying on you, but the truth (and proof of that) is classified."

The cynic in me says "that proves it!". The scientist in me says that we can't be certain of that.

Re:I think...

[Anonymous Coward]

The statistician in me says that they are almost certaintly not "not hiding anything".

Re:I think...

[Anonymous Coward]

You're right, but the fact that the DoJ is invoking this protection is a strong indicator that they do have something to hide. Given the fairly narrow focus of the EFF claims (The NSA have wiretaps in major ISP data centers), the NSA obviously have something to fear from having to publicly defend itself against such a claim. At the very least we can surmise with some certainty that yes, the NSA probably do have some form of wiretaping program taking place on US soil, done in conjunction with US ISPs.

Re:I think...

[einhverfr]

I don't think the 5th Amendment should apply to the Government of the United States because they are supposed to be the representatives of the people. This really is a special case-- the 5th Amendment was supposed to protect the people from the government. To use such an amendment to protect the Government from the People (who they are supposed to represent) seems sort of dangerous to my mind.

If this were not a crime against the *people* of the US, I would not have a problem with this defense. But since it is, I think it is an issue that goes to the heart of *why* we even bother with a Constitution...

Re:I think...

[zCyl]

now all this case is about is absence of evidence as THERE IS NO EVIDENCE for what you're implying.

Do you really think the federal government has the political capital to spend right now going around and covering up wiretapping that they're NOT doing?

Re:I think...

[Money for Nothin']

While your argument is logically-true, it is not reasonable or rational. You are ignoring incentive.

What incentive is there for the FedGov to issue the State Secrets Act -- or become involved in any way with any case -- unless it involves them somehow? Unless the Federal Government has something to hide, why would it become involved?

If our government has nothing to hide, then it wouldn't use this act. But it does, and it did...

Absence of evidence

[Beryllium Sphere(tm)]

>all this case is about is absence of evidence as THERE IS NO EVIDENCE for what you're implying.

We have Mark Klein's written statement about tapping fiber at ATT facilities.

> THERE IS NO EVIDENCE

We have Russell Tice's testimony before the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations

> THERE IS NO EVIDENCE

Attorney General Alberto Gonzalez has defended the program [pbs.org]

> THERE IS NO EVIDENCE

President Bush says he signed the order. [cnn.com]

> THERE IS NO EVIDENCE

Could you try using boldface? Somehow the all-caps hasn't been enough to convince me.

Re:I think...

[JWSmythe]

Correction:

    1) The trainer said they brought the elephant into your kitchen.

    2) There are elephant droppings leading up to your kitchen.

    3) The elephant has a huge interest in being in your kitchen.

    4) For national security reasons, we will not let you into your kitchen, nor tell you anything about what's happening in your kitchen.

    I'd be lead to believe there's a warm cup of coffee in your microwave. Oh no, it would indicate that there's an elephant in your kitchen.

Re:I think...

[keraneuology]

Just because the former employee(s?) haven't testified in court doesn't mean their testimony isn't evidence. There are, in my opinion, credible claims that the NSA is behaving exactly as accused. Interestingly enough the media isn't making a big deal over this - a truly anti-Bush mainstream press would blare on every headline "Bush's NSA comfirms wire-tapping claims are state secret" or similar.

No way!

[Abalamahalamatandra]

The Bush administration? Keeping secrets? Say it ain't so, Joe!

Re:No way!

[dbIII]

The Bush administration? Keeping secrets?

After looking at other democratic systems of government around the world I can't see why the USA is still stuck with a system that doesn't let the ruling party replace lame duck presidents with others. Surely after the situations where Nixon, Reagan and even some democrats couldn't get anyone to take them seriously towards the end we shouldn't be in the same situation or approaching it now?

BTW, I'm not in the USA but live in a country with a Westminster style democr

Re:No way!

[dbIII]

speak of Nixon and Reagan in the same sentence, and DO NOT mention Clinton ... no idea what you're talking about ... not someone to be taken at all seriously

Like an anonymous poster for instance :)

The reason I grouped Nixon and Reagan is that each had nearly an entire term without the trust of the government, even though they were in the same party as the ruling party. I mentioned the other party so that people could find their own less obvious examples without pointless flames - but Clinton's party didn't

Re:No way!

[hunterx11]

You mean the one who had record approval ratings when he was impeached for lying about fellatio? Yeah, I can easily see how one would equate covering up Iran-Contra and Watergate with a blowjob. I mean, the national security implications are pretty indistinguishable.

Re:No way!

[JWSmythe]

patch:

    > "Bush administration"
    < "Government"

Re:No way!

[joe 155]

Say it ain't so, Joe

It ain't so

LOL

[No Such Agency]

And I thought I might have the best username-related gag for this one...

So they're doing it then?

[Anonymous Coward]

Such an action could only be seen as a flat out admission that the EFF allegations are at least as bad as they claim, and quite possibly worse. There you go, Citizens, your Government is spying on you. Now lets watch as the major media outlets all ignore the story.

The NSA defense

[wfberg]

"In our defense, your Honor, we did it in secret so as not to get caught."

"Case dismissed!"

But if ...

[Anonymous Coward]

If the Executive *didn't* use ATNT to spy on Americans then it is not a security matter.
If the Executive *did* use ATNT to spy on Americans then its illegal (no warrant) and legal protection doesn't apply to illegal acts.

Try it, the judge will bend over backwards to find a way to continue this case.

Re:But if ...

[Anonymous Coward]

See, that's where you're wrong. There is legal protection that applies to illegal acts. The national security intervention throws out the case, regardless of the potential outcome of the lawsuit. It isn't meant to protect the lawbreaker, but that result is an accepted side effect of protecting the secrets which would be revealed in the lawsuit. The culprit is still on the wrong side of the law, but it doesn't matter because you can't sue him anymore. This happened in business cases as well, where the DoD pl

Re:But if ...

[Bacon Bits]

Irrelevant. No law supercedes the Constitution, which guarantees every citizen's right to privacy and the right to a due process warrant for search and seizure. It doesn't say "unless the President thinks it's a national security matter". The national security clause would have to be in the Constitution to be able to override this kind of suspension of Civil Rights.

Unless the Prisident is going to try to claim that he secretly declared martial law, there is no law in the land that will stop this from progressing. The best they can realistically hope for is a closed courtroom and sealed documents.

Re:But if ...

[AstrumPreliator]

The Constitution doesn't mean anything anymore though. I mean what haven't they obliterated? And I don't just mean recently it goes back way before the current administration. State rights have been demolished, personal liberties are on their way out, Federal power is nearing absolution and the American citizenship is perfectly okay with it - or oblivious to the fact - just so long as they can watch their sports and entertainment. So many citizens don't even know what the Constitution says and public educat

Re:But if ...

[Bacon Bits]

We always have an alternative:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government [...]

The framers believed that change up to and including revolution against your government is a fundamental right. If you truly believe that the state of this Union is as bad as you suggest, exercise your unalienable rights. Or leave the nation.

"But the armed forces..."

Will be just as divided as the citizens are. During the last Civil War, the leadership of the Armed Forces divided almost evenly between the North and the South. I can name 5 generals who would not follow Mr. Bush, although they still might remain loyal.

Believe it or not, the moderate majority is beginning to get upset with our government. 70% of the nation now disagrees or is unsure of our leadership. Historically speaking, a President with less than 65% approval is considered ineffective. Mr. Bush is at 30%. Do you think the people don't see the unending corruption in the Legislature by big business and special interests? That they don't see the repeated illegal acts of the Executive and his officers, and his failure to lead the military effectively?

Re:But if ...

[MustardMan]

The really scary thing is, people act like those words from the constitution are unpatriotic. I got into a HUGE blowup a while back because I said I wished Bush would die in a plane crash. I didn't say I was going to asassinate him. I didn't even say I wished someone would asassinate him. I said I wished he would die so there might be a chance of a snowball effect that could free this country from the corruption in the government. I was BLASTED as unpatriotic, some folks going so far as saying I'd bett

Principles of freedom

[Tony]

Quite a few people believe it is our duty to support our President, even if he's a lying, cheating, murdering, egg-sucking, goose-fucking prick (and he is, too). Many even think that "freedom of speech" goes too far, and that the government should approve news stories (it seems it is these days). These same people have perverted the meaning of patriotism.

Patriotism is standing up for liberty. Patriotism is battling against tyranny, even if that tyranny is home-grown. Patriotism is putting the rights of the people before the rights of the government, and before the rights of corporations.

Re:But if ...

[Fred_A]

I don't think the USSR ever had a propaganda machine approaching the efficiencu of the US one. It's no wonder people react that way, they've been conditionned to do so since the craddle.

I mean just look at the people with flags on their houses. Try finding a single other country worldwide where people feel compelled to do something odd like that. The very concept of the US has been turned into a godlike entity. Hosting critical thoughts is akin to criticizing the prophet in an islamic country (although you won't be lapidated just yet ;) ).

What's interesting though is that elsewhere the people that are adamant when you criticise the county, party, whatever, are those that are in power. The common people will more or less maintain appearances but in private will very clearly take the propaganda for what it is. In the US, it's the common people who hold no power that seem to be the most thourougly brainwashed.

This has always struck me as being both very odd and very unique. But then since don't visit very often and see things from a distance, I might get the wrong impression.

Re:But if ...

[freedom_india]

Doing a mistake once is acceptable, but then you stupid texans voted for Bush a second time.

You americans deserve all you get as a result of electing dubya a second time.

I have neither sympathy nor concern for you guys who are stupid enough to vote for an idiot, thief, AWOL president a second time.

Re:But if ...

[timeOday]

No law supercedes the Constitution, which guarantees every citizen's right to privacy and the right to a due process warrant for search and seizure. It doesn't say "unless the President thinks it's a national security matter".

I don't think that matters anymore. The President never did offer a legal defense of his violation of the FISA act, he just said "it's something I want to do." And everybody went for it. In congress, Russ Feingold tried to get Bush censured (which is really just a gesture) and it

Re:But if ...

[physicsphairy]

Irrelevant. No law supercedes the Constitution, which guarantees every citizen's right to privacy...

Hmm...
cat constitution.txt | grep -i "privacy"

It would appear that particular aspect of the document is missing.

I think that contemporary case law has been mistaken for a constitutional protection. But that is where you and I have the same problem, namely, government entities going and hazing things up with a delusionally enlarged sense of their own power.

It's unfortunate that this notion of privacy

Re:But if ...

[Bacon Bits]

Hmm... cat constitution.txt | grep -i "privacy" It would appear that particular aspect of the document is missing.

Didn't take a college government class, eh? Just because the word ain't there don't me the law ain't real.

The US legal system is based on Rule of Law with precedence. That means previous court rulings on laws are considered the correct interpretation of laws, or, in this case, can effectively establish laws. Even constitutional ones.

From http://www.usconstitution.net/constnot.html#privac y [usconstitution.net] :

The right to privacy The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public's attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th's search and seizure limits, and the 5th's self-incrimination limit.

More:
http://www.law.cornell.edu/wex/index.php/Privacy

Re:But if ...

[Jon Luckey]

Hmm...
cat constitution.txt | grep -i "privacy"

It would appear that particular aspect of the document is missing.

Hmm...
echo cats cats cats lions tiger ocelots | grep -i "feline"

It would appear that any feline aspect of that string is missing

Re:But if ...

[Bogtha]

If the Executive *didn't* use ATNT to spy on Americans then it is not a security matter.

Not true. If they are going to use this privilege at all, then they must invoke it even in cases where the allegations aren't even remotely true. Otherwise, by invoking it only for the legitimate cases, they are leaking information about classified projects.

Think about it - if a foreign country wanted to know if the USA was working on a particular secret project, they could troll the courts with a dummy lawsui

I still don't see how state secrets applies

[Raul654]

The 1978 Foreign Intelligence Surveillance Act (which established the FISA court) clearly and explicitely says that the US Government may not do survielance of American citizens without a warrant. I do not see how the government can assert privilege over the NSA's clearly illegal actions. (Nixon tried and failed - badly)

Re:I still don't see how state secrets applies

[praksys]

Under the US constitution power is divided between three branches of government. The central issue in this case is whether the power to conduct this kind of surveillence falls within the powers reserved to the executive branch. If that is the case then it doesn't matter what laws congress has passed, or what they appear to say. The only way to take this power away from the executive would be to ammend the constitution.

Nixon did of course get smacked down for doing something that looks similar, but in that case the spying was strictly domestic. In spite of what everyone keeps saying about the current case, it is not domestic spying. One end of every communication intercepted is in another country, and the court that decided the Nixon case specifically noted that their ruling did not apply to international communications.

Re:I still don't see how state secrets applies

[Legion303]

"In spite of what everyone keeps saying about the current case, it is not domestic spying. One end of every communication intercepted is in another country"

No, that's what the administration is claiming. The truth is, no one knows for sure and the administration is doing its damndest to make sure no one will. That sure makes me feel more secure!

Re:I still don't see how state secrets applies

[gstoddart]

In spite of what everyone keeps saying about the current case, it is not domestic spying. One end of every communication intercepted is in another country, and the court that decided the Nixon case specifically noted that their ruling did not apply to international communications.

Are you sure about that? The way I read the EFF case and the and the Wired writeup [wired.com], they are under the belief that ALL communications are being re-routed to the NSA. Not simply all calls which are going international.

If they are truly getting copies of every single AT&T communications, this would most especially NOT be limited to international communications -- it would, in fact, be large-scale domestic spying with no warrants or specific targets. Merely recording everything that goes on to see if they can sift out anything useful.

That is bloody scary! And, highly illegal.

Independent examiner

[Alain Williams]

So, will the US government allow this to be examined by someone completely independent who can then vouch that the government is clean ?

The examiner would, of course, be bound to secrecy other than answering the above question.

Need to get right: 1) who chooses the examiner (we don't want a gov't stooge); 2) who drafts the wording to the question to be answered.

OK: the above is a nice idea, but it won't happen - governments don't like their workings scrutinised.

Re:Independent examiner

[fishbowl]

"So, will the US government allow this to be examined by someone completely independent who can then vouch that the government is clean ?"

Why would they? Seriously, you're talking about the US. One of the few nations in history that can call a shot that it will invade a sovreign nation and replace its government, follow through on that threat, and face absolutely no opposition, and even come out with exactly the same alliances and trade relationships as before. Certianly no domestic rebellion or resistant military.

And you think that country should, or would, subject itself to any scrutiny from someone outside its government because....?

Re:Independent examiner

[jacksonj04]

Face absolutely no opposition? What are you smoking?

Re:Independent examiner

[sachmet]

Who allied with Iraq to fight against the United States?

Words are one thing. Actions are another.

Re:

[account_deleted]

Comment removed based on user account deletion

Re:Independent examiner

[Opportunist]

Well, how about inviting an inspection team from the UN? After all, that's what's been tried on pretty much everything that stinks on this world.

legal system beond repair... Time for a reinstall!

[gnarlin]

Seriously, when the executive branch of the government can simply come swinging in and end any lawsuit they see fit without full explenation to all involved parties (including the public) sounds like what happens in banana republics. No justice for people when they can't get their few remaining rights enforced by the courts.
There is also the constant media consert in fortissimo about how the ends justify the means, i.e. chopping off liberty for the sake of temporary safety and all that jazz. Then there is the issue of seperation of Church and state is slowly but surely being erased. Unfounded wars of aggression (arguable to some extend though I guess) and last but not least, many computer programs are being Censored.

I find it easier to make a list (ala Kill Bill) no only for what needs to be done, but to check to make sure that basic rights are being violated. Lets call this list the constitution.
Here is your assignment for today kids: Go forth unto the internet and find EXTREME cases of governmental violations of each part of the constitution and the bill of rights. Extra points for snappy quotes from goverment officials and spokespeople chanting the party line!

Me thinks it time for a bloody revolution again!
(tickets sold seperately).

Re:legal system beond repair... Time for a reinsta

[mrchaotica]

"A little revolution now and then is a good thing; the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." -- Thomas Jefferson

It seems to me that the tree is looking a bit dry at the moment; perhaps we should water it now. That is why we have a 2nd Amendment, after all!

Than's for doing the work for us...

[moofdaddy]

A well regulated Militia, being necessary to the security of a free State
Uh, it's right there. being necessary to the security of a free state. The security of a free state is not only challenged from outside influences but by insider actions as well. If the framers we're only concerned with external states coming in and challenging our sovernty they would have said "being necessary to the security of a free state from foriegn nations" or something similiar. I

Re:legal system beond repair... Time for a reinsta

[Anonymous Coward]

Has everyone forgotten the events that led to April 9, 1865 in the Appomattox Court House in Appomattox County, Virginia?

Civil rebellion. Poorly-armed and -trained volunteers. Leadership that, while exemplery and genius, was against the industrial might of an entire nation. Seizing of lands, property, wealth, and persons without due process, warrants, or a fair trial. A legacy of bloodshed, hatred, contempt, mistrust, lawlessness, and general horror that lasted beyond the shooting war to become a silent spe

Time for participation

[Infonaut]

Me thinks it time for a bloody revolution again!

We have a good system. What it requires is citizen participation. Yes, corporations have money. Yes, politicians are corrupt. But in the last presidential election, only 67% [census.gov] of eligible voters (and that's the most since 1968) turned out. That 2/3 of the electorate voted in Bush despite all the evidence that had accumulated since his election in 2000.

A representative system only works if the people are engaged. The problem is, the people don't want to be

huh?

[Anonymous Coward]

As a Muslim American, I'm told that I should invite violations of my basic civil rights with the only probable cause being my skin color, ethnicity and religion because I shouldn't have anything to hide. Yet, when the corporations involved with the government and the government itself has lawsuits filed against it based on evidence beyond the realm of "probable cause," they can invoke some act they pulled out of their asses. How do I go about obtaining an act like this but only to protect my civil/constitutional rights? Does the "if you got nothing to hide..." line work with the government too or is FOX news going to spin it some other way for all of us?

FOX news doesn't have to spin it another way...

[babbling]

Does the "if you got nothing to hide..." line work with the government too or is FOX news going to spin it some other way for all of us?

Neither! It seems FOX news, along with all other major media organisations, are not going to cover this case at all. When the DOJ sued Google because "Google won't give us information about people searching for porn" that was big news. This seems like even bigger news, but strangely, it isn't in the news.

Why?

executive branch

[sentientbrendan]

I would like to see some serious punishment for some members of the administration after they leave office... People are talking about impeachment if the democrats get control of congress... but that seems like kind of a slap on the wrist, and would only effect bush himself.

It seems like more than anything else, what has characterized this administration is the desire for power. The wiretaps don't piss me off because I think they are unjust. They piss me off, because wiretaps without any kind of oversight seem likely to be used against the administrations political enemies. The administration has already openly abused its power to try to destroy its such enemies numerous times... they've been hunting down the people that leaked the warantless wiretapping stufff forever (didn't they find one guy?) and will probably try to bring some kind of trumped up charge against their obviously legitimate whistlebloying. Who is to say they weren't tapping democratic campaign headquarters in the 2004 election? I'm not sure that, with the character the administration has itself to have recently, that I can say that is beneath them.

At some point if the power of the executive branch isn't checked, the presidential office itself, could become a threat to the country. With the kind of power that the president has, how difficult would it be to just refuse to step down after your term was up? This president has shown no regard for the law, and a willingness to make up paper thin excuses for his abuse of power. Maybe Bush wouldn't, or couldn't take power like that, but if we set a precedent where we allow the president to break the law, and grab power like crazy all through his administration just like this one did, what's to stop someone more ambitious than him from going further in the future?

I'd like to see congress put some mechanisms in place for checking the execute branch. Specifically, I'd like whatever authority that the administration *imagines* gives them the power to do warantless wiretaps specifically removed. Power to spy on whomever it pleases the administration, without even having to tell anyone in the other branches about it, is clearly a threat to the checks and balance system. Maybe a constitutional amendment needs to be made laying out the powers of the executive branch more specifically, and limiting the power to spy on anyone without oversight from the judicial, and maybe the legislative branch.

Yes, but who passes these laws?

[algerath]

so far the abuse has been allowed by both other branches, in some cases abuses have been with the assistance of the other branches. Who passes laws to limit this? The people doing it.

Even if you elect people who are less abusive of the power I doubt you are going to see any elected officials vote to reduce their own power/influence.

Algerath

Already happened

[HangingChad]

Specifically, I'd like whatever authority that the administration *imagines* gives them the power to do warantless wiretaps specifically removed.

Those laws were passed in the wake of Watergate, but the White House acts like the law doesn't apply to them. So what good would it do to pass more laws the administration feels free to ignore?

I say we take some of that massive intelligence apparatus and turn it on the Federalist Society. They're a bigger threat to our country than Al-Qaida. The terrorists m

Re:A friend and I discussed this recently.

[ihatewinXP]

I dont know who said it but it has become a mantra of mine when discussing this administration and periodin our history:

"History will not be kind."

We lost the ground war in Vietnam but since they sell Coke there now I guess everything is kosher in the long run. Our policy in the middle east has brought us the first real atack on American soil since..... when? And repaid this in kind by destroying a country not responsible while giving Iran and DPRK all the time they needed to shore up their systems.

Amazing.

Re:A friend and I discussed this recently.

[Tony]

And after all this Osama is still alive.

Of course he's still alive. Can you imagine Bush doing what he does if bin Laden were captured? He'd never get away with it. The public wouldn't let him.

As long as bin Laden is free, Bush is free to rule however he wants.

Turnabout

[Odiche]

"Sir, if you have nothing to hide, then you should have no objection to a full disclosure of the documents you have created and accumulated with your wiretapping activities."

"But it is in the interest of National Security that I do not perform my legal obligations, and I do not wish to tell you"

Hypocrites - A study in government responsibility.

Fast-track it.

[genomicon]

Whatever the trial judge decides about the DOJ motion, you can bet this gets appealed all the way up the line to SCOTUS. The claim, as asserted by DOJ, would be a clear violation of the due process clause if the government could step into any case and inhibit discovery or evidence presentation. In other cases involving sensitive material, the trial judge has the opportunity to review such material before granting or denying the motion.

just face it..

[essence]

...democracy is over. All the western countries are now becoming fascist. So what ya going to do about it? Write to your senator? pffft.

I pledge the fifth...

[Opportunist]

It kinda sounds like the NSA equivalent, at least.

Ok, let's ponder. So it would endanger "national security" if they told that they used ATNT to spy on their own citizens. Now, those citizens are, at least if I got the system in the US right, the ones that elect the ones in power. They are the "nation". So it would endanger their security if they knew whether they've been spied on.

Ignorance is strength... where've I heard that before...

This country will be driven to the ground

[thealsir]

in the guise of "national security."

how times have changed

[sl4shd0rk]

Seems to me that something like this subject should have senators and congressmen pounding on podiums with veins sticking out of their foreheads denouncing those involved and making a lot of stink to oust the bastards... or maybe that was just a reality tv show I saw once.

Re:how times have changed

[Tony]

. . . or maybe that was just a reality tv show I saw once.

Yeah, it was a reality TV show. They called it, "Watergate." And it was nowhere *near* this bad.

Rarely used?

[olddotter]

I wish it were true, but I don't think the term "rarely used" applies to the states secrets privilege any more. Unfortunately it is used far too often, and even used when there is no state secret but the need to cover some body's hind quarters.

Perhaps it should be called the CYA privilege.

Bullshit, how is does this even make sense?

[TheNoxx]

Correct me if I'm wrong, but the lawsuit is not over any government records, but those of civilians. The only aspect of this case that could be considered "national security" is the fact that the NSA and possibly other government organizations got the records from AT&T... Isn't there some statute or code that mandates relevancy? Or maybe, common sense? If they use this "privilege" in this case, couldn't they use it in any case concerning anything with the federal government?

put PGP everywhere

[Anonymous Coward]

It's about time to put an user-transparent version of GPG (or symmetric encryption) in about every open source project, which uses communication or stores something. I'm already wondering, why it's not included in Thunderbird by default (I know, the provided GPG plugin is one of the best available for mail systems see http://enigmail.mozdev.org/ [mozdev.org] ).

Good programs would be:

- encrypted storage for torrent files (F*** off RIAA)
- Generate and upload GPG key when you install Thunderbird by default
- Encryption for VoIP (yeah, Skype has it and it pisses of the feds)
        http://www.schneier.com/blog/archives/2006/04/voip _encryption.html [schneier.com]
        or zfone http://www.philzimmermann.com/EN/zfone/index.html [philzimmermann.com]
- GPG encryption in HTTP traffic (no more snooping on forms)
- ...

Sounds like they're not denying it -- why??

[Anonymous Coward]

So, either they don't have such a monitoring program, but they want the terrorists to think they do, and it would compromise state secrets to reveal the fact it does not really exist, OR ...

It's exactly what people are suggesting it is, and the government is going to cover its ass with a big "state secret" stamp?

What is this? The frickin USSR?

Here's a clue: if the system had been set up via legislation, so that there was debate about its merits and it had some kind of legal legitimacy, it wouldn't be a big deal to keep the details of its implementation secret. But secretly set up something that sure sounds as if it must be violating well-established law, and of course people are going to be pissed off and demand answers to questions. They are asking now for answers and justification that should have been provided before the thing was deployed.

At least the Great Firewall of China is openly admitted to exist, and everybody already knows the government there is authoritarian. Does a Great Firewall of the USA exist? The world may never know. But if its existence and justification is not properly explained to its own people it will say much more about the current US regime than the answers to the legal questions in this case ever would.

In what kind of bizarro democracy would the government truly be better off not explaining itself? Shouldn't they dispell people's concerns about these rumors?

Just in from the AP

[codepunk]

The FBI secretly sought information last year on 3,501 U.S. citizens and legal residents from their banks and credit card, telephone and Internet companies without a court's approval, the Justice Department said Friday.

And how many of these 3,501 where arrested as a terrorist? I suspect none or very , very few so how many of these where violated?

Re:Just in from the AP

[Fear the Clam]

It doesn't matter if it was 1 or 0. The fact is, an illegal operation was performed and it's time to reboot.

Oh, God. I'm a geek.

Re:Just in from the AP

[PPGMD]

It could also be that those 3,501 did business with or donated money to an organization that is a front for a terror group. Bin Laden and his associates did well to learn from the Irish Terrorists, using the same structure to get money. But now it's different since western countries are now cooperating to take these front groups down, and stop the flow of money.

If any of the 3,501 that were linked committed a terror act, and weren't investigated, heads would roll, just like after 9/11. This isn't about sk

so what now

[tehwebguy]

what happens now, does it just go away? has this been getting news coverage or anything? i don't watch tv so i don't even know.

Re:But we don't have anything to hide....

[babbling]

No, no! The INNOCENT have nothing to hide. The government does.

Damn it, You just bummed me out

[algerath]

I was ready to jump in here with something insightful about democracy and voting. I then realized that we would have to convince a majority of the population to stop voting based on religion and look at issues. I don't know if that is possible anymore. Don't believe me, go hang out at a Wal-Mart for a while. Look in the parking lot at how many cars have Bush stickers and Jesus fish on them. Look at how many elected officials are pushing ID as science.

SHIT there isn't jack shit we can do about it.

Thanks

Re:The only thing putting national security at ris

[Rosco P. Coltrane]

Sources please?

Re:The only thing putting national security at ris

[mrchaotica]

Even if that is gross hyperbole, the AC still has a point -- if our government hadn't screwing around with them for the past 20-odd years, they wouldn't have attacked us in the first place. Bush's policy of retaliation just pisses them off even more, and makes things worse.

Re:The only thing putting national security at ris

[Lokni]

Ok, so lets not think about the previous 30 years, lets look at the last 3 years. Lets focus on Iraq. Iraqis now have less access to electricity, clean water, and natural gas. The price of gasoline there is more than what we pay here before taxes. Whole cities have been destroyed. Over 100,000 people have died. Do you really believe they were all terrorists? Prior to the United States invading, they had electricity 24 hours a day in most cities, running water,and gas pipelines for providing gas fo

Re:The only thing putting national security at ris

[Anonymous Coward]

Rep. Waxman issued a Flash Report examining data released by the State Department and National Counterterrorism Center that shows that the number of reported global terrorism incidents has increased exponentially in the three years since the United States invaded Iraq--an increase of over 5,000% in the number of terrorist attacks and over 2,000% in the number of deaths in three years.
report [house.gov][pdf]

Re:The only thing putting national security at ris

[jcnnghm]

You forgot "outside of the United States". Wasn't the whole idea to get terrorism out of this country.

Re:The only thing putting national security at ris

[Lokni]

Wow, if you really believe that they are only spying on 'foreign nationals,' you are a sucker.

Re:state secret clause

[Aim Here]

Erm, the allegations are based a story that entered the public domain in an NYT story in December 2005 which alleged that President Bush signed a secret order shortly after September 11th 2001 to conduct warrantless wiretaps of US citizens. This is backed up by the testimony of one Mark Klein, an AT&T tech who was approached by the NSA in 2002 to do some of the work. Clinton had absolutely nothing to do with the current allegations of illegal domestic spying. This is GWB's crime all the way.

Now I wouldn't call you a liar if you said that Clinton had perhaps done something similar sometime, but the reason people didn't complain about Clinton doing this is because there was, and AFAIK still is, no real evidence that he did so, and there was certainly no major news outlet or civil rights group making any allegations of domestic wiretapping when he was in power. If you remember, the US media jumped all over Clinton for all sorts of personal scandals when he was in power (Whitewater, Lewinsky, etc); if there wasn't an outcry over Clinton, it's because there wasn't an allegation to cry about.

Why should people complain about things that they've probably not heard of, and for which there appears to be no evidence?

Re:state secret clause

[Danathar]

Hey...I never said is'nt wrong. I just read posts that sound like "hey...look! Gee Gawd! Only GW would ever do something like that!"

Like "executive priv" has never been used before.

Personally, I'm jaded. I've voted both democratic and republican. Both parties get into the white house defend the same policies (basically) when it comes to executive power.

When the next democratic president gets into office you can be SURE that if any precedant has been set by GW, the new president will defend those new rights

Secrets

[Tony]

. . .what "secrets" does the State actually have...

If I told you, they wouldn't be secrets, now, would they?