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Warrantless Wiretapping: Then and Now, Bush and Obama, Feingold and Holder, Illegal or Illegal? (With Transcript)

When reading today’s revelations in the New York Times regarding U.S. government warrantless wiretapping programs, it is crucial that you pay attention to time and tense. Wired Magazine botches the job when it comes to describing a program code named Pinwale. Wired says:

The database, codenamed Pinwale, allows NSA analysts to search through and read large volumes of e-mail messages, including correspondence to and from Americans. Pinwale is likely the end point for data sucked from internet backbones into NSA-run surveillance rooms at AT&T facilities around the country.

…The paper reports today that the NSA is continuing to over-collect e-mail because of difficulties in filtering and distinguishing between foreign and domestic correspondence.

If an American’s correspondence pops up in search results when analysts sift through the database, the analyst is allowed to read it, provided such messages account for no more than 30 percent of a search result, the paper reported.

Did you read that? Wow! That’s an incredibly radical rethinking of government power — one in which the government can spy on American domestic communications without a warrant, so long as 70% of the spying it does is foreign. Americans’ 4th Amendment constitutional guarantee — that you and I and our kids and their neighbors and their green grocers will be free of government snoops unless a judge grants a specific warrant based on probable cause — has been reduced to the equivalent of a food labeling regulation: if it’s 70% constitutional, it’s “Constitutional!”

But wait a moment and notice that the last paragraph is written in the present tense. In regards to Pinwale, the New York Times actually makes a different claim about Pinwale and the Bizarro 30%/70% standard. Starting with a description of the FISA Amendments Act of 2008, which stepped over the prone constitution to declare such behavior legal, the Times writes:

That measure, which also resolved the long controversy over N.S.A.’s program of wiretapping without warrants by offering immunity to telecommunications companies, tacitly acknowledged that some amount of Americans’ e-mail would inevitably be captured by the N.S.A.

But even before that, the agency appears to have tolerated significant collection and examination of domestic e-mail messages without warrants, according to the former analyst, who spoke only on condition of anonymity.

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

Other intelligence officials confirmed the existence of the Pinwale e-mail database…

Although the Pinwale database is described in the present tense, the 30% rule is described in the past tense as a Bush-era artifact and not necessarily as a continuing standard. As the New York Times and the American Civil Liberties Union continue to drag more information into the light of day about the amazingly extensive program of domestic government warrantless surveillance, it’s important to maintain a clear distinction between what we know and what we don’t know, because identifying the boundaries of what we know is vital in the effort to know more.

Senator Russell Feingold of Wisconsin displayed a canny ability to skate the line of public knowledge regarding U.S. government warrantless wiretapping in his questioning of Obama administration Attorney General Eric Holder earlier today (play video or read below for transcript):

Senator Russell Feingold: I think I wrote to the president Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 White Paper that provided legal justifications for the Bush administration’s warrantless wiretapping program. The letter was prompted by, in part by a recent speech that I’m sure you’re aware of by the Director of National Intelligence in which he asserted that the program was not illegal. But he later clarified that. In a speech to the American Constitutional Society in June 2008 you, sir, said the following. “I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens.” And the president himself also, several times as a senator and during the campaign, said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

Attorney General Eric Holder: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress, um, and as a result did not have, um, all the protections, um, all the strength that it might have had behind it, as, as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken.

Senator Russ Feingold Questions Attorney General Eric Holder on June 17, 2009; Holder DemursFeingold: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to have been illegal, because that’s certainly the implication of what you said in the quote I read and the explicit statement of the man who is now President of the United States.

Holder: Yeah, well, what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with, um, the dictates of FISA, and I think I used the word contravention, um, and as a result I thought that the policy was an unwise one. And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.

Feingold: But did you think it was illegal?

Holder: Well, I thought that, as I said, it was inconsistent with, um, with the FISA statute and unwise as a matter of policy.

Feingold: Has something happened that’s changed your opinion since your June 2008 statement that would make it hard for you to just simply say what the president said, that it’s illegal?

Holder: No, I don’t think so. I don’t think what I’m saying now is necessarily inconsistent with what I said at the, um, at the, um the ACS convention or speech that I gave.

Feingold: Well, it sounds awfully mild compared to some very clear statements and a very important principle here, which is not only that this has to do with the scope of the FISA law, but the underlying constitutional issue that people like me and many people believe: that if the statute is that explicit under the third test, under Justice Jackson’s test, that it is in fact unconstitutional for the president and illegal, of course, for the president to override the expressed will of, of the Congress.

Holder: Yeah, well, as I said, I think I said contravention of, inconsistent with. I’m not sure I’d use the term illegal, and, um, I would adhere to, I’d adhere to what I said then. I think what I’m saying now is consistent with what I said in the speech.

Feingold: Well, that may well be, but I would hope that you would use the word illegal now, then. And I request in a letter I sent to the president on Monday, and also in a letter dated April 29th, that the administration withdraw the January 2006 white paper and other classified OLC memos providing legal justification of the program. I know you have initiated a review of the Bush era OLC memos. And, of course, certain memos that authorize torture have been withdrawn. Apparently, you discussed this a bit already today with Senator Feinstein. What is the status of your review of the memos concerning the warrantless wiretapping program?

Holder: Well, I asked the Office of Legal Counsel to review these prior opinions, including those that deal with surveillance, with the goal of making as many of these opinions public as we can, consistent with our national security interests and also consistent with ensuring that robust debate can happen within the executive branch. It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time.

Feingold: I just want to reiterate how important it is for the legal justification for this program to be withdrawn concerning these memos that make unsupportable claims of executive power that will come back to haunt us if they remain in effect. And if you believe, as I think the president has indicated in the past, that the program was illegal, they cannot stand.

Did you catch that? Here’s what Senator Feingold was able to establish:

1. Although both President Barack Obama and Attorney General Eric Holder definitively termed warrantless wiretapping against Americans to be illegal before they took office, now that they are in a position of executing the program they refuse to declare the program illegal. Indeed, even under repeated questioning Attorney General Holder refuses to use the word “illegal” to describe such practices. This is a downright Mukasey-like refusal to declare the obvious, a refusal that makes it clear what the Obama administration has hidden beneath its deep blue draperies.

2. Although it continues to proclaim its intention to make its rulings public at some obscure date in the future (as it has done since Inauguration Day), the Obama administration has not yet repudiated the Bush administration “White Paper” that deemed warrantless wiretapping of Americans to be kosher.

3. For those of you still sniffing the fumes of the idea that last year Barack Obama voted for the FISA Amendments Act so that as President he could implement his secret plan to dismantle it, listen to Eric Holder’s argument: maybe warrantless wiretapping of Americans was [insert vague not-quite-synonym of “illegal” here] under George W. Bush, but now that the FISA Amendments Act has been passed by Congress, it’s all OK. If you still don’t get it, reference Eric Holder’s testimony in January, wishing only that the FISA Amendments Act had been passed sooner.

These points of discovery — thank you Senator Feingold, and thank you New York Times — lead to three further questions that must be asked and should be answered:

1. Is the 70% constitutional = “Constitutional” labeling standard for warrantless wiretapping of Americans still in operational use? If not, what is the operational standard? 60/40? 80/20? What level of constitutionally impermissible spying on Americans has been branded “Constitutional?” How does this new “Constitutional” brand actually fit within the mandates of the Fourth Amendment to the Constitution?

2. Considering how gung-ho candidate Barack Obama was for transparency in government, and considering President Barack Obama’s Inauguration Day promise that “transparency and the rule of law will be the touchstones of this presidency,” why hasn’t the Obama administration released its legal opinion regarding warrantless wiretapping, and when will this be rectified?

3. In what alternative language does the phrase “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” allow this behavior to continue? Insert a pause there for consideration. Then, when they start to drift away, you add “no, no, no really.”

2 comments to Warrantless Wiretapping: Then and Now, Bush and Obama, Feingold and Holder, Illegal or Illegal? (With Transcript)

  • Tom

    People know how erosion works, a steady small stream takes away, often unnoticed, the substance that provides a firm foundation. Eventually, if not abated and filled in, it will undermine the support of the structure and collapse will occur.

    Do you hear that steady trickle, Mr. Holder?

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