April 7, 2009
Commentary by Tim Jones
Electronic Frontier Foundation, Deeplinks Blog

We had hoped this would go differently.

Friday evening, in a motion to dismiss Jewel v. NSA, EFF's litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration's made two deeply troubling arguments.

First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue "would cause exceptionally grave harm to national security." As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence.

It's an especially disappointing argument to hear from the Obama Administration. As a candidate, Senator Obama lamented that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court." He was right then, and we're dismayed that he and his team seem to have forgotten.

Sad as that is, it's the Department Of Justice's second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying -- that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one -- not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration -- has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ's radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama's own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

This isn't change we can believe in. This is change for the worse.

For further reading, we suggest Salon.com's Glenn Greenwald and The Atlantic's Marc Ambinder.

EFF: Obama DOJ's Warrantless Wiretapping Arguments Are Worse Than Bush's
By Mike Masnick, Tech Dirt
April 8th, 2009

On the issue of warrantless wiretapping, we've never been given a clear explanation by anyone why it makes sense to allow the government to totally skip over the warrant process...

The EFF has an analysis of the new Justice Department in trying to get one of the warrantless wiretapping cases dismissed, noting that the new administration appears to be taking an even more extreme position than the previous administration (which was already quite extreme).

Keith Olbermann on Obama and Wiretapping

Last night (4/7/09), Countdown With Keith Olbermann on MSNBC had excellent coverage of and commentary on the Obama DOJ's radical new arguments in Jewel v. NSA, the EFF's lawsuit against the NSA for illegal surveillance. Here are the videos:

Privacy info. This embed will serve content from msn.com.

Privacy info. This embed will serve content from msn.com.

Olbermann's second guest, GWU Law Professor Jonathan Turley, aptly summarizes why the new ruling is so disappointing:

"I think right now, the Bush people are bringing out their mission-accomplished sign, because they've not only gotten Obama to protect Bush and Cheney and others from any criminal investigation on torture, but he's now gone even further than they did in the protection of unlawful surveillance. This is the ultimate victory for the Bush officials. They have Barack Obama adopting the same extremist arguments, and in fact exceeding the extremist arguments made by President Bush...

"You cannot any longer suggest that President Obama is advancing the civil liberties and the privacy interests that he promised to advance. This is a terrible roll-back. It's a terrible decision.

Ed. note: PLEASE go read this... many links, more information, litigation, FAQ's, etc. (and support EFF!!) --

Eff's Info Page on NSA Spying:

NSA Spying

The U.S. Government, with assistance from major telecommunications carriers including AT&T, has been engaging in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.

In 2005, after the New York Times broke the story of the surveillance program, the President publicly admitted one portion of it -- warrantless surveillance of Americans believed to be communicating with people connected with terrorism suspects. Senior Bush Administration officials later confirmed that the President's authorization went beyond the surveillance of terrorists and conceded that the program did not comply with the Foreign Intelligence Surveillance Act (FISA). The President, invoking a theory of limitless executive power to disregard the mandates of Congress, has reauthorized this warrantless surveillance more than thirty times, including after the Department of Justice found the program to violate criminal laws, and has indicated that he intends to continue doing so.

Shortly after the initial revelations, a whistleblower named Mark Klein came forward with evidence describing the specific AT&T facilities, including one on Folsom Street in San Francisco [PDF], where the handoff of customer communications is occurring. Mr. Klein's evidence confirms the many newspaper reports that the government is engaging in dragnet surveillance of the domestic communications of millions of ordinary Americans.

EFF is fighting this surveillance on several fronts. In Hepting v. AT&T, EFF filed the first case against a telecom for violating its customers' privacy. In response to EFF's success in the case, and the filing of dozens of other cases across the country that attempted to hold law breaking telecoms accountable, the Bush Administration and the telecommunications carriers sought retroactive immunity for the carriers for their participation in the illegal surveillance. On July 9, 2008, Congress passed the FISA Amendments Act of 2008, which was intended to force the dismissal of Hepting v. AT&T and the other telecom lawsuits. EFF is working to challenge this law and hold telcoms accountable for their illegal behavior.

In addition, EFF is representing victims of the illegal surveillance program in Jewel v. NSA, a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.

EFF is not alone in this fight. There are multiple cases challenging various parts of the illegal surveillance against both the telecoms and the government. This page collects information on EFF's cases as well as cases brought by individuals, the American Civil Liberties Union of Northern California and of Illinois, the Center for Constitutional Rights, and others.

MUCH more at http://www.eff.org/issues/nsa-spying ...