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Tuesday, October 25, 2016

The U.S. has forsworn secret prisons. But we have reams of secret laws for our secret intelligence agencies, interpreted by a secret court that hands down secret rulings.

The time is ripe to declassify the rulings, enough to reassure us that the rule of law remains in the realm of government eavesdropping. Eight senators — Republicans and Democrats — introduced a bill this week to do just that. The Justice Department has broken promises since 2010 to publish the rulings, and the blame lies with Attorney General Eric Holder.

Publishing the rulings could explain the National Security Agency’s access to the email and telephone data of American citizens and corporations. It might calm fears about government surveillance. Or it might shock the conscience. Either way, we should read them to understand what the government is doing in the name of national security.

The alternative is more illegal leaks and official lies.

The rulings in question come from the Foreign Intelligence Surveillance Court. That panel of 11 federal judges, selected by the chief justice of the U.S., oversees warrants for electronic eavesdropping, bugging, wiretapping and, we now know, the collaboration of social-media and telecommunications giants who share metadata with the NSA.

We know that because Edward Snowden, a former contract worker for the NSA and the Central Intelligence Agency, leaked a top-secret April 25 ruling by the secret court. The ruling renewed the NSA’s authority to collect all the domestic-calling records of a business subsidiary of Verizon Communications Inc. under Section 215 of the PATRIOT Act.

Congress created the secret court in 1978 to curb the abuses of the NSA, the CIA and the Federal Bureau of Investigation, which had conducted wiretaps, bugging and break-ins without judicial warrants under presidents Lyndon Johnson and Richard Nixon. That conduct violated the Fourth Amendment’s ban on unwarranted and unreasonable searches and seizures.

A secret warrant is justified for surveillance against suspected spies and terrorists. The FBI and the NSA sought more than 18,000 such warrants in the years before the Sept. 11 attacks; the court usually said yes. It rejected or demanded revisions on those applications four or five times.

Then, George W. Bush’s administration played havoc with the law and the Constitution.

President Bush believed that the emergency created by the Sept. 11 attacks allowed the government to spy on anyone without a warrant. He was “free from the constraints of the Fourth Amendment” when it came to unleashing the NSA. The agency is a military-intelligence service — and “the Fourth Amendment would not apply to military operations the president ordered within the United States to deter and prevent acts of terrorism.”

Those are the words of a Justice Department opinion issued — in secret — after the attacks.

So the NSA went ahead without warrants — in secret — for 30 months until FBI Director Robert Mueller and his soon-to-be- appointed successor, James Comey, then the acting attorney general, confronted Bush over his unconstitutional conduct. One intelligence-court judge, James Robertson, later resigned in protest over the conduct of the NSA and the White House.

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  • Independent1

    Mr. Weiner – you have provided no evidence to support your assertion that the NSA is “collecting data” on hundreds of millions of Americans!! And that James Clapper lied when he said that the NSA wasn’t knowingly collecting it on millions of Americans – what information do you have that allows you to make what I consider a totally baseless accusation!! As far as I know the only evidence you have is that Verizon is providing NSA with call records – but I have seen NO EVIDENCE that the NSA is COLLECTING THAT DATA on anyone except people who are SUSPECTS of terrorist type activities; aside of course from the delusional notions of you and other paranoid posters on the National Memo. If you have factual evidence that the NSA is actually “collecting data” on Americans that are not suspect of possible terrorist activities – let’s here it with your sources of that evidence (no hearsay is acceptable).

    And are you aware that the Constitution and the Bill of Rights you referred to were both WRITTEN IN SECRET!!! Prompting Thomas Jefferson who was in Paris when these were written to say in a letter: “I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members.”

    And are you also aware that one of the biggest requirements for obtaining a security clearance (giving people a right to SECRET INFORMATION) is that the person requesting the clearance HAS TO HAVE A NEED TO KNOW. Tell me exactlyplease WHAT IS YOUR, MY OR ANY OTHER AMERICAN’S – NEED TO KNOW about what you appear to be up in arms about, the need to know by someone who is not actively involved in trying to protect our country from a terrorist attack??? My guess is that you would love to see huge billboards set up in all of America’s major cities – billboards that outline exactly all the steps and rules established that have been taken to try and prevent a terrorist attack – just so potential terrorists will know exactly what they’re dealing with so when they plan an attack they can do it in such a way as to make their attack as successful as possible in killing the most Americans.

    • Bill Thompson

      Well said but dose this square with the 4th Amendment ? I am not a lawyer but I don’t think so. Lets let the republican dominated Supreme Court decide. After all I think we still have this thing called a CONSTITUTION !!

      • Independent1

        Bill, the key words to me in the 4th Amendment are: “against unreasonable searches and seizures”. Personnaly, I do not consider our government “scanning” phone calls and possibly other communication media, in an effort to protect the nation from a terrorist attack, “unreasonable”. I consider that action “a necessity” to prevent undue harm to the nation. And with 2.4 billion private phone calls/day, and countless other methods of correspondence that needs monitoring – there is absoluely nothing else that NSA can be doing – other than SCANNING.

        • David L. Allison

          Your personal opinion, or as you state; what you “consider”, does not constiture a valid waiver of the fourth amendment. The Patriot Act is allowing the gathering of information on U.S. citizens without cause. The fact that the government has a “sort” program does not undo the violation of the clear meaning of the fourth amendment.
          No one would argue the absolute certainty that you espouse is not firm and resolute as is your commitment to giving government agencies all the power they want to root out the “bad guys”. Unfortunately, your conviction and insistence and “certainty” does not trump the constitution of the United States of America. That was the message of the resigning judge and he is quite right.

          • Independent1

            What nonsense! “allowing the gathering of information on U.S. citizens without cause.” So I guess we should disband all police departments in our cities and towns and outlaw police from cruising around our cities and state highways in an effort to prevent crimes and otherwise keep people from breaking the law – because their presence is OBVIOUSLY WITHOUT CAUSE and is interfering with our privacy (we obviously can’t be ourselves and do all the corrupt things we want to do because these idiots are around trying to protect us). Sorry, but each of your posts in response to me are just that – nonsense! Sorry, I’m not buying any of it! (And by the way, I use caps for EMPHASIS, not to be yelling. If you don’t like my caps – stop reading my posts.)

          • David L. Allison

            Internet courtesy rules say that use of caps is yelling. You don’t get to make up your own rules any more than you get to make up what the fourth amendment means just because you don’t like terrorists.

            Your comparison between federal police officials ripping off phone records and internet communications is far different from your story about a police officer driving around watching the public conduct of citizens. That comparison is an example of the logical error called “false equivalency”.

            When a person is out in the open, the actions of the person are “in plain view”, constitute a recognized exception to the fourth amendment protections an do not have a reasonable expectation of privacy. Even then, if the officer has the opportunity, she is supposed to get a search warrant prior to seizing the person or his or her property.

            When a person is communicating confidentially by phone or internet, there is, in fact, an expectation of privacy, it is protected by the fourth amendment and it is not to be invaded (taken into custody) without a search warrant.
            Reject all you want of my comments, you still are faced with facts that you don’t like and like a lot of crazies referring to Global Warning, just deny reality. The Patriot Act is wrong. The seizures were wrong and the leaker did the best possible thing for the U.S.A. citizens.

      • David L. Allison

        It is my personal opinion that Mr (so-called) Independent1’s screed was not ‘well said’ at all but your comment on the Constitution is spot on.

    • Robert P. Robertson

      Independent1, I wish I can give you a hundred likes on this one, man. You blew it out of the water, my friend! . . And, ofcourse you know, he will not answer.

      • Bill Thompson

        Robert I am not sure if the he was meant to refer to me. I was simply stating My concerns about the 4th Amendment. As a person who’s family is in law enforcement of one kind or the outer I do know they would like to see the 4th Amendment just go away. Why ? Their job would be so much more affective. If you have nothing to hide why should there be a problem? For me the problem is this. The Constitution and the rulings of the Supreme Court are always in flux like a ratchet on a frozen bolt the Handel moves Easley in one direction but very hard to move back. We should tread slowly when it comes to our liberties. I hope this helped to clarify my point I don’t view my opinion as some kind of competition but just my point of view.Respectfully Bill

        • Robert P. Robertson

          No, sir, Bill, I wasn’t responding to what you said in response to Independent1. My response was from the sheer lucidity of what independent1 had said. It was simply brilliant. I’m not a lawyer but I am a life long student of law, especially the Constitution. I agree with you, that we should tread carefully here, because someone like a Paul Ryan or Rand Paul could come along and abuse it, and just as you’ve said, once its out there, it’ll be hell pulling it back in. However, there are checks and balances in everything, and if a person is doing nothing wrong or is not within a terrorist network, what’s to worry about? It’s a necessary evil. Under Bush/Cheney, the NSA was actually listening into random phone lines and computers. Hell, when I went on a campaign about Bush/Cheney/Republicunts in 2006, my computer warned me several times about bugs scanning my information and I got hit twice by Trojan viruses. Under BushSr, I criticized him so soundly, Republicunts sic’ed the IRS on me and had me battling the IRS from 1989 to 1997 when our battle was resolved. I know how insidious Republicunts can be, but in this case, I don’t mind a little scanning for the sake of National Security and the safety of Americans.

    • Robert P. Robertson

      Independent1, I especially love what you said about Jefferson. Many people don’t realize that Jefferson wrote a broad and damning denunciation about the institution of slavery in the Declaration of Independence. And just as you so eloquently put it, it was secretly omitted without their input when Jefferson (and Benjamin Franklin) were visiting Europe. . . Beautiful post, Independent1.

    • David L. Allison

      Mr. (not-quite) Indendent1:
      We are proud that you, like the rest of us, really, really do not like terrorists and that you really, really, like secrets being kept by the military/intelligence/lobbying/corporate complex from United States Citizens. But your statements (mostly opinions, assumptions and rhetoric) in opposition to this news article and analysis, are wrong.
      It does appear that you are upset here about the same things about which the “intelligence” committee is upset. The information leaked about the Prism program instituted under Bush and Cheney and expanded in interpretation by Bush and Cheney, does in fact demonstrate (“prove” if you wish) that NSA operatives have been collecting data and information on US citizens as it is impossible to sort through data without holding it somewhere for some indeterminate period of time and the “intelligence” officials have admitted conducting such sorting. The same officials lied, based on the leaked documents when they told Congress, the part of the separation of powers that is supposed to provide oversight to Administration actions, that information that Americans expected to be held confidential from government intrusion in their private communications were not being intruded upon. That Mr. (not so) independent constitutes a lie for right wing, left wing, pacifist and war monger alike.

      Using capital letters, like yelling in a debate, not only irritates the reader but shows exactly where you are most insecure in your statements and rhetoric. The “need to know” provision is a part of law and regulation. Law anhend regulation does not trump the Constitution. Citizens are not asking for access to secret information anyway. They are asking for matters to no longer be kept secret from the American public unless the government agencies demonstrate a “need to be kept secret” to the public.
      By the way, the secrecy of the action by the constitutional convention was wrong and the fact that the convention held a secret meeting to maintain slavery which informed Americans have found to be outrageous and unacceptable is a demonstration of the damage that can be done by government, even nacent government, agencies by acting in secret. Your point demonstrates the paucity of your rhetoric.
      One last thing, You should avoid making assumptions about what those who oppose your arrogant opinions want or would like as you may be wrong and you may be terribly wrong and I’m sure you would never want to be seen by your readers as terribly wrong.

      • Robert P. Robertson

        David, do you know that you are being surveyed each time you walk out of your door, get in your car, drive to work or to the market, surveyed all through the market, and up to the time you are back at home? Your image is being captured by multiple media without your knowing it even while you’re looking at the media that you know is looking at you. When you make an on-line purchase at, say, ebay, and provide your phone number, address, and email address to them, and all of a sudden you get phone calls from businesses you knew nothing about previously, and a volume of junk mail from companies and even scam artists on your computer or laptop. Is any of this an invasion of your 4th amendment rights to privacy and/or unreasonable searches and seizures without reasonable cause?

        • David L. Allison

          Robert: None of those things that you reference are a violation of the fourth amendment unless they take place where first, we have a reasonable expectation of privacy like in our home or on our telephone or internet lines _and_ they are undertaken by on on behalf of an agency of government at any level.

          we can stop a lot of that invasion of our privacy with lawsuits and use of privacy software on our computers.

          • Robert P. Robertson

            Yet, you reference the 4th Amendment in terms of National Security and privacy of citizens when the 4th Amendment has nothing to do with either. The 4th Amendment (to the 8th) is a judicial correction or explanation of Article 3 of the original Bill of Rights. They deal with crime and judicial authority, not National Security. Our rights to privacy is being invaded by industries and corporations and political lobbies and we don’t have any idea about it, yet we violate our own civil rights when we install cameras around our properties, in our homes, and place security bars around us to protect ourselves from invasions of our own privacy and civil rights. It has nothing to do with National Security, though. So, where’s the complaint?

          • David L. Allison

            Sorry Robert but your comment makes no sense. Let me try again:

            The fourth amendment provides that If a government agency or someone acting on behalf of any government agency wants to enter your property or seize your person or property, they must get a search warrant or an arrest warrant. Your private communications are your property in which you have an expectation of privacy from the government intrusion.

            If a private person or group enters your property without your permission or seizes you or your property without your authority, you can sue them or, sometimes, shoot them or you can have them arrested but that is only a part of the criminal and civil law.,

          • Robert P. Robertson

            Look, David, if you would like to have a civil discourse about this, we can. If you want to stoop to idiot name calling, we can go there too. I’m not going to play any sorry games with you. I don’t get paid for this, and I certainly will not receive any diplomas or certificates for it either. The 4th Amendment is a “judicial” amendment, not one of National Security. Amendments 4 thru 8 deals primarily with judicial powers. Read it for what it says without putting what you or anyone else thinks into it. You’re leaning on your own understanding about this, and it is misguided. You mentioned to Independent1 that the Constitution trumps National Security and you were wrong. National defense trumps the Constitution as it is stated in the original Articles of the Bill of Rights. Article 1: Section 8, Subsection 1 speaks to the “common defense and general welfare of the United States”, not just homes, property, or the rights of citizens. It speaks of National Security.
            National Security has priority above all affairs in the United States. The very oath of office in the presidency says it: “I do solemnly swear that I will faithfully execute the office of the Presidency of the United States, and will to the best of my ability preserve, protect, and defend the Constitution of the United States.” National defense is mandatory, the very function of government, which Article 4: Section 4, Subsection 4 entails: The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasdion; and on application of the legistlature, or of the Executive (when the Legislature cannot be convened) against domestic violence. This is speaking of National Security. It has priority over everything in the united States, and it is the job of the NSA, CIA, and all of the rest of the agencies of Homeland security, the people we pay from our tax dollars, to protect the United States. As it reads, Amendment 4 has nothing to do with National Security but everything to do with our rights to life, liberty, and the pursuit of happiness, our rights to personal privacy to not be unduly harassed by anyone.
            The Patriot Act under Bush/Cheney violated every one of those. It deliberately listened into private phone conversations, read e-mails and personal information, checked mailed, and secretly investigated regular citizens. Many Americans protested it, and I was one of them, but there was nothing no one could do about it unless it was proved that it harmed or adversely affected you as a private citizen. President Obama himself, as a Senator, voiced concerns about it, but what good did it do? Now, as president, he is an advocate of it because he understands as president, his primary power is to “preserve, protect, and defend the Constitution of the United States.” However, he has drawn the line at actively doing what Bush/Cheney did. I have yet to see where “the government” has seized anyone’s property or burglarized anyone’s home to find out what is on your grocery or “things to do list”. We’re are tasking our importance a bit far. If you are not a terrorist, a criminal enterprise, a domestic terrorist, serial murderer or pervert actively engaging and planning an attack on the government or to violate a citizen’s civil and human rights, what do we have to worry about? My only concern about this is it getting into the power of an irresponsible individual who would do some jack-boot stuff as invading your home without a warrant or just cause. As long as there are checks and balances available to prevent that, I don’t care if my contacts are scanned because I am not a terrorist or criminal.

          • David L. Allison

            Your interesting analysis just doesn’t comport with my understanding of the constitution. I successfully practiced law, focusing on search and seizure issues on and off for about 40 years. Neither professors nor practitioners of the law ever proposed your analysis. That is why I have spent so much time raising questions about your analysis. Every effort I have seen to place a priority of one of the amendments in the Bill of Rights over others has been a failure. There is no construction that IU have seen or read of a priority that would place National Security ahead of the protections of individuals against the government as guaranteed under the Bill of Rights.
            Regardless of my opinion, I encourage you to continue your advocacy and study of the Constitution. Too few people who raise constitutional issues delve as deeply into it as you do.

          • Robert P. Robertson

            Thank you for your answer, David. Years ago, I wrestled with the Constitution trying to understand it. The founding fathers were wise men, especially Jefferson and Franklin, who saw far ahead of just nation building. Once I began to study their wording, the Constitution hit me like a ton of bricks. I understand it completely now, and there’s no ambiguity about it. You know, National security “is” the protection of the people. The separation of powers are in place to prevent a despot from emerging and abusing it. Just think of how far Bush/Cheney would have went had the people not spoke out as forceful as they did. I’m sure, as you’ve mentioned, if this goes too far, we will be hearing a lot of lawsuits coming out of it. . . Anyway, I appreciate your response. thanks.