The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Retroactive immunity for telecom companies who engaged in illegal spying at the behest of the NSA is at the heart of a bill currently being considered by the Senate Judiciary Committee. The bill, even before having been officially introduced, is being hotly debated by bloggers, electronic privacy groups, and civil libertarians, as well as presidential contenders (CT Senator Chris Dodd has actually posted a petition at his election website, encouraging readers to support his threatened “hold” on the bill). We should compare the issues involved here with the retroactive immunity provided CIA interrogators in the September, 2006 Military Commissions Act, who could otherwise have been accused of war crimes.
Below, we direct readers to an important series of programs from PBS’ Frontline to help readers investigate the background of this issue, and a deeper consideration of some of what’s at stake in continually ceding power to a rogue Executive bent on dissolving the few civil liberties which currently remain untouched.
Lest readers be swayed by the Administration’s repeated argument that “9/11 makes this necessary,” the Rocky Mountain News reported (emphasis added) on October 11, 2007 that this spying was underway well before 9/11/01:
“The National Security Agency and other government agencies retaliated against Qwest because the Denver telco refused to go along with a phone spying program, documents released Wednesday suggest. The documents indicate that likely would have been at the heart of former CEO Joe Nacchio’s so-called “classified information” defense at his insider trading trial, had he been allowed to present it.
Nacchio was convicted last spring on 19 counts of insider trading for $52 million of stock sales in April and May 2001, and sentenced to six years in prison. He’s free pending appeal.
The partially redacted documents were filed under seal before, during and after Nacchio’s trial. They were released Wednesday.
Nacchio planned to demonstrate at trial that he had a meeting on Feb. 27, 2001, at NSA headquarters at Fort Meade, Md., to discuss a $100 million project. According to the documents, another topic also was discussed at that meeting, one with which Nacchio refused to comply.
The topic itself is redacted each time it appears in the hundreds of pages of documents, but there is mention of Nacchio believing the request was both inappropriate and illegal, and repeatedly refusing to go along with it.
The NSA contract was awarded in July 2001 to companies other than Qwest.
USA Today reported in May 2006 that Qwest, unlike AT&T and Verizon, balked at helping the NSA track phone calling patterns that may have indicated terrorist organizational activities. Nacchio’s attorney, Herbert Stern, confirmed that Nacchio refused to turn over customer telephone records because he didn’t think the NSA program had legal standing.
(Yet another example answering the oft-asked skeptic’s question re. 9/11 truth, “If there was government collusion in or cover-up of involvement in 9/11 events, why don’t whistleblowers come forward?”)
In the months since creation of this Frontline series, several important initiatives and news items have surfaced. The Electronic Frontier Foundation filed a lawsuit on October 17, “against the Office of the Director of National Intelligence, demanding any information about telecommunications companies’ efforts to get off the hook for their role in the government’s illegal electronic surveillance of millions of ordinary Americans.” In addition, EFF’s website offers action steps via links to stopthespying.org and noretroactiveimmunity.com. The Washington Post published an article by Dan Eggen 10/22/07, “Immunity for Telecoms May Set Bad Precedent, Legal Scholars Say: Retroactive Protection Could Create Problems in the Future“, and on 10/25/07 the ACLU issued a press release, “ACLU Applauds Senators’ Stands on Telecom Immunity, Growing List of Senators Won’t Let the Telecom’s Off-The-Hook.”
During the months of May and June 2007, PBS Frontline presented five programs as part of an investigative series called Spying on the Home Front. The extensive series website presents all five programs to watch online, interviews, associated readings and links, discussion forum, and several other excellent tools.
From the Spying on the Home Front website:
Spying on the Home Front:
In a permanent war against a hidden enemy, how far has the government gone in hunting terrorists by watching us?
9/11 has indelibly altered America in ways that people are now starting to earnestly question: not only perpetual orange alerts, barricades and body frisks at the airport, but greater government scrutiny of people’s records and electronic surveillance of their communications. The watershed, officials tell FRONTLINE, was the government’s shift after 9/11 to a strategy of pre-emption at home — not just prosecuting terrorists for breaking the law, but trying to find and stop them before they strike.
President Bush described his anti-terrorist measures as narrow and targeted, but a FRONTLINE investigation has found that the National Security Agency (NSA) has engaged in wiretapping and sifting Internet communications of millions of Americans; the FBI conducted a data sweep on 250,000 Las Vegas vacationers, and along with more than 50 other agencies, they are mining commercial-sector data banks to an unprecedented degree.
Even government officials with experience since 9/11 are nagged by anxiety about the jeopardy that a war without end against unseen terrorists poses to our way of life, our personal freedoms. “I always said, when I was in my position running counterterrorism operations for the FBI, ‘How much security do you want, and how many rights do you want to give up?'” Larry Mefford, former assistant FBI director, tells Smith. “I can give you more security, but I’ve got to take away some rights. … Personally, I want to live in a country where you have a common-sense, fair balance, because I’m worried about people that are untrained, unsupervised, doing things with good intentions but, at the end of the day, harm our liberties.”
Although the president told the nation that his NSA eavesdropping program was limited to known Al Qaeda agents or supporters abroad making calls into the U.S., comments of other administration officials and intelligence veterans indicate that the NSA cast its net far more widely. AT&T technician Mark Klein inadvertently discovered that the whole flow of Internet traffic in several AT&T operations centers was being regularly diverted to the NSA, a charge indirectly substantiated by John Yoo, the Justice Department lawyer who wrote the official legal memos legitimizing the president’s warrantless wiretapping program. Yoo told FRONTLINE: “The government needs to have access to international communications so that it can try to find communications that are coming into the country where Al Qaeda’s trying to send messages to cell members in the country. In order to do that, it does have to have access to communication networks.”
Spying on the Home Front also looks at a massive FBI data sweep in December 2003. On a tip that Al Qaeda “might have an interest in Las Vegas” around New Year’s 2004, the FBI demanded records from all hotels, airlines, rental car agencies, casinos and other businesses on every person who visited Las Vegas in the run-up to the holiday. Stephen Sprouse and Kristin Douglas of Kansas City, Mo., object to being caught in the FBI dragnet in Las Vegas just because they happened to get married there at the wrong moment. Says Douglas, “I’m sure that the government does a lot of things that I don’t know about, and I’ve always been OK with that — until I found out that I was included.”
A check of all 250,000 Las Vegas visitors against terrorist watch lists turned up no known terrorist suspects or associates of suspects. The FBI told FRONTLINE that the records had been kept for more than two years, but have now all been destroyed.
In the broad reach of NSA eavesdropping, the massive FBI data sweep in Las Vegas, access to records gathered by private database companies that allows government agencies to avoid the limitations provided by the Privacy Act, and nearly 200 other government data-mining programs identified by the Government Accounting Office, experienced national security officials and government attorneys see a troubling and potentially dangerous collision between the strategy of pre-emption and the Fourth Amendment’s protections against unreasonable search and seizure.
Peter Swire, a law professor and former White House privacy adviser to President Clinton, tells FRONTLINE that since 9/11 the government has been moving away from the traditional legal standard of investigations based on individual suspicion to generalized suspicion. The new standard, Swire says, is: “Check everybody. Everybody is a suspect.”
Watch the full program online. 60 minutes/Windows Media & Quicktime
Readers will want to check out Frontline‘s other recent programs, such as “Cheney’s Law“. In addition, a very significant article by Jane Mayer, “The Hidden Power: The legal mind behind the White House’s war on terror“, was published in The New Yorker July 3, 2006, that provides readers with a thorough look inside some of the ‘legal’ machinations of this Administration. And a summary of related articles has just been posted at the excellent site, WantToKnow.info.
10/29 Update: DownsizeDC has just sent out an action alert:
D o w n s i z e r – D i s p a t c h
Subject: FISA strategy
Okay, we’re coming to the decision point of our fight to repeal the bad aspects of the so-called “Protect America Act” (PAA) Remember, the PAA violates the 4th Amendment by permitting government spying on American citizens without a warrant.
Here’s what we need to do . . .
Send a message to the House asking them to repeal the PAA. They’re not going to do that, but asking for it makes it more likely that they will make changes in the right direction. In addition . . .
Use your personal comments to ask your Rep. to support the RESTORE Act, which is a big improvement on PAA.
Also in your personal comments ask your Rep. to NOT grant retroactive immunity to the telecom companies that collaborated with the Bush administration in spying on Americans in violation of the law. If we can block immunity then the President will veto the bill and we stand a better chance of having the PAA sunset out of existence.
Also use your personal comments to ask your House Rep. to oppose any attempts to substitute a different bill for the RESTORE Act. A move will be made on the House floor to replace the RESTORE Act with a bad bill from the Senate. This must be prevented.
You can send your message here.
Finally, help us and our coalition allies put pressure on the Senate Judiciary Committee to not cave-in on the Telecom Immunity issue. Call the Republican and Democrat phone numbers for the Senate Judiciary Committee and tell them you want the committee to oppose immunity for the telecom companies in any revision of the “Protect America Act.” Here are the phone numbers:
Democratic Phone: (202) 224-7703
Republican Phone: (202) 224-5225
In addition, if YOUR Senator is a member of the Senate Judiciary Committee call him or her directly and deliver the same message. Here is the list with phone numbers:
Patrick J. Leahy, D-VERMONT 202-224-4242
Arlen Specter, R-PENNSYLVANIA 202-224-4254
Edward M. Kennedy, D-MASSACHUSETTS 202-224-4543
Joseph R. Biden, Jr., D-DELAWARE 202-224-5042
Orrin G. Hatch, R-UTAH 202-224-5251
Herb Kohl, D-WISCONSIN 202-224-5653
Charles E. Grassley, R-IOWA 202-224-3744
Dianne Feinstein, D-CALIFORNIA 202-224-3841
Jon Kyl, R-ARIZONA 202-224-4521
Russell D. Feingold, D-WISCONSIN 202-224-5323
Jeff Sessions, R-ALABAMA 202-224-4124
Charles E. Schumer, D-NEW YORK 202-224-6542
Lindsey Graham, R-SOUTH CAROLINA 202-224-5972
Richard J. Durbin, D-ILLINOIS 202-224-2152
John Cornyn, R-TEXAS 202-224-2934
Benjamin L. Cardin, D-MARYLAND 202-224-4524
Sam Brownback, R-KANSAS 202-224-6521
Sheldon Whitehouse, D-RHODE ISLAND 202-224-2921
Tom Coburn, R-OKLAHOMA 202-224-5754
We’re nearing the decision point. Let’s maintain the pressure. Thank you for being a DC Downsizer.