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Here’s How the Feds Use Legal Gymnastics to Justify Illegal Spying

Portions of a 2004 memo on a program known as STELLAR WIND were recently declassified. The program is designed to identify al Qaeda operatives within the United states. Under the program, the NSA collects both content and metadata.

According to the 2004 Goldsmith memo, former President Bush decreed, and the Department of Justice confirmed, that secret warrantless surveillance done in conjunction with the program STELLAR WIND, is “lawful”, and not subject to limitations of the Constitution.

Former NSA analyst and whistleblower Bill Binney created the infrastructure that made STELLAR Wind possible. The technology was originally intended for used against foreign targets. However, in a documentary called, The Program he reported how STELLAR WIND was being used domestically.

Bush created it, but STELLAR WIND did not end under his administration, and the program remains operational under the Obama administration.

Much of the information on the program in the 2004 Goldsmith memo remains redacted. However, it clearly shows it was created to collect content, metadata, and “collection of header/addressing information on communications, such as dialing number information on telephone calls.”

The purpose of the Goldsmith memo is to review of the legality of STELLAR WIND. The memo infers that the program would be illegal under the Foreign Intelligence Surveillance Act (FISA) because it violates restrictions included in the act. But the Department of Justice skirts around that problem by justifying STELLAR WIND under the 2001 Authorization to Use Military Force.

“The Congressional Authorization is significant for our analysis in two respects. First, it is properly understood as an express authorization for surveillance activities-including the content collection undertaken as part of STELLAR WIND- targeted against al Qaeda and affiliated organizations that come with its terms. Second, even if it did not provide express authority for the targeted collection undertaken as part of STELLAR WIND, at a minimum the Congressional Authorization creates sufficient ambiguity concerning the application of FISA in the this context that the canon of constitutional avoidance can properly be invoked to construe the Congressional Authorization to overcome restriction in FISA in this Context.”

The memo goes on to state exactly how the AUMF overcomes FISA restrictions.

We conclude in the circumstances of the current armed conflict with al Qaeda, the restrictions set out in FISA, as applied to targeted efforts to intercept communications of the enemy in order to prevent further armed attacks on the United states, would be an unconstitutional infringement on the constitutionally assigned powers of the President. The President has inherent constitutional authority as Commander in Chief and sole organ for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of that authority.

Simply put, the Department of Justice justifies an unconstitutional program by declaring restrictions on it unconstitutional. This is what happens when you allow part of the executive branch to “interpret” the legality of executive powers. It will always find a justification with the turn of a few legal phrases.

The memo illuminates two major points.

First, under the AUMF, the president may decide arbitrarily who an enemy is, and how much force the US may used against them. This is due to the irresponsibility of Congress handing its authority over to the executive branch with open ended “authorizations.” In fact, last year, we found out that Congress no longer has the need to know who we are at war with. A ProRepublica article explains the “reasoning.”

“Because elements that might be considered ‘associated forces’ can build credibility by being listed as such by the United States, we have classified the list,” said the spokesman, Lt. Col. Jim Gregory. “We cannot afford to inflate these organizations that rely on violent extremist ideology to strengthen their ranks.” Rather than representatives being the voices of the people to launch a war, it is now the sole power of the executive branch that may blind even Congress and the people to the realities of who we are at war with.

Second, using the “Canon of Constitutional Avoidance,” the DOJ created a constitutional issue to avoid legal limits that would hinder STELLAR WIND under the FISA.

The Canon of Constitutional Avoidance serves as a rule of interpretation for judges and it means,”If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems.” As we’ve seen, STELLAR WIND should be restricted under the FISA. But by saying the AUMF creates constitutional authority for the president,  the DOJ simply walks around those congressional restrictions.

The president has inherent constitutional authority as Commander in Chief as sole organ of the nation of foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s Authority.

The memo further researches the “canon” through previous court cases,

 “The constitutional avoidance canon, however, can be used to avoid a serious constitutionality in a statute only if a construction avoiding the problem is fairly possible and not in cases where “Congress specifically has provided otherwise. Statutes should be construed to avoid constitutional questions, but this interpretive canon is not a license…to rewrite language enacted by the legislature….If Congress has made it clear that it intends FISA to provide comprehensive restraint on the Executive’s ability to conduct foreign intelligence surveillance then the question whether FISA’s constraints are unconstitutional cannot be avoided.”

Re-writing laws need not apply, secret interpretations can avoid that all together. However, there is even a more devious interpretation using the canon.

“Moreover, even if it did not provide authority for STELLAR WIND, at a minimum the Congressional Authorization {for the Use of Military Forces] makes the application of FISA in the context sufficiently ambiguous that the canon of constitutional avoidance properly applies to avoid a conflict here between FISA and STELLAR WIND.”

The Goldsmith memo clearly fails to identify under what statute STELLAR WIND falls under. Not only that, it doesn’t matter because of the canon of constitutional avoidance. This is the danger of making multiple laws intended to restrict the executive branch. Instead of restricting abuse of power, multiple bills provide cover for a very powerful president with no responsibility or checks and balances.

With this in mind, bills like the USA Freedom Act should be avoided all together

The Goldsmith memo has some terrifying findings. It shows that the use of STELLAR WIND must be and has been reauthorized every 30 days since its inception from October 4th, 2001. Using exceptions to the warrant requirement, STELLAR WIND has be declared constitutional. The exception following the declaration has been redacted.

The memo further states the justification used to reauthorize the program will be revealed to “appropriate members of the Senate and the House of Representatives as soon as that could be done consistent with national defense needs.” However,

“Since the inception of STELLAR WIND intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continual flow of information indicating that al Qaeda has had, and continues to have, multiple redundant plans for executing further attacks with the United States.”

Interrogations of al Qaeda members most likely came in the form of torture or enhanced interrogation. Meaning, STELLAR WIND has been reauthorized with exceptions to the warrant clause in the 4th Amendment, about 390 times based on torture confessions.

There is a danger in a Congress that hands over its authority to the executive branch. We are seeing this danger of a restrained Congress for the purpose of national defense. The president has restricted Congress from knowing about the dragnet surveillance program and what statute governs the program. This blinds Congress and the people from knowing whom we are at war with and what methods are used against them. It uses torture as a justification to reauthorize dragnet surveillance, and uses multiple bills intended to restrict the president to obfuscate what the government is doing in our name

No review or reform would be sufficient by the US Congress other than defunding the military and its black hole intelligence budget.  Repealing laws rarely happens, but even if it did, STELLAR WIND would still be operational under another statute due to the Canon of Constitutional Avoidance.

But we have the plan: Deny the federal government resources to help in dragnet surveillance, information sharing, and collection of location from cellphones. Take action now!

This New York Times documentary gives a great overview of “The Program.”

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