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Monday, December 09, 2019 {{ new Date().getDay() }}

Stop The Official Lies By Revealing Secret Court Rulings

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.

“What we have found in the history of our country is that you can’t trust the executive,” Royce Lamberth, the presiding judge of the Foreign Intelligence Surveillance Court from 1995 to 2002, told the American Library Association in 2007.

“You can fight the war and lose everything if you have no civil liberties left when you get through fighting,” Lamberth said. “The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can’t be at all costs.”

By 2008, Congress had expanded the powers of the NSA under the PATRIOT Act and the Foreign Intelligence Surveillance Act — in secret. The five-year statute had to be renewed this spring. That brings us to our present impasse.

Congress says the provisions of the expanded surveillance laws are too secret to withstand public debate. At least eight senators, including Ron Wyden, an Oregon Democrat and long-standing Intelligence Committee member, clearly believe something is rotten in the state of surveillance. But they can’t say what. It’s too secret.

Wyden asked the director of national intelligence, James Clapper, at a hearing two months ago: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

“No, sir,” Clapper said. “Not wittingly.” That answer looks false.

You have to read between the lines of the congressional record to see where the problems in the laws may lie. My guess is that while the NSA conducts surveillance on foreigners overseas — that’s totally legal — it is in the process gathering intelligence on people in the U.S. without a warrant. That might be totally illegal. Let us see what the Foreign Intelligence Surveillance Court has to say about it.

Congress continues to enact laws in secret. President Barack Obama’s espionage chiefs are compelled to contort the truth in public. Federal courts seem incapable of handling secret intelligence issues in open trials. They have rejected lawsuits by the American Civil Liberties Union against Section 215 of the PATRIOT Act, saying the plaintiffs couldn’t prove they were spied on, and so had no standing to sue. Guess which venerable group is a customer of Verizon Business Network Services?

So we need to know what the secret judges think. The U.S. has the unique challenge of trying to run secret intelligence in an open democracy. It has to do so under the law.

(Tim Weiner, a former national security correspondent for The New York Times, is the author, most recently, of Enemies: A History of the FBI.)

Photo: Scott* via Flickr.com

James Comey Understands Power Of FBI And Saying ‘No’

James Comey is the grandson of an Irish cop. But it’s not the policeman in his DNA that makes him the right choice to run the Federal Bureau of Investigation. It’s his deep understanding of the power of secret intelligence.

Comey arrived as the No. 2 man at the Justice Department in December, 2003, a time of political and Constitutional crisis. President George W. Bush had ordered the FBI “to adopt a wartime mentality” after the Sept. 11 attacks, as Bush described it in his memoir. FBI Director Robert Mueller, who had taken office a week before the attacks, had done his best. Now the bureau was going beyond the law in the name of national security.

FBI agents were tracking thousands of telephones calls, emails and Internet addresses in the U.S. under the eavesdropping aegis of the National Security Agency. The highly secret programs were conducted under the code name Stellar Wind; Bush and Attorney General John Ashcroft had to reauthorize them every 45 days.

The number of people who knew the facts was exceedingly small. But Comey was among them.

Comey thought Stellar Wind violated the Constitution’s protections against warrantless searches and seizures. He convinced Mueller, who saw no evidence that the surveillances had saved a life, stopped an imminent attack or discovered an al Qaeda member in the U.S.

Now the two men had to confront the president in a showdown over secrecy and democracy.

On March 4, 2004, Comey told Ashcroft, his boss, that he couldn’t reauthorize Stellar Wind as it stood. Ashcroft agreed. That night, the attorney general was struck with a potentially fatal case of gallstone pancreatitis, sedated and set for surgery. Comey became the acting attorney general.

On March 10, Bush ordered White House chief of staff Andrew Card and White House counsel Alberto Gonzales to get Ashcroft’s signature for the reauthorization of Stellar Wind. Ashcroft was in intensive care after surgery, drifting in and out of consciousness. The president called and insisted on talking to Ashcroft on a matter of national security. His wife took the call. She wouldn’t hand over the phone.

Alerted by FBI agents guarding Ashcroft, Comey raced to the hospital. Card and Gonzales entered holding a manila envelope with the presidential authorization inside and demanded a signature. Ashcroft lifted his head off his pillow and denounced the program as illegal.

Then he sank down and said: “I’m not the attorney general. There is the attorney general.” And then he pointed at Comey — the leader of the rebellion against Stellar Wind and the chief law enforcement officer of the United States.

The president nevertheless signed the reauthorization alone on the morning of March 11. It explicitly asserted that his powers as commander in chief overrode all other laws of the land.

Mueller drafted a letter of resignation by hand: “I am forced to withdraw the FBI from participation in the program,” he wrote. “Further, should the president order the continuation of the FBI’s participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as Director of the FBI.”

The president and Mueller met the next day in the Oval Office. Mueller told Bush that he would resign if the FBI was ordered to continue warrantless searches on Americans without an order from the Department of Justice. The president pleaded ignorance of the law and the facts. Without doubt, he saw a political disaster at hand — if Mueller, Ashcroft and Comey resigned over a program both illegal and too secret to describe, Bush conceivably could be impeached.

“I had to make a big decision, and fast,” Bush wrote in his memoirs. “I thought about the Saturday Night Massacre in October, 1973” — when President Richard Nixon defied the Justice Department over his secret tapes, forced the attorney general and his deputy to resign, and destroyed his presidential power.

“That was not a historical crisis I was eager to replicate,” Bush wrote. “It wouldn’t give me much satisfaction to know I was right on the legal principles while my administration imploded and our key programs in the war on terror were exposed in the media.”

Bush promised to put the programs on a legal footing. This took years. But based on the president’s promise, Mueller and his allies backed down from their threats to resign. By the time the first facts were revealed in the New York Times, 20 months later, both Ashcroft and Comey had left the Bush administration.

Mueller has never discussed the confrontation in public. Comey has. He told a group at the National Security Agency what Mueller had heard at the White House: “If we don’t do this, people will die.”

“You can all supply your own ‘this,’” Comey said. “‘If we don’t collect this type of information,’ or ‘If we don’t use this technique,’ or ‘If we don’t extend this authority.’ It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for this.”

“It takes far more than a sharp legal mind to say ‘no’ when it matters most,” he said. “It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified ‘yes.’ It takes an understanding that, in the long run, intelligence under law is the only sustainable intelligence in this country.”

Comey stood before the train. There will be more coming down the track in years to come.

(Tim Weiner, a former reporter for the New York Times, has won the Pulitzer Prize and the National Book Award for writing on national security. He is the author, most recently, of Enemies: A History of the FBI, which recounts James Comey’s comments. The opinions expressed are his own.)

AP Photo/Evan Vucci, File

The Wall Street Bombing That Made Hoover And The FBI

Feb 13 (Bloomberg) — Shortly after noon on Thursday, Sept. 16, 1920, a powerful bomb hidden in a horse-drawn wagon exploded at the corner of Wall and Broad Streets in Manhattan. It was a pleasant late-summer day, and throngs of people had been out enjoying a lunchtime stroll, a brief respite from the great money machine, the center of American capitalism.

Now blood ran in the streets where the first U.S. Congress had convened and the Bill of Rights became law.

Shrapnel scarred the walls and shattered the windows of J.P. Morgan and Co., America’s most formidable bank. The bomb killed at least 38 people and injured roughly 400. It was the deadliest terrorist attack in U.S. history, a distinction it held for 75 years. Its force reverberates today.

In Washington at that hour, J. Edgar Hoover, 25 years old, was putting the finishing touches on the federal government’s first counterterrorist force, the General Intelligence Division. Hoover wrote that he intended to combat “not only the radical activities in the United States” but also those “of an international nature”; not only radical politics, but “economic and industrial disturbances” as well.

He said the government could not handle “the radical situation from a criminal prosecution standpoint.” The law was too weak a force to protect the country. He believed the U.S. needed a new weapon to fight communists, anarchists and the forces he later called “red fascism.” Only secret intelligence and countersubversion could detect and disrupt the threat from the left and protect America from attack.

Hoover had been fighting the threat since joining the Justice Department during World War I. His war never ended.

He had already led the biggest mass arrests ever seen in the U.S. In a nationwide sweep during the first weeks of 1920, his agents had jailed at least 6,000 suspected subversives. His men broke into political meetings, private homes, social clubs, dance halls, restaurants and saloons across the country, rarely bothering with search warrants. Hoover worked around the clock, answering the telephones and reading the telegrams as his squads checked in.

He had prepared a report to Congress claiming the raids had resulted in “the wrecking of the communist parties in this country” — a premature boast. By the time the courts got through with the detainees, roughly nine out of 10 were set free. Hoover had set out to remove the radical left from the American landscape, and he had fallen short.

The Wall Street attack in late summer followed a barrage of mail and suitcase bombs that had struck fear across America. Although not one of them killed its intended victims, the hit list was breathtaking: Supreme Court Justice Oliver Wendell Holmes, Attorney General A. Mitchell Palmer and Judge Kenesaw Mountain Landis, who had overseen more than 100 Espionage Act convictions. Five members of Congress were also marked for death, as were the secretary of labor, the mayor and police commissioner of New York City, and John D. Rockefeller and J.P. Morgan, the nation’s most powerful bankers.

Hoover came to suspect that a gang of Italian anarchists was responsible for both the targeted attacks and the Wall Street bombing. But he was never able to prove it. In 1921, after he had been promoted to the No. 2 job at the FBI, his new boss, William J. Burns, proclaimed that Vladimir Lenin and the Soviet Politburo had carried out the attacks. It was an empty charge.

By the time President Warren Harding died two years later, the FBI had fallen so far into corruption and ineptitude that the chief of the Criminal Division of the Justice Department argued it should be disbanded. President Calvin Coolidge’s new attorney general, Harlan Fiske Stone, found the bureau “in exceedingly bad odor,” and noted that many of its agents had criminal records and “engaged in many practices which are brutal and tyrannical in the extreme.”

In May 1924, Stone fired the FBI director and issued a statement whose power resounds to this day. “A secret police system may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly comprehended or understood,” Stone wrote. “The Bureau of Investigation is not concerned with political or other opinions of individuals. It is only concerned with their conduct and then only with such conduct as is forbidden by the laws of the United States. When a police system passes beyond these limits, it is dangerous to the proper administration of justice and to human liberty, which should be our first concern to cherish. Within them it should rightly be a terror to the wrongdoer.”

The next day, Stone summoned Hoover, not yet 30 years old, his hair slicked back, neck straining at his shirt collar, and told him he would become the FBI director on one condition: The bureau was out of the spy business. Hoover looked up to the 6- foot-4 Stone and said yes, sir.

Stone remained attorney general for nine months before ascending to the Supreme Court. Hoover lasted in his job for 48 years. In that time, he never lost faith that the fate of the nation lay with him and his work. And he never stopped spying.

With the terrible patience that became his trademark, Hoover methodically built his disreputable force into an American institution. Within a decade, it was famous as the nation’s foremost pillar of the law. In secret it became America’s most powerful intelligence service.

In August 1936, President Franklin D. Roosevelt invited Hoover to the White House to talk about the threats of fascism and communism. The director was mainly concerned about the Reds. He warned the president that communists were taking over the longshoremen’s union on the West Coast, that they had designs on the United Mine Workers union and the nation’s supply of coal, and that they had great sway over the Newspaper Guild. “I told him,” Hoover recorded, “that the communists planned to get control of these three groups and by doing so they would be able to paralyze the country.”

Hoover then told the president that the FBI needed the power to conduct secret intelligence operations. Nothing was put in writing, but without question Roosevelt gave Hoover an open- ended order to attack America’s enemies, foreign and domestic. Hoover cited that authority until the day he died. It remains in force today.

Today millions of Americans know Hoover only as a caricature: a tyrant in a tutu, a cross-dressing crank. But his secret intelligence files, newly opened, show how, in the darkest days of the Cold War, he spied directly on the leaders of the Soviet Union and China, sent detailed intelligence warnings of suicidal airborne attacks by Moscow against New York and Washington, and controlled a coup against a democratically elected foreign leader in the Caribbean.

Hoover was not a monster, but an American Machiavelli. Astute and cunning, in 55 years he never stopped watching his enemies, and he was a masterful manipulator of public opinion.

Walk to the corner of Wall and Broad Streets today, and you can run your hands over the deep gouges left by the 1920 bombing. You will have to look harder to see the cameras that track your steps — a 21st-century tribute to Hoover, the architect of the modern surveillance state. Every fingerprint on file, every byte of biographic and biometric data in the computer banks of the government, owes its origins to him.

Today, the bureau’s leaders are far more attuned to civil liberties and the rule of law. But as the instructors at the FBI academy told thousands of agents-in-training back in Hoover’s day, an institution is the lengthened shadow of one man. He has been dead 40 years, but he still shadows us.

(Tim Weiner, a former reporter for the New York Times, is the author of “Legacy of Ashes: The History of the CIA.” This article is adapted from his new book, “Enemies: A History of the FBI,” to be published Feb. 14 by Random House. The opinions expressed are his own.)

Copyright 2012 Bloomberg