"DoD Releases Records of Illegal Surveillance"

William Fisher has an important post up at Truthout. Apparently, the Department of Defense has a difficult time sticking to the law when it comes to surveillance of the American people. Once upon a time, this would have been a scandal for days and weeks across the pages of U.S. newspapers and network news broadcasts. Today, it's left to intrepid journalists, like Fisher, and brave human rights and civil liberties watchdogs, like Electronic Frontier Foundation.

From Fisher's story, DoD Releases Records of Illegal Surveillance:

Defense Department agencies improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, an Air Force briefing improperly included intelligence on an antiwar group called Alaskans for Peace and Justice, and Army Signals Intelligence in Louisiana unlawfully intercepted civilian cell phone conversations.

These are among the disclosures made this week in the release of more than 800 heavily-redacted pages of intelligence oversight reports, detailing activities that the Defense Department's (DoD) Inspector General has "reason to believe are unlawful."

The reports are the latest in an ongoing document release by more than a half-dozen intelligence agencies in response to a Freedom of Information Act (FOIA) lawsuit filed by the Electronic Frontier Foundation (EFF).

The reports, submitted to the Intelligence Oversight Board (IOB) by the Inspectors General of the various Department of Defense components, cover the period from 2001 through 2008. The IOB's role within the Executive Office of the President is to ensure that each component of the intelligence community works within the Constitution and all applicable laws....

This new release comes from various DoD components, including the Army and the Joint Chiefs of Staff. Much of the improper activity consisted of intelligence gathering on so-called "US Persons," including citizens, permanent residents and US-based organizations.

See the article for all the eye-opening details.

New "State Secrets" Policy? More Lipstick on the National Security Pig

The New York Times reports:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

But the Obama administration believes it's enough now that any claim of "state secrets" privilege by the executive branch be reviewed now by the Attorney General. The ACLU notes with some derision that "on paper" there is some purported progress, while Marcy Wheeler at FDL reports that Center for Constitutional Rights is calling the proposed policy "smoke and mirrors." Ben Wizner at the ACLU had more to say (emphasis added):

In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities 'state secrets,' and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of 'national security.

Writing also at FDL, bmaz sees the timing of the "new" policy as related to government attempts to bury the evidence of government misdeeds in the wiretapping al-Haramain case:

The al-Haramain case is a perfect storm of problems for the government, there is warrantless wiretapping, the surveillance invaded an attorney-client relationship, there is known proof in the form of the sealed surveillance log under the protective custody of the court, and at least some of the surveillance is known to have occurred during the period after the infamous "John Ashcroft hospital scene"....

Tack in the distinct possibility that the government made material misrepresentations about their data mining and warrantless surveillance to the FISA Court and that illegally information thusly obtained inappropriately made its way into the affidavit for the search warrant executed on the al-Haramain Foundation in Oregon, and you see the veritable cornucopia of problems the government could be so determined to stop inquiry into in the al-Haramain litigation before Judge Walker....

There is a lot the government has to hide in al-Haramain, and they are desperate to do just that. It would be a perfect time to whip out a ruse in the form of a "new state secrets policy". Even if there is nothing at all new about it.

The spanking new proposed policy only raised spitting disgust from civil liberties legal blogger Glenn Greenwald:

...the so-called "new state secrets policy" which the Obama DOJ is set to unveil is such a self-evident farce -- such an obvious replica of all the abuses that characterized the Bush/Cheney use of that privilege which Obama himself has spent the last eight months embracing -- that I couldn't even bring myself to write about it. It would not have altered a single one of the controversial uses and is a complete non-sequitur to the objections raised to its abuses (including, once upon a time, by Obama himself).

For those who haven't gotten the picture yet, let me draw it as simply as possible: when it come to defending U.S. military and national security interests, there's not a cent's worth of difference between the Bush/Cheney and Obama/Biden administrations. Those waiting for the confirmation of Dawn Johnson to change things might as well be waiting for the Second Coming (or the Messiah, if you're Jewish).

And as an aside -- and switching topic somewhat -- those waiting for the Congressional bill to slap down Acorn as somehow being used in some sort of progressive jujitsu to bring down the entire military-industrial complex (see the Greenwald link above), let's not waste our time with such utopian fantasies. Some poor naive activists might believe it, and only demoralization results from pursuing such pipe dreams. The MIC will not be brought down by a trick.

Meanwhile, for readers pursuing other items of interest, this appears promising:

In an interview with former CIA officer Phillip Giraldi, FBI translator turned whistleblower Sibel Edmonds named Douglas Feith, Paul Wolfowitz, and Richard Perle as having been wiretapped and recorded discussing plans with the Turkish ambassador in the Summer of 2001 to invade Iraq and occupy the Kurdish region bordering Turkey.

An EFF Appeal to "Fight Back Against Wiretapping Cover-up"

I received this fund-raising appeal from Electronic Frontier Foundation, and thought it worthy of greater coverage.

In a stunning reversal, the Obama Administration has decided to continue the cover-up of the Bush Administration's warrantless wiretapping program. EFF has been fighting to hold the government and telcos accountable for this illegal surveillance since 2005. Now, the Obama Administration is asking a court to throw out our latest lawsuit challenging the NSA's dragnet spying, this one against the government directly. This attempt to shield the surveillance program from court scrutiny is a stark reminder that eternal vigilance is the price of liberty, no matter who is sitting in the Oval Office.

Please help EFF in the ongoing fight for accountability:
http://secure.eff.org/wiretapping

The Obama Administration is arguing that the wiretapping program is a "state secret" and that the courts are barred from ever judging its legality. Even worse, they're arguing that under the PATRIOT Act, the United States government possesses complete "sovereign immunity" against lawsuits for spying that violates federal privacy laws. It's a shocking argument that even the Bush Administration never made.
EFF cannot fight this alone. Over 70% of EFF's funding comes from individuals like you. Please lend your support to our ongoing efforts to secure accountability from the government, end the warrantless surveillance, and deliver justice to the countless ordinary Americans caught in the NSA's surveillance net!

Help support this worthy effort!

Blood Pacts Are Seldom Broken

While the ACLU, CCR, EFF and other civil liberties groups are fighting valiantly to protect Americans against governmental eavesdropping, the fight may be losing for technological-political reasons, and not simply legally.

The vast web that is electronic snooping is world-wide and includes reciprocal agreements between countries to share information. The actual wiretappers, in many instances, are "private" companies contracted out by the NSA or other governmental agencies. In both such cases, Fourth Amendment protections are ineffective, and FISA courts inapplicable.

Take the 2006 agreement the U.S. government made with Mexico to build a huge telecom/Internet eavesdropping center. They don’t need to concentrate solely on communications originating or terminating in the United States… they are contracting it out!

What follows is from the State Department document used to procure vendors for the project with AFI (Mexico’s version of the NSA) noted above (.doc link and Google cache link):

This procurement action is undertaken to establish a lawful interception solution that will provide the Government of Mexico, Procuraduria General de la Republica de Mexico (PGR), Agencia Federal de Investigaciones (AFI) with the capability to intercept, analyze, and use intercepted information from all types of communications systems operating in Mexico…. Equipment supplied must be manufactured in the United States….

The proposed system must comply with the following AFI stated requirements for interception of target calls and sessions from (1) TELMEX PSTN network, through analog lines, (2) TELCEL TDMA and GSM network, (3) NEXTEL iDEIM/GSM network, (4) TELEFONICA network, (5) UNEFON network, (6) IUSACELL CDMA network and TDMA network, (7) Existing CISCO VoIP network at customer’s premises, (8) packet data from the Mexico PRODIGY ISP network. Additionally the client desires the establishment of a central monitoring center with the capabilities of (1) real-time and off-line playback, (2) fax decoding, (3) packet data decoding, (4) storage of all calls for at least 25,000 hours, (5) storage of all session related information, (6) 30 monitoring stations and 30 printers, (7) cellular location and tracking. Capabilities must include TDMA, GSM, CDMA, iDEN, AMPS, PCS, landline, FAX, Email, chat, internet, SMS and VoIP….

1. The successful solution will fulfill the following:

a. Help deter, prevent, and mitigate acts of major federal crimes in Mexico that include narcotics trafficking and terrorism.
b. Strengthen the USG’s and Mexico’s protective posture to disseminate timely and accurate, actionable information to each country’s respective federal, state, local, private, and international partners.

As James Bamford noted in this book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America, p. 228:

Since the U.S. certainly qualifies as an “international partner,” it means Mexico is obligated to disseminate its data to a U.S. agency. But what is perhaps even more troublesome is the requirement to share its data with “private” partners — in other words private surveillance companies within the U.S.

This type of arrangement with Mexico and other countries may in fact be among the most secret parts of the Bush administration’s entire warrantless eavesdropping program. That is because it completely bypasses the requirement for probable cause that one of the parties is connected to al-Qaeda. The intercepted data is gathered by Mexicans in Mexico… and passed in bulk to the U.S., possibly to the NSA or FBI or Drug Enforcement Administration.

Astute commenter, William Ockham, pointed out the following at an interesting post at Emptywheel/FDL yesterday:

... if you read (between the lines of) the documents filed in the Nacchio case, you can see that the NSA was paying the telcos to tap into all the fiber optic cable laid overseas so that the NSA could pull all that traffic into the Narus systems any time they wanted.

As a famous quote from an Oliver Stone movie says, “We are through the looking glass here, people.”

U.S. democracy is proving to be a giant failure, and in its place we are seeing the worst sort of nightmare any dystopian author could imagine.

Echelon II

Bamford calls the system of setting up taps on all fiber-optics cables, in conjunction with the use of private companies like Verint or Narus or NICE Systems, Echelon II. (For more introduction to Project Echelon, a massive signals intelligence global interception and relay system run by the U.S. and its closest allies, see this article.)

Bush attorney Stephen Bradley testified before the House Judiciary Committee (Subcommittee on Crime, Terrorism, and Homeland Security), during hearings to discuss updating FISA (9/6/06), as reported at In These Times:

As a Justice Department attorney [Bradbury] told the House Judiciary Committee after the wiretapping program was revealed, “I think the president has made it clear that there is no other program that involves domestic electronic surveillance of domestic communications,” leaving open the possibility that foreign electronic surveillance of both foreign and domestic communications is still ongoing.

The NSA and other government agencies are throwing smoke and mirrors, and the ACLU and other groups are already lagging behind events. The government has been routing its eavesdropping work around U.S. prying eyes for some time. Bush’s real crime, from the standpoint of the spooks and FBI types is that he pushed hard to do in the U.S. what the government has promoted in dictatorships and authoritarian countries for some time, including reciprocal agreements, secret backdoors, etc. to such up the info. By pushing hard in the U.S., he was bound to stir up a hornets nest of civil libertarians, etc., or whistleblowers like Mark Klein, a San Francisco AT&T tech who demonstrated how the government was sucking all U.S. Internet traffic into servers at Room 641A at AT&T's Folsom Street building.

It’s not that Comey or the FBI were upset about all the wiretapping when they went to Ashcroft's hospital bed to get him to reject Bush/Gonzales's surveillance request. These cops got their dream come true when CALEA passed in 1994. They’ve spent much the subsequent years finding ways to expand access to the Internet, and one way they did that to get close to Verint, the private company that secretly taps most U.S. communications.

They just don’t want to get caught. If I’ve learned anything from my anti-torture work, it’s that these governmental crimes are concerned with cover-up from day one. If you think about it, it’s built into the covert mind-set and SOP. In fact, it’s one way to identify what is a covert op, i.e., there’s misdirection and cover-up from the very beginning.

We cannot be protected by FISA anymore. Nothing can protect us. That’s the shocking truth.

Orwellian Pessimism vs. Social Struggle

As if the reader cannot tell... I am very pessimistic these days. The release of the ICRC report on the CIA barely stirred a ripple, unless you frequent certain websites (as we do), but in Congress and the press as a whole, it’s business as usual, diverted by the circus that is the financial cataclysm. The latter itself is essentially a threatened strike by big finance capital to bring down the entire world financial system if it is not compensated for its amazing losses, once their attempt to totally game the system fell apart, mainly because they believed their own propaganda about the market.

The political parties are morally and practically dead. What they do doesn’t matter anymore. This is the legacy of lawless war, torture, and out-of-control spying. Hundreds of thousands, if not millions of Americans now staff this military-spy-surveillance world, both private and government, and they have a vested interest in its preservation. Moreover, the boards of the private companies move seamlessly in and out of the corporate world, including its financial, major energy and industrial sectors.

One asks, "Who’s in charge?" Is it really Dick Cheney from a safe house in Arlington? A very good question.

Do not look for a single individual. The rule is out there for anyone to see. It’s not a dictatorship of a single person. It’s rule by committees, and these committees are "democratically" open to anyone who has the money or has risen as a dedicated and talented servant of the system. It's rule by a class.

We’re about to have verified (oh, sometime this year, I believe), that the U.S. did conduct drug and behavioral experiments upon prisoners, and most likely Jose Padilla among them. (See also Padilla's attorneys' Motion to Dismiss for Outrageous Government Conduct.) Will anything happen as a result? Will we even see post-Church Committee laws passed to protect us? No. The demand for consensus was drawn in the sand on 9/11 (or rather in subsequent months and years), and sealed with the deaths of 100,000s of Iraqis and an unknown number of victims who suffered death by torture (likely in the hundreds, at least).

Blood pacts are seldom broken. If you didn’t speak out before, it’s very hard to do so now.

As a result, we will have both social decay, and more tumult and oppression. This is because while the populace is passive, it is disgruntled, and the oligarchy will want to snuff out any sparks of resistance or effective opposition. Obama may be humane - god, I hope so - but he totally accepts the need for the oligarchy to rule.

I’m not sure what should be done at this point. Without some kind of social struggle, the last bastions of liberty, which were set aside by having an independent judiciary, will succumb, and there will be nothing left to protect us.

From DoJ to CIA: Wiretapping, Torture, Stonewalling & Obstruction of Justice

Two stories from today's news highlight the hubris of the U.S. executive branch as regards its assumed right to conduct unrestrained surveillance of its citizens, and engage in torture in violation of all laws.

Both Emptywheel at Firedoglake and Glenn Greenwald at Salon.com have done a stellar job tracking the Cheneyesque descent (H/T EW) of the Obama Justice Department when it comes to the question of executive privilege over classified material, especially when it comes to the courts. We already have witnessed the spectacle of the U.S. pressuring a British court on the suppression of documents in the Binyam Mohamed case.

As the Guardian reports it, "UK officials provided the CIA with information used in Mohamed's interrogation in Morocco, where he says he was tortured." For all the frenzied attempt to hide secrets, demands for an investigation grow in Britain.

Ministers yesterday came under increased pressure to set up an independent inquiry into the role of British security and intelligence agents in the US practice of rendering terror suspects to foreign prisons to be secretly and inhumanely interrogated.

Back in the U.S., it's a similar story. In the al-Haramain case, now in the Ninth Circuit Court of Appeals in San Francisco under Judge Vaughn Walker, an Islamic charity was targeted as "terrorist" and subjected to warrantless wiretapping... or was it that it was caught up in a data-mining sweep under illegal mass surveillance and a "terrorist" case built out of whole cloth? We can't be sure, and partly because the government won't release its documents, and al-Haramain's suit cannot go forward. It's even stranger when the primary document, a log of calls, was initially and mistakenly released to the plaintiffs, who returned it, and now can't get it back in order to pursue their case.

The Quest for Unlimited Executive Power Under Two Administrations

The position taken by the Department of Justice in the latest filing in the case is Bush/Cheney/Ashcroft-Gonzalez-kind outrageous, making preposterous assertions about executive power. Greenwald caught the situation perfectly:

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding....

... after a few symbolic (and potentially important) decrees in the first week, which I praised at the time -- the Obama administration's approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal. None of this has anything to do with complaints that he hasn't yet done enough. It's the opposite: these are all affirmative, even extraordinary, actions undertaken by the Obama DOJ not merely to copy, but in the Al-Haramain case, virtually to surpass, the worst aspects of the Bush/Cheney/Addington use of extreme secrecy and assertions of unlimited executive power.

The twistings and turnings of the al-Haramain case are being reported and dissected in excruciatingly minute but important detail by Emptywheel and her cohort of experts over at FDL, and the reader is kindly directed there to hear the latest news, e.g., "On Friday, Obama's DOJ submitted four new declarations--presumably to correct the 'inaccurate' information provided in May 2006." What might that "inaccurate" information be? Head on over to EW at FDL and see what the cognoscenti think.

Did I say "Two"? I Meant "Ninety-Two".

In the other big news of the day, the ACLU revealed that the CIA now admits that it destroyed not two, as previously revealed, but 92 interrogation videotapes of "high-profile" prisoners in their custody. The revelation came as part of the ongoing Freedom of Information Act lawsuit by the ACLU to obtain documents from the CIA. The case is in the U.S. District Court in the Southern District of New York.

The admission of greater destruction of evidence came in a letter today from the U.S. attorneys to Judge Alvin Hellerstein. Noting that John Durham's criminal investigation into "the destruction of certain videotaped interrogations of detainees by the Central Intelligence Agency" is essentially over, and that the court will likely order an identifying list of destroyed records, with "summaries, transcripts, or memoranda" regarding these records "and any reconstruction of the records' contents," the government, agreeing to gather the appropriate materials, made the following comment:

In the meantime, the CIA can now identify the number of videotapes that were destroyed.... Ninety-two videotapes were destroyed. This information is included in the CIA Office of Inspector General's Special Review Report, a redacted version of which was previously produced to the Plaintiffs. The CIA will unredact this information from the report and produce it to the Plaintiffs.

Finally, we note that certain of the information ... may be classified or statutorily protected from disclosure, such as the names of CIA employees who have reviewed the tapes.

The government also promised to identify and witnesses who have seen the tapes or had custody of them prior to their destruction.

One wonders why it took that long to make the admission, and we can suppose that Durham already knew something of the amount of destroyed material, as part of his investigation, and that the CIA is doing its best to organize a limited hangout of some sort. I note what the government notes, i.e., that "certain of the information ... may be classified or statutorily protected from disclosure." It remains to be seen how far they will go in hiding more of their crimes.

The Crime of Destruction of Evidence in its Historical Context

I think there are two places in which we have the CIA on record, in-house, so to speak, re taping coercive interrogations (torture). In the KUBARK manual, audio taping of interrogations is recommended, as helping with planning and ongoing interrogations. They had lots of uses for such recordings, as this snippet from KUBARK (CIA counterintellgence interrogation manual, 1961) indicates:

A session with the witness may be recorded. If the witness denounces the interrogatee there is no problem. If he does not, the interrogator makes an effort to draw him out about a hostile agent recently convicted in court or otherwise known to the witness. During the next interrogation session with the source, a part of the taped denunciation can be played back to him if necessary.

Much more recently, in the minutes to the 10/02/02 "counter-resistance strategy" meeting with LTC Beaver, other DoD personnel, and Dave Becker of DIA and CIA general counsel John Fredman, we get the following exchange:

Becker: Videotapes are subject to too much scrutiny in court. We don't want the LEA people in aggressive sessions anyway. [By "LEA," they mean "law enforcement agency", and most particularly, the FBI. - Valtin]

LTC Beaver: LEA choice not to participate in these types of interrogations is more ethical and moral as opposed to legal.

Fredman: The videotaping of even totally legal techniques will look "ugly".

Becker: (Agreed)

As many have noted, there are thousands of hours of videotape, and not only of CIA torture. There were likely lots of tapes made at Guantanamo, too (and many likely also destroyed).

The destruction of interrogation evidence was a primary consideration of these criminals from very early on, as evidenced by this story, now little remembered from last June:

The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.

The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.

Put this all together with the supposed "disarray" of Guantanamo files, and we have a massive cover-up of crimes of a magnitude we have yet to fathom. One thing is for sure, the amount of destroyed tapes and material is far more than even this limited hangout will attest.

The destruction of evidence -- in this case amounting to obstruction of justice -- is nothing new for the CIA. In the early 1970s, the Director of Central Intelligence, William Colby, along with the head of the CIA's Office Technical Services destroyed most of the agency's MKULTRA files, as then-CIA chief Admiral Stanfield Turner admitted to a Senate panel in 1977. MKULTRA was a massive mind control, "behavioral modification" program. It ran, officially, from 1953-1964, and included even "terminal" experiments with the use of drugs on unwitting subjects. The results of its various studies were incorporated into the CIA model of coercive interrogation, codified in its KUBARK counter-intelligence interrogation manual in the early 1960s. This manual was only declassified in the 1990s. The National Security Archive describes some of the relevant sections in that manual. Warning: those who read this may suffer vertiginous deja vu, thinking of various headlines and exposes in the past seven years:

Under the subheading, "Threats and Fears," the CIA authors note that "the threat of coercion usually weakens or destroys resistance more effectively than coercion itself. The threat to inflict pain, for example, can trigger fears more damaging than the immediate sensation of pain." Under the subheading "Pain," the guidelines discuss the theories behind various thresholds of pain, and recommend that a subject's "resistance is likelier to be sapped by pain which he seems to inflict upon himself" such rather than by direct torture. The report suggests forcing the detainee to stand at attention for long periods of time. A section on sensory deprivations suggests imprisoning detainees in rooms without sensory stimuli of any kind, "in a cell which has no light," for example. "An environment still more subject to control, such as water-tank or iron lung, is even more effective," the KUBARK manual concludes.

Government Secrecy and the Struggle for a Free Society

Secrecy is almost always used to protect crimes from the public. It is shameful that an administration that prides itself on transparency -- indeed, Attorney General Holder released today the text of the missing Office of Legal Counsel memos from the post-9/11 era -- has, when it comes to torture and wiretapping, committed itself to such an abysmal recrudescence of Bush-era claims of executive supremacy.

It is not enough to ban waterboarding, as the government has now announced, when abusive techniques of interrogation, including sensory deprivation, isolation, sleep deprivation and manipulation of phobic fears is still part of the U.S. arsenal of interrogation techniques, as in the current Army Field Manual.

The CIA is almost an entirely different story. As a rogue element in government, recipient of untold billions of dollars and influence in far-reaching parts of government and society as a whole, it is ceased being, if it ever was, an agent of the democracy it claims to serve, and is instead one of the most dangerous, out-of-control elements inside government. One can only hope that the Durham investigation comes to the necessary conclusions, and that criminal prosecutions begin the restoration of law and order throughout the government.

What seems likely, though, is that the entrenched powers will fight a tooth-and-nail struggle against any restriction upon their freedom of action. Only a period of social struggle, such as occurred in the 1960s and 1970s, will provide the sufficient societal impetus and defense to fight back against these anti-democratic interests and the law-breakers that enable them. One way to begin this fight would be by supporting the call for prosecutions initiated by the National Lawyers Guild and a number of other prominent individuals and groups. If one cannot bring themselves to support that, then one must at a support the call for investigations coming from the Congressional offices of Sen. Patrick Leahy and Rep. John Conyers.

Wiretapping, Torture, Stonewalling by government, and Obstruction of Justice by the agencies and players involved -- Watergate was not easy, and this will not be so either. But I feel the tide turning, and we must complete what the Vietnam and Watergate eras failed to achieve: a social revolution in how power is conducted in this country, and an end to militarism and imperialist foreign policy as the raison d'etre for U.S. power.

Obama's DoJ: A Pattern of Obstruction in Torture, Wiretapping Cases

Obama's Department of Justice, seeking once again to invoke national security secrets as a means to throw out a lawsuit claiming damages, met opposition today in the person of Chief U.S. District Judge Judge Vaughn Walker.

The case is al Haramain Islamic Foundation et al. v. Bush et al. Per Electronic Frontier Foundation:

This case alleges targeting of the leaders of an Islamic charity and their lawyers by the admitted, targeted warrantless wiretapping by the NSA. It is based on a document that was accidentally disclosed to the plaintiffs by the government that the plaintiffs allege demonstrates that they were subjected to warrantless wiretapping (the exact facts are held under tight seal).

SF Gate picks up the story, describing a combative group of government attorneys warning Judge Walker that they would take their appeal to federal appeals court if he didn't order a stay in his January 5 order allowing the wiretapped plaintiffs to "to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit."

Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which filed the suit, said, "They have drawn a line in the sand between the executive and the judiciary, saying, 'You do not control these documents, we do'"....

Numerous groups brought similar cases after Bush acknowledged that he had ordered the National Security Agency in late 2001 to intercept phone calls and e-mails between U.S. citizens and suspected foreign terrorists without congressional or court approval. But only Al-Haramain's case survives.

Obama attacked the surveillance program as a presidential candidate, promising "no more illegal wiretapping of American citizens" in an August 2007 speech.

To the government's likely chagrin, Judge Walker denied the government request for a stay, and even seemed to get a little testy with the government in his denial order (emphasis added):

First, the January 5 order is not a “final decision” and, therefore, not appealable pursuant to 28 USC § 1291. Second, the court is fully aware of its obligations with regard to classified information. The court’s January 5 order stated that it would prioritize two interests: “protecting classified evidence from disclosure and enabling plaintiffs to prosecute their action"....

The court seeks from the government implementation of the steps necessary to afford that “both parties have access to the material upon which the court makes a decision.” That is the procedure the January 5 order seeks to put in place. That order is, therefore, entirely interlocutory and an “immediate appeal will not materially advance ultimate termination of the litigation.” An appeal under 28 USC § 1292(b) and stay are not appropriate and are, therefore, DENIED.

Obama's promises are proving as empty, especially when it comes to exposing or prosecuting national security crimes. DoJ's actions in the al Haramain case must be seen in the context of the intervention by Secretary of State Hillary Clinton's State Department warnings to the British government not to reveal in court information on torture in the Binyam Mohamed case, nor from the decision to invoke "state secrets privilege" last Tuesday on the Jeppesen CIA rendition lawsuit.

[Note: Thanks to commenter not a cent for pointing out that the State Department warnings were pre-Obama. However, the UK judges in the Binyam Mohamed case stated that their decision to withhold secret documents was because "they had 'been informed by counsel for the Foreign Secretary that the position had not changed' with the inauguration of Barack Obama." Furthermore, the judges, outraged by the intervention, mentioned it eight times in their ruling. Foreign Minister Milibrand confirmed the British were following the U.S. lead, though some suspect they were also glad to keep secret British collaboration in the torture. See Andy Worthington's full article.]

Who cannot see a pattern here? ACLU Blog of Rights is reporting more obstruction by the Justice Department, this time in the FOIA lawsuit to get access to Bush's Office of Legal Counsel memos on "harsh interrogation methods":

On Wednesday, the Justice Department requested a 90-day stay so it could have more time to review three torture memos that we’ve specifically re-requested for release through our five-year-old Freedom of Information Act request. These three memos, written by then-head of the department’s Office of Legal Counsel (OLC), contain authorizations to subject detainees in CIA custody to harsh interrogation methods that amount to torture, and the legal opinions that justify them.

We sent the judge on the case a letter asking him to deny the request for a 90-day stay. We’ll be back before the judge on February 18 arguing against the stay.

This kind of behavior by the Obama administration beyond unacceptable. Obama and his Justice Department are using Bush's old play card, and his promises about "change" and "hope" are revealed as false. How quickly the national security establishment puts their stamp upon the new president!

This isn't naivete anymore, and the claptrap from Obama supporters that Obama is only playing for time, waiting for the right moment to spring his brand new "open" policy, has nothing but the hubris of Marc Ambinder to recommend it.

And what kind of national security secrets -- secrets the Justice Department alleges could cause "grave harm" to this country -- is the administration seeking to protect? Could it be anything like this new revelation coming from the pages of the Australian paper, The Age?

THREE human rights groups have obtained documents that confirm US Department of Defence involvement in the CIA's "ghost" detention program, and the existence of secret prisons at Bagram air base in Afghanistan and in Iraq.

The groups said these documents confirm the existence of secret prisons at Bagram and in Iraq; affirm the Defence Department's co-operation with the CIA's "ghost" detention program....

The groups said the documents also revealed that Defence had a policy not to register prisoners with the Red Cross for 14 days and sometimes for 30 days in the interests of collecting intelligence and that this policy was known to the Joint Chiefs of Staff.

"These newly released documents confirm our suspicion that the tentacles of the CIA's abusive program reached across agency lines," said Margaret Satterthwaite, director of New York University's International Human Rights Clinic. "In fact, it is increasingly obvious that Defence officials engaged in legal gymnastics to find ways to co-operate with the CIA's activities."

It is evident that the U.S. will do whatever it can to protect its own terror apparatus, one which kidnaps people without cause or legal right from foreign countries, or even from U.S. airports, and sends them to be tortured in CIA or foreign prisons, that bullies other countries, that falsifies or "cooks" intelligence information to justify "shock and awe" bombings and the invasion and occupation of other countries (Iraq, Afghanistan), etc.

Obama has shown by his actions thus far that he intends to be the commander-in-chief in ways that would seem familiar to the former denizens of 1600 Pennsylvania Boulevard. Congress, meanwhile, has shown a shadow of a backbone, threatening to pass legislation to make it harder to invoke state secrets, and making noises about a "Truth and Reconciliation" commission to investigate the former administration's crimes. But Beltway opinion is hardening around opposition to widespread calls for prosecutions for former Bush Administration officials.

But "Truth and Reconciliation" commissions are no substitute for justice. As William Fisher reports in an article earlier today:

Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”

A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”

In the end, President Obama may not be able but to play out his role to the end: commander-in-chief of a corrupted military and CIA, bound to defend them, because he cannot trust in the people he said he would lead, and is beholden to those who he feels hold all the power around him. But he is wrong. Paraphrasing a slogan from forty years ago: the People are the Power. We the People.

H/T Patriot Daily News Daily, whose Overnight News Digest is a Daily Kos treasure

CIA Wiretapping, FISA, & an Obama Presidency

With the genuflection of the Democratic-led Congress to the Bush Administration for near-unlimited warrantless wiretapping privileges, I thought I would add some historical perspective to the ongoing analysis of this debacle. The fight against executive branch tyranny goes back a long time. The "flip" by Democratic presumptive nominee Barack Obama that led him to vote for the new FISA bill was not an electoral nod to a conservative electorate, but a necessary ticket to be rendered for entrance to the top spot at the apex of the national security state.

The amazing folks over at National Security Archive, who have posted the entire "family jewels" -- documents of CIA misdeeds in the 1950s-1970s -- and much, much more on the operations of the military and intelligence agencies, posted the link to the following documents. It discusses themes and facts highly relevant to the current debate on FISA, and is partially transcribed here as a public service and contribution to political discourse. The full document can be found here.

The January 26, 1973 Memo

This memo is from Lawrence Houston, then General Counsel of the CIA, to the Acting Chief, Division D. The subject? "Intercept of Communications in the U.S." Remember: this was written before the original FISA law was implemented later in the 1970s. According to a Wikipedia entry, "Division D was the joint CIA-NSA collection effort, where CIA would use clandestine operations personnel to emplace NSA SIGINT sensors." Earlier revelations of Division D activity has been covered by Wired Magazine. The New York Times also has published on CIA wiretapping of reporters, including a discussion of the activity as approved by the Kennedy administration (a fact inconvenient to those who hold up the Democrats as saviors from the GOP, which certainly isn't the case when it comes to National Security issues).

In the transcribed memo below (which is partial, please see here for full text), note the "exceptions" on prohibitions to wiretapping mentioned by Mr. Houston. Do they sound eerily familiar?

1. In referent you request our views as to the legal aspects of a radio telephone intercept activity carried on at our communications site [two or three words redacted]

2. The basic law is contained in section 605 of the Communications Act of 1934, 47 U.S. C. 605, which prohibits interception of any radio communication without the authorization of the sender and also prohibits divulging the substance thereof to any person. Chapter 119 of Title 18, U.S.C., makes the interception of any wire or oral communication a crime punishable by $10,000 or five years' imprisonment, or both. There are two exceptions to these prohibitions:

a. The first provides for application through the Department of Justice to a Federal court for a court order authoizing such interception for specific purposes in connection with law-enforcement duties. Since this Agency is prohibited by statue from any police or law-enforcement activities, obviously we cannot operate under this exception.

b. The other exception is contained in section 2511 of Title 18, U.S.C., at subsection (3). This provides that the prohibition cited above on interception shall not limit the constitutional power of the President to take such measures as he deems necessary to protect against attack, to obtain foreign intelligence information deemed essential to the security of the United States or to protects such information, and to protect the United States against overthrow by force or other unlawful means or against any other clear and present danger to the structure or existence of the Government.

3. The type of information you describe in your memorandum does not appear to fall within any of these categories and since its ultimate destination is BNDD [Bureau of Narcotics and Dangerous Drugs], it appears to be collection for law-enforcement purposes, which as noted above is barred to this Agency by statute....

The May 7, 1973 Memo

A memorandum from the Chief of CIA Division D to the Deputy Director of Operations on May 7, 1973 was written to discuss "Potentially Embarrassing Activities Conducted by Division D."

There is one instance of an activity by Division D, with which you are already familiar, which the Agency General Counsel has ruled to be barred to this Agency by statue: the collection [approx. four words redacted] of international commercial radio telephone conversations between several Latin American cities and New York, aimed at the interception of drug-related communications. The background on this is briefly as follows: [about five or six lines excised]. Therefore on 29 September 1972 NSA asked if Division D would take over the coverage, and on 12 October 1972 we agreed to do so. On 14 October 1972 a team of interceopt operators from the [about seven or eight words redacted] began the coverage experimentally. On [unclear date] January 1973, NSA wrote to say that the test results were good, and that it was hoped this coverage could continue.

Because a question had arisen within Division D as to the legality of this activity, a query was addressed to the General Counsel on this score... With the receipt of his reply... the intercept activity was immediately terminated. There has been a subsequent series of exchanges between Division D and the General Counsel as to the legality of radio intercepts made outside the U.S., but with one terminal being in the U.S., and the General Counsel has ruled that such intercepts is also in violation of CIA's statutory responsibilities. [About four or five lines excised] Since the [few words redacted] link being monitored carries a large number of totally unrelated conversations, the operators do intercept other traffic, frequently involving U.S. citizens -- for example, BNDD staffers talking to their agents. I have described this situation to the General Counsel, and his informal judgment was that, as long as the primary purpose of the coverage is a foreign target, this is acceptable. He suggests, however, that it might be desirable to inform the Attorney General of the occasional incidental intercept of the conversations of U.S. citizens, and thus legalize the activity.

There's more, but I ask that you go to the NSA [National Security Archive, not National Security Agency -- there's no relation] link above to read the whole thing.

Of course, it's widely believed that the release of the CIA "family jewels" documents remained highly selective. We know, by their own testimony, that the CIA destroyed thousands of documents related to illegal activities over the years. But, as Noah Shachtman at Wired put it, documents such as those highlighted in the piece you're reading have a particular significance:

Before the release of the "family jewels," some speculated that CIA director Michael Hayden might be allowing the documents to see the light of day, to make today's operations seem meek, in comparison. But, at least in this one small area, yesterday's spooks seem a lot more scrupulous than some of today's. After all, it was Hayden himself who authorized the surveillance programs that wound up ensnaring so many American citizens in their nets.

Obama and the National Security State

Millions of people will be making a decision soon regarding a choice for President of the United States. McCain is certainly a clear choice for continuation of the dangerously insane Bush policies. Obama's vote on the FISA bill has put serious doubt into the minds of many as to whether he will be different. (He did vote for amendments to limit the Bush-supported bill and take away telecom immunity.) No one has a crystal ball, so no one really knows, and arguments can be made on both sides.

When it comes to domestic policies and competency in government, a very good argument can be made that Barack Obama is the progressive candidate (or the best we can do at this time). But when it comes to national security matters, and the massive influence of military contractors, and the pervasive influence of the Pentagon and intelligence agencies -- even their supremacy, many might argue -- Obama's vote on FISA telegraphs to those who run such agencies and associated organizations that Obama won't go too far in challenging their activities. This is chilling, as the expansion of the infrastructure of the "anti-terrorist" domestic security apparatus is moving along very rapidly.

This is the truth, circa July 2008. What might happen if Obama is elected is anyone's guess. There are many in the power structure of this country that fear that forces unleashed by the belief that a progressive president is in power will not be contained by the Democratic Party, or a Democratic President and Congress. If Obama is elected, elements within the national security and military apparatus will move quickly, in the initial months of an Obama presidency, to force Obama to commit himself to their agenda. He has shown he is willing, but then, he does not have the power yet.

I see little to believe Obama will make the necessary challenge to the national security state apparatus. In any case, he cannot do it alone. He will need the people behind him, an informed people. And in that spirit, I offer this history lesson today.

Twilight of the Bushites

Aus des Rheines Gold ist der Reif geglüht.

Watching a DVD of the New York Metropolitan Opera's version of Richard Wagner's Götterdämmerung (or Twilight of the Gods [TOG]) the other day, I was struck at how prescient the otherwise reactionary composer was in anticipating the destruction of the voracious classes. (One should not find it odd that in Wagner one finds mixed the most progressive and the most reactionary of views and trends, as in this he is the exemplar of the age, which mixes reason and progress with vile reaction, destruction, and mass murder.)

Dick Cheney, who is Alberich in my analogy with Wagner's opera, was on the stump beating war tom-toms against Iran during a 35-minute talk at the Washington Institute for Near East Policy (WINEP), which The New York Times calls "a research organization". In reality, WINEP is a well-known right-wing pro-Israel lobby. While praised by liberal dreamboat Al Gore as "Washington's most respected center for studies on the Middle East", according to Right Web:

its WINEP's Board of Advisers includes: Warren Christopher, Lawrence S. Eagleburger, Alexander Haig, Max M. Kampelman, [the late] Jeane Kirkpatrick, Samuel W. Lewis, Edward Luttwak, Michael Mandelbaum, Robert McFarlane, Martin Peretz, Richard Perle, James Roche, George P. Shultz, Paul Wolfowitz, James Woolsey, and Mortimer Zuckerman. Wolfowitz and Roche resigned from the board when they entered the Bush administration in 2001, although WINEP still proudly lists them....

in April 2004 WINEP published Policy Focus #47, The West Bank Fence: A Vital Component in Israel's Strategy of Defense, written by Maj. Gen. Doron Almog of the Israel Defense Forces.

Okay. I think you kind of get the idea. This crowd will be quite receptive to Cheney's rant, and following Bush's "World War III" warning (and Bush is Hagan, in my TOG comparison), it would have to be quite a speech. And Cheney didn't let us down.

Cheney, the War God

As reported by the NYT, Cheney is definitely threatening war:

“The Iranian regime needs to know that if it stays on its present course, the international community is prepared to impose serious consequences,” Mr. Cheney said, without specifying what those might be. “The United States joins other nations in sending a clear message: We will not allow Iran to have a nuclear weapon"....

...Mr. Cheney reserved his harshest language for Iran. Calling it “the world’s most active state sponsor of terrorism,” he said, “our country, and the entire international community, cannot stand by as a terror-supporting state fulfills its most aggressive ambitions.”

That language is not radically different from what Mr. Cheney has used in the past. But people at the conference said that, placed in the context of Mr. Bush’s remarks, it represented a significant step toward increasing pressure on Iran. The speech seemed to lay the groundwork for the threat of military action — either because the administration actually intends to use force or because it wants to use the threat of force to prod Europe into action.

The press has been awash in articles noting the build up to war with Iran. Seymour Hersh's article in The New Yorker earlier this month laid out pretty clearly what was up, with Herr Cheney firmly in charge.

This summer, the White House, pushed by the office of Vice-President Dick Cheney, requested that the Joint Chiefs of Staff redraw long-standing plans for a possible attack on Iran, according to former officials and government consultants. The focus of the plans had been a broad bombing attack, with targets including Iran’s known and suspected nuclear facilities and other military and infrastructure sites. Now the emphasis is on “surgical” strikes on Revolutionary Guard Corps facilities in Tehran and elsewhere, which, the Administration claims, have been the source of attacks on Americans in Iraq. What had been presented primarily as a counter-proliferation mission has been reconceived as counterterrorism.

Meanwhile, in the hall of the Gibichungs -- I mean, Congress -- Democratic Congressional leaders Nancy Pelosi and Harry Reid are doing... what? Pelosi supposedly told Arianna Huffington that she wouldn't let a funding bill on the Iraq War come to a vote unless it carried a timeline for the withdrawal of U.S. troops. Never mind that she has promised that before. Who believes her now, except kiss-up bloggers and media hounds?

And Harry Reid! According to Congressional Quarterly (via a story at TPM Muckraker), he's plotting to spike the hold Sen. Chris Dodd put on the shameful FISA wiretapping bill/capitulation, which will allow retroactive immunity to telecommunications companies for all its breaches of customer privacy in the years since 9/11 (if not before). Is this how a party leader is supposed to act, knifing one of his own in the back, and furthering the Bush totalitarian agenda?

Democratic supporters seem to be suspended between shocked awe and craven paralysis. Then there are those who are circling the wagons around idiot electoralism, placing all hope that the Ring of Power will be placed into the hand of their standard bearer in 2008.

The Sun Never Sets on Bushland

As Wagner understood, the Ring is cursed, and the power it brings is only destructive. In Götterdämmerung, his last installment of his monumental opera, The Ring of the Niebelung, Wagner portrayed a world where the quest for ultimate power had perverted all relationships, negated all contracts, and turned beauty and truth itself into a distorted mirror of its opposite. And so it is now, with the founding ideals of America -- life, liberty and the pursuit of happiness -- mutated into death, indefinite detention, and the pursuit of barbarism. Bush and Cheney's dark torture prisons extend like a sinister web even unto the farthest regions of the planet, as the recent stories about Diego Garcia reveal.

From satellite pictures, Diego Garcia looks like paradise.

The small, secluded atoll in the Indian Ocean, with its coral beaches, turquoise waters and vast lagoon in the centre, is 1,600 kilometres from land in any direction....

The little-known British possession, leased to the United States in 1970, was a major military staging post in the invasions of Afghanistan and Iraq. It continues to be, in effect, a floating aircraft carrier, housing 1,700 personnel who call it Camp Justice.

But intelligence analysts say Diego Garcia's geographic isolation is now being exploited for other, darker purposes.

They claim it is one in a network of secret detention centres being operated by the Central Intelligence Agency to interrogate high-value terrorist suspects beyond the reach of American or international law.

These prisoners are known as "ghost detainees" or the "new disappeared," and they're being subjected to treatment that makes the abuses at the military-run Abu Ghraib prison near Baghdad and Guantanamo Bay camp in Cuba look small-time, say intelligence analysts.

Tropical hideaways turned into torture chambers. "Research organizations" become centers of war propaganda. Opposition politicians acting like agents of the party in power. "Democracy" transmuted from ideal into bombing runs on innocent populations.

The Limits of Metaphor, and the Need for Societal Resurrection

As a petit-bourgeois artist of the 19th century, Wagner could see no way out for humanity, unless it consume itself in its inner contradictions, in a fiery twilight of the gods that brings down all civilization with its doomed quest for power, only to (perhaps) rise again and begin the whole process over again, endlessly through time.

Wagner, following some of the Eastern philosophies of his time, may yet prove right. But, the people in his music dramas, the Gibichungs of TOG, were passive bystanders, helpless except to view in horror the destruction that rained upon them. We do not have to be the same. But it will mean a quantum leap in consciousness, especially for the American people, who are tied to the myth of the progressivism of the Democratic Party, like flies to a rotting corpse.

In any healthy party, the clamoring to remove Pelosi and Reid would be deafening by now. But when one of the disgruntled few dared to speak the truth the other day, as Congressman Pete Stark did, the Democrats rushed to denounce him, the better to keep their oath of blood-brotherhood with the Bushites.

Stark told the GOP that Bush was vetoing a $35 billion dollar bill to fund children's health care because he needed the cash "to blow up innocent people if we can get enough kids to grow old enough for you to send to Iraq to get their heads blown off for the president's amusement".

For, in my analogy with Wagner's opera, Stark plays the strange role of the Rhinemaidens, who, confronting the hero with a final chance to return the Ring to its primeval owners and destroy once and for all its curse, with all the dangerous questing after power it entails, are met with stony rejection and ridicule... just as Pelosi denounced Stark.

At the end of Götterdämmerung, it is Brunnhilde who renounces the ring out of love, and returns the cursed gold to the forces of nature, from whence it came. I'm afraid there is no redemption via love for our society. And Hillary Clinton is no Brunnhilde (she, like Pelosi, is a Gutrune figure).

But for love and not from fear change may yet come. If we truly love our children, if we truly love this planet and all life upon it, then we must come to terms with our own fears, and take dedicated action to remove those who would promote American imperium from power. And this is not only America's problem, because in each country the people must take the same stand. Or we face the tragic fate of Siegfried in Wagner's opera, destroyed by those we believe we serve, stabbed in the back because we thought we could live for love, for good times, in peace and happiness, while in fact all around us swirled dark clouds of hate and dreams of vengeful conquest.

Has Everyone Drunk the Kool-Aid? New AG Nominee Is Right-Wing Nut

So Federal Judge Michael B. Mukasey said he was against torture in his confirmation hearing, and the liberals are ready to fall all over him. His confirmation as Bush's new attorney general is presumably a given. Never mind that he refused to comment on the secret 2005 Bush Administration memorandums authorizing harsh, "enhanced" interrogation techniques by the CIA. Listen to Mukasey get all huffy at his nomination hearing today:

When Senator Charles E. Schumer, a New York Democrat, suggested in his questioning that the 2005 opinions might authorize torture, Mr. Mukasey stopped him. “You characterize it as torture,” he said. “I do not know of such a policy and I hope not to find them.”

Nor would he comment in detail on the legality of the so-called warrantless wiretap program that was authorized by President Bush shortly after the terror attacks of Sept. 11, 2001, and has been harshly criticized by civil liberties groups and lawmakers from both parties as possibly unconstitutional.

“I am not familiar with that program,” said Mr. Mukasey, who knew enough about the program to refer to it as the Terrorist Surveillance Program, the name preferred by the White House.

Why, even Glenn Greenwald has nice things to say about this best-of-a-bad-bunch rightwinger, because Mukasey bucked the Administration by allowing accused "dirty bomb" plotter and U.S. torture victim, Jose Padilla, the right to talk with his attorneys, or to challenge the evidence against him. Never mind that Mukasey upheld the indefinite detention of "enemy combatants" like Padilla. Never mind that Mukasey wants to initiate an entire new "national security court" for Bush's "war on terror", explaining that "conventional legal rules" are not "adapted to deal with a terrorist threat". Of course, Greenwald allows, "Judge Mukasey's respect for the Constitution and the rule of law should not be overstated."

Now that's an understatement.

Mukasey is an adviser (along with his white-collar criminal defense attorney son) to arch-militarist and scary GOP presidential candidate Rudy Guiliani. He wrote a paean to the Patriot Act in the Wall Street Journal, where he red-baited the American Library Association, and then threw out this sinister challenge to the primacy of the Bill of Rights:

A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.

So, as the historian Walter Berns has argued, the built-in message--the hidden message in the structure of the Constitution--is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt.

So, conventional opinion says Mukasey is a good guy, better than Gonzales, someone who will not politicize the Justice Department, is against torture, and also independent from the Bush circle -- hell, even Chuck Schumer likes the guy (he even suggested Mukasey to Bush as a possible Supreme Court nominee a while back). But if there ever was a poster boy for the degradation of political discourse and sensibility, and the failure of two-party politics in the age of American adventurism and imperial hubris abroad, it's Michael B. Mukasey.

A little dose of cynicism might cure an overdose of the Kool-Aid, which has the media snoring, and even leftie liberals prattling over business-as-usual in this dangerously oblivious land.

Justice Douglas' Condemnation of Government Surveillance

The Sixth Circuit Court of Appeals decision yesterday to dismiss a lawsuit over warrantless wiretapping stirred up a feeling of deja vu in this old sixties/seventies activist. There was already a case that poured over technicalities such as the Sixth Circuit invoked in the ACLU case against NSA wiretapping.

The case was Laird v. Tatum, 408 U.S. 1 (1972). Just as in the recent ruling, the then Burger Supreme Court ruled, in a case involving Army Intelligence surveillance of domestic political activities, on procedural grounds. In the current case, Sixth Circuit Judge Julia Smith Gibbons maintained "the plaintiffs have failed to provide evidence that they are personally subject to the TSP [Terrorist Surveillance Program]. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory...."

This was the Burger court's decision in Laird v. Tatum as well. Join me in exploring the powerful denunciation of this judicial "logic" by the great Supreme Court jurist William O. Douglas.

Per Wikipedia:

Laird v. Tatum, 408 U.S. 1 (1972) was a case in which the United States Supreme Court dismissed for lack of ripeness a claim in which the plaintiff accused the U.S. Army of alleged unlawful "surveillance of lawful citizen political activity." The Court determined that the plaintiff's claim was based on the fear that sometime in the future the Army might cause harm with information retrieved during their surveillance, but that there was no present threat. Therefore, the claim was too "speculative"....

The dismissal was made possible by the timely nomination by Nixon of Assistant Attorney General William Rehnquist to the Supreme Court. Rehnquist had previously testified to Senator Sam Ervin's committee that there were no "serious constitutional problems with respect to collecting data or keeping under surveillance persons who are merely exercising their right of a peaceful assembly or petition to redress a grievance." He further stated that he felt that Laird v. Tatum should be dismissed on the procedural ground that the plaintiffs lacked standing to sue.

The Army Intelligence Scandal

Along with many other scandals of that era, the revelation that military intelligence agents had infiltrated much of the protest movement and civil liberties organizations of that time caused a big ruckus. As even a military intelligence officer involved in these activities recalled some years later, in an article by Ralph Stein at Pace Law School in 1973:

Laird v. Tatum, a class action challenge to military surveillance of civilian politics, demonstrates with frightening precision the degree to which the force of protection can and has imperiled the instrument of freedom....

Stein explains how another military intelligence officer (who was also a lawyer), Christopher Pyle, blew the whistle in a Washington Monthly article in 1970, "CONUS Intelligence: The Army Watches Civilian Politics". Pyle had written that

"[the U.S. Army has been closely watching civilian political activity within the United States. Nearly 1,000 plainclothes investigators . . . keep track of political protests of all kinds-from Klan rallies in North Carolina to antiwar speeches at Harvard."

Stein added more revelations from his an amici curiae filing by twenty-nine former Military Intelligence officers:

The amici, twenty-nine former MI officers and enlisted personnel, urged the Court to allow the plaintiffs an opportunity to present witnesses and evidence in the trial court. They informed the Court that far from limiting its activities to clipping newspapers, MI, among other things, infiltrated agents into Resurrection City, had agents pose as newsmen with bogus identification cards to obtain information from unsuspecting civilians during protests had infiltrated the headquarters of the National Mobilization Committee to End the War in Vietnam, had penetrated the Colorado Springs Young Adults Project and had assigned agents to stake-out Martin Luther King's grave to determine who came to the graveside.

Douglas' Dissent

Justice William O. Douglas, one of the greatest of our Supreme Court judges, and a powerful proponent of individual liberties, wrote a strong dissent to the Burger court's majority opinion in Laird. He was joined by Justice Brennan.

It is worth following Douglas's reasoning here. The ACLU and other interested parties, including educated and interested readers here, should pay heed to Douglas's argument.

Douglas wrote (emphases in bold added):

The claim that respondents have no standing to challenge the Army's surveillance of them and the other members of the class they seek to represent is too transparent for serious argument. The surveillance of the Army over the civilian sector - a part of society hitherto immune from its control - is a serious charge....

One need not wait to sue until he loses his job or until his reputation is defamed. To withhold standing to sue until that time arrives would in practical effect immunize from judicial scrutiny all surveillance activities, regardless of their misuse and their deterrent effect.... as we put it in Baker v. Carr, 369 U.S. 186, 204, the gist of the standing issue is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."

The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army's surveillance. First, the surveillance was not casual but massive and comprehensive. Second, the intelligence reports were regularly and widely circulated and were exchanged with reports of the FBI, state and municipal police departments, and the CIA. Third, the Army's surveillance was not collecting material in public records but staking out teams of agents, infiltrating undercover agents, creating command posts inside meetings, posing as press photographers and newsmen, posing as TV newsmen, posing as students, and shadowing public figures.

Finally, we know from the hearings conducted by Senator Ervin that the Army has misused or abused its reporting functions....

Douglas concluded with a stern and chilling warning, one which we would do well to consider over thirty years since it was set to paper:

This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance.

I was surprised to see none of our legal eagles here at Daily Kos refer to this pivotal case in our nation's recent history, nor to Justice Douglas's ringing dissent, calling as it does for the right to live free from government surveillance, and making the case that we ALL have standing to present as potential victims of government intrusion and spying.

I hope this diary gets large circulation, and Douglas's dissent wide dispersal in the fight to overturn the Sixth Circuit's narrow and chilling decision.