This Rock Could Spy on You for Decades

This Rock Could Spy on You for Decades



By Noah Shachtman

May 29, 2012




A Lockheed Martin “unattended ground sensor,” or UGS, disguised as a rock.

Photo: Lockheed Martin



A soldier attaches an unattended sensor to the side of a mock building.

Photo: U.S. Army



A Textron “MicroObserver” UGS, buried in the ground.

Photo: Textron



A smaller model of the “MicroObserver” UGS.

Photo: Textron



A soldier emplaces an older UGS.

Photo: BAE Systems



Northrop Grumman’s “Scorpion” suite of unattended sensors.

Photo: Northrop Grumman

***  Lockheed promotion video ***

A Lockheed promotion video for its unattended sensor network.



America is supposed to wind down its war in Afghanistan by 2014. But U.S. forces may continue to track Afghans for years after the conflict is officially done. Palm-sized sensors, developed for the American military, will remain littered across the Afghan countryside — detecting anyone who moves nearby and reporting their locations back to a remote headquarters. Some of these surveillance tools could be buried in the ground, all-but-unnoticeable by passersby. Others might be disguised as rocks, with wafer-sized, solar-rechargeable batteries that could enable the sensors’ operation for perhaps as long as two decades, if their makers are to be believed.

Traditionally, when armies clash, they leave behind a horrific legacy: leftover mines which can blow civilians apart long after the shooting war is over. These “unattended ground sensors,” or UGSs, won’t do that kind of damage. But they could give the Pentagon an enduring ability to monitor a one-time battlefield long, long after regular American forces are supposed to have returned home.

“Were going to leave behind a lot of special operators in Afghanistan. And they need the kind of capability that’s easy to put out so they can monitor a village without a lot of overt U.S.-made material on pathways and roadways,” says Matt Plyburn, an executive at Lockheed Martin, the world’s largest defense contractor.





Members of the 22nd Marine Expeditionary Unit clandestinely monitor signals in a 2010 field test.

Photo: USMC


The U.S. military has used unattended ground sensors in one form or another since 1966, when American forces dropped acoustic monitors on the Ho Chi Minh trail. Tens of thousands of UGSs have been emplaced around Afghanistan and Iraq, forming electronic perimeters around combat outposts and keeping tabs on remote locations. It’s a way to monitor the largest possible area with the smallest number of troops.

“You use them to cover up your dead space — the areas you’re concerned about but can’t cover with other ISR [intelligence surveillance and reconnaissance] assets,” says Lt. Col. Matt Russell, an Army program manager overseeing the deployment of unattended sensors.

But earlier UGSs — even ones of the recent past — were relatively large and clunky, prone to false alarms, and had lifespans measurable in days or weeks. “What we found in the field was significant under-usage,” Russell tells Danger Room. Plans to incorporate them into every combat brigade fizzled as the Army’s proposed $200 billion revamp, Future Combat Systems, went south.

The new models are dramatically smaller and consume far less power, enabling them to operate for months — maybe even years — at a time with only the slimmest chance of being detected. Lockheed calls them “field and forget” systems for “persistent surveillance.”

And they won’t just be used overseas. U.S. Customs and Border Patrol today employs more than 7,500 UGSs on the Mexican border to spot illegal migrants. Defense contractors believe one of the biggest markets for the next generation of the sensors will be here at home.

“They could be used for border security or even around corporate headquarters,” Plyburn tells Danger Room.


In early 2011, commanders in Afghanistan issued an “urgent operational needs statement” for better sensors. In response, the Army shipped a new line of about 1,500 “expendable” UGSs to the warzone. The size of a few stacked hockey pucks with a four-inch antenna, these sensors are easily hidden, and can “pick up wheels or footprints” for up to three months at a time, Russell says. It’s a perfect surveillance tool for the remote valleys of eastern Afghanistan.

Soon, when one of the sensors picks up a signal, it’ll queue a spy blimp to focus in on the spot. “That’s a capability coming to a theater near you soon,” he adds.

Even more sophisticated are the UGSs being tested northeast of Norfolk, Virginia, at a Lockheed proving ground. Arrays of up to 50 palm-sized acoustic and seismic sensors form a mesh network. When one sensor detects a person or a vehicle passing by, it uses unlicensed radio frequency bands to pass an alert from one node to the next. The alert finally hits a communications gateway, which can send the signal via satellite, tactical radio network, or Wi-Fi to a command and control center. That signal can tip off additional sensors — or it can send a Twitter-like message to an intelligence officer’s phone or tablet.

When they’re not picking up signals or passing along messages, the sensors are all-but-shut-down, barely consuming any power. That allows them to last for weeks, buried underground. Or the sensors can be encased in hollow “rocks” equipped with miniature solar panels. A quick recharge from the sun will allow the sensor to “get through the night anywhere on Earth that U.S. forces operate,” says Plyburn.

Plyburn claims that the sensor’s battery, about the size of a postage stamp, has been able to go through 80,000 recharges, compared to a few hundred cycles for a typical lithium-ion battery. Even if he’s off by a factor of 10, the sensor’s battery could keep the machine operational for nearly twenty-two years.

Russell is skeptical of these assertions of longevity. “I’m sure there are a lot of claims by contractors,” he says. “My experience is: the longer the lifespan, the bigger the battery.”

Nor does Lockheed currently have a contract with Defense Department to mass-produce the sensors. But Plyburn says there has been interest around the armed forces, especially since the system is relatively cheap. Plyburn says each sensor could cost as little as $1,000 each — practically expendable for a military paying $80,000 for a single guided artillery round.

Lockheed isn’t the only company claiming that its sensors can operate for years on end. U.S. Special Operations Command has handed out at least $12 million in UGS contracts to tiny Camgian Microsystems, based out of Starksville, Mississippi. Company CEO Gary Butler, who spent years developing ultra-low power integrated circuits for Darpa, was awarded in March a patent for such a next-gen unattended sensor suite.

Rather than relaying alerts from node to node, each of Butler’s sensors is designed to send signals directly to a satellite — speeding up notifications, and cutting down on power consumed. Rather than a simple acoustic or seismic detector, the sensor relies a steerable, phased-array radar and moving-target indicator algorithms. That could give it a much greater ability to detect people and vehicles on the run. High-powered solar cells provide will enable up to “500,000 recharge cycles” could give the sensor a “10-20 year life,” according to the patent.

Butler won’t say how U.S. special operators are using his research, if at all. But when I ask him about the possibility of leaving UGS networks behind after American troops have officially left, Butler calls that “plausible. Very Plausible.”

Camgian’s patent claims that the sensor’s ease-of-use and small size means it “is easily emplaced in difficult areas, using airborne assets such as Unmanned Aerial Vehicles.” Edward Carapezza, who has been overseeing UGS research for more than two decades, says drones are already dropping unattended sensors into hostile locations.

“In certain areas, we certainly are using unmanned vehicles and unattended sensors together,” says Carapezza, who now works at the defense contractor General Atomics. He declined to name where these operations were being conducted. He simply gave the rationale for the missions. “Instead of sending patrols of our guys in, we send in drones and unattended sensors — dropping arrays, locating bad guys, and then putting weapons on target.”

The “MicroObserver” UGS from defense contractor Textron has been in the field since 2008. The U.S. Army is currently using the sensors in Afghanistan. “Another customer — we’re not allowed to say who or where — used it as part of a comprehensive border security program in a Middle Eastern country,” says Patty Shafer, a Textron executive.

Textron’s seismic sensors come in two varieties. The smaller, three inch-long model, weighing 1.4 pounds, will last about a month. The bigger system, a 4.4 pound spike, can be buried in the ground and gather intelligence for more than two years. It can detect and characterize people from 100 meters away, and vehicles from three times that distance, Shafer says. A conformal antenna allows it to communicate with a gateway five kilometers away.

Northrop Grumman employs a family of sensors for its Scorpion surveillance network.

“Seismic sensors work well detecting vehicles on bumpy roads, but lose range as the road becomes smoother, or the vehicle lighter. Typically, magnetic sensors sense only large vehicles at fairly short distances. The range of acoustic sensors depends upon environmental conditions such as humidity and surroundings. Most sense engine exhaust noise or other periodic pulse trains and measure the period to determine numbers of cylinders and classify the source,” explains a Northrop presentation to an academic conference on unattended sensors.

The Army has purchased over a thousand of the original versions, with an average of four sensors, each. The vast majority have been sent to Iraq and Afghanistan. Another 20 Scorpion II systems were recently bought by the Army Research Lab. The sensors can today spot people from 800 meters away, and vehicles from 2,100 meters. The sensors’ batteries wear out after a month.

These might have been eye-popping results, not long ago. But the U.S. military now has plans to keep its network of tiny, hidden spies going for much longer than that.


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New Stealth Sub Is Fully Networked, But Cut Off From the Outside World

New Stealth Sub Is Fully Networked, But Cut Off From the Outside World



By Spencer Ackerman

May 31, 2012







Practically every system aboard the Navy’s newest fast attack submarine is state of the art. Unlike earlier subs, the U.S.S. Mississippi’s control room, a hive of classified software and hardware, places sonar technicians and weapons specialists barely five feet apart. The periscope is mostly virtual: fiber optics allow the control room to see the surface world, rather than a physical tube running down from the bridge. But for all the advancements aboard the Mississippi, there’s one persistent challenge — staying connected to the outside world.

Bandwidth on subs is practically a throwback to the era of Magic cards, Discmans, and the best Fresh Prince of Bel-Air episodes. To send and receive messages, the U.S. submarine fleet needs to rise to a depth shallow enough to raise periscopes and antennas; aboard the Mississippi, periscope depth is 60 feet. While there are exceptions to that rule, it sets up a basic tradeoff. To remain undetected and ready to complete their missions, submarine commanders have to be prepared for long periods of silence.

“There are some missions or taskings where you don’t go to periscope depth frequently and put antennas out of the water,” says Cmdr. Aaron Thieme, the deputy commander of Submarine Squadron 4, which includes the Mississippi. “There are some missions or taskings where you spend all your time at periscope depth with your antennas out of the water. There are some that require us not to transmit at all.”

The subs receive their internet access from bandwidth provided by satellites, same as the Navy’s surface ships. But unlike aircraft carriers, destroyers and frigates, submarines can’t augment their connectivity with 4G networks. And once the subs go below periscope depth, they’re effectively cut off from the outside world.


All this makes bandwidth on the subs an even scarcer resource than it is aboard the surface fleet. On the Mississippi, red Ethernet cables dangle from the ceilings of the officer’s wardroom. Only when the sub rises to periscope depth do officers plug the cables into their laptops, allowing them to access the Navy’s classified networks. That doesn’t happen often. The Mississippi has the capability to stay submerged — and silent — for up to 90 days.

For all the Navy’s formidable technological advancements, many of which are visible aboard the Mississippi, connectivity lags behind. The Navy has yet to overcome some basic physical limitations. The deeper the sub dives, the harder it is for it to access a satellite. Thieme confirms that there is a depth beyond which the submarine fleet is totally disconnected, but understandably declines to disclose what that depth is. And like surface ships, the further the fleet disperses on or under the open water, the harder it is to keep the subs in contact.

And there’s an additional communications challenge for subs. Allowing sailors to e-mail their families risks compromising the stealth that’s central to the subs’ missions.

“Any time you transmit energy, whether it be electromagnetic or acoustic, fundamentally, it could be detected,” Thieme explains. “At some point, there could be a technology developed that can identify that energy source. Just as we go to great efforts to minimize the acoustic energy we put into the water, we go to efforts to minimize the counter-detectability of the electromagnetic energy that we transmit when we communicate.”

But don’t let that conjure up visions of rogue sub commanders, à la The Hunt for Red October. The chain of command informs the submarine how frequently and even when it needs to reach periscope depth to check in or receive orders. And the command has technical mechanisms — which the crew of the Mississippi will not discuss — for augmenting the bandwidth available to submarines in an emergency. More regularly, a text-only e-mail program called SailorMail allows sub crews to send and receive e-mails over an unclassified network — provided those e-mails are free of attachments, and sailors don’t mind waiting for transmissions at speeds slower than dial-up. For morale, the sub can stream news programs and sports when it’s at periscope depth.

Still, the Navy’s lack of consistent bandwidth for submarines could complicate some its broader plans. Its new super-concept for working seamlessly with the Air Force might founder if fighter jets can’t talk to Navy subs.

But underway on the Mississippi, officers are convinced bandwidth deserts are a manageable problem — and one that feeds into the culture of submarine warfare.

“It’s in our DNA to be able to go out and do a mission by ourselves without somebody looking over our shoulder,” says Thieme. “If the capability gets developed so that, regardless of whatever speed or depth we are we can maintain a communications tether or connectivity path, I [still] don’t see submariners becoming less autonomous.”


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ANCHORS AWAY…. Exclusive Pictures: Inside the Navy’s Newest Spy Sub


Exclusive Pictures: Inside the Navy’s Newest Spy Sub



By Spencer Ackerman

May 30, 2012



















Photos: Mark Riffee/



The Navy’s newest fast-attack submarine is speeding down the Florida coast, on its way to its commissioning ceremony in its namesake state, at 15 knots. And it’s getting outraced by dolphins.

Hours before the U.S.S. Mississippi dives several hundred feet beneath the Atlantic, its sail juts proudly into the warm, whipping southern air. Submariners allow me to see the highest point on the sub for myself — provided I can keep my balance up three steep levels’ worth of ladder and hoist myself out onto a platform the size of a fancy refrigerator. A harness hooked to an iron bolt on the sail keeps me from falling to my death. There’s no land in sight, just blue water turned white around the sub’s wake, a tall BPS-16 military radar spinning in front of us, and a family of dolphins jumping out of the surf in front of the 377-foot boat.

Apparently it’s typical. Where subs travel in the southern Atlantic, dolphins tend to tag along, eager to say hi to their large, silent playmate. “Dolphins like to sing,” notes Petty Officer Joshua Bardelon, a 32-year old from Pascagoula, the site of the Mississippi’s destination, who supervises the boat’s sonar systems.

Those systems are part of why Navy Secretary Ray Mabus is eager to take possession of his newest Virginia-class submarine when it formally joins the fleet on June 2. As much time as it spends listening to dolphin symphonies, the Mississippi is everything from a weapon to destroy other ships to an electronic-attack system to a stealthy transport for Navy commandos.

The multiple sonar arrays allow the submarine to detect other ships before it’s detected itself. Underway, the boat is dead silent except for the hum of the air conditioning, an indication of the classified tools that mask the Mississippi’s acoustic and electronic signatures to maintain its exceptional stealth. Then comes the boat’s electronic warfare capabilities — which its crew will discuss only vaguely.

“If I’m at periscope depth and I stick my periscope out of the water, people who are looking for me will be using a radar system to find me,” says the sub’s commander, Capt. John McGrath, a 20-year submarine veteran. “But I will know that that radar is in the area and I will use that to my advantage.”


















Some of its other weapons are more traditional. The torpedo room, down in the deepest level of the boat, hosts 16 intimidating metal tubes, each wider than bicycle wheels, the bays for its 28-foot torpedoes and Tomahawk missiles. The room looks like a machinist’s workshop, except for the exercise bikes and the racks where the torpedomen sleep beside their weapons — the primary means for the Mississippi to complete its future missions: hunting and destroying enemy ships and subs.

“There are two types of ships in the Navy,” explains Chief Nathan Holmes. “We have submarines, and we have targets.”

Even though the Mississippi isn’t on a combat mission — which is why the Navy allows me to tag along on a boat overflowing with classified systems — McGrath is eager to demonstrate that his boat is a predator, not prey. After I climb down from the sail, he orders the boat’s pilot to dive to 155 feet, a way-station depth that’s far enough underwater to avoid sea traffic but shallow enough so he can get surface rapidly should something go wrong. When nothing does, McGrath orders the pilots to continue on to a depth of 400 feet. The faster the captain wants to go, the deeper he dives.

The dive is surprisingly imperceptible. Even though we’ve just dropped 400 feet in a minute, I barely lean forward. If I had been drinking anything, it wouldn’t have spilled.

That’s the case during my entire four-day stint on the boat. With the exception of a 20-minute exercise in dipping the Mississippi up and down — a queasy affair nicknamed “Angles and Dangles” — I’ve had rockier trips aboard surface ships. The fast-attack submarine is downright placid, even at 20 knots.

The steadiness will be an asset for one of the Mississippi’s other missions: aiding Navy SEALs. There’s a special bay, called a lockout trunk, that allows a tinier sub to dock and deposit a small number of SEALs onboard. Once they’re aboard, the Mississippi will become a Navy special warfare platform — as are many subs that don’t carry nuclear missiles — performing reconnaissance missions and getting SEALs stealthily in and out of where they need to go. The Virginia class’ smaller size allows the sub to “be more maneuverable in a littoral,” says Master Chief Bill Stoiber, the chief of the boat, or senior enlisted man aboard, making it particularly useful for SEAL insertion missions. After the summer, the Mississippi will head for southern Florida to test its special-warfare skills.

As much as the Mississippi is the newest in new for Navy subs, not everything aboard is super-advanced. Satellite connectivity is limited. Submariners like to stay autonomous when they’re below the waves, but that means that information aboard the sub largely stays on the sub, and outside information doesn’t always reach the boat quickly. The Mississippi rises to periscope depth — that is, shallower than 60 feet below, so its periscope can stick its neck out of the water — in order to fire off e-mails or receive communications through classified and unclassified-but-secured networks. Even so, submariners roll their eyes at how slow their connection speeds are. (Think dial-up. In the late ’90s.)

When the sub needs it, it can request extra satellite bandwidth from the Navy — often to send off a video or larger data file. But that “spot beam” is only for special occasions, and it’s a one-off event. Persistent, available undersea bandwidth is a challenge the Navy hasn’t yet figured out how to solve.

Then there are the traditional joys of life aboard a submarine. The Mississippi is home to 138 men, who have to get very comfortable with each other, since there’s nowhere to go for privacy. The halls are barely wide enough for two people hugging the walls to traverse. Submariners are billeted up to 47 per room, stacked up in threes on narrow racks. A typical deployment entails six months of living in these cramped conditions, and the Mississippi is capable of staying underwater for 90 days at a stretch.

Still, the ship makes a virtue out of solitude. The food is unexpectedly excellent. It’s difficult to store bread underneath the sea without it molding or going stale — and there’s no place to buy more — so the kitchen bakes it fresh every day. It’s tempting to forego a lunchtime hot dog just to eat a delicious empty roll an hour old.

The most striking demonstration of the crew’s tightness comes in the control room. Unlike older subs, the Virginia class doesn’t hive away its sonar stations. The dark room, illuminated by dozens of screens displaying torrents of highly classified data, joins up the pilots, navigators, weapons experts and sonar technicians. Five sonar techs stare at screens filled with green representations of the sounds of the ocean while they listen through headphones. Should they hear an enemy ship they’re hunting, they can holler at the fire control station on the other side of the control room that it’s time to attack.

For now, one of those techs passes me his cans. When I put them on, all I hear is a high-pitched squeak that sounds a little like a squeal of glee. Dolphins.


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UPDATE: Feds Want Warrantless Spying Loss Overturned, Saying the Law Can’t Touch Them

Feds Want Warrantless Spying Loss Overturned, Saying the Law Can’t Touch Them



by  David Kravets

May 31, 2012


(Image courtesy the U.S. Army)


The Obama administration is set to argue to a federal appeals court Friday that the government may breach, with impunity, domestic spying laws adopted in the wake of President Richard M. Nixon’s Watergate scandal.

The case tests whether Americans may seek recourse or monetary damages when a sitting U.S. president bypasses Congress’s ban on warrantless spying on Americans — in this instance when President George W. Bush authorized his secret, warrantless domestic spying program in the aftermath of the September 2001 terror attacks.

A federal judge found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia in 2004 were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former al-Haramain Islamic Foundation lawyers.

The document was later declared a state secret, removed from the long-running lawsuit and has never been made public. With that document ruled out as evidence, the lawyers instead cited a bevy of circumstantial evidence that a judge found showed the government illegally wiretapped the lawyers as they spoke on U.S. soil to Saudi Arabia.

Against the government’s objections, San Francisco U.S. District Court Judge Vaughn Walker awarded the two lawyers — Wendell Belew and Asim Ghafoor — $20,400 each in damages and their legal counsel $2.5 million in costs. It marked the first time anyone had prevailed in a lawsuit challenging Bush’s so-called Terrorist Surveillance Program.

The government appealed to the 9th U.S. Circuit Court of Appeals, and arguments before a three-judge panel are set to be heard in Pasadena, California, this Friday.

The al-Haramain litigation was considered the dark horse in a string of lawsuits challenging the Bush spy program. Eventually, it became the only case to reach a verdict against the government, establishing that it is actually possible to hold the government to task in a public court for secretly violating the law.

More high-profile cases, such as the Electronic Frontier Foundation’s case against the nation’s telecoms for their participation in the spy program, was thrown out of court — thanks to a retroactive immunity law Congress passed in 2008. Suits brought by the American Civil Liberties Union and others have floundered — facing the burden of proving that Americans were actually victims of the once-secret spy program. In a move that bodes well for the government, the Supreme Court earlier this month agreed to hear the government’s appeal of a lawsuit brought by journalists and attorneys, arguing that the case should be dismissed because of the plaintiffs’ inability to actually prove they were spied upon.


The domestic spying program was first disclosed by The New York Times in December 2005, and the government subsequently admitted that the the National Security Agency was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Further news investigations found that the government had secretly enlisted the help of major U.S. telecoms, including AT&T, to spy on Americans’ phone and internet communications without getting warrants as required by the 1978 Foreign Intelligence Surveillance Act.

Parts of the surveillance program were so egregious that the upper echelon of the Justice Department, including then-Attorney General John Ashcroft, threatened to resign en masse if it wasn’t changed.

Congress, with the vote of President Barack Obama — who was an Illinois senator at the time — subsequently legalized much of the warrantless spying in the summer of 2008. The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the government’s warrantless wiretapping.

The al-Haramain lawyers, who were representing the Saudi-based charity when the U.S. government declared it a terror group in 2004, sued the government under the Foreign Intelligence Surveillance Act, a 1978 measure adopted in the aftermath of Watergate to set domestic spying boundaries.

The government, however, claims said it cannot be held liable under the spying law, and that Congress has not waived sovereign immunity — meaning the government has not consented to being sued for breaching its own laws.

“In sum, there is no waiver of sovereign immunity here permitting the district court’s multi-million dollar damages and attorney fees judgment against the government. For this reason, the judgment of the district court must be set aside as a matter of law on this sovereign immunity ground alone, and this court need not proceed any further to dispose of this appeal,” Justice Department attorney Thomas Bondy wrote in a court filing. (.pdf)

Bondy also argued in a court briefs that Judge Walker should have dismissed the lawsuit after both the Bush and Obama administrations invoked the so-called state secrets privilege. The privilege was first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government and its agents from court scrutiny. At the government’s request, judges generally toss lawsuits when the privilege is cited.

Judge Walker found otherwise, and the government then refused to set up a secure system to prove to the court that a secret warrant had actually been obtained, prompting Walker to consider sanctioning the government for disobeying court orders.

The attorney for the two lawyers for the now-defunct charity scoffed at the suggestion that the appeals court should reverse the monetary damages Walker awarded his clients.

“This case has now been successfully adjudicated without any breach of state secrecy or harm to national security — without using the sealed document, and without revealing intelligence sources, methods, or operational details,” attorney Jon Eisenberg wrote in a filing to the appeals court, adding:

“By an exemplary act of judicial minimalism, the district court narrowly determined the bare fact of plaintiffs’ warrantless electronic surveillance, based solely on public evidence. National security has been protected, while the rule of law has been vindicated. A more satisfactory conclusion of this litigation cannot be imagined.”

Judge Walker ruled that the lawsuit made its case using snippets of evidence, including public statements from government investigations into al-Haramain, the Islamic charity for which the lawyers were working. The evidence included speeches by government officials discussing an investigation that concluded with the listing of al-Haramain as a terror organization, the FBI’s public disclosure that it monitored al-Haramain officials, and a speech about their case by an FBI official.

The government, however, contends that the snippets do not demonstrate whether any eavesdropping was warrantless — and the Obama and Bush administrations have neither admitted nor denied the allegations.

A group of retired admirals and generals teamed with the Washington Legal Foundation to urge the court to reverse Judge Walker. They agree with the government’s contention that it was never proven that the surveillance was done without a warrant issued by the Foreign Intelligence Surveillance Act Court, a secret body the 1978 FISA legislation set up to supervise government spying of Americans. The foundation says it is “devoted to defending and promoting the principles of free enterprise and individual rights.”

But in this case, it’s siding with a secretive government program.

“They could do no more than speculate that perhaps the government did not obtain a required FISA warrant before engaging in electronic surveillance,” Richard Samp, the foundation’s attorney, told the appeals court in a filing. (.pdf)

The Electronic Frontier Foundation also weighed in with a friend-of-the-court filing. (.pdf)

“The dangers of allowing the executive unfettered power to use the state secrets privilege to turn the Constitution on and off at will are plain,” EFF legal director Cindy Cohn wrote, “and strike at the heart of our constitutional system of government.”

Judge Walker, when finding for the two lawyers, found the surveillance was unlawful (.pdf) since the government refused to say whether it did or did not have a warrant, but did not declare the Terrorist Surveillance Program unconstitutional. Walker also declined to issue punitive damages to punish the government for wiretapping in the country without warrants.

Instead, the judge granted the two spied-upon lawyers $100 a day for each of the 204 days he found that their telephone calls were wiretapped beginning in February 2004, an amount they sought. In addition, they requested about $200,000 each in punitive damages, and the same amount to be awarded to the charity — all of which was denied.

“The president and other senior executive branch officials responsible for national security necessarily bear some risk that their actions may one day be held to be unlawful,” Walker wrote in 2010, “They must balance this risk against the harm that may come to the nation if they fail to act. While the court has the constitutional duty to apply the law in cases before it and hold violators accountable, it need not mete out punitive measures on officials for perceived ‘recklessness’ in dealing with a serious, proven threat to the national security.”

Walker ruled the record showed the government had reason to believe al-Haramain supported acts of terrorism and that “critical intelligence was obtained monitoring al-Haramain.” Walker added that al-Haramain was involved in planning and financing terrorist attacks against the United States’ embassies in Kenya and Tanzania.

Despite that, the government appealed, hoping to re-establish that citizens spied on by the government in the name of national security have no recourse in the courts, even if the government flagrantly violates the laws and the Constitution.


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