Intelligence Revelations

Over the last week we've learned a few interesting things about intelligence programs being run by the NSA and the CIA, and the participation of Bush administration officials in those programs. Last Wednesday it was revealed that the CIA concealed a top secret program from Congress for eight years. Congress became aware of the program only after they were of informed of it by current CIA director Leon Panetta, who himsefl learned of the program only last month. Over the weekend we learned that the CIA withheld information from Congress on the direct orders of Vice President Cheney, according to testimony before Congress by Leon Panetta. Panetta also indicated that the program had been canceled. And yesterday we learned that the program was an effort to assassinate Al Qaeda terrorists wherever they might be found, including in friendly countries. Now officials say that no assassination was ever carried out and due to legal and logistical problems, the program never left the planning stages. Of course, that leads one to wonder just why there was an effort to keep the program away from Congress completely, especially given that we have been assassinating Al Qaeda terrorists in Pakistan (a "friendly" country) for years now. If anything, one would think that Congress and the public in general would approve of targeted killings, which have the benefit of at least not killing dozens of civilians along with the terrorist you're trying to get. I'm almost willing to bet there's still more about the program we don't know yet, but we'll see.

Also, last Friday saw the release of a report compiled by the various agencies Inspectors General regarding the warrantless wiretapping program whose existence was revealed by the New York Times in late 2005. The report doesn't offer an opinion on the program's legality, but it does discuss the program's effectiveness, finding that most leads generated by the program were dead ends and that this was due in part to the extensive secrecy that surrounded the program.

The report also touches on the other intelligence-gathering program maintained by the Bush administration, the "unprecedented" data mining operation that we learned in December was the cause of a now infamous showdown between the Department of Justice and senior Bush administration officials. The report provides little detail about the program though, so though we are well aware that it existed at one time and was canceled when the DOJ officials threatened to resign over it, we still don't know exactly what it did or where all the data it collected has gone off to.

So, an interesting weekend to say the least.

UPDATE: Via Tim F, Philip Giraldi with an informative post on why the CIA assassination program would be so problematic and thus why it likely never came to fruition.

Wednesday Morning Reading

Some things for you to ponder this morning:

1. A senior cleric in Iran comes out against the election results. But were they rigged? Critics say yes.

2. Some analysis of Netanyahu's announcement that Israel would consider recognition of a Palestinian state. A step forward, but still balking on other important considerations like settlement expansion.

3. A Presidential election and some new laws, but the end result is the same; you can't trust the NSA not to spy on the American people.

4. Speaking of intelligence agencies, the CIA is fighting the release of it's own internal reports regarding interrogations of "high-value" detainees. Obviously, there's something in embarrassing in them.

5. Speaking of detainees, here are some people who don't wet their pants at the thought of being responsible for them.

6. Obama will announce that the federal government will extend benefits to the domestic partners, including same-sex partners and spouses, of federal employees.

7. The Obama administration is proposing regulatory changes that will broaden government oversight of banks and the financial markets.

8. And lastly, another great column of David Leonhardt at the New York Times. This time he takes on the scare word "rationing" and explains how health care is already rationed ineffeciently and unfairly everyday in America.

Deadline on Secret Memos

The Obama administration faces a deadline on the release of secret OLC torture memos today. As Glenn Greenwald makes clear, the only possible reason for not releasing them is to spare the CIA embarrassment...or greater momentum for a criminal investigation. In other related government malfeasance news, the Senate Intelligence Committee pledges to "get the facts" regarding news that the NSA exceeded it's Congressional authority and spied on Americans in recent months. Frankly, I'll be highly surprised if that actually happens, or they bother to reveal to us the full extend of "the facts" they uncover.

UPDATE: The Obama administration has decided to release the memos (h/t Adam.) I'm pleased by this news, though I expect to be outraged all over again when I read the memos themselves.

Wednesday Evening Links

1. A poignant article about how real life-and cheap-ass taxpayers-can get in the way of students living their dreams. Maybe she wouldn't make it to Juilliard, but why can't she have every opportunity to explore her talent while also getting a useful degree?

2. Randy Cohen, writing about how we should only have so much tolerance for the beliefs and practices of other culture.

3. I can't remember if I linked to this already, but the NY Times had this worrisome piece about Pakistan's instability in last Sunday's magazine. You can be rest assured that if Pakistan falls to pieces, the Taliban in Afghanistan will be the least of our worries.

4. Gun nuts protest even the most minor of tracking measures designed to help law enforcement prevent the flow of weapons to Mexican drug cartels.

5. CIA Intelligence officials bitch and moan about the release of OLC memos related to torture, threaten to hold their breaths and turn blue if the Obama administration follows through on its promise.

6. Via War & Piece, NY Times reveals that NSA has-surprise-exceeded it's Congressional authority in eavesdropping on Americans. I suppose supports the Obama administration's that there should be absolutely no judicial oversight of NSA wiretapping whatsoever.

Obama and NSA Surveillance

Regarding the Obama administration's decision to assert over-reaching legal theories so as to shield the government from accountability for the NSA warrantless wiretapping programs, Glenn Greenwald praises Keith Olbermann for focusing on this issue and eviscerating the Obama administration in the process:

Last night, Keith Olbermann -- who has undoubtedly been one of the most swooning and often-uncritical admirers of Barack Obama of anyone in the country (behavior for which I rather harshly criticized him in the past) -- devoted the first two segments of his show to emphatically lambasting Obama and Eric Holder's DOJ for the story I wrote about on Monday: namely, the Obama administration's use of the radical Bush/Cheney state secrets doctrine and -- worse still -- a brand new claim of "sovereign immunity" to insist that courts lack the authority to decide whether the Bush administration broke the law in illegally spying on Americans.

Greenwald goes on to praise the attention liberal blogs have paid to the issue as well, and then says this:

This is quite encouraging but should not be surprising. As much as anything else, what fueled the extreme hostility towards the Bush/Cheney administration were their imperious and radical efforts to place themselves behind an impenetrable wall of secrecy and above and beyond the rule of law. It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.

Over the last several years, nothing stoked opposition to the Bush administration among civil libertarians moreso than the issue of warrantless wiretapping, indefinite detention, extraordinary rendition and detainee abuse and torture. This unholy alliance of government wrongdoing prods the darkest fears of civil libertarians, who envision a government that looses itself from the rule of law so as to hide criminality or incompetence, or uses the threat of terrorism to further its own political authority and agenda. If anything, the hypocritical decision of the Obama administration to continue to offer these Bush era legal arguments to protect itself from judicial oversight is even more enraging than what the Bush administration did, as Obama personally pledged his administration to greater government transparency and oversight. I think Olbermann speaks for us all when he lambasts the Obama administration for this approach:

Visit msnbc.com for Breaking News, World News, and News about the Economy

About that sovereign immunity argument, the Electronic Frontier Foundation has this to say:

...it's the Department Of Justice's second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

It's hard to explain how incredible this legal argument is. I recommend Orin Kerr for an explanation of the law at play here, but essentially, the Obama administration is arguing that sovereign immunity shields the government from accountability for willful violations of the law even when the law explicitly grants a remedy for such violations. They twist the plain meaning of the statutes to arrive at the conclusion that even when Congress explicitly waives sovereign immunity (as it possesses the authority to do) the executive may still claim it, at least in matters of domestic surveillance and wiretapping. As Tim Jones at the EFF notes, the Bush administration made this claim only in regards to FISA. The Obama administration goes above and beyond to make it against three different acts of Congress that control surveillance and wiretapping. They are nothing if not ambitious.

Now if that doesn't piss you off, I don't know what will. No one who follows politics for any length of time should be so naive as to think that politicians always keep their promises and never act out of blatant self-interest, so that the Obama administration is engaging in shenanigans I and other liberals and civil libertarians don't approve of should come as no real surprise. But to not only continue to make the same legal arguments that the Bush administration, but to go beyond that and make new and sweeping legal arguments in an attempt to hide criminal conduct and incompetence, is staggering hypocrisy. That sure as hell isn't what I voted for in November, and it should be similarly unacceptable to a public that put Obama in office precisely to escape the eight long years of illegality and incompetence we witnessed under Bush.

Reluctance

Scott Horton notes the increasing reluctance on the part of the Obama administration to get to the bottom of the torture that was ordered by senior members of the Bush administration. In this article he explains how Republicans in the Senate are threatening to derail Obama administration appointments to prevent the release of three key memos authored by the OLC in the early days of the war on terror. Today he links to this article in the Daily Beast by John Sifton, who says that Obama's new CIA director, Leon Panetta, may himself have very compelling reasons for not wanting to get to the bottom of the CIA's role in torturing detainees:

The New York Times reported that Leon Panetta, the current CIA director, has taken the position that “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Yet a number of CIA officials implicated in the torture program not only remain at the highest levels of the agency, but are also advising Panetta. Panetta’s attempt to suppress the issue is making Bush’s policy into the Obama administration’s dirty laundry.

Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes served as a senior official in the Directorate of Operations—the operational part of the CIA that oversees paramilitary operations as well as the high-value detention program. (The directorate of operations is now known as the National Clandestine Service.) Panetta has kept Kappes as deputy director of the CIA—the number two official in the agency. One of Kappes’ deputies from 2002-2004, Michael Sulick, is now director of the National Clandestine Service—the de facto number three in the agency. Panetta’s refusal to investigate may be intended to protect his deputies. Since the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a cover-up.

As far as I'm concerned, they can burn the CIA down if that's what it takes to get to the bottom of the torture scandal. As useless as that organization has been in recent years, it'd be no great loss and there'd be a substantial upside; a final reckoning on what government officials did to detainees in our custody during the "war on terror". I won't stand for this stonewalling and neither should you, and you can tell the White House what you think about it yourself here.

UPDATE: And then there's the whole NSA surveillance/state secrets privilege thing, which you should probably save for a separate email to the White House just to make sure you get your point across.

Obama and National Security and Secrecy

Via Ken Silverstein, ProPublica documents quite thoroughly how there just isn't as much light between the Bush and Obama administrations as one would either hope or imagine. So, new approach to Iraq and Afghanistan and Iran and all that, but as for the stuff us civil libertarians and liberal bloggers might be paying close attention to? Pretty much the same. From this point on you can pretty much count on me not including any of the usual caveats about how we're better off "overall" with Obama as President. Yeah yeah, and I want him to get this right too. Call me spoiled.

Bush OLC Memos Released

The Obama administration decided to release the DOJ OLC memos relating to the war on terror that the Bush administration had previously fought to keep secret. Unsurprisingly, the nine memos claim vast and sweeping powers on the part of the President to deal with any matter related to terrorism. Essentially, the memos claim, so long as the President was taking action to fight terrorism, he could literally not be constrained by the Cosntitution in any meaningful and substantial way. Neil Lewis of the NY Times focuses on one memo in particular, dealing with the deployment of the military within the United States:

The opinion authorizing the military to operate domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.

The use of the military envisioned in the Yoo-Delahunty reply appears to transcend by far the stationing of troops to keep watch at streets and airports, a familiar sight in the wake of the Sept. 11 attacks. The memorandum discussed the use of military forces to carry out “raids on terrorist cells” and even seize property.

“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.

The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.

Those aren't the only clams advanced by the Bush administration in those early days:

In another of the opinions, Mr. Yoo argued in a memorandum dated Sept. 25, 2001, that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.

Still another memo, issued in March 2002, suggested that Congress lacked any power to limit a president’s authority to transfer detainees to other countries, a practice known as rendition that was widely used by Mr. Bush.

The Bush administration also claimed the authority to curtail the First Amendment, stating plainly in one memo that "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Reaction to these memos has been predictable. Scott Horton, referring first to the surveillance memo:

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is.

Orin Kerr, on the surveillance memo:

If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.

If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.

I suppose it's harder to ignore Congressional intent when Congress essentially says "No, we really did mean what we said there" but it seems odd to me to introduce new legislation in response to a twisted interpretation by the executive of already existing law.

Steven Schwin, on the detainees memo:

There's a lot of shocking language in these memos; here's just one gem from the June 27, 2002, memo:

As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.

Emphasis mine. Justice Jackson's opinion in Youngstown isn't even mentioned. (Recall that John Yoo's 2002 "Torture Memo" was heavily criticized for omitting any reference to Jackson's famous framework.)

And finally, Jack Balkin with the summary:

...two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.

These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.

Most interestingly, we learn that the OLC repudiated these early claims in a memo written by Steven Bradbury in the waning days of the Bush administration. In fact, Bradbury insists that many of these memos were never relied upon, that they were in fact "hypothetical." Which to me sounds like no more than a last-ditch and pathetic effort to avoid accountability at either the hands of historians or the hands of Obama DOJ investigators for actions taken in reliance upon the egregious claims of executive authority put forth in these memos. 

Obama and the NSA

While the Obama administration has taken a turn in the (somewhat) right direction by choosing to charge al-Marri in the criminal justice system, they are still going to incredible lengths to defend the NSA domestic surveillance program by denying those who have been subject to surveillance even their day in court. And yes, Greenwald is right to call out the boneheaded commentators who were howling with outrage at the overreaching of the Bush administration, but who seem to believe that it's okay if the Obama administration makes exactly the same arguments and exerts exactly the same degree of executive outrage because "there's much we don't know." That is exactly the damn point. 

I am not reassured at all by the Obama administration's approach on the warrantless wiretapping program, and I am stunned that the DOJ-which is now chock full of people who in recent years wrote one op-ed after another opposing these programs-is now suddenly defending the extreme positions of the Bush administration. If anything, the fact that the Obama administration can defend these programs only makes me even more suspicious. What the hell is going on at the NSA, that a liberal President will make every last argument to defend it?

Annoyance

Wherein a NY Times critic's review of a PBS Nova special on the NSA annoys me. Beyond the general snarky tone and lack of substance, there are statements like this:

The Soviet Union doesn’t even exist anymore, so it’s not really surprising that the government didn’t anticipate that the convicted C.I.A. mole Harold Nicholson would stand accused of continuing to sell secrets to the Russians from jail by using his son as a go-between.

Wait, what? Is it too obvious to point out that even though Russia is no longer Soviet, they might still want to spy on us? The Israelis spy on us for crying out loud. I mean, I'm not sure if this is sarcasm or if the critic Alessandra Stanley really is sympathizing with the CIA for not imagining that a non-friendly power might want to spy on us.

Then:

The film, written and co-produced by James Bamford, the author of a number of books about the intelligence establishment, including “The Shadow Factory: The Ultra-Secret N.S.A. From 9/11 to the Eavesdropping on America,” buries interesting insights in an old and hackneyed documentary format, with ominous voice-over narration and spooky sound effects.

At times the tone is so lurid and foreboding that the film seems like a “Dateline” exposé of sexual predators.

Okay, now anyone who's ever seen a "Frontline" special knows that this is pretty much the format of every show they do, so that a Nova special might take the same tone regarding an agency that has for years now been spying on Americans (something that is in facts spooky and ominous) really should not be that surprising or remarkable.

Then there's this:

Mr. Bamford, who is interviewed in the film seated at a computer next to a crackling fireplace, makes the case that the government’s decision after 9/11 to extend the agency’s surveillance to American citizens without a court warrant violates a citizen’s “reasonable expectation of privacy.”

Emphasis mine. There's really no other purpose for bringing that detail up except to ridicule the show.

And lastly:

It turns out that the only way to catch huge masses of digital data is to tap into the cables directly — the film says that the agency has a secret office in the same building where it can examine all messages, domestic and foreign. (Those, according to the narrator, include “cries and laughter, hopes and dreams, e-mails, faxes, bank statements, hotel reservations, love poems and death notices.”)

Another detail added, I presume, to highlight the over-the-top nature of the show. Well, okay, but I don't see what's so bad about that. Though I haven't seen the show I have a feeling that, in isolation, that line hardly seems that ridiculous.

Alright, so it's a review and critics are free to be wrong in their review, but what troubles me is more the fact that Stanley seems dismissive of the idea (or importance of the fact) that the NSA is spying on Americans. I could be wrong, but that's the distinct impression I get. And I'm not at all interested in her dismissiveness, since at this point we've safely established the idea that an intelligence agency spying on Americans is kind of a big deal.

Anyway I'm not the only one to question Stanley's politics (or her accuracy.) Fortunately this is my first, and hopefully last, experience with her.

The NSA And Your Credit Card

Does the NSA have your credit card and other financial information? Kim Zetter, looking back on interviews with NSA whistleblower Russell Tice, thinks it's entirely possible.

Did the NSA Spy on American Journalists?

Would you be surprised?

UPDATE: More here:

Russell Tice, a former NSA analyst, spoke on Wednesday to MSNBC host Keith Olbermann. Tice has acknowledged in the past being one of the anonymous sources that spoke with The New York Times for its 2005 story on the government's warrantless wiretapping program.

After that story was published, President Bush said in a statement that only people in the United States who were talking with terrorists overseas would have been targeted for surveillance.

But Tice says, in truth, the spying involved a dragnet of all communications, confirming what critics have long assumed.

"The National Security Agency had access to all Americans' communications," he said. "Faxes, phone calls and their computer communications. ... They monitored all communications."

Tice said the NSA analyzed metadata to determine which communication would be collected. Offering a hypothetical example, he said if the agency determined that terrorists communicate in brief, two-minute phone calls, the NSA might program its systems to record all such calls, invading the privacy of anyone prone to telephonic succinctness.

All of this is of course, illegal.

Wiretapping and a Whistleblower

Newsweek has a very interesting pair of complementary articles about NSA domestic surveillance programs and the man who blew the lid off of one of them. First, this profile of Thomas Tamm, the man who leaked to the NY Times the existence of the NSA's warrantless wiretapping program:

In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that "the program" (as it was commonly called within the office) was "probably illegal."

Tamm—who was not the Times's only source, but played the key role in tipping off the paper—has not fared so well. The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they've been questioning Tamm's friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him.

Exhausted by the uncertainty clouding his life, Tamm now is telling his story publicly for the first time. "I thought this [secret program] was something the other branches of the government—and the public—ought to know about. So they could decide: do they want this massive spying program to be taking place?" Tamm told NEWSWEEK, in one of a series of recent interviews that he granted against the advice of his lawyers. "If somebody were to say, who am I to do that? I would say, 'I had taken an oath to uphold the Constitution.' It's stunning that somebody higher up the chain of command didn't speak up."

If you're a reader of this blog, you are almost certainly familiar with the article the NY Times published based on Tamm's leaks, the gist of which was that the NSA was conducting warrantless domestic surveillance on the communications of Americans, in defiance of FISA provisions that require a court order to conduct such surveillance. This program was later largely ratified by the Protect American Act of 2007, but for a time the program operated in contravention to FISA requirements, which provide for criminal penalties for violations of its provisions.

The wiretapping is not the only program to come to light over the last few years. Though it has received exhaustive attention thanks largely to NY Times bombshell and accompanying media attention, there has long been suspicion surrounding an even more secret NSA program that is alleged to have collected massive amounts of data about the communications of ordinary Americans in a "data mining" operation, whose purpose was to discover a pattern of activities that could reveal planning of terrorist attacks. Another Newsweek story confirms and provides some limited detail about the existence of this program:

...These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's classified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)

The NSA's powerful computers became vast storehouses of "metadata." They collected the telephone numbers of callers and recipients in the United States, and the time and duration of the calls. They also collected and stored the subject lines of e-mails, the times they were sent, and the addresses of both senders and recipients. By one estimate, the amount of data the NSA could suck up in close to real time was equivalent to one quarter of the entire Encyclopaedia Britannica per second. (The actual content of calls and e-mails was not being monitored as part of this aspect of the program, the sources say.) All this metadata was then sifted by the NSA, using complex algorithms to detect patterns and links that might indicate terrorist activity.

This was the program that resulted in the dramatic standoff in John Ashcroft's hospital room in early 2004, when Ashcroft refused to recertify the program given its blatantly illegal nature. This is the story detailed in Barton Gellman's book "Angler", excerpts of which provide the basis for these Washington Post articles which describe in more detail the "rebellion" in the DOJ, FBI and intelligence agencies over the program. The program was shuttered by President Bush as a result, but not before operating for 2 1/2 years illegally. To this day we are not aware of the details or extent of the program, the fate of the data the NSA collected, or what that data was used for (more "laundered" wiretap requests perhaps, as described in the article on Tamm?)

Tamm exposed himself to criminal charges by leaking information about the warrantless wiretapping program to the NY Times. Despite the fact that to some this makes him a traitor to our country, it is unlikely that he'll face charges under the incoming Obama administration. Unfortunately, it is also unlikely that those who worked on or authorized this program will face criminal charges, despite the fact that FISA provides for them. Like some I consider it important to finally understand the totality of the NSA's programs, and am (very reluctantly) willing to let members of the Bush administration off of the hook if it permits the Obama administration to focus on things we should be doing right now. This is a concessions to pragmatism that certainly does not change the fact that I believe some members of the Bush administration should be tried for crimes against our nation.

And though I've said this at least a hundred times here and elsewhere, I do not believe it is an excuse that members of the Bush administration from the President on down were simply doing their best to protect the American public from terrorism. I give them a lot of leeway for erring on the side of caution in some respects, but it is quite clear at this point that the Bush administration broke the law because it was inconvenient to expend the political capital necessary to have the law changed, and this changes nothing about the fact that power utilized in secret will inevitably be abused and so should be avoided whenever possible. 

NSA Spied on Innocent Americans

We are of course hugely surprised by this news:

Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.

The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations "extremely disturbing" and said the committee has begun its own examination.

"We have requested all relevant information from the Bush Administration," Rockefeller said Thursday. "The Committee will take whatever action is necessary."

"These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.

Kinne described the contents of the calls as "personal, private things with Americans who are not in any way, shape or form associated with anything to do with terrorism."

Faulk says he and others in his section of the NSA facility at Fort Gordon routinely shared salacious or tantalizing phone calls that had been intercepted, alerting office mates to certain time codes of "cuts" that were available on each operator's computer.

"Hey, check this out," Faulk says he would be told, "there's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out. It would be some colonel making pillow talk and we would say, 'Wow, this was crazy'," Faulk told ABC News.

Faulk said he joined in to listen, and talk about it during breaks in Back Hall's "smoke pit," but ended up feeling badly about his actions.

"I feel that it was something that the people should not have done. Including me," he said.

NSA awarded Adrienne Kinne a NSA Joint Service Achievement Medal in 2003 at the same time she says she was listening to hundreds of private conversations between Americans, including many from the International Red Cross and Doctors without Borders.

"We knew they were working for these aid organizations," Kinne told ABC News. "They were identified in our systems as 'belongs to the International Red Cross' and all these other organizations. And yet, instead of blocking these phone numbers we continued to collect on them," she told ABC News.

A spokesman for Doctors Without Borders, Michael Goldfarb, said: "The abuse of humanitarian action through intelligence gathering for military or political objectives, threatens the ability to assist populations and undermines the safety of humanitarian aid workers."

Both Kinne and Faulk said their military commanders rebuffed questions about listening in to the private conversations of Americans talking to Americans.

"It was just always, that , you know, your job is not to question. Your job is to collect and pass on the information," Kinne said.

They listened to the calls of people who had nothing to do with terrorism, and they continued to listen to them despite the fact that they knew these people had nothing to do with terrorism. This is what an unreviewable surveillance system gets you; people will abuse their authority because they can, and no one will stop them. Now, if the NSA and the Bush administration found it so easy to eavesdrop on calls like this, what do you think their computers have been up to with your personal data? 

Given the relatively low level of the whistleblowers, it is not known what purpose or rationale there was for listening in on the phone calls of these Americans. But I'm sure we'll be finding out.

UPDATE: Glenn Greenwald, with the questions we now should be asking.  

"He's Gone."

More damning excerpts from the AG report on the U.S. attorney firings:

The report depicts a steady drumbeat of pressure leading up to the 2006 elections. Republican former state senator Mickey D. Barnett e-mailed Rove in October to complain about the pace of a federal bribery probe that Iglesias's office was conducting against a Democratic rival. Barnett wrote that he had already complained to Justice Department White House liaison Monica M. Goodling and Sen. Pete V. Domenici (R-N.M.).

That same month, President Bush and Rove both spoke to Attorney General Alberto R. Gonzales about rampant voter fraud in three cities, one in New Mexico, Gonzales told investigators.

In November, Domenici's chief of staff, Steven Bell, e-mailed Rove seething about voting issues in New Mexico and expressing "worry" about Iglesias. Rove advised Bell to have Domenici reach out to the attorney general. Around the same time, Deputy Attorney General Paul J. McNulty received a phone call from Miers, who passed along complaints about Iglesias that she had heard from Rep. Heather A. Wilson (R-N.M.)

At a White House breakfast in mid-November, Wilson approached Rove to tell him that the U.S. attorney was a "waste of breath," according to her interview with investigators. She said Rove told her: "That decision has already been made. He's gone."

Less than three hours later, a Justice Department official forwarded a firing list to the White House Counsel's Office on which Iglesias's name appeared, giving rise to questions about how Rove learned about its contents in advance, and whether the department ultimately fired Iglesias for improper political reasons.

I think those questions are essentially answered, at least in substance. What we don't know yet is who exactly said what to whom and when:

The report is incomplete because a number of persons—members of Congress, their staffers, and particularly figures in the White House—refused to cooperate with the investigation. At the top of this list are Karl Rove and Harriet Miers. The White House and several Republican lawmakers also failed to provide investigators with documents, including documents which all acknowledge are highly relevant and are not privileged in any way. It is a fair inference in such circumstances that these documents would be harmful and that this is the reason why they have been withheld. So the first lesson to be drawn from the report is a simple one: Obstruction continues to be the order of the day.

Similarly, Mukasey’s appointment of a special prosecutor to handle the open threads of the investigation raised widespread criticism on Capitol Hill, with good reason. Mukasey could, using available Justice Department precedent and authority, have drawn upon a special prosecutor with suitable stature and experience to handle the matter. It could have been a retired federal judge or former federal prosecutor known for integrity and independence. However, Mukasey tapped a relatively inexperienced and youthful career prosecutor from Connecticut.

I'm willing to cut Mukasey slightly more slack than Scott Horton is, if only in the fact that my expectations are so low that I'm amazed that a special prosecutor is being appointed at all, even if he is relatively inexperienced and even if his initial conclusions are not due until well after election day. Eight years of criminality and incompetence will do that to you though.

UPDATE: In other DOJ related news, Murray Waas at the Atlantic Monthly is reporting that Gonzales is now telling federal investigators that President Bush personally ordered him to make the now-infamous late night visit to ailing AG John Ashcroft in an effort to obtain re-certification of the NSA surveillance program in 2004. Excerpts from Washington Post reporter Barton Gellman's new book on Cheney imply that Cheney shielded Bush from the contention in his own administration over the surveillance program, but Gonzales is telling a different story, in all likelihood because he's trying to save his own ass and make it more difficult for DOJ investigators to get to the bottom of whatever perjury he might have committed while testifying before Congress. Also, incredibly, Gonzales may have written fake notes regarding a meeting between him and Congressional leaders regarding the program, concocting Congressional acquiescence to the re-certification of the program that members of Congress who were at that meeting say they never gave. Gonzales says he was asked to draft the notes by President Bush, but it's not clear yet whether Bush asked him to draft them before or after the meeting, or after the recertification of the program (which is when Gonzales did finally get to writing them down.) As you can well imagine, the timing of the direction is crucial. Which is harder to believe; that Gonzales would lie to his President about what members of Congress said in the meeting, or that President Bush would ask him to draft some notes that would help justify the recertification, even if they weren't exactly true? If you can figure out which represents the greater extent of criminal stupidity, you're smarter than I am.

The Inside Story

The Washington Post, in two articles adapted from a book coming out soon, provides us with a fascinating portrait of the inside struggle over the warranteless surveillance program that ensued between various members of the Bush administration in early 2004. Although the story of threatened resignations over the program has been out for awhile, the Post provides considerably more detail of the role of significant actors and just how close the administration came to a meltdown before Bush backed down and authorized changes to the program. Two things are stunning about this story. One, that President Bush was shielded until the last minute by Cheney and his staff from the news that members of the DOJ were going to resign in protest; he simply was unaware of the magnitude of the problem on his hands. And second, that we still do not know what the NSA was doing that was so bad that the head of the FBI, the chief of the Office of Legal Counsel at DOJ, the deputy Attorney General, the general counsels of the FBI and the CIA, among others, were willing to pack up rather than continue participating in the program (it is especially shocking in light of what they eventually did authorize.) Such a mass resignation would have been unprecedented in American political history, but it was only a matter of days from happening. What were they doing? And when will we know?

Capitol Hill Update X

Sen. Edward Kennedy, recovering from brain cancer surgery last month, got special permission to fly back to the U.S. Senate to cast the deciding vote on a bill that would cancel a schedule cut to doctors who treat Medicare patients. The House had already passed the measure, but the White House opposes it.

Unsurprisingly, the Senate followed the House in capitulating to President Bush on granting immunity to telecommunications companies who helped in the NSA's illegal spy program.

Also not surprising, Karl Rove is ignoring his subpoena and refusing to testify in front of Capitol Hill. Rove faces allegations that he influenced the prosecution of a former Democratic governor of Alabama, Don Siegelman.

Lastly, the Senate passed a "mammoth" housing rescue bill that now goes back to the House of Representatives which had passed a different version. President Bush is expected to sign the legislation.

UPDATE: Congress overrides Bush veto on Medicare legislation.

Capitol Hill Update IX

In the Senate, Republicans continued their obstructionist streak and prevented the Senate from voting on a bill that would have extended energy tax credits.

In the House, Democrats inexplicably capitulated to President Bush by allowing the passage of a FISA update bill that gives amnesty to telecommunication companies involved in illegal NSA spying. Oh, and they passed new funds for the war in Iraq without conditions again too. Not a good week, guys.

The Senate will likely pass both measures sometime next week, unfortunately.

A Year in Review for Congressional Democrats in 2007

As the first session of the 110th Congress ends, it is hard not to see a mixed bag. After 12 years of being out of power, Democrats took the reigns and achieved several domestic legislative objectives and re-established the institution's oversight and investigative role over the executive branch. However, they also failed to make any progress on the issues that swept them into power last year - because they were either unable, unwilling, or both.

In fact, on foreign policy and national security matters, the Democratic majority largely capitulated towards President Bush, whom continued to carry on as if the 2006 elections never happened to surprisingly great effect. Twice, Democrats gave in on Iraq war funding and failed to attach any meaningful conditions as President Bush increased the number of troops there from the levels that exist prior to Democrats taking power. Democrats also handed him a new FISA bill (albeit temporary) that vastly expands the chief executive's warrantless wiretapping power. Even immunity for telecommunications companies involved in the NSA scandal was only defeated (for now, that is) by a handful of courageous senators. Many controversial nominees, chief among them Attorney General Michael Mukasey, were confirmed despite the fact that a majority of Democrats were opposed. And Democrats conceded to Bush's imposed spending limits (though not his spending priorities), including on expanding SCHIP on which the vast majority in Congress and American people are in support and on an AMT patch that currently has no way of being paid for.

Congressional Democrats did however get passed into law several of their promised domestic bills this year (in fact, more than the Republicans when they took over in '95). They include an ethics/lobbying reform bill, a minimum wage increase, 9/11 commission security recommendations, higher mandatory fuel efficiency standards, the College Cost Reduction Act, and more. A handy chart of their major accomplishments can be found here.

Of course, much of their failures can be blamed on an obstructionist Republican minority in the Senate that has forced a 60-vote hurdle on major bills at a record rate from previous Congresses (it is somewhat surprising their unity and support behind Bush, particularly on Iraq and SCHIP). President Bush has also vetoed or threatened to veto many bills. These facts will be central to Democratic campaigns next year.

But there has also been a lack of good leadership. War funding bills don't have to brought up for a vote at all, nor did a pro-immunity version of the FISA bill, for instance. Democratic promises to truly fight Bush have often wrung hollow as Democratic leaders seem to always blink in the expected game of chicken. Much of this has to do with the caucus splits among Democrats, but perhaps better leadership is needed to make it more unified. And many Democrats who have disappointed their progressive base with their votes may also face primary challengers, as some are already.

Congressional approval ratings are at incredible lows, but it should be noted that the approval rating of just Republicans in Congress is lower than that for Democrats and polls also show solid majorities still support Democrats remaining in charge of Congress after the 2008 elections. With one more session to go before the 2008 elections, Democrats will have a chance to improve their success rate and hopefully their stature with the people. If not, I fear the elections will be as good for Democrats as they hope. More importantly, we will not see the progress we truly need from our government right now.

The American people put their faith in Democrats in 2006, they will need results to do so again in 2008.

Legislative Week in Review IV

Yesterday, the House of Representatives attempted to override President Bush's veto of the SCHIP expansion, but still fell a little short of the required 2/3rds majority. This, despite the fact that 81% of Americans supported the bill, including most Republicans. Speaker Pelosi says she will offer a new bill in two weeks; aides said Democrats will make cosmetic changes, "making it clearer that the bill does not allow illegal immigrants to be covered and capping the income eligibility level," in order to pick up the requisite number of Republican votes. The Senate already has enough votes.

Also this week in the House, legislation to continue a ban on Internet taxes, a resolution condemning the State Department for its refusal to divulge public details on Iraqi corruption, and a media shield bill to protect the confidentiality of reporters' sources in most federal court cases all passed overwhelmingly but have yet to be considered in the Senate. Meanwhile, a proposed resolution that would recognize the massacre of Armenians by the Ottoman Turks during WWI as genocide looks less and less likely to make it to a floor vote with key Democrats opposed over souring relations with modern-day Turkey, despite promises by Speaker Pelosi. This makes one wonder what the point was of picking a fight with the White House that didn't wasn't necessary - just to lose it.

The House is also considering legislation to impose tighter sanctions on Burma's military junta,

In committee news, Rep. Henry Waxman is still looking into how the Bush administration misinformed about pre-war intelligence. Charging that a top Yahoo! Inc. official provided incorrect information regarding a Chinese human rights case to Congress, the House Foreign Affairs Committee on Tuesday called on the company’s leadership to appear before the panel.

Over in the Senate, the Intelligence Committee approved immunity for telecom companies involved in illegal NSA spying as part of the new FISA update, 13-2. Only Democratic Sens. Russ Feingold and Ron Wyden voted against it. However, Sen. Chris Dodd has put a "hold" on the bill and is threatening to filibuster it should Majority Leader Reid decide to bring it to the floor anyway. The House was about to consider its version of the wiretap bill this week (which does not include the immunity provisions, which is why the White House and Republicans are opposed) but it was pulled from the floor after Republicans offered a "poison pill" amendment.

Meanwhile, the Senate Judiciary Committee held confirmation hearings for AG pick Michael Mukasey. White he started off disavowing torture and vowed not to bow to White House pressure, the nominee later demurred about what constitutes torture and stated he opposed restoring habeas rights to Gitmo detainees. However, it is likely he'll be confirmed. A committee vote could happen as early as next Thursday with a full floor vote by the end of the month, though chairman Leahy says this could be delayed if they do not receive written statements by Mukasey in a timely fashion.

Sen. Obama has asked that the head of the Justice Department's voting rights division be fired for saying voter ID laws hurt the elderly but aren't a problem for minorities because they often die before old age. Bush's family planning nominee is also facing considerable opposition (for her anti-contraception views), as is his pick to head of the Justice Department’s Office of Legal Counsel. And Majority Leader Reid signaled today the Senate may take up the controversial nomination of Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit soon, seeking a vote to limit debate on the nomination Tuesday. If that succeeds, the Senate would vote on whether to confirm him. Southwick's record has evidence of racial prejudice.

The Senate Banking Committee approved measures dealing with Sudan divestment, flood insurance, and a 7-year extension of the Terrorist Risk Insurance Act which the White House has said it will not veto despite opposition. The Senate Commerce Committee held hearings on a bill that would make cell phone companies give their customers a break on early termination fees by prorating the penalties so the cost declines with time. And Sen. Schumer has threatened legislative action unless U.S. credit bureaus stop charging fees for freezing a consumer's credit history report to prevent identity theft.

Harry Reid is also hoping to finally get into conference negotiations for energy legislation with the House, if Republicans will allow it. The two houses passed completely separate bills, but Reid and Speaker Pelosi have laid out general guidelines. The White House has threatened a veto.

Lastly, the Senate rejected cuts to community anti-crime grants and NASA spending and overwhelmingly passed the Commerce, Justice, Science, and Related Agencies Appropriations Act which the White House has threatened to veto, like so many budget bills.

UPDATE: You can show your support for Sen. Dodd's hold here.