Bush’s Secret NSA Spying May Have Tainted Prosecutions, Report Warns: Via Threat Level.

The Justice Department needs to investigate whether the secretiveness of Bush’s warrantless wiretapping program tainted terrorism prosecutions by hiding exculpatory evidence from defendants, an oversight report from five inspectors general warned Friday.

The report (.pdf), mandated by Congress, also warned that President’ Bush’s post-9/11 extrajudicial  intelligence programs involved unprecedented collection of communications, and that the government needs to be careful about storing and using that data.

Senator Russ Feingold, Wisconsin Democrat who sits on the Intelligence committee, said the report showed the programs were “outrageous” and called for more declassification.

“This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power,” Feingold said. “I once again call on the Obama administration and its Justice Department to withdraw the flawed legal memoranda that justified the program and that remain in effect today.” [ Read more ... ]

Obama: State Secrets Privilege is ‘Overbroad’: Via Threat Level.

President Barack Obama on Wednesday said his administration is looking to reform the controversial “state secrets privilege,” which both Obama and former-president Bush have wielded to try and kill lawsuits over warrantless wiretapping and extraordinary rendition. 

Obama addressed the subject in an hour-long prime time press conference touching on a variety of topics, and marking the president’s 100th day in office.  The question came from Michael Scherer of Time magazine.

QUESTION: Thank you, Mr. President. During the campaign, you criticized President Bush’s use of the state secrets privilege, but U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved? [ Read more ... ]

Bookmark/Search this post with:

• Twitter
• Digg
• StumbleUpon
• Technorati
• del.icio.us
• Facebook
• Furl
• LinkedIn
• Yahoo

Obama, the ICRC Report and ongoing suppression: Via Salon: Glenn Greenwald.

(updated below)

Following up on the latest extremist Cheney/Addington/Yoo arguments advanced by the Obama DOJ in order to shield Bush lawbreaking from disclosure and judicial review -- an episode I wrote about in detail yesterday, here -- it's worthwhile to underscore the implications of Barack Obama's conduct.  When Obama sought to placate his angry supporters after he voted for the Bush/Cheney FISA-telecom immunity bill last June (after vowing the prior December to support a filibuster of any such legislation), this is what he said (h/t notavailable):

[The FISA bill] also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses.

Obama's huge test today: do we believe in secret law?: Via Salon: Glenn Greenwald.

Today is the most significant test yet determining the sincerity of Barack Obama's commitment to restore the Constitution, transparency and the rule of law.  After seeking and obtaining multiple extensions of the deadline, today is the final deadline for the Obama DOJ to respond to the ACLU's FOIA demand for the release of four key Bush DOJ memos which authorized specific torture techniques that have long been punished (including by the U.S.) as war crimes.  Today, Obama will either (a) disclose these documents to the public or (b) continue to suppress them -- either by claiming the right to keep them concealed entirely or, more likely, redacting the most significant parts before releasing them. [ Read more ... ]

“This Is About the Law”: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

Last night, George Washington University constitutional law professor Jonathan Turley delivered some refreshing straight-talk on the Rachel Maddow Show. Noting that conducting a criminal investigation into the authorization of torture and abuse of detainees by Bush administration officials is not only about values but is about enforcing the law, the good professor called for the appointment of a special prosecutor — just like we did:

When we talk about values, the most important one is that the president has to enforce the laws. He can‘t pick and choose who would be popular to prosecute.

… He should be appointing a special prosecutor. There is no question about that. This is the most well-defined and publicly known crime I have seen in my lifetime. There is no debate about it. There is no ambiguity. It is well known. [ Read more ... ]

Bookmark/Search this post with:

• Twitter
• Digg
• StumbleUpon
• Technorati
• del.icio.us
• Facebook
• Furl
• LinkedIn
• Yahoo

The newly released secret laws of the Bush administration: Via Salon: Glenn Greenwald.

(updated below - Update II - Update III)

Reviewing yesterday's front page of the print edition of The New York Times prompted this observation from Digby:

I looked at the front page of the paper this morning and wondered for a moment if I was looking at one of those historical documents about which scholars would wonder if those who read it in real time had a clue about the scale of what was happening.
There's a run on the banks in Ukraine, the world's biggest insurer suffered the highest quarterly losses in corporate history, Europe is starting to come apart -- with Germany being the lead player. Major change seems to be rumbling in a bunch of different ways right now --- with echoes of the past overlaid with things we've never seen before. Maybe it's just a blip.  But maybe not.

Supreme Court Vacates Decision Giving President Indefinite Detention Power In Al-Marri Case: Via ACLU online newsroom.

WASHINGTON – The U.S. Supreme Court today vacated a lower court decision giving the president the extraordinary power to seize and indefinitely detain U.S. citizens or residents without charge or trial. The case was brought by the American Civil Liberties Union on behalf of Ali Saleh Kahlah al-Marri, who, after being held for almost six years in military detention, was indicted last week in federal court and charged with two counts of material support for terrorism. [ Read more ... ]

Bush Wiretapping: Known Unknowns Remain Via Threat Level :

It's no secret that lawyers in the Bush Administration's Justice Department wrote dozens of memos approving torture and domestic surveillance -- it's just that the Admnistration kept most of them secret by claiming that national security would be compromised if the public read legal analyses disavowing the Fourth Amendment and Geneva Convention.

Thankfully, Obama's Attorney General Eric Holder thinks citizens can handle the truth.

Monday's release of nine previously unseen Office of Legal Counsel memos revealed that Bush's DoJ secretly told him the Constitution didn't matter any more. [ Read more ... ]

DOJ Releases Secret Bush Era OLC Memos Via EFF.org Updates :

Today, the Obama Administration released nine previously secret legal documents written by the Department of Justice's Office of Legal Counsel during the Bush Administration. The release includes two previously undisclosed OLC memoranda and seven previously undisclosed OLC opinions. According to the DOJ, "The two memoranda memorialized that certain legal propositions in ten OLC opinions issued between 2001 and 2003 no longer reflected the views of OLC and 'should not be treated as authoritative for any purpose.'" For example, the January 15, 2009 memo withdraws reliance on several Bush Administration opinions, including the opinion that the Fourth Amendment did not apply to domestic military operations.

Here is the list of the OLC documents released today: [ Read more ... ]

Salon Radio: ACLU on Obama, Bagram and secrecy: Via Salon: Glenn Greenwald

(updated below w/transcript)

Today on Salon Radio, I speak with two ACLU lawyers regarding recent controversial actions taken by the Obama administration: 

First, Jonathan Hafetz discusses Obama's embrace of Bush's position that detainees imprisoned by the U.S. in Bagram, Afghanistan have no rights of any kind to challenge their detention (we also discuss the March 23 deadline in the Al-Marri case for the Obama DOJ to tell the Supreme Court whether they will defend or abandon the radical Bush/Cheney claim that the President has the power to order legal residents inside the U.S. detained in a military brig as an "enemy combatant");

Second, Jameel Jaffer discusses the administration's refusal thus far to disclose a whole slew of Bush-era documents which it has long vowed it would disclose. [ Read more ... ]

New Attorney General Orders Review of Bush-Era State Secrets: Via Threat Level

The Justice Department said Monday it is reviewing litigation inherited from the Bush administration in which the so-called state-secrets privilege was invoked.

But it remains to be seen whether the Obama administration would cite the privilege less frequently than the record number of times it was invoked under George W. Bush. President Barack Obama's Justice Department on Monday was defending the privilege invoked by the Bush administration, in a bid to scuttle a lawsuit brought by four U.S. prisoners who claim they were kidnapped, taken overseas and tortured.

"The attorney general has directed that senior Justice Department officials review all assertions of state secrets to ensure it is being invoked in only legally appropriate situations," Justice Department spokesman Matt Miller said in a telephone interview. [ Read more ... ]

Whistleblower: NSA Targeted Journalists, Snooped on All U.S. Communications: Via Threat Level

Just one day after George W. Bush left office, an NSA whistleblower has revealed that the National Security Agency's warrantless surveillance program targeted U.S. journalists, and vacuumed in all domestic communications of Americans, including, faxes, phone calls and network traffic.

Russell Tice, a former NSA analyst, spoke on Wednesday to MSNBC host Keith Olbermann. Tice has acknowledged in the past being one of the anonymous sources that spoke with The New York Times for its 2005 story on the government's warrantless wiretapping program.

After that story was published, President Bush said in a statement that only people in the United States who were talking with terrorists overseas would have been targeted for surveillance.

But Tice says, in truth, the spying involved a dragnet of all communications, confirming what critics have long assumed. [ Read more ... ]

In Final Legal Act, Bush Appeals Spy Ruling: Via Threat Level

With a mere 64 minutes left in its last full day in office, the Bush administration asked a federal judge to stay enforcement of a  ruling that would keep alive a lawsuit which tests whether the president can bypass the Congress and eavesdrop on Americans without warrants.

The request was lodged with U.S. District Judge Vaughn Walker of San Francisco at 10:56 p.m. EST on the Martin Luther King Jr. holiday -- about 13 hours before the inauguration of President Barack Obama. The filing was among now former President George W. Bush's final legal acts in office.

The Bush administration asked Walker's permission to appeal his Jan. 5 decision to the 9th U.S. Circuit Court of Appeals in San Francisco. Walker had ruled that "sufficient facts" exist that two U.S.-based lawyers for an Islamic charity might have been spied upon for the case to proceed to the next stage. [ Read more ... ]

Today's FISA ruling: a case study in 8 years of lying and ignorance - Via Salon: Glenn Greenwald:

(updated below - Update II - Update III - Update IV)

Ever since The New York Times, on December 16, 2005, first reported that President Bush ordered spying on Americans without the warrants required by FISA, the clear illegality that was unveiled -- FISA said that X was a felony and Bush admitted to doing X -- was continuously obscured by a combination of deceit on the part of Bush followers and ignorance, sloth and confusion on the part of the media.  Beginning within the first days of the controversy, Bush followers who literally had no idea what they were talking about offered factually false claims and even distorted quotations from the statute to justify what was done.  Today is a perfect example illustrating how completely misinformed and/or deliberately deceitful right-wing advocates inject blatant falsehoods into these debates.   [ Read more ... ]

Why Justice Lawyers Defied President Bush: Via Newsweek National News | Newsweek.com

Justice Department lawyers defied President Bush over secret surveillance—but not for the reasons you might think.

It is one of the darkly iconic scenes of the Bush Administration. In March 2004, two of the president's most senior advisers rushed to a Washington hospital room where they confronted a bedridden John Ashcroft. White House chief of staff Andy Card and counsel Alberto Gonzales pressured the attorney general to renew a massive domestic-spying program that would lapse in a matter of days. But others hurried to the hospital room, too. Ashcroft's deputy, James Comey, later joined by FBI Director Robert Mueller, stood over Ashcroft's bed to make sure the White House aides didn't coax their drugged and bleary colleague into signing something unwittingly. The attorney general, sick and pain-racked from a rare pancreatic disease, rose up from his bed, gathering what little strength he had, and firmly told the president's emissaries that he would not sign their papers.

White House hard-liners would make one more effort—getting the president to recertify the program on his own, relying on his powers as commander in chief. But in the end, with an election looming and the entire political leadership of the Justice Department poised to resign rather than carry out orders they thought to be illegal, Bush backed down. The rebels prevailed.

But that is only part of the story—because Bush, even though he made concessions to the rebels, kept other aspects of the program intact. [ Read more ... ]

Bush Data Threatens to Overload Archives: Via NYTimes.com

WASHINGTON — The National Archives has put into effect an emergency plan to handle electronic records from the Bush White House amid growing doubts about whether its new $144 million computer system can cope with the vast quantities of digital data it will receive when President Bush leaves office on Jan. 20.

The technical challenge was an inevitable result of the explosion in cybercommunications, which will make the electronic record of the Bush years about 50 times as large as that left by the Clinton White House in 2001, archives officials estimate. The collection will include top-secret e-mail tracing plans for the Iraq war as well as scenes from the likes of Barney Cam 2008, a White House video featuring the first pet.

Under federal law, the government has “complete ownership, possession and control” of presidential and vice-presidential records. The moment Mr. Bush leaves office, the National Archives becomes legally responsible for “the custody, control and preservation” of the records. [ Read more ... ]

White House Memo - After 8 Years, Bush and Cheney Let Differences Show: Via NYTimes.com

WASHINGTON — President Bush and Vice President Dick Cheney have been unusually talkative in recent weeks, sharing candid thoughts in a string of exit interviews. But after eight years of a tight partnership that gave Mr. Cheney powerful influence inside the White House, the two are sounding strikingly different notes as they leave office, especially on one of the most fundamental issues of their tenure: their aggressive response to the Sept. 11 terrorist attacks. [ Read more ... ]

Editorial - The World According to Cheney: Via NYTimes.com

Vice President Dick Cheney has a parting message for Americans: They should quit whining about all the things he and President Bush did to undermine the rule of law, erode the balance of powers between the White House and Congress, abuse prisoners and spy illegally on Americans. After all, he said, Franklin Roosevelt and Abraham Lincoln did worse than that.

So Mr. Cheney and Mr. Bush managed to stop short of repeating two of the most outrageous abuses of power in American history — Roosevelt’s decision to force Japanese-Americans into camps and Lincoln’s declaration of martial law to silence his critics? That’s not exactly a lofty standard of behavior.

Then again, it must be exhausting to rewrite history as much as Mr. Cheney has done in a series of exit interviews where he has made those comments. It seems as if everything went just great in the Bush years. [ Read more ... ]

In Courtroom Showdown, Bush Demands Amnesty for Spying Telecoms: Via Threat Level

SAN FRANCISCO - The Bush administration on Tuesday will try to convince a federal judge to let stand a law granting retroactive legal immunity to the nation's telecoms, which are accused of transmitting Americans' private communications to the National Security Agency without warrants.

At issue in the high-stakes showdown - set to begin at 10:00 a.m. PST - are the nearly four dozen lawsuits filed by civil liberties groups and class action attorneys against AT&T, Verizon, MCI, Sprint and other carriers who allegedly cooperated with the Bush administration's domestic surveillance program in the years following the Sept. 11 terror attacks. The lawsuits claim the cooperation violated federal wiretapping laws and the Constitution.

In July, as part of a wider domestic spying bill, Congress voted to kill the lawsuits and grant retroactive amnesty to any phone companies that helped with the surveillance; President-elect Barack Obama was among those who
votedfor the law in the Senate. On Tuesday, lawyers with the Electronic Frontier Foundation are set to urge the federal judge overseeing those lawsuits to reject immunity as unconstitutional. At stake, they say, is the very principle of the rule of law in America.

"I think it does set a very frightening precedent that it's okay for people to break the law because they can just have Congress bail them out later," says EFF legal director Cindy Cohn. "It's very troubling." [ Read more ... ]

Cyber-attack on Defense Department computers raises concerns: Via Los Angeles Times

The 'malware' strike, thought to be from inside Russia, hit combat zone computers and the U.S. Central Command overseeing Iraq and Afghanistan. The attack underscores concerns about computer warfare.

Reporting from Washington -- Senior military leaders took the exceptional step of briefing President Bush this week on a severe and widespread electronic attack on Defense Department computers that may have originated in Russia -- an incursion that posed unusual concern among commanders and raised potential implications for national security.

Defense officials would not describe the extent of damage inflicted on military networks. But they said that the attack struck hard at networks within U.S. Central Command, the headquarters that oversees U.S. involvement in Iraq and Afghanistan, and affected computers in combat zones. The attack also penetrated at least one highly protected classified network.

Military computers are regularly beset by outside hackers, computer viruses and worms. But defense officials said the most recent attack involved an intrusive piece of malicious software, or "malware," apparently designed specifically to target military networks.

"This one was significant; this one got our attention," said one defense official, speaking on condition of anonymity when discussing internal assessments. [ Read more ... ]

Editorial Observer - Democratic Pressure on Obama to Restore the Rule of Law - NYTimes.com: Via NYTimes.com

In a Senate hearing room in September, weeks before Barack Obama won the election, a series of law professors, lawyers and civil libertarians outlined one of the biggest challenges that will be facing the next president: bringing the United States government back under the rule of law.

Over the past eight years, they testified, American legal traditions have been degraded in areas ranging from domestic spying to government secrecy. The damage that has been done by President Bush, Vice President Dick Cheney, former Attorney General Alberto Gonzales and others is so grave that just assessing it will be an enormous task. Repairing it will be even more enormous.

This was not a new complaint. Civil liberties advocates have been sounding the alarm for years. The difference now is that a Democrat is about to assume the presidency, and one of the most ardent defenders of civil liberties in his party — Senator Russ Feingold of Wisconsin — is dedicated to putting the restoration of the rule of law on the agenda of the incoming government, with the support of the American Civil Liberties Union and other groups. [ Read more ... ]

CIA Can Hide Torture Allegations, Court Rules - Via Threat Level:

The CIA can hide statements from imprisoned suspected terrorists that the agency tortured them in its set of secret prisons, a federal judge ruled Wednesday,

Chief Judge Royce Lamberth of the Washington D.C. Circuit Court declined to review the government's assertions that the allegations of torture from men held in the CIA's black site prisons -- whether truthful or not -- would put the nation at risk of grave danger if allowed to be made public. 

"The Court, giving deference to the agency’s detailed, good-faith declaration, is disinclined to
second-guess the agency in its area of expertise through in camera review," Lamberth wrote (.pdf), referring to a procedure where a judge looks at evidence in his chamber without showing it to the opposing side. [ Read more ... ]

The Presidency & the Courts [Ashbrook Center & Federalist Soc.] - Via JURIST - Video Monitor:

Conference on the Presidency and the Courts with keynote address by President George W. Bush, Ashbrook Center for Public Affairs & Federalist Society, October 6, 2008. Microsoft Silverlight, 136 minutes. Watch recorded video.

(Read Original Article - Via JURIST - Video Monitor.)

EFF Sues NSA, President Bush, and Vice President Cheney to Stop Illegal Surveillance-UPDATED - Via EFF.org Updates:

The Electronic Frontier Foundation (EFF) filed a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance.

The lawsuit, Jewel v. NSA, is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. [ Read more ... ]

TELECONFERENCE TODAY at 1:30pm ET/10:30am PT: EFF Sues NSA, President Bush, and VP Cheney to Stop Illegal Surveillance - Via EFF.org Updates:

Toll-Free Dial-In for Reporters: 1-800-894-5910; title "EFF Call"

The Electronic Frontier Foundation (EFF) will file a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records.

The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance. [ Read more ... ]