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Not to Be Trusted

By Dan Froomkin
11:57 AM ET, 04/16/2009

Today's revelation in the New York Times that the National Security Agency engaged in "significant and systemic" violations of the nation's already highly relaxed surveillance laws manages to be both shocking and unsurprising at the same time.

Shocking because of the vast amounts of information apparently involved -- as well as the specific targeting of American citizens, including even a member of Congress.

But unsurprising because critics predicted that the removal of direct judicial oversight from the surveillance process would result in just such abuses. You simply can't trust government officials working in complete secrecy to police themselves, no matter what the circumstances -- or who the president is.

Eric Lichtblau and James Risen write in the New York Times: "The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

"Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in 'overcollection' of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional."

But that's not all. As if recklessly and illegally sweeping up massive amounts of private communications wasn't enough, Lichtblau and Risen also describe what appears to be intentional and illegal NSA targeting of Americans -- including a member of Congress.

"[I]n one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

"The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said."

And that's not all. As part of a Justice Department investigation, "a senior F.B.I. agent recently came forward with what the inspector general's office described as accusations of 'significant misconduct' in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism."

Several liberal bloggers warned of precisely this sort of abuse by government officials freed of the judicial oversight that the Constitution generally demands, first by fiat of the president, and then by an act of a supine Congress in June 2008.

Glenn Greenwald blogs today for Salon: "Everyone knew that the FISA bill which Congressional Democrats passed -- and which George Bush and Dick Cheney celebrated -- would enable these surveillance abuses. That was the purpose of the law: to gut the safeguards in place since the 1978 passage of FISA, destroy the crux of the oversight regime over executive surveillance of Americans, and enable and empower unchecked government spying activities. This was not an unintended and unforeseeable consequence of that bill. To the contrary, it was crystal clear that by gutting FISA's safeguards, the Democratic Congress was making these abuses inevitable."

And, he adds: "Note the wall of extreme secrecy behind which our Government operates. According to the article, various officials learned of the NSA abuses and then secretly told some members of Congress about them, and those individuals have been secretly discussing what should be done. The idea that the Government or Congress should inform the public about the massive surveillance abuses doesn't seem to have occurred to anyone other than the whistleblowers who leaked what they knew to The New York Times."

Amazingly enough, that's only one of several aspects of Bush counter-terrorism policy haunting the headlines today.

Evan Perez and Siobhan Gorman write in the Wall Street Journal: "The Obama administration is expected to release some operational details of a Central Intelligence Agency interrogation program and its legal rationale, while seeking to keep secret the names of detainees and the way techniques were applied to particular prisoners, two officials familiar with the matter said Wednesday.

"An announcement is expected Thursday on the release of memorandums in which Department of Justice lawyers gave legal guidance on CIA interrogations. During a fierce debate, CIA officials have argued for keeping sensitive information secret, while Attorney General Eric Holder and other Obama administration lawyers have favored a full release."

Eric Alterman writes for the Daily Beast: "Obama would be making a terrible mistake in continuing to cover up the various atrocities and crimes committed by members of the Bush administration....

"Nothing is needed so much for this administration both at home and abroad than the ability to demonstrate that it has made a clean break with the discredited policies of the past. That's why we elected him and that's why we approve him. (The rest of the world, too.)"

Josh Gerstein writes for Politico: "In a speech Wednesday extolling the rule of law, Attorney General Eric Holder rebuked members of the Bush administration for casually dispensing with longstanding American legal principles while pursuing the fight against terrorism.

"Holder declared that officials prosecuting the war on terror, whom he did not name, 'surrendered faithful obedience to the law to the circumstances of our time.'"

And Carol Rosenberg writes in the Miami Herald that Holder said "that his assignment to empty the prison camps at Guantanamo 'indisputably the most daunting challenge I face as attorney general.'...

"He said the challenge was to sort among the captives and divide them between three categories:

"• Those who 'we will likely conclude no longer pose a threat to the United States and can be released or transferred to the custody of other countries. ''

"• Those the U.S. will choose to prosecute in federal court.

"• The detainees who are ''too dangerous to release'' yet have ''insurmountable obstacles'' to prosecuting them in federal court.

"At issue may be detainees from whom confessions were gleaned through brutal interrogations."

Finally, Reuters reports: "Spain's attorney general said on Thursday he would not recommend a court investigation into six former Bush administration officials over torture at Guantanamo Bay, reducing the chances the probe will go ahead....

"'We cannot support that action,' Candido Conde-Pumpido told journalists, referring to the potential investigation to determine whether the officials provided legal arguments allowing torture to proceed.

"'If you investigate the crime of abuse of prisoners, the people probed have to be those who were materially responsible, Conde Pumpido said."

Al Goodman reports for CNN: "If alleged torture at Guantanamo is going to be investigated at all, that should be done first in the United States, so that the former American officials would have a chance to defend themselves there, Conde-Pumpido added, according to his press chief, Fernando Noya....

"The case might still go forward at the court, despite the prosecution opposition, said Gonzalo Boye, a lawyer who filed the complaint for the human rights group.

"Boye told CNN that prosecutors earlier opposed the court's human rights investigations of ex-Chilean dictator Augusto Pinochet and, separately, the former military regime in Guatemala, but that those cases went ahead anyway."

Oh wait, there's one more. Benjamin Weiser writes in the New York Times: "An interpreter for the F.B.I. during an interrogation of a suspect in the terrorist bombing of the American Embassy in Kenya in 1998 now says that she heard sounds and pleading that led her to believe that the suspect was being beaten, and that she was so traumatized by the incident that she fled from the room, newly filed court documents show."

Ironically, as all this is going on, Obama yesterday told CNN: "I'm a strong believer that it is important to look forward and not backward and to remind ourselves that we do have very real security threats out there."

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