Thursday, April 1, 2010

Federal Judge Finds N.S.A. Wiretaps Were Illegal

By CHARLIE SAVAGE and JAMES RISEN
March 31, 2010

WASHINGTON — A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.



In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.




The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.



The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.



The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.



The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”




That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”



Because the government merely sought to block the suit under the state-secrets privilege, it never mounted a direct legal defense of the N.S.A. program in the Haramain case.



Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.



One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”



“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”



A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”




The ruling is the second time a federal judge has declared the program of wiretapping without warrants to be illegal. But a 2006 decision by a federal judge in Detroit, Anna Diggs Taylor, was reversed on the grounds that those plaintiffs could not prove that they had been wiretapped and so lacked legal standing to sue.



Several other lawsuits filed over the program have faltered because of similar concerns over standing or because of immunity granted by Congress to telecommunications companies that participated in the N.S.A. program.



By contrast, the Haramain case was closely watched because the government inadvertently disclosed a classified document that made clear that the charity had been subjected to surveillance without warrants.



Although the plaintiffs in the Haramain case were not allowed to use the document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public information — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.



Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs.




But Judge Walker limited liability in the case to the government as an institution, rejecting the lawsuit’s effort to hold Robert S. Mueller III, the F.B.I. director, personally liable.



Mr. Eisenberg said that he would seek compensatory damages of $20,200 for each of the three plaintiffs in the case — or $100 for each of the 202 days he said they had shown they were subjected to the surveillance. He said he would ask the judge to decide how much to award in punitive damages, a figure that could be up to 10 times as high. And he said he and his colleagues would seek to be reimbursed for their legal fees over the past five years.



The 2005 disclosure of the existence of the program set off a national debate over the limits of executive power and the balance between national security and civil liberties. The arguments continued over the next three years, as Congress sought to forge a new legal framework for domestic surveillance.



In the midst of the presidential campaign in 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the program. As a senator then, Barack Obama voted in favor of the new law, despite objections from many of his supporters. President Obama’s administration now relies heavily on such surveillance in its fight against Al Qaeda.




The overhauled law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said.



But since Mr. Obama took office, the N.S.A. has sometimes violated the limits imposed on spying on Americans by the new FISA law. The administration has acknowledged the lapses but said they had been corrected.



http://www.nytimes.com/2010/04/01/us/01nsa.html?pagewanted=print

Why You Need to Understand Political Psychology

by: Joe Brewer, t r u t h o u t | Op-Ed

(Image: Jared Rodriguez / t r u t h o u t; Adapted: Brian Hillegas, Reigh LeBlanc, abrinsky)




http://www.truthout.org/why-you-need-understand-political-psychology58214?print

Are you concerned about the future of our country? Do you want to find ways to revitalize democracy and set about the important work of solving our problems? Have you longed for an end to the extreme polarization in our political discourse? Then you'd better learn some psychology.


Let's take stock of several key challenges confronting us:




  • Entire voting blocks of society live in fundamentally different realities;

  • Fear runs rampant on talk radio and the major media networks, painting many of our public servants in the image of Hitler and, in some cases, the Antichrist;

  • Vitally important information about the threats at our door is treated as speculative opinion or false belief;







  • A significant portion of the American populace not only doesn't trust in our capacity to govern, but is outright hostile toward civil institutions.



Challenges like these cannot merely be dispelled by facts. Nor can they be addressed by using opinion polls to build policy platforms. What we need is a new theme in public education - knowledge and insights into the political mind. Let me demonstrate this need with an example.


Yesterday, I stumbled upon a blog article that had sent some traffic to my web site. Usually, I'm pleased when my work is referenced. But this was different. I read through the article, "How Should Conservatives Deal with the Left's Disrespect and Lack of Empathy," and felt a chill run through my bones. The author had taken an incomplete theory from the work of Jonathan Haidt (a social psychologist and friend of mine) and used it to argue that conservatives need to treat liberals as "psychopaths" who get away "scot-free" with lying about their political opposition. The author went on to recommend that readers must "make sure consequences are dealt out to those liberals who lie and treat conservatives with disrespect."


But that was only the beginning. Then, I scanned through the comments to find out what kind of discussion they were having. That's when I discovered a gold mine of data for studying the assumptions, beliefs and attitudes of a community that has divided the world into us versus them and is vehement about unleashing their righteous anger on liberals and progressives.


I encourage you to read through the comment thread and give careful consideration to the views held there. When you do so, consider the following foundational insights that come from research in political psychology.



Insight No. 1: Emotions Shape Judgment


Haidt has done more than articulate the Moral Foundations Theory referenced in the blog article (which I have a few methodological concerns about, see the note below). He has also developed a much more robust theory of moral judgment called the Social Intuitionist Model (a copy of the seminal paper on this theory can be requested here). A key finding from this research is that emotion shapes our moral judgments prior to formulating reasons for taking our positions.


In other words, we are more like defense lawyers than philosophers. We are compelled by our judgments to feel a moral view is appropriate and correct, then defend it if pressed to do so. We don't start with a set of assumptions and reason our way to conclusions. And this process occurs largely outside conscious awareness, so it takes practice to recognize when it is happening.


This relates to a common psychological phenomenon called "confirmation bias," which refers to the tendency to be overly critical of information that challenges what one believes to be true (or the tendency to uncritically accept information that supports one's belief). We see this all the time in politics. People are predisposed to consider their values, views and positions as inherently good and right. At the same time, we tend to be suspicious of anyone who holds a view different from our own.


Insight No. 2: Separate Tribes and Weakened Bonds of Humanity



In order to make sense of the world, we have to divide various aspects of our experience into distinct categories. This includes partitioning people into groups such as adults and children, employed and unemployed, domestic and foreign etc. We do this all the time.


What is not commonly acknowledged is the way subtle (and sometimes not-so-subtle) feelings seep in to establish moral judgments about each group. In politics we divide the world up into categories like liberal, conservative, independent, centrist and libertarian. Each of these tribes is imbued with seemingly "natural" qualities. Yet, as mentioned above, we are prone to making emotionally potent judgments about others without realizing it.


As a result, we often see those who are different from us as less than human. The technical name for this is "infrahumanization," which literally means below human. Common examples include calling one's opponent an insect ("he's a pest"), a virus ("they were the scourge of the seven seas") or a natural disaster ("their ideas wreaked havoc on our nation"). In each of these cases, the opponent is treated as something other than human. As a result, the empathetic connection that drives social emotions like affection, guilt and remorse is weakened.


This is how one political group manages to feel so little sympathy for "the other."


Insight No. 3: Perception Shapes Reality


While it may be the case that there is an objective reality, human beings don't directly live in it. We experience the world through our bodily experience. And our experience is largely shaped by our perceptions.


A concrete example is color. What we experience as "red" is the result of a very complex process wherein photons hit our retinas and our brain circuitry detects boundaries, calculates how much information comes from three different cells with distinct sensitivity to a range of light frequencies and what this information means in the type of setting we presume it to be. In other words, our experience of "redness" is the result of biology, physics and culture. A wonderful discussion of this phenomenon can be found in George Lakoff's "Women, Fire and Dangerous Things: What Categories Reveal about the Mind."



What is true for concrete aspects of experience (like color) is also true for the more abstract concepts of politics. Progressives and conservatives have very different ideas about the meaning of freedom, security, patriotism and authority. Our understandings of what markets are, how government works and what it means to be a good society vary according to our perceptions of reality.


In other words, our beliefs and worldviews shape our sense of what is real.


A Strategy for Political Change


What would happen if more Americans knew about insights like these? First off, we would likely become sensitive to our own tendencies to misunderstand those who are different. We would also be more aware of the ways we treat others as less than ourselves. And we would have deeper insights into why it has been so hard to have constructive dialogue about important political issues like health care and climate change when the people involved operate under fundamentally different assumptions and beliefs..


This suggests a strategy for bringing about real and lasting change:



The Mindful Politics Strategy Approach, political discourse through the lens of political psychology. Look for key differences in group understandings and seek common ground through shared aspects of culture. Build trust by earnestly seeking to know the other. And aspire toward new coalitions based on core concerns that unite culturally distinct communities across the nation around the fundamental human condition we all share.




This is a worthy strategy. It is based on an understanding of how the mind actually works, rather than commonplace assumptions that all too often reflect prejudices and misconceptions. And it is grounded in the foundational desire to build trust among people who see the world through a different lens than us.


Some readers will think this is naive and simplistic. After all, many conservatives have already decided that we are "the enemy" and, therefore, less than human. I am quite aware of the difference between conservatives and progressives - something I researched extensively during my time as a fellow of George Lakoff's Rockridge Institute. And I know that there is a world of difference between the Tea Party Movement and MoveOn.org. But I also realize that many of our problems stem from basic ignorance about how our own minds work.


This is our opportunity to learn more about ourselves and become astute participants in the political process. We neglect the workings of the political mind at our peril.


Note About Moral Foundations Theory


Haidt has done an exceptional job identifying the five moral foundations for the human condition. He has put together a popular survey to help people see how much of their personal makeup is grounded in each one of these foundations. Where his method falters is in the frames that shape key questions used to determine the moral foundations of political liberals and conservatives. He inadvertently frames liberal ideals through a conservative lens, resulting in the misplaced observation that liberals lack a "purity" response. What he actually measures is the absence of conservative notions of purity in liberal responses through the way he words his questions. This minor flaw in his methodology leads to the skewed perception that liberals lack a moral response that is common in conservatives. What is actually happening is that liberals and conservatives have very different moral worldviews and their reactions around purity and disgust are expressed in different ways.


As an example, liberals have a strong purity response to human rights abuses. This has to do with the prominence of human dignity in the progressive worldview. The inherent goodness of people is violated by acts of torture, child abuse, chronic neglect of the homeless etc. This violation of moral purity evokes a strong disgust response in liberals. 




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