Judge Rules Terrorist Spying Unconstitutional

U.S. District Judge Anna Diggs Taylor in Detroit ruled the NSA violated the First and Fourth Amendments with their warrantless terrorist surveillance.

Eugene Volokh has some quick analysis here, here, and here. Eugene agrees with Orin Kerr's thoughts from last year that FISA is the key to the NSA program's legality:

So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.

Opponent of the NSA program Jack Balkin even thinks Judge Diggs' ruling isn't so hot:

It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle.

KipEsquire at Overlawyered sees Judge Diggs' Fourth and First Amendment analysis as weak. Her strength was on separation of powers.

While the ACLU and their Democratic allies are cheering they should realize they're handing a political issue to the GOP in the fall elections. The Democrats still don't have a coherent national security strategy. It amounts to "President Bush is screwing up Iraq, a war we shouldn't be in anyway so let's bring our troops home; and, oh by the way, Osama bin Laden is still running around, but let's ignore that British bombing plot that used intelligence methods Judge Diggs would find unconstitutional. American public, please trust us with defending the nation against the Islamist terrorist hordes."

Another rallying cry for the GOP base is the fear a Democratic-controlled House of Representatives would impeach President Bush. Rep. John Conyers would run the Judiciary Committee and has put in plenty of work preparing to impeach Bush. Think it wouldn't happen? Many Democrats didn't think the GOP would impeach President Clinton over lying to a grand jury about a sex scandal. Karl Rove is drooling with the opportunity Judge Diggs laid before him.

"Judge Nixes Warrantless Surveillance"

"NSA Surveillance Program Ruled Unconstitutional"

UPDATE: The Justice Department has appealed Judge Diggs' ruling. The press release also states, "The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal."

[via California Yankee]

ACLU Opposes Financial Surveillance

The slowly-healing Captain Ed (get well soon) points out the ACLU stuck their nose into the Swift story. It should be no surprise they're not happy:

The revelation of the CIA's financial spying program is another example of the Bush administration's abuse of power. The invasion of our personal financial information, without notification or judicial review, is contrary to the fundamental American value of privacy and must be stopped now.

As Captain Ed notes even though the ACLU has access to many highly-skilled lawyers on a host of technical legal subjects they don't point out a single piece of law the Bush administration violated. It's hard to call the Terrorist Finance Tracking Program an "abuse of power" when the traitorous NY Times reported, "Swift and Treasury officials said they were aware of no abuses" and could find no abuses themselves.

So we have the ACLU which offers nothing to support their argument against an administration that has the International Emergency Economic Powers Act as well as other laws as Andrew McCarthy writes,

And unlike the last vital program the New York Times compromised — the National Security Agency’s Terrorist Surveillance Program, which the same reporters, James Risen and Eric Lichtblau, exposed last December — there is not even a facially plausible concern that the TFTP violates statutory law. The provisions germane here (mainly, the Right to Financial Privacy Act that Congress enacted in 1978 in reaction to Miller) do not even apply to the nerve center at issue, the Society of Worldwide Interbank Financial Telecommunication.

That’s because SWIFT, as it is better known, is not a financial institution at all. It is a consortium, centered not in the U.S. but in Belgium, which simply — albeit importantly — oversees how funds are routed globally. It is a messenger, not a bank. Nevertheless, in an abundance of caution, the government uses administrative subpoenas — which were expressly provided for by Congress in the aforementioned Financial Privacy Act and the Patriot Act — when it seeks SWIFT information. That’s not just legal; it’s hyper-legal.

In their press release the ACLU continues to bloviate:

Once again, this administration has performed an end-run around the legislature, allowing for no Congressional approval or oversight....

Someone must tell the civil liberties organization to keep up with the news. This from the scandalous NY Times story:

While the banking program is a closely held secret, administration officials have conducted classified briefings to some members of Congress and the Sept. 11 Commission, the officials said.

No, there's weren't public hearings broadcast on C-SPAN. Since it's been an effective tool in following the financial web of Islamist terrorists it's understandable Congressmen were told on a need-to-know basis.

Someday, there will be another terrorist attack on U.S. soil. There will be investigations, and hearings, and discussions of what went wrong and how to prevent future attacks. More than likely some blue ribbon panel will chastise the government for not doing more to track terrorists' financial dealings. When that happens I will be on the frontline showing nothing but contempt for the ACLU for not realizing we are at war.

"ACLU, Right On Schedule"

Bush Basher Reaction to Financial Surveillance

Bush bashers are shaking with glee and launching attacks against an effective tool against Islamism:

The Huffington Post lies with its headline "Bank Data Secretly Reviewed By Bush Admin. Without Warrants Or Subpoenas...." (Click for a full-size image.)

In the linked NY Times story it reads,

Treasury officials did not seek individual court-approved warrants or subpoenas to examine specific transactions, instead relying on broad administrative subpoenas for millions of records from the cooperative, known as Swift.

Why be accurate when you can bash the President?

Helen Thomas decided to badger Press Secretary Tony Snow about what laws allow the government to search financial data. Snow didn't know the specific law but would get lawyers on the case. That wasn't good enough for the old bag who interrupted Snow during another question. That got him to blurt, "Helen, will you stop heckling and let me conduct a press conference?" Crooks & Liars has the video.

Taylor Marsh decides Republicans and conservatives are "fat, self-satisfied and self-absorbed."

Rep. Ed Markey is troubled saying, "If the administration wants to fight terrorism legally, then it should ask for the authority it needs and then follow the law that Congress passes." If the program is on "rock-solid ground" then that's based on laws passed by Congress--the International Emergency Economic Powers Act to be exact. Markey should find some specific objection before attacking the President in front of the media.

Papers Out Classified Financial Surveillance Program

The U.S. government is going after the financial foundation of her Islamist terrorist enemies. This isn't news since the Bush administration has said often they would use diplomatic, military, and financial weapons in the war. What's news is two major U.S. newspapers told the world, including the enemy, how they do it. This from the LA Times:

Under this effort, Treasury routinely acquires information about bank transfers from the world's largest financial communication network, which is run by a consortium of financial institutions called the Society for Worldwide Interbank Financial Telecommunication, or SWIFT.

We know what side the NY Times and LA Times are on. They're neither pro-America nor anti-America. They're each on their own side, a side where their claim of the "public interest" (as they solely define it) transcends mere national borders. The NY Times and LA Times see themselves as above the confines of patriotism. That would be too Red State of them. Too much for the sensibilities of Fly-Over Country. Patterico declares the NY Times "actually dangerous" and "These people are in a race to undermine our national security." It's hard to disagree.

I'm sure there were quite a few rah-rahs in the newsrooms when Dixie Chick Natalie Maines wondered what the big deal is about patriotism. They could relate. The papers have internalized the Mike Wallace notion that they "don't have [a] higher duty... [they're] reporter[s]". Worrying about what harm telling the enemy about our efforts to defeat them is less important than impressing oneself among peers who also drink deeply from the Mike Wallace kool-aid.

There's the possibility of an anti-American European backlash that forces the Brussels-based Society for Worldwide Interbank Financial Telecommunication (Swift) to end its cooperation with U.S. intelligence. It's not out of the realm of possibility even though the NY Times story states, "Swift and Treasury officials said they were aware of no abuses." Lack of abuse won't stop the anti-American Europeans and domestic Bush Basher from looking to take another shot at the U.S. for her "unlawful," "immoral," "unilateral" foreign policy.

The program has been effective. From the NY Times' story:

Among the successes was the capture of a Qaeda operative, Riduan Isamuddin, better known as Hambali, believed to be the mastermind of the 2002 bombing of a Bali resort, several officials said. The Swift data identified a previously unknown figure in Southeast Asia who had financial dealings with a person suspected of being a member of Al Qaeda; that link helped locate Hambali in Thailand in 2003, they said.

In the United States, the program has provided financial data in investigations into possible domestic terrorist cells as well as inquiries of Islamic charities with suspected of having links to extremists, the officials said.

The data also helped identify a Brooklyn man who was convicted on terrorism-related charges last year, the officials said. The man, Uzair Paracha, who worked at a New York import business, aided a Qaeda operative in Pakistan by agreeing to launder $200,000 through a Karachi bank, prosecutors said.

I wonder what role Swift data played (if any) in the arrest of the Miami terrorist cell that sought to destroy the Sears Tower.

It would be a grave mistake if the U.S. lost access to a rich source of intelligence just because two newspapers allowed their arrogance to trump national security. There's a time and a place for everything. There is something called History. That's when issues like this could be examined without the fear of tipping off the enemy.

"Media Refuses to Hold Surveillance Story" [via Drudge]

"Bank Data Secretly Reviewed by U.S. to Fight Terror"

"Secret U.S. Program Tracks Global Bank Transfers"

"NYT: We're Still Above the Law" [via protein wisdom]

Judge Makes No Decision on Spying Case

I don't think anyone thought Judge Anna Diggs Taylor would immediately halt the terrorist surveillance program. A hearing on the government's argument that the case involves state's secrets is set for July 10.

"Judge Defers Decision on Wiretap Suit"

Terrorist Spying Case Heard in Detroit

In a federal court in Detroit the ACLU challenged the U.S. government on the legality of NSA terrorist wiretaps. The ACLU wants the program immediately halted even though like the rest of us (including the judge) they don't really know how it works. The Plaintiffs can't prove they're being spied on. Their argument is the existence of the program prevents them from talking to people and doing research. Well, maybe, maybe not. Journalists and scholars are dumb. If they have the perserverance and imagination they can find ways to avoid the appearance of being spied on.

Government lawyers want the case tossed because it could reveal classified information.

Glenn Greenwald is pleased even though he thinks the government will win:

[F]or the first time ever, a federal court this morning is entertaining substantive arguments as to the legality of warrantless eavesdropping.

Suppose Judge Anna Diggs Taylor agrees with the ACLU and orders the program shut down. Is the ACLU willing to accept responsibility for another terrorist attack on U.S. soil? It's easy to preen about civil liberties in the abstract when not all the facts are known.

"Government Defends Domestic Spying in Court"

"Domestic Spying Program Comes Under Legal Scrutiny"

U.S. Government: "Best Judge" of State Secrets

A Justice Department lawyer said, "the United States government, not any court, is the best judge of whether to keep programs such as its controversial effort to eavesdrop on citizens a secret." In a filing to a San Francisco federal court Peter Keisler, an assistant attorney general, wrote,

In cases such as this one, where the national security of the United States is implicated, it is well established that the executive branch is best positioned to judge the potential effects of disclosure of sensitive information on the nation's security.

The case involves a lawsuit between the Electronic Freedom Foundation and AT&T over NSA spying.

The government has a good argument. Courts don't determine foreign and defense policy. That role is left for Congress and the President. But this issue involves fourth amendment protections. The courts should have some say seeing as their mission is to judge government actions as being in line with the constitution.

"US Says Government Should Judge Spy Secrets"

USA Today Reporter Exposed

Leslie Cauley is the USA Today reporter who reported last week that the NSA was in cahoots with telephone companies to build a phone call database. She has also been very silent and has written nothing since BellSouth and Verizon claim her story is false. NewsBusters did a little research into her background:

A search found a listing for "writer and journalist" Leslie Cauley, indicating she gave $2,000 to Gephardt on June 30, 2003, when Gephardt was running for the Democratic presidential nomination. And that seems not to be her only tie to Democratic politics.

She also helped a Democratic big-wig write a book. That's more than can be said for Editor & Publisher's few paragraphs about her.

Before my right-wing knee-jerk readers shout, "See! See! She's biased! The story has to be fake!" realize this information doesn't mean the story's false. If the story is on par with RatherGate it tell us why Cauley ran so hard with a story based on anonymous sources that is being strongly denied by BellSouth and Verizon.

"USA Today Reporter a Democratic Donor; Phone Company Demands Retraction"

"Stop Me If You've Heard This One Before..."

Parsing Phone Company Statements

In a comment DJ left a link to The Technology Liberation Front which quotes from a subscription website that parses the BellSouth and Verizon denials that they help the NSA build a phone call database. Since we live in the Age of Clinton where we have to deeply examine the meaning of the word "is" it's no surprise the analysis depends are what terms the phone companies use.

The biggest weakness for the baby bells' denials was the amount of time it took for them to boldly declare they didn't assist the NSA. But that's just the cynic in me.

What I want to see is who is USA Today's anoynmous source. Does this person have any more information to help us get to the bottom of this? Does this source have an agenda with the Bush administration? Is this person even in a position to leak such sensitive information?

USA Today Retraction Demanded

BellSouth now wants USA Today to retract that it took part in a NSA phone database:

BellSouth Corp., the No. 3 U.S. local telephone company, on Thursday demanded USA Today retract claims in a story that said the company had a contract with a U.S. spy agency and turned over customers' telephone records.

BellSouth spokesman Jeff Battcher denied the company had a contract with the National Security Agency and did not give access or provide call records to the spy agency as part of an effort to thwart any terrorist plots.

USA Today reported last week that the NSA has had access to records of billions of domestic calls and collected tens of millions of telephone records from data provided by BellSouth, Verizon and AT&T Inc.

"BellSouth Demands USA Today Retract NSA Claims"

Verizon Denies Helping NSA

The USA Today phone database story takes another hit. Verizon denies helping the NSA:

"One of the most glaring and repeated falsehoods in the media reporting," the statement said, "is the assertion that, in the aftermath of the 9/11 attacks, Verizon was approached by NSA and entered into an arrangement to provide the NSA with data from its customers' domestic calls. This is false."

Last Thursday, USA TODAY reported that the NSA has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, BellSouth and Verizon, citing people with direct knowledge of the program.

Here's an extended portion of Verizon's statement:

One of the most glaring and repeated falsehoods in the media reporting is the assertion that, in the aftermath of the 9/11 attacks, Verizon was approached by NSA and entered into an arrangement to provide the NSA with data from its customers’ domestic calls.

This is false. From the time of the 9/11 attacks until just four months ago, Verizon had three major businesses – its wireline phone business, its wireless company and its directory publishing business. It also had its own Internet Service Provider and long-distance businesses. Contrary to the media reports, Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records from any of these businesses, or any call data from those records. None of these companies – wireless or wireline – provided customer records or call data.

Another error is the claim that data on local calls is being turned over to NSA and that simple "calls across town" are being "tracked." In fact, phone companies do not even make records of local calls in most cases because the vast majority of customers are not billed per call for local calls. In any event, the claim is just wrong. As stated above, Verizon’s wireless and wireline companies did not provide to NSA customer records or call data, local or otherwise.

That's pretty catagorical.

I can understand the administration neither admitting nor denying the existence of the program. They don't want to tip off the enemy to what the government is or isn't doing.

Verizon and BellSouth both say they weren't even asked for phone records. But Qwest was and refused to turn them over. Is it possible the NSA talked to Qwest first then gave up asking the other Baby Bells for help after Qwest's refusal? That would fit with what ex-Qwest CEO Joe Nacchio has stated along with BellSouth's and Verizon's comments. Did the NSA go the long distance route by working with AT&T (before being bought by SBC) and MCI (before being bought by Verizon)? Was the story a set-up to out leakers in the intel community?

Chad Evans has a couple questions:

So just like the story on the CIA having so-called “secret prisons” accross Europe that there is no evidence of, is this leak to the press yet another attempt by a leaker to attack the Bush Administration aided by poor reporting? Or is this some plot hatched by the CIA to pass off bogus information to reduce the credibility of leaked sources?

Brian at Iowa Voice writes:

Aren't anonymous sources great? You can say pretty much anything you want in a news article, claim an "anonymous source" told you, and then when it falls apart, pull the old Dan Rather defense....that until such information is proven false, they will report it as being true.

Josh Marshall just thinks Verizon is "lying."

CBS's Public Eye has it right: "Given the administration’s refusal to confirm or deny the report, the company denials and the anonymous sources, it may be time to ask how we’ll ever get the truth out of this story."

It's interesting Jim Drinkard wrote this latest story. Leslie Cauley who broke the story last week merely contributed to this one. What's also interesting is USA Today's PR person talked instead of Cauley. She broke the story. She should be the one doing the explaining.

On a humorous note NewsBusters Gaggle comic strip takes a shot at the paper.

"Verizon Says it isn't Giving Call Records to NSA"

NSA Phone Database Story Found Wanting

There's a serious hole in the USA Today story that the NSA is receiving phone call information from phone companies. BellSouth claims they never gave the NSA any records. There's this from the AP:

In a story in Tuesday's editions, USA Today said it contacted BellSouth the day before it published its initial story last week and that the company did not challenge the newspaper's account of the NSA database program.

So the newspaper ran with an annoynmous source versus no comment. That's not very responsible journalism.

"BellSouth Says It Gave NSA No Call Records"

UPDATE: Here's a pertinent part of the USA Today story:

USA TODAY first contacted BellSouth five weeks ago in reporting the story on the NSA's program. The night before the story was published, USA TODAY described the story in detail to BellSouth, and the company did not challenge the newspaper's account. The company did issue a statement, saying: "BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority."

In an interview Monday, BellSouth spokesman Jeff Battcher said the company was not asking for a correction from USA TODAY.

Asked to define "bulk customer calling records," Battcher said: "We are not providing any information to the NSA, period." He said he did not know whether BellSouth had a contract with the Department of Defense, which oversees the NSA.

BellSouth isn't giving the NSA information, yet they don't want a correction. I don't know what to make of that. I think it's time we find out who the annonymous source is. They burned USA Today so they should feel no obligation keeping him/her secret. It would be nice to know what position the source holds, any agenda they might have, and whether this might have been a set-up to see where classified security leaks are coming from.

"In Statement, BellSouth Denies Giving Information to National Security Agency"

Authorities Using Phone Records to Find Leaks to Reporters

Brian Ross and Richard Esposito of ABC News reports the federal government is tracking the phone numbers called by reporters:

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

This is getting close to being Nixonian and impeachable. If the numbers are being tracked to find a leaker of classified information, fine. But if they're doing it to intimidate reporters then the administration has crossed an authoritarian line. Marshall Manson writes,

They’re simply doing what they’re supposed to do — keeping us all informed. That’s their job. And it’s an important one because only an informed population can prevent a government from drifting inexorably towards tyranny.

"Federal Source to ABC News: We Know Who You're Calling" [via OTB]