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Obama Administration Still Keeping Much Secret About Bush’s Warrantless Wiretapping Program

Blacked Out

The Justice Department released to the American Civil Liberties Union (ACLU) two memos on the authorization of warrantless wiretapping, as part of the top secret program, Stellar Wind. The memos were created during President George W. Bush’s administration and contain the “legal justification” for electronic surveillance without a warrant. However, one of the me was previously provided with significant redactions to the ACLU in March 2011. It remains heavily censored.

The memo [PDF] was written by former Office of Legal Counsel (OLC) head and lawyer, Jack Goldsmith, and is dated May 6, 2004.

As ACLU staff attorney Patrick Toomey told The Washington Post, “What these memos show is that nearly three years after President Bush authorized the warrantless wiretapping of Americans’ emails and phone calls, government lawyers were still struggling to put the program on sound legal footing.”

Goldsmith has presented himself as someone initially concerned with the legal reasoning behind the Bush administration’s warrantless wiretapping, when he became OLC head. He supposedly came in and helped to rein in the program after OLC lawyer John Yoo had written similar memos basically suggesting that the president had unlimited authority to wiretap without a warrant anything with electronic signals flowing through it to fight terrorism.

In the United States of Secrets program by FRONTLINE, which aired this year on PBS, Goldsmith says, “The program was an example of the administration going it alone, in secret, based on inadequate legal reasoning and flawed legal opinions.” And it is suggested that Goldsmith was concerned that the administration could not justify “tracking data about the emails of tens of millions of Americans.”

The memo released contains an entire section on email privacy under the Fourth Amendment that was previously redacted in 2011 by the Justice Department. Goldsmith wrote, “Email users have no subjective expectation or privacy in email meta data information.”

Goldsmith defends the collection of content in emails, another part of the analysis in the memo that had previously been redacted in 2011 to apparently hide that the government was collecting emails under Stellar Wind. If Goldsmith was outraged, he no longer was by the time he wrote the memo, as his legal analysis clearly enabled the Bush administration to continue doing what it had been doing with its dragnet warrantless surveillance of millions, including Americans.

Additionally, more than ten years later—and despite all that has transpired since NSA whistleblower Edward Snowden began to have his disclosures published by journalists, there is still far too much on the warrantless wiretapping program being kept hidden from Americans by President Barack Obama’s administration.

Going page-by-page through the memo, there is, perhaps, one additional page or two of information that the Obama administration determined the public is now allowed to know. The public is allowed to know that Stellar Wind involved “content collection.” Citizens can have a bit of the analysis of why the president has the “statutory authority” to collect phone metadata. It is okay for citizens to know that the Justice Department argued “interception of the routing information for both telephone calls and emails does not implicate any Fourth Amendment interests.” They are also permitted to know that the memo contemplated the “acquisition of metadata” and how that does not implicate the Fourth Amendment either. And the public may know Goldsmith’s arguments for Americans having no right to email metadata privacy.

As journalist Marcy Wheeler points out, it is also now possible to tell that the memo detailed the “legal justification” for warrantless dragnet phone surveillance. But the public is not allowed to know any of the legal analysis justifying this dragnet because that is entirely blacked out or marked as “withheld.”

Wheeler contends that this memo is being released to ACLU at this moment to show Congress that it does not matter whether Congress reauthorizes the dragnet, which allows for the collection of phone records. The Executive Branch or president will still use legal arguments in this memo to claim the authority to continue such dragnet surveillance.

*

Let’s take a look at what else the Obama administration insists on still keeping secret.
The legal analysis for why Stellar Wind is justified under Executive Order 12333

Former State Department executive John Napier Tye has claimed Americans’ communications could be “incidentally” collected during a “lawful overseas foreign intelligence investigation” under EO 12333. The executive order “does not require that the affected US persons be suspected of wrongdoing and places no limits on the volume of communications by US persons that may be collected and retained.” And, he adds, “No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.” So, keeping this section from Americans is rather troubling, as it obviously means this legal analysis is still being used to justify surveillance powers the Obama administration does not want to be subject to public scrutiny.

A huge blacked out section follows Goldsmith’s statement that the Justice Department must address whether constraints under the Foreign Intelligence Surveillance Act (FISA) are constitutional. What is being hidden here?

The above is a footnote that begins to analyze the First Amendment implications of warrantless surveillance. What could Goldsmith possibly be saying about surveillance of domestic groups and this authority that should reasonably be kept from being public?

As shown above, right before Goldsmith is to explain how the FISA court might restrict the president’s authority as Commander-in-Chief to essentially spy on everything. But that is censored.

Goldsmith states that Stellar Wind is within the president’s authority and any prohibitions on his efforts to “intercept enemy communications” through the program would be “an unconstitutional encroachment on the Commander-in-Chief power.” A page and a half follows that is entirely blacked out.

What about the president not interfering with Congress’ power to constrain the office is being kept secret here?

Three pages are then “withheld in full” after indicating that a judicial precedent, Youngstown, which involved President Harry S. Truman using his commander-in-chief powers to exercise control over domestic matters, would not enable Congress to “constitutionally prohibit the President from engaging in the activities contemplated in Stellar Wind.”  

After three pages of “withheld” analysis, the words, “To summarize, we conclude,” do not convince anyone that this summary is not omitting key details the public should know. How do you summarize [REDACTED]?

 

This is the taste of the 15 pages of information on telephony metadata collection that was previously “withheld” entirely back in 2011.

What in this paragraph about Stellar Wind under the Fourth Amendment and whether Americans’ have a right to privacy could possibly be blacked out?

Ten years later, this section with five bullet-points with “highlights that have appeared” in “threat-related intelligence reporting” is censored entirely. What of this intelligence reporting is still current and not historical, when it comes to fighting al Qaeda? Why can’t Americans see the threat assessment that led government officials to pretty much suspend the Fourth Amendment?

And the above shows entire blacked out sections in the analysis of why Americans don’t have right to email privacy.

Finally, there is a statement on page 70 about Stellar Wind coming “within the powers of the Commander-in-Chief in conducting a military campaign and that provisions in FISA or Title III that would prohibit it are unconstitutional as applied.”

Title III is the criminal or penal code in the United States. Analysis of Title III is conspicuously censored or absent from this memo, even though Goldsmith mentions it here.

The FISA Amendments Act of 2008, which Senator Barack Obama infamously flip-flopped and voted for (likely on behalf of his big corporate sponsor, AT&T), granted retroactive immunity to telecommunications companies involved in warrantless wiretapping. It retroactively legalized much of the dragnet surveillance and made it near impossible to hold any official accountable for felonious conduct that had occurred.

This heavily censored legal memo makes it clear that Obama will continue to cover for the previous crimes of the administration when it comes to warrantless surveillance. Memos by Yoo are still secret and, if it is even imaginable, granted the president even broader authority than Goldsmith’s memos.  So, by continuing to keep aspects of “the program” secret, Obama is maintaining a stark continuity between his administration and the Bush administration that further entrenches the imperial presidency.

CommunityThe Dissenter

Obama Administration Still Keeping Much Secret About Bush’s Warrantless Wiretapping Program

The Justice Department released to the American Civil Liberties Union (ACLU) two memos on the authorization of warrantless wiretapping, as part of the top secret program, Stellar Wind. The memos were created during President George W. Bush’s administration and contain the “legal justification” for electronic surveillance without a warrant. However, one of the me was previously provided with significant redactions to the ACLU in March 2011. It remains heavily censored.

The memo [PDF] was written by former Office of Legal Counsel (OLC) head and lawyer, Jack Goldsmith, and is dated May 6, 2004.

As ACLU staff attorney Patrick Toomey told The Washington Post, “What these memos show is that nearly three years after President Bush authorized the warrantless wiretapping of Americans’ emails and phone calls, government lawyers were still struggling to put the program on sound legal footing.”

Goldsmith has presented himself as someone initially concerned with the legal reasoning behind the Bush administration’s warrantless wiretapping, when he became OLC head. He supposedly came in and helped to rein in the program after OLC lawyer John Yoo had written similar memos basically suggesting that the president had unlimited authority to wiretap without a warrant anything with electronic signals flowing through it to fight terrorism.

In the United States of Secrets program by FRONTLINE, which aired this year on PBS, Goldsmith says, “The program was an example of the administration going it alone, in secret, based on inadequate legal reasoning and flawed legal opinions.” And it is suggested that Goldsmith was concerned that the administration could not justify “tracking data about the emails of tens of millions of Americans.”

The memo released contains an entire section on email privacy under the Fourth Amendment that was previously redacted in 2011 by the Justice Department. Goldsmith wrote, “Email users have no subjective expectation or privacy in email meta data information.”

Goldsmith defends the collection of content in emails, another part of the analysis in the memo that had previously been redacted in 2011 to apparently hide that the government was collecting emails under Stellar Wind. If Goldsmith was outraged, he no longer was by the time he wrote the memo, as his legal analysis clearly enabled the Bush administration to continue doing what it had been doing with its dragnet warrantless surveillance of millions, including Americans.

Additionally, more than ten years later—and despite all that has transpired since NSA whistleblower Edward Snowden began to have his disclosures published by journalists, there is still far too much on the warrantless wiretapping program being kept hidden from Americans by President Barack Obama’s administration.

Going page-by-page through the memo, there is, perhaps, one additional page or two of information that the Obama administration determined the public is now allowed to know. The public is allowed to know that Stellar Wind involved “content collection.” Citizens can have a bit of the analysis of why the president has the “statutory authority” to collect phone metadata. It is okay for citizens to know that the Justice Department argued “interception of the routing information for both telephone calls and emails does not implicate any Fourth Amendment interests.” They are also permitted to know that the memo contemplated the “acquisition of metadata” and how that does not implicate the Fourth Amendment either. And the public may know Goldsmith’s arguments for Americans having no right to email metadata privacy.

As journalist Marcy Wheeler points out, it is also now possible to tell that the memo detailed the “legal justification” for warrantless dragnet phone surveillance. But the public is not allowed to know any of the legal analysis justifying this dragnet because that is entirely blacked out or marked as “withheld.”

Wheeler contends that this memo is being released to ACLU at this moment to show Congress that it does not matter whether Congress reauthorizes the dragnet, which allows for the collection of phone records. The Executive Branch or president will still use legal arguments in this memo to claim the authority to continue such dragnet surveillance.

*

Let’s take a look at what else the Obama administration insists on still keeping secret.
The legal analysis for why Stellar Wind is justified under Executive Order 12333

Former State Department executive John Napier Tye has claimed Americans’ communications could be “incidentally” collected during a “lawful overseas foreign intelligence investigation” under EO 12333. The executive order “does not require that the affected US persons be suspected of wrongdoing and places no limits on the volume of communications by US persons that may be collected and retained.” And, he adds, “No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.” So, keeping this section from Americans is rather troubling, as it obviously means this legal analysis is still being used to justify surveillance powers the Obama administration does not want to be subject to public scrutiny.

A huge blacked out section follows Goldsmith’s statement that the Justice Department must address whether constraints under the Foreign Intelligence Surveillance Act (FISA) are constitutional. What is being hidden here?

(more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."