A new ruling is expected to have broad implications for federal wiretapping law. Barack Obama, when a United States senator, was highly critical of the presidential wiretapping power claimed by Mr. Bush, and threatened to filibuster the final bill. But he ultimately voted for the Protect America Act. A federal appeals court has now for the first time has ruled on the constitutional question of the president’s wiretapping power.


The Foreign Intelligence Surveillance Court of Review, in a decision released January 15 '09, has found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.

The opinion is not expected to directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program’s existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans’ communications.

Data is increasingly flowing around the United States












Interception of foreign Internet communications is shifting Canadian and European traffic away from the United States. Internet traffic passing through the switching equipment of companies based in the United States is monitored by American intelligence agencies.
Since passage of the Patriot Act, many companies based outside of the United States have been reluctant to store client information in the U.S. There is an ongoing concern that U.S. intelligence agencies will gather this information without legal process. There is particular sensitivity about access to financial information as well as communications and Internet traffic that goes through U.S. switches. A climate of deteriorating respect for privacy and data protection has been created by US security measures to fight terrorism. This leads to odd routing arrangements, referred to as tromboning, in which traffic between two US-owned sites will flow through other nations.
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China and India are making larger investments in next-generation Internet technology that is likely to be crucial in determining the future of the network. The Japanese “are on a rampage to build out across India and China. They won’t have to route through the U.S.”

“Whether it’s a good or a bad thing depends on where you stand,” said Vint Cerf, a computer scientist who is Google’s Internet evangelist and who, with Robert Kahn, devised the original Internet routing protocols in the early 1970s. “Suppose the Internet was entirely confined to the U.S., which it once was? That wasn’t helpful.”here here

FBI will create a modern identification system for catching criminals and terrorists
April 22 (Bloomberg) -- Lockheed Martin Corp., the world's largest defense company, said first-quarter earnings rose 5.8 percent as higher U.S. government computer sales and revenue from development of new NASA spacecraft helped overcome lower F-16 deliveries.
In February, Lockheed added to its role as the largest supplier of computer services and support to the U.S. federal government by winning an order valued at as much as $1 billion from the FBI. The 10-year contract will create a modern identification system for catching criminals and terrorists. here

Attorney General resigns
The departure of Attorney General Alberto Gonzales could unlock the Bush administration's legal closet, bringing new details tumbling into the open about issues including the treatment of terrorism suspects, warrantless surveillance of Americans, and the administration's definition of official secrets.

here

Broad new surveillance powers
Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

here

Politico notes email gap here

Document deadline missed
On March 16, the administration missed a deadline to turn over new documents in a congressional investigation into whether the firings were part of a larger effort to politicize the department. The Justice Department said it would turn over on Mar. 19 the remaining documents that Congress requested. But the White House offered no such assurance. here

warrantless domestic eavesdropping program
Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.

Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work. here

a profoundly disturbing breach of public trust

The FBI in 2005 reported to Congress that its agents had delivered a total of 9,254 national security letters seeking e-mail, telephone or financial information on 3,501 U.S. citizens and legal residents over the previous two years. Justice Department Inspector General Glenn A. Fine's report says the number of letters was underreported by 20 percent, according to the officials.
Sen. Charles Schumer, a member of the Senate Judiciary Committee that oversees the FBI, called the reported findings "a profoundly disturbing breach of public trust." here

“It’s not academic when the president violates the law,” Mr. Romero said.


"An exorbitant and extreme theory of executive power that ended up weakening the presidency,” Harold Hongju Koh, the dean of Yale Law School and a critic of the administration’s legal theories, said the president’s strategy to wiretap without court approval, now reversed, might have provoked so strong a judicial and Congressional rebuff that it would ultimately accomplish the opposite of his goal. “I think historians will see it as an exorbitant and extreme theory of executive power that ended up weakening the presidency,” Mr. Koh said. here

A Justice Department official said the department would file a motion with the Court of Appeals for the Sixth Circuit in Cincinnati, arguing that the court’s review of the issue in a lawsuit brought by the American Civil Liberties Union “is now moot” in light of this week’s developments.

The officials said the new approach was based on evolving legal interpretations of the foreign surveillance law by the Justice Department, changes in the foreign surveillance statute in recent years and precedents set by the FISA court in approving specific requests to conduct electronic monitoring.

Anthony D. Romero, executive director of the A.C.L.U., said the appellate court should still examine the legality of the program and whether the it had violated intelligence law for the last five years.

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

The decision capped 13 months of bruising national debate over the reach of the president’s wartime authorities and his claims of executive power, and it came as the administration faced legal and political hurdles in its effort to continue the surveillance program. here

In August, U.S. District Judge Anna Diggs Taylor in Detroit ruled that the program was unconstitutional and should be halted. The 6th U.S. Circuit Court of Appeals allowed the program to continue temporarily. here

Rumsfeld directed military to get financial records
After the Sept. 11 attacks, Defense Secretary Donald Rumsfeld directed military lawyers and intelligence officials to examine their legal authorities to collect intelligence both inside the United States and abroad. They concluded that the Pentagon had “way more” legal tools than it had been using, a senior Defense Department official said. But it was not previously known, even to some senior counterterrorism officials, that the Pentagon and the Central Intelligence Agency have been using their own “noncompulsory” versions of the letters. Congress has rejected several attempts by the two agencies since 2001 for authority to issue mandatory letters, in part because of concerns about the dangers of expanding their role in domestic spying. Military intelligence officers have sent letters in up to 500 investigations over the last five years, two officials estimated. The number of letters is likely to be well into the thousands, the officials said, because a single case often generates letters to multiple financial institutions. For its part, the C.I.A. issues a handful of national security letters each year, agency officials said. Military officials say the Right to Financial Privacy Act of 1978, which establishes procedures for government access to sensitive banking data, first authorized them to issue national security letters. The Counterintelligence Field Activity office, created in 2002 to better coordinate the military’s efforts to combat foreign intelligence services, has drawn criticism for some domestic intelligence activities.

The agency houses an antiterrorist database of intelligence tips and threat reports, known as Talon, which had been collecting information on antiwar planning meetings at churches, libraries and other locations. here