http://www.eff.org/…

Friday evening, in a motion to dismiss Jewel v. NSA, EFF’s litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration’s made two deeply troubling arguments.

First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue “would cause exceptionally grave harm to national security.” As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence.

It’s an especially disappointing argument to hear from the Obama Administration. As a candidate, Senator Obama lamented that the Bush Administration “invoked a legal tool known as the ’state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.” He was right then, and we’re dismayed that he and his team seem to have forgotten.

Sad as that is, it’s the Department Of Justice’s second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses “sovereign immunity” from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government’s ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ’s radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama’s own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

This isn’t change we can believe in. This is change for the worse.

Do I need to repeat myself about how I don’t think this is the change people were expecting?

I caught this comment on Slashdot about this story that I really liked.

It is my position that Bush was a horrible president because he weakened our constitution, was an ugly warmonger, and spent money like it was water.

It is my position that Obama is about the same with the only difference being who gets some of the wastefully spent money.

Both “sides” treat the populace like we’re their own public goatse waiting patiently to get stretched just a bit wider by some Republican prick or a Democratic cock.

If only that could be the image people imagined when someone said “Republican” or “Democrat.” Third parties would have no problem getting into office. Perhaps that could be the attack plan for 2012. Splice in a single frame of goatse.cx once in a while during R and D presidential debate feeds.

http://arstechnica.com/…

The executive branch may conduct warrantless surveillance in the name of national security, according to a decision by the secretive Foreign Intelligence Court of Review published Thursday. The decision, handed down in August, but published in redacted form this week, blessed surveillance under the stopgap Protect America Act, which was superseded last year by the FISA Amendments Act.

Like the Foreign Intelligence Surveillance Court, which issues secret warrants for both physical searches and electronic surveillance under the FISA law, the Foreign Intelligence Court of Review seldom makes its opinions public. In an order dated January 12, however, the Court found the release of an edited, unclassified version of its August opinion to be in the public interest.

The ruling concerns a challenge to surveillance authorized by the attorney general under the PAA. Though the party raising the challenge is not named—the opinion refers only to the “petitioner”—it is likely to be either a telecom or an Internet Service Provider, in principle, however, any entity with information about a target “reasonably believed to be located outside the United States,” such as a university or financial institution. Under the terms of the PAA, the attorney general is empowered to issue “authorizations” for surveillance that has traditionally required a court order issued by an independent magistrate.

For the first time, the Court explicitly asserted an exception to the Fourth Amendment’s warrant requirement for foreign intelligence surveillance meant to serve a national security purpose.

…

Concerns about abuse, the court held, amounted to “little more than a lament about the risk that government officials will not operate in good faith,” a risk present even when a warrant is issued. In effect, the court reasoned that since judges generally presume that law enforcement officials are being diligent and truthful in their applications for a warrant, the same presumption should be granted when intelligence agencies conduct surveillance without a warrant.

The court seemed similarly unconcerned with the danger that innocent persons’ information would be swept up in surveillance, calling such worries “overblown” in the light of “minimization” procedures designed to cull away any such “incidental” collections. “The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons,” the Court wrote, “and there is no evidence to the contrary.”

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nope… nothing about exceptions for national security.

Little more than a lament that government bureaucrats will not operate in good faith? Seriously? So the drug war and Guantanamo and the whole torture debate and corruption scandals and the lying by the Bush administration about their wiretapping program and… and… and… are not enough to have serious questions regarding the bureaucrats moral compass?