Eight Americans of south Asian and Middle Eastern descent who were repeatedly detained at the border for questioning will be able to learn if they are actually on the government's terrorist watch list, a federal court in Illinois ruled last week, marking the first time that citizens have been able to learn whether they have been added to a sprawling and error-prone list used for screening at borders and traffic stops.

The government invoked the powerful state secrets privilege in the case, arguing that letting the plaintiffs know if they are or aren't on the list would harm national security since that could alert them to the fact they have been under government scrutiny.

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The court's rebuff (.pdf) of the government's use of the state secrets privilege is highly unusual, as courts are rarely willing to challenge the executive branch on mattes of national security. Experts call the state secrets privilege the "nuclear option," and the Bush administration has used it widely to dismiss cases challenging its warrantless wiretapping program and the CIA's use of secret overseas prisons.

Nice to see checks and balances kick in.

Local mirror of decision

President George W. Bush's successor should renounce his monarchy. It betters the instruction of King George III, which provoked the Declaration of Independence. Among other things, the 44th president of the United States should do the following promptly upon taking office: Transfer the impending trials of six "high-value" al-Qaida detainees before Spanish Inquisition-like military commissions to civilian courts; repudiate President Bush's kidnappings, secret imprisonments, and maltreatments of suspected al-Qaida supporters abroad on his say-so alone--a page from Hobbes' state of nature; denounce signing statements that declare the president's intent to disregard provisions of bills he has signed into law because he disputes their constitutionality; and end the snobbish custom of former government Brahmins preening in their honorifics after leaving office. The Founding Fathers prohibited titles of nobility to encourage a nonhierarchical culture that honors equality before the law.

As part of a recent CNN special called Black in America much new information came to light about the FBI's surveillance of Martin Luther King Jr., information that should stand as a stark warning of the dangers of allowing one branch of government to engage in surveillance of American citizens without oversight from another.

That is precisely what happened in the 60s under J. Edgar Hoover, who kept up a relentless and obsessive campaign to eavesdrop on King and use anything he found to discredit the civil rights leader, all in blatant violation of the 4th amendment prohibition on unlawful searches. The 4th amendment requires that all searches and surveillance on American citizens be undertaken only after showing probable cause and getting a warrant from a judge, yet the only person who authorized the bugging of King's home and the tapping of his phones was Robert Kennedy, attorney general at the time.

After King delivered his famous "I have a dream" speech in Washington in August 1963, the FBI began to focus enormous institutional attention on him. One FBI memo from just after that speech declared King the "most dangerous and effective Negro leader in the country," while another called for a meeting of department heads to "explore how best to carry on our investigation [of King] to produce the desired results without embarrassment to the Bureau." Left unsaid is any legitimate reason why the FBI should be investigating King at all, a man clearly being surveilled solely because he advocated ideas the government didn't like.

One month after that famous speech, Kennedy approved a request from Hoover to allow the FBI to break into King's home and place recording devices. There doesn't appear to be any concern at all for the legality of the operation; Kennedy's only concern was for the "delicacy of this particular matter" and he wanted to make sure that the agents didn't get caught planting the bugs. The chief law enforcement officer in the nation, sworn to uphold the constitution, had given permission to the FBI to flagrantly break the law and violate the constitution by bugging the home of a man who had broken no laws whatsoever, a man who had done nothing but engage in perfectly legal protest against laws that are universally viewed with disgust today.

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We've already weakened the probable cause requirement, allowing the executive branch to issue National Security Letters that certify that a given request for surveillance is part of a national security investigation. And we now know that the FBI has abused that authority literally thousands of times over the last few years, according to a Department of Justice report. We've already set up a secret court to hear such warrant requests to insure that no sensitive information will be released, and we've already passed a law that makes it a crime for anyone who is under surveillance to be informed of that fact.

But even these already weakened safeguards are too much for the Bush administration. They insist that the president has the unilateral power to authorize the FBI, the CIA and the NSA to listen in on any phone conversation or intercept any email, even those to or from American citizens, without ever asking for a warrant even from the secret FISA court. No need to meet the probable cause standard, or any other standard, because no one outside of those agencies will ever know who is being surveilled or why. In short, they insist that they have the omnipotent authority claimed by J. Edgar Hoover and Robert Kennedy in the 1960s.

Could they be using that power to do what Hoover and Kennedy did, to dig up dirt on political opponents that can be used to keep them compliant? Does that sound paranoid to you? It shouldn't. Those who ignore history, remember, are doomed to repeat it, and this is a lesson we should have learned long ago. If we allow the government to operate with impunity, to ignore the safeguards set up to protect our liberty, we cannot be surprised when we find that liberty imperiled.

The entire aricle is very well written.

House Democrats aren't planning a compromise on telecom amnesty and are actually going on offense to find a way to learn more about President Bush's five-year secret "Total Information Awareness" program.

At least that's what's suggested by a 119-page draft bill being circulated by the leaders of the House Intelligence and Judiciary committees as answer to the Administration-backed Senate spying bill.

The bill proposes a way for the government to issue blanket surveillance orders in order to force American telecom and internet providers to give the government a copy of every phone call, email or instant message that is believed to involve a foreigner. That mimics the Senate version and largely legalizes the president's warrantless wiretapping program.

However, the bill restates -- as the 30-year old spying law stated -- that the law is the only route for the government to conduct electronic surveillance inside the United States. Bush opposes that language and says he has the power as Commander in Chief to spy inside America without any Congressional or court oversight.

Hooray!

The U.S. Supreme Court today refused to review a legal challenge to the Bush administration's warrantless surveillance program. The case was brought by the American Civil Liberties Union on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the unchecked surveillance program is disrupting their ability to communicate effectively with sources and clients. The court's decision today lets stand an appeals court's ruling on narrow grounds that plaintiffs could not show with certainty that they had been wiretapped by the National Security Agency.

The following quote can be attributed to Jameel Jaffer, Director of the ACLU's National Security Project:

"Congress enacted the Foreign Intelligence Surveillance Act intending to protect the rights of U.S. citizens and residents, and the president systematically broke that law over a period of more than five years. It's very disturbing that the president's actions will not be reviewed by the Supreme Court. It shouldn't be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honored. Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances."

The battle for the nation's dumbest state legislator has been won. Utah state Sen. Chris Buttars has now officially crossed the line from looney religious righter to outright Orwellian nightmare. He has submitted a bill in Utah to make all reports of police misconduct secret and unavailable to the public.

Go on, admit it; you're scared. The House of Representatives didn't pass an extension of the law allowing Bush to wiretap American citizens without a warrant and now the terrorists are going to kill us all. John McCain is railing against the Democrats over it - the same John McCain who has spent his entire political life speaking out against torture but voted not to ban waterboarding the other day - and he's now adopted Bush's "evildoer" language.

It means that the government, if it wants to listen in on a phone call between two people overseas, say two "evildoers" talking in Afghanistan, they can do so all they want with no legal restrictions on them whatsoever; that is the way it has always been and it still is. And if they want to listen in on a phone call or intercept an email between someone in another country and an American citizen, they can still go ahead and do it and they have three days to ask the secret FISA court for a retroactive warrant.

That's right, they can still do it without a warrant and they can just go back and ask for one after the intercept has already taken place. And when they ask for one, they don't have to show probable cause as the 4th amendment requires, they only have to show that the request is part of an ongoing national security investigation and, under the Patriot Act, the judge has to grant it.

As I have maintained for months, I oppose the provision contained in the bill that grants blanket retroactive immunity to telecommunications companies that allegedly cooperated in the administration's warrantless wiretapping program. I believe granting retroactive immunity under these circumstances is wrong and undermines accountability.

Q But were the telephone companies told that it was legal to wiretap six months before 9/11?

MS. PERINO: The telephone companies that were alleged to have helped their country after 9/11 did so because they are patriotic and they certainly helped us and they helped us save lives.

If it was even all that useful, how come they didn't know about 9/11?

The Senate overwhelming voted Tuesday evening to legalize President Bush's warrantless wiretapping program and grant amnesty to the phone companies that helped out with the domestic spying..

The 68 to 29 vote is a major step in radically re-configuring 30 year-old limits on how the nation's spying services operate inside America's borders. The vote also deals a severe blow to civil liberties groups that are suing companies such as AT&T and Verizon for turning over millions of American's phone records to the government, and for helping the government wiretap American's phone and internet communications without a court order.

The bill, which expires in six years, allows the government to install permanent wiretapping outposts in telephone and internet facilities inside the United States without a warrant. However, if those wiretaps are used to target Americans inside or outside of the country, the government would have to get a court order. However, if the target is a foreigner or a foreign corporation, and they call an American or an American calls them, no warrant is required.

How did your senator vote?