At the behest of the Bush Administration, Congress is debating a number of updates to the Foreign Intelligence Surveillance Act. This long-standing law, passed in response to widespread abuses of executive power during the Nixon era, protects American citizens from being spied upon by the government. FISA strikes a balance between ensuring Americans’ rights to security in their communications and keeping our country safe from foreign threats.

One of the key characteristics of FISA is that it allows the government to engage in surveillance of suspected foreign threats, such as terrorists BEFORE seeking a court order.

The FISA court, the judicial body created to review government requests for permission to wiretap suspected threats, routinely granted such requests. The President would have us believe that this permissive system is not enough and that sweeping NEW powers should be granted to the Executive Branch to engage in spying upon American citizens.

This should be troubling to all Americans. Indications are that the government has already engaged in such activities, in violation of existing law. The Administration’s request would provide retroactive cover for these illegal acts. Furthermore, the President is demanding that Congress grant immunity to the telecommunications companies who handed over untold amounts of information about domestic communications at the government’s request. The Administration would have you believe that such immunity is warranted because these companies were simply doing their “patriotic duty.” Nevertheless, these same businesses cut off FBI wiretaps of suspected terrorist targets when the government failed to pay its bills on time.

What is most troubling of all is that the Senate has already passed a bill that gives the Administration everything it wants. Any chance to stop this assault on our civil liberties now lies in the House.In order that concerned citizens may better understand the proposed changes to FISA, the MU chapter of the American Constitution Society will host a panel discussion on the topic this Thursday, February 21 March 13, 2008 from 5:00 to 6:00 pm in Hulston Hall, Room 6.

The panel will consist of Christina Wells, Professor of Law at MU, whose studies have focused on free speech and government access; Charles Davis, Professor of Journalism at MU and the executive director for the National Freedom of Information Coalition; local attorney and civil rights advocate Dan Viets; and John Coffman, who lobbies for the American Civil Liberties Union in Jefferson City.

[Ed. Note : This event has been rescheduled for March 13th due to severe weather. Professor Davis has also been added to the panel]

The case involves Oregon family law practicioner Brandon Mayfield, who was erroneously accused of involvement in the Madrid Train bombings of 2004. The FBI “matched” fingerprints found on a bag of detonating devices in Spain to Mayfield’s. Despite subsequent communication from Spanish authorities that Spain’s law enforcement officials suspected certain Morrocan nationals as the culprits, and despite Mayfield’s uninterupted presence within the United States for the previous ten years, the FBI sought and received from the FISA court warrants to secretly search Mayfield’s home and office (“sneak-and-peek”), and to listen-in on conversations both in Mayfield’s home and office. FBI surveillance further included watching the Mayfield family as they traveled to and from their place of worship, to and from the Mayfield children’s school, and to and from family activities.

By the way, Mayfield and his family are practicing Muslims. From the opinion (pps 9-11):

Plaintiff’s allege that DOJ and FBI employees “concocted false and misleading affidavits” in order to justify even more intrusive searches and ultimately to justify Mayfield’s arrest as a “material witness.” [...] Although the affidavits stated that “preliminary findings” of the SNP [Spanish National Police] “were not consistent” with the FBI fingerprint analysis, no mention was made of Spain’s [...] report to the FBI that stated the SNP did not agree with the FBI’s fingerprint match …

The affidavit included “speculative and prejudicial narratives” focusing on Mayfield’s religion and association with co-practicioners. Plaintiffs cite as an example, [FBI agent] Werders’s inclusion in his affidavit the fact that Mayfield attended a mosque and advertised his legal services in “Jerusalem Enterprises,” or what are known as the “Muslim Yellow Pages,” as evidence connecting Mayfield to the bombings as a material witness. Plaintiffs respond that the “Muslim Yellow Pages” also includes advertising by major companies such as Avis, Best Western, and United Airlines.

[...]

Based on these affidavits, broad search warrants were sought and issued. Mayfield’s family home and law office were searched. Computer and paper files from his home, including his children’s homework, were seized. Mayfield was ultimately arrested and initially held in the lockdown unit[.] His family was not told where he was being held. He and his family were told, however, that he was being held as a primary suspect on offenses punishable by death, and that the FBI made a 100% match of his fingerprint with the Madrid train bombing fingerprint.

The ease with which the FBI could obtain FISA warrants were due to two provisions inserted into FISA by the Patriot Act. First, where previously wiretapping and “sneak and peek” warrants required a “primary purpose” of obtaining foreign intelligence information, the Patriot Act revisions to FISA lowered the bar to a “significant purpose.” Second, where the target of the surveillance is a U.S. citizen, the FISC judge “must also find that the Executive Branch’s certification that a significant purpose of the search or surveillance is to obtain foreign intelligence information is not ‘clearly erroneous.’” Intstead of the “probable cause” standard of a crime committed or in commision, the government’s burden is dramatically lightened to simply “not clearly erroneous.”

Judge Aiken notes in the opinion (p. 19) that “the practical result of this amendment [...] is that in criminal investigations, the government can now avoid the Fourth Amendment’s probable cause requirement when conducting surveillance or searches of a criminal suspect’s home or office merely by asserting a desire to also gather foreign intelligence information[.]“

As easy as the press of a button.

How a Cold War program inspired terror war interrogationsMany of the harsh interrogation techniques now used in the war on terror bear a striking resemblance to tactics of the former Soviet KGB.

There is a reason. After the 9/11 attacks, US forces put a premium on getting actionable intelligence from suspected terrorists. But most of them refused to talk. Some interrogators complained that traditional techniques that complied fully with the Geneva Conventions weren’t working.

So the Defense Department and the Central Intelligence Agency reached back to a military training program with roots in the cold war. The program was originally designed to prepare downed American pilots and special-operations soldiers for capture during a war with the Soviet Union. The Survival, Evasion, Resistance, and Escape (SERE) school mimicked the anticipated Soviet interrogation techniques. According to former SERE instructors, the grueling program subjects trainees to aggressive questioning, isolation, sleep deprivation, stress positions, and simulated drowning (water-boarding). Soon, the coercive techniques were being used on detainees in Afghanistan; Iraq; Guantánamo Bay, Cuba; and the US Naval Consolidated Brig in Charleston, S.C.

Salon reports that meanwhile, at the annual American Psychological Association convention in San Francisco, the “last group of medical professionals willing to support the interrogation of ‘high value’ detainees” is poised to formally condemn the Torture Program. It’s not clear how much of an effect an APA resolution would have on steering psychologists away from aiding torture programs.

Theoretically, a psychologist could lose his state-issued license for violating an APA resolution, regardless of APA membership, which might plant a seed of doubt in a psychologist’s mind when he steps into a CIA interrogation booth. Military psychologists, for example, are required to maintain a state license.But the CIA might not be so strict. When asked a series of questions on whether the CIA requires psychologists working with that agency to maintain a state license, CIA spokesman George Little responded, “On these questions, I decline to comment.”

Still, psychologists predict that their colleagues — even those employed by the CIA — will be less inclined in the future to participate in harsh interrogations that have been explicitly condemned by the APA. “These are our rules and our professional ethics,” said Brad Olson, president of the Divisions for Social Justice within the APA. “What this whole group of professionals believes does matter. What psychologists say they are willing to do and not willing to do does matter.”

More here and here at Balkinization.

Americans overwhelmingly oppose George Bush’s efforts to wiretap Americans’ phone calls and emails without a search warrant, according to a Democrats.com telephone poll of 1,006 adults conducted by ICR.

Some may quibble with the wording of the statement respondents were asked to approve or disapprove: “President Bush wants the power to wiretap the phone calls and emails of Americans without a search warrant from a judge.” But that’s what he wants, isn’t it?

Mr Deghayes was captured in Pakistan – his family claim by bounty hunters – after the US attacked Afghanistan. They say he had gone there to start a business exporting dried fruit to a leading supermarket.

In the dossier, he claims to have seen US guards kill people, witnessed prisoners being partially drowned, and saw the Qur’an thrown into a toilet by a US guard.

The new claims come after earlier Guardian reports of Mr Deghayes’s ill treatment, including allegations that he was left blinded in one eye after a soldier plunged his finger into it, and claims that he had human excrement smeared on his face.

As several Guantanamo prisoners slowly are allowed release, no doubt more and more of these former prisoners will tell such stories. The “few bad apples” defense simply won’t match the systemic magnitude of the prisoners’ stories of abuse. Referring back to the New Yorker piece on “black sites,” it seems our government already has quite a handle on creating a systemic torture regimen for its “detainees.”

“The C.I.A.’s interrogation program is remarkable for its mechanistic aura. “It’s one of the most sophisticated, refined programs of torture ever,” an outside expert familiar with the protocol said. “At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.”

[...]

A former member of a C.I.A. transport team has described the “takeout” of prisoners as a carefully choreographed twenty-minute routine, during which a suspect was hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location. A person involved in the Council of Europe inquiry, referring to cavity searches and the frequent use of suppositories during the takeout of detainees, likened the treatment to “sodomy.” He said, “It was used to absolutely strip the detainee of any dignity. It breaks down someone’s sense of impenetrability. The interrogation became a process not just of getting information but of utterly subordinating the detainee through humiliation.” The former C.I.A. officer confirmed that the agency frequently photographed the prisoners naked, “because it’s demoralizing.”

[...]

Ramzi Kassem, who teaches at Yale Law School, said that a Yemeni client of his, Sanad al-Kazimi, who is now in Guantánamo, alleged that he had received similar treatment in the Dark Prison, the facility near Kabul. Kazimi claimed to have been suspended by his arms for long periods, causing his legs to swell painfully. “It’s so traumatic, he can barely speak of it,” Kassem said. “He breaks down in tears.” Kazimi also claimed that, while hanging, he was beaten with electric cables.

There is no well-mannered “intellectually honest” State Department lawyer, no distinguished law professor, no “follower” of the philosophy of Christ, who can justify, excuse or otherwise explain the systematic dehumanization and degradation of Guantanamo, the “Black Sites,” and Abu Ghraib. This administration’s evisceration of the Geneva Conventions, its persistent forwarding of the theory of a “unitary executive,” and the petulance of its divine-righted “decider” each in its own way have contributed to the culture of lawlessness and human degradation of Guantanamo. There is no law but the Decider’s law. And there is no act, however cruel, degrading or perverted, that cannot be coolly and systematically committed in the name of the Decider’s War on Terror. A man sodomized, his face smeared with feces – this is an end result, a logical conclusion to the “advocacy” of genteel government lawyers, the novel theories of legal “scholars,” and the “necessary steps” of a self-described “Christian.”

In January of 2009 it will be tempting for America, before itself and before the world, to write-off the Cheney-Bush administration as an aberration. But throughout this current administration’s lawlessness, Congress bi-partisanly either meekly assented to or actively promoted every one of the administration’s actions involving “detainee” treatment. Most importantly, we the people have assented as well. Perhaps we are too willing, as in the case of Abu Ghraib, to accept the “bad apples” defense our government puts forth. Perhaps we are unwilling to look squarely at what we’ve allowed our government systematically to do to countless human beings. Perhaps it’s too disturbing for us to admit having a part in.

The Bush Administration has gone to great lengths to keep secret the treatment of the hundred or so “high-value detainees” whom the C.I.A. has confined, at one point or another, since September 11th. The program has been extraordinarily “compartmentalized,” in the nomenclature of the intelligence world. By design, there has been virtually no access for outsiders to the C.I.A.’s prisoners. The utter isolation of these detainees has been described as essential to America’s national security. The Justice Department argued this point explicitly last November, in the case of a Baltimore-area resident named Majid Khan, who was held for more than three years by the C.I.A. Khan, the government said, had to be prohibited from access to a lawyer specifically because he might describe the “alternative interrogation methods” that the agency had used when questioning him. These methods amounted to a state secret, the government argued, and disclosure of them could “reasonably be expected to cause extremely grave damage.” (The case has not yet been decided.)

Jack Balkin:

Behind the current events is a more troubling trend. As Sandy Levinson and I have written, we are in a gradual transition from a National Security State to a National Surveillance State. We pointed out that although the Republicans got first crack at constructing many features of this emerging state, it would be a bipartisan effort. The only issue will be what kind of national surveillance state we would have, and whether government would put in place the appropriate checks and balances to protect civil liberties, prevent the multiplication of secret laws and secret methods of enforcement, and restrain an increasingly ambitious executive.So far the answers to this question have not been reassuring. Whether controlled by Republicans or Democrats, Congress seems willing to bestow more and more unaccountable power to the President of the United States. The Democratic Party, which has long prided itself on its support for civil liberties, seems altogether to have lost its soul, and the Republican Party, which long contained a strong element of libertarianism and respect for individual freedom– particularly in economic matters– has given up any claims to providing a counterweight to a deluded and incompetent President.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

The first public reference to the order came obliquely this week from House Minority Leader John Boehner—one of a number of senior Republicans who have been leading the White House-backed campaign to persuade Congress to rush through an expanded eavesdropping measure before it leaves for August recess at the end of this week.

So, this FISA court ruling supposedly explains the “emergency.”

But instead of answering questions, an “oblique reference” to a secret opinion about a secret program written by a nameless judge only raises more questions. Were there other aspects of the surveillance program (remember – apparently cleaned-up in the hopes of passing FISA court muster) that the FISA judge determined violated the law? The only information leaked to the press is that which selectively bolsters the administration’s sudden insistence on a specific revision of the FISA statutes. Unfortunately, oblique references and self-serving leaks may prove sufficient in moving Congress toward unquestioningly revising the FISA statutes.

And if Congress’s fear of not looking “tough on terrorism” is not enough to move them, the Capitol’s subjection to one of Michael Chertoff’s “gut feelings” may better drive the administration’s point home.

More at WaPo:

Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.

“It clearly shows that Congress has been playing with half a deck,” said Jim Dempsey, policy director for the Center for Democracy and Technology. “The administration is asking lawmakers to vote on a very important piece of legislation based upon selective declassification of intelligence.”

Under pressure from President Bush, Democratic leaders in Congress are scrambling to pass legislation this week to expand the government’s electronic wiretapping powers.Democratic leaders have expressed a new willingness to work with the White House to amend the Foreign Intelligence Surveillance Act to make it easier for the National Security Agency to eavesdrop on some purely foreign telephone calls and e-mail. Such a step now requires court approval.

It would be the first change in the law since the Bush administration’s program of wiretapping without warrants became public in December 2005.
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The administration says that digital technology and the globalization of the telecommunications industry have created a legal quandary for the intelligence community. Some purely international telephone calls are now routed through telephone switches inside the United States, which means such “transit traffic” can be subject to federal surveillance laws requiring search warrants for any government eavesdropping.

Under the program of wiretapping without warrants, which began soon after the Sept. 11 attacks, the N.S.A. eavesdropped on the transit traffic without seeking court approval. But in January, the administration placed the program back under the FISA law, which meant warrants were required for surveillance of the transit traffic.

After years of the administration saying that FISA need not be amended to accommodate “terrorist surveillance,” suddenly there is a just-discovered hole in the FISA statutes? And members of Congress, in the words of the NYT, are scrambling to speedily amend the statutes? How familiar this sounds.

Wired‘s Ryan Singel writes a thorough piece seriously questioning the “sudden emergency” of this FISA “reform” drive, as well as the potential for abuses especially prevalent in the administration’s proposed bill. The piece is well worth reading in its entirety, but here’s a snippet:

… the Administration’s proposed bill would let the government order the nation’s telecoms and internet providers to open their networks so that the government can build out spying complexes on their networks. The law would only require that foreign intelligence gathering be a “significant purpose” of the installation. So in essence the government could order the nation’s backbone providers to let the government turn the internet into one giant monitoring device and examine internet traffic for signs of copyright infringement, domestic political dissent, pornography and parking ticket violators, so long as the NSA’s computer algorithms also scan packets for the term “Al Qaeda.”

What was the administration doing prior to 2004 that was so illegal that the entire top level of the DOJ threatened to quit over it? It’s nice that the Senate Judiciary Committee wants a criminal investigation concerning Gonzales’ perjury.

But the real criminal investigation that is needed here — and that has been needed for quite some time — is an investigation over the underlying surveillance crimes — both warrantless eavesdropping and whatever else it was that they were doing that caused the DOJ mutiny on the ground that it was against the law.