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stevenleser
stevenleser's Journal
stevenleser's Journal
June 10, 2013
What is the Truth and Full Story about the NSA Surveillance scandal that isn’t being reported anywhere else?
Well, in case you haven’t heard, a June 5th article by Glenn Greenwald in the UK Guardian purports to break the story on an NSA Surveillance scandal that per a FISA court warrant, Verizon is providing the NSA the metadata calling records of all of its customers to include originating number, destination number and date and time of the call. Not the actual calls themselves, just the metadata information about the calls.
Immediately you had a blowup of outrage in the media and the blogosphere that this was some kind of new and horrible thing against our privacy and fourth amendment rights by President Obama. Another take was that he had gone back on his promise to make a change on this from the Bush administration.
One of the problems with this so called scandal is that the reporting by Greenwald was woefully incomplete as to the history of this kind of surveillance and I am not just talking about the Bush administration aspect of it. Greenwald’s omissions in this latest article extend to his own prior coverage of NSA surveillance and to administrations before George W. Bush. Greenwald provided less than 15% of the facts that the public needs to be fully informed about what is going on here.
To really understand what this is about and whether the Obama administration did anything wrong in this situation, you have to start at the beginning. I mark the beginning as May 18, 1977, the day Ted Kennedy submitted the FISA bill to the Senate. The FISA bill, also known as the Foreign Intelligence Surveillance Act is describe in Wikipedia as prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" which may include American citizens and permanent residents suspected of espionage or terrorism. In practice, it sets up secret courts through which intelligence agencies can obtain warrants for surveillance of individuals and groups suspected of engaging in any kind of espionage and foreign sponsored or connected terrorist activities harmful to US National Security.
Six Democrats and three Republicans cosponsored the bill and it was signed into law by President Jimmy Carter October 25th, 1978.
Hearing about FISA in a vacuum without any other information would probably cause most people to believe that FISA has the strong potential to violate the fourth amendment protections against unreasonable search and seizure. In fact, FISA was created to strengthen the fourth amendment and I will explain how.
FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:
The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.
Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.
Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.
So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.
Now, let’s fast forward to the administration of George W. Bush.
After 9/11 President George W. Bush issued an executive order directing the NSA to start conducting wiretaps and other surveillance without a warrant via FISA or otherwise.
Many of us objected to the Bush administrations warrantless wiretapping program throughout Bush’s time in office. I wrote a number of articles attacking the practice including one in October of 2007 were I called for the Bush administration to go back to using FISA courts and suggested that the NSA, FBI and CIA should push back on any requests to perform surveillance without a FISA warrant.
Bush claimed that he had wartime powers to conduct warrantless wiretapping, but on March 31, 2010 a Federal Appeals court ruled NSA's warrantless wiretapping of an Islamic charity's lawyers in 2004 was illegal because it violated FISA and awarded that charity $2.5 million dollars in damages plus attorney’s fees. If you want to look it up, you will ironically note that the name of the case is Al-Haramain Islamic Foundation v. Obama because even though the warrantless surveillance took place in 2004, by the time the appeal came, Bush was no longer in office.
Speaking of which:
When campaigning for President in 2008, then senator Obama vigorously attacked President Bush’s warrantless wiretapping program and vowed to stop the practice. That is exactly what he did. President Obama returned to the policies before President Bush of using the Ted Kennedy and Jimmy Carter FISA law to obtain warrants wherever this kind of surveillance would be performed.
The other important part of history is that since the September 11, 2001 attacks, the kinds of wide-reaching surveillances of phone records, email and internet postings noted by Greenwald in his article of a few days ago has been constantly going on. This is not new. It has been reported on periodically including an article by Greenwald himself back in October of 2009. Greenwald penned an October 6, 2009 article in Salon titled “The joint Post/Obama defense of the Patriot Act and FISA: where he talks about the Obama administration’s use of FISA warrants that may or may not have led to the dismantling of a significant terrorist plot to bomb the New York City Subways.
There is an October 18 2007 article in NPR by Eric Weiner titled “The Foreign Service Intelligence Act: A Primer” that discusses the Bush administration’s desire not to have to get a FISA warrant to get wiretaps. A May 11 2006 USA Today article by Leslie Cauley is titled “The NSA has a massive database of Americans’ phone calls” and it talks about how what Greenwald reported a few days ago as some sort of revelation has been going on for twelve years.
My point by noting these articles, and there are hundreds, perhaps thousands more where they came from steadily since the end of 2001, is that this is not new stuff. It shouldn’t shock anyone. Journalists and pundits to include Greenwald himself shouldn’t be presenting what Greenwald wrote as new or shocking.
I’m really disappointed at my fellow journalists and pundits in general with the coverage of this story. When you understand the history of when and why FISA came into being and when you understand appeals court rulings regarding Presidential powers with regards to surveillance aimed at foreign directed entities and terrorist groups. When you understand those things and you combine them with the history since 9/11 of the Bush administration attempt to ignore FISA and wiretap without a warrant, a practice that the Obama administration has completely renounced, I think you are left with only one possible conclusion.
President Obama did nothing wrong and there is no scandal here, at least not in terms of the administration. The reporting of this issue by Greenwald and other journalists and pundits, well there you might have a scandal. The history and context matters and not providing those things in this situation completely alters the meaning of the story and is a veritable journalistic crime. Greenwald should be ashamed of himself, and many other journalists and pundits out there should also feel ashamed of themselves.
We can have a good national conversation about whether FISA should still be the law of the land. Understand though that if we repeal it and don’t replace it with anything, existing legal decisions and judicial review would mean that once again warrantless wiretapping ultimately aimed at foreign groups and terrorist organizations would be legal. Ted Kennedy and Jimmy Carter knew what they were doing when they created and passed FISA. Any law can be improved and FISA is no exception, but FISA is a big improvement compared to the situation before it was passed in 1978 and it is a big improvement over the Bush administration’s attempts to go back to warrantless wiretapping.
There is another point that I think we should note. The FISA warrant in question discussed in Greenwald’s article allows the NSA to collect phone records for three months, from April 25th until July 19th. I’m surprised no one has made the obvious correlation to how close the start date is to the Boston Marathon bombings which occurred in April 15th just ten days before. I’m making an educated guess here so you all can determine how much you think this makes sense to you, but it seems likely to me that in the wake of the Boston bombing, someone in the justice department asked the NSA to gather this information with the intent of finding patterns of telephone chatter between as yet undiscovered terrorist cells here in the US who might be discussing the bombing. The timing seems too close to be coincidence.
If true, it needs to be pointed out that Greenwald’s article certainly disrupted that effort.
Getting back to the Obama administration, I can envision what happened when President Obama took office in 2009. I’m sure there was a discussion with white house counsel and the Attorney General where national security surveillance was brought up and the President probably asked a question along the lines of “OK, we want to be better than the Bush administration was on this. We certainly don’t want to wiretap without a warrant. What is the constitutionally accepted remedy that respects the fourth amendment.” And the answer from any lawyer familiar with the law and the history of this issue would say the remedy is to go back to the law that Ted Kennedy and Jimmy Carter enacted to provide oversight over these kinds of activities. Go back to getting FISA warrants for them. In fact when Ted Kennedy died, the American Civil Liberties Union put out a glowing press release about him, saying:
In this same press release honoring Kennedy, among the legislative accomplishments the ACLU praised from Senator Kennedy as protecting Civil Liberties was FISA. It’s therefore also disappointing to note that the ACLU is getting after President Obama for using… wait for it… yes, FISA.
Folks over at the ACLU, I love you guys, but you made a mistake here. It’s OK, you rarely make mistakes, you’re entitled to a few, this is definitely one of them and you are in good company. Most of the folks that consider themselves civil libertarians missed it on this one and failed to take into account the history and judicial decisions and review that frame this issue.
As the beginning of this segment I accused the coverage of this issue by my fellow journalists and pundits as woefully incomplete and I promised to give you all the full story and that once you heard it, you would think differently about this issue. Now that you have heard what I had to say, I hope you agree and I hope you all think I kept that promise. Feel free to let me know. Write to me at makingsenseletters@yahoo.com and tell me what you think of this issue and my coverage of it.
-----------------------------------------
Full show with audio at: http://www.blogtalkradio.com/lesersense/2013/06/09/making-sense-with-steve-leser--nsa-spying-war-on-women
xPost from BOG: Transcript of the NSA Surveillance Portion of my 6/9-10/13 show
http://steveleser.blogspot.com/2013/06/transcript-of-nsa-surveillance-portion.htmlWhat is the Truth and Full Story about the NSA Surveillance scandal that isn’t being reported anywhere else?
Well, in case you haven’t heard, a June 5th article by Glenn Greenwald in the UK Guardian purports to break the story on an NSA Surveillance scandal that per a FISA court warrant, Verizon is providing the NSA the metadata calling records of all of its customers to include originating number, destination number and date and time of the call. Not the actual calls themselves, just the metadata information about the calls.
Immediately you had a blowup of outrage in the media and the blogosphere that this was some kind of new and horrible thing against our privacy and fourth amendment rights by President Obama. Another take was that he had gone back on his promise to make a change on this from the Bush administration.
One of the problems with this so called scandal is that the reporting by Greenwald was woefully incomplete as to the history of this kind of surveillance and I am not just talking about the Bush administration aspect of it. Greenwald’s omissions in this latest article extend to his own prior coverage of NSA surveillance and to administrations before George W. Bush. Greenwald provided less than 15% of the facts that the public needs to be fully informed about what is going on here.
To really understand what this is about and whether the Obama administration did anything wrong in this situation, you have to start at the beginning. I mark the beginning as May 18, 1977, the day Ted Kennedy submitted the FISA bill to the Senate. The FISA bill, also known as the Foreign Intelligence Surveillance Act is describe in Wikipedia as prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" which may include American citizens and permanent residents suspected of espionage or terrorism. In practice, it sets up secret courts through which intelligence agencies can obtain warrants for surveillance of individuals and groups suspected of engaging in any kind of espionage and foreign sponsored or connected terrorist activities harmful to US National Security.
Six Democrats and three Republicans cosponsored the bill and it was signed into law by President Jimmy Carter October 25th, 1978.
Hearing about FISA in a vacuum without any other information would probably cause most people to believe that FISA has the strong potential to violate the fourth amendment protections against unreasonable search and seizure. In fact, FISA was created to strengthen the fourth amendment and I will explain how.
FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:
Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.
Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.
Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.
So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.
Now, let’s fast forward to the administration of George W. Bush.
After 9/11 President George W. Bush issued an executive order directing the NSA to start conducting wiretaps and other surveillance without a warrant via FISA or otherwise.
Many of us objected to the Bush administrations warrantless wiretapping program throughout Bush’s time in office. I wrote a number of articles attacking the practice including one in October of 2007 were I called for the Bush administration to go back to using FISA courts and suggested that the NSA, FBI and CIA should push back on any requests to perform surveillance without a FISA warrant.
Bush claimed that he had wartime powers to conduct warrantless wiretapping, but on March 31, 2010 a Federal Appeals court ruled NSA's warrantless wiretapping of an Islamic charity's lawyers in 2004 was illegal because it violated FISA and awarded that charity $2.5 million dollars in damages plus attorney’s fees. If you want to look it up, you will ironically note that the name of the case is Al-Haramain Islamic Foundation v. Obama because even though the warrantless surveillance took place in 2004, by the time the appeal came, Bush was no longer in office.
Speaking of which:
When campaigning for President in 2008, then senator Obama vigorously attacked President Bush’s warrantless wiretapping program and vowed to stop the practice. That is exactly what he did. President Obama returned to the policies before President Bush of using the Ted Kennedy and Jimmy Carter FISA law to obtain warrants wherever this kind of surveillance would be performed.
The other important part of history is that since the September 11, 2001 attacks, the kinds of wide-reaching surveillances of phone records, email and internet postings noted by Greenwald in his article of a few days ago has been constantly going on. This is not new. It has been reported on periodically including an article by Greenwald himself back in October of 2009. Greenwald penned an October 6, 2009 article in Salon titled “The joint Post/Obama defense of the Patriot Act and FISA: where he talks about the Obama administration’s use of FISA warrants that may or may not have led to the dismantling of a significant terrorist plot to bomb the New York City Subways.
There is an October 18 2007 article in NPR by Eric Weiner titled “The Foreign Service Intelligence Act: A Primer” that discusses the Bush administration’s desire not to have to get a FISA warrant to get wiretaps. A May 11 2006 USA Today article by Leslie Cauley is titled “The NSA has a massive database of Americans’ phone calls” and it talks about how what Greenwald reported a few days ago as some sort of revelation has been going on for twelve years.
My point by noting these articles, and there are hundreds, perhaps thousands more where they came from steadily since the end of 2001, is that this is not new stuff. It shouldn’t shock anyone. Journalists and pundits to include Greenwald himself shouldn’t be presenting what Greenwald wrote as new or shocking.
I’m really disappointed at my fellow journalists and pundits in general with the coverage of this story. When you understand the history of when and why FISA came into being and when you understand appeals court rulings regarding Presidential powers with regards to surveillance aimed at foreign directed entities and terrorist groups. When you understand those things and you combine them with the history since 9/11 of the Bush administration attempt to ignore FISA and wiretap without a warrant, a practice that the Obama administration has completely renounced, I think you are left with only one possible conclusion.
President Obama did nothing wrong and there is no scandal here, at least not in terms of the administration. The reporting of this issue by Greenwald and other journalists and pundits, well there you might have a scandal. The history and context matters and not providing those things in this situation completely alters the meaning of the story and is a veritable journalistic crime. Greenwald should be ashamed of himself, and many other journalists and pundits out there should also feel ashamed of themselves.
We can have a good national conversation about whether FISA should still be the law of the land. Understand though that if we repeal it and don’t replace it with anything, existing legal decisions and judicial review would mean that once again warrantless wiretapping ultimately aimed at foreign groups and terrorist organizations would be legal. Ted Kennedy and Jimmy Carter knew what they were doing when they created and passed FISA. Any law can be improved and FISA is no exception, but FISA is a big improvement compared to the situation before it was passed in 1978 and it is a big improvement over the Bush administration’s attempts to go back to warrantless wiretapping.
There is another point that I think we should note. The FISA warrant in question discussed in Greenwald’s article allows the NSA to collect phone records for three months, from April 25th until July 19th. I’m surprised no one has made the obvious correlation to how close the start date is to the Boston Marathon bombings which occurred in April 15th just ten days before. I’m making an educated guess here so you all can determine how much you think this makes sense to you, but it seems likely to me that in the wake of the Boston bombing, someone in the justice department asked the NSA to gather this information with the intent of finding patterns of telephone chatter between as yet undiscovered terrorist cells here in the US who might be discussing the bombing. The timing seems too close to be coincidence.
If true, it needs to be pointed out that Greenwald’s article certainly disrupted that effort.
Getting back to the Obama administration, I can envision what happened when President Obama took office in 2009. I’m sure there was a discussion with white house counsel and the Attorney General where national security surveillance was brought up and the President probably asked a question along the lines of “OK, we want to be better than the Bush administration was on this. We certainly don’t want to wiretap without a warrant. What is the constitutionally accepted remedy that respects the fourth amendment.” And the answer from any lawyer familiar with the law and the history of this issue would say the remedy is to go back to the law that Ted Kennedy and Jimmy Carter enacted to provide oversight over these kinds of activities. Go back to getting FISA warrants for them. In fact when Ted Kennedy died, the American Civil Liberties Union put out a glowing press release about him, saying:
The civil rights community lost one of its giants today. Senator Kennedy’s lifelong commitment to racial justice and the rule of law has been an inspiration to the ACLU and Americans everywhere,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “On a personal level, we will miss his wise counsel and encouragement in the ongoing struggle to preserve civil liberties. Senator Kennedy’s legacy will live on to inspire generations of civil libertarians to come.”
In this same press release honoring Kennedy, among the legislative accomplishments the ACLU praised from Senator Kennedy as protecting Civil Liberties was FISA. It’s therefore also disappointing to note that the ACLU is getting after President Obama for using… wait for it… yes, FISA.
Folks over at the ACLU, I love you guys, but you made a mistake here. It’s OK, you rarely make mistakes, you’re entitled to a few, this is definitely one of them and you are in good company. Most of the folks that consider themselves civil libertarians missed it on this one and failed to take into account the history and judicial decisions and review that frame this issue.
As the beginning of this segment I accused the coverage of this issue by my fellow journalists and pundits as woefully incomplete and I promised to give you all the full story and that once you heard it, you would think differently about this issue. Now that you have heard what I had to say, I hope you agree and I hope you all think I kept that promise. Feel free to let me know. Write to me at makingsenseletters@yahoo.com and tell me what you think of this issue and my coverage of it.
-----------------------------------------
Full show with audio at: http://www.blogtalkradio.com/lesersense/2013/06/09/making-sense-with-steve-leser--nsa-spying-war-on-women
June 9, 2013
What is the Truth and Full Story about the NSA Surveillance scandal that isn’t being reported anywhere else?
Well, in case you haven’t heard, a June 5th article by Glenn Greenwald in the UK Guardian purports to break the story on an NSA Surveillance scandal that per a FISA court warrant, Verizon is providing the NSA the metadata calling records of all of its customers to include originating number, destination number and date and time of the call. Not the actual calls themselves, just the metadata information about the calls.
Immediately you had a blowup of outrage in the media and the blogosphere that this was some kind of new and horrible thing against our privacy and fourth amendment rights by President Obama. Another take was that he had gone back on his promise to make a change on this from the Bush administration.
One of the problems with this so called scandal is that the reporting by Greenwald was woefully incomplete as to the history of this kind of surveillance and I am not just talking about the Bush administration aspect of it. Greenwald’s omissions in this latest article extend to his own prior coverage of NSA surveillance and to administrations before George W. Bush. Greenwald provided less than 15% of the facts that the public needs to be fully informed about what is going on here.
To really understand what this is about and whether the Obama administration did anything wrong in this situation, you have to start at the beginning. I mark the beginning as May 18, 1977, the day Ted Kennedy submitted the FISA bill to the Senate. The FISA bill, also known as the Foreign Intelligence Surveillance Act is describe in Wikipedia as prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" which may include American citizens and permanent residents suspected of espionage or terrorism. In practice, it sets up secret courts through which intelligence agencies can obtain warrants for surveillance of individuals and groups suspected of engaging in any kind of espionage and foreign sponsored or connected terrorist activities harmful to US National Security.
Six Democrats and three Republicans cosponsored the bill and it was signed into law by President Jimmy Carter October 25th, 1978.
Hearing about FISA in a vacuum without any other information would probably cause most people to believe that FISA has the strong potential to violate the fourth amendment protections against unreasonable search and seizure. In fact, FISA was created to strengthen the fourth amendment and I will explain how.
FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:
The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.
Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.
Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.
So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.
Now, let’s fast forward to the administration of George W. Bush.
After 9/11 President George W. Bush issued an executive order directing the NSA to start conducting wiretaps and other surveillance without a warrant via FISA or otherwise.
Many of us objected to the Bush administrations warrantless wiretapping program throughout Bush’s time in office. I wrote a number of articles attacking the practice including one in October of 2007 were I called for the Bush administration to go back to using FISA courts and suggested that the NSA, FBI and CIA should push back on any requests to perform surveillance without a FISA warrant.
Bush claimed that he had wartime powers to conduct warrantless wiretapping, but on March 31, 2010 a Federal Appeals court ruled NSA's warrantless wiretapping of an Islamic charity's lawyers in 2004 was illegal because it violated FISA and awarded that charity $2.5 million dollars in damages plus attorney’s fees. If you want to look it up, you will ironically note that the name of the case is Al-Haramain Islamic Foundation v. Obama because even though the warrantless surveillance took place in 2004, by the time the appeal came, Bush was no longer in office.
Speaking of which:
When campaigning for President in 2008, then senator Obama vigorously attacked President Bush’s warrantless wiretapping program and vowed to stop the practice. That is exactly what he did. President Obama returned to the policies before President Bush of using the Ted Kennedy and Jimmy Carter FISA law to obtain warrants wherever this kind of surveillance would be performed.
The other important part of history is that since the September 11, 2001 attacks, the kinds of wide-reaching surveillances of phone records, email and internet postings noted by Greenwald in his article of a few days ago has been constantly going on. This is not new. It has been reported on periodically including an article by Greenwald himself back in October of 2009. Greenwald penned an October 6, 2009 article in Salon titled “The joint Post/Obama defense of the Patriot Act and FISA: where he talks about the Obama administration’s use of FISA warrants that may or may not have led to the dismantling of a significant terrorist plot to bomb the New York City Subways.
There is an October 18 2007 article in NPR by Eric Weiner titled “The Foreign Service Intelligence Act: A Primer” that discusses the Bush administration’s desire not to have to get a FISA warrant to get wiretaps. A May 11 2006 USA Today article by Leslie Cauley is titled “The NSA has a massive database of Americans’ phone calls” and it talks about how what Greenwald reported a few days ago as some sort of revelation has been going on for twelve years.
My point by noting these articles, and there are hundreds, perhaps thousands more where they came from steadily since the end of 2001, is that this is not new stuff. It shouldn’t shock anyone. Journalists and pundits to include Greenwald himself shouldn’t be presenting what Greenwald wrote as new or shocking.
I’m really disappointed at my fellow journalists and pundits in general with the coverage of this story. When you understand the history of when and why FISA came into being and when you understand appeals court rulings regarding Presidential powers with regards to surveillance aimed at foreign directed entities and terrorist groups. When you understand those things and you combine them with the history since 9/11 of the Bush administration attempt to ignore FISA and wiretap without a warrant, a practice that the Obama administration has completely renounced, I think you are left with only one possible conclusion.
President Obama did nothing wrong and there is no scandal here, at least not in terms of the administration. The reporting of this issue by Greenwald and other journalists and pundits, well there you might have a scandal. The history and context matters and not providing those things in this situation completely alters the meaning of the story and is a veritable journalistic crime. Greenwald should be ashamed of himself, and many other journalists and pundits out there should also feel ashamed of themselves.
We can have a good national conversation about whether FISA should still be the law of the land. Understand though that if we repeal it and don’t replace it with anything, existing legal decisions and judicial review would mean that once again warrantless wiretapping ultimately aimed at foreign groups and terrorist organizations would be legal. Ted Kennedy and Jimmy Carter knew what they were doing when they created and passed FISA. Any law can be improved and FISA is no exception, but FISA is a big improvement compared to the situation before it was passed in 1978 and it is a big improvement over the Bush administration’s attempts to go back to warrantless wiretapping.
There is another point that I think we should note. The FISA warrant in question discussed in Greenwald’s article allows the NSA to collect phone records for three months, from April 25th until July 19th. I’m surprised no one has made the obvious correlation to how close the start date is to the Boston Marathon bombings which occurred in April 15th just ten days before. I’m making an educated guess here so you all can determine how much you think this makes sense to you, but it seems likely to me that in the wake of the Boston bombing, someone in the justice department asked the NSA to gather this information with the intent of finding patterns of telephone chatter between as yet undiscovered terrorist cells here in the US who might be discussing the bombing. The timing seems too close to be coincidence.
If true, it needs to be pointed out that Greenwald’s article certainly disrupted that effort.
Getting back to the Obama administration, I can envision what happened when President Obama took office in 2009. I’m sure there was a discussion with white house counsel and the Attorney General where national security surveillance was brought up and the President probably asked a question along the lines of “OK, we want to be better than the Bush administration was on this. We certainly don’t want to wiretap without a warrant. What is the constitutionally accepted remedy that respects the fourth amendment.” And the answer from any lawyer familiar with the law and the history of this issue would say the remedy is to go back to the law that Ted Kennedy and Jimmy Carter enacted to provide oversight over these kinds of activities. Go back to getting FISA warrants for them. In fact when Ted Kennedy died, the American Civil Liberties Union put out a glowing press release about him, saying:
In this same press release honoring Kennedy, among the legislative accomplishments the ACLU praised from Senator Kennedy as protecting Civil Liberties was FISA. It’s therefore also disappointing to note that the ACLU is getting after President Obama for using… wait for it… yes, FISA.
Folks over at the ACLU, I love you guys, but you made a mistake here. It’s OK, you rarely make mistakes, you’re entitled to a few, this is definitely one of them and you are in good company. Most of the folks that consider themselves civil libertarians missed it on this one and failed to take into account the history and judicial decisions and review that frame this issue.
As the beginning of this segment I accused the coverage of this issue by my fellow journalists and pundits as woefully incomplete and I promised to give you all the full story and that once you heard it, you would think differently about this issue. Now that you have heard what I had to say, I hope you agree and I hope you all think I kept that promise. Feel free to let me know. Write to me at makingsenseletters@yahoo.com and tell me what you think of this issue and my coverage of it.
-----------------------------------------
Full show with audio at: http://www.blogtalkradio.com/lesersense/2013/06/09/making-sense-with-steve-leser--nsa-spying-war-on-women
Feel free to repost to GD and other parts of DU in its entirety and with the provided links only
Transcript of the NSA Surveillance Portion of my 6/9-10/13 show
http://steveleser.blogspot.com/2013/06/transcript-of-nsa-surveillance-portion.htmlWhat is the Truth and Full Story about the NSA Surveillance scandal that isn’t being reported anywhere else?
Well, in case you haven’t heard, a June 5th article by Glenn Greenwald in the UK Guardian purports to break the story on an NSA Surveillance scandal that per a FISA court warrant, Verizon is providing the NSA the metadata calling records of all of its customers to include originating number, destination number and date and time of the call. Not the actual calls themselves, just the metadata information about the calls.
Immediately you had a blowup of outrage in the media and the blogosphere that this was some kind of new and horrible thing against our privacy and fourth amendment rights by President Obama. Another take was that he had gone back on his promise to make a change on this from the Bush administration.
One of the problems with this so called scandal is that the reporting by Greenwald was woefully incomplete as to the history of this kind of surveillance and I am not just talking about the Bush administration aspect of it. Greenwald’s omissions in this latest article extend to his own prior coverage of NSA surveillance and to administrations before George W. Bush. Greenwald provided less than 15% of the facts that the public needs to be fully informed about what is going on here.
To really understand what this is about and whether the Obama administration did anything wrong in this situation, you have to start at the beginning. I mark the beginning as May 18, 1977, the day Ted Kennedy submitted the FISA bill to the Senate. The FISA bill, also known as the Foreign Intelligence Surveillance Act is describe in Wikipedia as prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" which may include American citizens and permanent residents suspected of espionage or terrorism. In practice, it sets up secret courts through which intelligence agencies can obtain warrants for surveillance of individuals and groups suspected of engaging in any kind of espionage and foreign sponsored or connected terrorist activities harmful to US National Security.
Six Democrats and three Republicans cosponsored the bill and it was signed into law by President Jimmy Carter October 25th, 1978.
Hearing about FISA in a vacuum without any other information would probably cause most people to believe that FISA has the strong potential to violate the fourth amendment protections against unreasonable search and seizure. In fact, FISA was created to strengthen the fourth amendment and I will explain how.
FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:
Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.
Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.
Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.
So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.
Now, let’s fast forward to the administration of George W. Bush.
After 9/11 President George W. Bush issued an executive order directing the NSA to start conducting wiretaps and other surveillance without a warrant via FISA or otherwise.
Many of us objected to the Bush administrations warrantless wiretapping program throughout Bush’s time in office. I wrote a number of articles attacking the practice including one in October of 2007 were I called for the Bush administration to go back to using FISA courts and suggested that the NSA, FBI and CIA should push back on any requests to perform surveillance without a FISA warrant.
Bush claimed that he had wartime powers to conduct warrantless wiretapping, but on March 31, 2010 a Federal Appeals court ruled NSA's warrantless wiretapping of an Islamic charity's lawyers in 2004 was illegal because it violated FISA and awarded that charity $2.5 million dollars in damages plus attorney’s fees. If you want to look it up, you will ironically note that the name of the case is Al-Haramain Islamic Foundation v. Obama because even though the warrantless surveillance took place in 2004, by the time the appeal came, Bush was no longer in office.
Speaking of which:
When campaigning for President in 2008, then senator Obama vigorously attacked President Bush’s warrantless wiretapping program and vowed to stop the practice. That is exactly what he did. President Obama returned to the policies before President Bush of using the Ted Kennedy and Jimmy Carter FISA law to obtain warrants wherever this kind of surveillance would be performed.
The other important part of history is that since the September 11, 2001 attacks, the kinds of wide-reaching surveillances of phone records, email and internet postings noted by Greenwald in his article of a few days ago has been constantly going on. This is not new. It has been reported on periodically including an article by Greenwald himself back in October of 2009. Greenwald penned an October 6, 2009 article in Salon titled “The joint Post/Obama defense of the Patriot Act and FISA: where he talks about the Obama administration’s use of FISA warrants that may or may not have led to the dismantling of a significant terrorist plot to bomb the New York City Subways.
There is an October 18 2007 article in NPR by Eric Weiner titled “The Foreign Service Intelligence Act: A Primer” that discusses the Bush administration’s desire not to have to get a FISA warrant to get wiretaps. A May 11 2006 USA Today article by Leslie Cauley is titled “The NSA has a massive database of Americans’ phone calls” and it talks about how what Greenwald reported a few days ago as some sort of revelation has been going on for twelve years.
My point by noting these articles, and there are hundreds, perhaps thousands more where they came from steadily since the end of 2001, is that this is not new stuff. It shouldn’t shock anyone. Journalists and pundits to include Greenwald himself shouldn’t be presenting what Greenwald wrote as new or shocking.
I’m really disappointed at my fellow journalists and pundits in general with the coverage of this story. When you understand the history of when and why FISA came into being and when you understand appeals court rulings regarding Presidential powers with regards to surveillance aimed at foreign directed entities and terrorist groups. When you understand those things and you combine them with the history since 9/11 of the Bush administration attempt to ignore FISA and wiretap without a warrant, a practice that the Obama administration has completely renounced, I think you are left with only one possible conclusion.
President Obama did nothing wrong and there is no scandal here, at least not in terms of the administration. The reporting of this issue by Greenwald and other journalists and pundits, well there you might have a scandal. The history and context matters and not providing those things in this situation completely alters the meaning of the story and is a veritable journalistic crime. Greenwald should be ashamed of himself, and many other journalists and pundits out there should also feel ashamed of themselves.
We can have a good national conversation about whether FISA should still be the law of the land. Understand though that if we repeal it and don’t replace it with anything, existing legal decisions and judicial review would mean that once again warrantless wiretapping ultimately aimed at foreign groups and terrorist organizations would be legal. Ted Kennedy and Jimmy Carter knew what they were doing when they created and passed FISA. Any law can be improved and FISA is no exception, but FISA is a big improvement compared to the situation before it was passed in 1978 and it is a big improvement over the Bush administration’s attempts to go back to warrantless wiretapping.
There is another point that I think we should note. The FISA warrant in question discussed in Greenwald’s article allows the NSA to collect phone records for three months, from April 25th until July 19th. I’m surprised no one has made the obvious correlation to how close the start date is to the Boston Marathon bombings which occurred in April 15th just ten days before. I’m making an educated guess here so you all can determine how much you think this makes sense to you, but it seems likely to me that in the wake of the Boston bombing, someone in the justice department asked the NSA to gather this information with the intent of finding patterns of telephone chatter between as yet undiscovered terrorist cells here in the US who might be discussing the bombing. The timing seems too close to be coincidence.
If true, it needs to be pointed out that Greenwald’s article certainly disrupted that effort.
Getting back to the Obama administration, I can envision what happened when President Obama took office in 2009. I’m sure there was a discussion with white house counsel and the Attorney General where national security surveillance was brought up and the President probably asked a question along the lines of “OK, we want to be better than the Bush administration was on this. We certainly don’t want to wiretap without a warrant. What is the constitutionally accepted remedy that respects the fourth amendment.” And the answer from any lawyer familiar with the law and the history of this issue would say the remedy is to go back to the law that Ted Kennedy and Jimmy Carter enacted to provide oversight over these kinds of activities. Go back to getting FISA warrants for them. In fact when Ted Kennedy died, the American Civil Liberties Union put out a glowing press release about him, saying:
The civil rights community lost one of its giants today. Senator Kennedy’s lifelong commitment to racial justice and the rule of law has been an inspiration to the ACLU and Americans everywhere,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “On a personal level, we will miss his wise counsel and encouragement in the ongoing struggle to preserve civil liberties. Senator Kennedy’s legacy will live on to inspire generations of civil libertarians to come.”
In this same press release honoring Kennedy, among the legislative accomplishments the ACLU praised from Senator Kennedy as protecting Civil Liberties was FISA. It’s therefore also disappointing to note that the ACLU is getting after President Obama for using… wait for it… yes, FISA.
Folks over at the ACLU, I love you guys, but you made a mistake here. It’s OK, you rarely make mistakes, you’re entitled to a few, this is definitely one of them and you are in good company. Most of the folks that consider themselves civil libertarians missed it on this one and failed to take into account the history and judicial decisions and review that frame this issue.
As the beginning of this segment I accused the coverage of this issue by my fellow journalists and pundits as woefully incomplete and I promised to give you all the full story and that once you heard it, you would think differently about this issue. Now that you have heard what I had to say, I hope you agree and I hope you all think I kept that promise. Feel free to let me know. Write to me at makingsenseletters@yahoo.com and tell me what you think of this issue and my coverage of it.
-----------------------------------------
Full show with audio at: http://www.blogtalkradio.com/lesersense/2013/06/09/making-sense-with-steve-leser--nsa-spying-war-on-women
Feel free to repost to GD and other parts of DU in its entirety and with the provided links only
June 9, 2013
Tired of fighting with fellow Dems over the NSA Surveillance issue?
If you think/know the President is being unfairly criticized, you need to check out my radio show tonight. Even if you don't think he is being unfairly criticized but you want all the facts, you need to check out my radio show tonight. I do a complete coverage of the issue. I have let some folks pre-screen the show who were upset at the President over this issue and the show changed their minds completely. The facts are with the President on this.
If there is one episode of my radio show to hear, it's this one. Please listen and spread far and wide. It airs at 7pm tonight (Sunday) eastern time on blogtalkradio.com and the full archive is available anytime after 8pm in perpetuity.
http://www.blogtalkradio.com/lesersense/2013/06/09/making-sense-with-steve-leser--nsa-spying-war-on-women
It also airs on the NBC Radio affiliate KCAA 1050am in Inland Empire California Monday at 2pm Pacific Time
p.s. the war on women segment afterwards is pretty good too! 
June 8, 2013
We have a terrific show this week. Topics include:
1. The NSA Surveillance Scandal, what is the Truth and Full Story that isn’t being reported anywhere else
2. Then Amanda Marcotte is back to talk with us about the Republican War on Women and also to discuss 10 absurd sex tips from the Christian Right and that will be in lieu of our traditional hall of shame tonight.
The show will air on Blogtalkradio.com at the above link at 7pm Eastern time Sunday June 9th and will be available at that link thereafter in perpetuity.
The show will also air on the NBC Radio affiliate KCAA 1050am in Inland Empire California on Monday June 9th at 2pm Pacific Time.
Making Sense with Steve Leser Radio show this week: NSA Surveillance Scandal and GOP War on Women
http://www.blogtalkradio.com/lesersense/2013/06/09/making-sense-with-steve-leser--nsa-spying-war-on-womenWe have a terrific show this week. Topics include:
1. The NSA Surveillance Scandal, what is the Truth and Full Story that isn’t being reported anywhere else
2. Then Amanda Marcotte is back to talk with us about the Republican War on Women and also to discuss 10 absurd sex tips from the Christian Right and that will be in lieu of our traditional hall of shame tonight.
The show will air on Blogtalkradio.com at the above link at 7pm Eastern time Sunday June 9th and will be available at that link thereafter in perpetuity.
The show will also air on the NBC Radio affiliate KCAA 1050am in Inland Empire California on Monday June 9th at 2pm Pacific Time.
June 6, 2013
My view "Now" on eavesdropping is the same as it was "Then"
Warrant-less wiretapping = Evil
FISA Warrant wiretapping = Better than Warrant-less, still undesirable but live-able as it provides a paper trail and a way to hold people accountable.
http://www.opednews.com/articles/opedne_steven_l_071028_republicans_turning_.htm
OpEdNews 10/28/2007 at 02:47:43
Republicans turning USA into Capitalist equivalent of 80's East Germany or Werde der USA der neue DDR sein?
By Steven Leser
Wirklich
“Wirklich” is one of my favorite German words, I can’t explain why, I just like it. It means “Really” and can be used in any of the ways the English equivalent can be used. In this context I mean, with the title and premise of the article, “I’m not kidding”. This weekend, I watched the acclaimed movie “The Lives of Others” (German name “Das Leben der Anderen”) and like various people, I thought it was one of the best movies I have ever seen. Many critics have commented on the wonderful subtlety the movie displayed with how it handled many of its important concepts. Yet the movie was incredibly powerful at the same time. If a director and movie can simultaneously achieve power and subtlety, a movie is going to be a hit. This one won the academy award for best foreign film of 2007. What really sent a chill running up and down my spine was the subtle warning this movie had for those of us in the US today and now.
1980 Sozialistische Einheitspartei Deutschlands + STASI = 200X Republican Party + FBI/CIA/NSA?
The movie is in large part about a government that has run amok with spying on its citizens. When speaking of crimes and our legal system, many of us have lamented at some time that a criminal has “gotten off on a technicality”. Often, those “technicalities” involve the fourth amendment that says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Current Republican Party policy and belief is that warrant-less wiretapping is necessary to combat terrorism and other illegal activities. It is a short and slippery slope from there to where a government or party starts spying on anyone it considers “subversive”. From there, the slope leads to spying on regular and constitutionally obeying political opponents. Finally, as in “The Lives of Others” it leads to high level government officials using the security apparatus of the government to spy on and destroy romantic or financial rivals or other people that they don’t like, no matter the reason. Lord Acton would note this as plainly demonstrating the second clause of his famous quote that absolute power corrupts absolutely. It is amazing that William F. Buckley and John Podhoretz, both of whom mentioned the movie in articles in National Review, didn’t make the connection between the on screen STASI activities and where warrant-less wiretapping could lead. Perhaps they so blindly believe in the Republican Party, Conservatism, and the nebulous, never-ending, not-well-explained-who-our-enemy-is war on terror that they can’t see it.
Mann muss eine Gute Amerikanische Mensch sein.
I am not a huge fan of FISA, the Foreign Intelligence Surveillance Act that establishes secret courts where warrants can be obtained, nor should anyone who is at all concerned with the upholding of the protections in the fourth amendment, but at least with FISA courts, there is a paper trail. I can live with FISA. Prosecutors and politicians have reason to fear obtaining a FISA warrant for frivolous or abusive reasons. Who is going to investigate the reasons for obtaining a warrant-less wiretap? How would they investigate a warrant-less wiretap? How would anyone know where or how many warrant-less wiretaps exist? What about the fourth amendment? Is the official position of the Bush administration, the Republican Party and Republican Pundits that the fourth amendment is a cute idea not to be taken seriously? The FBI, CIA and NSA need to push back on any requests for such wiretaps and demand the requestors go to a FISA court. I have a lot of respect for those organizations and the people in them, and I know they do not want to become the STASI. Those of us who are Guten Amerikanische Menschen should work to ensure it never becomes so.
June 3, 2013
Don't miss a special second showing of the Radio Show today, Monday June 3rd at 7pm EST. There were technical difficulties with the version of the show that aired last night:
Don't miss this week's Making Sense with Steve Leser! Topics include:
1. Congressional Scorecard and news about the 2014 congressional elections and other elections coming up
2. The Deteriorating Conditions and Chances for a Positive Outcome in Syria
3. Then Update on the IRS issue. Was the IRS justified in taking a closer look at Tax Exempt Applications by Political Groups?
We will also have our Trademark weekly hall of fame and shame for those politicians and prominent individuals who made great sense, or shameful nonsense, respectively.
The show will air tonight, Sunday June 2nd at 7pm eastern time at the above link. It will also be available there after 8pm in perpetuity.
It will also air 2pm Pacific time Monday June 3rd on KCAA Radio 1050am in Inland Empire California. Those not living in Inland Empire can hear the show by clicking this link. http://tunein.com/radio/KCAA-1050-s31934/
All of my KCAA broadcasted shows are available in archive at http://kcaaradio.celestrion.net/kcaa-podcasts/leser/
Making Sense with Steve Leser Radio show Tonight at 7pm EST, Congressional Scorecard, Syria, IRS
http://www.blogtalkradio.com/lesersense/2013/06/03/making-sense-with-steve-leser--house-scorecard-syria-irsDon't miss a special second showing of the Radio Show today, Monday June 3rd at 7pm EST. There were technical difficulties with the version of the show that aired last night:
Don't miss this week's Making Sense with Steve Leser! Topics include:
1. Congressional Scorecard and news about the 2014 congressional elections and other elections coming up
2. The Deteriorating Conditions and Chances for a Positive Outcome in Syria
3. Then Update on the IRS issue. Was the IRS justified in taking a closer look at Tax Exempt Applications by Political Groups?
We will also have our Trademark weekly hall of fame and shame for those politicians and prominent individuals who made great sense, or shameful nonsense, respectively.
The show will air tonight, Sunday June 2nd at 7pm eastern time at the above link. It will also be available there after 8pm in perpetuity.
It will also air 2pm Pacific time Monday June 3rd on KCAA Radio 1050am in Inland Empire California. Those not living in Inland Empire can hear the show by clicking this link. http://tunein.com/radio/KCAA-1050-s31934/
All of my KCAA broadcasted shows are available in archive at http://kcaaradio.celestrion.net/kcaa-podcasts/leser/
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