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McConnell/Mukasey: Eavesdropping Outside of FISA Is 'Illegal'
The White House yesterday escalated its most brazen, Orwellian campaign of the last eight years -- shrilly accusing House Democrats of jeopardizing the nation's security by allowing the Protect America Act to expire even though it's the President and House Republicans who blocked any extensions of that law. As the Associated Press pointed out at the bottom of its story:
McConnell acknowledged last week that the White House's refusal to extend the wiretapping law was meant to pressure Congress to pass the Senate bill.
Ponder what it says about our press corps that the White House knows it can (a) block all attempts to extend the PAA and then (b) spend the next several weeks blaming Democrats for helping the Terrorists by allowing the PAA to expire. I know I've made that point before, but this one is so brazen, so transparent and audacious, that it just hasn't yet ceased to amaze.
In any event, the two honorable, apolitical, completely trustworthy Bush cabinet members -- DNI Mike McConnell and Attorney General Michael Mukasey -- yesterday released a letter (.pdf) addressed to House Intelligence Committee Chairman Silvestre Reyes which is basically a written adaptation of the scary 24 video produced this week by the House Republicans, breathlessly claiming that the nation "is now more vulnerable to terrorist attack and other foreign threats" because of the PAA's expiration.
The letter contains the now-standard fear-mongering claims that telecoms will stop cooperating (and even have stopped cooperating already) with government surveillance in the absence of the PAA (an absence caused single-handedly by the President) -- i.e., "we have lost intelligence information this past week," etc. But there was one passage in the letter which seems significant and worth highlighting.
In the letter from Chairman Reyes to which they McConnell and Mukasey are responding, Reyes pointed out that under the still-existing FISA law, the Government is free to commence surveillance without a warrant where there is no time to obtain one. In response, McConnell and Mukasey wrote:
[You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have elapsed. This assertion reflects a basic misunderstanding about FISA's emergency authorization provisions. Specifically, you assert that the National Security Agency (NSA) or Federal Bureau of Intelligence (FBI) "may begin surveillance immediately" in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest].
Wow, what a blockbuster revelation. Apparently, as it turns out, in the United States it's "illegal" for the Government to eavesdrop on Americans without first complying with the requirements of FISA. Who would have known? It's a good thing we don't have a Government that would ever do that, or a Congress that would ever tolerate such "illegal" behavior. And it's so moving to hear the Bush administration earnestly explain that they are so hamstrung by FISA's requirements that we are all deeply vulnerable to the Terrorists, but they have no choice but to comply with its burdensome provisions -- because to do otherwise would be "illegal."
According to Bush's Attorney General and DNI, then, this is what is called "illegal" behavior:
WASHINGTON, Dec. 15 -- Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.
So, you see, the Bush administration is in a really tough bind here, because they would really like to eavesdrop outside of FISA because they want to protect us all and keep us safe, but they just can't do that, because eavesdropping without complying with FISA's requirements is "illegal," and that's something they would never, ever do.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
© Salon.com
21 Comments so far
Show AllCross-posted at Salon.com:
One of a seemingly exponentially burgeoning crop of hydra heads springing from this abominable FISA/surveillance/immunity question is that it's another example of perception and discourse shifting so far towards the right/authoritarian end of the spectrum that the FISA court is now implicitly regarded as a useful bulwark to safeguard civil liberties.
That is, my impression of the FISA court is that it exists as a government-friendly fig leaf manufacturer in the first place, and performs only quasi-pro forma checks and scrutiny of government law enforcement requests to authorize clandestine surveillance and monitoring. I'm too busy writing long sentences now to Google the numbers, but I believe that FISA overwhelmingly approves warrants, etc., and has only rejected a very few applications.
But after a sustained campaign to abandon or vitiate FISA altogether, if the maladministration was somehow forced to capitulate to the status quo (it won't be), many of us would feel gratified and relieved at returning to a status quo where FISA performs its proper function.
Which leads to a tangential pessimistic hunch that even if Obama, the Lord of Change, is elected, that merely complying with existing laws in FISA-related matters will be seen as a triumphant restoration of civil liberty, justice, and the rule of law. I doubt that an Obama would "push his luck" and question whether FISA itself ought to be more transparent and rigorous in scrutinizing or checking the excesses of law enforcement agencies.
On another note, something struck me about the continuing assertions by the government charlatans and misfeasors so ably, if painfully, cited in Glenn's work that telecoms must be granted immunity and be treated with leniency in order to secure their cooperation.
Apart from the logical rebuttals to this canard, it reminds me of those ill-advised, absurd, and awkward personal situations where authorities discuss someone whose behavior is in question right in front of that person. That is, there is this dialogue between the defenders of extra-legal "law enforcement" and its critics taking place "over the heads" of the telecoms in the middle. As far as I know, there are no intrepid journalists exploring this question by tackling the telecom execs directly instead of letting matters rest with what the political weasels claim about the alleged chilling effect of enforcing the law upon them.
IMO, investigative reporters would have a juicy story by holding the telecom executives' collective cloven hooves to the fire and confronting them directly with the question of whether it is true that their corporation would resist cooperating with lawful governmental requests or directives because of fear of legal liability. If the execs openly disclaim this, it fatally undermines the maladministration's position; on the other hand, if the telecom execs confirm that yes, they would resist cooperating, I would expect any public sympathy for the telecoms would evaporate.
It just seems to me that checking with the source would be an effective way to break this rhetorical point-counterpoint mobius strip.
"this one is so brazen, so transparent and audacious, that it just hasn't yet ceased to amaze." Actually, haven't we seen this type of anti-logic, Orwellian, evolution-is-a-myth kinda stuff over and over ad nauseum. The shear idiocy is so gut-wrenching as to be akin to endless study of the everyday horror of Iraq. Sometimes we have to turn away, take a deep breath, and ponder what we did to deserve our incarceration in this loony bin? (actually, that might make things worse)
I think W has used fear tactics more than once too often. If they continue to work, he will continue to use them. But he is so dense, that when they stop working, he continues to use them anyway. He does not know what else to do and they always used to work before.
The idea of telling the truth never occurred to him, or if it did, was rejected immediately.
Mohamad Atta was a known Al Qeada operative who was given a visa to enter the USA dispite being on all the terrorist watchlists.
At the same time. the US Government knew that Al Qaeda was planning a major attack on the USA.
They had a report in front of the President called "Al Qaeda determined to attck USA"
We found out later that at the time, the President had already authorized illegal wiretapping of Americans.
Did any of this help avert 911?
Not hardly.
The only reason Bush wants "carte blanch" to evesdrop, is so they can evesdrop on DEMOCRATS.
Yes, the advantage of carte blanche is that there are no limits on how to spend it.
But FWIW, I don't think that Unitary Executives and their enablers seek unfettered authority as a means to effect specific nefarious ends. I think that obtaining maximum power and authority is a reflex action, an end in and of itself. Once obtained, the misfeasors can devise any application that suits their fancies.
And unchecked power, which politicians typically promise to control, tame, and reduce to responsible administration, has a way of whispering to its owners that it is best to leave well enough alone. Power doesn't submit meekly or gracefully to being declawed.
If there is indeed a Democratic landslide this year, it will be interesting to see if the new executive speedily and unequivocally rolls back the staggering range of executive branch abuses and naked arrogation of power, along with the tyrannical and despotic assaults on constitutional civil liberties reflected in abominations like the Patriot Act and that Homegrown Terrorism obscenity.
If the new administration merely expresses an intention to review or evaluate these malignant tumors metastasizing on the body politic, in order to adjust or correct or otherwise modify the Bush Crime Syndicate's depredations in order to improve them without necessarily throwing the Rosemary's Babys out with the fouled and reeking bathwater... remember, you heard it here first.
it's poetic justice: we who for so long have created and maintained banana republics, are getting the same at home.
You can't blame the administration for their tactics. These tactics historically have worked almost 100% of the time against a timid and frightened Democratic Party majority that acts like a 21st century edition of Neville Chamberlain. So why not try it again?
Let's look at history. Hitler took over the Ruhr valley. Nothing happened. Hitler annexed Austria. Nothing happened. Hitler invaded Czechoslovakia. Nothing happened. Guess what action Hitler took when he contemplated invading Poland? So it is with the Bush administration. They will keep on bullying, breaking the law, scaring, and taunting the Congress until the House of Representatives finds it's Churchill.
Heh, heh, those pigs in Animal Farm were sure crafty, weren't they?
I just been readin' it again, that funny book about how them pigs took over the farm and turned all the other creatures into serfs. They just kept bendin' those rules, usin' them semantic tricks, hoodwinkin' a treat and, so quick mind you, they had themselves a dictatorship!
Can you believe that the other animals were so dumb to let it happen? Would never happen in the real world, our world! We humans are way too smart!
www.dangerouscreation.com
Everyone continues to miss the point: this is all a smoke screen, meant to portray the Loonitary Decider and his anti-American cultists as "men" of "integrity" who "deeply care" about "protecting" the Constitution and are struggling with an IMPORTANT ISSUE.
The truth, as we all know, is this: they have, and will continue, to ignore every and any law ever passed. Period.
"Members of Congress must never forget, somewhere in the world, at this very moment, terrorists are planning the next attack on America."
And every American knows exactly where our Terrorist-In-Chief is planning his next attack on our constitution and our human rights.
Eavesdrop on Democrats? Why?
The same powers own both parties.
Eavesdropping is about a lot more serious threat than politicians... it is the ablility to monitor the awareness of the populace. If there is any active discussion about organizing any sort of actual resistance - they want a heads up and time to eliminate emerging leadership. Half the population is asleep in the Matrix... another third are distracted by political boxing matches... and who knows what the other fractions are up to...
The only thing in question is, how long will it take the democrats to cave in?
I put the over/under at 28 days.
Just another day in the misunderestimated life of the Chimp in Chief.
This Maladministration has simply gone to the well too may times. As they say in the south: "That dog don't hunt anymore!"
Oh, and viva Keith Olbermann on this issue! Check out his latest special comment on MSNBC.
It's not 'illegal', any more than undocumented-workers' are 'illegals'.
No such thing as 'illegal' out of D.C. -- not since 1871, anyway.
[Look it up]
"...the FISA court [is that it] exists as a government-friendly fig leaf manufacturer in the first place..."
Pretty much. They rejected a total of Five requests for secret surveilence authority out of the 20000+ the received.
The only reason that makes sense to me is that they are doing something so blatantly criminal, the Security Hawks on the FISA court would turn them down.
A few guesses as to what that would be?
Datamining and keeping tabs on all of the members of Congress and their key staff, where they have been able to find somewthing dirty on just about everyone to one degree or another. It keeps your allies in line and dissuades your enemies from forcing issues.
Keeping tabs on any and all investigators for any of the Government's law enforcement, keeping ahead of the Profiteering and Corruption probes.
Snooping Business competitors, datamining corporate data for the best insider dope.
Feel free to add more possible illegal targets.
I agree with "Little Brother", but am more pessimistic. Dems will not repeal the gross claims of power taken by W because they want those same powers when they win the office. When will our silly population understand that the Dems and Reps are not very different, and share an oligopoly of political power. They both want more and more power, and relying on the Democrats won't disappoint you because they are weak, but because they are so very much like the Republicans. Our country is lost, so you'd better get used to it.
The Bush Administration want a Law to Retro-Absolve its previous illegal wiretapping. .And to give it unrestricted spying authority for all future wiretapping.
There goes the Republic and our Civil Rights!!!!!!!!!!!!!!!
terrorism |ˈterəˌrizəm|
noun
the use of violence and intimidation in the pursuit of political aims.
Jon Stewart nailed this. The government failed to connect the dots and stop 911. So they immediately set out to create as many dots as possible.
Listening to everyone's phone calls digitally will develop millions of the wrong dots. Checking the web sites we all go to will make another incredible supply of wrong dots. As a side benefit the monitoring of purchases and porn choices will be handy to control any leader who tries to stop the military industrial complex.
The neat part is that the accusations will not have to be true, can be made through media lackeys, and will not be disproved because the proof of innocence, now required, is a state secret.
1. Scene: cold block room w/single light bulb. CIA interrogation room. An Arab being waterboarded. The agent pouring the water says, "OK, Abdul, I'm gonna ask you one more time—Who set up 9/11?". Abdul: "blubDickblubblub blubCheneyblubblub". Second agent with a clip board, to a third agent with the video camera: "Eh, that's what they all say the first few times…".
The little mouse in the corner says, "Must be a conspiracy"….
The minions torture and eavesdrop, and the results are sent up the chain of command to determine who gets pursued. If there are any criminals in this system, they might use it to find leaks and whistle-blowers and witnesses to their crimes...