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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."
that this action by the fed pretty much confirms the EFF's claims here.
The Bush administration? Keeping secrets? Say it ain't so, Joe!
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.
"In our defense, your Honor, we did it in secret so as not to get caught."
"Case dismissed!"
SCO employee? Check out the bounty
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.
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)
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
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.
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).
A bad analogy is like a leaky screwdriver.
No, no! The INNOCENT have nothing to hide. The government does.
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?
SHIT there isn't jack shit we can do about it.
Thanks for f'ing up my day
Algerath
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.
"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.
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
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.
...democracy is over. All the western countries are now becoming fascist. So what ya going to do about it? Write to your senator? pffft.
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...
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
in the guise of "national security."
Do not downmod posts "overrated" simply because you disagree with them.
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.
Think Deeply.
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[pdf]
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?
Ex nihilo nihil fit.
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/ ).
p _encryption.html ...
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/voi
or zfone http://www.philzimmermann.com/EN/zfone/index.html
- GPG encryption in HTTP traffic (no more snooping on forms)
-
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 specter to this very day.
These things happened because men thought "we have the Second Amendment, we can protect ourselves from the Federal government". And those men all died in vain. Despite the insipid reasonings that led to that particular revolt and civil war, the very real facts stand that a large body of dedicated individuals attempted to simply remove themselves from the union and it ended very badly. An outright attempt to overthrow and usurp the government would likely be met with even greater violence and tyranny.
Men are fools to believe a piece of paper can service their needs. In the end humanity answers to only one law: might makes right. It is something humankind has still not clued into, and this silly Second Amendment and Constitution worshipping is a symptom of it. It's a symbolism of men and women who continually live with just-world bias in their hearts. There is no such thing as a just world.
The Federal Republic concept was tried and it failed on that cold April morning of 1865. The Federal government is simply a facade for the tyranny of the powerful, the wealthy, the strong, the cruel, the wicked, and the insane. Religions, businesses, and political parties exist to misdirect the common fool from these truths. The only self-evident truth is that man is either master or slave.
Welcome to the result of millions of years of inborn, violent, heirarchical instincts.
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?
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?
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?
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?
Got Code?
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 might be able to do some damage to an airport or chemical plant, but the neo-cons are undermining our freedom, our government and the very foundation of this nation.
It's time for those in law enforcement, the military and the Justice Department to start remembering that they took an oath to protect and preserve the Constitution, not the Republican party. The people threatening a building can't undermine the Constitution, it takes Dick Cheney to do that. They don't seem very worried about this fall, perhaps they feel they have the elections rigged well enough they can't lose.
And after all these bozos are in jail I say we take a paddy wagon down K Street and round up every one of those sonsabitches.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
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 , 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.
Bogtha Bogtha Bogtha
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.
It's official. Most of you are morons.
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.
Microsoft is to software what Budweiser is to beer.
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.
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.
Microsoft is to software what Budweiser is to beer.
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.
Bogtha Bogtha Bogtha
The "rarely used" state secrets privilege may indeed have been rarely used once, but since Bush's actions started to become unpopular it's sure been in the news a lot. I can't think of a case involving the NSA lately that DIDN'T invoke the privilege.
Have you ever wondered How to Take Over
>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
> THERE IS NO EVIDENCE
President Bush says he signed the order.
> THERE IS NO EVIDENCE
Could you try using boldface? Somehow the all-caps hasn't been enough to convince me.
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
Be better in bed. Wikiafterdark!
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.
LedgerSMB: Open source Accounting/ERP
And I thought I might have the best username-related gag for this one...
Freedom: "I won't!"