A BUZZFLASH GUEST CONTRIBUTION
by Elliot D. Cohen

On June 20, 1996, Senator John McCain allegedly assaulted a family member of a Vietnam War prisoner of war (POW) who was missing in action (MIA), as a group of about 15 family members of POW/MIAs watched in astonishment. Within about one month, five ethics complaints had been filed with the Senate Ethics Committee by five eyewitnesses. But the Senate Ethics Committee refused to investigate the matter.

According to eyewitness Carol Hrdlicka, wife of Vietnam War POW/MIA air force pilot Col. David Hrdlicka, the group had been waiting in the hall of the Russell Office Building in Washington, D.C. for McCain to come out of an office in order to hand deliver letters asking him to forego an amendment to the Missing Service Personnel Act (MSPA) of 2005. The MSPA had been signed into law in February 1996 as part of the Defense Authorization Act of 1996 (P.L. 104-106). This law, which updated a 1942 law, had been a major victory for the families of POW/MIAs who worked tirelessly to get it through Congress.

The MSPA required the Pentagon to beef up its resources to find and rescue missing service personnel in a timely manner. For instance, it required the filing of reports on missing persons within 48 hours. Among other substantive provisions, it also criminalized withholding information from the families of POWs by broadly stipulating that "any person who knowingly and willfully withholds from the personnel file of a missing person any information relating to the disappearance or whereabouts and status of a missing person shall be fined as provided in title 18 or imprisoned not more than one year, or both." McCain's amendment eviscerated these new changes. For instance, it increased the reporting time to 10 days, and it deleted entirely the stated provision penalizing the withholding of information.

These family members of POW/MIAs had come to speak with McCain to try to convince him to leave the law alone. Mrs. Hrdlicka gives the following description of what happened:

When he [McCain] realized who we were, his face turned red and he became enraged. He would not accept the letters we had brought, he burst through our group assaulting the niece of Jane Duke Gaylor, mother of a MIA. I followed Senator McCain down the hall asking that he leave the legislation alone and all the while he is denying that he knew anything about the Missing Personnel Act. ...As we reached the elevator he said to me that I didn't know what he had been through ... I then stated I understood what he had been through and David Hrdlicka was still going through it. I had the capture picture of my husband and tried to show the picture to him but he would not look at it. ...The elevator arrived and Senator McCain quickly jumped in -- that ended our conversation. After this incident we went to the Capitol Police and filed a report. We also sent complaints to the ethics committee on the Senator's behavior.

"He went from a smiling, congenial, happy face to a beet red, totally enraged face in an instant," she said. "I have never seen a senator act in this way. We were all dumbfounded how this happened. He threw his arm up, and she goes flying and Jane [who was in a wheelchair] gets pushed aside as he brushes by her. All I see is people flying and I'm behind him [McCain]... This was assault."

According to Black's Law Dictionary (6th Edition) assault and battery consists of "any unlawful touching of another which is without justification or excuse. ... battery requires physical contact of some sort (bodily injury or offensive touching), whereas assault is committed without physical contact...." Given Mrs. Hrdlicka's description of what happened (which was generally consistent with that given by other eyewitnesses), it would appear that McCain engaged in "offensive touching" of another "without justification or excuse." Yet neither the Capitol Police nor the Senate Ethics Committee investigated the incident.

An August 2, 1996 letter to Hrdlicka from the Senate Ethics Committee stated, "To the extent that your complaint appears to relate to alleged physical acts, it would appear that appropriate action has been taken by informing the Capitol Police of the alleged incident. Thus, based upon the information which you have provided, no further action is intended with respect to this matter." The Committee therefore claimed to have rested its decision not to take any action regarding the "alleged physical acts" entirely on the fact that these acts were reported to the Capitol Police. However, the fact that a case is reported to the Capitol Police does not in and of itself constitute an adequate disposition of an ethics problem.

First, as the Senate Ethics Manual explicitly acknowledges, findings of law and findings of ethics are not necessarily the same. Even in cases where a senator may not have violated a specific law, he or she may still have acted unethically or in a manner unbefitting a member of the Senate. For example, when Senator Larry Craig was arrested by police for disorderly conduct in a police sex sting at the Minneapolis-St. Paul Airport, the Senate Ethics Committee eventually sent Craig a letter of admonition. The letter did not merely admonish Craig for unlawful activity (he had originally pleaded guilty but then attempted to withdraw his guilty plea) but for bringing discredit to the Senate. Citing the Senate Ethics Manual, the Committee stated that Senate Resolution 338 (S. Res. 338) "gives the Committee the authority to investigate Members who engage in "improper conduct which may reflect upon the Senate," regardless of whether such conduct violates a specific statute, Senate Rule, or regulation." And it added, "the Committee has stated that the Senate "may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole."

Craig had allegedly tapped his fingers under an adjacent toilet stall occupied by a police officer. But McCain had allegedly assaulted and battered a woman who came to speak to him about a matter of State. In its August 2, 1996 letter to Hrdlicka, the Committee also cited S. Res. 338 as giving it the authority to "receive and investigate allegations of improper conduct which may reflect upon the Senate." Yet, in McCain's case, the Ethics Committee did not perceive the need to investigate this serious complaint, nor to take issue with McCain's conduct.

Second, according to Hrdlicka and two other complainants, Capitol Police did not investigate the matter after the incident was reported. On this assumption, there appears to be no evidentiary basis for the Senate Ethics Committee to have concluded that the matter was appropriately resolved. If the Ethics Committee wished to rest its conclusion on the fact that a report was filed with the Capitol Police, then it needed at least to order an investigation. The mere filing of a report does not itself dispose of a complaint.

Hrdlicka's burning question regarding McCain has been a resounding "Why?" Why did the Senator deny that he knew anything about the Missing Personnel Act? "That," she said, "was a lie," because "at that moment he was working behind the scenes to gut the legislation."

And she queried, "Why does he get so angry at the families? The only thing the families are trying to do is get the truth. He of all senators ought to understand and ought to try and help us because he knows what it is to be a POW. We fought for his rights when he was in captivity." As late as 1992, Hrdlicka said she had received documented reports of live sightings of her husband. So, after three decades of living with the uncertainty of whether she would ever see her husband alive again, it was reasonable for her to expect a compassionate hearing from the Senator known to be an ardent supporter of the rights of POW/MIAs and their families.

The callous, hostile reception Hrdlicka described was anything but compassionate: physical assault on a family member of a POW/MIA; a concerted effort to eviscerate law that protects POW/MIAs and their families; refusal to speak candidly to those who have suffered for decades; lying about knowledge of the MSPA while all along working to dismantle it -- all of these allegations, viewed in relation to one another, paint a coherent, unsettling picture that belies basic tenets of human decency such as doing for others what you would have others do for you. This portrays John McCain in a way that an Ethics Committee with jurisdiction over "improper conduct" of senators sworn to uphold a sacred public trust should not ignore, especially when this profile include allegations of assault and battery.

Hrdlicka finds it hard to palate the possibility that John McCain, the man she says assaulted a family member of a POW/MIA right before her eyes, could be the next Commander in Chief of the United States. Contemplating what a McCain Presidency might portend, Hrdlicka asks, "If he [McCain] will not support the family members of our MIAs, what makes anyone think he will show compassion to any of the people he will be sending off to get maimed?"

So it is understandable why she would see the need to speak out now about the 1996 incident. Viewed in the context of the upcoming Presidential election, the failure of the Senate Ethics Committee to pursue these allegations back in 1996 underscores the present urgency to bring the matter into public view. The court of public opinion may now be the only court left through which a sound verdict might be reached.

by Elliot D. Cohen

Senate Majority Leader Harry Reid has yielded to the Bush Administration and telecom lobbyists by sending the Senate Intelligence Committee's version of the FISA Amendments Act of 2007 (S.2248) to the Senate floor. This bill, a brainchild of Dick Cheney that insulates telecommunications companies from both retroactive (past) and prospective (future) civil and criminal liability for assisting the government in illegally spying on the American people, is about to mark the end of democracy in America.

A few versions of the bill had been sent up from committee to Reid. One version drafted by the Senate Judiciary Committee does not grant retroactive immunity. But the Senate Intelligence Committee (SIC) version of the bill gives the Bush and Cheney exactly what they want -- legal protection to conduct surveillance operations in secrecy in virtually any way they see fit, and full immunity to the telecoms for assisting. It would now take 60 Senate votes to amend this bill to protect the Constitutional rights of American citizens.

Not only does this bill insulate the telecoms from retroactive civil and criminal liability dating back to September 11, 2001; but it also insulates these companies from such liability at least until 2013 when the law sunsets. There are presently about 40 civil suits now pending that would be wiped out if this bill, in its present form, becomes law.

SIC S.2248 also fails to provide adequate judicial oversight. Instead, the bill requires the Attorney General or Director of National Intelligence to certify to a FISA Court that procedures are in place to "minimize" the extent to which American citizens are spied on without a court warrant. And there is also a "limitation" according to which this certification does not have to identify the specific facilities, places, premises, or property at which the acquisition authorized will be directed or conducted. Nor is there any requirement to divulge the identities of those persons being targeted.

The primary oversight activity granted to the FISA Courts by SIC S.2248 is in reviewing the minimization procedures adopted by the government to determine if they meet the minimization standards adopted in 1978. Unfortunately, there is no real judicial oversight to determine if the government is truly applying standards consistent with the 1978 provisions.

SIC S.2248 accordingly gives the federal government a virtual blank check in conducting its surveillance activities. In exchange the government is also required to attest that it is following the Fourth Amendment, avow that it has a "significant purpose" in gathering foreign intelligence, and disavow that it has any similar "intent" to spy on Americans. This is not what the Founding Fathers intended when they established a real system of checks and balances to guard against abuses of power. Under the terms of this bill, government can easily conduct massive, indiscriminate spying operations without its victims -- the American people -- having any legal recourse.

That the Bush Administration is presently conducting such wholesale spying operations is at this juncture past reasonable doubt. Presently, there is credible evidence that, installed deep inside major national hubs of AT&T, is surveillance equipment that copies and routes all Internet and telephone traffic to a National Security Agency (NSA) computer network where the content of these messages is examined using undisclosed, top secret search criteria. This massive surveillance program has been the basis of a class action suit filed by the Electronic Frontier Foundation against AT&T on behalf of American citizens. This suit as well as all the others now pending against AT&T and other telecoms (notably Verizon) will be wiped out with the passage of SIC S.2248.

The dangers this bill poses to the survival of democracy in America are far-reaching and fatal. Here are some of them:

1. SIC S.2248 would permit the notorious Total Information Awareness (TIA) project started by Bush and Cheney in 2003 to go forth. This project, renamed the "Terrorist Information Awareness" aspired to create a colossal network of integrated technologies for intercepting, storing, searching, monitoring, reading, and analyzing all private, computerized records of 300 million Americans. Amid public outcry, this project was presumed to have been de-funded by Congress but instead the project, including several of its core technologies, was transferred from the Department of Defense to the NSA. These core computer technologies now appear to have been deployed by the NSA in spying on the telephone and e-mail conversations and Internet activities of millions of Americans. If SIC S.2248 becomes law, this massive, illegal spying operation is likely to continue and escalate behind an impenetrable veil of secrecy.

2. Operating behind this veil of secrecy without judicial inspection, search criteria of TIA technologies can easily be programmed to intercept, read, and collect the electronic messages of political opponents in order to gain an unfair campaign advantage in the upcoming presidential election. Especially at this juncture in time, with the presidential election looming close on the horizon, there is dire need for a FISA law that permits legal scrutiny of the NSA surveillance program.

3. That the Bush Administration is motivated to engage in such egregious violations of privacy is beyond speculation. In 2005, it was revealed that it has kept extensive computerized files on more than 10,000 Americans it considered political enemies. These files have included intimate personal details of individuals who may have disagreed with Bush/Cheney such as members of Congress; local, state and federal officials; journalists; and even ordinary citizens. The purpose of this "enemies list" has been for use by senior level administration officials in waging campaigns to discredit these perceived adversaries. It cannot therefore be dismissed that it is presently utilizing the TIA technologies it now has at its disposal to gather incriminating or damaging information on its Democratic opponents in Congress and elsewhere to intimidate them into walking lockstep with the administration. This could potentially include anything from taking impeachment off the table to passing dangerous legislation -- including SIC S.2248 itself.

4. In this election year, with TIA at its disposal, the Bush Administration can do more than intercept and read its political opponents' e-mail and phone messages in order to gain an unfair campaign advantage. Electronic voting itself requires transmission of the votes cast by American citizens to a central tabulation headquarters through the phone lines. Without the necessary judicial intervention, the TIA system can also be deployed to block votes, reconfigure them, and thereby change the outcome of election results. Presidential candidates, particularly Democratic ones, therefore have self-interested reasons to try to stop SIC S.2248 from becoming law.

5. Given the Bush Administration's penchant for targeting the media, immunizing the telecoms from legal accountability can also make it possible to set TIA search criteria to read journalists' electronic correspondence. Indeed, even bare knowledge that all electronic messages are being tapped can have the effect of chilling the First Amendment right to a free press by making sources more reticent to freely disclose information, especially via international phone and e-mail communications. It can also make journalists themselves less inclined to cover an anti-Bush Administration story when they are aware that their communications are being monitored.

6. But ordinary citizens also have reason for concern. Natural language parsing technologies of the kind used to search electronic messages are notoriously fallible and subject to false positives. This means that all Americans, even those who believe they have nothing to hide, are also at risk.

7. If SIC S.2248 becomes law, all citizens will be suspects in a massive dragnet operation without any legal recourse of their own. Still, the bill opens up the possibility for discriminatory enforcement of the law. Persons of Middle Eastern descent, for example, could become priority targets of surveillance. Given the current administration's suspension of habeas corpus, its policy of "rendition," and its willingness to use torture, such selective targeting can have egregious and far reaching consequences for targeted groups. A case in point, which illustrates the dangers of selective targeting is that of Maher Arar, a Canadian citizen of Middle Eastern descent, who in September 2002 was stopped without probable cause at JFK airport on his way back to Canada and "rendered" to Syria, to be tortured for nearly a year. Since according to SIC S.2248, civil and criminal suits are off the table, such discriminatory targeting could be carried out with the assistance of the telecom companies in violation of the 14th Amendment guarantee of equal protection under the laws. According to SIC S.2248, the victim of such a violation could have no legal cause of action against the telecom company for its acquiescence in such a travesty of justice. This is as absurd as it is dangerous in a society that claims to be a democracy governed by the rule of law. It is in principle no different than the case of the Jews in Nazi Germany who under Hitler were tracked by IBM using punch card computer technology. Under Hitler's "law," IBM was also granted legal immunity for its egregious violations.

8. If SIC S.2248 becomes law, the Internet will be subject to policing by government acting secretly through the telecom companies. This situation opens up a Pandora's Box for government censorship of information it considers "subversive," which is a sizable part of the Internet. In recent years, the telecom companies have gained considerable legal leverage over the phone lines and cables that carry Internet exchanges. In this climate of growing corporate control over these pipes, SIC S.2248 would add still further fuel to the fire that threatens to burn away net neutrality. If the government acting through the telecoms can police the Internet without Judicial scrutiny, then it becomes abundantly easier for it to censor and manipulate its content in the name of "national security" while hiding behind a grant of legal immunity. Given the Bush Administration's penchant for stretching legal boundaries beyond their just limits, a virtual blank check to police Internet traffic is also a recipe for controlling what gets pumped into it. This is also a recipe for fascism.

And there is good reason to believe that Cheney and company would favor a police state to a democracy. It is well documented that his political objective has and continues to be that of making America the world's sole superpower through the buildup and use of military force. This goal is not attainable unless central government can anticipate and subdue its opponents both at home and abroad.

Most Americans would cringe at waging a bloody war in Iraq for purposes of acquiring greater control over its oil fields. Yet, justifying a preemptive war by connecting Iraq to WMDs or September 11 to Saddam Hussein is more effective than the truth. Enlisting support from the mainstream media and telecom corporations in promulgating propaganda and spying on Americans, in exchange for lucrative military contracts, corporate mergers, relaxed media ownership rules, and other government perks, works better than respecting First and Fourth Amendment rights.

Democracy breeds alternative social and political perspectives. Dictatorship breeds single-mindedness and stamps out opposition to the status quo. The latter is the environment that Cheney and Bush seek in attempting to attain their narrow ideological mission. SIC S.2248 is, for them, a perceived means to this end. The end of democracy is part of the price they are willing to pay.

In conceding to the Bush Administration, Harry Reid has become an accomplice to the demise of democracy. Anyone other Senator who votes in favor of SIC S.2248 does the same.

Presently, the House version of this bill, the Restore Act (HR 3773), does not grant retroactive immunity to the telecoms. It is therefore better than SIC S.2248. If the latter passes in the Senate, the survival of democracy in America may well rest with how these two bills are reconciled.
 

by Elliot D. Cohen

Despite the fact that the recent National Intelligence Estimate (NIE) on Iran maintains a high level of assurance that Iran ceased its nuclear weapons program in 2003, President Bush and Vice President Cheney remain resolute in stopping the "threat" posed by Iran. "Not everyone understands the threat of nuclear proliferation, in Iran or elsewhere," said Cheney speaking recently to an audience of Veterans of Foreign Wars. "But we and our allies do understand the threat, and we have a duty to prevent it."

So even as the rationale for going to war with Iran has been largely defused by the NIE, the specter of a "preemptive" war still hovers over America as its chief executives refuse to back down. Unfortunately, there are verifiable, ideological reasons for this persistence that the mainstream media have not revealed.

In 1992, during the George H.W. Bush Administration, Defense Department staffers Paul Wolfowitz, I. Lewis Libby, and Zalmay Khalizad, acting under then-Secretary of Defense Dick Cheney, drafted the Defense Planning Guidance (DPG), an internal document that advocated massive increases in defense spending for purposes of strategic proliferation and buildup of military defenses to establish the preeminence of the United States as the world's sole superpower, and to prevent any nations from challenging its supremacy in the future. This document, which was leaked to The New York Times and The Washington Post, stated, "The U.S. may be faced with the question of whether to take military steps to prevent the development or use of weapons of mass destruction." Such steps, it said, could include a preemptive attack with nuclear, chemical, or biological weapons or "punishing the attackers or threatening punishment of aggressors through a variety of means," including attacks on the plants that manufactured such weapons.

The DPG was also clear about what should be the U.S.'s "overall objectives" in the Middle East. Of these, the main objective, it said, was to "remain the predominant outside power in the region and preserve U.S. and Western access to the region's oil."

Amid public outcry after its release, the H.W. Bush Administration was forced to publicly retract the doctrine. However, the DPG did not disappear. Despite its draconian and Machiavellian character, Cheney was impressed by it, and in 1997 he, Libby, Wolfowitz, and Khalizad joined William Kristol, Donald Rumsfeld, Elliott Abrams, and several other adherents and soon-to-be George W. Bush appointees in founding the so-called Project for the New American Century (PNAC), a politically influential research foundation dedicated to realizing the major objectives of the DPG.

In 2000, the year that George W. Bush became president, PNAC published a document entitled "Rebuilding America's Defenses" (RAD), which "saw the project as building upon the defense strategy outlined by the Cheney Defense Department in the waning days of the Bush Administration. "The Defense Policy Guidance (DPG) drafted in the early months of 1992," it said, "provided a blueprint for maintaining U.S. preeminence, precluding the rise of a great power rival, and shaping the international security order in line with American principles and interests." RAD also went on to decry the fact that the DPG was leaked before it was formally approved and "buried by the [Clinton] Administration." Nevertheless, RAD was clearly intended to revive the DPG by making it the basis of a "road map" for the incoming George W. Bush Administration. It stated, "Our report is published in a presidential election year. The new administration will need to produce a second Quadrennial Defense Review shortly after it takes office. We hope that the Project's report will be useful as a road map for the nation's immediate and future defense plans."

This "road map" was quite clear about the direction the Bush Administration was supposed to take with regard to Iran. RAD stated, "Iran may well prove as large a threat to U.S. interests in the Gulf as Iraq has. And even should U.S.-Iranian relations improve, retaining forward-based forces in the region would still be an essential element in U.S. security strategy given the longstanding American interests in the region." Moreover, it was quite clear from the DPG that, of these "longstanding American interests," the primary interest was access to oil.

RAD also insisted that, "the United States must retain sufficient forces able to rapidly deploy and win multiple simultaneous large-scale wars and also to be able to respond to unanticipated contingencies in regions where it does not maintain forward-based forces." This mandate to be able to fight and win "simultaneous major theater wars" is part of the fabric of the PNAC plan for the U.S. to assert itself as the sole preeminent international power. Not only does it not shy away from launching two or more wars at once, but it also actually asserts that this "two-war standard" is essential for maintaining its superpower status.

From here it is an easy inference as to why Cheney and Bush are still beating the war drum. The Clinton Administration was an interruption in the military strategy to achieve geophysical supremacy through the buildup of military forces, and the Middle East -- especially Iraq and Iran -- are and continue to be primary targets of its simultaneous multiple theatre strategy for achieving its objective.

Unfortunately, the current administration has learned from the past experience of its Vice President that lies and deception are to be favored over honesty and truth. How could the current administration ever come clean with a public that has already rejected its bellicose vision? How could it tell the parents of those who have died in the war in Iraq that the facts have been twisted to fit an ideology aiming at geopolitical preeminence rather than at preempting an imminent threat to the homeland? And, how could it audaciously ask more able-bodied men and women to risk their lives in an attack on Iran that aims at securing access to the region's oil? If Bush and Cheney now and then get caught in lies and deception, there is always another lie they can concoct to conceal their true intent. This is less than ideal but is still more advantageous to their mission than telling the public the truth. So the American people can expect more of the same.

Speaking at a security conference in Bahrain this week, the present Secretary of Defense, Robert Gates, claimed that Iran may have secretly resumed its nuclear weapons program. And he said, "Everywhere you turn, it is the policy of Iran to foment instability and chaos, no matter the strategic value or the cost in the blood of innocents -- Christians, Jews, and Muslims alike." This resembles the strong, disingenuous rhetoric that also preceded the invasion of Iraq. It bears the scent of the same road map to war.

Still, the mainstream media, our "Fourth Estate," continues to mislead the public by omitting relevant, verifiable facts about the Bush Administration's ideological roots -- its close affiliation with the PNAC and the latter's doctrinal basis in the DPG of Cheney's Department of Defense during the first Bush presidency.

Leaving this matter uninvestigated may portend serious, global consequences for the survival of a democratic America and the international balance of power.
 

by Elliot D. Cohen

About to be consummated by the Senate may be one of the most egregious, far-reaching, and dangerous attacks on constitutional rights in U.S. history. What is scheduled to take place this week on the Senate floor is a hearing about shielding telecommunication companies from both past and future criminal and civil liability for helping the Bush Administration to deploy and operate a massive computerized system of unlawful search and seizure with the potential to disrupt and destroy free elections, privacy, freedom of the press, and freedom of speech in America -- in a word, democracy.

The gravity of this attack on democracy in America cannot be overstated and is now by far the most serious crisis gripping this nation. Yet most Americans do not know about it. Nor is it on the evening news or being addressed by the mainstream pundits who instead speak at length about who won the last Democratic presidential debate. Sadly, it may not matter.

Since September 2001, and possibly earlier, AT&T, working cooperatively with the White House and the National Security Agency, has conducted monitoring of all e-mail and phone messages passing through the AT&T system, which also includes Qwest and Sprint. Making copies of all these messages and routing them for analysis to secret rooms hidden deep inside major AT&T hubs in the United States, this system has the potential to analyze message content according to predefined search criteria. Absent judicial oversight, as is now the case, these criteria could easily (and may presently be) set to find and read all messages sent by Democratic opponents of the GOP for purposes of gaining an unfair advantage in the upcoming presidential election in November 2008. Worse, this infrastructure supports interception, analysis, and reconfiguration of electronically cast votes when they are routed from individual voting precincts through the phone lines to a central headquarters for tallying. Unless this surveillance system is dismantled or placed immediately under careful, ongoing judicial watch, the outcome of voting in the next election -- and in subsequent elections -- may be as predictable as rolling loaded dice. Unfortunately, the FISA revisions currently before the Senate do not provide for the judicial oversight urgently needed to prevent the use of this system for such nefarious purposes.

HR 3773, the so-called Restore Act, which has recently been passed by the House of Representatives, has been scheduled for a Senate hearing this week along with the Senate's version of the bill, S. 2248, The FISA Amendments Act. Each of these bills attempts to revise the 1978 FISA law passed after the Nixon Administration to protect American citizens from being illegally spied on by government.

While HR 3773 does not provide for retroactive legal immunity to the telecom corporations, the Senate has so far not decided the issue. In an unanticipated recent move by the Senate Judiciary Committee, the issue was left undecided in committee and sent to the full Senate. Whether or not the Senate, in the end, grants retroactive immunity to the telecoms is profoundly important because such a grant of immunity would affectively wipe out the cause for action of at least 30 civil suits now pending against AT&T. This, in turn, would shield the Bush Administration's secret surveillance program from judicial inspection.

If this dangerous program is to be defused in time to salvage a fair presidential election in 2008, the Senate must now vote against including retroactive immunity in a revised FISA bill. This is not business as usual. It is of the magnitude of a national emergency!

But the Senate will need to do more than this. Both HR3773 and S. 2248 explicitly immunize the telecoms against any cause of action connected with any future compliance with the terms of the bill. So the Senate debate should be over not only whether to give retroactive immunity, but also prospective immunity to the telecoms. Section 3(e)(3) of HR3773 provides,

(3) LIABILITY OF ORDER. -- Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with an order issued under this subsection.

Likewise, Section 703(h)(3) of S.2248 provides,

(3) RELEASE FROM LIABILITY- Notwithstanding any other law, no cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

This grant of prospective immunity provided by both bills is exclusive, which means that it cannot be overridden by any other law -- criminal or civil. This would accordingly fully shield these companies against any future legal liability in assisting government in conducting surveillance under a directive pursuant to the law. This grant of immunity would not necessarily be a bad thing if compliance with directives issued under either of these bills reasonably ensured that the constitutional rights of American citizens would be protected. Unfortunately, both versions, in their current forms, open the floodgates for widespread abuse of privacy and voting rights.

In its present form, HR 3773 allows the Bush Administration to receive from the secret Foreign Intelligence Surveillance Courts (FISC) virtually blanket permission to conduct surveillance between a U.S. citizen inside the United States and a presumed non-Citizen outside the United States for up to one year when the "significant purpose" of the surveillance is to obtain information about a non-citizen situated outside the United States. And while the information obtained through the surveillance is supposed to be conducted with secret minimization standards aimed at minimizing the risk of American citizens getting caught in the dragnet, these standards appear to have little teeth in curbing abuses since they do not require destruction of the information obtained and are subjectively balanced by the government against its perceived need to obtain foreign information. Add to this that the government is not required to reveal the specific identities of persons, places, or communications under surveillance. Nor is there any provisions allowing a FISC to modify the orders or the minimization procedures if it finds a problem with either of these.

A loophole in the bill also permits the government to apply for emergency authorization from a FISC up to seven days after the fact whereby there is no provision for curtailing use of the information obtained should the FISC conclude that the conditions under which the surveillance was conducted did not truly constitute an emergency. This makes it possible for the government to bogusly cry "emergency" and then use the information it obtains anyway.

In the end, the judicial oversight requisite to protecting the Constitutional rights of American citizens against systematic and widespread government abuse, are not included in either of these bills. The government can simply rationalize the mainlining of all American communications through this system of "Total Information Awareness" as the necessary straining mechanism for accomplishing a "significant purpose" (not even the main purpose) of sifting out possible terrorists.

If this judicially toothless law is passed, any challenges to it are likely to be dismissed by the White House and its compliant Justice Department on this rationale coupled with an appeal to the changing tides of technology that, so it will claim, makes such an all-pervasive, surveillance dragnet necessary. In the end, we will have stolen from us our rights to freely communicate with one another and to elect our leaders.

Accordingly, the Bush Administration is now putting pressure on the Senate to pass a bill that provides both prospective and retroactive immunity to the telecoms, and which maximizes its freedom to conduct surveillance activities outside the radar of the courts. If the Senate helps the Bush Administration and its telecom accomplices get what they want, there may be little point to debating whether Clinton or Obama will receive the Democratic nomination.

So what can Americans do about the current crisis? They can help stop the Bush Administration from using Congress to immunize its dangerous surveillance activities from judicial oversight. The American Civil Liberties Union has a campaign underway to send letters to our Senators to convince them not to cave under pressure from the White House (or from the telecoms themselves), asking them not to grant retroactive immunity to the telecoms or give these companies permission to assist government in spying on us without any real checks. All Americans who care about the survival of democracy, including the right to have one's vote counted, have a moral obligation to join this campaign.

At the same time, members of the mainstream media have a professional obligation to resist pressures from the White House, and from the telecoms themselves with whom they partner, and to give due coverage to the story. So far these large corporate conglomerates, which are largely driven by their bottom lines, have betrayed their constitutional charge as the Fourth Estate. They must act now, immediately, before it is too late.
 

 

by Elliot D. Cohen

In 1972, Nixon's burglars, all members of the Committee to Reelect the President, had to risk breaking into Democratic National Headquarters to try to gain an unfair election advantage for the GOP over its Democratic opponent. Now, with Total Information Awareness in place, the Bush White House may not even have to flip a switch to have the Dems' private e-mails and phone conversations delivered to its doorstep. Unfortunately, this may only be the tip of the iceberg for the fate of free elections in America if Congress decides to grant legal status and retroactive immunity to this massive surveillance and data mining operation conducted by giant telecoms on behalf of the President.

Last week, the Senate Judiciary Committee failed to decide on provisions of the FISA Amendments Act of 2007 that would grant telecom corporations ironclad retroactive immunity against civil suits and criminal prosecution for helping the Bush Administration engage in systematic, widespread, warrantless surveillance and data mining of the contents of both domestic and foreign phone and e-mail messages of Americans since at least 2001, and possibly earlier. Instead, the Committee sent two versions of the bill to the full Senate, one of which granted retroactive immunity to telecoms and the other of which did not. Now, the fate of Fourth Amendment protections against unreasonable search and seizure -- including its implications for the future of free and fair elections in America -- rests in the hands of the Senate.

In The New York Times article on November 14, 2002, William Safire warned about the dangers of the Total Information Awareness project:

"Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend -- all these transactions and communications will go into what the Defense Department describes as ''a virtual, centralized grand database.'' To this computerized dossier on your private life from commercial sources, add every piece of information that government has about you -- passport application, driver's license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the F.B.I., your lifetime paper trail plus the latest hidden camera surveillance -- and you have the supersnoop's dream: a ''Total Information Awareness'' about every U.S. citizen."

In the same article, Safire also maintained that the project had been given a $200 million budget to create computer dossiers on 300 million Americans.

But in 2003, the dangers of which Safire warned were addressed by Congress, or at least so it seemed. Amid outcry from civil liberties advocates, this TIA project, which then operated under the Department of Defense (DOD), was defunded. However, under a classified addendum to the Department of Defense Appropriation Act for fiscal year 2004, lawmakers secretly continued funding of TIA component technologies. It did so under two conditions: first, these technologies were transferred to a government agency other than the DOD; and second, they were used only for foreign surveillance and not for spying on American citizens.

According to a 2006 article published in the National Journal, the program was subsequently transferred to an arm of the National Security Agency (NSA). This technology acquired by NSA included technology for integrating the various components of the program as well as artificial intelligence for searching and analyzing massive amounts of electronic message content, according to predefined search criteria. Since the TIA project's R&D also included translating voice messages such as telephone conversations in diverse spoken languages into searchable text messages, it is reasonable to believe that the NSA also had access to such language translation software.

It is therefore not likely a coincidence that the same type of technology as just described now appears to be deployed by the NSA in a massive surveillance and data mining operation being conducted with the assistance of telecom corporations, notably AT&T. Currently pending against AT&T are at least 30 civil suits, including a class action suit filed by the Electronic Frontier Foundation (EFF) alleging that AT&T helped the NSA to illegally spy on the phone and e-mail messages of millions of Americas by copying and routing all incoming electronic messages to secret rooms hidden deep inside major AT&T hubs within the United States. According to EFF, these secret rooms, which require NSA clearance, contain "powerful computer equipment connected to separate networks." "This equipment," it claims, "is designed to analyze communications at high speed, and can be programmed to review and select out the contents and traffic patterns of communications according to user-defined rules."

Apparently, the TIA project, presumed to have been scrapped in 2003, is not now just in the research and development stage; it has actually been deployed. Seen in this light, the recent merger between AT&T and Southern Bell takes on new significance. Whatever else it portends, the granting of this merger by a Bush top-heavy Federal Communication Commission can also be seen as a logistical move to expand the sweep of TIA. This also explains why AT&T was willing to cooperate with the White House in engaging in surveillance activities, the legality of which its army of attorneys could have well anticipated would eventually be challenged -- and could easily expose the corporation to costly lawsuits. Like other corporate decisions, AT&T's decision had to be based on a careful cost-benefit analysis with the prospect of lucrative mergers such as the one with Southern Bell weighing in on the positive side. At the same time, this also explains why the Bush Administration now seeks to shield AT&T from civil and criminal liability for its assistance. To do otherwise would not only be to expose its own unlawful, clandestine surveillance of American citizens -- including the lies it has disseminated to the public about such activity having been restricted to foreign surveillance; but also it would place in peril the infrastructure of a massive surveillance and data mining system that has the potential to intercept, store, search, and analyze the flow of information coming into and out of the United States.

With the present deployment of TIA, it may be pointless to speak of democracy. Free elections are no longer possible when the regime in power has the ability to control the transfer of information. In fact, in a March 7, 2007 report, the Government Accountability Office (GAO) has expressed concerns about relying on telecommunication services for transmitting electronic votes from individual polling stations to a central tabulation center. It states,

"Computer security experts have raised concerns... about voting system standards that are not sufficient to address the weaknesses inherent in telecommunications and networking services. ...Regarding telecommunications and networking services, selected computer security experts believe that relying on any use of telecommunications or networking services, including wireless communications, exposes electronic voting systems to risks that make it difficult to adequately ensure their security and reliability -- even with safeguards such as encryption and digital signatures in place."

While the issues surrounding electronic voting are highly technical and controversial, it is beyond question that a telecom such as AT&T that strains the electronic flow of information, according to undisclosed search criteria, could also in principle act as a so-called "man in the middle" by intercepting, analyzing, and changing votes before they reach their final destination.

If telecoms become immune from investigation, then such voter fraud could be carried out en mass without the possibility of judicial review. There would be nothing more destructive to the existence of democracy than the inability for transfer of power to occur by a free election, according to the rule of law and a constitutional procedure.

The fate of democracy may therefore now be in the hands of Congress. If retroactive legal immunity is given to telecom corporations, this will not only mark the beginning of the end for the Fourth Amendment but also for democracy in America. Sadly, those Americans who quip that, in the interest of defending freedom and democracy, they do not care if their phone and e-mail messages are examined by government, do not grasp the self-defeating nature of what they are saying. In giving up their Fourth Amendment rights, they will have also given up their democracy.

Presently, the American Civil Liberties Organization (ACLU), in addition to a few other advocacy organizations, is working against granting telecoms retroactive legal immunity. Americans who want to preserve democracy have a moral obligation to send a letter to their Senators telling them to block passage of this measure.
 

by Elliot D. Cohen

Amid public outcry, in 2003, Congress defunded the Bush Administration's Total Information Awareness (TIA) project, a massive Orwellian technology-driven surveillance and data mining initiative. Now, it is attempting to pass through the FISA Amendments Act of 2007 (S. 2248), a bill that would effectively give legal standing and retroactive legal immunity to a major component of this project.

S. 2248 is now before the Senate Judiciary, and will be voted on in just a few days. Unless public opposition is once again vigilant and strong, this new TIA bill has a good chance of passing in committee and of reaching the full Senate floor. Unfortunately, the dire consequences of this legislation for the survival of democracy in America, including the potential to destroy fair elections, have been greatly muted, misrepresented, and downplayed by the mainstream media; and mounting pressure on Congress from both the Bush Administration and the giant telecommunication corporations have combined to increase the odds that S. 2248 will soon become law.