Well, God Forbid We Get Upset About Warrantless Surveillance and Sue the FBI

I just read in the latest SANS Institute Newsbytes newsletter a report that pretty much sums up the total collapse of the rule of law and due process protections for citizens this nation has undergone since Bush and Cheney took office and proceeded to declare the Constitution just a G*d-d*mned piece of paper. Some sources later suggested that the reports of Bush actually saying this may have been inaccurate. But the spirit certainly remains intact.

It seems the FBI has declared in court proceedings that it is reluctant to identify ISPs (Internet Service Providers) who are participating in warrantless surveillance programs on behalf of the FBI.

Why is that, you might ask?

After all, isn’t the prohibition against warrantless searches pretty much the bedrock if not the fundamental foundation of “The right of the people to be secure…against unreasonable searches and seizures, shall not be violated, and 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.” that is expressed in the Fourth Amendment to the Constitution?

Well, a top FBI official made such a statement in a court declaration “arguing against having to provide the information under a Freedom of Information Act (FOIA) request from the American Civil Liberties Union (ACLU). The official also noted that the companies might also be upset if they were identified.”

I am betting the ACLU is not going to object to my extensive quoting from their site in the following. After all, I am a card carrying, dues paying, extras funds-donating member of the ACLU. You should join, too.

Often when the government tries to suppress information about its surveillance programs, it cites national-security concerns. But not always.

In 2008, a few years after the Bush administration’s warrantless-wiretapping program was revealed for the first time by the New York Times, Congress passed the FISA Amendments Act. That act authorizes the government to engage in dragnet surveillance of Americans’ international communications without meaningful oversight. As we’ve explained before (including in our lawsuit challenging the statute), the FISA Amendments Act is unconstitutional.

In 2009, we also filed a Freedom of Information Act request to learn more about the government’s interpretation and implementation of the FISA Amendments Act. Last November, the government released a few hundred pages of heavily redacted documents. Though redacted, the documents confirmed that the government had interpreted the statute as broadly as we had feared and even that the government had repeatedly violated the few limitations that the statute actually imposed.

Two weeks ago, as part of our FOIA lawsuit over those documents, the government gave us several declarations attempting to justify the redaction of the documents. We’ve been combing through the documents and recently came across this unexpectedly honest explanation from the FBI of why the government doesn’t want us to know which “electronic communication service providers” participate in its dragnet surveillance program. On page 32:

(Ed. emphasis added to following excerpt of language which is shown as image from the court document on the ACLU web site.)

Specifically, these businesses would be substantially harmed if their customers knew that they were furnishing information to the FBI. The stigma of working with the FBI would cause customers to cancel the companies’ services and file civil actions to prevent further disclosure of subscriber information.

There you have it. The government doesn’t want you to know whether your internet or phone company is cooperating with its dragnet surveillance program because you might get upset and file lawsuits asserting your constitutional rights. Would it be such a bad thing if a court were to consider the constitutionality of the most sweeping surveillance program ever enacted by Congress?

FBI: If We Told You, You Might Sue

But wait! There’s More. In an article the next day, the ACLU reports further salient sections from the court filings of the FBI.

… given that these companies would pay a high price if it were it were known that they were providing information about their customers to the FBI, it is likely that companies, though lacking grounds to do so, would nevertheless avail themselves of legal options to resist cooperation… .

It is only with the understanding of complete confidentiality that full cooperation of such sources can be enlisted… .

In other words, the FBI’s concern isn’t just that you might sue, but that the companies might sue! Why? Because their comfortable relationship with the government’s surveillance apparatus would be exposed.

Don’t get me wrong. Surveillance is an important part of our government’s intelligence operations. But it is an awesome power that should be used in accordance with the law and our values. And when the government is depending on blanket secrecy to insulate its activities not just from public scrutiny but from legal challenge, something is deeply wrong.

FBI: If We Told You . . . (Part II)

The next link is to an Acrobat PDF file of the FBI Declaration, full text, available on ACLU web site. Read just a little bit of it. It is the declaration of an FBI agent, and if it is not one of the most chilling examples of what historians have come to call the banality of evil I have seen lately, I am not sure just how to classify it.

This is your government, and its security apparatus, no longer just chipping away at your civil liberties, but dismantling them with a sledgehammer, and clothing it in bureaucratic language that would make a member of the Stasi blush with pride.

I am currently the Section Chief of the Record/Information Dissemination Section (“RIDS”), Records Management Division (“RMD”), formerly at Federal Bureau of Investigation Headquarters (“FBIHQ”) in Washington, D.C., and currently relocated to Winchester, Virginia. I have held this position since August 1, 2002. Prior to my joining the FBI, from May 1, 2001 to July 31, 2002, I was the Assistant Judge Advocate General of the Navy for Civil Law. In that capacity, I had direct oversight of Freedom of Information Act (“FOIA”) policy, procedures, appeals, and litigation for the Navy. From October 1, 1980 to April 30, 2001, I served as a Navy Judge Advocate at various commands and routinely worked with FOIA matters. I am also an attorney who has been licensed to practice law in the State of Texas since 1980.

(2) In my official capacity as Section Chief of RIDS, I supervise approximately 276 employees who staff a total of ten (10) units and two field operational service center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for access to FBI records and information pursuant to the FOIA; Privacy Act of 1974 (“PA”); Executive Order 13526, Presidential, Attorney General and FBI policies and procedures; judicial decisions; and Presidential and Congressional directives. The statements contained in this declaration are based upon my personal knowledge, upon information provided to me in my official capacity, and upon conclusions and determinations reached and made in accordance therewith. My responsibilities also include the review of FBI information for classification purposes as mandated by Executive Order (“E.O.”) 13526,’ and the preparation of declarations in support of Exemption 1 claims under the FOIA. 2 I have been designated by the Attorney General of the United States as an original classification authority and a declassification authority pursuant to E.O. 13526, §§ 1.3 and 3.1.

(3) Due to the nature of my official duties, I am familiar with the procedures followed by the FBI in responding to requests for information from its files pursuant to the provisions of the FOIA, 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a. Specifically, I am aware of the treatment afforded plaintiffs’ November 18, 2009 FOIA request 3 seeking access to:

1. Any and all records created since July 10, 2008 indicating the number of: A. Acquisition applications submitted to the Foreign Intelligence Surveillance Court (“FISC”) pursuant to Section 702 of the FBA Amendments Act of 2008, Pub. L. No. 110-261 (2008). B. Acquisition orders the HSC has issued pursuant to Section 702 of FAA. C. Acquisition orders the HSC has granted with modifications. D. Acquisition applications the FISC has granted without modifications. E. Acquisition applications the FISC has requested.

2. Any and all records created since July 10, 2008 indicating the number of: A. U.S. persons whose communications have been collected or intercepted pursuant to Section 702 of the FAA. B. U.S. persons who have been targeted by surveillance conducted pursuant to Section 702 of the FAA. C. Targets of surveillance conducted pursuant to Section 702 of the FAA who were later determined to be located in the United States. D. U.S. persons who have been identified in disseminated intelligence reports resulting from or related to surveillance conducted pursuant to Section 702 of the FAA. E. Disseminated intelligence reports resulting from or related to surveillance conducted pursuant to Section 702 of the FAA that contain a reference to a U.S. person’s identity.

Civil Action No. 10-CV-4419 (RJS) ECF CASE


Author: Ron