The Obama Administration Has Embraced Legal Theories Even Broader Than John Yoo’s

The Justice Department recently released another of the now-notorious Office of Legal Counsel memos written by John Yoo — memos that authorized torture, warrantless wiretapping, and indefinite detention. The new memo, written as a “letter” to then-presiding FISC Judge Colleen Kollar-Kotelly in May 2002, addresses the legal basis for the NSA’s warrantless wiretapping of Americans’ communications under the “Stellar Wind” program.

Unsurprisingly, Yoo’s memo is extremely broad and poorly reasoned — but we knew that much already, thanks to Jack Goldsmith and Jim Comey. Still, it would be a mistake to think of Yoo’s memo as just an historical artifact, full of long-repudiated legal arguments. In fact, many of the arguments Yoo made behind closed doors in 2002 continue to appear in the Obama administration’s briefs defending warrantless surveillance under Section 702 of FISA today. And, in at least one key respect, the Obama administration’s arguments are even broader than the ones that Yoo felt he could justify.

Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.

But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad...

https://www.justsecurity.org/30460/obama-administration-embraced-legal-theories-broader-john-yoos/

The REAL Hastert Scandal: Pedophilia, Drug Money and Blackmail

Fisa court names Thomas Hogan as new presiding judge

The secretive US court that considers applications for electronic surveillance and physical searches of non-US targets will have a new presiding judge in May, the court has said.

Judge Thomas Hogan, who has been a federal judge in Washington DC since 1982, will begin work as the presiding judge of the foreign intelligence surveillance (Fisa) court on 19 May, the court said in a statement.

US chief justice John Roberts, who has exclusive authority over the makeup of the 11-judge spy court, made the appointment.

Although the court meets in secret to hear applications from prosecutors, it is increasingly in the public eye. Former National Security Agency contractor Edward Snowden revealed last year that the court approved the collection of a massive amount of US telephone data, much of it related to Americans.

http://www.theguardian.com/law/2014/mar/26/fisa-court-thomas-hogan-presiding-judge

http://en.wikipedia.org/wiki/Thomas_F._Hogan

Feds: Even Though We've Been Ordered To Reveal Secret Interpretation Of The PATRIOT Act, We're Not Going To Do That

You may recall that, back in early September, the FISA Court (FISC) agreed that its various rulings that secretly interpreted Section 215 of the PATRIOT Act to mean something entirely different than any plain language reading of the law implies should be declassified. Here's what the court said at the time:

The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215. Publication of FISC opinions relating to this provision would contribute to an informed debate. Congressional amici emphasize the value of public information and debate in representing their constituents and discharging their legislative responsibilities. Publication would also assure citizens of the integrity of this Court's proceedings.

In addition, publication with only limited redactions may now be feasible, given the extent of the government's recent public disclosures about how Section 215 is implemented. Indeed, the government advises that a declassification review process is already underway...

http://www.techdirt.com/articles/20131119/09272825290/feds-even-though-weve-been-ordered-to-reveal-secret-interpretation-patriot-act-were-not-going-to-do-that.shtml

The Door to the FISA Court

Nobody will actually tell you where the door to the Foreign Intelligence Surveillance Court — also known as the "FISA Court" — is. It's understood to have moved from the Department of Justice to the E. Barrett Prettyman Courthouse in 2009, but when I visited Prettyman, the employees in the first floor District Clerk's office (gently) laughed at my attempts to find anything about the Court. They referred to it as the "Room of Requirement", and said they had no idea what floor it was even on.

But if you walk through each floor of the Courthouse, and if you believe the Washington Post's 2009 description of the FISA Court door as having "biometric hand scanners" and being in a "public hallway", then it becomes pretty obvious that on the 3rd floor's solemn hallway, you've found your door:...

http://konklone.com/post/the-door-to-the-fisa-court

Comparing Two Secret Surveillance Programs

New details about two government programs used by the National Security Agency to gather telephone and Internet data provide insight into how surveillance programs that began under George W. Bush have been used under President Obama...

http://www.nytimes.com/interactive/2013/06/07/us/comparing-two-secret-surveillance-programs.html

Intelligence Oversight Steps Back from Public Accountability | Secrecy News

The move by Congress to renew the FISA Amendments Act for five more years without amendments came as a bitter disappointment to civil libertarians who believe that the Act emphasizes government surveillance authority at the expense of constitutional protections.  Amendments that were offered to provide more public information about the impacts of government surveillance on the privacy of American communications were rejected by the Senate on December 27 and 28.

Beyond the specifics of the surveillance law, the congressional action appears to reflect a reorientation of intelligence oversight away from public accountability.  The congressional intelligence committees once presented themselves as champions of disclosure. They no longer do so.

The first annual report of the Senate Select Committee on Intelligence, chaired by the late Sen. Daniel K. Inouye, stated in 1977 that “While most of the work of the Committee is, of necessity, conducted in secrecy, we believe that even secret activities must be as accountable to the public as possible.”

via fas.org

NSA Chief Denies, Denies, Denies Wired's Domestic Spying Story | Wired.com

NSA chief General Keith Alexander faced tough —  and funny — questions from Congress Tuesday stemming from Wired’s story on the NSA’s capabalities and warrantless wiretapping program.

Congressman Hank Johnson, a Georgia Democrat, asked Alexander whether the NSA could, at the direction of Dick Cheney, identify people who sent e-mails making fun of his inability to hunt in order to waterboard them.

Alexander said “No,” adding that the “NSA does not have the ability to do that in the United States.” Elaborating, Alexander added: “We don’t have the technical insights in the United States. In other words, you have to have [...] some way of doing that either by going to a service provider with a warrant or you have to be collecting in that area. We’re not authorized to do that, nor do we have the equipment in the United States to collect that kind of information.”

via wired.com

Appeals Court OKs Challenge to Warrantless Electronic Spying

A legal challenge questioning the constitutionality of a federal law authorizing warrantless electronic surveillance of Americans inched a step closer Wednesday toward resolution.

The 2nd U.S. Circuit Court of Appeals for the second time rejected the Obama administration’s contention that it should toss a lawsuit challenging the 2008 Foreign Intelligence Surveillance Amendments Act. Among other things, the government said the plaintiffs — Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and others — don’t have standing to bring a constitutional challenge because they cannot demonstrate that they were subject to the eavesdropping or suffered hardships because of it.

The lawsuit, backed by the American Civil Liberties Union, was lodged within hours of the FISA Amendments Act (.pdf) being signed into law by President George W. Bush in July 2008. The legislation is being challenged because it allows the National Security Agency to electronically eavesdrop on Americans without a probable-cause warrant if one of the parties to the communication resides outside the United States and is suspected of a link to terrorism.

via wired.com