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It’s fairly common knowledge to those that have been following the surveillance state story closely that the reality is that our government has been tapping our phones and monitoring our calling records for at least a dozen years. We also know this institutionalized, Orwellian behavior does not exclude accessing the content of phone calls in Washington’s 202 area code, up to and including the NSA’s wiretapping of members and potential members of the U.S. Senate and House.

We also know that, for at least the past eight years, the NSA has been lying through their teeth about this. (As Marcy Wheeler has noted countless times--see link in previous sentence--there has been deliberate conflation by both the NSA and the White House as far as the government's definition of "phone records" is concerned. In other words, "phone records" [a/k/a "metadata"], according to the definitions provided in a variety of recently-disclosed documents, not to mention the public statements of roughly a dozen highly-credible sources over the past ten-plus years, does include call content.)

Today, in a pair of directly-related stories that have been breaking over the past few hours, we’re now learning that (based on the order they hit the wires):

1.) Vermont Senator Bernie Sanders decided to directly confront the matter by flat-out and formally asking the National Security Agency if it was true that our out-of-control surveillance state was spying on its elected officials: “Is the NSA Spying on Congress?

2.) And, for lack of a more concise way of stating this, according to a breaking NY Times’ story in the past couple of hours, a Federal Appeals Court has ruled today that the White House may do whatever the hell it pleases—and the folks at 1600 Pennsylvania Avenue don’t have to disclose what they’re doing to anyone--as far as surveillance of our entire population’s concerned, as long as the President receives a signoff from his legal counsel approving same: "Court Backs Shielding of Legal Memo on Phone Records."

Is the NSA Spying on Congress?
Office of Senator Bernie Sanders

FOR IMMEDIATE RELEASE
Friday, January 3, 2014

BURLINGTON, Vt., Jan. 3 – U.S. Sen. Bernie Sanders (I-Vt.) today asked the National Security Agency director whether the agency has monitored the phone calls, emails and Internet traffic of members of Congress and other elected officials.

“Has the NSA spied, or is the NSA currently spying, on members of Congress or other American elected officials?” Sanders asked in a letter to Gen. Keith Alexander, the NSA director. “Spying” would include gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business?”

Sanders said he was “deeply concerned” by revelations that American intelligence agencies harvested records of phone calls, emails and web activity by millions of innocent Americans without any reason to even suspect involvement in illegal activities. He also cited reports that the United States eavesdropped on the leaders of Germany, Mexico, Brazil and other allies.

Sanders emphasized that the United States “must be vigilant and aggressive in protecting the American people from the very real danger of terrorist attacks,” but he cited U.S. District Court Judge Richard Leon’s recent ruling that indiscriminate dragnets by the NSA were probably unconstitutional and “almost Orwellian.”

Sanders has introduced legislation to put strict limits on sweeping powers used by the National Security Agency and Federal Bureau of Investigation to secretly track telephone calls by millions of innocent Americans who are not suspected of any wrongdoing.

The measure would put limits on records that may be searched. Authorities would be required to establish a reasonable suspicion, based on specific information, in order to secure court approval to monitor business records related to a specific terrorism suspect. Sanders’ bill also would put an end to open-ended court orders that have resulted in wholesale data mining by the NSA and FBI. Instead, the government would be required to provide reasonable suspicion to justify searches for each record or document that it wants to examine.

To download Senator Sanders’ letter to the NSA, click HERE. And, here it is for folks that don't wish to click on anything...

Sanders NSA


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Meanwhile, just a few hours after the story about Senator Sanders' letter to the NSA appeared (which was about three hours ago), we have this quite-related breaking news...

Court Backs Shielding of Legal Memo on Phone Records
By CHARLIE SAVAGE
New York Times
January 3, 2014    1:57PM EST   (Online)
January 4, 2014    (Print Edition)

WASHINGTON — A federal appeals court on Friday ruled that the Obama administration may continue to withhold a Justice Department memorandum that apparently opened a loophole in laws protecting the privacy of consumer data.

The memo allows telephone companies to hand over customers’ calling records to the government without a subpoena or court order, even when there is no emergency, according to a 2010 Justice Department inspector general report. The details of the legal theory, and the circumstances in which it could be invoked, remain unclear.

The ruling by the United States Court of Appeals for the District of Columbia Circuit came down on the side of a broad conception of executive branch secrecy powers to shield the government’s interpretations of what the law permits it to do. The ruling may make it easier for the government to shield other memos by the department’s powerful Office of Legal Counsel, which provides binding legal advice to the executive branch, from disclosure under the Freedom of Information Act.

The document at issue is a classified memo signed by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department’s inspector general at the time, Glenn A. Fine, disclosed the memo’s existence and its broad conclusion that telephone companies may voluntarily provide records to the government “without legal process or a qualifying emergency,” notwithstanding the Electronic Communications Privacy Act...

(Bold type is diarist's emphasis.)

The story continues on to tell us that the "Federal Bureau of Investigation had asked for the memo as part of an investigation by Mr. Fine into problems with the F.B.I.'s use of so-called exigent letters to obtain telephone and financial records. The report concluded that the bureau had obtained calling records for thousands of telephone accounts between 2003 and 2006 without following any legal procedures."

Charlie Savage's piece reminds us that the FBI "...abandoned exigent letters," and "...said that it had not used the legal theory outlined in the memo when using them, and that it had no plans to use it in the future. But Mr. Fine warned that the existence of the Office of Legal Counsel’s theory created a “significant gap” in “accountability and oversight” and urged Congress to modify the statute. Lawmakers have not acted on that recommendation."

...The Office of Legal Counsel issues binding legal advice to the executive branch on whether proposed actions would be legal. If it says something is permitted, government officials who act on that advice are essentially immune from prosecution by the Justice Department. Its power to adopt secret legal theories has come under greater scrutiny since the terrorist attacks of Sept. 11, 2001, and the opinions it produced during the Bush administration that signed off on brutal questioning of detainees despite anti-torture laws and on warrantless wiretapping programs...
(Bold type is diarist's emphasis.)

The piece continues on to point out how twisted and convoluted these President's Office of Legal Counsel determinations are in these instances; noting, that those determinations (and related memos) do not amount to "working law." Therefore, "By the same legal reasoning, any memo from the office that is not formally adopted as policy by an agency — even by another branch of the Justice Department like the F.B.I. — would be exempt from disclosure."

The Electronic Frontier Foundation argued that the Office of Legal Counsel memos (think: John Yoo)  "...amounted to the government’s official 'working law' and should be allowed to be disclosed."
 

...David Sobel, a lawyer for the foundation, called the ruling “troubling” and said he hoped it would reinvigorate efforts among some lawmakers in Congress to open Office of Legal Counsel memos to greater scrutiny outside the executive branch. He said that because such memos establish the parameters within which an agency may operate, they constitute a body of “secret law” that the public has a right to know...
In other words, let's keep this real simple: If the President's Legal Counsel signs off on it, the President of the United States may do whatever the hell he pleases. Because...it's not working law.

Except when--by default--it is...


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Kossack Liberty Equality Fraternity and Trees also has a post (on the Rec List) regarding the Sanders' story, linked HERE.


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If you're interested in reading a bit more regarding directly pertinent facts that relate to virtually ALL of the claims made in this post, I'd suggest taking a look at these four pieces from yours truly, from the past 21 months...

NYT's Orwellian Lead: AG Holder Officially Signs Off On "Total Information Awareness" For All (3/23/12)

How Many Former NSA and FBI Counterterrorism Employees Will It Take For This Story To Reach The MSM? (5/20/13)

Long before anyone ever heard of Edward Snowden, it was already time to fight the good fight (7/18/13)

Greenwald on ABC: Low-Level NSA Analysts Read, Listen Via Database of "Trillions" of Emails, Calls (7/28/13)


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