Warantless Wiretapping and Gnostical Turpitude

Prior to the recently passed Protect America Act, warantless interception of international communication was illegal. However, in 2005, the NSA allegedly engaged in such interception. The parties that got illegally wiretapped have taken the government to court. Now the government is saying that a court can't declare the wiretapping illegal because the records of it are "state secret" or "privileged." Strangely, in a 2005 press conference, President Bush denied such warantless wiretapping ever happened.

There is something very bizarre going on.

As discussed a few days ago, the US Congress passed the Protect America Act (primer here). It allows the administration to tap international communications -- without a warrant and without probable cause -- even if one of the citizens is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is "directed at a person reasonably believed to be located outside of the United States." (reasonable usually just means if the law enforcement could think it, which I assure you they always can).

The Protect America Act is the new law of the land.

Which means that before this new law a couple of weeks ago, in order to do that kind of intercept, the NSA did need a warrant/probable cause. Therefore, if prior to early August 2007 the NSA made an intercept of American citizens without warrant/probable cause, it would have been illegal for them to have done so.

Well, would you be surprised that prior to August '07, the NSA did engage in precisely in such illegal activity? How do we know? Easy: the government accidentally sent a log of its illegal wiretapping to the people it had been tapping. Now that the illegally tapped individuals have filed a case for $1 million each, the government has come in and said: "Whether plaintiffs were subjected to surveillance is a state secret...and information tending to confirm or deny that fact is privileged."

Uh. I think the govt would be better off defending themselves by invoking gnostical turpitude.

Anyway, al-Haramain, the Islamic Charity that was investigated for terrorism (indicted but not convicted), and was illegally wiretapped, was in court a few days ago, and here is what happened:

4:00pm PDT

In the Al-Haramain Islamic Foundation case, Assistant U.S. Attorney General Thomas Bondy also says the case should be tossed. "The state secrets privilege requires dismissal of this case."

Whether the foundation's lawyers were spied upon, which is the subject of the case, "Is itself a state secret," Bondy argues.

4:10pm PDT

Expanding on that theme, the government argues that the Al-Haramain case needs to be thrown out because the secret document that the government accidentally gave the foundation is so secret that it is outside of the case.

Bondy claims the plaintiff's memories of the document can't be allowed into the case because the only way to test them is against the "totally classified" document.

"Once the document is out of the case, which it has to be since it is privileged, the only way to test the veracity of their recollections is to compare it to the document," Bondy says.

The lower court allowed the case to go forward based on the Al-Haramain Foundation lawyers' memories of the document, but ruled that the document itself was not allowed into the case.

Judge Hawkins (left, file photo) wonders if the document is really that secret?

"Every ampersand, every comma is Top Secret?," Hawkins asks.

"This document is totally non-redactable and non-segregable and cannot even be meaningfully described," Bondy answers.

The government says the purported log of calls between one of the Islamic charity directors and two American lawyers is classified Top Secret and has the SCI level, meaning that it is "secure compartmented information." That designation usually applies to surveillance information.

4:25pm PDT

Judge McKeown: "I feel like I'm in Alice and Wonderland."

Eisenberg: "I feel like I'm in Alice in Wonderland, too."

4:30pm PDT

Al-Haramain lawyer Eisenberg argues that the government's rationale for dismissing the cases on state secrets grounds doesn't apply to his clients, since they already know they were surveilled from seeing the secret document.

McKeown asks whether the foundation's attorneys would have a case if the government hadn't inadvertently disclosed the call log.

"We wouldn't have known we were surveilled," Eisenberg replies. "Had they not made a mistake and revealed it to the victims... who would be out here to sue?"

The results won't be in for four months, though it looks grim for the charity.

Many thought that the Al-Haramain plaintiffs, who look to be the only people in America who can prove they were surveilled without warrants by the government's so-called Terrorist Surveillance Program, would be able to clamber over the legal obstacles standing in the way of getting a court to rule on the legality of warrantless wiretapping.

Instead, the court looks likely to throw out the Al-Haramain challenge because the government says the alleged surveillance call log is too secret to be used in court.

(For background and timeline on Al-Haramain and how the charity got the documents from the government, go here.)

The al-Haramain attorney had an interesting op-ed the other day, suggesting that President Bush himself was involved in covering up (lying) about the so called Terrorist Surveillance Program.

Eight words: "These calls are not intercepted within the country." That's how President Bush has described the so-called "Terrorist Surveillance Program" -- the president's warrantless wiretapping of communications between persons inside and outside the United States when the government claims a link to al-Qaida. The president said this during a press conference on Dec. 19, 2005, three days after The New York Times revealed the program's existence.

But now it seems those eight words weren't true. In fact, they concealed unlawful conduct.

It seems a potent argument, and one lawyers and the media are completely ignoring. Take the evidence on its face:

A) In 2005, NSA sends evidence of illegal wiretapping to people it is wiretapping.

B) President Bush says such illegal wiretapping never took place.

This is the age of the gnostical turpitude.

The following first appeared on Plural Politics, a social justice news, politics and analysis website.

Comments

[Irvingk]

You know those clicks on your phone sometimes? Well guess who is tapping you....

[SRegnet]

'Prior to the recently passed Protect America Act, warantless (sic) interception of international communication was illegal.' ...

And prior to FISA ('The Foreign Intelligence Surveillance Act of 1978'), it was legal.

Now it's legal again. Sometime in between, something important must have happened.

http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act_of_1978

[baylaw73]

So, the U.S. Goverment can violate the 4th Amendment, then withhold the proof that courts require to grant standing to sue (i.e. actual harm). So, defenders of the Prez, please explain to me how a citizen can prevent such abuse of the Constitution, if he/she cannot even prove the violation when they KNOW that it occurred? Plus, here's a great illustartion of Bush lying (I know at least one of you considers him an honest and honorable man). This is a slippery slope towards protecting other abuses under the umbrella of state secrets. Yikes.

[BadChristian]

As the United States Supreme Court said in its 1974 decision rejecting President Nixon's claims of absolute executive privilege, no American - not even the president - is above the law.
----

Obviously, the Supreme Court was wrong.

The President IS above the law, and the Vice President is outside of it. As it turns out, the law and order party has ordered the law to join the party...

Where MC Rove made the media dance like it had magic red shoes on.

"Throw your hands in the air, and party like you just don't care!"