Tag: warrantless wiretapping

Update: McJoan at Daily Kos and the ACLU has just issued a press release.

The Supreme Court today declined to review a case by the ACLU and other groups and individuals, including criminal defense lawyers, over Bush's warrantless NSA wiretapping. A lower court had dismissed the case holding the ACLU and other plaintiffs hadn't established they were directly affected by the wiretapping.

The high court's action means that Bush will be able to disregard whatever legislative eavesdropping restrictions Congress adopts as there will be no meaningful judicial review, the ACLU attorneys said.

The Sixth Circuit decision in ACLU v. NSA is here (pdf). Some explanatory quotes are below:

It's not often that the Rocky Mountain News editorial board takes President Bush to task.

Today it does just that, over his complaints about the House of Representatives' balking at the extension of his warrantless wiretapping program and his threat to veto any bill that does not include retroactive immunity for telecoms who cooperated with the National Security Agency.

The Rocky does not mince words:

Earlier this week, President Bush actually suggested that al-Qaida operatives are watching the calendar, poised to plot new attacks freely with Congress absent - and U.S. intelligence officials will be largely powerless to stop them.

Don't insult the American public, Mr. President. You'll still have the ability to wiretap suspected terrorists - and the warrantless surveillance powers in the bill are valid until August.

It also opines that we need the lawsuits against the telecoms to go forward so the public can see whether privacy rights were trampled. [More...]

The New York Times has some new and very disturbing revelations in the NSA warrantless wiretapping controversy. The news may explain why the telecoms are fighting so hard for retroactivity immunity in the planned FISA law revision.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

More....

Murray Waas continues to break new ground in reporting on Justice Department investigations.

Today he reports that DOJ wanted guilty pleas from two New York Times sources over the December, 2005 article disclosing the NSA warrantless wiretapping program.

The sources refused and Murray says government investigators in the case concede the evidence against them was weak. Now comes the next step: DOJ will subpoena the Times reporters to get to the sources.

Unable to obtain guilty pleas, the federal prosecutor in charge of the leak case has now informally recommended that the Justice Department move forward to compel testimony from the Times. He has argued that it will be difficult to bring criminal charges without such testimony.

As a result, one of the first major decisions likely to be made by Attorney General-designate Michael Mukasey, if confirmed by the Senate, will be whether to subpoena reporters for the Times to testify.

My bet: He'll authorize the subpoenas. That's what top cops do.

Via Marcy at Next Hurrah and ScoutPrime at First Draft:

A Vermont law firm with overseas clients, including one at Guantanamo Bay, believes the Feds are wiretapping their telephone calls. In a letter to their clients, the firm wrote:

“Although our investigation is not complete, we are quite confident that it is the United States government that has been doing the phone tapping and computer hacking,” said the letter, dated Oct. 2.

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Instapundit has a podcast up of an interview with Jack Goldsmith, formerly of the Office of Legal Counsel and one of those who balked at Dick Cheney, David Addington and Alberto Gonzales' attempt to stretch the NSA wiretapping program past what he and James Comey and others believed to be the legal limits.

It was Goldsmith who was responsible for withdrawing John Yoo's torture memo.

Goldsmith's new book discusses, among other things, what went on behind the scenes with Ashcroft, Gonzales and the NSA wiretapping program.

Book details are available here.

Perhaps predictably, but news nonetheless, the Bush Administration Friday filed its opposition to the ACLU's request that the FISA court release the rulings it issued since January, 2007 concerning Bush's warrantless NSA electronic surveillance program.

The opposition motion, filed in the secret FISA court, is available here (pdf)at the ACLU's website.

The ACLU responds to the Government's filing here.

The New York Times today reports that the Albany terror trial of Yassin M. Aref may have the best chance of challenging the NSA warrantless wiretapping program.

TalkLeft has been writing about Mr. Aref's case since its inception in 2004 (see here) and about its NSA wiretapping connection since Aref's lawyer, Terry Kindlon, filed his first challenge to the program. Aref's case was the Ashcroft-initiated prosecution of the pizza man and the Iman.

From Terry's initial motion:

"The government engaged in illegal electronic surveillance of thousands of U.S. persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a nonexistent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref," Kindlon's motion said.

The Judge denied the motion in a secret ruling. Terry then went to the Second Circuit Court of Appeals asking it to compel the District Court to direct the government to come clean about the role warrantless wiretaps played in its case. He got no relief.

The Government used the "Doogie Howser" of terrorism experts at trial and Aref and his codefendant were convicted. Even though Aref's sentencing guidelines were 30 years to life, the Judge sentenced him to 15 years. Even the Judge didn't believe Aref was motivated by a desire to help terrorists.

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Marty Lederman points out the problem with this statement of National Intelligence Director Mike McConnell to the El Paso Times:

There's a claim of reverse targeting. Now what that means is we would target somebody in a foreign country who is calling into the United States and our intent is to not go after the bad guy, but to listen to somebody in the United States. That's not legal, it's, it would be a breach of the Fourth Amendment. You can go to jail for that sort of thing. And If a foreign bad guy is calling into the United States, if there's a need to have a warrant, for the person in the United States, you just get a warrant. And so if a terrorist calls in and it's another terrorist, I think the American public would want us to do surveillance of that U.S. person in this case. So we would just get a warrant and do that. It's a manageable thing. On the U.S. persons side it's 100 or less. And then the foreign side, it's in the thousands. Now there's a sense that we're doing massive data mining. In fact, what we're doing is surgical. A telephone number is surgical. So, if you know what number, you can select it out. So that's, we've got a lot of territory to make up with people believing that we're doing things we're not doing. (my emphasis)

Marty correctly, in my view, points out: More...