Is Big Brother Still Watching You?
Between Don Imus' disgusting remark, the pontifications of the shamelessly self-promoting hypocritical self-appointed king of black people reverend Al Sharpton, and the continuing disaster march to freedom in Iraq, most of us have probably forgotten to ask: hey, is the NSA still wiretapping our phones without warrants? Wasn't that some kind of news story a while ago?
As a quick refresher, in December 2005 the New York Times first broke the story that the NSA was eavesdropping on the communications of US citizens without a warrant. Alberto Gonzales, the US Attorney General, confirmed that the reported program existed and had been explicitly authorized by Bush starting after the 9-11 attacks. He claimed that because the program only involved listening in on phonecalls when at least one person was a foreign national, going through the FISA court was legally unnecessary. In a classic Bush comment, the president first decried the leak of the program's existence and then finally declared that a debate on the legality of the program would be "good for democracy". Meanwhile, hapless silly liberals everywhere actually began to hope that Bush would be impeached over this. Right...
Perhaps most disturbingly, when the program was first revealed strong signs emerged that there were other undisclosed programs involving purely domestic communications. In other words, maybe the NSA is reading all of your emails and not just the ones you send to your penpal in Tora Bora. The first of these signs was when Gonzales testified to Congress and kept answering questions by explicitly saying 'this program' any time he gave assurances that one party being spied on was always a foreign national living oversees. The second was when Russell Tice, a former NSA employee alluded to such purely domestic programs in interviews with the media. His goal, he said, was to testify before Congress, and he claimed: "[T]here's no way the programs I want to talk to Congress about should be public ever, unless maybe in 200 years they want to declassify them. You should never learn about it; no one at the Times should ever learn about these things." Tice had left the NSA after losing his security clearance due to a psychological report that concluded he was paranoid. His problems had begun earlier when he worked for the DIA and reported that he thought a coworker was a spy for China. For an interesting interview with Tice go here.
The ACLU then sued the NSA and on August 17, 2006 a district court judge, Anna Diggs Taylor, ruled that the NSA program violated FISA and was unconstitutional (she also threw out a separate part of the lawsuit based on suspected data-mining programs such as Tice seemed to describe). During the case, two of the administrations arguments had been rejected by Taylor. First was that arguing the case would divulge state secrets (though Taylor agreed with the government in applying this to the separate data mining programs). Second, was that since no one could prove they specifically had been spied on without gaining access to classified information, they couldn't prove they were specficially harmed and so had no standing in court. The administration heavily criticized the ruling and immediately began an appeal.
Then in a sudden turnaround, in January, 2007 the Justice department announced that it had found a way to authorize the program under the supervision of a Judge on the FISC (Foreign Intelligence Surveillance Court) and so Bush would no longer reauthorize the program under special order. Gonzales sent a letter describing the decision to the Senate Judiciary committee. When the appeals court met, the government therefore asked for the case to be thrown out now, since the program was now under the review of the court. The ACLU is claiming that the President still hasn't given up the claim to reauthorize the program himself at anytime, and therefore the case shouldn't be thrown out. That case is still ongoing.
Perhaps the most interesting development has been in a separate lawsuit against the NSA for the same program. That case began when a lawyer, Wendell Belew, who was working to keep a Saudi charity off the terrorist watch list was accidentally given a letter marked Top Secret that contained lists of some phone calls he had made. Oops! Should any of us feel a little disturbed that the government is accidentally handing over Top Secret documents to suspected Saudi terrorist fronts? Regardless, the letter seems to give Belew direct evidence that he was spied on, and so the government cannot argue that he doesn't have standing in court.
Two separate court cases are also ongoing against telecommunication companies accused of cooperating with the NSA. One began when Mark Klein, who worked at AT&T "stumbled across secret NSA rooms" at an AT&T switching room in San Francisco. He at first tried to get the evidence he found published in the LA Times, but the editor refused to publish it under pressure from the Director of the NSA and the Director of National Intelligence. Another case has pitted the DOJ against the Maine Public Utilities Company (PUC). The PUC has initiated contempt preceedings agains Verizon for failing to swear under oath about previous statements made about their cooperation with the NSA. The DOJ has sued the PUC to stop them from ordering Verizon to comply.
So, is Big Brother still watching you? Well, probably yes, but perhaps with a little more supervision than before. As always, we will keep you updated...