Comments (42)

saysyes wrote on September 28, 2007 6:03 PM:

I'm a little confused.

Do we need FISA approval to tap the phones of non-US persons while they're in a country other than the US?

In the insurgent kidnapping case, was some of the surveillance involving US persons?

I was under the impression that we could listen in on anyone we damn well pleased without a court order, as long as a US person wasn't involved. Is this incorrect?

Anonymous wrote on September 28, 2007 6:08 PM:

Hmm, which should we toss out: the Fourth Amendment or an administration staffed by corrupt, incompetent proto-fascists?

You know, I just can't decide.

Anonymous wrote on September 28, 2007 6:31 PM:

Spencer you missed a big clue in the timeline.
When the NSA counsel says at 12:53 that the requirements for an emergency warrant have been met for the "remaining collection" that passes through the US, what's left to debate?

The timeline actually says "remaining collection of the communications 'inside the US.'"

They have us faked out. The complication of this case may have been that they wanted to tap more than just iraqi-iraqi communications- perhaps people in the US?

dhs wrote on September 28, 2007 6:33 PM:

The fact that McConnell, through his spokesman, has replied DIRECTLY to TPM is one more piece of evidence of TPM's increasing clout in the political debate. The politicos are beginning to worry that a people are actually paying attention to TPM.

Thanks and congratulations to the journalists at TPM. I look forward to the day that TPM is awarded a Pulitzer prize for its investigative reporting.

Stay on it!

Anonymous wrote on September 28, 2007 6:40 PM:

Here is a complication of the case:
http://iraq.pigstye.net/article.php/JimenezAlexR/print

One of the still-missing soldier's father is allegedly a hippie.

"Luzon, 35, an anti-domestic violence specialist and neighbor, said Jimenez's father Ramon "Andy" Jimenez had been against the war, participating in antiwar protests, even though Alex Jimenez felt strongly about his service."

If the terrorists "acquired" that info from the kidnapped soldier or the web like I did, they might have tried to exploit the situation. A trap and trace on dad's phone and email might help find the terrorists....

Look domestic for the "complication" in this particular case....

Polonius wrote on September 28, 2007 6:40 PM:

"Even a few seconds is too long of a delay"?

To establish that the intelligence community's resources are being deployed in accordance with the law, even a few seconds is too long of a delay?

That's a remarkable statement. It would even be remarkable if it were responsive to the question, which was not about delay qua delay, but about the source of the delay.

And lest there be any continuing confusion about whether the DNI is an independent voice of the intelligence community or a shill for the administration, his spokesman, at least, appears willing to put that question to rest. "Why are we giving 4th Amendment protection to Iraqi Insurgents overseas"?? We're not, dopey; the point of this exercise is to ensure that the DNI doesn't take 4th Amendment protections away from one or more of us. Sheesh.

Hank Essay wrote on September 28, 2007 6:51 PM:

In other words, DCI McConnell is pleading the Chewbacca Defense.

-

Anonymous wrote on September 28, 2007 6:55 PM:

and if a few seconds of delay is too long, why did it take two hours, from 5:15 til 7:18 to get a signature. Certainly Clement had a phone....
certainly the aides traveling with gonzales all had RNC-issued blackberries.

Maybe:
1) Clement was contacted and debated a bit before refusing to sign off?
2) Gonzales needed to hear the debate and that the WHO was with him? Gonzo had just gotten skewered in the SJC by Comey ON THE WARRANTLESS WIRETAP PROGRAM, 6 hours earlier.

Regardless, 2 hours and 3 minutes for a signature after the legal vetting was complete is 7,380 seconds of unnecessary delay.

Mark Richards wrote on September 28, 2007 6:59 PM:

"The law is the law"

Well how about that. Then OBEY IT!

Captain USA wrote on September 28, 2007 7:37 PM:

Another thing: Enough with this cowardly "Surrender your freedoms or Americans will die!" bullshit.

Since when do Americans give up their freedom faced with the threat of a handful of criminals? We beat the Soviet Union.

What happened to "Give me liberty or give me death?" What happened to "Live free or die?"

If Vice Admiral McConnell wants to live in a safe, cozy surveillance state he's more than welcome to emigrate.

This is the home of the brave.

starwheel wrote on September 28, 2007 7:39 PM:

What assurances are there that this kind of surveillance will only be conducted in "common sense" hypotheticals such as kidnapped American soldiers on a foreign field of battle?

If common sense hypotheticals are what this is all about, then why is it shrouded in secrecy and why is asking questions about it putting American lives in danger?

dm wrote on September 28, 2007 8:40 PM:

This probable cause issue seems like kind of a red herring (at least in the instance of Iraqi kidnappers). Let’s look at what’s really required (in terms of probable cause) for an emergency order:

1. The Attorney General reasonably determines that (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained, and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists. (50 USC 1805(f))

2. That factual basis would necessarily have to include sufficient information to support a finding that there is probable cause to believe that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. (50 USC 1805(a)(3))

3. Probable cause usually means a pretty low standard of proof, perhaps as low as evidence demonstrating “a fair probability.” See Illinois v. Gates, 462 US 213 (1983).

3. Foreign power means a group engaged in international terrorism. (50 USC 1801(a)(4))

4. Agent of a foreign power means a person who engages in international terrorism and who is not a US person. (50 USC 1801(b)(1)(C))

5. International terrorism means acts which would be violations of US criminal law if committed in the US, which appear to be intended to affect the conduct of a government by kidnapping, and which occur totally outside the United States or transcend national boundaries. (50 USC 1801(c))

So in a situation where Iraqis (or other non-US people) kidnap US soldiers in Iraq, how could these requirements not be met? The act is clearly “international terrorism”, which makes the actors “agents of a foreign power”, which in turn makes the actors eligible for surveillance by an emergency order. Therefore, as long as the AG can find a fair probability that the targets of the surveillance are the actors (and presumably we’re not trying to allocate valuable intelligence resources when we don’t already believe that the potential targets are fairly likely to be involved in the bad act) and that the targets are using the location to be monitored, then there should be no problem.

Additionally, even if the AG gets it wrong, it’s not clear to me that the criminal penalty would apply. The statute authorizes the emergency order to operate for 72 hours, until the information is obtained, or until the application for the order is denied (whichever comes first). (50 USC 1805(f)). The criminal penalty would only apply if the person “engages in electronic surveillance under color of law except as authorized by statute.” (50 USC 1809(a)). It seems to me that even incorrect emergency orders are still authorized for 72 hours, so it seems wrong to fear that approving an order without probable cause would immediately create criminal liability.

It's just not clear to me why this was such a problem, at least in this particular case.

Brianm0122 wrote on September 28, 2007 9:16 PM:

I am a little confused here. If they needed a warrant in order to tap these communications, they must have had some reasonable cause to believe that the presumed communication would involve communications with someone within the US.

Not just pass through the US, but terminate within the US. Or else, why bother?

Anonymous wrote on September 28, 2007 9:19 PM:

What I'm impressed with is that he responded to the TPM story.
That tells me that TPM is perceived as a player.

Brianm0122 wrote on September 28, 2007 9:31 PM:

Another thing bothering me.

In the case of the captured troops, nobody is going to be worried about a trial for the captors (I think it would be more proper to call the troops prisoners than hostages). No need for "defendant rights",, this was a military operation, not a crime investigation. The fourth, or any, amendment shouldn't apply.

There is something else going on here. I don't know if it is something sneaky, or if it is just something that can't be discussed in the light of day. If this admin had ANY credibility, I might suspect the latter.

Anonymous wrote on September 28, 2007 9:45 PM:

dm
you are right on the money.
probable cause is a red herring.
it is minimization that was the big threat.
their methods could not exclude US persons, nor do they want to exclude US persons, because they want to find the "terrorists" wherever they may be.

This was the cover up with the selective declassification of TSP, and it is the point of the "concerning" language in 405b of the PAA.

but the special circumstances in this particular case was that their work on May 12-14 had led to US persons of interest that they wanted to target. so they needed FISA warrant because in January they announced publicly that they would be doing TSP surveillance through FISA.

FISA court was letting NSA do traffic analysis of insurgent emails and calls from Iraq that traveled through wires in San Francisco, but when they wanted to target American recipients of those communications independent of the communications with the Iraqi insurgents (Domestic-Domestic) they needed to modify their existing FISA order.

Domestic tapping was non-warranted before Goldsmith, Philbin and Comey stood up, but not any more. in this case, the NSA datamining and traffic analysis hit a US person. Addington and the OVP wanted to proceed without modifying the existing warrant, because the American target was softly linked and there was a time constraint, but Mueller and the FBI Counsel were reluctant, especially because Comey had just that morning testified about how they used to tap Americans with reckless abandon til March 04.

That 4 hour delay was a debate on whether or not to get FISA approval at all.
When in the end they decided to do so, they could only go to Gonzales.

melior wrote on September 28, 2007 10:30 PM:

Felony penalties can be imposed on those who do not prove probable cause.

Objection -- nice theory, but not supported by the evidence.

FMArouet wrote on September 28, 2007 10:37 PM:

saysyes, dm, and Anonymous seem to be guiding us to the crux of the matter. And good work, Spencer. It is a very impressive piece of real, old-fashioned journalism that you are turning out here.

Feinstein appears to be waving a red herring and blowing smoke about irrelevant "probable cause" considerations and to be chanting the "72 hours" mantra to divert attention from the sheer scope of the vacuuming/filtering/data-mining of data packets crossing switches or routers in the U.S. packet-switched network, including communications of U.S. persons.

As far as I know, no FISA warrant has ever been required for the collection of foreign-to-foreign communications on foreign territory. That is an intelligence issue well provided for by the charters of NSA and CIA. FISA and DOJ need not be involved at all, unless perhaps FBI Legal Attaches or FBI agents on temporary assignment abroad become actively involved in a particular case. NSA and CIA simply collect against any foreign targets, more or less unfettered. That is their mandated purpose. That is what they do.

NSA and CIA officials on the spot in Iraq and at NSA facilities worldwide could surely have turned on the spigots and opened the valves wide to collect whatever relevant communications they could in the wake of this particular kidnapping incident, while seeking later DOJ/Attorney General authority if the initial collection uncovered U.S. connections, whether personal or technical.

Feinstein seems to be obfuscating to protect McConnell, who himself is doing his best to misdirect Congress from asking the hard questions and pinning him down regarding what may turn out to be a startlingly massive data vacuuming and data-mining program on communications involving U.S. persons.

I rather suspect that there is also an element of simple incompetence involved. The Bushies at DNI and DOJ do not want Congress to fully comprehend their operational confusion and clumsiness.

After all, difficult questions from Congress about organization, productivity, efficiency, and budgets might follow. "You're spending how many billions of dollars to try to get what? And that's all you can come up with?"

Mary wrote on September 28, 2007 10:50 PM:

A. Assuming that they really are talking about foreign to foreign communications that can be isolated and not include US communications, then for the question, "Should we even be spending the time having to go through a process to intercept foreign to foreign communications" that basically leaves off the WHERE THERE IS NO PROBABLE CAUSE TO BELIEVE EITHER PARTY IS AN AGENT OF A FOREIGN POWER and the answer is SURE.

Absolutely there should be process that applies to what communications the Executive Branch is snarfing up and what is done or not done with that information. The Constitution never says the Executive Branch has unfettered ability to engage in foreign to foreign searches and seizures. Absolutely the Exec Branch should have legal constraints on what is being done with foreign intercepts.

They carve outs for foreign surveillance have been for national security types of surveillance. There has never been blanket authority in the Executive to engage in non-national security, slap and tickle surveillance of foreigners. And there is certainly no reason for the NSA apparatus to be used for foreign surveillance that isn't invovling national security interests.

So yeah - before someone, for example, engages in intercepts of foreign corporate information and uses that to make profits or provide unfair competition, and before there is non-supervised, warrantless trawling for non-security purposes - yes, there should be process that applies.

So here is seems not so much that your source is arguing that technology has changed and FISA needs to be changed to address the changing technology - - but rather that the analysis of Executive Branch power should be expanded to include engaging in foreign surveillance of all foreigners, not agents of foreign powers (not al-Qaeda calling) and for all reasons or no reason, on any whim - all of which will be subject to any use anyone chooses to make of it with no constraints, checks or balances.

Duh. Yeah. There should be process preventing that.

B. "Why are we giving 4th Amendment protections to Iraqi Insurgents, located overseas, who have taken U.S. soldiers hostage?" This absolutey does not work with the same person saying that the delay was because everyone was worried about felony charges (yeah - who's going to bring them in this thoroughly corrupted DOJ btw):

"In reference to the 72 Hour Provision, one still needs to have probable cause before getting the emergency authorization. Felony penalties can be imposed on those who do not prove probable cause."

How do you know you have Iraqi insurgents who have kidnapped soldiers and not also know you have probable cause? Completely irreconcilable statements.

C. I think someone needs to flat out ask the direct question - was the problem with probable cause that you KNEW you would be seizing and searching through many communications that would not have anything to do with foreign insurgents at all? Because it sure sounds like, when they are talking about the "full resources of the intelligence community" Burgess isn't talking about focussing those resources on known insurgent transmissions, but rather is only saying that BEST the FULL RESOURCES could do would be to maybe have an *expectation* of *revealing* the communications of Iraqi insurgents. Not that they knew how to get right to those guys communications, and just needed an ok, but rather that they thought if the brought all resources to bear they could expect to maybe reveal the communications. A bit different things.

D. They are making it clear that they are asking for the broadest of the broad authorities (all foreign communications for any misuse whatsoever and with no minimization REQUIRMENTS to keep info out of poorly kept, non-secure, ultimately hackable and available at partisan whim for personal vendettas and partisan purposes - data banks) and all because of something that was very peculiar to one particular situation. Not an ongoing or recurring need, but instead a case that Burgess said presented "NOVEL" and "COMPLICATED" issues. And his statement that those novel and complicated issues NEEDED to be evaluated is not supposed to be replaced with a "hey, anything goes" legislation? Makes no sense whatsoever.

E. Biggest question - did the court ultimately approve the surveillance that was done when AGAG "phoned it in" to inform the court and start the 72 hour period of time for the application to be made?

F. If not - - who is being charged under those felony statutes?

G. Is this all being done to try to retroactively pardon someone for FISA
violations?

H. Were non-governmental agencies or entities contacted or required to provide services in connection with this effort and was any part of the delay related to efforts to insulate non-governmental persons or agencies from liablity?
******
It may be that, depending on the specific exigency presented - at home as well as overeas, if we have the technology to dragnet a whole area and pick up everything in that area - there would be some exigent situations where people might be comfortable with that kind of dragnetting. But you do know they would want it to be very limited, supervised, subject to oversight, subject to civil and criminal penalty for abuse, and with information scooped up and not related to the emergency excised.

If situation was that maybe they had the ability to just blanket the whole area with intercepts and they expected that if they did, due to the low number of transmissions in the area and filter programs they had, they could "expect" to find the insurgents, eventually - then that may be what they need to be talking about. It's not some super duper secret thing though and doesn't require legislating in the dark.

And given that these are the same people who were willing to send people into blackhole detentions and torture and who knew they would be insulated by a DOJ that would never pursue criminal charges against its own people for their role in the tortures - -

- - why would they suddenly be so shy of instituting a surveillance measure that was only going to impact foreigners (right now - they won't even make FOIA responses to US citizens under teh program, how is a foreign citizen going to get that info?)with no standing (again, even US citizens have been dinged on standing with no access to the classified "proof" in the Executive's control)?

Doesn't make sense. Now if the delay was to get a third party holder of the info comfortable - that might make sense. Also, if the delay was bc they knew what they wanted to do was something the FIS Court SPECIFICALLY had told them already they couldn't do and that someone would be in trouble with the court when the application was actually made - - those are things make sense. But no one is asking them about those things.

anonymouse wrote on September 28, 2007 10:55 PM:

"...the circumstances of this case presented novel and complicated issues."

... like... lunch isn't over until 2:00, maybe 3:00. Then there's our civil service contract which forces us to take our afternoon break. Oh, and since the Reagan Trade Building took our parking spaces, we have to feed our meters every 2 hours or get a ticket.

Just between you and me... we kinda had to make sure our probable clause was obtained legally enough to allow our information...

c4logic wrote on September 28, 2007 11:52 PM:

The guy is waging a disinformation war--he is practicing the art of deception. Who is more skilled at this than the intelligence community. Who would not want unfettered authority to do as they please, whenever they please, with no accountability, and no disclosure. It's practically God-like. Just cause they want it doesn't mean they need it or that we should give consent.

pterjy wrote on September 29, 2007 3:54 AM:

Why kidnap seven soldiers when it would be easier to kill them? Typically kidnappings are for ransom. The NSA/CIA probably thought of this possibility and wanted to tap the victims' families phones in order to locate the kidnappers. So, FISA enters the equation and (I am guessing) does not have language to support the surveilance of US citizens inside the US for the purpose of the possibility of intercepting a phone call or email from an unidentified Iraqi kidnapper.

How does the "Inspect America Act" deal with this problem?

pterjy wrote on September 29, 2007 5:20 AM:

Maybe the debate was over a turf war with the NSA and FBI and this was on FBI surveilance turf. Perhaps the NSA computer/spitters were more capable of surveilling US persons quickly to intercept a possible ransom call from an Iraqi kidnapper to the victims' families. The FBI (Mueller)and Comey knew that this situation opened the door enough to get the NSA's foot into domestic only surveilance and faced down Gonzo at Ashcroft's hospital bed.

In his zeal, Gonzales was chasing a rabbit into another dogs yard and the other dog objected.

Did either of them get the rabbit? Were the soldiers returned or rescued?

vox clamantis in red state wrote on September 29, 2007 6:48 AM:

While we quibble over this, Guantanamo, Abu Garib, and who knows where else are filled with them evil folks whose governments had no power to protect their freedom or privacy or LIVES.
What a monster we have created to secure our freedom, or is it slavery?

The Oracle wrote on September 29, 2007 7:40 AM:

Certain Republicans, especially members of the culture of corruption branch of the Republican Party, hate any legislation ever enacted by Democrats.

FISA was passed in 1978 by a Democratic-controlled Congress and signed into law by a Democratic president, in response to the lawlessness of the Nixon years. Thus, just as anything enacted by Democrats over the past fifty years, certain culture of corruption Republicans must circumvent, nullify and destroy it. If we lived in a dictatorship, the throats of the FISA court judges would have already been cut by the Republicans hell-bent on reversing everything Democratic.

In the meantime, and since we still presumably live in a democracy, certain culture of corruption Republicans (and even certain corrupt, ultra-conservative Democrats like Lieberman) have been doing everything possible to cut the FISA court out of the intelligence overview and authorization loop, so culture of corruption Republicans in the White House can spy on anyone they so choose without constraint of any kind...just like Nixon.

Except in the case of the culture of corruption Bush administration and with the technological advances of the past several decades, we're looking at the lawlessness of the Nixon administration on steroids.

I really fear for our democracy and the sacred trust handed down to all of us by our founding fathers.

bp wrote on September 29, 2007 9:37 AM:

I am confused. Sorry. If US soldiers are kidnapped in Iraq why can't the agency responsible tap into those conversations among the Iraqi based kidnappers? Now the kidnappers'system might work through the US but it an on the ground battlefield issue issue where a rapid response to co-ordinate rescue efforts is an operational matter. Are we extending constitutional protections to foreign kidnappers just because the switching gear is US based? This is bizarre. help, someone.

FMArouet wrote on September 29, 2007 10:02 AM:

Mary makes some excellent, thought-provoking points. She clearly has some experience in this area.

I wonder whether a key issue may be a "store now, sift and filter later" approach. If packet-switching inherently makes it difficult to pinpoint and intercept point-to-point communications, perhaps the industrial age solution is to vacuum up as much voice and data traffic as possible, store it, and then data-mine it when convenient.

Of course, if this turns out to be how things work, there are huge openings for potential abuse, especially if data-mining is farmed out to non-governmental contractors, some of whom might be encouraged to pursue political agendas in screening such all-inclusive data. Has McConnell's old company, Booz Allen and Hamilton, been involved in such data-mining?

Mary's point about collecting only for "national security" purposes also raises an interesting question. If we can assume that before the Bush/Cheney Administration, the intelligence agencies of the USG were not permitted to take collected intelligence and pass it on to particular U.S. corporations for their particular commercial advantage, can we not also consider it more than merely likely that the corporatist ideologues of the current administration would wish to reverse this policy in order to use intelligence to assist their favored corporate patrons?

Has sensitive information gathered by NSA and CIA been passed to, for example, Lockheed Martin, General Dynamics, ExxonMobil, Chevron, Halliburton, or Goldman Sachs to help them gain the advantage over competitors, whether domestic or foreign?

I've found it very interesting that Goldman Sachs, Treasury Secretary Henry Paulson's old employer, has been doing exceptionally of late, despite the recent turmoil in the markets. Has Paulson been getting on the phone in the late afternoon to provide to his old Goldman Sachs buddies some timely NSA or CIA advice on buying or selling at the end of the trading day?

Or how about Hunt Energy's recent signing of a production sharing agreement with Kurdistan, essentially betting on the breakup of Iraq? By the way, Hunt Energy's CEO, Roy L. Hunt, also happens to sit on Halliburton's Board of Directors. Was Hunt passed a little inside intelligence from Cheney's office?

Is there some kind of pattern emerging here?

It could open up a whole new avenue for the questioning of McConnell before Congress.

dm wrote on September 29, 2007 11:18 AM:

bp,
I think we should be careful to remember that the administration is making two separate arguments with respect to the probable cause requirement.
First, they argue that the Fourth Amendment to the Constitution does not require that the government obtain a warrant based upon probable cause prior to searching a communication that is located in the US but that is also in transit between a non-US point of origin and a non-US destination. I'm not qualified to advance or refute this assertion.
Second, and perhaps more importantly, they argue that, if the Constitution does not require a warrant based upon probable cause for this activity, then Congress should not impose such a requirement. Congress is generally free to require additional protections beyond the minimum requirements mandated by the Bill of Rights. Consequently, to deter Congress from doing this, the administration is making a policy argument that imposing a probable cause requirement on this activity would reduce (and has reduced) excessively the efficiency and efficacy of the activity. Essentially, they assert that a purely statutory probable cause requirement just makes their job too difficult to properly accomplish.
My impression is that confusion arises when these two arguments, one constitutional and one policy-based, are conflated. The Iraqi kidnapping incident could advance argument 2 ("it takes too long") if there was in fact a serious problem beyond executive incompetence, but it is also being used to advance argument 1 ("warrants are constitutionally unneccessary in these circumstances"). My point in my earlier post was that I don't really see how the incident advances argument 2 (given that the probable cause requirement appears to have been satisfied). Someone smarter than me will have to post about whether it advances argument 1 at all, although my suspicion is that argument 1 concerns a constitutional principle that is distinct from the actual impact on law enforcement or the military.

lambert strether wrote on September 29, 2007 11:32 AM:

Sorry to be foily, but I don't think this perspective has ever been shared (except in the Times letters section, which is where I found it).

Of course they want to surveill US citizens in the US.

The real bottleneck in the program as described must be our capability to translate what's intercepted.

Yet, we have very few Arabic translators, and not just because Rummy fired all the gay ones. Further, any terra-ist who is more than a wannabe is going to use word code anyhow.

So, the volume of what's being intercepted -- and on volume, McConnell is flat out lying[1] -- is totally disproportionate to our ability to process it.

Unless, of course, translating the interceptions isn't a bottleneck, because the interceptions being processed are all in English, i.e. domestic.

The nice thing about this theory -- and it would be deeply irresponsible not to speculate -- is that all the technical issues drop away, the vehemence with which the Republicans are defending it is more than explained, as is the raw fear of the Democrats and the Beltway generally whenever the program is even approached.

As soon as you assume the intercepts are English and domestic, everything becomes simple and clean.

Eh?

Of course, they would never do that.

[1]

http://www.correntewire.com/interview_nsas_mcconnell_claims_warrantless_surveillance_datamining_is_surgical_without_mentioning_the_internet_hes_lying

TheraP wrote on September 29, 2007 11:45 AM:

This whole discussion here, which again demonstrates the best of tpm reporters and commentators, is veering back to how under bush this whole administration, and all its scandals, cronyism, and deceitfulness all comes back to one central point - organized crime masquerading as government. Use of information gathering and for the purpose of silencing dissent and feathering the nests of the rich and powerful. The gutting of DoJ, swaying of elections, privatizing everything, raising of militias not subject to military discipline, perversion of the constitution and bill of rights, breaking of treaties, invasion and occupation to control resources. All of this threads through the muck tpm has been burrowing into.

As much as we need to be scrutinizing every tiny bit of information and action taken within this web of deceit and greed perpetrated by the bush/cheney cabal, we also need to maintain a view of the whole - the sordid, sorry picture of a great nation descending into fascist organized crime on a world-wide scale. And the terrible price paid at home and abroad for a pretense of "freedom."

Others may be able to say this better than I have. And I hope you will. But this state of affairs, becoming clearer and worse by the day, must be stopped!

What does it profit us to live on a planet together and not think and act for the welfare of all its inhabitants? Not just the rich. Not just Americans. The foolishness of short-term greed and flouting of law and the rights of others fits so well with the history of a man who never outgrew adolescence and is play-acting his cowardly, arrogant way through the presidency... a word he has tarnished beyond all recognition.

Joe Monster wrote on September 29, 2007 1:38 PM:

DOJ will do whatever the 'President' says.
McConnell's bad.

Kathleen wrote on September 29, 2007 3:58 PM:

Felony penalties can be imposed on those who do not prove probable cause.

this is comedy gold. Bush officials concerned about felony prosecutions?!

unfinished post wrote on September 29, 2007 6:25 PM:

Side note: another Cheney challenger bites the dust
http://www.fas.org/blog/secrecy/2007/09/isoo_director_leonard_to_step.html

This may be good-ish news, it suggest the white house is doing the "housecleaning" needed when a new AG might decide on an ISOO complaint against Dick`s office.

Do they have reason to suspect the next AG might not only remember this issue, unlike Gonzales, but also decide against the Cheney/Addington parallel classification system? Its a nice reminder that fireworks are still possible. Its only bad news for the few brave souls who are still interested in finding the truth before Cheney takes it with him to his grave.

> The fact that McConnell, through his
> spokesman, has replied DIRECTLY to TPM is
> one more piece of evidence of TPM's
> increasing clout in the political debate.
No it isn`t, its the result of a PR (not popularity mind you, just PR in and of itself) obsessed administration that has given the order that higher ups should waste their time "correcting" stories on blogs rather then doing their tax dollar work.

The fact that Bush media people think the TPM empire shapes opinion would be evidence of TPM shaping opinion and steering the debate... If there was no decent case that the executive PR folk is incompetent. Seriously: Katrina, they had a 1 year warning of the NSA story and still needed a day to come up with the otherwise brilliant "I did it and I would do it again" strategy?

If they didn`t have a braindead MSM and a GOP to busy with other things to figure out its own talking points... then this PR obsession would have collapsed under its own weight.

Back to the NSA.
The lie isn`t that its that this is because "technology changed". Technology did change... in the 80``s and early 90`s! What changed in 2000 (2002?) is that the NSA turned to:
A. wires on US soil,
B. call record databases on US soil,
C. presumably call records and internet traffic data from wires on US soil... and D. then used this to target US nationals without probable cause but with only a weak bit of traffic data network analysis.

The details of pre-bush FISA are interesting, but they didn`t involve the NSA. And if Bush had put in a few extra lines in the FISA language of the patriot act, then noone would have cared.

At least, thats one thing you can get if you put together Risen, Hayden, Mark Klein, the ACLU complaint and McConnell.

Dee Illuminati wrote on September 29, 2007 7:35 PM:

With all due respect to NID, I have to ask, based on the assumption in an 'emergency petition' where an individual is deemed to be a danger to himself or another, 'a criterion' that superseded the civil rights of that individual to be detained without cause, I have to wonder like the rest: WHY THE DELAY?

I have to wonder if the delay was 'willful malicious obedience' in order to make a political case based upon the conjecture that no probable cause warrants saves lives?

It would almost seem that that assumption would be useful political currency especially if there was a backlog of cases where abuses did occur and that attendant NSL's were used to harass an individual whom might have known that a presidential daily brief did exist that warned the POTUS prior to 911 before it was common knowledge, or that there was people jumping up and down in the intelligence field before that event occurred, and that that was an inconvenient truth to some whom wanted to spin that event politically and that a retroactive 'blanket amnesty' of these types of acts would be helpful?

I'm not sure to be more upset that the full 72 hours was not initiated 'VIGOROUSLY' and 'IMMEDIATELY' based on that actionable intel that is the basis of an assertion that a US soldier death might have been avoided, or that that actionable intel was vague and that the assertion was without merit and a hindsight argument, or finally: that that actionable intel could not be monitored by an independent court of the FISA offices?

Was this a day late and a dollar short within a 72 hour framework? Was this a situation where the 72 hour timeline elapsed? Or as what I seem to be gathering is that the DOJ asserted that the communication traveled intra-lata in the USA and though the RBOCK calling customer premise environment was in Iraq, and that the recipient RBOCK customer premise environment was in Iraq that there was a warrant needed???

I would like to see a map of the clark belt, international trunk lines, microwave transmissions, and even the lurid and insidious map of a cell phone picking up a canadian transponder and still have you square the argument that the warrant and the actionable intel to save a US soldiers life was not vigorously pursued?

THis smells to me like a post-hoc rationalization for an existing back-log of bad behaviors, and I want to also point out that it was yourself and your office that by disclosing this incident precipitate this discussion.

Now that you have brought it up, can you elaborate with a lucid answer that a rational person can understand ?

And finally, if you really lack men of good faith, lack leaders whom know the difference between a life and death scenario, and the offset of jury nullification, then HIRE SOMEONE with a clear record of being a non-partisan, non-yes-man!

If somebody really did gutlessly allow a soldier to die quibbling, lets not play Pharisees and Sadducees. Dee Illuminati don't play that crap.

What we are really concerned about is this, is there an INDEPENDENT COURT after the fact to look at NSL's and ask the question, is this cointel prosecution based on political motives only?

JM Hanes wrote on September 30, 2007 3:58 AM:

I'm afraid I wasn't collecting links at the time, but IIRC, a FISA ruling prior to passage of the Protect America Act essentially held that even if a foreign to foreign call were simply routed through the U.S., it could no longer be classified as a foreign to foreign communication which would not ordinarily require a warrant. Unfortunately, the way satellite relays & other transmission technologies work mean that this happens all the time, even when both ends of the conversation are taking place outside of the U.S.

The FISA ruling took almost everybody by surprise, and it suddenly turned the tracking of foreign communications on its ear -- in precisely the ways demonstrated by the case in point. The problem was remedied in the PAA, and it's why that particular corrective measure was passed without serious objection.

Dee Illuminati wrote on September 30, 2007 9:56 AM:

I would like to see a panel discussion with NSA and FBI focusing on the US eavesdropping and ask the question, in regard to NSL's based on NSA data, was there circumstances where ongoing investigations were sustained when, foreign governments whom cooperate in terrorism investigations provided a lead, and then a US target was investigated? And what was the HIGHEST COUNT of what I would like to describe as 'harmonic feedback rationale' where that US individual remained a target where the eavesdropping and NSL's continued, for how long eavesdropping? what count of total NSL's, and where the US target after prolonged investigation was found 'not to have any terrorism ties?' Include please investigations initiated in this count of 'harmonic feedback rationale' investigations initiated in concerted count based on 'know your banker rules' where legal financial balances were used as a justification as well?

What you will find is that the 'repeated squandering' of investigative resources could have been avoided if there had been a FISA judge that said: "you have had this individual under perpetual investigation' for years, what genuine probable cause is there?

Here is a very simple question: what is the highest count of NSL's issued, eavesdropping duration, and number of inputed investigation sources, that included foreign leads that ended up squandering resources and making a strong empirical impression of abuse? If the FISA courts had been in the loop, would this empirical assumption of abuse exist?

William of Ockham wrote on September 30, 2007 1:13 PM:

"The FISA ruling took almost everybody by surprise, and it suddenly turned the tracking of foreign communications on its ear -- in precisely the ways demonstrated by the case in point. The problem was remedied in the PAA,"

But these conclusions are not supported by McConnell's timeline of events related to "the case in point".

Once again, as in the case of Moussaoui's laptop, the provisions of FISA and the performance of the FISC are not shown to inhibit the collection of intelligence.

Rather, the impediments to timely collection of intelligence lie within a poorly trained and poorly managed DOJ, still not prepared to deal with domestic security in a post 9/11 environment.

bjobotts wrote on September 30, 2007 1:23 PM:

We are not giving 4th amendment protections to Iraqi insurgents overseas...we are protecting our own 4th amendment protections and in this instance it involved Iraqi insurgents overseas. There was no need for any delay as the operation could have proceeded while approval was sought. The delay was not caused by the process but merely by the procedure and there was no excuse for it except for the way it was initially handled. You are suggesting the whole process is just too much trouble and want to eliminate it when it is necessary to protect 4th amendment rights in a number of other areas where its abuse would be harmful to American citizens. As Americans we have seen how this administration has abused the powers of it's office and so we are reluctant to increase its powers without checks and balances. Using the "ticking bomb" scenario to force us into giving this administration more power and authority is no longer justifiable. The protect America act was totally unnecessary as proven by the methods by which it was obtained...Using the threat of a terrorist attack on DC and insisting on urgency for a vote the day before congressional vacation was equivalent to a kind of political emotional blackmail based on fear and panic. There was nothing legitimate about it and it should be repealed. The FISA amendments already in place are more than adequate to handle our present day surveillance.

JM Hanes wrote on October 1, 2007 6:01 AM:

William of Ockham:

I'm certainly not disputing inefficiencies at DOJ. I could easily be missing something as well, so perhaps you could point out where my memory diverges from the McConnell timeline. The "case in point" to which my post refers, being the insurgent kidnapping of the U.S. soldiers.

Anonymous wrote on October 1, 2007 9:29 AM:

JM Hanes,

I think what William is pointing to in the timeline is the sequence of events on the morning of May 15.

1. At 10:52, the NSA determined that it wanted to engage in some surveillance requiring FISA authorization (presumably foreign to foreign communication passing through the US. Although the timeline is not specific, it looks like the DOJ told them that they alread had the authority to do some of it under an existing FISA order.

2. By 12:53, NSA had agreed that the requirements for an emergency FISA order had been met for any remaining gaps in coverage. As mentioned in an earlier post, it's hard to see how the requirements could have not been met in this situation. At this point, they did not need to go to the FISA court, they only needed authorization to begin from the AG. They could have sought after-the-fact authorization from the court.

3. For some unknown reason, people then spend about 3.5 hours talking about something.

4. After the unexplained talking ends, it takes about 15 minutes for the DOJ to put together all the information needed to get the AG or his designee to approve the emergency order.

5. DOJ then spends about 2 hours trying to get in contact with the AG or his designee. The AG finally gives approval.

6. 20 minutes after the AG's approval, the surveillance begins.

The point is that the necessary steps (1, 2, 4, and 6) were completed in less than 2.5 hours. Additionally, it's not even clear at what point NSA began to contemplate the requirement for an emergency order, so some of the 2 hour period between steps 1 and 2 may not be relevant.

I think the fair conclusion is that the 7 hour process could have been properly accomplished in between 1 and 2 hours.

vodoqc wrote on October 1, 2007 12:55 PM:

You know, this is the case intentional incompetence. It would be the same as a cop sitting commonly and dumbly saide while your house is robbed and defending himself by saying "Well, we saw them moving stuff and we were pretty sure it wasn't their stuff, what with the guns and masks and everything. But we can't act until we're sure it's not their stuff thy left over, maybe after a big party or something. Really, it's your fault; if you'd just let u come into your house without those pesky warrant things,none of this woulda happenend."

Of couse this is a bit worse then my example: Real peope were invovled. There should be charges for aiding and abeting brought up against McConnell an his aides.

JM Hanes wrote on October 9, 2007 2:06 AM:

Anonymous:

Just in case you're cleaning up your bookmarks like I am and happen to revisit this thread, I meant to thank you for repsonding with the details. Not sure how I missed doing so the first time around!