Obama Administration: New State Secrets Rules = Really, You Can Trust Us

from the uh... dept

So, we keep seeing more of what the promised "transparency" of the Obama administration means in real terms. Despite campaigning against warrantless wiretapping, the administration has come out with new rules for how it will use the "state secrets" privilege that amount to "no, really, we'll only use it when we need to... just trust us" and continued to insist that evidence over warrantless wiretapping should be tossed out for state secrets reasons. And it's left up to a former comedian, now politician to remind the Justice Department of the Fourth Amendment? The "just trust us, we won't abuse the system" justification isn't particularly comforting, especially when that clause is being used to cover up what is almost certainly illegal activity by the federal government.

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Domestic Wiretapping Programs Should Not Be Secret

from the oversight-needed dept

A whistle-blower reports that an unnamed wireless carrier has provided a government facility in Quantico, VA, with unfiltered access to its core network. The whistle-blower says this gives the government direct access to private information such as text messaging and call records. He doesn't name either the company or the government agency involved. But a 2006 lawsuit featuring similar allegations named Verizon Wireless as the culprit. And Threat Level says that Quantico, VA, just happens to be "the center of the FBI's electronic surveillance operations." When asked about this, a Verizon Wireless spokesman wrote "What you're talking about sounds as if it would be classified and involving national security, so I wouldn't be able to find out the facts."

The idea that ordinary domestic surveillance activities are a matter of national security, and therefore immune from public scrutiny, is both wrong-headed and malicious. I guess the idea is that we don't want to tip off the terrorists about our surveillance programs. And obviously, information about specific targets needs to be kept secret. But the terrorists have to already know that most communications channels can be intercepted. Moreover, it's just not reasonable to expect that the broad details of our government's domestic surveillance activities will remain a secret indefinitely. Despite the secrecy, we're gradually learning about the scope of these programs. If terrorists didn't know their calls were being tapped five years ago, they certainly do now.

The problem is that because details about these programs (and information about abuses) dribble out slowly over several years, Congress never has the opportunity to conduct meaningful oversight of them. For example, this week we also found out that abuse of national security letters, which was previously only reported to have occurred from 2003 to 2005, continued into 2006. Of course, the administration says they've fixed the problem and that no more NSL abuses will occur. But that's what they always say when privacy abuses are uncovered, yet new examples keep popping up. The only way the abuses will stop is if Congress rejects the idea that domestic surveillance is immune from judicial and Congressional surveillance. The Bush administration needs to disclose the exact scope of its domestic surveillance activities so that Congress can have an open, public debate about the proper scope of government spying powers.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Senate Approves Intelligence Reform And, With It, Telecom Amnesty

from the oversight-is-for-your-phone-calls dept

The Senate has just approved controversial legislation reforming the Foreign Intelligence Surveillance Act, by a vote of 68–29. The bill, sponsored by Sens. Kit Bond (R-MO) and Jay Rockefeller (D-WV), empowers the Director of National Intelligence and the Attorney General to authorize warrantless surveillance of foreign parties whose communications pass through U.S. switches, even when they are communicating with Americans. It also grants retroactive amnesty to telecom firms alleged to have illegally provided the government with access to their customers' data without a court order -- a provision some Democrats tried and failed to have stripped from the legislation earlier today.

Several other amendments that would have provided additional checks on surveillance also failed in the Senate, including language reasserting FISA's status as the "exclusive means" by which intelligence surveillance may be conducted, a provision barring indiscriminate "bulk collection" of telecom traffic, and a compromise measure that would have allowed civil suits against the telecoms to continue, but substituted the federal government as the defendant. The one victory for civil libertarians was the approval of an amendment offered by Sen. Sheldon Whitehouse (D-RI) permitting the secret FISA court to review intelligence agencies' compliance with "minimization" rules meant to limit the retention of communications involving innocent Americans. Following a vote to invoke cloture, bringing debate on the bill to a halt and foreclosing any attempt to mount a filibuster, Sens. Patrick Leahy (D-VT), Maria Cantwell (D-WA), Chris Dodd (D-CT) and Russ Feingold (D-WI) delivered impassioned speeches condemning the legislation as an affront to both privacy and the rule of law.

The Senate bill must now be reconciled in conference with the House version, known as the RESTORE Act, which lacks the controversial immunity provision and provides for greater judicial oversight of surveillance. Majority Leader Harry Reid (D-NV) is seeking to further extend the stopgap Protect America Act, which this reform bill is meant to supplant, in order to provide time to reach agreement between the two chambers.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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