Thursday, March 29, 2012

The NSA, Warrant-less Wiretapping, The Big Spy Center, and The Erosion of the Rule of Law

According to James Bamford of, "Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks."  He goes on to say, "In the process—and for the first time since Watergate and the other scandals of the Nixon administration—the NSA has turned its surveillance apparatus on the US and its citizens. It has established listening posts throughout the nation to collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas. It has created a supercomputer of almost unimaginable speed to look for patterns and unscramble codes. Finally, the agency has begun building a place to store all the trillions of words and thoughts and whispers captured in its electronic net. And, of course, it’s all being done in secret."

An ominous sounding project to be sure, but it's very interesting that he brings up Nixon.  Although he is wrong that this is the first time since the Nixon administration the NSA has surveilled US citizens, the Nixon administration was important in laying the ground work for the current policies surrounding domestic spying and wiretapping.  It's important to start here because this has indeed become one of the slow cons of the business and political elite which is leading the US to a sort of "soft" fascism.  The Watergate break-in and the criminality of Nixon and his administration that followed to cover up the break in is standard US history.  Part of that illegal break-in or series of break-ins involved wiretapping the DNC headquarters in the Watergate complex.  After the "smoking gun" tape revealed Nixon had known and participated in the covering up of crimes being investigated his legal team suggested he resign or he would surely be impeached for obstruction of justice, and conviction seemed imminent.  After Nixon's resignation Gerald Ford assumed the presidency and quickly pardoned Nixon for all crimes involved with the Watergate scandal.  In other words Ford decided to use his presidential authority to pardon a criminal simply because he was the former president.

The problem is this goes against the very foundation of the USA as stated by John Adams, "The very definition of a republic is 'an empire of laws, and not of men."  James Madison argued in Federalist 57 that "I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together...  without which every government degenerates into tyranny."  Whether it's Adams, Paine, Jefferson, Madison, Franklin, or even Hamilton they all favor the rule of law over all citizens equally and warn that privilege or exception from the law will bring tyranny.  Without adherence to this rule of law over all they all understood that the constitution and other such laws would become suggestions with compliance by government optional.

So Nixon got pardoned and while many were glad to move on or that the "end of the national nightmare" had come to an end, it has also set a precedence of excusing crime and criminality at the highest levels of US government.  For a more in depth look at this process I recommend Glenn Greenwald's With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful.  The precedence set by this has allowed things once thought to be unconstitutional (i.e. warrant-less wiretapping, assassination of a US citizen by executive decree, extraordinary rendition [torture by proxy], and use of aggressive military force without congressional consent) to become quasi-legal through claimed executive authority.  This is true even if they are strictly forbidden within the US constitution.  The warrant-less wiretapping of domestic citizens is strictly forbidden.  After the abuses by Nixon, and other domestic spy programs used mostly for political purposes, congress decided through the Church committee resolutions to create the FISA court of 3 judges that would issue warrants for domestic wiretaps.  However the G.W. Bush administration was committing the crime of domestic wiretaps and collection of data from electronic communications through the NSA.

A NY Times article in December of 2005 by James Risen and Eric Lichtblau revealed that the Bush administration had allowed the NSA to participate in this domestic spying ignoring the law that warrants must be obtained.  In other words the rule of law was ceded in the name of national security and allowed immunity for such crimes granted by the political class.  If the failure to prosecute or impeach Bush for clearly illegal activities seems bad, what about retro-active grants of immunity by congress for those involved in the crimes?  It was later revealed by whistle blower Mark Klein that AT&T had, "installed a fiber optic splitter at its facility at 611 Folsom Street in San Francisco that makes copies of all emails, web browsing, and other Internet traffic to and from AT&T customers, and provides those copies to the NSA."  AT&T wasn't alone in allowing the NSA to illegally spy on US citizens, but the list included other telecom giants like Verizon and Bell South.  It's important to note that FISA grants the Telecom industry full immunity in the case that they were acting in good faith and not knowingly breaking the law.  Qwest at that time decided not to co-operate with the Bush administration because they questioned the legality of such actions even asking the NSA to take their proposal to a FISA court.  The above mentioned companies however were all on board with the program.

So once AT&T customers began suing AT&T in court and winning for the illegal release of their private communication data the Telecom companies decided to use their influence on congress to grant the retroactive immunity from all crimes related to the NSA wiretapping scandal.  The telecom companies began to use lobbyists to persuade a Democratic congress would concede to voting for immunity for the telecom industry.  Glenn Greenwald wrote that in the first three months of 2008 AT&T, Verizon, and Comcast "spent a combined total of almost $13 million on lobbyists." The details of how these connected lobbyists used their influence to gain amnesty are in Glenn's aforementioned book.  However the lobbying wasn't the only tool the telecom industry used to receive this retroactive immunity.  The campaign donations to key Democratic senators and congressmen helped in gaining congressional support of the amnesty legislation.  Jay Rockefeller for instance was one of these as he sat on the Senate Intelligence Committee.  He was also up for re-election in 2008.  As revealed by a article Rockefeller saw great gains in contributions from the telecom industry.

"Top Verizon executives, including CEO Ivan Seidenberg and President Dennis Strigl, wrote personal checks to Rockefeller totaling $23,500 in March, 2007. Prior to that apparently coordinated flurry of 29 donations, only one of those executives had ever donated to Rockefeller (at least while working for Verizon).

In fact, prior to 2007, contributions to Rockefeller from company executives at AT&T and Verizon were mostly non-existent.

But that changed around the same time that the companies began lobbying Congress to grant them retroactive immunity from lawsuits seeking billions for their alleged participation in secret, warrantless surveillance programs that targeted Americans.

 AT&T executives discovered a fondness for Rockefeller just a month after Verizon execs did and over a three-month span, collectively made donations totaling $19,350.

AT&T Vice President Fred McCallum began the giving spree in May with a $500 donation. 22 other AT&T high fliers soon followed with their own checks."

Also according to the watchdog group Maplight:
Verizon, AT&T, and Sprint gave PAC contributions averaging:
$8,359 to each Democrat who changed their position to support immunity for Telcos (94 Dems)
$4,987 to each Democrat who remained opposed to immunity for Telcos (116 Dems)

88 percent of the Dems who changed to supporting immunity (83 Dems of the 94) received PAC contributions from Verizon, AT&T, or Sprint during the last three years (Jan. 2005-Mar. 2008). See below for list of these 94 Dems.
All House Members (June 20th vote):
 Verizon, AT&T, and Sprint gave PAC contributions averaging:
$9,659 to each member of the House voting "YES" (105-Dem, 188-Rep)
$4,810 to each member of the House voting "NO" (128-Dem, 1-Rep)

This type of collusion by the corporate and government sectors  has become business as normal within  the government, but it is especially egregious when it is to retroactively immunize criminal behavior.  The elected officials are winning their positions mostly due to fund raising efforts.  The Center for Responsive Politics stated that in 2008, "the biggest spenders won 93 percent of House races and 86 percent of Senate races. In 2006, the top spenders won 94 percent of House races and 73 percent of Senate races. And in 2004, 98 percent of House seats went to candidates who spent the most, as did 88 percent of Senate seats."  These facts show the role money is playing in our elections, but what goes unseen often is that the push to fund raise can lead politicians to spend most of their time with those who can finance their campaigns.  However egregious this type of election process is towards our representative form of government on a regular basis, when they can be seen in collusion on granting large scale immunity retroactively for crimes the rule of law has ceased.

When the FISA amendments act of 2008 passed in the Democratically controlled senate it stamped out the investigations into the warrant-less wiretapping, granted immunity to the Telecom companies who knowingly broke the law, and vastly expanded the wireless eavesdropping powers of the government.  The bill passed with support from top democrats like Speaker Nancy Pelosi, Rahm Emanuel, and of course Barack Obama who violated his own promise to filibuster any bill with telecom immunity.  Instead Obama voted against Chris Dodd's filibuster and for the bill itself.  As soon as the legislation was signed into law by G.W. Bush all the suits filed against the telecom companies were dismissed.  The NSA and the illegal activities they participated in were codified into law rather than punished.

However a recent whistle blower named William Binney has gone on record for which states:
The NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US. The network of intercept stations goes far beyond the single room in an AT&T building in San Francisco exposed by a whistle-blower in 2006. “I think there’s 10 to 20 of them,” Binney says. “That’s not just San Francisco; they have them in the middle of the country and also on the East Coast.” ...

Binney left the NSA in late 2001, shortly after the agency launched its warrantless-wiretapping program. “They violated the Constitution setting it up,” he says bluntly. “But they didn’t care. They were going to do it anyway, and they were going to crucify anyone who stood in the way. When they started violating the Constitution, I couldn’t stay.” Binney says Stellar Wind was far larger than has been publicly disclosed and included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts. The haul only grew from there. According to Binney—who has maintained close contact with agency employees until a few years ago—the taps in the secret rooms dotting the country are actually powered by highly sophisticated software programs that conduct “deep packet inspection,” examining Internet traffic as it passes through the 10-gigabit-per-second cables at the speed of light. ... 

The software, created by a company called Narus that’s now part of Boeing, is controlled remotely from NSA headquarters at Fort Meade in Maryland and searches US sources for target addresses, locations, countries, and phone numbers, as well as watch-listed names, keywords, and phrases in email. Any communication that arouses suspicion, especially those to or from the million or so people on agency watch lists, are automatically copied or recorded and then transmitted to the NSA.
The scope of surveillance expands from there, Binney says. Once a name is entered into the Narus database, all phone calls and other communications to and from that person are automatically routed to the NSA’s recorders. “Anybody you want, route to a recorder,” Binney says. “If your number’s in there? Routed and gets recorded.” He adds, “The Narus device allows you to take it all.” And when Bluffdale is completed, whatever is collected will be routed there for storage and analysis.
According to Binney, one of the deepest secrets of the Stellar Wind program—again, never confirmed until now—was that the NSA gained warrantless access to AT&T’s vast trove of domestic and international billing records, detailed information about who called whom in the US and around the world. As of 2007, AT&T had more than 2.8 trillion records housed in a database at its Florham Park, New Jersey, complex.

The new spy center is a perfect example of rolling back of personal liberties and the rights of US citizens.  It should also serve as a chilling example of the collusion of centralized public and centralized private power working together to ensure their interests are forwarded.  It shouldn't come as any shock that in the midst of the scandal that AT&T and Verizon both received government contracts as part of a deal worth $48 billion dollars to provide telecom services to the government and it's agencies for 10 years.  For those who have spent anytime studying the rise of fascism in Germany before WWII, one thing that stands out is corporate and government collusion leading to a build up of military and intelligence forces.  Now I'm not trying to say that the US is on the verge of a Hilter-ian type of fascist revolution, but there should be no doubt by anyone who has been watching the past 3 or 4 administrations of the presidents that the two greatest centralized powers in history (the US military empire [with it's 737 worldwide bases], and the corporate/financial elite who control much of the world's economic development and market shares) are colluding to each others interests.  This great combination of power has allowed them to halt the rule of law for the benefit of an elite that could be called a title-less aristocratic class.  Until US citizen demand it's government stay within the powers granted to it by the constitution and not use the constitution as merely a set of guidelines which can be disregarded at will by executive authority, you better watch what you say, because the government is too.

"It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation."
Alexander Hamilton- Federalist No. 15