by Tom Burghardt
February 1, 2010
Court Tosses NSA Spy
Suits, Sides with White House Over Illegal Surveillance
In late January, the Justice Department's Office of the Inspector General
released a report that provided startling new details on illegal operations
by the FBI's Communications Analysis Unit (CAU) and America's
For years, AT&T, Verizon, MCI and others fed the Bureau phone records of
journalists and citizens under the guise of America's endless, and highly
Between 2002 and 2007, the FBI illegally collected more than 4,000 U.S.
telephone records, citing bogus terrorism threats or simply by persuading
telephone companies to hand over the records.
Why? Because the FBI could and the telecoms were
more than willing to help out a "friend" - and reap profits accrued by
shredding the Constitution in the process.
So egregious had these practices become that "based on nothing more than
e-mail messages or scribbled requests on Post-it notes, the phone employees
turned over customer calling records" to the FBI,
The New York Times reported.
And when questions about these dodgy practices were raised internally, top
"up to the assistant director level"
approved CAU's blatantly illegal methodology and responded by "crafting
a 'blanket' national security letter to authorize all past searches that
had not been covered by open cases,"
The Washington Post disclosed.
"On some occasions" according to the Times,
"the phone employees allowed the F.B.I. to upload call records to
government databases. On others, they allowed agents to view records on
their computer screens, a practice that became known as 'sneak peeks'."
"But in a surprise buried at the end of the 289-page report"
Wired disclosed, "the inspector general
also reveals that the Obama administration issued a secret rule almost
two weeks ago saying it was legal for the FBI to have skirted federal
Investigative journalist Ryan Singel
revealed that the,
"Obama administration retroactively
legalized the entire fiasco through a secret ruling from the Office of
Legal Counsel nearly two weeks ago."
"That's the same office" Singel writes, "from which John Yoo blessed
President George W. Bush's torture techniques and warrantless
wiretapping of Americans' communications that crossed the border."
While corporate media frame these stories as if
they were practices of the far-distant Bushist past, former telephone
technician and AT&T whistleblower Mark Klein, who
leaked documents on the existence of secret
NSA-controlled spy rooms embedded in
AT&T switching offices across the country,
told Wired journalist David Kravets
January 29, that the President's Surveillance Program (PSP)
and internal AT&T documents suggest that the program "was just the tip of an
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
Yet despite overwhelming evidence of lawbreaking
by the secret state and their corporate partners, on January 21 U.S.
District Chief Judge Vaughn Walker tossed out the EFF's lawsuit,
Jewell v. NSA, filed on behalf of AT&T
customers fighting the National Security Agency's illegal operations that
target millions of citizens' phone calls, emails and web searches.
cowardly ruling that skirts the issue of
Americans' privacy rights, Walker reaffirmed the unlimited power of the
Executive," Bushist double-speak for a presidential dictatorship;
a position embraced by current Oval Office resident, the discredited
In a further sign that the Executive Branch and secret state agencies are
above the law, Walker ruled that harm done to U.S. citizens and legal
residents under the PSP, was not a "particularized injury" but instead was a
"generalized grievance" because almost everyone in the United States has a
phone and Internet service.
Chillingly, Walker asserted that,
"a citizen may not gain standing by claiming
a right to have the government follow the law."
This pitiful summary judgment merely affirms the
America is a lawless state where
neither citizens nor "co-equal" branches of government, Congress and the
Courts, can challenge the quintessentially political decisions made
in secret by the Executive Branch.
Despite the fact that an audit by the Justice
Department's own Office of the Inspector General found that the FBI and
telecom grifters colluded together to violate federal wiretapping laws, to
wit, the Electronic Communications Protection Act (ECPA)
and continue to do so today, Walker's ruling means that Americans are left
without an legal mechanism to redress the systematic destruction of their
According to enforcement provisions of ECPA:
"A court issuing an order under this section
against a telecommunications carrier, a manufacturer of
telecommunications transmission or switching equipment, or a provider of
telecommunications support services may impose a civil penalty of up to
$10,000 per day for each day in violation after the issuance of the
order or after such future date as the court may specify."
It is all-too-clear that were these lawsuits to
go forward and the telecoms lose, the giant phone companies and internet
service providers, which the Justice Department was forced to admit in court
papers are an "arm of the government ... when it comes to secret spying," as
Wired reported in October, would
potentially face astronomical fines.
Strip away Walker's mendacious reasoning and what we're left with is another
in an endless series of moves by the capitalist state to defend the
interests of their political masters:
the corporate oligarchy and financial
swindlers who resort to police state methods of rule to shore-up a
EFF Senior Staff Attorney Kevin Bankston
denounced the ruling and
"The alarming upshot of the court's decision
is that so long as the government spies on all Americans, the courts
have no power to review or halt such mass surveillance even when it is
flatly illegal and unconstitutional."
Last June, Walker dismissed
EFF's Hepting v. AT&T lawsuit that
targeted illegal collaboration between AT&T and the NSA.
In that case, the court ruled that the telecoms
enjoyed retroactive immunity from liability when the Democratic-controlled
Congress, and then-Senator and corporatist presidential candidate Barack
Obama, voted in favor of the despicable FISA Amendments Act (FAA).
Antifascist Calling reported that the
Obama administration argued that Jewell too, must be dismissed on similar
grounds. Taking a page from the Bush/Cheney playbook, the government claimed
that should Jewell go forward, it would require disclosure of "privileged
As I wrote at the time, the claim of "sovereign immunity" and a "state
secrets" privilege means that the government can never be held accountable
for blatant illegalities under any federal statute. In other words, under
such conditions the "rule of law" is a fraudulent exercise and gross
criminality, when sanctioned at the highest levels of the state, becomes the
norm as formerly democratic and republican forms of self-governance slip
ineluctably towards the abyss of presidential dictatorship.
Following in the footsteps of his White House predecessor, the cynical
nature of Obama's rhetoric is all the more remarkable, considering that the
president announced last September amid great fanfare that his
"impose new limits on the government
assertion of the state secrets privilege used to block lawsuits for
national security reasons," according to
The New York Times.
Despite administration posturing that it would
be the most "open" in history,
"more than 300 individuals and groups have
sued the government to get records" in the year since Obama assumed
The Washington Post reported January
"In case after case" the Post disclosed, "plaintiffs say little has
changed since the Bush administration years, when most began their
quests for records. Agencies still often fight requests for disclosure,
contending that national security and internal decision-making need to
Nowhere is this penchant for secrecy more
pronounced then by the Obama administration's steadfast refusal to turn over
the names of telecom lobbyists who bought-off their congressional allies in
the run-up to the passage of the FISA Amendments Act of 2008.
The Electronic Frontier Foundation has been
litigating a Freedom of Information Act
request against the government, demanding that the administration turn over
the names of corporate lobbyists who had contacted Congress, the Department
of Justice and the Office of the Director of National Intelligence on behalf
of their telecom clients bid for retroactive immunity under the FAA.
According to EFF, AT&T, Sprint and Verizon lobbyists forked over bundles of
cash, as the watchdog group MAPLight revealed in 2008, when they published a
list of campaign contributions to congressional Democrats who changed their
votes on FAA once the wheels had been sufficiently greased.
Despite claims of "openness" and "transparency," the administration is still
fighting hard to conceal the names of these lobbyists from the American
people. In December,
EFF reported that the Justice Department,
to the appeals court that 'there is no public interest in the compelled
disclosure of the representatives' identities'."
Having pledged to the American people that his
would be an administration based on the rule of law and public
accountability, the Obama presidency has proven itself to be just as
secretive and mendacious as the Bush/Cheney cabal that ruled the roost for
eight long and bloody years.
Our "forward looking" president, and the ruling class elites who have
presided over the destruction of our democracy demonstrate on a daily basis
the accountability-averse culture that has been a staple of American
political life for decades.
While the federal courts toss out suits by citizens demanding that their
right to privacy not be sacrificed to corporate looters and their police
state accomplices, the architects of torture and driftnet surveillance get a
Newsweek reported January 29, that a
long-awaited report from the Justice Department's Office of Professional
"clears the Bush administration lawyers who
authored the 'torture' memos of professional-misconduct allegations."
Leaving aside Newsweek's placement of quotation
marks around the word "torture," a practice fully in keeping with the
corporate media's consensus that such heinous practices have "kept us safe,"
Michael Isikoff and Daniel Klaidman write that while the probe "is sharply
critical" of the "legal reasoning" used to justify CIA and Pentagon crimes
"a senior Justice official who did the final
review of the report softened an earlier OPR finding."
That earlier version had concluded that two of
the key authors of Bushist torture and surveillance policies, Federal
Appeals Court Judge Jay Bybee and University of California law professor
"violated their professional obligations as
lawyers when they crafted a crucial 2002 memo approving the use of harsh
"But the reviewer" Newsweek notes, "career veteran David Margolis,
downgraded that assessment to say they showed 'poor judgment'."
By downgrading OPR's original finding, the
Justice Department is no longer obligated to send a referral to state bar
"for potential disciplinary action - which,
in Bybee's case, could have led to an impeachment inquiry."
Despite the tortured reasoning of blind Obama
loyalists, Dick Cheney's "Unitary Executive" is alive and well.
After all, Plus ça change, plus c'est la même chose!