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Via Laura Rozen, Newsweek:

The Bush administration is refusing to disclose internal e-mails, letters and notes showing contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill, according to recently disclosed court documents.

The existence of these documents surfaced only in recent days as a result of a Freedom of Information Act lawsuit filed by a privacy group called the Electronic Frontier Foundation. The foundation (alerted to the issue in part by a NEWSWEEK story last fall) is seeking information about communications among administration officials, Congress and a battery of politically well-connected lawyers and lobbyists hired by such big telecom carriers as AT&T and Verizon. Court papers recently filed by government lawyers in the case confirm for the first time that since last fall unnamed representatives of the telecoms phoned and e-mailed administration officials to talk about ways to block more than 40 civil suits accusing the companies of privacy violations because of their participation in a secret post-9/11 surveillance program ordered by the White House.

At the time, the White House was proposing a surveillance bill-strongly backed by the telecoms-that included a sweeping provision that would grant them retroactive immunity from any lawsuits accusing the companies of wrongdoing related to the surveillance program....

The recent responses in the Electronic Frontier Foundation lawsuit provide no new information about the administration's controversial post-9/11 electronic surveillance program itself, but they do shed some light on the degree of anxiety within the telecom industry over the litigation generated by the carriers' participation in the secret spying. One court declaration, for example, confirms the existence of notes showing that a telecom representative called an Office of Director of National Intelligence (ODNI) lawyer last fall to talk about "various options" to block the lawsuits, including "such options as court orders and legislation." Another declaration refers to a letter and "four fax cover sheets" exchanged between the telecoms and ODNI over the surveillance matter. Yet another discloses e-mails in which lawyers for the telecoms and the Justice Department "seek or discuss recommendations on legislative strategy."

The declarations were filed in court by government lawyers only after U.S. Judge Jeffrey White in San Francisco, who is overseeing the case, ordered them to fully process the Electronic Frontier Foundation's FOIA request for documents showing lobbying contacts by the telecoms. The government initially resisted even responding to the FOIA request, but White found that disclosure was in the public interest because it "may enable the public to participate meaningfully in the debate over" the pending surveillance legislation.

... But while complying with the judge's order to confirm the existence of some documents, administration officials have told the judge they cannot actually disclose the documents themselves, in part because to do so would undermine national security. Even to confirm the identity of any of the carriers with whom administration officials have discussed the surveillance issue would implicitly identify the carriers that participated in the program and therefore "would provide our adversaries with a road map" that would help them thwart surveillance against them, according to a court declaration filed by Lt. Gen. Ronald L. Burgess, director of the ODNI's intelligence staff.

Communication between the president and his advisors is one thing, but this is something else entirely. They were working with corporate lobbyists to determine the best lobbying strategy to pass legislation that would cover up the illegal conduct of both the administration and the corporations. To protect this sort of communication would put everyone involved above and beyond the law.

For the 5,479th time: He is a president, not a king. This is a republic, not a monarchy. We are ruled by laws, not men. To allow this sort of behavior is to turn our entire system of government upside-down.

UPDATE: As if on cue, here's a great story from today's NYT that shows precisely where this sort of logic leads:

John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Mr. Elwood, citing a 1980s precedent, said there was nothing new or unusual about such a view.

Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration's legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearance remain in force.

The hearing, of a subcommittee of the Senate Judiciary Committee, was called by Senator Russ Feingold, Democrat of Wisconsin. Mr. Feingold accused the administration of a "sinister trend" of promoting "secret law."

He referred to the refusal by the Justice Department to release opinions on interrogation and domestic surveillance from the Office of Legal Counsel, whose interpretations are binding on the executive branch.

"It is a basic tenet of democracy that the people have a right to know the law," Mr. Feingold said.

Mr. Elwood, deputy assistant attorney general for the Office of Legal Counsel, disputed that declining to make legal opinions public created improper "secret law." He said some legal opinions had to be kept from public release, at least for a time, because they deal with classified programs or to ensure that government lawyers can give confidential legal advice.

Let's be perfectly clear about this.

A system in which the head of state can modify laws whenever and however he or she wants, and in which the ruler has no obligation to inform the citizens of such changes, is not a democracy. It is a monarchy. That we elect our monarchs does not in any way change this fact. If the law is whatever the head of state says it is, then that head of state has for his or her term in office the very same powers as the King of England in the late 18th century.

You might recall that there once was a revolution to overthrow that form of government. You might further recall that the result of that revolution was the creation of a constitution explicitly designed to prevent that form of government from ever existing in that land again. And if you are really well educated, you might even recognize that these events took place here in the United States of America.

Our entire constitution is premised on a rejection of precisely the argument that is being put forth here. It is the bedrock upon which everything else in our society is built. Not just our government, but our entire way of life. Without the rule of law, nothing else would be the same. Nothing.

Explain to me how their interpretation of government fits with this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Or better yet, from the same document, this:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them....

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries....

For depriving us in many cases, of the benefits of Trial by Jury.

This is not a minor point. If the President can change the law in secret, at any time, and for any reason he believes related to national security, he can do anything. Everything King George did, all of the offenses listed in our Declaration of Independence, he did in the name of national defense. That's why our revolution was considered to be an act of treason, and why all of the men who signed the Declaration were named traitors. According to the King, their actions threatened the state and must be stopped, whatever the cost.

It doesn't matter if you believe Bush to be doing the right thing. Grant him these powers and eventually someone else will come along who uses them in ways you cannot abide. Power corrupts, but absolutely power corrupts absolutely. And if this is not absolute power, then what is?

Why is it so few people seem to understand just how dangerous this is? History shows beyond any shred of doubt that the rule of law offers far more protection for individuals than any benevolent monarchy ever could. That debate was settled in this country over 200 years ago. Two world wars were fought to defend that principle. And the war on terror, at least in theory, is being fought to defend freedoms that the president himself argues do not exist. How does this make any sense to anyone?

Madison was exactly, precisely right:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other -- that the private interest of every individual may be a sentinel over the public rights.

Over at Balkanization, Marty Lederman has a great follow-up to yesterday's story about John Ashcroft and the establishment of an official torture regime here in the United States. It's an absolute must-read.

Worth noting: we really still are at the beginning of this story, not the end. There are still over 7,000 pages of documents that the administration is trying to keep classified, and its not at all clear if lawsuits are going to force open access to them. One way or another the truth will eventually come out. The question is not if, but when.

So here's a typical DC story for you....

A bunch of libertarians decide to celebrate Thomas Jefferson's birthday by showing up at his Memorial at midnight and dancing. To avoid disturbing anyone else, however, they decided to use their iPods and dance in silence. Quite clever, if you ask me. Not so much, if you ask the DC Police the National Park Police. You can read the full story here, but the short version is that because one of the dancers dared question the cop, they were arrested.

Here's McMegan's summary:

...the problem here is not that one of my friends, an educated white girl, had to spend five hours or so being harassed by the police. It is that the police think that questioning orders constitutes disorderly conduct. And that the result of questioning them is probably a lot more than moderate harassment when the questioner is not an educated white girl with a lot of camera toting friends.

Now imagine what would have happened had this been a moderately educated African American girl in an impoverished neighborhood whose friends had neither toted cameras nor had access to constitutional lawyers who "sue the government for fun." If you think the police overreacted here, just imagine how they react to challenges to their authority in neighborhoods where they can be virtually certain that the citizens have no legal recourse. And we wonder why people in poor and minority neighborhoods often do not trust the police?

In America, we have all learned to be afraid of the police. If you re pulled over in your car, you must be exceedingly polite and watch absolutely everything you say. If they ask you questions on the street, you must be careful not to be disrespectful in any way. I'm all for people having respect and demonstrating manners, but in the case of the police this has really all gone to far. To get arrested simply because you dared question their actions? That's the new definition of disorderly conduct?

Other countries aren't all like this, you know. This is once again a choice we as a society have made - to allow our police forced to develop the sense that their power and authority are far more extensive than the laws actually allow. It shouldn't be this way. It doesn't have to be this way.

UPDATE: BTW, this isn't anything new. Back in the early 1990s, DC raver kids used to gather regularly at the Jefferson Memorial to dance, and far too often the Park Police responded in precisely the same way. The only difference then, I guess, was that we were playing our music out loud, meaning that we really were disturbing the peace. We didn't have iPods back then, so what they did here just wasn't an option for us. That said, I have to imagine based on the way they treated us back then that if we actually had iPods, they probably would have just left us alone.

Maybe 9/11 really did change everything. Sorry TJ. You left us an enormous gift, and we went and f'ed it up.

Much more here for those interested

Is there nothing these fools will not do? Wired:

A U.S. government-funded medical information site that bills itself as the world's largest database on reproductive health has quietly begun to block searches on the word "abortion," concealing nearly 25,000 search results.

Called Popline, the search site is run by the Johns Hopkins Bloomberg School of Public Health in Maryland. It's funded by the U.S. Agency for International Development, or USAID, the federal office in charge of providing foreign aid, including health care funding, to developing nations.

The massive database indexes a broad range of reproductive health literature, including titles like "Previous abortion and the risk of low birth weight and preterm births," and "Abortion in the United States: Incidence and access to services, 2005."

But on Thursday, a search on "abortion" was producing only the message "No records found by latest query."

Stephen Goldstein, a spokesman for Johns Hopkins, said he wasn't aware of the censorship, and couldn't immediately comment.

Under a Reagan-era policy revived by President Bush in 2001, USAID denies funding to non-governmental organizations that perform abortions, or that "actively promote abortion as a method of family planning in other nations."

A librarian at the University of California at San Francisco noticed the new censorship on Monday, while carrying out a routine research request on behalf of academics and researchers at the university. The search term had functioned properly as of January.

Puzzled, she contacted the manager of the database, Johns Hopkins' Debbie Dickson, who replied in an April 1st e-mail that the university had recently begun blocking the search term because the database received federal funding.

"We recently made all abortion terms stop words," Dickson wrote in a note to Gloria Won, the UCSF medical center librarian making the inquiry. "As a federally funded project, we decided this was best for now."

More:

University administrators of the world's largest scientific database on reproductive health blocked the word "abortion" as a search term after receiving a complaint from the Bush administration over two abortion-related articles listed in the database.

"The items in question had to do with abortion advocacy -- the two items dealing with abortion were removed following this inquiry, and the administrators made a decision to restrict abortion as a search term," said Tim Parsons, a spokesman for the Johns Hopkins Bloomberg School of Public Health in Maryland.

The blocking of the keyword "is a decision that the dean does not support in any way," he added, and the administrators are unblocking the search for the term right now.
"I could not disagree more strongly with this decision, and I have directed that the Popline administrators restore 'abortion' as a search term immediately," said Michael J. Klag, the school's dean in a statement issued on Friday. "I will also launch an inquiry to determine why this change occurred. The Johns Hopkins Bloomberg School of Public Health is dedicated to the advancement and dissemination of knowledge and not its restriction."

The Popline search site is funded by the U.S. Agency for International Development, or USAID, the federal office in charge of providing foreign aid, including health care funding, to developing nations.

Good to see JHU decided not to play along with this nonsense.

Laura Rozen is asking all the right questions in response to this NYT article on the passport controversy. First, NYT:

State Department officials have blamed managers in the passport office, below the level of political appointees, who did not inform their superiors about the breaches. Privacy lawyers said Friday that the department risked being taken to court over the failure to inform the candidates.

"Immediately on finding out that there was a breach, the victim should have been notified," said Steven M. Dettelbach, a former federal prosecutor who is now a partner in the Washington office of Baker Hostetler L.L.P. "It's a basic question of victims' rights. When a crime happens, the victim needs to know what happened."

Take it away Laura:

Hmm. Basic question of victims' rights. So, presumably, all those tens of thousands of Americans who are suspected of nothing who have had their private communications details spied on by the government with no warrants, all of those thousands the FBI director Mueller has been hauled up to Capitol Hill to testify about the FBI mistakenly targeting with stray exigent letters and blanket requests to banks, telecom companies and libraries for their records, all of them, then, deserve to be immediately notified by the government that they were the victims of a breach - and if not, have a good case to sue, according to the attorney's case laid out above?

Seriously, what am I missing? Isn't there some bizarre sort of cognitive dissonance going on in seeing the reactions to the two cases? How much more intrusive is it to have federal law enforcement and intelligence scouring ordinary people's phone records, emails, bank records than a State Department contractor sneak peaking into presidential candidates' passport files, with the sort of information available in any credit check, and which is prompting a rush of Congressional investigations?

Why do ordinary people have no recourse, no remedy, no way to demand accountability for the violation of their privacy, no recourse even to demand that they be notified the government has surveilled their communications and bank records, when the presidential candidates, who have volunteered after all for an extraordinary degree of public scrutiny to become the leader of the free world, get recourse, apologies, Congressional investigations and law suits?

The answer most members of congress would give, I suspect, is that this particular episode doesn't involve terrorism. With all of the programs Laura mentioned, the goal is to catch the bad guys. In this case, there was no goal whatsoever, outside of at best satisfying some private curiosity or at worst aiding someone's campaign.

But let's be honest - when it comes to privacy rights, that's really beside the point, because the question is much more fundamental than that. Do we live in a society where individuals have fundamental rights than cannot be encroached upon by the state, or do we live in a society where individuals do not have such rights?

Answering that question shouldn't be terribly difficult. In fact, one need look no further than to the text of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Our rights exist prior to the formation of government, and government exists only to protect these rights. Providing security is of course one of the primary responsibilities of the state, but it is security as a means to another end. And that end, of course, is the protection of our rights. Nothing is more fundamental to our system of government than this.

To repeat: If you create the capabilities, they will be used. If you store the data, it will be accessed. If you grant the power, it will be misused. We knew this in 1776. We knew this in 1789. We knew this on Sept 10, 2001. Why don't we know it now?

Go on guv! That's how you do it!

Is it the beginning of a new Sagebrush Rebellion? The timing would be right...

For more background, see Wired's Threat Level here and here.

From the second link:

"I sent them a horse and if they want to call it a zebra, that's up to them," Schweitzer said. "They can call it whatever they want, and it wasn't a love letter."

"They tell us our data is safe," Schweitzer said. "You tell that to the passport people," he said, referring to news that State Department employees snooped in all three major presidential candidates passport files.

"Do you want your government to have the ability to track where you went, how you got there and when you got home?" Schweitzer asked. "It would be naïve for someone to think this information will not be abused in the future. Virtually every decade these kinds of files have been used to violate people's privacy."

Lest you think this passport story has nothing to do with you.... Time:

Under new guidelines printed in the federal registry on January 9, the same day Obama's records were first breached, the Bureau of Consular Affairs allows the Department of Homeland Security, the Department of Justice, the Federal Bureau of Investigation, the National Counter-Terrorism Center, "foreign governments, and entities such as Interpol" to link into the same system. The expanded access is designed, according to the notice signed by recently retired head of the Bureau of Consular Affairs Maura Harty, to be used "for counter-terrorism and other purposes such as border security and fraud prevention." The changes went into effect on February 25, after a 40 day review period. The State Department has yet to respond to TIME's requests for comment on the changes. The expanded access does not appear to be related to the breaches of the candidates' records. But privacy experts are concerned nonetheless, because the move is part of a trend in which more and more of citizens' personal information is being put at the fingertips of a growing number of government employees. Hundreds of such expansions are happening across the government every year, says Jim Harper, director of information policy studies at the Cato Institute. "Federal databases are knitting themselves together into larger databases," says Harper; "we have to worry about the privacy consequences and personal security consequences for average Americans." Administration officials routinely justify linking databases as a key part of rooting out terrorists.

To repeat: If you create the capabilities, they will be used. If you store the data, it will be accessed. If you grant the power, it will be misused. We knew this in 1776. We knew this in 1789. We knew this on Sept 10, 2001. Why don't we know it now?