Deeplinks Blogs related to NSA Spying
The Secret Room: EFF Designer's Cartoon on Illegal Spying
Commentary by Hugh D'AndradeI was asked recently to create a mural-sized political cartoon (and to paint it live!) at a show of experimental drawings and cartoons at the Mission Cultural Center in San Francisco. I chose as my subject the NSA's "secret room" at AT&T's Folsom Street facility. As part of the Bush administration's massive and illegal spying program, the communications of millions of ordinary Americans are illegally intercepted and copied via fiber-optic splitter, and diverted into this secret room, which is controlled by the NSA.
What exactly goes on inside that room? Here's a time-lapse video of my fanciful answer to that question:
The finished piece is available for viewing now through September 14 at the Mission Cultural Center, along with lots of other great drawings by various artists. Video shot and edited by EFF staffers Chris Contolini and Richard Esguerra, with CC-licensed music by Skandalo Publico.
Appeals Court Remands Gov't Appeal in Hepting v. AT&T
News Update by Kurt OpsahlToday, the United States Court of Appeals for the Ninth Circuit returned the Hepting v. AT&T case to the District Court. In a two sentence order, the court wrote:
In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals.
The government and AT&T had appealed Judge Vaughn Walker's June 2006 decision rejecting the argument that the state secrets privilege prevented millions of ordinary American from having their day in court. Oral argument was held August 2007.
Over the next year, the litigation was stayed because the appeal was pending. In the interim, Congress bowed to the demands of the Bush Administration and passed the unconstitutional retroactive immunity bill, the FISA Amendments Act.
The Government has not yet invoked the FAA's new procedures. Nevertheless, the government moved to have the Ninth Circuit stay the state secrets appeal, effectively asking the court for two chances to get the underlying litigation tossed from the courthouse. EFF opposed, noting that it was already well-known that AT&T and the government cooperated in the warrantless wiretapping program. We requested:
that the Court deny the government’s motion to hold this case in abeyance and instead dismiss the appeal and remand the case to the district court.
Earlier, in a related ruling last year, the Ninth Circuit had remanded the Al Haramain case to Judge Walker to determine whether FISA preempted the state secret privilege. In July, Judge Walker held FISA did preempt, and suggested that the Hepting plaintiffs might be able to benefit from the FISA preemption because they can show “'independent evidence disclosing that plaintiffs have been surveilled' and a 'rich lode of disclosure to support their claims.'"
This decision is good news for the millions of AT&T customers who were illegally surveilled under the warrantless wiretapping program. While we still must convince the court that the retroactive immunity bill is unconstitutional, for now, the state secrets privilege will not keep the courts from dispensing justice.
Three Ways to Fight Immunity
Deeplink by Hugh D'AndradeIt’s been two weeks since the Senate’s cowardly vote to pass the FISA Amendments Act (FAA), caving in to the president’s demands. With this vote, Congress gave the president virtually all of the spying powers he has sought for so long, and delivered the one thing he demanded above all else: Immunity for his telecom buddies for their role in his illegal spying program.
EFF fought long and hard to prevent passage of immunity for the telecoms, and this vote was a serious setback for our case seeking to hold AT&T and the other telecoms accountable. But the fight is far from over. As we suggested in the immediate aftermath of the vote, Congress may have caved, but EFF has not. In the coming months and weeks, we will continue the fight against immunity on multiple fronts.
Here is a brief primer on what we are doing now to fight back against this unconstitutional bill:
1. New litigation against the government.
We are bringing our many years of experience fighting illegal spying to bear on a new case – and this time, rather than holding private actors accountable, we will be taking on the government. For the moment we are keeping the details of this litigation to ourselves. But the goal is the same: to stop the wholesale surveillance of millions of Americans and restore our constitutional protections.
2. Constitutional challenges in Federal court.
By interfering with the ongoing deliberations of the judicial branch of the government, the FAA’s immunity provisions violate the Constitution’s insistence on a separation of powers. As Senator Sheldon Whitehouse of Rhode Island said during the Senate debates on the FAA:
If you wish to see a case of legislative interference with private judgment of the courts, look no further than what we are doing today... Congress stepping in to pick winners and losers in ongoing litigation on constitutional rights not only raises separation of powers concerns but it veers near running afoul of the due process and takings clauses [as well]... If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning.
EFF will do just that, asking the Federal courts to find the FAA unconstitutional on this and other grounds.
3. Congressional repeal of immunity provisions.
The FAA passed Congress, but not by a wide margin. Key members of Congress actively opposed sections of the bill, including telecom immunity. Majority Leader Reid, Speaker Pelosi, and Presidential candidate Barack Obama have all voiced strenuous opposition to telecom immunity.
More importantly, the public remains opposed to immunity. As EFF members are well aware, the president faced an uphill battle against a rising tide of public opinion in his quest to secure immunity for lawbreaking telecoms. It took almost two full years, with multiple retrenchments, to pass the bill. And it was only by bucking their constituencies that many members of Congress acted to pass the bill.
In 2009, this opposition will only have grown stronger, setting the stage for a congressional repeal of immunity. EFF will be there, working the halls of Congress and coordinating with the many opponents of telecom immunity to strike this unconstitutional bill from the books as soon as possible.
We may have lost the congressional battle on telecom immunity, and we may lose other battles from time to time in the future. But EFF will not stop until the laws are changed, and the surveillance hubs that are illegally sweeping up the communications of millions of innocent Americans are physically removed from the country’s telecom infrastructure. As more revelations continue to appear in the press (see today’s article in Salon — log-in may be required), it is more clear than ever that we must continue our efforts to restore your rights.
You can help us in this fight. If you haven’t joined yet, now is the time. And stay tuned for more updates in the future. The next phase anti-immunity movement is underway, and we need your help.
The ‘Repeal Immunity’ Movement Begins Today
Deeplink by Tim JonesToday, EFF Senior Staff Attorney Kevin Bankston was invited to guest-blog at The Hill.com's Congress Blog on EFF's plans in the wake of the recent surveillance law overhaul:
Our long war against warrantless wiretapping has only just begun, and we will not stop until we get that legal ruling we’ve been fighting for. Wednesday we only lost a battle, not the war, and EFF’s struggle to hold the White House and the telecoms accountable for their lawbreaking will continue on multiple fronts — starting with a constitutional challenge to the immunity provisions...
While duking it out over immunity in the courts, EFF will also continue its fight in Washington, working in the next session of Congress — a Congress likely to be much different in its composition than today’s, and working with a different president — to wipe the stain of the FAA’s immunity provisions off the books.
Looking Back, Moving Forward: The Continuing Fight Against Telecom Immunity
Deeplink by Hugh D'AndradeThe debate over telecom immunity has now spanned almost two years. When the first proposal to grant immunity to the telecoms was introduced in Congress, in September of 2006, no one thought the fight would last this long.
As we ponder the bizarre spectacle of a Congress that has willingly and repeatedly rolled over on the Bush administration's expansive claims of executive power, it is worth remembering that at one time it appeared that there would be hardly any resistance at all to the question of whether to grant immunity to the telecoms that participated in Bush's illegal warrantless wiretapping program.
Telecom immunity had the same air of inevitability that plenty of bad laws have as they sail through Congress to ultimate passage. For one thing, it was backed by powerful corporations that bankroll both parties and have armies of lobbyists patrolling Capitol Hill. The President vehemently insisted on immunity, repeatedly threatening to make use of his veto power against any FISA reform bill that didn't let his telecom friends off the hook. Republicans in Congress vowed to vote in virtual lockstep on the issue (and they were joined by key Democrats). The entire intelligence community thought it was a grand idea. And, while a
Read more after the jump...
Help EFF Continue the Fight Against Warrantless Wiretapping
Deeplink by Shari SteeleIn a move that I can only describe as cowardice, Congress just passed legislation meant to immunize telephone companies for their illegal, disloyal, and irresponsible behavior. EFF has been fighting against telecom immunity, and we need your help to bring the fight to the next level:
http://secure.eff.org/wiretapping
Two and a half years ago, EFF sued AT&T on behalf of its customers, seeking to hold the telecom giant responsible for its craven complicity in the White House's illegal warrantless wiretapping program.
Since then, the phone companies and their allies in Washington have spent tens of millions of dollars lobbying Congress to grant them retroactive immunity. They ran ridiculous fear-mongering attack ads against any politician who dared to oppose them. President Bush threatened to veto any bill that allowed EFF's lawsuit to continue.
Yesterday, Congress completely capitulated to the President's threats and voted to let the telecoms off the hook. If the telecoms are not held accountable, the administration will remain unchecked in its warrantless wiretapping of innocent Americans. This must stop!
We need your help to take the fight to the next level. We're going to challenge Congress's unconstitutional grant of immunity in our case against AT&T. We're going to fight for a congressional repeal of immunity in the next Congress. And we're going to file a new lawsuit against the government, challenging its warrantless surveillance practices, past, present and future.
Now, more than ever, we need your support!
http://secure.eff.org/wiretapping
The fight for civil liberties would never have come this far without your help. We can't give up now. Help EFF today!
Sincerely,
Shari Steele
Executive Director
Electronic Frontier Foundation
Senate Begins Final Debate on Retroactive Immunity
Deeplink by Tim JonesThe final Senate debate on the dangerously flawed FISA Amendments Act began this morning. Senator Feingold spoke at length in favor of Senator Dodd's amendment to strip retroactive immunity from the bill:
...Granting retroactive immunity under these circumstances will undermine any new laws that we pass regarding government surveillance. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to give them a "get out of jail free" card for allegedly ignoring the law in the past...
And that’s not all. Mr. President, this immunity provision doesn’t just allow telephone companies off the hook. It also will make it that much harder to get to the core issue that I’ve been raising since December 2005, which is that the President broke the law and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this illegal program.
On top of all this, we are considering granting immunity when roughly 70 members of the Senate still have not been briefed on the President’s wiretapping program. The vast majority of this body still does not even know what we are being asked to grant immunity for. Frankly, I have a hard time understanding how any Senator can vote against this amendment without this information.
This morning also saw an excellent editorial in the New York Times outlining the reasons why this bill should not be passed:
Proponents of the FISA deal say companies should not be “punished” for cooperating with the government. That’s Washington-speak for a cover-up. The purpose of withholding immunity is not to punish but to preserve the only chance of unearthing the details of Mr. Bush’s outlaw eavesdropping. Only a few senators, by the way, know just what those companies did.
Restoring some of the protections taken away by an earlier law while creating new loopholes in the Constitution is not a compromise. It is a failure of leadership.
EFF calls on the Senate to reject the FISA Amendments Act. It's a get out of jail free card, it's a cover-up, it will place a Congressional seal of approval on illegal activity, and it will be used to justify invasive surveillance powers with no accountability or oversight for years to come.
The Senate is scheduled to vote Wednesday morning. Phone your Senator now and tell them where you stand.
Whistleblower Daniel Ellsberg on FISA
Deeplink by Hugh D'AndradeFormer intelligence officer Daniel Ellsberg, the whistleblower who in the early 1970s released the Pentagon Papers, has spoken out against the Senate's version of FISA reform and warrantless wiretapping. In this video posted on Boing Boing Gadgets, he reminds viewers that all members of Congress have taken an oath to uphold the Constitution.
I have to say that no senator, Republican or Democrat, should be voting for this Senate bill. Not one. Everyone who does so is in fact, I would say, violating his or her oath to defend the Constitution. But they can do better than that.
The Senate is set to vote soon FISA -- take action now to help stop this unconstitutional bill!
Cartoon: The Return of Snuggly, the Security Bear
Deeplink by Hugh D'AndradeA few months back, SF Gate cartoonist Mark Fiore introduced his character Snuggly, the Security Bear, with a brilliant take on telecom immunity. Now, Snuggly is back, and he has a few words to say about "compromise."
What The New NSA Spying Decision Means for the Immunity Debate
Deeplink by Kevin BankstonAs we reported yesterday, Chief Judge Vaughn Walker of the Northern District of California has just issued a key ruling in Al Haramain v. Bush, one of the cases challenging the NSA's warrantless wiretapping program. Judge Walker is also overseeing the consolidated litigation against the telecoms. With the Senate poised to vote on the FISA Amendments Act and immunity this Tuesday, this decision is particularly timely, as it demolishes key arguments made by proponents of telecom immunity:
Myth: The telecoms can't defend themselves in court because of the government's assertion of the state secrets privilege.
Fact: The Al Haramain decision makes clear that the state secrets privilege will not prevent the telecoms from defending themselves, because FISA's evidentiary procedures preempt the privilege. See Opinion at p. 2 ("FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes.")
Myth: It's not fair to punish the telecoms for relying in good faith on the president's authorization to conduct the surveillance, even though it violated FISA.
Fact: In an extended discussion, the Al Haramain decision makes clear — or rather, shows how clear it already was — that the President's commander-in-chief powers do not give him the authority to ignore FISA. See Opinion at pp. 10-14, 23 ("[With FISA,] Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities....")
Myth: Getting new language in the FAA asserting that FISA is the exclusive means by which the President can conduct domestic surveillance is a fair trade for gutting FISA's long-standing protections and giving the telecoms immunity.
Fact: Again, the Al Haramain decision makes clear that FISA was already the exclusive means by which the President may authorize electronic surveillance. See Opinion at p. 13 ("[FISA's language] and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.")
Myth: The cases against the telecoms were never going to go anywhere anyway, because of state secrets.
Fact: In discussing what level of evidence a plaintiff needs to demonstrate that they were "aggrieved" by electronic surveillance, and thereby avoid the state secrets issue by taking advantage of FISA's security procedures, Judge Walker specifically refers to the evidence put forward in the cases against the telecoms. See Opinion at p. 51 ("Plaintiff amici [i.e. EFF and others] hint at the proper showing when they refer to “independent evidence disclosing that plaintiffs have been surveilled” and a “rich lode of disclosure to support their claims” in various of the cases [against the telecoms].")
Myth: Letting the cases continue risks the disclosure to the public of information that would harm national security.
Fact: The Al Haramain decision makes clear that the telecom litigation would proceed under FISA's long-standing, never-breached security procedures, with classified evidence being considered by the court securely behind closed doors. See Opinion at pp. 18-19 (describing FISA security procedures, which preempt state secrets, as "Congress' specific and detailed prescription for how courts should handle claims by the government that the disclosure of material relating to or derived from electronic surveillance would harm national security....")
Myth: Anyone harmed by the surveillance program should just sue the government; why bother suing the telecoms?
Fact: Judge Walker's dismissal of Al Haramain's FISA claim, see Opinion at p. 56, following on the dismissal of the ACLU's case challenging the president's program in the Sixth Circuit, shows how cases against the government face their own challenges, and are no replacement for the telecom cases which remain the best bet for getting a ruling on the legality of the surveillance.
Myth: The telecoms have a "common law" defense for responding to the government's illegal requests.
Fact: As the Al Haramain decision explains, FISA's comprehensive regulation of electronic surveillance preempts the common law when it comes to such surveillance. See Opinion at pp. 16, 20 ("Congress through FISA established a comprehensive, detailed program to regulate foreign intelligence surveillance in the domestic context.... [Congress] inten[ded] that FISA should displace federal common law rules...with regard to matters within FISA's purview.")
Judge Walker's decision makes clear that Congress is about to pass telecom immunity based on arguments that are just plain wrong. Congress should take the time to look at the facts, rather than be fooled by the myths. It should not to rush to judgment next week. If you haven't already, phone your Senators now and urge them to vote against ending debate on the FISA bill, vote for the amendments to the bill that would strip or weaken the immunity provisions, and vote against final passage of the bill.
