Wiretapping & Surveillance

The New O’Keefe Video

So, the White House spokesman wants people to watch a video even though she doesn’t know if it is accurate.  How’s that for devotion to the truth?

The video is by James O’Keefe, and it is itself about the truth.  But O’Keefe and his outfit, Project Veritas, have been known to use slick editing procedures to distort the truth, rather than expose it.  Let’s see what O’Keefe has this time.

Interesting. What O’Keefe, who has been hit with a $1 million conspiracy lawsuit, doesn’t tell you is that Bonifield has held many positions at CNN, most recently serving as a supervising producer for CNN Health, a position he has held since 2015.

CNN Health.

Other than that, there’s not much there there.

Does CNN’s coverage drive its ratings? I’m sure it does.  Just like as Fox.

Is the Trump-Russia collusion things bullshit?  This CNN supervisor says it could be.  And you know what? IT COULD BE.

But isn’t that why we have an investigation?  Isn’t that the point?

The opinion of a CNN Health producer means nothing.  You know who doesn’t think the Russia investigation is “a hoax”? The CIA, the FBI, the NSA, the DNI, the House Intel Committee, the Senate Intel Committee, and Robert Mueller.

The “Unmasking” Diversion

Over at Fox News, they use the word “unmasking” a lot. To me, it looks like they haven’t realized it is a common practice in the intelligence community. They just use the word a lot so that their low-information viewers will think it is bad.

“Unmasking”, of course, is the process whereby a redacted name of an American citizen is unredacted for someone who is reading an intelligence report.  A request is made to unmask the name so that the reader can better understand and perhaps act on the information (or fully advise another)

Unmasking is not leaking.  When the name of a U.S. person is unmasked, that information is provided only to the intelligence official who requested that unmasking. There’s no equivalence between so-called unmasking and leaking.  Of course, the recipient of unmasked information could then illegally disclose it through a leak. But that’s leaking.

Unmasking is not a crime. The process for unmasking vary from agency to agency and case by case depending on how the information was collected. But the exact procedures are not publicly known and may be classified.

Even if it turns out that procedures weren’t followed, people would most likely be subject to administrative discipline. It’s still not a crime.

But Trump and obedient Republicans have to switch focus to something other than possible Russia collusion, so “unmasking” is their go-to.  In the recent subpoenas sent out by the House Intelligence Committee, half of them were related to investigations of “improper unmasking.”

Never mind that these allegations have already been thoroughly debunked. In April, numerous media outlets, citing both Republican and Democratic congressional sources, reported that intelligence reports pertaining to the communications of Trump’s advisers with foreign agents were “normal and appropriate” and contained “no evidence of wrongdoing.”

Even Trump is pimping the unmasking. His tweet today:

It’s really not.  As I said, even improper unmasking is an administrative slap on the wrist.

But Trump has a bigger problem.  Pushing the “unmasking and surveillance” line only leads to more information about why requests were made. And when that information comes to the surface, well, that’s a path that’s been harmful to Trump’s cause thus far.

I don’t think he sees that many moves ahead.

Twitter Pushes Back On Trump Administration

Twitter filed a lawsuit against the Department of Homeland Security and the Department of Customs and Border Protection today. Twitter seeks an injunction barring them from asking for the identity of the person behind @alt_uscis.

It’s not clear what legal reason the Trump administration is seeking to identify @alt_uscis.  The @alt_uscis bio states: “Immigration resistance . Team 2.0 1/2 Not the views of DHS or USCIS. Old fellow drank russian soup.”  It could be a now-fired USCIS employee and they are looking for a leak, or maybe they just don’t like criticism.

Anyway, it is going to put this administration (as well as social media resistance) to a test.  Keep your eyes open.

Yeah, I Admit That I Just Emailed Rachel Maddow

I know you get a lot of email, which means I only have a few seconds to grab your interest.  Here I go…

Let me bullet-point it for you:
  • Reminder: ECW is the 30-year-old White House aide — the NSC’s senior director of intelligence who started his own ‘review’ of surveillance intercepts of the Trump transition, took his findings to the White House Counsel’s office only to get told to stop. [Source: AP]

  • Although reports say that Michael Ellis and a third person gave the unmasked intel to Nunes, it seems obvious that ECW gathered this information in his ‘review’ [Source: NYT]
  • ECW is a Flynn protege [Source: NYT, above]

  • McMaster wanted ECW out, but Bannon and Kushner intervened [Source: NYT, above]  (Isn’t that intervention unusual? Why those two? Where is the Chief of Staff in all this?)

  • ECW has no face. (No, seriously. You can’t find a picture of him online, which doesn’t mean anything, but is fun/weird)

  • His wife works for a D.C. public relations firm. Her client is… Russia. [Source: a reputable blog, but I think your staff should try to confirm.]

Now the heavy stuff that nobody seems to be talking about (save perhaps Nancy LeTourneau at the Washington Monthly this morning)

  • In order to unmask a document, one needs the approval of the underlying intel agency that masked the document in the first place. Furthermore, once unmasked, you cannot share that unmasked information with another person unless it relates and is necessary to the purposes of your briefing, etc.  And finally, if you are going to share that information outside of your branch of government (say, with a congressional committee) you need to go BACK to then intel agency for further approval.  (I heard this many times last night and I believe Susan Rice said this as well.  Transcripts aren’t available yet, but someone can find this out).

  • This begs the question: regardless of why ECW got the unmasked information (i.e., on whose authority, if anybody), he would have to get permission from the underlying intel agency to share it.  Question: Did ECW follow intel protocol with the unmasked information that he obtained? Did anyone in the White House? (I suspect not)

  • Regardless of whether he got permission to share, ECW really really appears to be a leaker — or a link in within a “leak chain”  — is he not?  He cannot be a whistleblower — for that, he would have to expose wrongdoing. But even conservative news outlets acknowledge that Rice’s unmasking was perfectly legal.  So my questions are: Why hasn’t he been brought in for questioning? Why does he still have (as far as we know) security clearance?
Okay, that’s my quick pitch.

Thanks for your time.  I enjoy your show (obviously), but I won’t fanboy here.

Wow! Fox News And The White House Are Going Full Bore On This Susan Rice Thing!

It is amazing how the goalposts have moved from Trump’s initial tweets on March 10.  Let’s look at them again:


So Obama has now become Susan Rice, Obama’s National Security Adviser.

“Wiretap” has become “names unmasked”.

“Trump” and “Trump Tower”, the object(s) of the supposed “wiretap(p)”, is not Trump associates.

But other than those things — Trump was 100% correct when he said “Obama wiretapped me”.

Here’s what we do FOR A FACT: Susan Rice — who was the NATIONAL SECURITY ADVISER — sought to unmask intelligence a lot.  When she or anybody else does this, the N.S.A. uses a two-part test to evaluate unmasking requests: “Is there a valid need to know in the course of the execution of their official duties?” and “Is the identification necessary to truly understand the context of the intelligence value that the report is designed to generate?”

The answer to these questions is often yes. “Masking and unmasking happens every single day, dozens of times, or hundreds of times. I don’t even know the numbers,” Jim Himes, a Democrat on the House Intelligence Committee, told me. “There needs to be a process followed. It’s a fairly rigorous process, involving lots of review by counsels and that sort of thing.”

There is an audit trail for these requests and the responses.  Which means that if Susan Rice was abusing this process, she did a terrible job of covering it up. All Trump’s aides had to do to discover her alleged abuse was to review logs on a White House computer that tracked her requests.

And while Republicans are targeting Rice, recklessly asserting that she spied on Trump’s campaign, their attacks also implicate the N.S.A., which would have had to determine that the intercepts had “intelligence value,” and then to approve any unmasking based on its two criteria: that Rice had “a valid need to know” the identities of masked names and that unmasking was necessary to understand the report.

And they love that it is Rice, because Rice was also involved in the non-scandal called Benghazi.

So it seems the political winds may be shifting on this story, or at least blowing in a slightly more favorable direction for the White House. But unless firm evidence of any actual wrongdoing emerges, these partial revelations, some favorable to the president and some unfavorable, are probably mostly a distraction, or at least a way to while away time, until the real news emerges from the congressional or FBI investigations.

Let’s set aside that his “story” emanates from Mike Cernovich, the man who made up stories that there is an child-sex ring literally underground at a Washington, D.C. pizza restaurant.  Let’s also set aside the fact there is nothing there.  Just don’t believe the Fox hype.

UPDATE:  The Wall Street Journal gets in on the act, with its editorial board issuing a blistering op-ed on Tuesday morning:

All this is highly unusual — and troubling. Unmasking does occur, but it is typically done by intelligence or law-enforcement officials engaged in anti-terror or espionage investigations. Ms. Rice would have had no obvious need to unmask Trump campaign officials other than political curiosity.

I can think of a need. And it is obvious. If the Russians were hacking the DNC and attempting to sabotage the election (which was known at the time by Rice), and Trump campaign officials were meeting and talking with Russian agents (which was known at the time by Rice), then I can understand why she might want that information unmasked.

Rice spoke to MSNBC shortly and said she didn’t use any such intelligence for political purposes.

“The allegation is that somehow Obama administration officials utilized intelligence for political purposes; that’s absolutely false,” she said. She added: “I leaked nothing to nobody, and never have and never would.”

She confirmed that such unmasking was part of her duties as national security adviser, without referring to specific cases.

“That’s necessary for me to do my job,” she said. “It’s necessary for the secretary of state, or the secretary of defense, or the CIA director to do their jobs. We can’t be passive consumers of this information and not — and do our jobs effectively to protect the American people. Imagine if we saw something of grave significance that involved Russia, or China, or anybody else, interfering in our political process and we needed to understand the significance of that. For us not to try to understand it would be dereliction of duty.”

Right.  And It’s circular logic. If Rice didn’t know who was on the calls how could it be a political attack? On the other hand if Trumps people hadn’t been talking to Russian operatives they wouldn’t have been recorded.

UPDATE AGAIN — CNN’s Chris Cuomo gets it:

CNN anchor Chris Cuomo told viewers on Tuesday that the controversy surrounding former national security adviser Susan Rice is “another fake scandal being peddled by right-wing media.”

Cuomo offered the remarks about Rice’s reported request to know the identities of President Trump transition team members mentioned in intelligence briefings during CNN’s “New Day.”

Rice has been accused of unmasking the Trump transition members.

“So President Trump wants you to believe that he is the victim of a ‘crooked scheme,’ ” Cuomo began. “Those are his words. And here are our words: There is no evidence of any wrongdoing.”

“And, in fact, if anything the [national security adviser] asking for identities was a reflection of exactly how much traffic there was involving Trump people and foreign players,” Cuomo continued.

“The White House blasting the press for not reporting on another fake scandal being peddled by right-wing media.”

Disdain For Democracy

Worse than lying, says Greg Sargeant:

Trump is enraged at being subjected to a system of democratic and institutional constraints, for which he has signaled nothing but absolute, unbridled contempt. The system is pushing back, and he can’t bear it.

On Monday morning, the latest chapter in this tale — Trump’s unsupported accusation that Obama wiretapped his phones — took another turn. Trump’s spokeswoman said on ABC News that Trump does not accept FBI Director James Comey’s claim — which was reported on over the weekend — that no such wiretapping ever happened.

As E.J. Dionne writes, this episode is a “tipping point” in the Trump experiment. Trump leveled the charge based on conservative media. Then, after an internal search for evidence to back it up produced nothing, the White House press secretary called on Congress to investigate it and declared the administration’s work done. While the previous administration did wiretap, the problem is the recklessness and baselessness of Trump’s specific allegations, and the White House’s insistence that the burden of disproving them must fall on others — on Congress and on the FBI. Trump’s allegations must be humored at all costs, simply because he declared them to be true — there can be no admission of error, and worse, the White House has declared itself liberated from the need to even pretend to have evidence to back up even Trump’s most explosive claims.

This is more than disdain for the truth. It represents profound contempt for our democratic and institutional processes. In this sense, it’s only the latest in what has become a broader pattern:

  • When the media accurately reported on Trump’s inaugural crowd sizes, the White House not only contested this on the substance in a laughably absurd manner. It also accused the press of intentionally diminishing Trump’s crowd count, thus trying to delegitimize the news media’s institutional act of holding Trump accountable to factual reality.
  • Trump has tweeted that the media is the “enemy of the American people” and has accused the media of covering up terrorist plots. Stephen K. Bannon has railed against the press as “the opposition party.” Trump gave a recent speech heavily devoted to attacking the media, once again for deliberately and knowingly misleading Americans. All this goes far beyond merely questioning the media’s role as an arbiter of truth.
  • After getting elected, Trump continued to repeat the lie that millions voted illegally in the election, undermining faith in American democracy. When the media called out this falsehood, the White House threatened an investigation to prove it true, which hasn’t materialized, in effect using the vow of investigations as nothing more than a tool to obfuscate efforts to hold him accountable.
  • After a court blocked Trump’s travel ban, Trump questioned the institutional legitimacy of the “so-called judge” in question. He also cast the stay as a threat to our security, even though the ban has no credible national security rationale, something that has now been demonstrated by leaks from the Department of Homeland Security (exactly the sort of leaking that has Trump in a fury). Senior adviser Stephen Miller flatly declared that the ban would be reintroduced in part to demonstrate that Trump’s national security power “will not be questioned,” thus declaring the explicit goal of sweeping away institutional checks on it. And then the White House delayed introduction of the new ban in order to continue basking in good press from his speech to Congress, thus undercutting its own claim that this is an urgent national security matter.
  • Trump continues to hold court at Mar-a-Lago, using the power of the presidency to promote his own resort, whose membership fees sink money into his own pockets. The White House publicly intervened in a business dispute involving Trump’s daughter and even tried to steer customers her way, an act which Kellyanne Conway embellished by cheerfully sticking a rhetorical middle finger in the face of anyone who finds such behavior troubling.

We’re witnessing a level of total disdain for basic democratic and institutional processes that defies description, and perhaps calls for a new vocabulary. But the story does not end here. As Benjamin Wittes and Quinta Jurecic explain in a great piece, the almost comical lack of good faith that Trump and the White House are showing toward our processes is inspiring an escalation in institutional pushback — from the courts, the media, government leakers, and civil society — that is having much more of a constraining effect than Trump ever could have anticipated. Indeed, the Trump White House’s ongoing conduct is itself producing the very systemic resistance that now has Trump in such a rage.

Lot Of Hypocrisy About Leaks

The Pentagon Papers was a leak from Daniel Ellsberg. It helped de-legitimize the Vietnam War.

Deep Throat was Mark Felt, a top FBI official. He gave Woodward and Bernstein the deep background on the Watergate scandal.

Edward Snowden leaked information about US government surveillance programs.

Chelsea Manning leaked documents and video relating to Iraqi air strikes, diplomatic cables, and Gitmo, most of which did not put the US in good light.

Vice President Cheney outed Valerie Plame as a CIA operative in order to exact revenge on her husband, a critic of the Bush Iraq War policy.

To most people, one of more of these people are heroes — one of the “good guys”.  But they were all leakers.

Everybody constructs reasons for leaks they like and leaks they don’t like. But it is hard to come up with a non-hypocritical reason for distinguishing “good leaks” from “bad leaks”.

We’re at a remarkable point in history where the president accuses his own intelligence community of working against him, as exhibited by his tweetstorm this morning:

What sounds hollow about all this is that Trump was totally fine — in fact he PRAISED — Wikileaks when it printed the John Podesta emails.

I know, I know. The Podesta emails weren’t technically leaks.  They were hacks by the Russians.  But doesn’t that make it WORSE?  Think about it.  The President is fine with Russian intelligence stealing secured information and making it public — in fact he encouraged it! — but he’s upset about “illegal” leaks from American intelligence sources?

It really does beg the question — whose side is the President on?  At best, it cements the notion that he is in the pocket of Russia.

FBI Quietly Drops Lawsuit Against Apple

Remember that thing last month that I wrote about where the FBI wanted to force Apple’s help to break into an iPhone of the San Bernadino terrorist?

It was controversial in part because many thought that the FBI didn’t really need Apple’s help. Those people include Richard Clark. The former U.S. counterterrorism official and security adviser to the White House told NPR he believed the NSA could do it, no problem, but that the FBI was “not as interested in solving the problem as they are in getting a legal precedent.” Edward Snowden said the same via Twitter.

The FBI just proved them right (the Guardian):

The US government dropped its court fight against Apple after the FBI successfully pulled data from the iPhone of San Bernardino gunman Syed Farook, according to court records.

The development effectively ended a six-week legal battle poised to shape digital privacy for years to come. Instead, Silicon Valley and Washington are poised to return to a simmering cold war over the balance between privacy and law enforcement in the age of apps.

Justice Department lawyers wrote in a court filing Monday evening that they no longer needed Apple’s help in getting around the security countermeasures on Farook’s device.

No work on the third party that helped the FBI find the security breach.

Apple And The FBI Order

Interesting little development going on in the tech/privacy world and, depending on who you believe, a possible turning point for the better/worse.

After the San Bernardino shootings, the FBI seized the iPhone used by shooter Syed Rizwan Farook. The FBI has a warrant to search the phone’s contents, and because it was Farook’s work phone, the FBI also has permission from the shooter’s employer, the San Bernardino County Department of Public Health, to search the device. Legally, the FBI can and should search this phone. That’s not up for debate. If the FBI gets a warrant to search a house and the people who own it say okay, there’s no ambiguity about whether it can search the house.

But if the FBI comes across a safe in that house, the warrant and permission do not mean it can force the company that manufactures the safe to create a special tool for opening its safes, especially a tool that would make other safes completely useless as secure storage. That’s the situation that Apple’s dealing with here.

The FBI obtained an order from a California district court on Tuesday ordering Apple to provide “reasonable technical assistance” in cracking Farook’s passcode. The court order doesn’t flat-out demand that Apple unlock the phone, which is an iPhone 5C running iOS 9. Instead, the judge is asking Apple to create a new, custom, terrorist-phone-specific version of its iOS software to help the FBI unlock the phone. Security researcher Dan Guido has a great analysis of why it is technically possible for Apple to comply and create this software. (It would not be if Farook had used an iPhone 6, because Apple created a special security protection called the Secure Enclave for its newer phones that cannot be manipulated by customizing iOS.)

Apple quickly said it would fight the judge’s order. Chief executive Tim Cook called it “an unprecedented step which threatens the security of our customers,” and said the order “has implications far beyond the legal case at hand.” He published a message emphasizing that the company can’t build a backdoor for one iPhone without screwing over security for the rest:

In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.

The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.

Apple, Google and other technology firms in recent years have stepped up encryption — allowing only the customers to have “keys” to unlock their devices — claiming improved security and privacy is needed to maintain confidence in the digital world.

This has sparked a national discussion on weighing security against privacy.  Not a new debate — we’ve had that since 9/11.  But this relates to our smartphones, and so everyone has a strong opinion, it seems.  Republican candidates are coming down on the side of national security in a few that is somewhat contradictory of the anti-big-government stance they often take.  Again, nothing new there.

Let’s see if we can’t shake out this tree a little.

First off, here is the actual order.  Magistrate Judge Sheri Pym, a former federal prosecutor, relied on the All Writs Act, passed in 1789 (one of the first federal laws ever).  It has been used many times in the past by the government to require a third party to aid law enforcement in its investigation.

The order would require Apple (US) to create firmware to be loaded onto a specific phone to make it possible to do brute force password guessing. (Among a couple of other things, it would take away the maximum number of guesses to unlock the device.)

The significant thing about this case is that the FBI, minus any enforcing legislation, has gone and found itself a judge to order a company to do something.

Think about that — ‘ordering a company to do something’.  That is something arguably new in the current FBI approach.

The Apple case is remarkable in that it couches what the court views as “reasonable assistance” as basically breaking your own products.  Apple has quite rightly made the point that not only does this break company security and therefore customer privacy, but that if they create an exploit for the FBI, the vulnerability will be used by the likes of Putin and various repressive regimes.

Facebook, Twitter and Google have all voiced support for Apple‘s fight against a court order that Apple says would make iPhones less secure a,d it is not hard to understand why — they simply cannot run a global business if they are seen to do too many special favors for one government, the United States.

But is this really about privacy?  Do we as individuals really care about these things?  Let’s face it — we are now just little motors chuntering around creating metadata exhaust trails. The current conflict is not an argument about our privacy rights, since we seem to be content to leave ourselves all over the place (Facebook,. Twitter, etc.).  Rather, this might be a fight between governments and firms on how better to pin us down and hoover up the effluent we leave behind. You can see why they might all be getting testy about who gets what.

So I tend to think this is less about Apple preserving privacy for its owners, and more about it being seen in international quarters as subservient to the American government.  What will happen to the foreign markets of Google and Facebook and Apple and Android if it widely believe that one American judge can order these giant companies to invade one person’s privacy?

This is about the Benjamins just as much as about the privacy rights of people.

Did Ted Cruz Leak Classified Information During The Latest GOP Debate?

It went down like this.  While Rubio and Cruz were debating each other’s records on national security and surveillance, Cruz got into some details about what the bulk data program covers.

“What he knows is that the old program covered 20 percent to 30 percent of phone numbers to search for terrorists,” Cruz said, referring to Rubio. “The new program covers nearly 100 percent. That gives us greater ability to stop acts of terrorism, and he knows that that’s the case.”

It’s not clear if Cruz, who is unpopular with many of his Senate colleagues, revealed classified information. But in his response to Cruz, Rubio noted that he did not want to say too much about the program.

“Let me be very careful when answering this, because I don’t think national television in front of 15 million people is the place to discuss classified information,” Rubio said. “So let me just be very clear. There is nothing that we are allowed to do under this bill that we could not do before.”

And that was how it went down.  Moments afterward, this was tweeted:

Becca Watkins is the communications director for Senator Richard Burr (R-NC), chairman of the Senate Intelligence Committee.

Burr told reporters that his staff was looking into the matter as to whether or not Cruz disclosed classified information. Cruz is not well-liked in the Senate, even by his Republican colleagues.

Late yesterday, the Senate Intelligence Committee announced that it will not be investigating anything said during Tuesday’s debate.

Meaning…. well, anything.  If Cruz leaked classified information, they’re certainly not going to admit it.  Better than the terrorists think that 100% of bulk phone data is being culled.

On The Ashley Madison Hack

So, a few days ago, the website Ashley Madison was hacked and its 37 million customers could soon have their data leaked online by a crew calling themselves The Impact Team.  Ashley Madison, for the uninitiated, is a site that lets spouses cheat on their partners — kind of like a match.com for adulterers. The Impact Team has threatened to release a huge trove of data beyond the snippets of information they already leaked from Avid Life Media, the owner of Ashley Madison and related properties Established Men and Cougar Life, if the cheating site was not shut down.

Why is Impact Team doing this?  Well, it seems they were particularly aggrieved at a service launched by Ashley Madison last year, promising it could delete users’ information so it was irrecoverable for $19. The hackers claimed that service didn’t do as advertised, and customers’ names and addresses were still stored on ALM’s servers.

“Full Delete netted ALM $1.7mm in revenue in 2014. It’s also a complete lie,” The Impact Team said in a notice alongside the leak, in which they also claimed to have taken complete control of ALM’s “office and production domains”, as well as “all customer information databases”.

If that is true, I think they have a point.

Now, I suppose the news of the leak is ho-hum news to a lot of people, but to 37 million — wait…. let’s just contemplate that number.


Ok.  Well to them this is potentially… bad.  REAL bad.

What disgusts me are people like Christian evangelist Franklin Graham, who posted a message on his Facebook page about the matter Wednesday afternoon, stating:

The Bible says, “be sure your sin will find you out.” Ashley Madison, the website for people who want to cheat on their spouses was hacked this weekend. Their slogan is: “Life is short. Have an affair.” Hackers threatened to reveal personal data related to 37 million users. I have news for all those worried cheaters out there wringing their hands—God already knew! His holy Word says, “Nothing in all creation is hidden from God’s sight. Everything is uncovered and laid bare before the eyes of him to whom we must give account” (Hebrews 4:13). Times may have changed, but God’s laws and standards never change—all sin has a price. The New York Daily News calls this an “‪#‎adultery‬ website.” Isn’t it a shame that immorality is such big business?

You know what?  F you, Franklin Graham.

Not being married nor inclined to cheat, I’m not personally affected by this hack, but it does establish a terrible precedent.  We don’t want to snicker at the cheaters who got caught because you never know what could be out in the dark hidden recesses of the web that reflects badly on you or. . .  and this is important . . . someone with the same name as you.  So I think we need to pay attention to this type of thing a little more closely.

Boston: Up Close

This video may not seem remarkable at first….

Boston, U.S.A. from UrtheCast on Vimeo.

It’s Boston… and you can see Fenway Park and cars moving on Storrow Drive as well as I-40.

Here’s the astonishing, but creepy, thing about this: it was taken from space.  From a satellite.  You can see the Prudential Center and the Hancock Building appear to drift, leaning into their shadows as the camera vantage point changes in relation to the ground.

And it comes from a private company called UrtheCast (click the link above).  UrtheCast offers surveillance data as a service so that businesses can “monitor areas of interest with consistent access to satellite imagery in order to analyze, strategize, and plan,” according to its website. The famous example in the satellite business is the idea that companies will be able to count the cars in their parking lots to track customer flow, estimate revenue, and otherwise contextualize their work.

But it means that private companies can, if they wanted to, track your car movements. Good for homeland security and law enforcement, but kind of 1984ish in a way as well.  Not that a private company would single you out, but it could collect data on thousands of cars and once, and if they can be paired with the owner, then companies can track your real world movements just the same as they track your online movements.

Then again, maybe Google Earth is only a few years from this themselves.  And YOU can track anyone you want, anytime, anywhere.

Why I Still Can’t Get 100% Behind Snowden

Whistleblowing is good.  Whistleblowing is important.  It is important that we know what the government is doing regarding our communications and the impact on our privacy rights.  I am happy for the debate, and I thank Edward Snowden for it.

But then there is this:

Britain has pulled out agents from live operations in “hostile countries” after Russia and China cracked top-secret information contained in files leaked by former U.S. National Security Agency contractor Edward Snowden, the Sunday Times reported.

Security service MI6, which operates overseas and is tasked with defending British interests, has removed agents from certain countries, the newspaper said, citing unnamed officials at the office of British Prime Minister David Cameron, the Home Office (interior ministry) and security services.

Snowden downloaded more than 1.7 million secret files from security agencies in the United States and Britain in 2013, and leaked details about mass surveillance of phone and internet communications.

Snowden and Glenn Greenwald are disputing this news story, noting:

The whole article does literally nothing other than quote anonymous British officials. It gives voice to banal but inflammatory accusations that are made about every whistleblower from Daniel Ellsberg to Chelsea Manning. It offers zero evidence or confirmation for any of its claims. The “journalists” who wrote it neither questioned any of the official assertions nor even quoted anyone who denies them.

While Greenwald has a point, it doesn’t strike me as completely unreasonable that Russia and China certainly learned something about us that the they didn’t know from Snowden’s massive government document leak.  Of course, we’ll probably never know the truth.

I Don’t Worry About Spying

I know.  I should care.  Governmental abuse and all that.  But I don’t.

This past week has been filled with stories about the sunset clauses of The Patriot Act, and overwhelming surveillance methods regarding our phone usage.  And I can’t quite give a damn.

I like what Edward Snowden did, for the most part.  I think he should be granted a pardon.  It is good that we are having these conversations.  And I do worry about Fourth Amendment violations.

But if the national security apparatus is logging mine and everybody’s phone conversations — specifically, the time and place of my calls, who I called, and how long we talked — and all that information is stored in some gigantic hard drive in Utah…. well, big deal.  Basically, they’ve got my phone bill, right?  I mean, do I have an expectation of privacy with regard to that?  Not really.  And it’s not like a pair of human eyes looks at it.  It’s only when a court says, “okay, a pair of human eyes can dig up that stored information off of the hard drive” that it even becomes arguably intrusive.  And even then, I don’t care.

And we’re told that there are these supercomputers that actually listen in (without a warrant) to hundreds of thousands of phone conversations trying to pinpoint certain words and phrases like “al Quaeda” and “bomb”, and flagging them.  Again, do I care?  Not really.  I worry about abuse (and Snowden said there was a lot of that — i.e., NSA agents listening in on ex-wives, celebrities, etc.), but that is going outside the law.  I have no problem with the law as practiced.  I don’t feel my privacy is being invaded if a non-sentient computer listens in to my phone calls.  I just don’t.

And even this doesn’t bother me:

WASHINGTON (AP) — Scores of low-flying planes circling American cities are part of a civilian air force operated by the FBI and obscured behind fictitious companies, The Associated Press has learned.

The AP traced at least 50 aircraft back to the FBI, and identified more than 100 flights in 11 states over a 30-day period since late April, orbiting both major cities and rural areas. At least 115 planes, including 90 Cessna aircraft, were mentioned in a federal budget document from 2009.

For decades, the planes have provided support to FBI surveillance operations on the ground. But now the aircraft are equipped with high-tech cameras, and in rare circumstances, technology capable of tracking thousands of cellphones, raising questions about how these surveillance flights affect Americans’ privacy.

“It’s important that federal law enforcement personnel have the tools they need to find and catch criminals,” said Charles Grassley, chairman of the Senate Judiciary Committee. “But whenever an operation may also monitor the activities of Americans who are not the intended target, we must make darn sure that safeguards are in place to protect the civil liberties of innocent Americans.”

The FBI says the planes are not equipped or used for bulk collection activities or mass surveillance. The surveillance equipment is used for ongoing investigations, the FBI says, generally without a judge’s approval.

I guess some people might be surprised.  I’m not.  And it’s not like I’m saying, “I don’t care because I’m not guilty of doing anything wrong”; it is just that I don’t have an expectation of privacy with regard to things that I do that are visible from an airplane.  Let ’em fly.

Second Circuit Rules Against Mass Collection Of Phone Records

I haven’t written much about Ed Snowden and the huge, perhaps unconstitutional, mass surveillance of Americans, but this is too noteworthy to ignore:

A federal appeals court ruled Thursday that the National Security Agency’s controversial collection of Americans’ phone records, first revealed by Edward Snowden, is not legal under the Patriot Act.

The Second Circuit Court of Appeals held in the case, which was brought by the ACLU, that the telephone metadata collection program “exceeds the scope of what Congress has authorized.” The Court did not rule on a larger Constitutional issue and sent the case back down to a lower court for further proceedings.

The program gathers up bulk telephone records to enable targeted searches based on telephone numbers or other identifiers associated with terrorist organizations.

A three judge panel held that the text of the Patriot Act “cannot bear the weight the government asks us to assign to it and that it does not authorize the telephone meta date program.”

The Court said, “We do so comfortably in the full understanding that if Congress choses to authorize such a far-reaching and unprecedented program, it has every opportuntiy to do so, unambiguously. Until such times as it does so, however, we decline to deviate from widely accepted interpretations of well-established legal standards. ”

“This is a landmark ruling and it critically important decision, what it means going forward depends entirely on Congress, because this provision was set to expire on June 1st anyway,” said Steve Vladeck of American University.

The Court said it wouldn’t block the provision while the case is reconsidered at the lower court.

I would disagree that this is a “landmark ruling” because the Second Circuit did not reach the important Constitutional issue.  But it is important

The reason I haven’t written much about these mass surveillance issues is because I am largely on the fence about them.  If the NSA gathers up all the data relating to phone conversations — i.e., all conversations of everybody as to when and who they called and how long they talked — and that data sat on a computer somewhere and was never looked at by a pair of eyes until it became necessary (which it wasn’t 99.999999% of the time), is that an invasion of privacy that violates the Constitution?  I don’t know, but I tend to think not.  I tend not to give a damn.

And what if the conversations, texts, etc. themselves are collected?  Again, not sure I care.

But I can see why others might disagree.

Then And Now

53 years ago today, an outgoing President Eisenhower said:

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

He went on:

“We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

That was the famous military-industrial complex speech, and how it posed a potential threat to democracy.

Below the fold is Obama's speech today, about how national security measures pose a threat to democracy, and some of the changes needed to ensure privacy.

Legal Rationale for Surveillance

I haven't been writing much about the telephony surveillance "scandal" because unlike many liberals I know, I'm not that upset by it.  I do not consider the mass collection of metadata to be an invasion of my privacy.  Collection is not the same thing as searching or prying, to my mind.

Anyway, the Obama Administration released a white paper which cites the legal rationale for surveillanece.  I attach it here:

Administration White Paper Section 215

One part of this document feature why I'm non-plussed by the whole thing:

Thus, critically, although a large amount of metadata is consolidated and preserved by the Government, the vast majority of that information is never seen by any person. Only information responsive to the limited queries that are authorized for counterterrorism purposes is extracted and reviewed by analysts. Although the number of unique identifiers has varied substantially over the years, in 2012, fewer than 300 met the "reasonable, articulable suspicion" standard and were used as seeds to query the data after meeting the standard. Because the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three "hops" from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but it is still a tiny fraction of the total volume of metadata records. It would be impossible to conduct these queries effectively without a large pool of telephony metadata to search, as there is no way to know in advance which numbers will be responsive to the authorized queries.

Snowden Is A Dick

I have been following with interest the various leaks from Edward Snowden, although I have not been writing about them much.  I write this post to officially say that the so-called whistleblower really is a self-aggrandizing a-hole, and not the 4th Amendment crusador that he envisions himself to be.

I join with others who ask — if he was so concerned about civil rights and privacy, why has he run to China (a place notorious for its lack of both)?

And then you read things that he says like today's Q&A with the Guardian:

First, the US Government, just as they did with other whistleblowers, immediately and predictably destroyed any possibility of a fair trial at home, openly declaring me guilty of treason and that the disclosure of secret, criminal, and even unconstitutional acts is an unforgivable crime. That's not justice, and it would be foolish to volunteer yourself to it if you can do more good outside of prison than in it.

Um, what?  He thinks that the disclousure of secret acts is a forgivable crime?  Since when?

He says what he is disclosing is "secret".  On that, I think we all agree.  But is it against the law?  Absolutely not.  Everything he has disclosed seems is within the law as it exists.  There is no legal abuse.  Yes, reasonable people can disagree about whether the laws are unconstitutional, but something being illegal and something being constitutional are two entirely different things.  Laws can be unconstitutional, but laws cannot be illegal.

And some of what he is disclosing clearly isn't unconstitutional.  For example, spying on foreign countries, including countries we are not at war with (like China).  Again, you may like the policy, but espionage against other countries is not unconstitutional… for one simple reason: The Constitution does not protect other countries.

In fact, he is complaing about things that the NSA is supposed to be doing.

He repeats his mistake here:

Congress hasn't declared war on the countries – the majority of them are our allies – but without asking for public permission, NSA is running network operations against them that affect millions of innocent people. And for what? So we can have secret access to a computer in a country we're not even fighting? So we can potentially reveal a potential terrorist with the potential to kill fewer Americans than our own Police? No, the public needs to know the kinds of things a government does in its name, or the "consent of the governed" is meaningless.

This is complete and total bullshit.  "Consent of the governed", which isn't in the Constitution by the way, does not mean that the public-at-large raises its collective hand and votes on what our intelligence agencies do in secret.  It never has meant that.  The Constitution, in fact, tells us how "consent of the governed" works — we elect leaders and they decide.  It's a representative democracy, moron.

Later, he rails against the "policy protections" that we have against our email, saying that policy protections are no protections at all.

Well, that's one way to look at it, I suppose.  But "policy" is pretty broad, and encompasses actual laws.  His argument basically is that laws can be broken, so any protections we have against privacy are meaningless.  And while that might be true, it also applies to anything.  I could say that laws against murder are meaningless, because people can break those laws and murder me.  Yeah, so?  What does he suggest?!?

It seems that Snowden may have possessed an ideal and naive view of what our government does.  I don't think anyone is surprised, and most people expect, our government to do intelligence surveillance, especially on foreigners.  I'm sure more aren't surprised that they are doing it on us.  There seems to be a system of checks and balances (FISA court overview, congressional debriefings) so that the potential for abuse is low.  And as for ACTUAL abuse of the laws, Snowden has not presented ANY evidence.  No evidence that the courts were avoided, for example.

I think it's a good thing to have a national discussion and reexamination of intelligence gathering to the extent that it infringes on our privacy and Fourth Amendment expectations.  And that's the only good that has some of this.  But I don't see any wrongdoing so far, except on Snowden's part.  This guy's a dick.  And a traitor.

UPDATE:  John Avarosis agrees with me

Famed NSA leaker Edward Snowden almost had me convinced of his sincerity.  Until today, when he released damaging information about US spying on Russia’s former president, and offered up no explanation for how such revelations jibe with his earlier claims to be fighting for the American people.

You don’t go and help the Russians if your goal is fighting for the American people, unless you have a darn good reason, and Snowden has so far given none for today’s new leaks.


It’s not clear what any of those have to do with Snowden’s earlier justifications for his leaks.  They don’t have anything to do with the NSA director lying to Congress.  They don’t have anything to do with the President not closing down Gitmo.  And they have nothing to do with the dangers the surveillance state pose to the privacy of Americans.  They weren’t spying on Americans in today’s stories, they were spying on Russian leaders and diplomats, among others foreign officials.  So Snowden’s earlier justifications for the leaks don’t seem to apply.  Then why did he do it?


And here’s where I really think Snowden lost me:

Congress hasn’t declared war on the countries – the majority of them are our allies – but without asking for public permission, NSA is running network operations against them that affect millions of innocent people…. And for what? So we can have secret access to a computer in a country we’re not even fighting?

So now Snowden thinks we should only spy on countries we’re at war with?  Who are we technically at war with?  North Korea?  Anyone else?  That makes for a pretty small list.  Even if what he really means is de facto wars like Afghanistan and Iraq, again, that’s a rather small list.  Can we spy on Iran?  How about Syria?  How about Cuba?  How about China?

It almost sounds as if Snowden objects to the entire notion of spying.  And if that’s the case, then why did he go to work at the CIA and the NSA in the first place if he’s morally repulsed by the notion of spying generally, and on Russia in particular?


US Majority Backs NSA Surveillance

A new Washington Post-Pew Research Center poll found that 56% of Americans consider the NSA's accessing of telephone call records of millions of Americans through secret court orders "acceptable." A 62% majority believe it's more important for the government to investigate terrorist threats, even if those investigations intrude on personal privacy. Support drops when it comes to government monitoring of emails, but even here, the public is evenly split.

The thing to note from the poll, however, is the partisan split, and how it has evolved since 2006.


Basically, we're a bunch of hypocrites.  Democrats don't trust the NSA to respect privacy when it is Bush in power, but are okay when Obama is in power.  And vice versa for the Republicans.

In 2006, the Pew Research Center asked the public about attitudes towards the Bush/Cheney warrantless-wiretap program through the NSA, and found that 75% of self-identified Republicans supported the program, while only 37% of self-identified Democrats agreed.

In 2013, those numbers have largely flipped — support for the surveillance is down sharply among Republicans, from 75% to 52%, while support among Democrats has soared, from 37% to 64%.

Steve Benen points out one crucial point: In 2006, the poll question dealt with a warrantless surveillance program in which the Bush administration exceeded its legal authority with no judicial check or congressional approval. In 2013, the Obama administration, at least given what we know now, appears to be acting within its legal authority, relying in part on the courts, and acting within a law approved by bipartisan majorities.

In any event, the larger point is that the American mainstream is far less concerned with federal surveillance programs than civil libertarians had hoped. Indeed, the Post/Pew poll found that 45% of the public — very nearly half — believe the government should be able to go even further than it currently is when it comes to spying on Americans, so long as the goal is to prevent terrorism.

On The NSA Leaks And The Fact That Your Phone Records Are Being Seized And Everything You Do On The Internet Is Being Swept Up And All That

Busy-ness and business kept me from blogging about last week's bombshell news: the leaks to Glenn Greenwald and the Washington Post that (a) phone records of Americans are seized en masse by the NSA and (b) everyone's Internet activity is likewise seized.

My immediate thought is: This is news?

Rachel Maddow devoted almost all of her show on Thrusday to something called "Room 641A", a room at the headquarters of AT&T where only one person — an NSA person — has access, and that literally sweeps up every piece of digital data that goes through those wires.

And I thought: This is old news, isn't it?  Hell, I was blogging about Room 641A back in May of 2006:

I mean, Glenn Greenwald was screaming about the same thing then.  As was I.  As was Michael Moore and thousands of others.

And I thought to myself, well, NOW we have a scandal, but it's the same one we've always had.  Yes, Obama didn't budge from Bush when it came to protecting the Constitution and warrentless wiretapping.  And Congress knew it.

I don't know.  Nobody's talking about Benghazi or even the IRS focus on tea parties.  The "scandal" is one that implicates not only Obama, but virtually every single Democrat and Republican in Congress who was aware of the program, and voted to continue it.  And that was virtually all of them.

It's the fault lines that I find interesting.  All of a sudden, neocon Republicans and many Democrats with a non-libertarian streak are defending the program and Obama's use of it.  And left-right libertarians (like Greenwald) are screaming bloody murder.

I do have a problem with these programs in principle.  I am assured that a FISA court is overseeing these operations to make sure the Fourth Amendment is being violated, but the problem is that the court works in secret, and so that assurance is not very large.  I do believe these programs have been successful in preventing terrorist attacks, and I am sympathetic to the "what-do-I-care-there's-nothing-criminal-in-my-emails" stance.  I recognize that they are not reading MY personal emails.  I recognize that to combat terrorism — which is analagous to finding a needle in a haystack — our intelligence experts need the whole "haystack".  I get all that.

But at the same time, the potential for government abuse — not now, perhaps, but sometime — is huge.  And nobody likes the idea of living in a surveillance state.

And still on the other hand, everyone seems quite okay with private corporations tracking our whereabouts online and even selling that informatoin to others.  This is something in 2013 that just wasn't around in 2007, yet we accept now if somewhat begrudgingly.

I just think it is odd that it is coming up now.  We had this battle before.  We lost.

UPDATE:  And about the leaker, who outted himself yesterday as former Booz Allen Hamilton employee Edward Snowden (now hiding out in China).  

Another development with strange fault lines.  I mean, Michael Moore and Glenn Beck are calling him a hero.  Others are ready to villify for revealing national security secrets.

But his whistleblowing (if you want to call it that) raises another disturbing aspect — the government outsourcing of intelligence gathering.  It's because people don't want to pay higher taxes that we cut the number of government employees, and outsource to private companies (which ironically, is actually more expensive).  According to a 2013 report from the Office of the Director of National Intelligence, a total of 483,263 contractors held Top Secret clearances in 2012, the highest level one can obtain, with another 582,524 holding them at the Confidential and Secret levels.  Even if you're not worried about government abuse of privacy, you should be worried about the private sector as well.


Unintelligent Intelligence

Everyone should read the Washington Post's recent effort in investigative reporting, Top Secret America. As a piece of journalism, it represents what actual journalism should be — not what passes for journalism in today's he-said-she-said creaming-heads world.

That said, the subject of the piece is distressing. Since George W. Bush, we've had this reckless, ridiculous, uncoordinated expansion of intelligence agencies, all sucking up tremendous sums of money, all with little oversight, and all producing floods of data…and it's all a waste because the emphasis is on sucking in lots of data, and little is done about comprehending it all.

Everyone should read the Washington Post's recent effort in investigative reporting, Top Secret America. As a piece of journalism, it represents whatactual journalism should be — not what passes for journalism in today's he-said-she-said creaming-heads world.

That said, the subject of the piece is distressing. Since George W. Bush, we've had this reckless, ridiculous, uncoordinated expansion of intelligence agencies, all sucking up tremendous sums of money, all with little oversight, and all producing floods of data…and it's all a waste because the emphasis is on sucking in lots of data, and little is done about comprehending it all.

In other words, the over-collection of data leads to a myopic view of things — an intelligence community where real threats don't get investigated because they're buried in a morass of data points.


  • There are nearly 1,300 government organizations and 2,000 private companies working in 10,000 locations across the country.
  • There are 854,000 people who have top-secret security clearances.
  • There are 33 building complexes for top-secret work that are under construction or have been built just in Washington, DC since 9/11… totaling 17 million square feet of space.
  • Analysts turn out 50,000 intelligence reports every year… you can bet many of them never get read.
  • And, at least 263 organizations have been created or reorganized as a response to 9/11… that of course means hiring lots and lots of people. But don't ask where Osama bin Laden is… nobody knows.

UPDATE – Ezra adds another point:

And in case you think it'll be easy to roll any of this back, consider the fact that we still take our shoes off and throw away water bottles when we attempt to board a plane.

Bill Clinton’s Email Accessed By NSA During Bush Administration

Man, it was bad:

The difficulty of distinguishing between e-mail messages involving foreigners from those involving Americans was “one of the main things that drove” the Bush administration to push for a more flexible law in 2008, said Kenneth L. Wainstein, the homeland security adviser under President George W. Bush. That measure, which also resolved the long controversy over N.S.A.’s program of wiretapping without warrants by offering immunity to telecommunications companies, tacitly acknowledged that some amount of Americans’ e-mail would inevitably be captured by the N.S.A.

But even before that, the agency appears to have tolerated significant collection and examination of domestic e-mail messages without warrants, according to the former analyst, who spoke only on condition of anonymity.

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

The real story is that this is still going on under the Obama Administration.

Revelations From Bush Era: American Journalists Spied Upon

One day into his administration, and Obama is already making leaps and bounds in removing the secrecy that so characterized the Bush Administration.  In the sweep of a pen, Obama has made the process of governing more open and transparent.

But the damage has been done.  MSNBC's Keith Olbermann interviewed Russell Tice, a former National Security Agency analyst last night. Tice says that, under the ruse of making sure that the NSA did NOT target American media and journalists, they actually collected information on every communication those journalists and media organizations had 24/7.

And it gets potentially worse:
"The National Security Agency had access to all Americans' communications — faxes, phone calls, and their computer communications," Tice claimed. "It didn't matter whether you were in Kansas, in the middle of the country, and you never made foreign communications at all. They monitored all communications."

Tice further explained that "even for the NSA it's impossible to literally collect all communications. … What was done was sort of an ability to look at the metadata … and ferret that information to determine what communications would ultimately be collected."

My Thoughts On The FISA Bill

Greenwald summarizes:

The Democratic-led Congress this afternoon voted to put an end to the NSA spying scandal, as the Senate approved a bill — approved last week by the House — to immunize lawbreaking telecoms, terminate all pending lawsuits against them, and vest whole new warrantless eavesdropping powers in the President. The vote in favor of the new FISA bill was 69-28. Barack Obama joined every Senate Republican (and every House Republican other than one) by voting in favor of it, while his now-vanquished primary rival, Sen. Hillary Clinton, voted against it. John McCain wasn’t present for any of the votes, but shared Obama’s support for the bill. The bill will now be sent to an extremely happy George Bush, who already announced that he enthusiastically supports it, and he will sign it into law very shortly.

Prior to final approval, the Senate, in the morning, rejected three separate amendments which would have improved the bill but which, the White House threatened, would have prompted a veto. With those amendments defeated, the Senate then passed the same bill passed last week by the House, which means it is that bill, in unchanged form, that will be signed into law — just as the Bush administration demanded.

Unlike many on the left, I can’t get all exorcised about the bill’s provision regarding telecom immunity.  Granted, I don’t think the telecoms should have legal immunity for assisting in illegal wiretapping, especially retroactively.  But in the scheme of things, it is small potatoes.  I’m less concerned about punishment for past wrongs, and more concerned about, well, the future and the Constitution.

The new FISA bill is a HUGE stab at the Fourth Amendment.  It’s worse than the old one.  And least the old one required some sort of judicial approval (not that the Bush Administration borke the law by avoiding it).  This new one simply takes that protection away.

Sadder still is the fact that Obama voted for the new FISA bill.  Oh, Barry….

Bush’s Wiretapping: Now 0-For-3 With The Courts


A Bush-41-appointed Federal District Judge yesterday became the third judge — out of three who have ruled on the issue — to reject the Bush administration’s claim that Article II entitles the President to override or ignore the provisions of FISA. Yesterday’s decision by Judge Vaughn Walker of the Northern District of California also guts the central claims for telecom immunity and gives the lie to the excuses coming from Congress as to why the new FISA bill is some sort of important "concession." More than anything else, this decision is but the most recent demonstration that, with this new FISA bill, our political establishment is doing what it now habitually does: namely, ensuring that the political and corporate elite who break our laws on purpose are immune from consequences.

Judge Walker’s decision (.pdf) was issued in the case of Al-Haramain v. Bush. That lawsuit was brought against the Bush administration by an Oregon-based Muslim charity and two of its American lawyers, alleging that the Government violated FISA — i.e., broke the law — by eavesdropping on their telephone conversations without the warrants required by law. The warrantless eavesdropping occurred as part of Bush’s NSA spying program, which entailed spying on Americans’ international communications without warrants (the lawyers were in London when they spoke on the telephone to their client in Oregon). What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.

The Bush administration argued that the plaintiffs could not prove their case because, to do so, they would have to rely on documents and information that the President deemed to be "state secrets" (i.e., the Government’s eavesdropping activities) and which are, therefore, unusable in court. That is the argument the court rejected — holding instead that Congress, when it enacted FISA, established a procedure that allows even classified information to be considered by a court, and the President’s Article II powers cannot override the FISA statute. As the Court pointed out, Congress’ core purpose in enacting FISA in 1978 was to bar the President from exercising untrammeled, unchallenged power in the area of eavesdropping. Thus, presidential assertions of secrecy do not override the law.

He’s got a deeper analysis.  Read it.

UPDATE:  And yes, I am disappointed that Obama supported the new FISA bill which gives telecoms immunity.

McCain On Wiretapping

It’s hard to understand John McCain.  He keeps allying himself with the Bush agenda, despite the fact that Bush is polling as the most unliked president in modern history [UPDATE:  Apparently, I was more right than I thought.  USA Today reports that John McCain "won’t try to separate himself from a weakened President Bush or his unpopular handling of the war in Iraq to try to win the general election against Barack Obama, who has made opposition to the war a focus of the Democratic campaign."]

This is particularly stupid:

WASHINGTON — A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team.

Nice one, McCain.  You just lost the libertarian vote.  In fact, you lost lots of votes:

U.S. voters overwhelmingly oppose key elements of the Bush administration’s proposed wiretapping legislation, according to a new poll commissioned by the ACLU.

“Large majorities across almost every demographic subgroup of American voters,” wrote pollsters The Mellman Group in a memo to the American Civil Liberties Union, “oppose warrantless wiretaps, oppose blanket warrants, and oppose amnesty for telecommunication companies that may have broken the law.”

“As a result,” the memo says, “members (of Congress) who stand in defense of constitutional rights have little to fear from their constituents.”

Sixty-one percent of voters favor requiring the government to get a warrant from a court before wiretapping the conversations U.S. citizens have with people in other countries, with an outright majority of voters, 51 percent, “strongly” supporting the requirement, the poll of 1,000 likely 2008 general-election voters found.

Similar percentages opposed “blanket” or “basket” warrants, under which surveillance of categories of Americans would be allowed.

And by the way, look where McCain was on this issue of retroactive immunity for the telecoms:

In 2005, at least, McCain was in favor of letting the courts decide whether AT&T and other telecos violated the law.

Last fall, while preparing our Tech Voter’s Guide, we asked McCain point-blank whether he would support the bill (S.2248) providing retroactive immunity. On November 30, 2007 McCain sent us this response via e-mail:

Every effort in this struggle and other efforts must be done according to American principles and the rule of law. When companies provide private records of Americans to the government without proper legal subpoena, warrants, or other legal orders, their heart may be in the right place, but their actions undermine our respect for the law.

I am also a strong supporter of protecting the privacy of Americans. The issues raised by S.2248, and the events and actions by all parties that preceded it, reach to the core of our principles. They merit careful and deliberate consideration, fact-finding, and exploration of options. That process should be allowed to proceed before drawing conclusions that may prove to be premature.

If retroactive immunity passes, it should be done with explicit statements that this is not a blessing, there should be oversight hearings to understand what happened, and Congress should include provisions that ensure that Americans’ private records will not be dealt with like that again.

I hate to get cocky, but if this is how it’s going to be with McCain — flip-flopping to the least popular position — this is going to be a blowout election.

If The Framers Of The Constitution Read This….

…they would never stop throwing up.  I’m talking about this:

For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on U.S. soil didn’t apply to its efforts to protect against terrorism.

That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

”Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled ”Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”

That’s the United States Justice Department, saying that the Fourth Amendment does not apply to domestic military operations.  The Fourth Amendment, which bars the government from searching and seizing private property, clearly applies to domestic military operations, since it is typically the military who would and could do such a thing in the first place.  In fact, that’s what pissed the early Americans off and set us to war against their British overlords.

A Smoking Gun? Or A Lie?

Keith Olbermann (see video below) and Glenn Greenwald are on the case, and rightly so.

The controversy centers around statements made last week by Attorney General Mukasey.  In a speech to telecom leaders showing his support for telecom company immunity in the FISA law, Mukasey made a startling heretofore-unknown revelation.  From The NY Sun:

Officials "shouldn’t need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that’s the call that we may really want to know about. And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went."

At that point in his answer, Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. . . . We’ve got three thousand people who went to work that day and didn’t come home to show for that," he said, struggling to maintain his composure.

At the time of the attacks, Mr. Mukasey was the chief judge at the federal courthouse a few blocks away from the World Trade Center.

Now there are a few things to be pointed out here:

(1)  This is the first time anyone has even mentioned a pre-9/11 call from a safe house in Afghanistan to the United States, and connected that call with the actual events of 9/11.  Even the 9/11 Commission was not aware of this call, and did not mention it in their report.

(2)  Even under the old FISA law in place at the time, warrantless wiretaps of foreign phones were possible and legal.  Mukasey’s statement begs the question: why wasn’t such a tap conducted?  (Greenwald and others call the failure to do so "criminal negligence" on the part of the Bush Administration).

Basically it comes down to one of two things: (a) Mukasey is recounting knowledge of a phone call that didn’t actually occur (in order to gin up public support for the telecom immunity provision of the FISA bill), or, (b) as Greenwald writes, he "has just revealed the most damning fact yet about the Bush’s administration’s ability and failure to have prevented the attacks — facts that, until now, were apparently concealed from the 9/11 Commission and the public."

I suspect it is the former, but the questions do need to be asked.  Right now, nobody seems to be paying attention, and it’s gone totally under the radar.

The Olbermann segment:

FISA Fear-Mongering

White House Spokesman Tony Fratto, urging Congress to pass FISA legislation (which will, among other things, give telecom companies retroactive immunity for breaking privacy laws) told Congressional Quarterly yesterday:

“We’re exactly three weeks away from the date when terrorists can be free to make phone calls without fear of being surveilled by U.S. intelligence agencies”.

I have two points to make from this statement, quite separate and apart from the fact that the statement is untrue and not-so-subtly designed to gin up fear:

(1)  If we know they are terrorists, why don’t we just get them?  Why surveil them?  The answer is because we don’t know they are terrorists.  You see, even from the government’s perspective, that’s why one taps phones: to find out who the terrorists are.  And necessarily, you are going to being tapping a lot of phones from people who turn out not to be actual terrorists.  So watch for this Orwellian language game and remember: they won’t actually tap terrorists’ phones;  they’ll be tapping whoever’s phones (yours?) in order to find the terrorists.  Big difference.

(2)  If the U.S. intelligence agencies are that concerned about tapping so-called "terrorists", maybe it ought to pay its phone bills:

Telephone companies cut off FBI wiretaps used to eavesdrop on suspected criminals because of the bureau’s repeated failures to pay phone bills on time, according to a Justice Department audit released Thursday.


And at least once, a wiretap used in a Foreign Intelligence Surveillance Act investigation — the highly secretive and sensitive cases that allow eavesdropping on suspected terrorists or spies — "was halted due to untimely payment."

Recommended Reading

Slate’s Top Ten Bush Administration’s Dumbest Legal Arguments of the Year.  It’s a doozy.

Number one:

1. The United States does not torture.

First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture "abhorrent." But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.

Illegal Government Surveillance Was In The Offing BEFORE 9/11

9/11 changed everything?  Hardly…

A former Qwest Communications International executive, appealing a conviction for insider trading, has alleged that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal.

Former chief executive Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks, according to court documents unsealed in Denver this week.

Details about the alleged NSA program have been redacted from the documents, but Nacchio’s lawyer said last year that the NSA had approached the company about participating in a warrantless surveillance program to gather information about Americans’ phone records.

In the court filings disclosed this week, Nacchio suggests that Qwest’s refusal to take part in that program led the government to cancel a separate, lucrative contract with the NSA in retribution. He is using the allegation to try to show why his stock sale should not have been considered improper.

Nacchio was convicted for selling shares of Qwest stock in early 2001, just before financial problems caused the company’s share price to tumble. He has claimed in court papers that he had been optimistic that Qwest would overcome weak sales because of the expected top-secret contract with the government. Nacchio said he was forbidden to mention the specifics during the trial because of secrecy restrictions, but the judge ruled that the issue was irrelevant to the charges against him.

Nacchio’s account, which places the NSA proposal at a meeting on Feb. 27, 2001, suggests that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon. The Sept. 11 attacks have been cited by the government as the main impetus for its warrantless surveillance efforts.


George W. Bush, January 26, 2006 (in response to a question regarding the legality of the "Terrorist Surveillance Program"):

The terrorist surveillance program is necessary to protect America from attack.

I asked the very questions you asked when we first got going. Let me tell you exactly how this happened.

Right after September the 11th, I said to the people, "What can we do? Can we do more?" — the people being the operators, a guy like Mike Hayden — "Can we do more to protect the people? . . . . And so he came forward with this program. It wasn’t designed in the White House. It was designed where you expect it to be designed, in the NSA.

Secondly, I said, "Before we do anything, I want to make sure it’s legal."

And so we had our lawyers look at it. And as part of the debate, the discussion with the American people as to the legality of the program, there’s no doubt in my mind it is legal.

Jack L. Goldsmith, former head of the Office of Legal Counsel in Bush’s own Justice Department, in testimony before the Senate Judiciary Committee yesterday:

I could not find a legal basis for some aspects of the [terrorist surveillance] program. . . . It was the biggest legal mess I had ever encountered.

Conservative With A Conscience

Former Assistant Attorney General Jack Goldsmith was a Bush Administration insider, with a stack of conservative credentials.  As Glenn Greenwald notes, Goldsmith is “no hero.” He “is a hard-core right-wing ideologue who continues to support many of the administration’s most radical positions, including his view that Common Article 3 of the Geneva Conventions does not apply to terrorist suspects (the position rejected by Hamdan).”

But with the publication of his new book, we’re able to get some new insights into what Goldsmith saw, and it appears that even this staunch conxservative was disapproving of the White House’s tactics.

Exhibit A is FISA.  Like others in the Bush White House, Goldsmith was concerned that the FISA law would prevent wiretaps on international calls involving terrorists….

But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls [David] Addington [Cheney’s legal counsel] telling him in February 2004.

Their debate over the Geneva Conventions was even more striking.

When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other details concerning him in this article.)

Goldsmith then explained that he agreed with the president’s determination that detainees from Al Qaeda and the Taliban weren’t protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded.

Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. “If you rule that way,” Addington exclaimed in disgust, Goldsmith recalls, “the blood of the hundred thousand people who die in the next attack will be on your hands.”

So even in the White House, the rule of law got shoved in the backseat, and fear of the terrorists took control.

Exhibit B.  The infamous showdown in Ashcroft’s hospital room:

As he recalled it to me, Goldsmith received a call in the evening from his deputy, Philbin, telling him to go to the George Washington University Hospital immediately, since Gonzales and Card were on the way there. Goldsmith raced to the hospital, double-parked outside and walked into a dark room. Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body.

Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”

But I love this part….

After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”

Exhibit C — the White House’s approach to law-breaking:

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes. Goldsmith’s first experienced this extraordinary concealment, or “strict compartmentalization,” in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.’s inspector general to see a copy of the Office of Legal Counsel’s legal analysis supporting the secret surveillance program. “Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department’s legal analysis of what N.S.A. was doing,” Goldsmith writes.

It’s not surprising that Goldsmith was unable to bear the Bush Administration longer than he did.

More here:

Why did Dick Cheney’s lawyer David Addington get so upset over rescinding this or that Office of Legal Counsel memorandum? The purpose of the OLC’s review process is to collect legal guidance about courses of prospective policies an administration might want to pursue. Under the Bush administration, however, OLC review became a waiver of immunity for breaking the law. From Jeff Rosen’s profile of Jack Goldsmith:

[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, he writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws.

Recall that after the news of the August 1, 2002 OLC torture memo broke, then-AG John Ashcroft testified to the Senate that “There is no presidential order immunizing torture.” Maybe not from the president. But according to Goldsmith’s account, immunization from prosecution is the elephant in the room when administration lawyers discussed in 2002 what CIA interrogators could lawfully do to al-Qaeda and Taliban detainees.

DOJ Investigating Gonzalez For Lying To Congress


The Justice Department’s inspector general indicated yesterday that he is investigating whether departing Attorney General Alberto R. Gonzales gave false or misleading testimony to Congress, including whether he lied under oath about warrantless surveillance and the firings of nine U.S. attorneys.

I guess it’ll be easier for the DOJ to investigate the DOJ, now that Gonzalez no longer runs the DOJ.

The DOJ is also widening its internal probe into the U.S. Attorney firing scandal.

Somebody’s Lying

Alberto Gonzales (under oath), July 24:

"When we got there, I would just say that Mr. Ashcroft did most of the talking. We were there maybe five minutes, five or six minutes. Mr. Ashcroft talked about the legal issues in a lucid form."

Today’s Post:

Then-Attorney General John D. Ashcroft was "feeble," "barely articulate" and "stressed" moments after a hospital room confrontation in March 2004 with Alberto R. Gonzales, who wanted Ashcroft to approve a warrantless wiretapping program over Justice Department objections, according to notes from FBI Director Robert S. Mueller III that were released yesterday.

Gonzales lied, because Mueller would have no reason to lie to himself in his own notes.

Supersecret Surveillance

So secret, a court cannot even review it.

The Ninth Circuit is looking at a case revolving around supersecret surveillance done with out court oversight of any constitutional safeguards.  The Washington Post covers it, and I particularly lliked this part:

The bottom line here is the government declares something is a state secret, that’s the end of it. No cases. . . . The king can do no wrong," said Judge Harry Pregerson, one of three judges from the U.S. Court of Appeals for the 9th Circuit who grilled administration lawyers at length over whether a pair of lawsuits against the government should go forward.

Deputy Solicitor General Gregory G. Garre was forced to mount a public argument that almost nothing about the substance of the government’s conduct could be talked about in court because doing so might expose either the methods used in gathering intelligence or gaps in those methods.

"This seems to put us in the ‘trust us’ category," Judge M. Margaret McKeown said about the government’s assertions that its surveillance activities did not violate the law. " ‘We don’t do it. Trust us. And don’t ask us about it.’ "

At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that "other avenues" are available. "What is that? Impeachment?" Pregerson shot back.

Clearly, the Ninth Circuit hates America.

UPDATE:  Wired liveblogged the surreal hearing yesterday.

aka “The Fox/Henhouse Law”

Today’s Washington Post:

The Bush administration plans to leave oversight of its expanded foreign eavesdropping program to the same government officials who supervise the surveillance activities and to the intelligence personnel who carry them out, senior government officials said yesterday.

The law, which permits intercepting Americans’ calls and e-mails without a warrant if the communications involve overseas transmission, gives Director of National Intelligence Mike McConnell and Attorney General Alberto R. Gonzales responsibility for creating the broad procedures determining whose telephone calls and e-mails are collected. It also gives McConnell and Gonzales the role of assessing compliance with those procedures.

Carpetbagger quips:

It’s a bit like writing the test, and then getting to grade it yourself.


New Rules

Firedoglake sums up the new wiretapping law that the Democratic-controlled Congress just approved (and Bush signed):

Under just some of the revisions, NSA can spy on any call you make to or receive from another country (or a place the AG reasonable believes is to/from another country), without a warrant, as long as Alberto Gonzales and the Director NSA claim they reasonably believe it involves “foreign intelligence.” There doesn’t have to be any connection with a foreign power with whom we are war or terrorist group. Just you and your foreign friends is enough. The FISA court may examine the overall process in some undefined, rubberstamp way, but it cannot consider the reasonableness of your individual case. Any pretense that the 4th Amendment applies is gone.

James Risen writes more details in the New York Times today:

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

….For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.’s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

"It’s foreign, that’s the point," Mr. Fratto said. "What you want to make sure is that you are getting the foreign target."

….The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.

This is a horrible horrible law and a huge blow to the civil liberties of every American.  As Drum notes:

So that’s that. The government is now legally allowed to monitor all your calls overseas with only the most minimal oversight. But don’t worry. I’m sure they’ll never misuse this power. They never have before, have they?

Publius is concerned that there was no public debate about whether the government should be able to freely listen in on all our foreign communications.

It’s pretty clear that the administration wants the authority to conduct electronic surveillance basically anywhere and anytime for anti-terrorism purposes. Perhaps I’m naïve, but I think they’re motivated by good intentions. R egardless though, if you want this type of power, come out and say it. Let’s have a debate on that specific question.

Maybe privacy is quaint in the age of digitally-enabled terror. Maybe we need to rely on the political process (i.e., elections) for protection. I disagree with both views, but we should at least have that debate. Say what you will about John Yoo, he at least doesn’t pull punches. He wants a vast expansion of executive power and doesn’t try to dress it up in different clothes.

But "different clothes" is exactly what we got with the FISA debate. We got the White House spokesman pretending to affirm strong privacy and civil rights protections. We got a bunch of meaningless oversight procedures that do nothing but give the appearance of oversight. That’s not how democracy is supposed to work. More to the point, democracy can’t work when the terms of important debates are cloaked in dishonesty and Kabuki.

Professor Lederman has a nice wrap-up of posts and links.

Gonzales: Another Bit Of Perjury Yesterday

This centers around a meeting held on March 10, 2004 with members of the Bush Administration and the "Gang of 8", members of Congress who head up intelligence committees.  The topic discussed was —  well, that’s the issue. Here’s what Alberto Gonzales said under oath on Tuesday:

At a heated Senate Judiciary Committee hearing Tuesday, Gonzales repeatedly testified that the issue at hand was not about the terrorist surveillance program….Instead, Gonzales said, the emergency meetings on March 10, 2004, focused on an intelligence program that he would not describe.

Gonzales, who was then serving as counsel to Bush, testified that the White House Situation Room briefing sought to inform congressional leaders about the pending expiration of the unidentified program and Justice Department objections to renew it.

…."Not the TSP?" responded Sen. Charles E. Schumer, D-N.Y. "Come on. If you say it’s about other, that implies not. Now say it or not."

"It was not," Gonzales answered. "It was about other intelligence activities."

Other intelligence activities? Not the TSP? Despite the recollections of other participants that the meeting on that day was precisely about the TSP?

Well, guess what? It turns out the dates of all the TSP meetings were the subject of a memo from John Negroponte last year. So it’s all down on paper. And you know what date shows up? March 10, 2004.

Short version: Gonzales lied (again) before Congress.

Olbermann does a good job of breaking it down.  As the reporter says, "this is a really, really big deal and a big problem for Gonzales. … The legal expert I talked to tonight said this is a clear case of perjury."

CNN is on this, too.  Well, everybody is, I guess.  When the nation’s top lawyer commits perjury, you know the nation is deep in the crapper.


Hardin-Smith offers advice:

Here’s a tip for Bush Administration cronies:  if you are going to lie under oath, on the record, with a video camera in your face, don’t lie about something for which there is documentary evidence directly contradicting your statements.  It makes you look unprepared, panicked and sloppy.  Even petty thieves get their stories straighter than this in magistrate courts across the nation.  Juries still find them guilty, and see right through their lying skeezeball stories, but at least they have enough pride in their thievery to put a little work into covering their own asses.  It’s especially pathetic when you are given a number of the questions in advance.

Flashback a few months ago to an interesting conversation between Bill Moyers and Jon Stewart regarding Gonzales:

So prescient.

Glenn Greenwald on Gonzales: “That is what Alberto Gonzales does. He lies to protect the President. And the President will never fire him. Gonzales isn’t keeping his job despite his willingness to lie to Congress, but because of it. Congress has no choice but to act meaningfully — impeachment of Gonzales and a Special Prosecutor — and if they do not, then, I suppose, one could say that Congress deserves to be lied to.”

UPDATE:  Oh, man — as the day gets on, it gets even worse for Gonzales:

FBI Director Robert S. Mueller said Thursday the government’s terrorist surveillance program was the topic of a 2004 hospital room dispute between top Bush administration officials, contradicting Attorney General Alberto Gonzales’ sworn Senate testimony.

Mueller’s statement came hours after Senate Democrats called for a perjury investigation against Gonzales and subpoenaed top presidential aide Karl Rove in a deepening political and legal clash with the Bush administration.

Gonzales Lied — Blatently Lied — Under Oath, To Congress

Lying to Congress is a crime:

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

Two Justice Department officials say that Gonzo was kept very well informed of FBI civil liberties violations:

The two officials spoke in a telephone call arranged by press officials at the Justice Department after The Washington Post disclosed yesterday that the FBI sent reports to Gonzales of legal and procedural violations shortly before he told senators in April 2005: "There has not been one verified case of civil liberties abuse" after 2001.

"I have discussed and informed attorneys general, including this one, about mistakes the FBI has made or problems or violations or compliance incidents, however you want to refer to them," said James A. Baker, a career official who heads the Justice Department’s Office of Intelligence Policy and Review.

"I’ve discussed a number of times oversight concerns and, underlying those oversight concerns, the potential for violations. And I’m sure we’ve discussed violations that have occurred in the past," said Assistant Attorney General for National Security Kenneth L. Wainstein.

Gonzales’ office has a spin to rationalize all of this.

[Assistant Attorney General for National Security Kenneth L. Wainstein] defended the 2005 statement by Gonzales that he was unaware of civil liberties abuses related to the government’s counterterrorism effort. Wainstein cited what he described as a dictionary definition of “abuse” in defending Gonzales’s remark. […]

Wainstein said Gonzales was saying only that there had been no intentional acts of misconduct, rather than the sorts of mistakes the FBI was self-disclosing. “That is why I cited the definition of ‘abuse,’ which in Webster’s . . . implies some sort of intentional conduct. And I think that is sort of the common understanding of the word ‘abuse,’ ” Wainstein said.

Got that? Those weren’t abuses; they were just instances in which FBI agents illegally obtained personal information about Americans that they were not entitled to have.

Oy, these people!

The Creepy Hospital Visit

Very bizarre testimony yesterday from James Comey, the deputy attorney general when Ashcroft was the AG.

The Washington Post calls it ""an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source."

In March 2004, a paper needed to be signed by AG Ashcroft to continue the controversial warrentless eavesdropping program.  By that time, however, the Office of the Solicitor General had concluded that the program did not comply with the law and the Constitution.

The job of signing that paper fell to Comey, who was acting attorney general, because Ashcroft was in intensive care in the hospital.  Comey refused.  What happened next, according to the transcript, is bizarre:

  • Comey learns–via Ashcroft’s wife–that Gonzales and Card are on their way to the hospital. He immediately orders his driver to turn around and head to the hospital with sirens blazing and he places a call to the head of the FBI, who promises to meet him at the scene.
  • Comey gets out of the car and literally runs up the stairs to Ashcroft’s room.
  • Mueller, the head of the FBI, asks Comey to hand his phone to the agents outside Ashcroft’s door. He orders them not to allow Comey to be removed from the room under any circumstances.
  • Comey tries to explain the situation to a clearly groggy and disoriented Ashcroft.
  • Minutes later, Gonzales and Card arrive. They enter the room with papers in hand, without acknowledging Comey’s presence.
  • After hearing Gonzales’ pitch, Ashcroft somehow manages to find the strength and temporary focus to sit up and coherently explain to Gonzales why the program is illegal. He then says that it doesn’t matter anyway because he’s not the Attorney General. He points at Comey and says "he’s the Attorney General."
  • Card and Gonzales storm out and soon thereafter Comey gets an angry call from Card demanding that he come to the White House. Comey tells him: "After what I just witnessed, I will not meet with you without a witness, and I intend that witness to be the solicitor general of the United States."
  • Card replies "What conduct? We were merely there to wish him well."
  • Think about that.  The President’s Chief of Staff and top legal advisor are rushing to jawbone the sedated attorney general who’s recovering from surgery into signing an important document allowing warrentless eavesdropping.

    WaPo again:

    Mr. Comey’s vivid depiction, worthy of a Hollywood script, showed the lengths to which the administration and the man who is now attorney general were willing to go to pursue the surveillance program. First, they tried to coerce a man in intensive care — a man so sick he had transferred the reins of power to Mr. Comey — to grant them legal approval. Having failed, they were willing to defy the conclusions of the nation’s chief law enforcement officer and pursue the surveillance without Justice’s authorization.

    The dramatic details should not obscure the bottom line: the administration’s alarming willingness, championed by, among others, Vice President Cheney and his counsel, David Addington, to ignore its own lawyers. Remember, this was a Justice Department that had embraced an expansive view of the president’s inherent constitutional powers, allowing the administration to dispense with following the Foreign Intelligence Surveillance Act. Justice’s conclusions are supposed to be the final word in the executive branch about what is lawful or not, and the administration has emphasized since the warrantless wiretapping story broke that it was being done under the department’s supervision.

    Now, it emerges, they were willing to override Justice if need be. That Mr. Gonzales is now in charge of the department he tried to steamroll may be most disturbing of all.

    Of course, the ending we all know: Ashcroft resigned, Gonzales became AG, and the program went ahead full steam.  (As The New York Times explains, Comey eventually signed the authorization, after having a frank 15 minute closed-door discussion with President Bush, where certain adjustments to the program were made).

    One would hope that national policy would not be conducted in this way, where a small cabal of people could exercise such enormous influence over the state of the country.  Strange and shameful.

    FBI Violated Patriot Act

    But for a scandal-ridden administration and a scandal-weary public, the exclusive report by ABC news would probably be considered a "bombshell".  Sadly, it’s probably just going to be thrown on the pile as yet another abuse of laws and the Constitution by the Bush Administration — a cabal who never feels beholden to follow the law and Constitution in the first place:

    The FBI repeatedly failed to follow the strict guidelines of the Patriot Act when its agents took advantage of a new provision allowing the FBI to obtain phone and financial records without a court order, according to a report to be made public Friday by the Justice Department’s Inspector General.

    The report, in classified and unclassified versions, remains closely held, but Washington officials who have seen it tell ABC News it documents "numerous lapses" and describe it as "scathing" and "not a pretty picture for the FBI."

    FBI Director Robert Mueller is scheduled to brief Congress on the report at noon.

    The officials say the inspector general found the FBI underreported by at least 20 percent the use of the controversial provision, known as National Security Letters, NSLs, in required disclosures to Congress.

    The Patriot Act gave FBI agents the ability to demand telephone, bank, credit card and library records by issuing an administrative letter, bypassing the need to seek a warrant from a federal judge.

    Senator Feingold has issued a statement:

    This report proves that "trust us" doesn’t cut it when it comes to the government’s power to obtain Americans’ sensitive business records without a court order and without any suspicion that they are tied to terrorism or espionage. I fought hard to prevent abuses of this power when the Senate debated reauthorizing the Patriot Act last year. I will work with Senator Leahy and Senator Rockefeller to make sure the Judiciary and Intelligence Committees conduct full and prompt investigations, and I will press for quick Senate action on sensible reforms to help prevent future abuses of National Security Letters.

    Glenn Greenwald points out something important:

    That the FBI is abusing its NSL power is entirely unsurprising, …but the real story here — and it is quite significant — has not even been mentioned by any of these news reports. …[T]he NSL reporting requirements imposed by Congress were precisely the provisions which President Bush expressly proclaimed he could ignore when he issued a "signing statement" as part of the enactment of the Patriot Act’s renewal into law. Put another way, the law which the FBI has now been found to be violating is the very law which George Bush publicly declared he has the power to ignore.


    When a country is ruled by an individual who repeatedly and openly arrogates unto himself the power to violate the law, and specifically proclaims that he is under no obligation to account to Congress or anyone else concerning the exercise of radical new surveillance powers such as NSLs, it should come as absolutely no surprise that agencies under his control freely break the law.

    Exactly.  When the President himself specifically declares that he can ignore a particualr law, is it any wonder that the FBI ignored the law?

    UPDATE:  The audit report (warning: very very large PDF) is now available.  CNN provides these bulletpoint details:

    • Poor bookkeeping, records management to blame, one official says
    • FBI reported checking on phone, e-mail records of 3,501 people over two years
    • FBI said it made 9,254 record requests, but audit shows figure is 20 percent more
    • Unlike subpoenas, targets of national security letters not notified

    NSA Wiretapping Held Unconstitutional

    You wouldn’t know it from the media websites, but the "Breaking News" isn’t about Jon Benet Ramsey’s killer.

    It’s that a federal judge has held that the NSA wiretapping without warrent scheme is unconstitutional, and has enjoined the government from using it.

    Glenn Greenwald analyzes the court opinion:

    I am almost done with the opinion. Here is my analysis of the bulk of it. It is a very strong opinion in some places, weak in others, but is rather straightforward — and sometimes eloquent — in its almost always unequivocal rejection of the Bush administration’s arguments:

    First, the court rejected the administration’s assertion of the "state secrets" doctrine with regard to the NSA eavesdropping program on the ground that the program has already been publicly confirmed by the administration), and that all of the known facts necessary to rule on the plaintiff’s claims — namely, that the administration is eavesdropping without warrants — are already publicly known. The court adopted upon the reasoning of Judge Walker who, as noted above, rejected the administration’s invocation of this doctrine on the same ground.

    (The court here did, however, grant the administration’s motion to dismiss the part of the case challenging the constiutionality of the data-mining program, on the ground that it has not been confirmed).

    Second, the court ruled that the plaintiffs have standing to challenging the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and whose clients have ceased communicating with them openly as a result.

    Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration’s warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration’s conduct not remain beyond the reach of judicial scrutiny.

    Third, the court ruled — rather emphatically and without much doubt — that warrantless eavesdropping violates the Fourth Amendment’s prohibition on unreasonable searches and seizures (generally speaking, serches undertaken in the absence of a probable cause warrant). Citing the 1972 Supreme Court decision in the Keith case (more on that here) — which held that warrantless eavesdropping is unconstitutional in the context of investigating domestic terrorist terrorist groups — the court held (admittedly without much reasoning or even explicit arguments) that the same reasoning applies to make warrantless eavesdropping unconstitutional in the context of investigating international terrorist groups.

    Fourth, the court ruled independently — again, without all that much reasoning — that the NSA program violates the plaintiffs’ First Amendment rights, apparently because it chills (deters) their free expression. Since they know the Government can eavesdrop without warrants on conversations of those groups and individuals deemed "subversive," the program abridges free expression in a way that the First Amendment prohibits.

    Fifth, the court relied upon Youngstown to hold that the Executive’s powers in the national security area do not entitle him to act beyond the law or the constitution, and that courts are empowered under our constitution to enjoin and restrict the exercise even of national security powers when the President’s conduct violates the law or the Constitution.

    Bush PERSONALLY Blocked DOJ Investigation

    Remember earlier this year, when the Justice Department’s Office of Professional Responsibility (OPR) announced that it could not pursue an investigation into the role of DOJ lawyers in crafting the NSA warrantless wiretapping program?  The OPR said it was denied security clearance to conduct the investigation.

    Previously, Attorney General Alberto Gonzales would not explain why the security clearances had been denied, saying he did not want to “get into internal discussions.”

    But in testimony before the Senate Judiciary Committee this morning, Gonzales said President Bush personally blocked Justice Department lawyers from pursuing an investigation of the warrantless eavesdropping program.

    In other words, Bush blocked an investigation into his own administration’s possible wrongdoings. 1972, anyone?

    Dear Mr President…

    From Slate’s "Low Concept" feature, an excerpt of Robert Raben‘s recent missive to the chief executive:

    Dear Mr. President,

    I think it’s ridiculous that some of my friends on the left, and some in your party as well, are complaining about the fact that you and some of your colleagues in the executive branch have been monitoring and maintaining personal and professional records of ordinary Americans as part of your important effort to keep us safe from those who would harm us. I totally agree with you that in order to be free, we have to be safe, and I think your instincts on this point are right on.

    Like you, I was horrified when the New York Times let on that you are tapping into international records of financial transactions, including records of major domestic banking institutions. I don’t think we should be giving terrorists a road map of how we monitor them; that just doesn’t make sense.

    But Mr. President, here’s the thing. In return for my unconditional support of all your secret surveillance programs, I was wondering: Could you do me one small favor? For a closing deadline I’m trying to meet for work, I need my April and May statements from my Sun Trust account. I was on hold with Sun Trust forever this morning, and then they finally said they would make me a copy of my own records, but at, like, five dollars a page. Also, it’s going to take them about five to seven business days to get them to me. Look, I know it’s my fault for leaving this till the last minute. But could you just e-mail me those two months? That would be so great. Should I just ask the CIA for them? Can you give me the name of whoever it is that is tracking my accounts and I can follow up? Apparently I need both the front and back of each page; that’s a big deal I guess.

    Read the whole thing.

    Why Datamining Doesn’t Work

    Forget the civil rights implications — data mining simply doesn’t work.  Bruce Schneier, an expert on data systems and privacy, explains why:

    Collecting information about every American’s phone calls is an example of data mining. The basic idea is to collect as much information as possible on everyone, sift through it with massive computers, and uncover terrorist plots. It’s a compelling idea, and convinces many. But it’s wrong. We’re not going to find terrorist plots through systems like this, and we’re going to waste valuable resources chasing down false alarms. To understand why, we have to look at the economics of the system.

    Data mining works best when you’re searching for a well-defined profile, a reasonable number of attacks per year, and a low cost of false alarms. Credit-card fraud is one of data mining’s success stories: All credit-card companies mine their transaction databases for data for spending patterns that indicate a stolen card.

    Many credit-card thieves share a pattern — purchase expensive luxury goods, purchase things that can be easily fenced, etc. — and data mining systems can minimize the losses in many cases by shutting down the card. In addition, the cost of false alarms is only a phone call to the cardholder asking him to verify a couple of purchases. The cardholders don’t even resent these phone calls — as long as they’re infrequent — so the cost is just a few minutes of operator time.

    Terrorist plots are different; there is no well-defined profile and attacks are very rare. This means that data-mining systems won’t uncover any terrorist plots until they are very accurate, and that even very accurate systems will be so flooded with false alarms that they will be useless.

    Let’s look at some numbers. We’ll be optimistic — we’ll assume the system has a one in 100 false-positive rate (99 percent accurate), and a one in 1,000 false-negative rate (99.9 percent accurate). Assume 1 trillion possible indicators to sift through: that’s about 10 events — e-mails, phone calls, purchases, Web destinations, whatever — per person in the United States per day. Also assume that 10 of them actually indicate terrorists plotting.

    This unrealistically accurate system will generate 1 billion false alarms for every real terrorist plot it uncovers. Every day, the police will have to investigate 27 million potential plots in order to find the one real terrorist plot per month. Clearly ridiculous.

    This isn’t anything new. In statistics, it’s called the "base rate fallacy," and it applies in other domains as well. And this is exactly the sort of thing we saw with the National Security Agency (NSA) eavesdropping program: The New York Times reported that the computers spat out thousands of tips per month. Every one of them turned out to be a false alarm, at enormous cost in money and civil liberties.

    Finding terrorism plots is not a problem that lends itself to data mining. It’s a needle-in-a-haystack problem, and throwing more hay on the pile doesn’t make that problem any easier. We’d be far better off putting people in charge of investigating potential plots and letting them direct the computers, instead of putting the computers in charge and letting them decide who should be investigated.

    By allowing the NSA to eavesdrop on us all, we’re not trading privacy for security. We’re giving up privacy without getting any security in return.

    Room 641A

    A whistleblower talks to Wired about the secret room at AT&T where call data is forward to the NSA.

    Meanwhile, Seymour Hersh has a pretty sensible guess as to how the whole NSA wiretapping thing works:

    The N.S.A. also programmed computers to map the connections between telephone numbers in the United States and suspect numbers abroad, sometimes focussing on a geographic area, rather than on a specific person — for example, a region of Pakistan. Such calls often triggered a process, known as “chaining,” in which subsequent calls to and from the American number were monitored and linked.

    The way it worked, one high-level Bush Administration intelligence official told me, was for the agency “to take the first number out to two, three, or more levels of separation, and see if one of them comes back” — if, say, someone down the chain was also calling the original, suspect number. As the chain grew longer, more and more Americans inevitably were drawn in.

    ….The point, obviously, was to identify terrorists. “After you hit something, you have to figure out what to do with it,” the Administration intelligence official told me. The next step, theoretically, could have been to get a suspect’s name and go to the FISA court for a warrant to listen in….Instead, the N.S.A. began, in some cases, to eavesdrop on callers (often using computers to listen for key words) or to investigate them using traditional police methods. A government consultant told me that tens of thousands of Americans had had their calls monitored in one way or the other.



    Back in 1999, the NSA developed a phone/email "monitoring" program (called ThinThread) that was (a) more efficient than the (illegal) wiretapping program they have now; and (b) had technology that "provided a simple solution to privacy concerns".  This involved encrypting the phone numbers before it got to analysts.  Then, if something got red-flagged, the intelligence officials would get a (judicially-approved) warrant to decrypt the phone numbers, and proceed from there.

    It was scrapped due to "bureaucratic infighting".  After 9/11, it was revived in a watered-down version — without the privacy concern prong.  The Baltimore Sun has the scoop:

    A number of independent studies, including a classified 2004 report from the Pentagon’s inspector-general, in addition to the successful pilot tests, found that the program provided "superior processing, filtering and protection of U.S. citizens, and discovery of important and previously unknown targets," said an intelligence official familiar with the program who described the reports to The Sun. The Pentagon report concluded that ThinThread’s ability to sort through data in 2001 was far superior to that of another NSA system in place in 2004, and that the program should be launched and enhanced.

    Kevin Drum sums it up nicely:

    The story here is that (a) ThinThread was awesome but was killed in favor of Trailblazer, (b) Trailblazer was eventually killed too, (c) a similar program was put in place after 9/11, but without the privacy safeguards, and (d) the new program doesn’t work worth a damn.

    Update on NSA Phone Record Collection

    Strange.  Both BellSouth and Verizon are denying they gave telephone records to the NSA, as USA Today reported last week.

    Is it word-parsing or lying on the part of the telecoms, or did USA Today simply get the story wrong?  And why has AT&T remained silent?  And if the story is incorrect, why did it take Bellsouth and Verizon so long to deny it (suffering blows to their stock)?

    I suspect, as do others, that the denials are merely word-parsing: the telecomes didn’t actually "provide data", but they allowed the NSA to have access to internal switches from which the data could be obtained.

    Qwest Sees Boom

    Last week it was revealed that Qwest Communications was one of the few major telecom companies that didn’t voluntarily provide customers records to the NSA, insisting instead that the NSA get a court order or at least an opinion from the Attorney General first.

    The blogospheric fallout was predictable.  Liberals and civil libertarians applauded Qwest.  On the right, pundits accused Qwest of cooperating with terrorists, or at least facilitating them.

    One good metric of how America feels about the NSA phone record-mining is whether people have since dropped their accounts from terrorist-loving Qwest, or changed their phone accounts to freedom-loving Qwest.

    It looks like the latter:

    “Oh yeah, it’s been busy around here,” said Becky. “We’ve been getting almost twice the normal amount and a lot of people switching their service.” According to Sandra, another representative, “A lot of people have switched over from their providers because they’re upset about AT&T and Verizon handing over records to the government.” None of the six representatives we interviewed could cite the opposite circumstance, a Qwest customer who dropped their service over the company’s stance.

    The Week Ahead

    So much to write about, so little time.

    I don’t have much to say about Bush’s approval rating breaking the 30% mark (last week’s Harris poll puts him at 29%).  And the fallout over the NSA datamining of telecom records continues.

    But I’m looking forward to this week.  There are two rumors which are getting the buzz:

    (1)  Rove indicted in L’Affaire Plame.  (Talkleft has more).

    (2)  Former NSA staffer and whistleblower Russell Tice will reveal to the Senate even more shenanigans going on with the NSA.  He is quoted as saying that what the public knows now (regarding wiretapping and records collections) is only "the tip of the iceberg".  There was, according to Tice, llegal and unconstitutional surveillance of U.S. citizens while he was with the NSA, and this was all conducted with the knowledge of General Hayden, Bush’s pick to head the CIA.

    As they say, stay tuned.

    Preliminary Legal Analysis On The New NSA Database Revelation

    For the right: Orin Kerr

    For the left: Glenn Greenwald

    Both are polite and coherent, even for non-lawyers.  Neither takes a firm stance, but together, they make a nice starting primer on the issue.  I’m not sure Greenwald one-ups Kerr on the legal analysis, but he ends with an indisputable truth about the lay of the legal landscape:

    Ultimately, however, the always-overarching issue is that it doesn’t really much matter how these fascinating and academic statutory debates are resolved because the administration has claimed repeatedly that it has the right to violate statutes like this if its doing so is in pursuit of the national defense. As Professor Kerr put it, with great understatement:

    Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don’t see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration’s legal argument in support of the new law will rely on it.

    The Leader ordered this collection of sweeping data on the communications activities of Americans because The Threat of Terrorism required it. Therefore, even if multiple statutes make doing that a criminal offense, The President has the power to do it anyway. That, of course, is the Administration’s view of the world. And that is the epic constitutional crisis we have in our country.

    At this preliminary stage, I’m not entirely convinced that the NSA broke any laws here.  It’s not like they tapped phones, or subpoenaed phone records without probable cause.  The telecommunication companies (except Qwest) gave your phone records to the NSA.  It seems to me that the voluntary provision of those records is against the law.

    RELATED:  Lots of backlash against the telecoms who don’t care about your privacy.  Atrios recommends that you switch to Qwest.

    NSA Wiretapping Updates

    (1) So the Justice Department has been doing its job by looking into the (il)legalities of the NSA wiretapping.  In fact, the DOJ’s Office of Professional Responsibility has specifically been looking into it.

    So far, so good.  Until….

    Security issue kills domestic spying inquiry

    NSA won’t grant Justice Department lawyers required security clearance

    The government has abruptly ended an inquiry into the warrantless eavesdropping program because the National Security Agency refused to grant Justice Department lawyers the necessary security clearance to probe the matter.


    (2)  Meanwhile, USA Today gives a stunning report on how the NSA has been attempting to get cellular phone companies to cooperate with them. 

    The first revelation — and this is a biggie– is that the NSA is maintaining a comprehensive data base of every call made by every American – both internationally and domestically – whether they have anything to do with terrorism or not, obviously all of this without warrants or oversight of any kind.

    Remember how Bush and Bush-bots were constitently saying that the NSA programs always involved phone calls where one person on the line who was not in the United States?  Throw that out the window.  This data-mining involves domestic calls — your calls.

    The rules for collecting data about phone calls are different from the rules about listening in on the content of phone calls, so it’s a little difficult to assess (without research) the legality of this.  That doesn’t stop a whole host of Bush apologists (and non-lawyers) from automatically arguing (in knee-jerk fashion) that it is legal.

    Which gets us to the the second revelation, buried low in the article, about how Qwest Communications is not cooperating with NSA.  Qwest is simply refusing to turn over its customer database and other information about its customers. In fact, of all the major telecommunications companies, Qwest is the "lone holdout".

    Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest’s patriotic side: In one meeting, an NSA representative suggested that Qwest’s refusal to contribute to the database could compromise national security, one person recalled.

    In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

    Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

    The NSA’s explanation did little to satisfy Qwest’s lawyers. "They told (Qwest) they didn’t want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.

    Odd, isn’t it?  The Bush Administration keeps insisting that the NSA wiretapping program is legal, yet whenever they are asked to bring it in front of a bunch of judges, they avoid it.  In fact, the NSA is reluctant to run it by the Justice Department.

    Clearly, the Qwest lawyers looked into this, and were either uncomfortable or unsure with the legalities of this, which is why they recommended a court ruling.  Interesting.  One wonders how the Bush supporters on the right side of the blogosphere, non-lawyers like Michelle Malkin, can be so sure so quickly that the progam is okay.

    Professor Kerr has some preliminary thoughts on the legality of this.

    UPDATE:  Bush says he’s not breaking the law.  Yeah, right.  "Move along folks.  Nothing to see here."