Corn has broken stories on presidents, politicians, and other Washington players. He's written for numerous publications and is a talk show regular. His best-selling books include Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War.
In the midst of revelations that the government has conducted extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.
This important case—all the more relevant in the wake of this week's disclosures—was triggered after Sen. Ron Wyden (D-Ore.), a member of the Senate intelligence committee, started crying foul in 2011 about US government snooping. As a member of the intelligence committee, he had learned about domestic surveillance activity affecting American citizens that he believed was improper. He and Sen. Mark Udall (D-Colo.), another intelligence committee member, raised only vague warnings about this data collection, because they could not reveal the details of the classified program that concerned them. But in July 2012, Wyden was able to get the Office of the Director of National Intelligence to declassify two statements that he wanted to issue publicly. They were:
* On at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
* I believe that the government's implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.
For those who follow the secret and often complex world of high-tech government spying, this was an aha moment. The FISA court Wyden referred to oversees the surveillance programs run by the government, authorizing requests for various surveillance activities related to national security, and it does this behind a thick cloak of secrecy. Wyden's statements led to an obvious conclusion: He had seen a secret FISA court opinion that ruled that one surveillance program was unconstitutional and violated the spirit of the law. But, yet again, Wyden could not publicly identify this program.
"When the government hides court opinions describing unconstitutional government action, America’s national security is harmed," argues the Electronic Frontier Foundation.
Enter the Electronic Frontier Foundation, a public interest group focused on digital rights. It quickly filed a Freedom of Information Act request with the Justice Department for any written opinion or order of the FISA court that held government surveillance was improper or unconstitutional. The Justice Department did not respond, and EFF was forced to file a lawsuit a month later.
It took the Justice Department four months to reply. The government's lawyers noted that they had located records responsive to the request, including a FISA court opinion. But the department was withholding the opinion because it was classified.
EFF pushed ahead with its lawsuit, and in a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.
This was puzzling to EFF, according to David Sobel, a lawyer for the group. In 2007, the American Civil Liberties Union had asked the FISA court to release an opinion, and the court had informed the ACLU to take the matter up with the Justice Department and work through a district court, if necessary.
So there was a contradiction within the government. "It's a bizarre catch-22," Sobel says. On its website, EFF compared this situation to a Kafka plot: "A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial."
Before EFF could get a ruling on whether this opinion can be declassified and released, it had to first sort out this Alice in Wonderland situation. Consequently, last month, it filed a motion with the FISA court to resolve this aspect of the case. "We want the FISA court to say that if the district court says the opinion should be released, there is noting in its rules that prevents that," Sobel says. Then EFF can resume its battle with the Justice Department in federal district court for the release of the opinion. The Justice Department was ordered by the FISA court to respond by June 7 to the motion EFF submitted to the FISA court.
Currently, given the conflicting positions of the Justice Department and the FISA court, Sobel notes, "there is no court you can go to to challenge the secrecy" protecting an opinion noting that the government acted unconstitutionally. On its website, EFF observes, "Granted, it's likely that some of the information contained within FISC opinions should be kept secret; but, when the government hides court opinions describing unconstitutional government action, America's national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law."
As news reports emerge about the massive phone records and internet surveillance programs—each of which began during the Bush administration and were carried out under congressional oversight and FISA court review—critics on the left and right have accused the government of going too far in sweeping up data, including information related to Americans not suspected of any wrongdoing. There's no telling if the 86-page FISA court opinion EFF seeks is directly related to either of these two programs, but EFF's pursuit of this document shows just how difficult it is—perhaps impossible—for the public to pry from the government information about domestic surveillance gone wrong.
In recent months, the Republicans have been desperately hunting for an Obama scandal—with little success. A Benghazi cover-up? Oops, the emails released by the White House (at the urging of the GOPers) showed nothing improper. A Nixonian scheme to use the IRS to punish political enemies? The Treasury Department inspector general who investigated the IRS targeting of tea-party-ish groups seeking nonprofit status declared there was no evidence this political profiling was prompted by anyone outside the IRS division. With the revelation that the National Security Agency is sweeping up the telephone records of Americans suspected of no wrongdoing, though, the Obama gang may finally have a real scandal on its hand—not a scandal of wrongdoing or unethical conduct, but one of government overreach. Yet, as White House officials are already pointing out to reporters, if this is a scandal, it is a bipartisan scandal, for Congress has approved this wide-ranging, super-secret, domestic surveillance program.
More on the NSA's electronic surveillance program.
At issue is the disclosure of a highly classified court order—issued by a judge on the Foreign Intelligence Surveillance Court—that forced a Verizon subsidiary to hand over on a daily basis to the NSA call logs for all of its customers. This included calls between the United States and abroad and calls within the United States, including local telephone calls. The order does not cover the content of the communications; it compels the Verizon unit to give the NSA what's known as "metadata," such as the time, length, and location of calls—not the customer's identity. But the snoops at the NSA can use this data to look for patterns and check to see if any of these phone numbers are being used for communications to or from suspected terrorists.
The order does not permit Verizon to reveal its existence. And there's no telling if similar orders went out to other telecommunications companies.
Matt Kibbe speaking at the 2013 FreedomWorks Youth Summit in Washington, DC.
In the latest sign of turmoil at FreedomWorks, two prominent board members have resigned following the completion of an investigation they launched into possible misconduct within the conservative group, which has been an instrumental force in the tea party movement.
In December, these two board members, James Burnley IV and C. Boyden Gray, sent a letter to FreedomWorks president Matt Kibbe informing him that they had received "allegations of wrongdoing by the organization or its employees." They noted they had retained two attorneys, Alfred Regnery and David Martin, to conduct an independent investigation into the accusations. Burnley and Gray, both of them high-profile veterans of Republican administrations, ordered Kibbe to cooperate with the lawyers, to ensure that no records were "destroyed, deleted, modified or otherwise tampered with" and to send Regnery a check for $25,000 to cover his initial fees. The investigation followed several months of conflict inside the group that included the surprise resignation of FreedomWorks' longtime chairman, Dick Armey, a former Republican congressman and onetime House majority leader. Armey accused Kibbe of improperly using FreedomWorks resources to promote a book Kibbe had written.
After the investigation was launched, Kibbe penned a private memo—titled "Republican Insiders Attempt Hostile Takeover of FreedomWorks"—accusing Armey, Burnley, and Gray of being shills for the Republican establishment and undercutting the group's standing as an independent, nonpartisan, conservative organization. Kibbe maintained they were trying to punish him for defying their supposed effort to steer FreedomWorks into the conventional Republican fold. He claimed that the divisive fight within FreedomWorks was not really about his book contract or other organizational matters; it was about politics and control of a key right-wing resource.
<>The battle inside FreedomWorks produced bizarre tales of internal clashes and odd political intrigue. There was the story that Armey—who received an $8 million payout from a FreedomWorks board member to ease his departure—had shown up at the group's offices with a gun-wielding assistant to confront Kibbe and Adam Brandon, the organization's senior vice president. Armey maintained that this tale was hyped up by his FreedomWorks foes and that he had arrived at the office with a former Capitol Hill cop who had been volunteering his security services to Armey and FreedomWorks for years. In February, Mother Jonesbroke the news that FreedomWorks produced a promotional video last year that included a scene in which a female intern wearing a panda suit simulated performing oral sex on another intern who was wearing a Hillary Clinton mask. (The video was spiked after several staffers complained.) Former FreedomWorks officials have said that the place was in tumult, with employees departing or looking to leave.
Former CIA Agent Valerie Plame poses on the red carpet as she arrives for the premiere of the movie "Fair Game."
The pending nomination of James Comey to become FBI chief is a poke in the eye with a very sharp stick for the Cheney crowd. Comey, deputy attorney general during the W. years, has drawn criticism from civil libertarians for being part of an administration that waterboarded (though Comey reportedly opposed the justification of this practice), yet Comey is best known for saying no to a top-secret surveillance program much beloved by Vice President Dick Cheney and his lieutenants. He successfully defied the Bush-Cheney White House on this point in a dramatic encounter in a Washington hospital room, when top Bush advisers tried to bum-rush an ailing Attorney General John Ashcroft into authorizing an extension of the program after Comey, then the acting attorney general, had refused. But Cheney and his crew have another good reason to be aghast at the thought of Comey leading the FBI: he was the guy who started the independent Plamegate investigation that ended up tainting Cheney and convicting Scooter Libby, Cheney's chief of staff, of serious crimes.
In recent years, conservative and liberal reaction to President Barack Obama's national security policies has often converged. Conservatives note that Obama has continued (or expanded) many of the Bush-Cheney policies and methods—drones, indefinite detention, military commissions, use of the state secrets privilege—and this, they proclaim, proves that the Bush-Cheney regime was not excessive or unlawful. Liberals, pointing to Obama's decisions in these areas, complain that the fellow who once campaigned against the excesses of the Bush-Cheney years has gone over to the dark side. A Justice Department white paper leaked in February explaining the administration's justification for targeted killing abroad of US citizens suspected of terrorism embodied the sort of executive power overreach associated with Obama's predecessor. And the Obama administration's fierce pursuit of national security leaks—which led the Justice Department to collect secretly information on the communications of the Associated Press and James Rosen of Fox News—reinforces the view that Obama has taken a step or two toward an imperial presidency.
White House aides rankle at any comparison to Bush and Cheney. They dutifully note that in his first days in office, Obama ended the use of torture (a.k.a. enhanced interrogation techniques) and declared his intention to shut down Guantanamo. (Gitmo remains open, but that's mainly because congressional Republicans and Democrats thwarted the White House effort to develop a high-security facility in the United States to house the detainees.) And the Obama-ites contend they have reformed some of the Bush-Cheney policies, such as the use of military commissions, to justify maintaining these practices. Also, they are not reluctant to add that Obama did end the war in Iraq and is downsizing the war in Afghanistan (at a faster pace than then-Secretary of State Hillary Clinton and then-CIA chief David Petraeus urged in 2011). But much of this defense has tended to get lost as the administration has fired off drone strikes without acknowledging the individual attacks and has, following in the path of previous administrations, resisted certain congressional oversight efforts.