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Color Of Law: FISA Review, Part I

bigbrotheriswatching.jpgIf this doesn’t make the privacy crowd sit up and take notice — let alone the follow-the-leader “fear-fear-fear” sheep — I don’t know what will.  Via the NYTimes (H/T to dakine):

…In early 2003, Mr. Klein took a tour of the Folsom Street office, where he saw a secret room under construction. By October 2003, he was transferred to that office, and he said he learned that only employees cleared by the security agency were allowed to enter the room.

Mr. Klein was responsible for maintaining Internet switching equipment near the secret room, and said he was stunned to discover that special “splitter” equipment had been installed in his area to route copies of all Internet traffic diverted through his lines into the secret room.

“What I saw is that everything’s flowing across the Internet to this government-controlled room,” he said.

Later, Mr. Klein obtained three AT&T documents that he said revealed the computer and equipment design for the room — documents that the company maintains he kept improperly after leaving AT&T in 2004. Those designs, according to Mr. Klein and other telecommunications specialists who have reviewed them, would give the security agency. the ability to sift and reroute international and domestic communications and data from the AT&T lines to another site.

“The physical apparatus gives them everything,” Mr. Klein said, adding, “A lot of this was domestic.”

Ever since the N.S.A. eavesdropping program was publicly disclosed in December 2005, the administration has said that it was limited to intercepting, without seeking court orders, the international calls and e-mail messages of people inside the United States suspected of terrorist ties….(emphasis mine)

They lied.

This is a set-up for one huge hoovering operation of every piece of data through the pipeline, domestic or not, without regard to obtaining an individualized warrant for spying on American citizens as required by the Constitution and the laws of this nation. And, worse, the in-house counsels of AT&T, Verizon and every other telecom company who cooperated with the Bush Administration’s push for unlawful spying without warrants.  They allowed this to happen in house, without ever requiring a lawful warrant or subpoena, without standing up as corporations often do to demand that a judge order them on the record in an adversarial hearing to turn over private client records before complying. They simply did it — and not just for a short, emergency period of time which is allowed under the FISA laws in case of emergency.

They did this for years.  Outside the law.  Outside any third-party oversight.  Outside any accountability whatsoever.  Wired has more from an older interview with Mr. Klein which expands on these issues.  And EFF has some substantial information about their case on their webpage here.

There is an enormous amount of power vested in the state and federal governments to intrude upon the privacy of citizens in a criminal investigation.  Our legal system is set up to temper that power by requiring that such warrants list the particular facts involved in a request for information in detail, so that an uninvolved third-party person can see whether such a request is appropriate under the particularized circumstances.

So I thought some basic information on what lawyers do on both sides of these sorts of cases, what the normal course of business is, and what the FISA law requires might be in order.  I thought all of this was pretty much common knowledge at this point, after two years of following these disclosures.  Clearly, I was wrong.

More on this in the next post…

(Photo via Choubistar.)

UPDATE:  I meant to include this — please call the Senate Judiciary Committee members today.  Tomorrow they begin the FISA bill mark-up, and a number of folks are leaning away from telecom immunity.  Let’s make certain they keep going in that direction, shall we?

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com