by Tom Burghardt
April 12, 2010
What could be a significant legal victory in the
on-going battle against blanket surveillance transpired March 31 in district
court in San Francisco, along with a stinging rebuke of the
U.S. District Court Chief Judge Vaughn R. Walker
ruled that the government had violated the
Foreign Intelligence Surveillance Act (FISA)
and that the National Security Agency's warrantless spying program was
Al-Haramain Islamic Foundation v. Obama,
Walker found that the government employed extralegal means in 2004 to
wiretap the now-defunct Islamic charity's phone calls, as well as those of
their attorneys. Ruling that the plaintiffs had been "subjected to unlawful
surveillance," Walker declared that the government was liable to pay them
The court's decision is a strong rejection of administration assertions that
an imperious Executive Branch, and it alone, may determine whether or not a
case against the government can be examined by a lawful court, merely by
invoking the so-called "state secrets privilege."
The Justice Department has not decided whether it will appeal the decision;
it appears likely however given the stakes involved, that the case will be
remanded back to the Ninth Circuit Court of Appeals.
Like their Bushist predecessors, the Obama administration has heartily
embraced the dubious state secrets theory, a dodgy legalistic invention
manufactured to conceal criminal policies and illegal acts authored by the
government and their agents.
The March 31 decision is all the more remarkable, in light of Judge Walker's
dismissal of a series of lawsuits brought by the American Civil Liberties
Union (ACLU) and the Electronic Frontier Foundation (EFF) over
the explosive issues of driftnet surveillance and the CIA's kidnapping and
torture program that disappeared alleged terrorist suspects into Agency
The latter case,
Mohamed et al. v. Jeppesen Dataplan, Inc.,
was dismissed by Walker in 2008 after Justice Department attorneys
successfully argued that the "state secrets privilege" applied.
The appeals court rejected those arguments and
ruled last year that,
"the state secrets privilege has never
applied to prevent parties from litigating the truth or falsity of
allegations, or facts, or information simply because the government
regards the truth or falsity of the allegations to be secret."
The court added,
"According to the government's theory, the
judiciary should effectively cordon off all secret government actions
from judicial scrutiny, immunizing the CIA and its partners from the
demands and limits of the law."
Several other cases dismissed by Walker
challenged the secret state's authority to spy on the American people in a
profitable arrangement with the nation's giant telecommunications firms,
internet service providers and a host of shadowy private security
In late January,
Antifascist Calling reported that Walker dismissed
Jewell v. NSA lawsuit challenging the agency's targeting of the electronic
communications of millions of U.S. citizens and legal residents.
As AT&T whistleblower Marc Klein
told Wired earlier this year, internal AT&T
documents suggest that the on-going NSA spy program,
"was just the tip of an eavesdropping
According to Klein, these programs are not
"targeted" against suspected terrorists but rather,
"show an untargeted, massive vacuum cleaner
sweeping up millions of peoples' communications every second
Despite overwhelming evidence that the state
acted illegally, Walker dismissed Jewell claiming that driftnet spying by
the government was not a "particularized injury" but instead a "generalized
grievance" because almost everyone in the United States has a phone and
Chillingly, Walker asserted that,
"a citizen may not gain standing by claiming
a right to have the government follow the law."
What prompted Walker's change of heart in the
During the course of litigation objecting to the government's
characterization that Al-Haramain was a "Specially Designated Global
Terrorist Organization," U.S. attorneys inadvertently turned over a
classified document from the Office of Foreign Assets Control (OFAC)
that revealed a broad pattern of illegal surveillance.
Based on that document, the charity's lawyers filed a lawsuit under the
"an aggrieved person... shall be entitled to
recover... actual damages, but not less than liquidated damages of
$1,000 or $100 per day for each day of violation, whichever is greater"
along with "reasonable attorney's fees."
The Bushist DOJ moved to squash the lawsuit,
claiming that it would jeopardize "privileged state secrets" and "national
security," a position upheld by the Ninth Circuit Court of Appeals in San
That court, the
World Socialist Web Site
reported April 6,
"issued a truly Orwellian ruling that, due
to the states secret doctrine, 'the [classified document], its contents,
and any individuals' memories of its contents, even well-reasoned
speculation as to its contents, are completely barred from further
disclosure in this litigation'."
Once back in the district court,
administration lawyers moved to dismiss the case because the charity had "no
standing" without the classified document.
The Ninth Circuit's ruling was both poison pill
and Catch 22 because, as socialist critic John Andrews wrote, without a
"which no one was allowed to remember [Al-Haramain] could not prove
that it had actually been spied upon."
How's that for circular reasoning and
When Al-Haramain's attorneys listed 28 publicly available sources to bolster
their claims, Walker rejected the government's motion to dismiss and the
case went forward.
And when the "change" administration blew into town on January 19, 2009, the
Obama regime decided it was time to "look forward, not backward," refusing
to open any inquiries or investigations into a host of illegal practices,
from waging aggressive war to torture and blanket surveillance, carried out
by the previous government.
Once in power, Obama's Justice Department replicated the Star Chamber
atmospherics of the Bush administration, arguing that spy operations against
the charity were lawful because the President's "wartime powers" allowed him
to override FISA.
This too, was a legal fiction crafted by Bush torture-enablers John C. Yoo
and (current) U.S. Ninth Circuit Court Judge Jay Bybee when they
worked at the Office of Legal Counsel (OLC).
The pair, along with Vice President Dick
Cheney's Chief of Staff, David Addington, were chief architects of
the Bush regime's criminal policies enacted in the aftermath of
Jon Eisenberg, one of the attorneys who represented Al-Haramain,
told The New York Times that,
"Judge Walker is saying that FISA and
federal statutes like it are not optional. The president, just like any
other citizen of the United States, is bound by the law."
In a follow-up report April 1,
"If Holder wanted to be really aggressive,
he could go into the Justice Department's files and pick out some of the
people who were wiretapped and prosecute those cases," Mr. Eisenberg
"But do they want to do that? No. The Obama
administration made a decision a long time ago that they are not going
to prosecute Bush's warrantless wiretapping program."
Walker also rejected arguments made by the
government that the charity's lawsuit should be dismissed, "without ruling
on the merits" the Times reported, because allowing the case to go forward
could reveal "state secrets."
The judge rejected those arguments out of hand and characterized Obama
administration assertions of a,
"state secrets privilege" as amounting to
"unfettered executive-branch discretion" that had "obvious potential for
governmental abuse and overreaching."
Additionally, Walker ruled that the government arguments amounted to a
demand that the Executive Branch ignore FISA, even though Congress had
enacted the statute,
"specifically to rein in and create a
judicial check for executive-branch abuses of surveillance authority."
The constellation of programs now known as the
President's Spying Program (PSP) and specifically NSA's
program, which monitored Americans' email messages and phone calls without
court approval, as stipulated by FISA, was first
revealed by The New York
Times in 2005.
Since those disclosures, the severity of the state's illegal activities
against the American people have escalated and now pose a far-greater threat
to a functioning democracy then at any time in our history.
Why the Ruling Matters
FISA is a 1978 law that was the result of earlier, illegal programs such as
COINTELPRO, the CIA's
Operation CHAOS and the NSA's
SHAMROCK during the 1960s and 1970s.
When those programs were exposed by
investigative journalists and the Senate Select Committee on Intelligence
Church Committee), the secret state was thrown into crisis.
Similar to today's driftnet surveillance and infiltration operations that
rely on informants and agents provocateurs to gin-up "national security" and
"counterterrorism" cases against official enemies, those earlier programs
targeted domestic political dissidents and "suspect" racial and ethnic
groups, in full-on counterinsurgency-type "neutralization" actions that all
but destroyed the vibrant social movements of the Johnson and Nixon years.
A Justice Department spokeswoman, Tracy Schmaler, told the Times that
the Obama administration had "overhauled" procedures for invoking the states
secrets privilege and that it would be invoked only when "absolutely
necessary to protect national security."
This is a rank mendacity.
new guidelines in place since September 2009, as I
November, Justice Department officials are supposed to reject the request to
deploy the state secrets privilege to quash lawsuits if the Executive
Branch's motivation for doing so would,
"conceal violations of the law, inefficiency
or administrative error" or to "prevent embarrassment."
Despite strong legal grounds for allowing
surveillance and torture cases to go forward, the Obama administration, like
the discredited Bush regime before it, continues to stonewall, obfuscate and
U.S. Attorney General Eric Holder claims that a DOJ "high-level committee"
has reviewed relevant material in the Al-Haramain and other cases equally
relevant to charges that the secret state, specifically the nexus of
programs known as the PSP, violated the law. The guidelines further
stipulate that lawbreaking by a specific agency, the FBI and NSA in the Al-Haramain
case, must be reviewed by those agency's inspectors general.
This is supposed to occur whenever,
"invocation of the privilege would preclude
adjudication of particular claims," particularly when a specific "case
raises credible allegations of government wrongdoing."
If such a review has taken place, the results
have never be publicly disclosed.
Commenting on the ruling, Salon's Glenn Greenwald
wrote April 1 that while
news reports have focused on the illegality of Bush's NSA spy program,
"the bulk of Judge Walker's opinion was
actually a scathing repudiation of the Obama DOJ."
"In fact" Greenwald avers, "the opinion
spent almost no time addressing the merits of the claim that the NSA
program was legal. That's because the Obama DOJ - exactly like the Bush
DOJ in the case before Judge [Ann Diggs] Taylor - refused to offer legal
justifications to the court for this eavesdropping."
"Instead" Greenwald writes, the Obama
administration advanced "the imperial and hubristic position" that the
court, indeed any court, "had no right whatsoever to rule on the
legality of the program because,
plaintiffs could not prove they were
subjected to the secret eavesdropping (and thus lacked 'standing' to
the NSA program was such a vital 'state secret' that courts
were barred from adjudicating its legality"
In further comments to the media, Eisenberg
"The Obama Administration stepped right into
the shoes of the Bush Administration, on national security generally and
on this case in particular," adding, "even though I have the security
clearance, I don't have the 'need to know,' so I can't see anything.
This is Obama. Obama! Mr. Transparency! Mr. Change! It's exactly what
Bush would have done."
As this writer has argued many times, while the
color of the drapes in the Oval Office may have changed since Obama took
office, on every substantive issue, from warrantless wiretapping, to
indefinite detention and preemptive wars of imperialist aggression, the
current regime has recapitulated, indeed expanded, the onerous policies of
Proliferate Under Obama
Despite pledges from candidate Obama and his acolytes that illegal
activities by the secret state would be reined-in, the Obama administration
has sought to embellish the Executive Branch's lawless policies as the "War
on Terror" metastasizes on a planetary scale.
The New York Times and
The Washington Post have confirmed that the Obama administration,
"has taken the extraordinary step of
authorizing the targeted killing of an American citizen, the radical
Muslim cleric Anwar al-Awlaki."
Whether or not al-Awlaki is an operative of the
Afghan-Arab database of disposable Western intelligence assets known as
al-Qaeda, or whether the dodgy cleric's targeting is part of a CIA clean-up
operation that would preempt disclosure of the Agency's foreknowledge of the
9/11 attacks is besides the point.
What is significant is that the administration is now standing-up a
presidential assassination program that would target American citizens far
from any battlefield, solely on the basis of unchecked accusations by the
Executive Branch that they're involved in terrorism.
No warrant, no arrest, no trial: in place of a lawful conviction by a "jury
of his peers," "justice" will come in the form of a Hellfire missile or a
bullet in the back of the head!
In November, I wrote of a suggested plan published by the Joint Special
Operations University (JSOU) to create a secretive "National Manhunting
In that piece I said while the text was not an "official" report, the fact
that the monograph,
"Manhunting - Counter-Network Organization for
Irregular Warfare," was written by retired Air Force Lt. Colonel
George A. Crawford and published by JSOU, lends added weight to
arguments by critics that the United States Government has "gone rogue" and
is preparing a planet-wide
Operation Condor network to capture or kill
In light of last week's reports, does such an entity now exist, either as an
official, though compartmented, code-word protected secret operation, or
as a privatized Murder, Inc.?
On the domestic surveillance front, as
The New York Times revealed in
several investigative pieces in 2009, NSA, despite assurances from the Obama
administration, continued to intercept,
"private e-mail messages and phone calls of
Americans in recent months on a scale that went beyond the broad legal
limits established by Congress last year."
According to journalists Eric Lichtblau
and James Risen, the "intelligence officials" said that the agency,
"had been engaged in 'overcollection' of
domestic communications of Americans. They described the practice as
significant and systemic."
In a follow-up piece,
the Times' reporters
disclosed, that a former NSA analyst,
"described being trained in 2005 for a
program in which the agency routinely examined large volumes of
Americans' e-mail messages without court warrants. Two intelligence
officials confirmed that the program was still in operation."
Indeed, as a heavily-redacted
released last year by the inspectors general of five federal agencies found,
most "intelligence officials" interviewed "had difficulty citing specific
instances" when the National Security Agency's wiretapping program
contributed to successes against "terrorists."
But as a means for monitoring the communications of dissident and activist
groups, lawless surveillance programs have been a boon to America's
political police as they zero-in on anarchists, Muslims, environmentalists,
indeed any group perceived to be a "threat" to the capitalist order.
The report goes on to state that when President Bush authorized the illegal
warrantless wiretapping operation, he also signed off on a host of other
surveillance programs that the secret state has never publicly disclosed.
According to multiple published reports, those programs include a massive
data-mining operation of the email, internet searches, blog posts, GPS
locational data of American citizens.
Security researcher Chris Soghoian, the publisher of the web site
Slight Paranoia, discovered at the
secretive Intelligent Support Systems (ISS) wiretapping conference
last October in Washington, that a niche security outfit, Packet Forensics
was marketing internet spying boxes to the federal government.
Soghoian revealed that a Sprint Nextel executive disclosed at ISS that the firm provided law enforcement agencies with its customers'
(GPS) location information "over 8 million times between September 2008 and
October 2009" and that this new "tool" for tracking our every move "was made
possible due to the roll-out by Sprint of a new, special web portal for law
According to Soghoian and researcher Sid Stamm, Packet Forensics
has developed technology designed to intercept communications without
breaking encryption, by deploying forged security certificates instead of
real ones that websites use to verify connections.
SSL certificates are the tiny lock symbol that appears in your web browser
when you make a "secure" connection for online banking or to purchase a book
or video game.
In a paper published March 24,
Certified Lies - Detecting and Defeating
Government Interception Attacks Against SSL, Soghoian and Stamm reveal that
"a new attack" on individuals' privacy rights is,
"the compelled certificate creation attack,
in which government agencies compel a certificate authority to issue
false SSL certificates that are then used by intelligence agencies to
covertly intercept and hijack individuals' secure Web-based
communications. We reveal alarming evidence that suggests that this
attack is in active use."
According to a marketing brochure handed out by
Packet Forensics at the ISS conclave,
"Users have the ability to import a copy of
any legitimate key they obtain (potentially by court order) or they can
generate 'look-alike' keys designed to give the subject a false sense of
confidence in its authenticity."
In other words, secret state agencies, with or
without the legal niceties one generally expects in a democracy, can forge
security keys "for reasons of state."
Soghoian and Stamm aver that the product is recommended for government
investigators and that Packet Forensics stated that,
"IP communication dictates the need to
examine encrypted traffic at will," therefore "your investigative staff
will collect its best evidence while users are lulled into a false sense
of security afforded by web, e-mail or VOIP encryption."
In blunt terms, all your communications belong
And if you don't like it, well, there's a jail
cell waiting for you in some quiet, out-of-the-way "secure location"
otherwise known as a black site! How has the "change" administration
responded to these, and a raft of other reports?
Washington Post reported April 9, that
congressional grifters and privacy advocates,
"are stepping up the pressure on the Obama
administration to fill the five vacant seats on the Privacy and Civil
Liberties Oversight Board, a panel created in 2004 to ensure that
executive branch counterterrorism policies protect Americans' civil
Post journalist Ellen Nakashima disclosed
"board has been vacant since the end of the
On and on it goes.
The securitization and militarization of daily life in the "greatest
democracy money can buy" proceeds apace.
As anthropologist and social critic David
Price revealed in a
new piece for CounterPunch, America's
military-industrial-intelligence-academic-complex has pressured U.S.
universities to welcome the CIA and other secret state agencies back onto
campuses with open arms.
"After 9/11" Price writes, "the intelligence
agencies pushed campuses to see the CIA and campus secrecy in a new
light, and, as traditional funding sources for social science research
declined, the intelligence community gained footholds on campuses."
These programs, managed by the Office of the
Director of National Intelligence's (ODNI)
Intelligence Advanced Research Projects Activity (IARPA),
"use universities to train intelligence
personnel by piggybacking onto existing educational programs."
"Even amid the militarization prevailing in
America today," Price writes, "the silence surrounding this quiet
installation and spread of programs ... is extraordinary."
Not so extraordinary however, if one considers
America's rapid transformation into a police state even as the capitalist
Empire runs aground.