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"Supreme Court Backs Big Brother Warrantless Wiretapping"
Top court rejects ACLU domestic spying lawsuit
Supreme Court decision doesn't explain reason for turning down appeal
WASHINGTON - The Supreme Court dealt a setback Tuesday to civil rights and privacy advocates who oppose the Bush administration’s warrantless wiretapping program.
The justices, without comment, turned down an appeal from the American Civil Liberties Union to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks.
The action underscored the difficulty of mounting a challenge to the eavesdropping, which remains classified and was confirmed by President Bush only after a newspaper article revealed its existence.
“It’s very disturbing that the president’s actions will go unremarked upon by the court,” said Jameel Jaffer, director of the ACLU’s national security project. “In our view, it shouldn’t be left to executive branch officials alone to determine the limits.”
The Terrorist Surveillance Program no longer exists, although the administration has maintained it was legal.
The ACLU sued on behalf of itself, other lawyers, reporters and scholars, arguing that the program was illegal and that they had been forced to alter how they communicate with foreigners who were likely to have been targets of the wiretapping.
ACLU says it's caught in 'Catch-22' situation
A federal judge in Detroit largely agreed, but the 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored and thus could not prove they had been harmed by the program.
The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.
ACLU officials described the situation as a “Catch-22” because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program.
A lawsuit filed by an Islamic charity met a similar fate. The 9th U.S. Circuit Court of Appeals last year ruled against the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation, concluding that a key piece of evidence is protected as a state secret.
In that case, the charity alleged the National Security Agency illegally listened to its calls. The charity had wanted to introduce as evidence a top-secret call log it received mistakenly from the Treasury Department.
A separate lawsuit against telecommunications companies that have cooperated with the government is pending in the San Francisco-based appeals court. A U.S. district court also is examining whether the warrantless surveillance of people in the United States violates the law that regulates the wiretapping of suspected terrorists and requires the approval of a secret court.
The administration announced in January 2007 that it would put intercepts of communications on U.S. soil under the oversight of that court, the Foreign Intelligence Surveillance Court.
The ACLU, in urging the justices to consider its case, said that because the administration voluntarily ended the warrantless wiretapping, it could easily restart it.
The administration acknowledged the existence of the program in late 2005, after the New York Times published an article about it.
The White House said the monitoring was necessary because the 1978 Foreign Intelligence Surveillance Act left dangerous gaps in the government’s eavesdropping authority.
Last August, Congress made temporary changes to FISA that made the warrantless wiretapping legal in some instances and also extended immunity from lawsuits to telecommunications companies that help with the intercepts.
Those changes expired over the weekend, amid disagreements between congressional Democrats and President Bush over the immunity issue.
Existing wiretaps can continue and any new surveillance the government wants to institute has to follow the FISA rules, which could require court warrants.
The case is ACLU v. NSA, 07-468.
URL: http://www.msnbc.msn.com/id/23235602/
House passes Dem-backed surveillance bill
President Bush vows to veto legislation should it reach his desk
WASHINGTON - The House on Friday approved a Democratic bill that would set rules for the government's eavesdropping on phone calls and e-mails inside the United States.
The bill, approved as lawmakers departed for a two-week break, faces a veto threat from President Bush. The margin of House approval was 213-197, largely along party lines.
Because of the promised veto, "this vote has no impact at all," said Republican Whip Rep. Roy Blunt of Missouri.
The president's main objection is that the bill does not protect from lawsuits the telecommunications companies that allowed the government to eavesdrop on their customers without a court's permission after the Sept. 11, 2001, terrorist attacks. White House spokesman Tony Fratto called the measure a "political ploy" designed to give Democrats cover for their failure to grant full retroactive immunity to the telecom companies.
The vote sent the bill to the Senate, which has passed its own version that includes the legal immunity for telecom companies that Bush is demanding.
Without that provision, House Republicans said, the companies won't cooperate with U.S. intelligence.
"We cannot conduct foreign surveillance without them. But if we continue to subject them to billion-dollar lawsuits, we risk losing their cooperation in the future," said Rep. Lamar Smith, R-Texas.
Post 9/11 wiretaps
The government does have the power to compel telecommunications companies to cooperate with wiretaps if it gets warrants from a secret court. The government apparently did not get such warrants before initiating the post-9/11 wiretaps, which are the basis for the lawsuits.
House Intelligence Committee Chairman Silvestre Reyes, D-Texas, said the bill is meant to fix that. It would let a judge determine whether lawsuits should be dismissed, rather than having Congress make that decision.
"I believe that the nation is deeply concerned about what has gone on for the last seven years, and I want to restore some of the trust in the intelligence community," Reyes said.
About 40 lawsuits have been filed against telecommunications companies by people and organizations alleging the companies violated wiretapping and privacy laws. The lawsuits have been combined and are pending before a single federal judge in California.
The Democrats' measure would encourage the judge to review in private the secret government documents underpinning the program to decide if the companies acted lawfully.
State secrets privilege
The administration has prevented those documents from being revealed, even to a judge, by invoking the state secrets privilege. That puts the companies in a bind because they are unable to defend themselves.
Just a fraction of Congress has been granted access to the records.
Democrats argued against quashing the lawsuits without knowing in detail why the immunity is necessary.
Rep. Jane Harman, D-Calif., said the government may have as many as five ongoing clandestine surveillance programs. "Congress is not fully informed, and it would be reckless to grant retroactive immunity without knowing the scope of programs out there," Harman said.
"All members of Congress should see those documents so they could see the breadth and scope" of the wiretapping program, said Rep. John Tierney, D-Mass.
The surveillance law is intended to help the government pursue suspected terrorists by making it easier to eavesdrop on international phone calls and e-mails between foreigners abroad and Americans in the U.S, and remove barriers to collecting purely foreign communications that pass through the United States— for instance, foreign e-mails stored on a server.
A temporary law expired Feb. 16 before Congress was able to produce a replacement bill. Bush opposed an extension of the temporary law as a means to pressure Congress into accepting the Senate version of the surveillance legislation.
Unfair punishment?
Bush and most Capitol Hill Republicans say the lawsuits are damaging national security and unfairly punish telecommunications companies for helping the government in a time of war.
"There is not one iota of evidence that the companies acted inappropriately whatsoever," said Rep. Dan Lungren, R-Calif.
Democrats say the bill protects the privacy rights of Americans by making sure the telecommunications companies — and the wiretapping program — did not violate any laws.
"We have the opportunity to serve the protection of our country ... and uphold our oath to preserve and protect the Constitution of the United States," said House Majority Leader Steny Hoyer, D-Md. "Let us take that opportunity."
The Democratic bill also would initiate a yearlong bipartisan panel modeled after the 9/11 Commission to investigate the administration's so-called warrantless wiretapping program.
Friday's vote came after House Republicans forced a rare, late-night secret session of Congress on Thursday to discuss the bill. It was the first such session of the House in a quarter century; the last one was in 1983, on U.S. support for paramilitary operations in Nicaragua. Only five closed sessions have occurred in the House since 1825.
Democratic Rep. Sheila Jackson-Lee of Texas said she didn't believe any minds were changed on the bill.
"We couldn't have gone more of an extra mile to make sure we're doing the best for national security," she said.
URL: http://www.msnbc.msn.com/id/23634920/
Bush: Congress putting U.S. in danger
President says terror attack more likely without expanded surveillance law
WASHINGTON - President Bush said Friday that "our country is in more danger of an attack" because of Congress' failure to extend a law that makes it easier for the government to spy on foreign phone calls and e-mails that pass through the United States.
Bush and Vice President Dick Cheney met with Republican congressional leaders in the Oval Office to discuss the impasse with the Democratic-led House. Lawmakers left Thursday for a 12-day recess without acting on the law, which expires at midnight Saturday. The president said Congress should act quickly on the measure as soon as lawmakers return.
Bush argues that without the extension, the intelligence community will not have the tools they need to protect the nation from terrorism. Democrats, equally adamant, accuse the president of fear-mongering and say he has the authority he needs to intercept terrorist communications, even if the law expires.
No time to waste
"American citizens must understand, clearly understand that there's still a threat on the homeland. There's still an enemy which would like to do us harm," Bush said. "We've got to give our professionals the tools they need, to be able to figure out what the enemy is up to so we can stop it."
"By blocking this piece of legislation, our country is more in danger of an attack," he said.
House Speaker Nancy Pelosi maintains the congressional majority is simply trying to balance concerns about civil liberties against the government's spy powers, and needs time to do it.
Republicans insist there's no time to waste. "The Democratic leaders ought to be held accountable for their inaction," House Republican leader John Boehner told reporters after the White House meeting.
Behind both sides' rhetoric, the issue of what the government can and can't do is complicated by a quirk in the temporary eavesdropping law adopted by Congress last August. It allows the government to initiate wiretaps for up to one year against a wide range of targets. It also explicitly compels telecommunications companies to comply with the orders, and protects them from civil lawsuits that may be filed against them for doing so.
Expiration date Saturday
But while the wiretap orders can go on for a year from the time they started, the compliance orders and the liability protections go away when the law expires Saturday night, says Director of National Intelligence Mike McConnell.
"There is no longer a way to compel the private sector to help us," he said Thursday in an Associated Press interview.
Even if the law expires, the government can get an order from the secret Foreign Intelligence Surveillance Court to compel their cooperation. That court was created 30 years ago for just such a purpose. But McConnell rejects that option. He says the process of getting a court order ties intelligence agents up in red tape.
The 1978 Foreign Intelligence Surveillance Act requires court permission to tap wires inside the United States. Changes in technology since then mean much of the world's computer and phone traffic passes through the United States, much of it on fiber-optic cable. Successive court cases say court orders are needed to listen in on any of them, McConnell said.
To get a court order, intelligence agents have to prove they have "probable cause" to believe a target is foreign agent or terrorist before being allowed to tap a line inside the United States, even if the communication originates and ends in a foreign country.
Extend current law?
It is difficult for intelligence agents piecing together shreds of information to get enough to merit probable cause, he said. By the time they can amass enough information to do that, the phone number they wanted to track might already be obsolete, McConnell said.
"More than likely we would miss the very information we need to prevent some horrendous act from taking place in the United States," he said.
The FISA law does make provisions for fleeting targets when there is not time to fill out the paperwork. Within a few days, though, the paperwork must be completed and probable cause proved to get an order approved.
The easy solution, say Democratic congressional leaders, is to extend the current law long enough to allow the House and Senate to work out the differences in their respective surveillance bills. The House finished its version in October, but the Senate did not finish until this week, pushing Congress hard up against the deadline.
The law had been set to expire on Feb. 1. The White House reluctantly agreed to a 15-day extension but refuses to approve any more, and has appealed to House leaders to simply approve the version approved by the Senate, which includes the legal immunity for telecom companies the president wants.
The immunity provision protects phone companies that helped the government in its warrantless wiretapping program conducted outside the authority of the FISA court, a feature the House intentionally left out.
Unable to muster the votes to extend the current law, House leaders say they'd rather let it lapse and operate under the old FISA rules than be pressured by the White House into accepting the Senate bill. House Republicans protested with a walkout Thursday.
URL: http://www.msnbc.msn.com/id/23184150/