Wired: Obama Stands Behind State Secrets in Spy Case

[steve2470]

http://www.wired.com/threatlevel/2009/09/obama-stands-behind-state-secrets-in-spy-case/

SAN FRANCISCO – Hours after the Justice Department announced it would limit its use of the state secrets privilege in new cases, the administration appeared before a federal judge here Wednesday and continued to invoke that defense in a closely watched spy case.

The litigation at issue, now five years old, tests whether a sitting president may bypass Congress and adopt a warrantless surveillance program, as President Bush did in the wake of the 2001 terror attacks.

“We need to protect information concerning the manner and methods by which we seek to detect and prevent a terrorist attack,” Justice Department special counsel Anthony Coppolino said Wednesday while arguing to a federal judge to dismiss the case on the basis of state secrets.

The 5-year-old case, having a tortured procedural history, is the furthest along in challenging the Bush administration’s warrantless Terror Surveillance Program.

The Obama administration said Wednesday that it would maintain President George W. Bush’s state secrets position when it came to lawsuits leftover from that administration.

more at link above

[Selatius]

1. As far as rolling back police powers go, Obama appears to be hardly better than Bush.

There are too many civil authoritarians in government these days. Eventually, there will be no more Bill of Rights.

Then, we're going to have ourselves a real war right here at home when the population finally snaps.

[boppers]

3. "when the population finally snaps"?

Would that be when private telegraphs were picked up?
When people got tired of their paper mail being read?
When every phone call was tracked?
When every grocery store purchase was tracked?
Every email?
Every web page visit?

What would it take?

I ask because I've worked in the gathering fields, and really, *nobody* seems to care. As long as there isn't a fear of the abuse of power, they're happy to have most of their lives on record.

[Selatius]

5. It could come a century or now or even sooner or later. Nobody really knows, but it's true to say...

that no government lasts forever. Sooner or later, our government will fall. Its power will someday be smashed, and it will surely be replaced by something else, hopefully something better. Change is constant. Not even the seemingly most invulnerable powers and tyrannies can withstand time. This Republic, for instance, could not last 200 years without one violent civil war and several smaller rebellions. A 100 year window might not be too far out of the question to expect another violent power struggle within the Republic itself.

I would like to think that I will live long enough to see the tyranny of proto-fascism or, God forbid, outright, naked, brutal fascism removed from our government, but I am consigned to the notion that I will go to my grave before such a day arrives.

[boppers]

2. Uhm, these were phone calls made to/from outside of the United States.

No warrant needed.

Same procedure we've followed for the last 200 years.

I'm guessing the "secret" here is that we've been intercepting this traffic for the last 200 years, everything from mail to telegraph to telephone to email and web pages?

Is this not common knowledge? It doesn't seem to be, as apparently the plaintiffs think they have a case...

[leveymg]

6. Under pre-2008 FISA, warrant required If one party in int'l call was a US person.

I don't think there was e-mail in 1809.

[boppers]

7. Wow. Uh, yeahbutno.

HTLINGUAL, SRPOINTER, SHAMROCK, MINARET... FISA tried to change these, but merely changed how such operations were carried out. SIGINT could no longer be legally collected by government agencies without a warrant, but *could* still be collected by private agencies, and then voluntarily turned over to the government.... without a warrant.

So, AT&T *could* demand a warrant to allow a third (non-government) party to snoop their lines, but they weren't required to.

Guess what happened...

Post FISA, there was an explosion of private contracting agencies. Companies that could inspect every call, email, web page, etc. Those companies could then turn the data over to... whoever.

[grantcart]

4. Very ironic that you would post this today

First the Justice Department and career attorneys work seperated from direct executive involvement with the White House. It would be highly improper for the President to get invovlved in a "5 year old case".

Secondly the Justice Department announced that the Administration is establishing new regulations (the proper avenue for a President to get involved in a question rather than managing cases) that would significantly increase the threshold in which state secrets could be kept in such cases.


http://www.washingtonpost.com/wp-dyn/content/article/2009/09/22/AR2009092204295.html?hpid=topnews

The Obama administration will announce a new policy Wednesday making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping, according to two senior Justice Department officials.

The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to "national defense or foreign relations." In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.

That claim was asserted dozens of times during the Bush administration, legal scholars said.

The shift could have a broad effect on many lawsuits, including those filed by alleged victims of torture and electronic surveillance. Authorities have frequently argued that judges should dismiss those cases at the outset to avoid the release of information that could compromise national security.

The heightened standard is designed in part to restore the confidence of Congress, civil liberties advocates and judges, who have criticized both the Bush White House and the Obama administration for excessive secrecy. The new policy will take effect Oct. 1 and has been endorsed by federal intelligence agencies, Justice Department sources said.

"What we're trying to do is . . . improve public confidence that this privilege is invoked very rarely and only when it's well supported," said a senior department official involved in the review, who spoke on the condition of anonymity because the policy had not yet been unveiled. "By holding ourselves to this higher standard, we're in some way sending a message to the courts. We're not following a 'just trust us' approach."