Judge Orders DOJ to Release Spying Records

[Merkin.Muffley]

A judge named Kennedy - I hope they don't let him drive. This is another attemt to tie President Bush's hands so he can't keep our freedoms safe and secure.

http://www.eweek.com/article2/0,1895,1928112,00.asp

A federal judge ordered the Department of Justice to release records related to the National Security Agency's warrantless domestic spying program by March 8, or else explain the legal basis under which the records cannot be released.

The order was handed down Feb. 16 in a case brought against the Justice Department by the Electronic Privacy Information Center.

EPIC requested the documents in December under the Freedom of Information Act, after the New York Times reported that President Bush authorized the NSA to conduct electronic surveillance of people in the United States without a court order.

EPIC asked four offices at the Justice Department to hasten the processing and release of the spy program records, and the offices agreed that the requests merited expedited handling.

However, it remained unclear when EPIC would receive the information it sought, and so it filed a lawsuit Jan. 19 to stop what it called the agency's "unlawful attempts" to prevent the center from obtaining the documents.

In ordering the Justice Department to expedite the FOIA request processing, Judge Henry Kennedy Jr., of the U.S. District Court for the District of Columbia, said that the department's opinion that it could determine how much time is needed was "easily rejected."

"Under DOJ's view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests," Kennedy wrote in his opinion.

EPIC asked the Justice Department for four types of records, including an audit of NSA domestic surveillance activities, a checklist showing probable cause to eavesdrop, communications about the use of information NSA obtained, and other documents concerning increased domestic surveillance.

The Justice Department argued that working too fast to respond to the FOIA request would increase the odds that exempted information (such as classified documents) would be released accidentally, but the judge dismissed that concern.

"Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA seeks to further—government openness and accountability," he wrote.

Noting that public awareness of the government's actions is necessary in democracy, Kennedy said that timely awareness is also a necessity.

"President Bush has invited meaningful debate about the warrantless surveillance program," Kennedy wrote.

"That can only occur if DOJ processes its FOIA requests in a timely fashion and releases the information sought."

David Sobel, general counsel for EPIC, said that the order vindicates the public's right to know about the spying program.

"The administration has attempted to spin this story by controlling the flow of information, but the court has now rejected that strategy," Sobel said.

"The government must now produce all relevant information, or provide a compelling justification to withhold it."

 

[Biker]

Cheney will no doubt provide "a compelling justification to withhold it".
Biker

 

[dasmi]

A judge named Kennedy - I hope they don't let him drive. This is another attemt to tie President Bush's hands so he can't keep our freedoms safe and secure.

Yes, spying on US citizens certainly keeps our freedoms safe and secure.

 

[ArmedBear]

My prediction:

The Bush administration will try to stonewall this, and make themselves look really, really bad.

The courts will get the papers.

When the courts, the American people, and even the more sober Democrats in Congress get a better idea of what really went on, we will say, "Was THAT it? Well that was really no big deal."

Basis for my prediction:

It's happened before.

 

[MrTuffPaws]

A judge named Kennedy - I hope they don't let him drive. This is another attemt to tie President Bush's hands so he can't keep our freedoms safe and secure.

I would tell you to shut up with the rabid playing of the freedom card, but this is the highroad. We have only lost freedoms in this whole mess.

 

[Merkin.Muffley]

I would tell you to shut up with the rabid playing of the freedom card, but this is the highroad. We have only lost freedoms in this whole mess.

Ever tried living in another country? I have. It might make you appreciate what you have here.

 

[Zedicus]

Ever tried living in another country? I have. It might make you appreciate what you have here.

+1

 

[boofus]

They should just come clean. A search warrant is not always required by law. If a cop sees a bloody severed arm lying in your back seat you can bet your ass he can search your car without a warrant and the courts will back him up on it.

If they think they had a good enough reason to have probable cause let's hear it.

 

[Soybomb]

This is another attemt to tie President Bush's hands so he can't keep our freedoms safe and secure.

If I have nothing to hide I shouldn't care too?

I certainly appreciate what we have here and believe in preserving it, not allowing power hungry people to take even more of it away.

 

[beerslurpy]

Yes, way to defend liberty by pissing on the 4th amendment. What is the purpose of "fighting for freedom" if that fight is conducted against our own citizens and consists of endangering that liberty with intrusive and illegal government conduct?

I like judge Napolitano's story about cops and other government agents swearing to "uphold the constitution" and "tell the whole truth and nothing but the truth" and then doing neither on a chronic basis. He said this is what turned him from a conservative, blue-collar catholic into a liberal. In this sense, Bush is promoting liberty, by creating a whole generation of people that distrusts and fears their own government. Way to go W!

 

[JerryM]

To spy on those who seemingly have ties to terrorist, by monitoring their overseas conservations is not spying on our citizens. I think it is an excellent idea, and necessary for security.

We are at war, and war requires some different rules.
Any of you alive during WWII? There were different rules then, and mail overseas was censored.

Jerry

 

[RealGun]

To spy on those who seemingly have ties to terrorist, by monitoring their overseas conservations is not spying on our citizens. I think it is an excellent idea, and necessary for security. - JerryM

Agreed. Note though that no one engaged represented it as "spying". It is surveillance, unless you want to put a negative spin on it. The historically justified source of concern is misuse of the power, which then brings the argument for accountability.

 

[bakert]

Seems to me that most people so upset with this spying or survaillance are basing their fears on what they read in various media sources and we all know the news media doesn't twist the truth or put a different spin on most of what they consider news. This program is centered on a comparatively few individuals that are known to be connected to various terror groups in some way or other. I hardly think anyone on ths forum has any real worries about their freedoms. JMHO.

 

[Geno]

"Precedent" should worry EVERYONE on THR

It's not that this present matters directs effects anyone us on THR, but it does affect all of us on THR and in the USA. That is to say, there is a warranted (no pun) worry that precedent opens to door to extend the status quo into a new area. What is the next great threat? Someone is planning a "gun show"?

Stop this "business" now or lose the rights tomorrow. There was a process in place--use it. Unfortunately, many who don't like the way the game is played just change the rules, but call it the same old game. Well, it isn't so. Different rules; different game. Same rules; same game.

And +1 for having lived under a South American, military dictatorship--not fun!

Doc2005

 

[Biker]

As I recall, this program was used to monitor four Quaker peace activists. Can y'all condone this?
Biker

 

[TheEgg]

EPIC asked the Justice Department for four types of records, including an audit of NSA domestic surveillance activities, a checklist showing probable cause to eavesdrop, communications about the use of information NSA obtained, and other documents concerning increased domestic surveillance.

I would really like to see this information. It should help us determine who is blowing smoke here, the Bush administration or the critics of the surveillance program. I despise the thought of warrantless eavesdropping, but I also don't think I have all the facts on this program yet.

If Bush and minions have been running a broad "fishing" expedition program, then we need to thump him good, perhaps toss him out of office.

 

[bakert]

This kind of particular kind of surveillance has been used in the past by various Presidents. I will be the first to admit it could possibly be used the wrong way but just don't think it's as widely used as many do or the media outlets portray. We are being spied on each time we turn a computer on but not by the Justice Dept.

 

[Headless Thompson Gunner]

All this concern for protecting the constitution, yet nobody seems to mind that the Judicial branch is blatantly usurping Executive authorities. I find that odd, to say the least.

Colluding with foreign enemies was never protected under the 4th Ammendment. If you do that, you have every reason in the world to expect to be spied upon and worse.

I don't mind that y'all don't like Bush spying on the international communications of declared enemies of the US. While I can't understand that, I do repsect your right to your own opinion. But golly, can't you at least be consistent? If it's wrong for the President to overstep his constitutional bounds, isn't it just as wrong for a judge to overstep his constitutional bounds?

Or did I overlook that part of the constitution that says the Judiciary can control how the Commander in Chief carries out a war? Maybe that "Judicial veto of military actions" section fell out of my copy of the constitution when I wasn't looking?

EDIT: Upon further investigation, it appears that my copy of the constitution is accurate and complete. The Judiciary does not in fact have any power to interject itself into the military decision-making process of the Commander in Chief. Perhaps someone could inform this judge...

 

[TheEgg]

I don't mind that y'all don't like Bush spying on the international communications of declared enemies of the US.

If I was convinced that this was all that was going on, I would keep my mouth shut. Sadly, I am not yet convinced -- the fed agencies involved producing the records pursuant to the FOIA request, might help me and others out here.

We have ample evidence (Richard Nixon, Republican, and Bill Clinton, Democrat) that President's from either party are perfectly capable of standing in front of the nation and lying through their teeth. It is now hard to take any President on his word.

 

[Bartholomew Roberts]

Discussion on this from past threads suggests that there is reason to doubt that the NSAs program is as narrowly confined as some have suggested.

Regardless, everyone should welcome the release of this type of information since it should clearly support one side or the other.

If they think they had a good enough reason to have probable cause let's hear it.

See the linked thread. There are already statutory exceptions equivalent to "probable cause" that allow NSA to monitor without a warrant. The program being pursued clearly goes beyond that - a fact that neither side disputes.

Any of you alive during WWII? There were different rules then, and mail overseas was censored.

First, see the earlier thread for discussion of why it is likely not just terrorists being monitored. Second, FDR received authority from Congress to censor mail and other communications. He didn't decide that he already had that authority and start the program without oversight from the judiciary or Congress.

This program is centered on a comparatively few individuals that are known to be connected to various terror groups in some way or other.

See the earlier thread... the Washington Post reports that AFTER the automated process had culled the numbers down, 5,000 Americans were subject to surveillance by NSA without warrant. Of those, the Department of Justice sought a domestic warrant to allow further surveillance in only 10 cases per year. If these people are connected to terror groups, why are we giving them a free pass?

Colluding for foreign enemies was never protected under the 4th Ammendment. If you do that, you have every reason in the world to expect to be spied upon and worse.

How exactly do we know the people being listened to are foreign enemies? Because the President says so? If that is a sufficient answer, then why even bother separating the powers of government at all?

 

[roo_ster]

More Light, Less Heat

The 27FEB2006 National Review magazine has an article by Byron York, Listening to the Enemy: The legal ground on which the president stands, with actual facts that might be of use in the current NSA surviellance debate. It is subscription-only, so I will quote the most pertinent bits. [Bracketed blue] comments are mine, and the bold, red font is also mine.

In early September 2002, just before the first anniversary of the September 11 terrorist attacks, a group of lawyers gathered in a heavily protected, windowless room in the Department of Justice building in Washington. There were three federal appeals-court judges, Laurence Silberman, Edward Leavy, and Ralph Guy. There was Theodore Olson, the U.S. solicitor general. There was Larry Thompson, the deputy attorney general. And there was John Yoo, the Justice official who had closely studied questions of war powers and presidential authority. Rounding out the group were a few other department staffers, one official from the FBI, and David Addington, Vice President Cheney’s top lawyer.

The purpose of the meeting was to argue a case whose details remain so classified that they are known by only a few people, but whose outcome, a decision known as In re: Sealed Case, has become one of the key documents in the hottest argument in Washington today: the fight over what President Bush calls the “terrorist surveillance” of persons with known al-Qaeda connections, and what the president’s opponents call “domestic spying.”

The three judges made up what is known as the FISA Court of Review. It was created in 1978 by the now-famous Foreign Intelligence Surveillance Act. The act required that the president go to the so-called FISA Court to seek a warrant for surveillance in top-secret foreign-intelligence cases. For any disputed decisions that might arise, Congress also created the Court of Review, a sort of super-secret appeals court.

...

[FISA Court != FISA Court of Review, just to make clear]

The conflict began with the passage of the Patriot Act in October 2001. The act tore down the “wall” that had arisen in the Justice Department that blocked intelligence officials and criminal investigators from working together and sharing information. That wall had been cemented by a set of internal department guidelines written in 1995, in which then–attorney general Janet Reno outlined the department’s constricted surveillance procedures.

The Patriot Act was designed to fix that problem. But a month after the act was passed, when the Justice Department submitted surveillance requests to the FISA Court under the new, looser standards passed by Congress, the FISA Court in effect rejected the Patriot Act, and instead reaffirmed the old 1995 Clinton-era standard.

[Details of conflict between FISA executive branch over several months.]

“We’re here today,” Theodore Olson said as the secret In re: Sealed Case court argument began, “because the Foreign Intelligence Surveillance Court’s May 17th order . . . has perpetuated a serious and increasingly destructive barrier which has hamstrung the president and his subordinates” in their work to protect “the United States and its citizens from attack and from international terrorism.” The FISA Court’s ruling, Olson continued, was “inexplicable.”

Olson and the judges went back and forth over the history of the wall...

...“To the extent that the FISA Court is purporting to reorganize the executive branch, the so-called chaperone function, I don’t think Congress could constitutionally tell the executive or the attorney general that he could not talk to this subordinate without involving that subordinate,” Olson told the judges, “and I certainly don’t think the court can do so.”

[The final ruling was] slam-dunk win for the government. [Executive branch]

...the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. “In doing so, the FISA Court erred...t did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied.” The FISA Court, according to the ruling, “refus[ed] to consider the legal significance of the Patriot Act’s crucial amendments...may well have exceeded the constitutional bounds” governing the courts by asserting “authority to govern the internal organization and investigative procedures of the Department of Justice.”

And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

...

After the decision was handed down, the American Civil Liberties Union, which had submitted a brief in support of the FISA Court’s actions restricting the administration, asked the Supreme Court to review In re: Sealed Case. The justices declined to take any action. That is not the same as the Court’s upholding the ruling, but it does mean that the justices looked at the decision and chose not to intervene.

Today, the opinion stands as a bedrock statement of presidential power. And ironically, it came from a case that was not about whether the president had overstepped his bounds, but about whether the courts had overstepped their bounds. The Court of Review ruled strongly in favor of the president, and the Supreme Court declined to reconsider that decision. Reading the opinion, it’s no wonder that George W. Bush has so strongly defended the surveillance program. If the FISA Court of Review is right, he has the Constitution on his side.

I hope the injection of fact is of use.

 

[roo_ster]

I may not like it, but GWB has all the legal justification he needs for the NSA to do the surviellance.

I think it is way past time for strong email and VOIP encryption to become the norm.

 

[Mongo the Mutterer]

Judge Kennedy doesn't appear to have a stellar record...

Another Clintonian appointee....

 

[TequilaMockingbird]

I may not like it, but GWB has all the legal justification he needs for the NSA to do the surviellance

Warrantless domestic searches....I don't see that listed as an enumerated power anywhere in the US Constitution.

 

[ArmedBear]

There's a question that it seems NO ONE has asked.

Is there any evidence that any American has had his/her civil rights violated?

Bear in mind that there's a HUGE gap between what law enforcement officers might say, see and hear, and what is admissable as evidence against a defendant in court.