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Domestic Spying Records Ordered Released 257

Posted by Zonk
from the let's-get-to-the-bottom-of-this dept.
CokoBWare wrote to mention an eWeek report on the NSA's domestic spying program. A federal judge has ordered the Department of Justice to release records from the program by March 8th. From the article: "In ordering the Justice Department to expedite the FOIA request processing, Judge Henry Kennedy Jr., of the U.S. District Court for the District of Columbia, said that the department's opinion that it could determine how much time is needed was 'easily rejected ... Under DOJ's view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests,'"
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Domestic Spying Records Ordered Released

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  • I love this guy. (Score:5, Insightful)

    by DrEldarion (114072) * on Friday February 17, 2006 @05:25PM (#14745268)
    "Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA seeks to further--government openness and accountability," he wrote.

    This judge is my new personal hero (temporarily displacing Alton Brown), and exactly the type of person who SHOULD be a judge. He actually seems like he cares about people and knows what kind of stuff gets pulled behind the scenes.

    He may as well have come out and said "Sorry, guys, you're full of shit. Give us ALL the records, and soon."

    • by c0d3h4x0r (604141) on Friday February 17, 2006 @05:30PM (#14745304) Homepage Journal
      No shit. That judge should be our president.

    • by elwinc (663074) on Friday February 17, 2006 @05:59PM (#14745505)
      I love the judge too. But, according to The Note, [go.com] "The order gives Justice 20 days as part of the lawsuit, but the Justice Department will probably plead irreparable harm to national security (or something similar) to block the order." It'll most likely die on the vine until the democrats take over.

      My hope is this: the avalanche of Republican scandals and screw-ups will result in democratic majorities in both the House and Senate. Then we'll have a real investigation, with subpoena power too. Bush will fight the investigation and it'll probably all wind up in the Supreme Court's lap. That'll be interesting.

      • by Brushfireb (635997)
        Although I hope you are right, I think its probably unlikely that the house and senate will be dem majorities next time around. And the presidency will still likely be republican -- Becuase it will be a very strong republican candidate (Giuliani or McCain). There isnt a dem in the world that could win against either of them, outside of Bill Clinton (and he cant run again ;p)

        • There are democrats out there that can own them, they're just not on the national radar (just like bill pre-1992)
      • by Xonstantine (947614)
        No, the Democrats would just shift the target of domestic spying to "right wing extremists" like Republican members of Congress, or to frame up whistle blowers on felony charges like the White House travel office which was fired. Both of these were carried out by the prior residents of the White House.

        It appears that the tendency to abuse power is a universal, not a party trait.
      • by bleckywelcky (518520) on Saturday February 18, 2006 @12:09AM (#14747461)
        You are missing the point here: It's not that it's the Democrats calling for an investigation, it's that it's the other party calling for an investigation. The Democrats are not some liberty-preserving pro-citizen party, they are simply the other party and will do whatever it takes to smear the Republicans. Switch the situation around: Democratic White House, Democratic congress, wire taps. Who would be calling for an investigation? The Republicans obviously. And the Democrats would be trying to sweep it under the rug.

        Note: I'm not pro-Republican or pro-Democrat, I'm a conservative and I am often disturbed by the absurdity of the entire system.
    • Cue the wingnuts screaming about activist judges.
    • Re:I love this guy. (Score:5, Interesting)

      by ivanmarsh (634711) on Friday February 17, 2006 @06:52PM (#14745948)
      The amusing outcome of this is that Bush and Cheney will say they can't release the documents because they're classified... then go read the story released today where Cheney says he has the authority do declassify information... which is his (newest) excuse for the Plame case.

      Information about domestic spying must be kept confidential... Oh, but here's the name of an active CIA operative.
  • So then.. (Score:5, Insightful)

    by BigZaphod (12942) on Friday February 17, 2006 @05:31PM (#14745311) Homepage
    On March 8th, which page of the newspaper will this story be buried on and who will Dick Cheney have to shoot to get that to happen?

    (sarcasm doesn't always transmit well via text...)
    • (sarcasm doesn't always transmit well via text...)
      Use the [SARCASM] tag :op

      To reply to your "who will Dick Cheney have to shoot to get that to happen?"

      This story ain't gonna get buried.

      Fortunately for us, this lawsuit wasn't locked away behind the doors of a secret court proceeding, so any BullShiat excuse the Gov't might try to pass off will have to meet public scrutiny.

      • Re:So then.. (Score:5, Insightful)

        by Reducer2001 (197985) on Friday February 17, 2006 @06:03PM (#14745542) Homepage
        This story ain't gonna get buried.

        I wish I could agree with you on that. I really do, but this is 21st Century (We're afraid of the terrorists, so please do whatever it takes to make it safe for me to shop at Target) America. The mainstream press, which used to include heroes like Edward R Murrow [wikipedia.org] and Woodward and Bernstein [wikipedia.org] taking time to gather facts and check them thoroughly has been replaced by the 24/7 "we don't care what's important, we only care about what's NEW" now, now, now press.

        For example, the biggest story out of Washington this week was Dick Cheney shooting his hunting partner. What about the almost lack of debate in Congress about the pending renewal of the Patriot Act? What about Dick Cheney saying that he has the right to declassify information whenever and to whoever [cnn.com] he wants?

        Listening to NPR these past couple of months regarding this issue, it's become VERY clear to me that most people simply don't care that this is going on. They say, "Well, I've got nothing to hide!" and the people I've spoken with at work about this feel the same way. If this was as big of an issue to American public as a missing white girl, or celebrity divorce, this story would be the headline on CNN today, instead of Harry Whittington apologizing the Dick Cheney for being shot!

        Whatever, maybe I shouldn't have had that second mocha!

        • If nothing else, a group of bloggers will keep this story alive until the rest of the news media decides to get back to it.

          And I honestly think that the Cheney shooting has only persisted so long because it has turned into a metaphor for the secretive nature of the Bush Administration.

          And I read about Cheney claiming he can declassify information whenever and to whoever he wants. I thought only the President had the legal authority to unilateraly declassify something without going through channels. Kinda li
          • Re:So then.. (Score:4, Informative)

            by dschuetz (10924) <(slash) (at) (david.dasnet.org)> on Friday February 17, 2006 @06:43PM (#14745882) Homepage
            I thought only the President had the legal authority to unilateraly declassify something without going through channels.

            Actually, "channels" means anyone with Original Classification Authority, which includes the President, Vice-President, Director of Central Intelligence, and other intelligence community leaders (I believe DIRNSA, and presumably also the new DNI).

            I believe that each individual is responsible for certain kinds of information. For example, the Director of NSA would obviously have some authority over information regarding crypto, so he wouldn't be authorized to declassify information about human spies. Higher-level authorities like DCI, DNI, and obviously VPOTUS and POTUS, would be able to declassify more and more.

            So, yes, I would expect that VP Cheney would have the authority to declassify certain information, including, most likely, whatever it is "Scooter" is up the creek over (I honestly have forgotten). But I'm equally certain that such a declassification would have to have a paper trail, and anyone who simply "takes [someone]'s word for it," even the Vice-President's word, that something is now open for release, well, they're not doing *their* job to protect classified information.

            I can't remember which Executive Order it is that covers all this...I think 12958 or something along those lines. Okay, I just checked, and OMG, I *did* remember the order. Check it out here: Executive Order 12958 - Classified National Security Information, as Amended [archives.gov]. It's actually fairly interesting reading....
      • Unfortunately, I don't have the same faith in the media that you do. Here's Fox News' version [foxnews.com] of the story. I was only able to find it by using their search engine and entering "electronic privacy information center". This should be front-page news, not just some generic AP blurb buried somewhere on the site!
    • > On March 8th, which page of the newspaper will this story be buried on and who will Dick Cheney have to shoot to get that to happen?

      s/have to shoot/get to shoot/g

      > (sarcasm doesn't always transmit well via text...)

      What makes you think either of us is being sarcastic?

  • about time (Score:2, Insightful)

    by la htris (955271)
    From TFA: "EPIC asked the Justice Department for four types of records, including an audit of NSA domestic surveillance activities, a checklist showing probable cause to eavesdrop, communications about the use of information NSA obtained, and other documents concerning increased domestic surveillance." My new hero this judge is.
  • by ErikTheRed (162431) on Friday February 17, 2006 @05:32PM (#14745322) Homepage
    This case will eventually wind up in the Supreme Court, where its chances are unspectacular. Cases like this are usually filed in a court that the filing party knows or strongly suspects will be sympathetic to their claim - a practice known as "judge shopping". I would be absolutely shocked if this suit lost in the first round.
    • by _Sharp'r_ (649297) <sharper.booksunderreview@com> on Friday February 17, 2006 @06:04PM (#14745552) Homepage Journal
      Also, the article summary is wrong in one little detail. The actual article continues the sentence with "or else explain the legal basis under which the records cannot be released."

      So basically, the judge set a deadline by with the government must respond to the FOIA request (which could just be a denial saying you can't have the records cause it's classified, likely in this case), he didn't order them to actually release the records.
      • National security data (specifically, "matters that are -- specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order") is exempted from FOIA requests, so I'm guessing the judge is expecting the DOJ to claim that most of the requested documents are classified.
      • The actual article continues the sentence with "or else explain the legal basis under which the records cannot be released."

        I assume (hope) that he means in relation to specific cases. Like, if there is not a good (and hopefully specific) reason not to release a particular record, that record should be released.

  • by erroneus (253617) on Friday February 17, 2006 @05:34PM (#14745335) Homepage
    Why is so much time given? This gives plenty of time to gather up and redact tons of information prior to delivery. I expect we'll end up with millions of pages of black rectangles on them with few, if any, legible words on them.
    • Then I hope that they use .DOC or .PDF to do the editing. There's lots of fun when you get that stuff removing the blankouts and reversing the edits. :)
  • by truthsearch (249536) on Friday February 17, 2006 @05:34PM (#14745339) Homepage Journal
    Wow, an example of checks and balances. I thought that was pretty much gone now.

    Next steps: The White House will declare him an "activist judge" (whatever that really means) and unpatriotic. Meanwhile a religious zealot on the ABC Family channel will pray for his death.

    But nothing is more patriotic than those in power keeping the government open. Because nothing could more empower the citizens.
  • by Coryoth (254751) on Friday February 17, 2006 @05:35PM (#14745342) Homepage Journal
    Even if these records get released and prove to be, as claimed, solely people with direct links to known and documented terrorists, that still does not exonerate the establishment of the program. The real issue was never a matter of whether, at this particular time, the NSA was listening in on you or your grandma, it was about precedent. The real issue is whether it is acceptable for an agency like the NSA to conduct domestic surveillance without oversight, without warrants of any kind. In the past the law has been such that various types of surveillance were permitted, but as these cases have come to light each loophole has been blocked - it was precisely for this reason that the Foreign Intelligence Services Court, and the corresponding act, was originally created. An about face and progressive weakening of such laws sets a dangerous precendent, and in my view shouldn't be tolerated. Don't let the report as to what surveillance was conducted blind you to the deeper issue of whether such a precedent is acceptable.

    Jedidiah.
    • I love how everyone has become constitutional scholars these days. Anyways...

      Unfortunately it's not a cut and dry issue. Ex-CIA chief James Woolsey [com.com] (appointed by Clinton) believes that the President actually has greater powers than the ones they're asking for. The only thing he believes should be looked at is whether or not a judge needs to be involved once the NSA program starts targetting specific American citizens.

      He said he staunchly believes that Article 2 of the U.S. Constitution, which establishes th
      • I love how everyone has become constitutional scholars these days...Unfortunately it's not a cut and dry issue.

        I wasn't suggesting it was, or was not constitutional. I was expressing my belief as to what does, and does not, represent good practices with regard to surveillance regardless of legal standing. It may well, once it has worked its way through the system, be decided that Bush's actions were legal. That does not mean I have to agree that allowing such things is a good idea, merely that I accept it a
      • by Anonymous Coward
        But are we actually at "war" right now? I know the definition of "war" is very vague, and our government probably claims it to be the "war on terror". I really think "war" should be defined as a conflict between governments or some other type of large groups that share common characteristics, rather than a conflict between us and some individuals hiding in a cave. I know that these people we are after are not all hiding in caves, but alot of the coordination is being done by individuals who are hiding ou
        • by gilroy (155262)
          It's simpler than that. How about "no wartime powers until Congress, you know, declares war". This President has not been given -- has not sought -- has gone out of his way to avoid seeking -- the passage of a writ of war. Why? Because that would explicitly recognize that Congrees, too, has a Constitutional role in warmaking. Also, the writ of war would likely spell out the conditions under which the war could be considered "won" and hence the state of war lifted.

          It's much more convenient (for this Pre
          • The current claim is that since Congress authorized the President to "take all reasonable actions" - or whatever the exact quote is - to do some ridiculous unstated thing, that they've essentially granted their warmaking authority (as well as a ton of other authority) to the President. Of course, this doesn't touch all the "war" authority used (by many Presidents, including Clinton) prior to this one.

            I don't think that the Founding Fathers ever anticipated that anyone would have the balls to get up in fron

      • by lucabrasi999 (585141) on Friday February 17, 2006 @06:08PM (#14745593) Journal

        James Woolsey may have been appointed by Clinton, but he also was a member of The Project for a New American Century [wikipedia.org]. Mr. Woolsey's buddies in that organization included Bill Kristol, the Scaife Family, Donald Rumsfeld and Paul Wolfowitz. That is not exactly a list of names you would find listed in the Democratic National Committee fundraising book.

        I'm not saying that Mr. Woolsey's arguments are invalid. I am saying that you shouldn't (intentionally or unintentionally) insinuate Mr. Woolsey is a liberal Clintonite....

  • by Doc Ruby (173196) on Friday February 17, 2006 @05:36PM (#14745349) Homepage Journal
    It's safe to release all of the domestic spying records, now that Bush got his literal "get out of jail free" deal from his Republican Congress [nytimes.com].

    After terrorists attack our ports through infiltrating the royal United Arab Emirates corporation that just got handed the ports management contracts [nytimes.com], I expect Congress will pass a law that says that "no one could have anticipated that the ports would be infiltrated through their foreign managers".
    • by TubeSteak (669689) on Friday February 17, 2006 @05:49PM (#14745414) Journal
      Mr. Roberts [chairman of the Senate Intelligence Committee] had promised to hold a committee vote yesterday on whether to investigate. But he canceled the vote, and then made two astonishing announcements. He said he was working with the White House on amending the 1978 law, the Foreign Intelligence Surveillance Act, to permit warrantless spying. And then he suggested that such a change would eliminate the need for an inquiry.
      That is a load of bullshiat.

      Since when does changing a law mean it applies retroactively to offenses in the past?

      Just the other day, my father was bitching about seat belt laws. Saying that when they first passed the law, they said it wouldn't be used to pull you over. 10 years later, they changed the law to allow cops to pull you over for not wearing a seat belt.

      My dad said "That's how they get you. They chip away at it"
      And I remember thinking "Yep, and our civil rights too"
  • :Grumbles: (Score:3, Interesting)

    by TubeSteak (669689) on Friday February 17, 2006 @05:38PM (#14745356) Journal
    The Law: 1
    BushCo: 1x10^7

    Noting that public awareness of the government's actions is necessary in democracy, [Judge] Kennedy said that timely awareness is also a necessity.
    The highlighted is exactly what the Bush Administration has been trying to prevent since he came into office and frankly I don't see this victory becoming a trend.

    Bush, Cheney and the Republicans have already been cracking down on leaks of classified information so that they won't have any more splaining to do.

    Remember how they jumped all over the leak of the NSA spying? Not to condemn possible spying of Americans, but to demand investigations in order to discover the identity of the leaker(s).
    • Re::Grumbles: (Score:3, Insightful)

      by SpaceLifeForm (228190)
      It's possible that there really was never any leak to start with.
    • by ScentCone (795499) on Friday February 17, 2006 @06:23PM (#14745727)
      but to demand investigations in order to discover the identity of the leaker(s).

      And what exactly is your problem with this? You can't honestly say that there should be no such thing as classified information, unless you'd like every poor SOB who's trying to keep on eye on various actually bad guys to be strung up and shot. The classification of intel methods and collected information exists specifically to allow it do what it has to do. If you tell Kim Jong Il what time of day the next high-altitude drone will be overhead which of his slave camps, or CC the lunatic president of Iran on the intel you're sharing with EU security people about his nuclear program... you're pretty much asking for the consequences, including the unpleasant deaths of the people living in those countries and working, with our spooks, to counter the influence/acts of the mullahs or the so-honorable KJI.

      Assuming you don't actually refute the need for classified and covert activities on a number of fronts, then how can you complain about tracking down the people who deliberately leak such specific operational information? It sounds like you're more in the "classified is OK, but only on the stuff I think should be classified, and then definitely the administration should be investigating the people who leak it" camp. But that's not what you're saying, and should be. At which point, you should be more clearly spelling out what you think should, and should not be classified when it comes to intercepting a phone call from a known Al Queda-type contact in, say, Lahore, Pakistan to a used-only-once-ever cell phone that was in a batch of fifty or so [go.com] bought with cash. You know, a cell phone that is untraceable to a person, will never be used again, and can never be part of a FISA warrant scenario by its very nature. Is reminding the guys using those phones that we know when the person in Lahore is dialing a number from that batch of disposable phones something you think should be leaked? Is that constructive, from your perspective?
      • by TubeSteak (669689) on Friday February 17, 2006 @07:28PM (#14746155) Journal
        It sounds like you're more in the "classified is OK, but only on the stuff I think should be classified, and then definitely the administration should be investigating the people who leak it" camp.
        Either the warrantless program was within the laws of the United States of America, or it's illegal.

        Classifying illegal activities isn't right.

        Leaking information about classified & illegal government activities isn't wrong.

        Nothing you said addresses that fundamental issue.
        • Nothing you said addresses that fundamental issue

          The fundamental issue: people sitting in other countries have acted to kill a substantial number of people in the US and abroad. They loudly proclaim that they want to do more, and work to that end. Part of that includes placing calls (regarding funding and operational coordination) to supporters and collaborators. When people make those calls, it's not only legal to follow the trail, it's an obligation to. The constitution not only permits it, but empower
          • The fundamental issue: people sitting in other countries have acted to kill a substantial number of people in the US and abroad.

            You are wrong - that is not the fundamental issue being discussed. The issue is whether or not the president has the authority to spy on US citizens *without approval & oversight*. Bush thinks he does; many others disagree. This is a core issue of civil rights.

            Twisting the argument into "but we need to do it to catch bad guys!" is a nice straw man [nizkor.org]. It's not about what "bad
      • A batch of fifty or so piles of bullshit [mywesttexas.com] more like it.
      • Except that the Bush administration would release any of the information immediately if it would suit the party interests. Look at Valarie Plame.
  • The law is the law (Score:5, Insightful)

    by MikeRT (947531) on Friday February 17, 2006 @05:39PM (#14745358) Homepage
    To turn the "law and order" types' favorite phrase back on them, the law is the law. If the government will not obey its own laws, then it has no moral authority to operate. Ironically, that's a Biblical concept, not a liberal idea. According to scripture, God's authority to stand in divine judgement handing down damnation or salvation comes from his perfection and consistency. God follows his own laws, thus he has total moral authority. But how many Bush supporters would freak out at such an argument?

    In pure secular terms, the only result of giving discressionary power in 99% of all cases out there is to have the government not obey the law. The government must obey its own laws in order to ensure law and order, and having a law that says "the state shall do what it wilt, shall be the whole of the regulation of the government's conduct" is not a law. It's a license to anarchy in the pejorative sense of the word.

    If our government is unwilling to even use its Article IV powers to shut down the borders in violation of NAFTA and all travel from rogue states and Saudi Arbia, then it doesn't need to even speak about new powers.
  • well (Score:3, Funny)

    by revery (456516) * <charles@cac 2 . n et> on Friday February 17, 2006 @05:40PM (#14745366) Homepage
    Domestic Spying Records Ordered Released

    Domestic spying... ok.

    There was this one time, when I was ten, I was hiding in the hall and I heard my mom and dad talking about my birthday present. That was pretty cool.

    Then there was this time in high school when I hid in the principal closet and hoped to hear something interesting, like him having a secret affair or him reading the final exams out loud for fun or something, but he just made a phone call to his doctor and passed gas a few times.

    Then there was this time I was in a Jefferies tube with Seven of Nine, and we were listening to the Cardassians who had taken over our ship, but I'm pretty sure that was just a dream.

    There was some other stuff, but I don't remember most of it.

  • We have to respect the Department of Justice's right to privacy.
  • by Anonymous Coward

    One thing about this is story is everybody has an opinion about what NSA is doing, and what the law is. Then of course there is the reality of what the NSA is really doing and what the law really is. General Hayen used to run the NSA, and was running it when the program was set up. He was the briefer of members of Congress (remember from both parties) on what the program was doing during his time at the NSA. Here is the transcript http:/// [http]http://www.dni.gov/release_letter_012306.h tml/> of Gen. Hayden'

  • threat (Score:4, Funny)

    by glsunder (241984) on Friday February 17, 2006 @06:28PM (#14745757)
    If it doesn't get overturned, Cheney will just threaten to shoot the judge in the face.
  • Not going to happen (Score:5, Interesting)

    by HangingChad (677530) on Friday February 17, 2006 @06:28PM (#14745762) Homepage
    A federal judge ordered the Department of Justice to release records related to the National Security Agency's warrantless domestic spying program by March 8, or else explain the legal basis under which the records cannot be released.

    The Gonzales will just give him the same tripe they've been spouting on TV. Constitution, use of force authorization, blah, blah, blah. The Bush administration isn't going to let some piddly little district court judge push them around. Especially when they've managed to load the Supreme Kangaroo Court with their cronnies.

    They'll claim it's necessary for "security" and there will be a 5 to 4 vote overturning the order and they'll go right back to doing whatever the hell they feel like. This will only further demonstrate how little the current administration values the rule of law. And if you haven't figured that out by now, you're never going to. For rest of us it will simply be one more razor slash on the Constitution.

  • Plenty of time (Score:2, Insightful)

    by wardk (3037)
    to shred the undesirable stuff.
  • Amendment IV (Score:2, Insightful)

    by Anonymous Coward

    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.

    ENOUGH SAID.

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