Greenwald: The criminal NSA eavesdropping program

The criminal NSA eavesdropping program

By Glenn Greenwald


http://www.salon.com/news/opinion/gl...a/md_horiz.jpg Reuters and AP


Former U.S. President George W. Bush and President Barack Obama

(updated below)

While torture and aggressive war may have been the most serious crimes which the Bush administration committed, its warrantless eavesdropping on American citizens was its clearest and most undeniable lawbreaking. Federal District Judge Vaughn Walker yesterday became the third federal judge -- out of three who have considered the question -- to find that Bush's warrantless eavesdropping program was illegal (the other two are District Judge Anna Diggs Taylor and 6th Circuit Appellate Judge Ronald Gilman who, on appeal from Judge Taylor's decision, in dissent reached the merits of that question [unlike the two judges in the majority who reversed the decision on technical "standing" grounds] and adopted Taylor's conclusion that the NSA program was illegal).

• Continue reading

That means that all 3 federal judges to consider the question have concluded that Bush's NSA program violated the criminal law (FISA). That law provides that anyone who violates it has committed a felony and shall be subject to 5 years in prison and a $10,000 fine for each offense. The law really does say that. Just click on that link and you'll see. It's been obvious for more than four years that Bush, Cheney, NSA Director (and former CIA Director) Michael Hayden and many other Bush officials broke the law -- committed felonies -- in spying on Americans without warrants. Yet another federal judge has now found their conduct illegal. If we were a country that actually lived under The Rule of Law, this would be a huge story, one that would produce the same consequences for the lawbreakers as a bank robbery, embezzlement or major drug dealing. But since we're not such a country, it isn't and it doesn't.


Although news reports are focusing (appropriately) on the fact that Bush's NSA program was found to be illegal, the bulk of Judge Walker's opinion was actually a scathing repudiation of the Obama DOJ. In fact, the opinion spent almost no time addressing the merits of the claim that the NSA program was legal. That's because the Obama DOJ -- exactly like the Bush DOJ in the case before Judge Taylor -- refused to offer legal justifications to the court for this eavesdropping. Instead, the Obama DOJ took the imperial and hubristic position that the court had no right whatsoever to rule on the legality of the program because (a) plaintiffs could not prove they were subjected to the secret eavesdropping (and thus lacked "standing" to sue) and (b) the NSA program was such a vital "state secret" that courts were barred from adjudicating its legality.


Those were the arguments that Judge Walker scathingly rejected. All of the court's condemnations of the DOJ's pretense to imperial power were directed at the Obama DOJ's "state secrets" argument (which is exactly the same radical and lawless version, as TPM compellingly documented, used by the Bush DOJ to such controversy). From the start, the Obama DOJ has engaged in one extraordinary maneuver after the next to shield this criminal surveillance program from judicial scrutiny. Indeed, their stonewalling at one point became so extreme that the court actually threatened the Obama DOJ with sanctions. And what TPM calls the Obama DOJ's "Bush-mimicking state secrets defense" has been used by them in one case after the next to conceal and shield from judicial review a wide range of Bush crimes -- including torture, renditions and surveillance. As the Electronic Frontiers Foundation put it: "In Warrantless Wiretapping Case, Obama DOJ's New Arguments Are Worse Than Bush's."


That's why this decision is such a stinging rebuke to the Obama administration: because it is their Bush-copying tactics, used repeatedly to cover up government crimes, which the court yesterday so emphatically rejected. And it's thus no surprise that media accounts tie the Obama administration to the cover-up of this program at least as much as the Bush administration. See, for instance: Charlie Savage and James Risen in The New York Times ("A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush"); Time ("The judge's opinion is pointed and fiercely critical of the Obama Administration's Justice Department lawyers" and "The judge claims that the Obama Administration is attempting to place itself above the law"). The 9th Circuit Court of Appeals also previously condemned the Bush/Obama "state secrets" position as abusive and lawless.


In December, 2005, The New York Times revealed that the Bush administration had been doing for years exactly that which the law unambiguously said was a felony: eavesdropping on the electronic communications of Americans (telephone calls and emails) without warrants. We knew then it was a crime. Three federal judges have now concluded that it was illegal. And yet not only do we do nothing about it, but we stand by as the Obama administration calls this criminal program a vital "state secret" and desperately tries to protect it and the lawbreakers from being subject to the rule of law. This decision may make it more difficult for the Obama administration to hide behind sweeping secrecy claims in the future, but it won't negate the fact that we have decided that our leading political officials are completely free to commit crimes while in power and to do so with total impunity.
* * * * *
One related note: back when Judge Diggs Taylor ruled that the Bush NSA program was unconstitutional and otherwise illegal, law professors Orin Kerr and Ann Althouse (the former a sometimes-Bush-apologist and the latter a constant one) viciously disparaged her and her ruling by claiming that she failed to give sufficient attention to the Government's arguments as to why the program was legal. Althouse was even allowed to launch that attack in an Op-Ed in The New York Times. But as I documented at the time, the argument made by these right-wing law professors to attack Judge Taylor was grounded in total ignorance: the reason the court there didn't pay much attention to the legal justifications for the NSA program was because the Bush DOJ -- just like the Obama DOJ here -- refused to offer any such justifications, insisting instead that the court had no right even to consider the case.


That's why I find it darkly amusing that, today, the same Orin Kerr is solemnly lecturing The New York Times that Judge Walker here did not consider the merits of the claims about the program's legality because the Obama DOJ argued instead "that Judge Walker couldn't reach the merits of the case because of the state secrets privilege." Kerr is wrong when he says that this ruling does not constitute a decision that the Bush NSA program was illegal -- it does exactly that, because the plaintiffs offered evidence and arguments to prove it was illegal and the Obama DOJ (like the Bush DOJ before it) failed to offer anything to the contrary -- but he 's right that Judge Walker did not focus on the merits of the defenses to the NSA program because the Obama DOJ (like the Bush DOJ) refused to raise any such defenses. But exactly the same thing was true for Judge Taylor when she ruled three years ago that the NSA program was illegal, which is why the right-wing attacks on her judicial abilities back then (led by Kerr and Althouse) were so frivolous and misinformed.

UPDATE: Dan Froomkin echoes, and elaborates on, several of the points here, in his Huffington Post piece entitled: "Ruling Against Bush Wiretaps Also Slaps Down Obama's Executive Overreach." He writes: "the ruling should serve as a wake-up call to those who thought that the days of executive overreach were behind us."


And Charlie Savage and Jim Risen have a new NYT article which, in the course of discussing whether the Obama DOJ will appeal this decision, examine the likely motives and goals of the Obama administration here, none of which reflect well on them at all.

Thank goodness for people like Glenn-zilla, Savage and Froomkin.

As I've noted before, Obama has taken on some of the worst programs that Bush created, and either continued or expanded upon them. It makes me sick.

Well, I'm not so sure he has expanded them, but I am besides myself wondering why the Obama DOJ keeps protecting the Bush administration, not only on these charges, but also against potentional war crime charges in International court..

Is the NSA's warrantless eavesdropping program unconstitutional? Yay or nay.

Meanwhile, the Russians (our allies) are coming into our hemisphere through Bolivia, Venezuela and Cuba. It will be very difficult to keep Venezuela from developing nuclear programs with Russia's Nuclear submarines in their bays.
But we need to just let all the countries do what ever they want. What "right" do we have to stop our enemies from building nation destroying bombs?

Invade Venezuela then.

Quote:

---

Originally Posted by spursncowboys

What "right" do we have to stop our enemies from building nation destroying bombs?

---

What right do we have? Other than might, of course.

After all, if we're talking about using nukes "responsibly", only the US has used them in war.

Quote:

---

Originally Posted by Stringer_Bell

Is the NSA's warrantless eavesdropping program unconstitutional? Yay or nay.

---

Here we go again...

No it isn't.

We have people saying the law is trump over the constitution. They are full of shit. The constitution is our highest law, and cannot be changed by law. The fourth amendment protects form UNREASONABLE searches and seizure. Law cannot control the executive branch. A warrant is not required by constitution. The constitution spells out what is required for getting a warrant. A warrant is a judicial order, not permission.

Can someone show me where the constitution says a warrant is required?

WC, I thought historically, the term "unreasonable" meant that they couldn't randomly go to your house and inspect it, correct?

However, many of the NSA wiretaps do seem like they were granted for targets that they could not provide evidence for, or chose not to. (Hence this case.) I think that would be defined under the term "unreasonable". Literally, they had no specific reason to wiretap this person.

FISA requires the warrants, and the executive branch is not above the law.

Quote:

---

Originally Posted by Winehole23

FISA requires the warrants, and the executive branch is not above the law.

---

Excuse me...

As individuals, they are not above the law. As a body following their constitutional role, the constitution is the only law for them.

If the President does it, it's not illegal?

Doesn't 25 years of executive compliance with FISA and a whole host of other laws, bespeak the opposite of what you're saying, WC?

FISA was actually created to have oversight over the eavesdropping abuses of the executive in the Nixon era.

Quote:

---

Originally Posted by LnGrrrR

What right do we have? Other than might, of course.

After all, if we're talking about using nukes "responsibly", only the US has used them in war.

---

So your foreign policy would in affect be to allow Russia to take over as much oil fields they want in the world? allow venezuela , a country who has admitted to be building arms against America, which may include Nuclear weapons?
Yes we did use the atomic bomb. Do you think the Russians, would have built up Japan after going to war with it? Or do you think it would resemble Eastern Europe where they came in killing civilians and Germans alike? I believe our use of the atomic bombs were responsible and just. However that is something different. You are saying that because we have it, we should let anyone have it?

Quote:

---

Originally Posted by spursncowboys

What "right" do we have to stop our enemies from building nation destroying bombs?

---

None whatsoever.

We might, however, have the influence to prevent it in some cases, and failing that, we can use force to degrade or set back the nuclear capability of strategic rivals.

Building nuclear military tech by enemies is unavoidable. As technology evolves and gets cheaper and more general knowledge, it's only a matter of time until it happens.
The sooner you realize that, the sooner we can move on to the next step: how do we mitigate it's use.

Quote:

---

Originally Posted by Wild Cobra

Excuse me...

As individuals, they are not above the law. As a body following their constitutional role, the constitution is the only law for them.

---

:lol

no?

Quote:

---

Originally Posted by ElNono

Building nuclear military tech by enemies is unavoidable. As technology evolves and gets cheaper and more general knowledge, it's only a matter of time until it happens.
The sooner you realize that, the sooner we can move on to the next step: how do we mitigate it's use.

---

The man wants to build the modern day Maginot line.

Quote:

---

Originally Posted by Wild Cobra

No it isn't.

---

Thanks, that's all I wanted to know.

Now I'm just confused why there's so much talk about the difference between law and the constitution. I'm just glad we can look back on this and see that you weren't against Obama on the continued use of these wiretaps, I will defend you!

Quote:

---

Originally Posted by ElNono

Building nuclear military tech by enemies is unavoidable. As technology evolves and gets cheaper and more general knowledge, it's only a matter of time until it happens.
The sooner you realize that, the sooner we can move on to the next step: how do we mitigate it's use.

---

No it is not unavoidable. Keeping dictators, enemies, allies, and terrorists from nukes should be our Number 1 Foreign policy priority! To do otherwise would create an arms race in every section of our world.

Quote:

---

Originally Posted by spursncowboys

No it is not unavoidable. Keeping dictators, enemies, allies, and terrorists from nukes should be our Number 1 Foreign policy priority! To do otherwise would create an arms race in every section of our world.

---

So we should demand that Israel give up all its nukes, right SnC?

Quote:

---

Originally Posted by spursncowboys

No it is not unavoidable. Keeping dictators, enemies, allies, and terrorists from nukes should be our Number 1 Foreign policy priority! To do otherwise would create an arms race in every section of our world.

---

We're busy in Iraq and Afghanistan brah, we can't just switch focus off of defending freedom just cuz you don't like South America. In addition, we've gotta keep tabs on our citizens to make sure they don't turn into domestic terrorists.

Maybe it's your priorities that are wrong, hmmmmmm? :king

Quote:

---

Originally Posted by spursncowboys

No it is not unavoidable. Keeping dictators, enemies, allies, and terrorists from nukes should be our Number 1 Foreign policy priority! To do otherwise would create an arms race in every section of our world.

---

Too late for that. Russia, China, India, Pakistan... all countries that have nuclear capability right now and that if they're not our enemies right now, can easily flip to the other side. This will soon be followed by other countries, like Iran... I mean, the tech is no longer unknown or prohibitive. Third world countries have had nuclear power plants for a while now, and going from there to actually enriching for military use is a short step that's getting shorter over time.

I would also add that the whole Nuclear scenario presented here is nothing short of a strawman to the OP. I mean, it would be a very valid, and I'm sure FISA wouldn't have a problem authorizing a tap in such an investigation.

What's the rate of warrant refusal in the FISA courts again? Like 2 or 3 out of 10,000 or something like that?

Quote:

---

Originally Posted by Winehole23

What's the rate of warrant refusal in the FISA courts again? Like 2 or 3 out of 10,000 or something like that?

---

Basically. Plus they can start tapping and get authorization later. Short of a sweeping and massive fishing expedition on American citizens (basically sidestepping oversight), there's no reason at all to have gone around FISA.

Quote:

---

Doesn't 25 years of executive compliance with FISA and a whole host of other laws, bespeak the opposite of what you're saying, WC?

---

WC?

If the executive branch submits to laws passed by Congress, doesn't that legitimize the laws de facto?

Quote:

---

Originally Posted by Winehole23

Doesn't 25 years of executive compliance with FISA and a whole host of other laws, bespeak the opposite of what you're saying, WC?

---

Hell No.

Congress cannot dictate a presidents actions.

We have argued this over and over and get no where.

What if congress passed a law that that allowed a 30 year old to run for president, and the president passed it. Can a 30 year old now run for president?

Quote:

---

Originally Posted by 4cc

could we go to war in iraq without declaring war?

---

1) Does the constitution cay there must be a declaration of war first?

2) The Commander in Chief was already assumed during the making of the constitution to have that right. It didn't need to be spelled out. The right for congress to declare war in one of two normal executive functions also granted to congress. Since it is not a normal function of the time, it was spelled out.

Quote:

---

Originally Posted by Wild Cobra

Hell No.

Congress cannot dictate a presidents actions.

---

Why then do presidents submit to the authority of law?

Quote:

---

Originally Posted by Wild Cobra

We have argued this over and over and get no where.

---

Where does the US Constitution say that the President is not subject to law?