In practice, this means that under a new, ludicrous interpretation of the Orwellian PATRIOT Act, the government can never be held accountable for illegal surveillance under any federal statute. As Glenn Greenwald points out in Salon,
"Though the drapery in the Oval Office may have changed, the criminal acts against American citizens and legal residents by unaccountable intelligence agencies and privateers in the corporate security industry continue apace."
Based on information disclosed by AT&T whistleblower Klein and other sources, including The New York Times, the suit seeks to "halt illegal, unconstitutional, and ongoing dragnet surveillance" by AT&T and other grifting telecoms of the "communications and communications records" of their customers.
Klein told the Court in a sworn affidavit that AT&T's internet traffic in San Francisco runs through fiber-optic cables at the company's Folsom Street facility. Using a device known as a splitter, a complete copy of internet traffic that AT&T receives--email, web browsing requests and other electronic communications sent by AT&T customers, or received from people who use another internet service provider--was diverted onto a separate fiber-optic cable connected to the company's SG-3 room, controlled by NSA. Only personnel with NSA clearances--either working for, or on behalf of the agency--have access to this room.
The evidence of corporate malfeasance presented by Klein and other whistleblowers, led the civil liberties' watchdog group to assert that AT&T's "deployment of NSA-controlled surveillance capability" is not limited to the corporation's San Francisco facility "and is consistent with an overall national AT&T deployment to from 15 to 20 similar sites, possibly more. This implies that a substantial fraction, probably well over half, of AT&T's purely domestic traffic was diverted to the NSA. At the same time, the equipment in the room is well suited to the capture and analysis of large volumes of data for purposes of surveillance."
As I reported in November, among the firms supplying the surveillance products hardwired into America's telecommunications infrastructure is Verint Systems Inc. (formerly Comverse InfoSys). The firm was founded by former Israeli intelligence officer, Jacob "Kobi" Alexander, a corporate grifter who fled the United States for Namibia after being indicted in 2006 on thirty-two counts of fraud. Alexander hatched a backdated stock options scheme that netted him $138 million in profits In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and--even if what they're doing is blatantly illegal and they know it's illegal--you are barred from suing them unless they "willfully disclose" to the public what they have learned. ("New and worse secrecy and immunity claims from the Obama DOJ," Salon, April 6, 2009)
EFF attorney Kevin Bankston told Salon: "This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA."
"In their motion to dismiss, DoJ attorneys--like their predecessors--argue on Page 13 of the Government's brief that "An assertion of the state secretes privilege "must be accorded the 'utmost deference' and the court's review of the claim of privilege is narrow." Kasza, 133 F.3d at 1166; see also Al-Haramain, 507 F3d at 1203 ('[W]e acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena')."
On Page 16, the state contends that, "Finally, all of the plaintiffs' claims require the disclosure of whether or not AT&T assisted the Government in alleged intelligence activities, and the DNI again has demonstrated that disclosure of whether the NSA has an intelligence relationship with a particular private company would also cause exceptional harm to national security--among other reasons by revealing to foreign adversaries which channels of communication may or may not be secure."
If U.S. District Judge Judge Vaughn Walker rules in the state's favor and dismisses Jewell, constitutional protections under the fourth amendment guaranteeing "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," would be a meaningless charade.
There is however, a precedent for the Obama administration's blatant violation of our rights: that of their predecessors in the Bush regime's Office of Legal Counsel.
According to an October 23, 2001 Department of Justice memorandum titled Authority for Use of Military Force To Combat Terrorist Activities Within the United States, authored by torture-enabler and OLC head, John C. Yoo, the military could be deployed domestically to interrogate, detain, raid and spy on Americans, without having to comply with constitutional guarantees under the Bill of Rights. Yoo advised the Oval Office:
"Fourth, we turn to the question whether the Fourth Amendment would apply to the use of the military domestically against foreign terrorists. Although the situation is novel (at least in the nation's recent experience), we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant." (Page 2)
Additionally, having decided that the President enjoys plenary, that is, unlimited power to carry out the "war on terror" Yoo concludes, after dispensing with Fourth Amendment protections that, First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. ...
"The current campaign against terrorism may require even broader exercises of federal power domestically. Terrorists operate within the continental United States itself, and escape detection by concealing themselves within the domestic society and economy. While, no doubt these terrorists pose a direct military threat to the national security, their methods of infiltration and their surprise attacks on civilian and governmental facilities make it difficult to identify any front line. Unfortunately, the terrorist attacks of September 11 have created a situation in which the battlefield has occurred, and may occur, at dispersed locations and intervals within the American homeland itself. As a result, efforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad." (Pages 24, 25)
Indeed, the Bush administration's so-called Terrorist Surveillance Program (TSP) transformed the United States into a limitless battlespace where anything goes. From warrantless wiretapping of telephone and internet communications, the seizure of business and medical records, as well as the illegal--and indefinite--detention of citizens and legal residents as "unlawful enemy combatants," Yoo's memorandum provided the steel and concrete that gave form to the architectural blueprints for a presidential dictatorship.
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