can you say dictatorship?????(from Progress Report)

The Federal Communications Commission refuses to pursue complaints about the National Security Agency's telephone data-mining program "because it cannot obtain classified material."

The Bush administration has repeatedly refused to investigate cases involving the National Security Agency's (NSA) warrantless wiretapping and data-mining programs, citing concerns of revealing classified information and jeopardizing national security. Now the administration is invoking the "classified information" excuse to kill civil suits against the federal government. The Chicago Tribune notes that the Bush administration is frequently employing the state secrets privilege, "a once-rare tactic that essentially gives the government a blank check to kill civil suits." Since 2001, the federal government has asserted the state secrets privilege at least six times, most often "to head off challenges to two of the most sensitive aspects of the administration's war on terror" and in at least two cases challenging detainee renditions. Earlier this month, the Justice Department intervened "in an invasion-of-privacy suit in San Francisco against AT&T," asking the judge to dismiss the case because it would compromise national security. Private corporations such as Verizon have also started using the privilege to shield themselves from scrutiny over the NSA surveillance program: "The inability of Verizon to provide information concerning its cooperation, if any, with the NSA program is further demonstrated by the 'state secrets' privilege which the Department of Justice has invoked in connection with a pending federal court action," the company wrote in a filing with the Maine Public Utility Board.

Attorney General Alberto Gonzales won’t confirm that the federal government collected the phone records of millions of Americans, as reported on May 11 in USA Today. But yesterday, Gonzales claimed that doing so was perfectly legal. According to the Washington Post, Gonzales said "that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business records. … Gonzales told reporters that, under the Smith v. Maryland ruling, 'those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records.'" But the issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it is legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes. Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date: (1) The Stored Communications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland. (2) The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: a) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or b) the government obtains a certification from the Attorney General that the program is legal under FISA. According to the USA Today article, neither action was taken. The Washington Post story on Gonzales’ comments, however, doesn’t mention the Stored Communications Act or the Foreign Intelligence Surveillance Act. For that matter, it doesn’t include any legal analysis from anyone other than Gonzales.