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Response to ProSense (Reply #11)

Tue Mar 11, 2014, 06:28 PM

12. I admit I didn't read your whole post. After seeing all your LOLs and totally rude

and ridiculous posts I simply do not feel you deserve it. But here you go... hope it clears some things up for you.

EDIT: ACLU source coming...

Fact Checking Obama's Misleading Answer About Warrantless Wiretapping on The Daily Show

On last Thursday’s Daily Show, Jon Stewart boldly went where no mainstream reporter has gone so far this election cycle: asking President Barack Obama why has he embraced Bush’s warrantless wiretapping program after campaigning against it on civil liberties grounds. While Stewart’s question was commendable, Obama’s answer was puzzling because it seems so obviously untrue.

Stewart first reminded Obama of his Bush-era statements that “we don’t have to trade our values and ideals for our security,” and pointedly asked the President, “do you still believe that?” He then specifically raised warrantless wiretapping, which Obama frequently criticized as a presidential candidate in 2008:

STEWART: I think people have been surprised to see the strength of the Bush era warrantless wiretapping laws and those types of things not also be lessened—That the structures he put in place that people might have thought were government overreach and maybe they had a mind you would tone down, you haven’t.

OBAMA: The truth is we have modified them and built a legal structure and safeguards in place that weren’t there before on a whole range issues.

To the contrary, there’s no indication that the still-active warrantless wiretapping program—which includes a warrantless dragnet on millions of innocent Americans’ communications—has significantly changed from the day Obama took office. With regard to the FISA Amendments Act, the Obama Administration has actively opposed all proposed safeguards in Congress. All the while, his Administration has been even more aggressive than President Bush in trying to prevent warrantless wiretapping victims from having their day in court and has continued building the massive national security infrastructure needed to support it.


Government Engages In Shell Game To Avoid Review Of Warrantless Wiretapping
By Patrick C. Toomey, Staff Attorney, ACLU National Security Project at 3:51pm

Less than a year ago, the government convinced the Supreme Court to dismiss the ACLU's constitutional challenge to the FISA Amendments Act (FAA)—the controversial warrantless wiretapping statute that is the legal basis for the PRISM program—because our clients couldn't prove that they had been monitored under it. The government repeatedly assured the court that such a restrictive view of who could challenge the law would not forever prevent court review, because criminal defendants who were prosecuted based on evidence obtained under the FAA would be informed of such and would then be able to challenge the statute. Based in part on this assurance, the Supreme Court in February of this year dismissed the case, Clapper v. Amnesty, in a 5–4 vote.

But now that the case is closed, we are learning that the government's assurances that it would notify criminal defendants of its reliance on surveillance under the FAA were not what they seemed. Here's one example of the government unequivocally assuring the Supreme Court, in its brief, that criminal defendants would receive notice of FAA surveillance and an opportunity to challenge the statute:

If the government intends to use or disclose any information obtained or derived from its acquisition of a person's communications under [the FAA] in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance under [the FAA].

In response to questions from the justices at oral argument, the government reiterated this position. Never mind that the government had not notified one criminal defendant about this type of evidence in the five years since the warrantless wiretapping program was written into law.

Ultimately, the Supreme Court accepted the government's position—but, using language almost identical to that in the brief, it highlighted the government's duty to "provide advance notice of its intent" to "use or disclose information obtained or derived" from FAA surveillance. The court plainly took the government's representations at face value, and it concluded that a criminal proceeding would offer an alternative avenue for testing the legality of the FAA's warrantless wiretapping program.

What we have learned since the Clapper decision, however, has revealed a yawning chasm between the government's words and actions. Faced with recent revelations about the FAA surveillance program, intelligence officials have raced to defend the controversial law. And, in doing so, they have touted at least four cases where warrantless FAA surveillance was purportedly critical to preempting terrorist plots. Yet not one of the defendants in these prosecutions was told that the government's evidence was obtained from FAA surveillance, and thus they had no opportunity to challenge the statute. This fact runs directly contrary to the arguments that lawyers for the government paraded before the Supreme Court just last fall.

Indeed, the government has openly departed from its previous position. Criminal defendants in Chicago and Florida have filed motions seeking to compel the government to provide notice of its intent to rely on evidence obtained from warrantless wiretapping under the FAA, yet the government is now arguing that it has no obligation to do so. This amounts to a remarkable about-face. These particular defendants have particularly good reason to ask whether evidence against them was obtained under the FAA: In December, Senator Feinstein referenced their cases in testimony urging Congress to reauthorize the FAA's surveillance program. Despite this testimony, the government is fighting the defendants' efforts to understand where the evidence against them has come from, and even told the court that it has no obligation to tell criminal defendants like those in the Florida case whether its evidence came from a warrantless interception of communications under the FAA or from more traditional foreign intelligence surveillance.

The distinction is crucially important, because without adequate notice defendants may never know they were subjected to warrantless wiretapping. And, without that, despite the government's guarantees to the Supreme Court, a defendant would have no basis to bring the type of constitutional challenge that would finally test the legality of the government's warrantless surveillance.

New Justice Department Documents Show Huge Increase in Warrantless Electronic Surveillance
By Naomi Gilens, ACLU Speech, Privacy and Technology Project at 1:32pm

Justice Department documents released today by the ACLU reveal that federal law enforcement agencies are increasingly monitoring Americans’ electronic communications, and doing so without warrants, sufficient oversight, or meaningful accountability.

The documents, handed over by the government only after months of litigation, are the attorney general’s 2010 and 2011 reports on the use of “pen register” and “trap and trace” surveillance powers. The reports show a dramatic increase in the use of these surveillance tools, which are used to gather information about telephone, email, and other Internet communications. The revelations underscore the importance of regulating and overseeing the government’s surveillance power. (Our original Freedom of Information Act request and our legal complaint are online.)

Pen register and trap and trace devices are powerfully invasive surveillance tools that were, twenty years ago, physical devices that attached to telephone lines in order to covertly record the incoming and outgoing numbers dialed. Today, no special equipment is required to record this information, as interception capabilities are built into phone companies’ call-routing hardware.

Pen register and trap and trace devices now generally refer to the surveillance of information about—rather than the contents of—communications. Pen registers capture outgoing data, while trap and trace devices capture incoming data. This still includes the phone numbers of incoming and outgoing telephone calls and the time, date, and length of those calls. But the government now also uses this authority to intercept the “to” and “from” addresses of email messages, records about instant message conversations, non-content data associated with social networking identities, and at least some information about the websites that you visit (it isn't entirely clear where the government draws the line between the content of a communication and information about a communication when it comes to the addresses of websites).

Electronic Surveillance Is Sharply on the Rise

The reports that we received document an enormous increase in the Justice Department’s use of pen register and trap and trace surveillance. As the chart below shows, between 2009 and 2011 the combined number of original orders for pen registers and trap and trace devices used to spy on phones increased by 60%, from 23,535 in 2009 to 37,616 in 2011.

Obama authorizes five more years of warrantless wiretapping
Published time: December 31, 2012 17:14

Congress had only up until the end of 2012 to either reauthorize FISA and the FAA, or let the bill expire. Despite a large grassroots campaign from privacy advocates and civil liberties organization to ensure the acts would fade from history, though, the Senate approved a five-year extension of the legislation on Friday. Just two days later, Pres. Obama signed his name to the act, opening up the inboxes and phone records of US citizens to the federal government until at least 2018.


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