Judge Orders White House To Produce Wiretap Memos

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

Comments

Accountability ?

[ChromaticDragon]

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

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

Re:Accountability ?

[CRCulver]

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

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

Re:Accountability ?

[Anonymous Coward]

No.

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

Re:Accountability ?

[Thrip]

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

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

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

Re:Accountability ?

[phorm]

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

Re:Accountability ?

[xs650]

More likely there will be a major fire in the Whitehouse records department on the 5th.

Re:Accountability ?

[MobyDisk]

No, but it means the knee-jerk reaction of "oh, things will be better under the other party" isn't going to work either. If we want real oversight, we need to get a 3rd-party involved. I bet if we had a Libertarian executive would have a whole lot of opening of government.

Re:Accountability ?

[KDR_11k]

I bet if you had a libertarian in charge he'd take money from all the same bribes and do the same things.

Re:Accountability ?

[will_die]

No, for the simple reason that President Bush keeps top Congress members appeased on what he was doing. This has come up a few times when something has hit the news and Democrat members have said they did now know of it and then the White House would release the listing of attendees and there were the Democrats.
if the Democrats were to do anything it would just lead them to having to try their own members, so it is far better for them to stay quiet and let the rumors spread that something illegal was done.

Re:Accountability ?

[mattytee]

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

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

Maybe we'll get some moderates/lefties in SCOTUS and some of the nonsense will be so declared.

Re:Accountability ?

[metlin]

Of course, but if you had a libertarian executive, we could all just move into wood shacks with our guns and forget this whole economy and globalization thing.

Re:Accountability ?

[Beardo the Bearded]

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

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

Re:Accountability ?

[AndersOSU]

It's a lot more nuanced than that.

The idea of a single chief executive is really useful when decisions have to be made fast, especially in wartime. The founding fathers thought a lot about how to properly balance government, and basically decided that congress was to be a slow and deliberate body, and the executive was to be able to make quick decisions. (it's also more nuanced than that, but I think my version is closer to the mark.)

That it worked well in 18th century diplomatic circles was a happy side effect.

"Post-Sept 11." -- say what?

[thisissilly]

I thought it was fairly well established that the Bush administration's warrantless wiretapping predates 9/11. The NSA was meeting with Qwest executives in February 2001, trying to pressure them into allowing it. They said no, other carriers buckled.

Too long

[jonaskoelker]

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

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

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

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

Re:Too long

[n3tcat]

roughly a whole term

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

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

Re:Too long

[swillden]

Also, if it becomes clear that any backlash that reduces the power of the presidency will limit *Obama's* power, there's litle incentive to avoid it.

I still don't get why this is neccessary

[txoof]

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

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

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

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

Re:I still don't get why this is neccessary

[Dr. Donuts]

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

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

Re:I still don't get why this is neccessary

[mrscorpio81]

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

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

Re:I still don't get why this is neccessary

[__aajwxe560]

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

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

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

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

Re:I still don't get why this is neccessary

[TheLink]

What you have to decide is which is more dangerous.

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

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

The fact that they didn't even bother (and only did the retroactive BS later) shows you how much contempt they have for the Law and the People of the USA.

Re:I still don't get why this is neccessary

[Dr. Donuts]

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

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

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

Re:I still don't get why this is neccessary

[Hatta]

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

This much is obvious. Look at how many Americans died because of Bin Laden's orders. Roughly 3000. How many Americans died because of Bush's orders? Over 4000 in Iraq and over 600 in Afghanistan. How many American dollars were wasted because of the 9/11 attacks? We may have lost half a trillion dollars in GDP. But the Iraq war will cost us 3 trillion or more.

So yeah, with friends like these who needs enemies? Even if you care only about American lives and American dollars, Bush has clearly done more harm to the US than Bin Laden. And so, he should be treated no kinder than Bin Laden.

Re:I still don't get why this is neccessary

[moortak]

I fully support Bush living in a cave in Pakistan.

Not exactly "accountability" or a "win"

[nathan.fulton]

The court order mandates an in camera (in chambers) review of the memos, and only those that have not been granted summary judgment. Meaning that there is still a chance that the most putrid examples of abuse of civil rights are screened out for "national security" reasons. The OUTCOME of this review will be far more interesting (and indicative of the amount of justice that will be serves) than the order for its release.

If they don't, it'll go to the Attorney General!!

[smchris]

Oh, right. Never mind.

Re:Treason?

[nuclear_zealot]

Attacking the legal government... setting off IEDs... That would make the Republicans... TERRORISTS!!!

I like how a self-professed Republican's response to (hopefully) losing a democratic election is to call it a coup and threaten setting off IEDs. I mean, that is really high-quality irony.

How did Bush put it? "If you're not with us, you're with the Ter.. err.. us."

"Won't get fooled again!"

Re:Impeachments on Nov 5th to complicate pardons..

[Bayoudegradeable]

Swearing in won't take place till early January, just ahead of the presidential inauguration on January 20. Don't expect any action on Nov 5 :)

Too many wire taps?

[PolygamousRanchKid]

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

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

Re:Too many wire taps?

[Immostlyharmless]

Which is exactly why having access to all this information makes us MORE vulnerable to another terrorist attack, not less. Look at how much information the FBI already had on the 9/11 hijackers. They *literally* had the American populace calling them on the phone and saying "I think we have some terrorists here."

They still couldn't figure it out. Somehow now with a deluge of information of the sort they now have access to, they are going to do any better? Me thinks not...

Re:Too many wire taps?

[dpilot]

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

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

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

Re:Treason?

[Anonymous Coward]

I think I speak for all ACs when I say, "Sir, you are retarded."

Re:Treason?

[KDR_11k]

Some people always believe that anything bad is the result of a conspiracy by the groups they are not part of (and which they claim have the exact opposite stance on everything)...

Re:Treason?

[Darby]

How can you call us Nazis when Bush accepted every contrary media as part of free speech, and your guys first move is to try and squelch the other side?

In the first place, "your guys" doesn't apply. There are plenty of actual arguments to be made against Obama, including his vote for the telecom immunity act which was an act of treason. Of course, your guy voted for that too, so you're stuck with silly asinine arguments since McCain and the Republican party are far far worse than the Democrats.

I'm essentially a Classical Liberal which means I believe in small government, fiscal responsibility, freedom and all of that. You know, like the constitution lays out. So while I dislike the Democrats and their excesses, looking at just the 2 major parties, absolutely objectively, the Republicans are far worse in every area. Big government? Absolutely. Republicans win this hands down. Reagan beat FDR's record for *growth* of the government and Bush recently beat Reagan's record. Fiscal irresponsibility? Republicans again. They know no restraint and spend like mad at interest on crazy pork bullshit like Moose Fucker's bridge to nowhere. Anti-Liberty? Right, death camps, universal surveillance, kicking down doors of people's homes and dragging patriotic citizens off to jail like at the Republican convention.

How do you even live with yourself, and say the lies you say?

This is completely laughable. You are so far out on the loony fascist fringe that you assume anybody with legitimate complaints about your Fuhrer must be an Obama supporter, when disgust with the Republicans is all over the political spectrum and includes everybody *except* right wing extremists. You know, like the Nazis. That's where you fall on the political spectrum and the system that you are arguing in support of.
Arguing against your disgusting position doesn't constitute communism or even anything remotely near the left. It's called sanity. That's all it takes to see you for the big government police state fascist asshat you are.

Re:Who does the judge think he is?

[jjohnson]

The Department of Justice is not the lawyer for the White House--they have White House Counsel for that, and their work is privileged. Any work produced by the DOJ on request from the White House is, by definition, not privileged. It's a request to a third party to produce a legal opinion. The memos are the equivalent of going to the EFF and asking them to produce a 'friend of the court' brief; the fact that you requested it and they didn't doesn't create the attorney-client relationship, so privilege isn't an issue.

Re:Impeachments on Nov 5th to complicate pardons..

[/dev/trash]

Congress will be lame too. Ya know. But either way, drop this impeachment shit, it ain't gonna happen. Bush is gonna retire rich and fat somewhere and there is nothing anyone can do about it.

Re:Treason?

[Falconhell]

Your irrational fear is palpable in your post, it would be amusing if it wasnt sad. Now switch off your computer and go back to watching FOX news, and let the adults talk in peace.

Yeah, sure

[Legion303]

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

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

What about preior to 9/11

[witherstaff]

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

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