Wiretapping

Jury Still Out On Wiretapping Verdict's Significance

Zachary Roth | January 16, 2009, 12:12PM

Yesterday we noted the news that a secret court had ruled that a law passed by Congress empowering the president to eavesdrop without a warrant was constitutional.

But there was debate over the broader implications of the ruling. The New York Times suggested that it could give "legal credence to the Bush administration's repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping."

But other commentators disagreed, arguing that the decision bore only on the law under review.

Now the Times has modified its take in a new story, which cautions higher up that the ruling "did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval,"

Still, the picture remains murky. One law professor tells the paper that "while the ruling did not address Mr. Bush's surveillance without warrants directly, 'it does bolster his case' by recognizing that eavesdropping for national security purposes did not always require warrants."

But a national security law expert disagrees, saying: "I think this kind of maintains the status quo. I don't think it is a surprise that the FISA court found that the legislation was constitutional."

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Topics: George Bush, Surveillance, Wiretapping

Surveillance

Massive Domestic Spying Investigation Coming Soon?

Andrew Tilghman | July 23, 2008, 10:37AM

After Democrats failed to muster any substantive opposition to the Bush White House's overhaul of domestic spying laws just a few weeks ago, it would be a striking turn of events if the House leadership launched into a massive, multi-decade investigation of how the government has been monitoring its own citizens since the Cold War.

But that's what Salon speculates about today in a far-reaching report from Capitol Hill.

While reporting on domestic surveillance under Bush, Salon obtained a detailed memo proposing such an inquiry, and spoke with several sources involved in recent discussions around it on Capitol Hill. The memo was written by a former senior member of the original Church Committee; the discussions have included aides to top House Democrats, including Speaker Nancy Pelosi and Judiciary Committee chairman John Conyers, and until now have not been disclosed publicly.

That's pretty interesting. This Democratic leadership doesn't seem to have done anything over the past couple years to suggest it is about to launch a broad, sweeping investigation into highly sensitive national security-related issues. (They haven't even really questioned the president on his hugely unpopular Iraq policies).

Reporter Tim Shorrock reaches as far back as the Regean Administration and culls evidence of a secret and potentially illegal database maintained by the National Security Administration called "Main Core." The existence of such a database has been the subject of speculation for years, but never confirmed. This database would presumably be the focus of any large-scale congressional investigation.

The investigation under consideration would be rare in its scope, potentially encompassing both Republican and Democratic administrations.

During one recent discussion on Capitol Hill, according to a participant, a senior aide to Speaker Pelosi was asked for Pelosi's views on a proposal to expand the investigation to past administrations, including those of Bill Clinton and George H.W. Bush. "The question was, how far back in time would we have to go to make this credible?" the participant in the meeting recalled.

That question was answered in the seven-page memo. "The rise of the 'surveillance state' driven by new technologies and the demands of counter-terrorism did not begin with this Administration," the author wrote. Even though he acknowledged in interviews with Salon that the scope of abuse under George W. Bush would likely be an order of magnitude greater than under preceding presidents, he recommended in the memo that any new investigation follow the precedent of the Church Committee and investigate the origins of Bush's programs, going as far back as the Reagan administration.

It's hard to think of any examples of a Congressional probe of the scope described here.

The Salon report notes that Democrats on the Hill may be reluctant to green-light the investigation because of their own party's complicity in approving certian surveillance techniques. Key lawmakers declined to comment for Salon's story, including Pelosi, Patrick Leahy (D-VT) and Russ Feingold (D-WI).

However skeptical we may be, the idea sounds fascinating. It's hard to think of much more exciting than a parade of witnesses on Capitol Hill revealing how the government has been spying on all of us since the Cold War. We'd be sure to cover that gavel-to-gavel.

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Topics: Nancy Pelosi, Surveillance

FISA

Senate OK's New Wiretapping Law

Andrew Tilghman | July 9, 2008, 3:07PM

The Senate overwhelmingly approved a new federal wiretapping law this afternoon by a vote of 69-28.

After last month's approval of a similar measure in the House, today's vote essentially clears the way for the bill to go to the White House for a final signature.

The bill approved includes sweeping and retroactive immunity for telecom companies that provided information about customers to government officials without a warrant as part of the Bush Administration's surveillance program imposed after September 11, 2001.

The vote was all but assured after the senators struck down three key amendments this morning that would have overhauled the spying laws without granting immunity to the telecom companies.

Sen Barack Obama (D-IL) voted for the bill.

Moments before the final vote, a handful of senators voted to filibuster the vote, including Sens. Hillary Clinton of New York, Russ Feingold of Wisconsin, Patrick Leahy of Vermont, and Tom Harkin of Iowa.

So what does that mean? It means that the nations largest telecom companies no longer have to worry about a batch of multi-million lawsuits filed by customers angered that the companies turned over their personal information to the government without a warrant.

It also means that if you are at home making an overseas phone call to a suspected terrorist, the government can monitor that call without a warrant.

And it's not clear how intel agents define who is a suspected terrorist.

Late Update: This post has been revised from its original version to correct the reporting of Hillary Clinton's vote on the motion for cloture.

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Topics: FISA, Surveillance

FISA

Final FISA Amendment Fails

Andrew Tilghman | July 9, 2008, 1:00PM

The Senate defeated the final -- and least-divisive -- of three amendments to the new federal wiretapping bill it's considering today.

It was closer than the other two votes today -- this one shot down 56-42. Rules required 60 votes to approve the amendment.

The third and final amendment called for Congress to wait until after reviewing a pending inspector general's report about the White House's surveillance program before determining whether to grant immunity to telecom companies. It was sponsored by Jeff Bingaman (D-NM).

The defeat of those amendments all but guarantees that the broader FISA law will pass when the Senate takes it up, probably later this afternoon.

The senators broke for lunch.

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Topics: FISA, Surveillance

FISA

Democratic Support For Blocking FISA Provisions Falls Short

Andrew Tilghman | July 9, 2008, 12:41PM

An amendment calling for federal courts to review whether telecom companies should get retroactive immunity was defeated in the Senate this afternoon.

The bill sponsored by Sen. Arlen Specter (R-PA) was knocked down by a vote of 61-37.

The main bill would grant sweeping retroactive immunity for telecom companies that provided information to the government about their customers without a warrant.

This amendment would have limited retroactive immunity to instances in which a federal court determines the assistance was provided in connection with an intelligence activity that was constitutional.

Many prominent Democrats voted in favor of the amendment, including Sens. Barack Obama and Hillary Clinton.

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Topics: FISA, Surveillance

FISA

Today's Must Read

Andrew Tilghman | July 8, 2008, 9:32AM

With all the talk about the new wiretapping law the Senate is expected to approve this week, there are many federal surveillance programs that are going largely unmentioned -- and unmonitored.

A story from the Baltimore Sun points out how limited the proposed FISA legislation is when considered against the whole alphabet soup of surveillance programs run by the federal government.

Although the latest FISA proposal includes numerous provisions for a secret court to monitor and authorize surveillance, and for inspectors general to keep tabs on who's being monitored by various agencies, little oversight exists for surveillance programs that fall outside FISA scrutiny.

For example, the new law will limit whether a CIA transcript of a conversation between a alleged terrorist and his relative in the United States could be shared with other spy agencies and analysts.

But it would have little control over whether, say, the Department of Homeland Security can share wiretaps or satellite surveillance with local law enforcement officials.

Lawmakers on Capitol Hill have requested information about these other surveillance programs, but many agencies are often reluctant to comply, citing security or secrecy concerns, the Sun reports:

Even when Congress has received information, lawmakers say their questions or concerns are often addressed within the agency that is responsible for the surveillance, amounting to a practice of self-policing.

"You don't have to look far into history to know that when the government, any government, is given secret authorities, that those authorities are ultimately abused," said Mike German, a former FBI agent who is now policy counsel for the American Civil Liberties Union. "You don't even have to attribute bad motives to anyone. In an intelligence officer's zeal to protect the country, they often will overstep their bounds."

In response to concerns, the Department of Homeland Security has created a privacy czar to see that federal agencies do not infringe on privacy laws or violate civil liberties. But some suggest that should be a Cabinet-level post in the executive branch since new technologies are constantly creating new questions and concerns.

"We should have what Canada has, which is a minister of privacy, someone looking out for the privacy issues of Americans," said James Bamford, an intelligence expert and author on two books about the history of the NSA. "We have armies of people out there trying to pick into everyone's private life, but we have nobody out there who's an advocate."

Meanwhile, the Wall Street Journal reports today about concerns that non-government surveillance is being abused for advertising purposes.

Wednesday, the Senate Commerce, Science and Transportation Committee plans a hearing on the privacy issues raised by online advertising. Critics, meanwhile, are questioning whether the practices used by NebuAd and other ad-targeting companies violate wiretap laws, which prevent carriers from monitoring customer communications.

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Topics: FISA, Surveillance

Surveillance

Dems Vent Opposition To Surveillance In Today's FISA Debate

Andrew Tilghman | June 20, 2008, 12:36PM

The House is now voting on changes to the new federal surveillance law.

There were plenty of Democrats speaking out against it during the hour-long debate.

"This bill scares me to death and I urge a no-vote," said Rep. Barbara Lee (D-CA), co-chair of the House's Progressive Caucus.

She compared the bill to the era of former FBI head J. Edgar Hoover. "We already remember how Dr. [Martin Luther] King and his family were the victims of the government's most shameless wiretapping. We must never go down this road again."

House Speaker Nancy Pelosi (D-CA), gave the bill a lukewarm endorsement, saying the bill many supported was "not an option."

She said the real decision was between this "compromise" bill and the one the Senate has passed, which offered even broader surveillance powers and more protection for telecom companies. "That is the comparison, the contrast, that we have to make today."

"I'm not asking anybody to vote for this bill. I just wanted you to know why I was," Pelosi told the House. "Difficult decisions for all of us. ... I respect every point that was expressed on this floor today. ... The knowledge, the sincerity, the passion and intelligence of those who supported and who don't support this bill have been very valuable in making this bill better."

Rep. John Conyers (D-MI) pointed to a constitutional concern.

"The grant of retro-active immunity is inconsistent with our basic principles. We are breaking with a very proud tradition and intervening in a pending court decision in an effort to reach a preordained legal outcome. This is a bad precedent," he said.

Republicans without exception spoke in favor of the bill, often citing the dangers of terrorism.

"This bill will prove that we have the ability to monitor the conversations of al Qaeda overseas," said Rep. Dan Lungren (R-CA) "It's not the Mona Lisa, but it's not a bad paint job."

Rep. Dennis Kucinch (D-OH) spoke briefly. "These blanket wiretaps make it impossible to know whose calls are being intercepted by the National Security Agency."

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Topics: Surveillance

Surveillance

FISA Debate Gets Underway In The House

Andrew Tilghman | June 20, 2008, 11:24AM

The House debate about the FISA law is underway. The House has capped debate at just one hour.

So far, the Democrats seem to emphasize that this legislation will not get the Bush Administration off the hook.

Rep. John Conyers (D-MI) said he opposed the bill, but did point to one bright spot in the legislation.

"[The bill] will ask the inspector general to conduct an independent investigation of the president's wiretapping program," Conyers said. "This will uncover the truth for the American people, hopefully, about the president's activity."

Rep. Sylvester Reyes (D-TX), the chair of the House Intelligence Committee, also noted that: "This bill does not grant immunity to any government official that might have violated the law."

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Topics: Surveillance

Surveillance

Today's Must Read

Andrew Tilghman | June 20, 2008, 10:10AM

After everyone had a chance to sift through yesterday's breakthrough "compromise" on a new federal surveillance law, the biggest winer of the day was not Republicans or Democrats but the telecom companies.

Today's Washington Post summarizes the legal impact succicntly in it's front-page story :

The agreement extends the government's ability to eavesdrop on espionage and terrorism suspects while effectively providing a legal escape hatch for AT&T, Verizon Communications and other telecom firms. They face more than 40 lawsuits that allege they violated customers' privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks.

The final compromise on the immunity issue was this: Many Democrats had wanted the federal courts to review whether the surveillance program was legal before granting immunity. The White House wanted the courts to have no involvement whatsoever. The "compromise" calls on the courts to consider the surveillance legal if the companies can prove that the Administration told them it was legal. (Which we know they did).

The Chicago Tribune reports:

The new bill would require federal courts to cast those lawsuits aside if the companies can show that they received written requests from the government stating that their cooperation was deemed lawful and had been authorized by the president.

The House is expected to vote on the measure today. Though billed as a compromise, the final version was viewed as a victory for the White House, according to the Post.

But overall, the deal appears to give Bush and his aides, including Attorney General Michael B. Mukasey and Director of National Intelligence Mike McConnell, much of what they sought in a new surveillance law.

As for the future of the spying program, this new law allows it to grow.

The Wall Street Journal this morning wrote:

The lasting impact of the agreement would be a broader scope for the government's domestic surveillance.

Before 9/11, the NSA had to acquire a specific warrant if it wanted to listen to any conversation involving a U.S. citizen. Now, the secret court would be able to approve broad patterns of surveillance, focused on groups of people believed to be overseas, even if they are communicating with people in the U.S. So without a warrant, the NSA could listen to the conversation of a U.S. citizen if he or she was talking to a suspicious person overseas.

Several Democrats spoke out against the bill, but enough of them agreed to assure this version will pass into law.

Again, from the Journal:

The outcome was driven largely by the realities of election-year politics. Democrats, particularly more conservative ones, in vulnerable re-election races couldn't afford to appear to be dodging a big national-security issue. And many believed the law needed to be updated before surveillance orders expired in August. House Democratic leaders struggled for months to find a proposal their entire party could support but couldn't overcome splits between conservative and liberal Democrats -- some of whom are reacting angrily to the deal.

Behind the political positioning, however, was the pressure from the telecom firms -- particuarly AT&T and Verizon, which both stepped up their lobbying efforts this spring.

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Topics: Congressional Subpoenas, Surveillance

Surveillance

Senate Opponents Decry Immunity Deal

Andrew Tilghman | June 19, 2008, 3:56PM

As lawmakers continue to react to the "compromise" deal on a new federal surveillance law, several Democrats in the Senate are coming out against the bill.

Sen. Russ Feingold (D-WI) has been the most outspoken since the deal was unveiled this morning.

"The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President's illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration."

Sen. Patrick Leahy (D-VT) also said he opposed the House deal.

"This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program. Therefore, it lacks accountability measures that I believe are crucial.

Sen. Harry Reid (D-NV), who has been cool to recent talk about the House deal, appears on the fence, and issued this statement today:

"Senator Reid believes this version is better than the bill the Senate passed in February and much better than the Protect America Act signed by the President last summer, but he remains opposed to retroactive immunity and is reviewing the bill in its entirety."

The Senate passed a bill that provided retroactive immunity to telecom companies earlier this year, so it's unlikely that there will be enough votes to defeat the latest version of immunity.

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Topics: Surveillance

Surveillance

"Bipartisan" Solution on Surveillance Unveiled

Andrew Tilghman | June 19, 2008, 1:38PM

Clearly the wrangling is over regarding the surveillance compromise. A formal statement went out today that everyone agrees on this matter.

Senate Intelligence Committee Chairman John "Jay" Rockefeller (WV), Senate Intelligence Committee Vice-Chair Kit Bond (MO), House Majority Leader Steny Hoyer (MD), and House Minority Whip Roy Blunt (MO) announced today that a bipartisan compromise has been agreed to that will modernize the Foreign Intelligence Surveillance Act.
...
"This bipartisan bill balances the needs of our intelligence community with Americans' civil liberties, and provides critical new oversight and accountability requirements," said Hoyer. "It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance. Furthermore, we have ensured that Congress can revisit these issues because the legislation will sunset at the end of 2012."

The Electronic Frontier Foundation has a copy of the new legislation here.

Read on for the complete text of the Congressional statement.

Read more »

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Topics: Surveillance

Surveillance

Lawmakers Reach Deal Over Government Surveillance Powers

Andrew Tilghman | June 19, 2008, 11:37AM

From the Wall Street Journal:

WASHINGTON -- After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders have agreed to a bipartisan deal that would be the most sweeping rewrite of spy powers in three decades. The House is likely to vote on the measure Friday, House aides said.

Removing the final barrier to action on the measure, which has been hashed out in recent weeks by senior lawmakers in both parties, House Democratic leaders decided to allow a vote on the bill, despite the opposition of many in their party.

The new agreement broadens the authority to spy on people in the U.S. and provides conditional legal immunity to companies that helped the government eavesdrop after the 2001 terrorist attacks, according to congressional aides in both parties.

Late Update: The deal-maker was offering some retroactive immunity to the telecom companies who have already participated in the program.

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed.

We haven't heard what "conditional" means.

Politico reports that the House Democrats have agreed to vote for it, possibly tomorrow.

Late Update: The Electronic Frontier Foundation says the deal offers broad immunity and says the Democrats caved in to pressure from the telecom industry and the White House.

"Whatever gloss might be put on it, the so-called 'compromise' on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review," said EFF Senior Staff Attorney Kevin Bankston. "We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court."

EFF is representing plaintiffs in a class-action lawsuit of AT&T customers who claim their records were illegally handed over to the National Security Agency (NSA).

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Topics: Surveillance

Must Read

Today's Must Read

David Kurtz | May 23, 2008, 11:54AM

It all depends on what your definition of "exclusive" is.

At the heart of the debate over warrantless wiretapping is whether FISA, by its own terms, is the exclusive means for the government to undertake electronic surveillance in counterespionage and counterterrorism cases.

The plain language of the FISA statute seems clear, stating that FISA is the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But nothing is ever that simple with the Bush Administration.

This week Sens. Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA) released a declassified sentence from one of John Yoo's notorious memos, written while he was serving in the Justice Department's Office of Legal Counsel. In it, Yoo managed to rationalize away the exclusivity provision of FISA in order to justify a warrantless wiretapping program outside of the FISA framework, without judicial oversight or regular reports to Congress:

"Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

Poof! Just like that, exclusivity disappeared and the Bush Administration was free to pursue warrantless wiretaping with the official blessing of the OLC. (Former OLC attorney Jack Goldsmith has described his office's memos as "advance pardons").

The Bush Administration says it no longer relies on the Yoo memo as the legal underpinning for warrantless wiretapping, pointing instead to perhaps an even weaker rationale, the post-9/11 AUMF:

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Exclusivity remains a key sticking point in passage of a new FISA law. Democrats are demanding language that erases whatever doubt there might be (although in fact there is none). The White House is balking.

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Topics: Must Read, Surveillance

Surveillance

Senate GOPer Hatching Secret White House Wiretapping Compromise

Paul Kiel | May 13, 2008, 5:06PM

It's time for your surveillance bill update. Sen. Kit Bond (R-MO) says that he's drafted a compromise on retroactive immunity for the telecoms. How does it bridge the gap between the House Dems, who refuse to wipe away the forty or so lawsuits against the telecoms for collaborating with the administration's wireless wiretapping program, and the White House, who refuse to pass any surveillance bill without such a measure?

Well, he's not saying, although he's dropping some hints:

"I think we've come up with some things that would involve the court, but not get to a position where it would endanger the program or the carriers."...

Bond said the language, drafted with White House consent, represented a "new provision we've come up with" on immunity. He would not give details other than to say that the FISA court would have a role. It is unclear whether the new approach will gain approval from Democratic leaders and negotiators.

Bond says that the measure is not the one that was offered by Sen. Dianne Feinstein (D-CA) that would have directed the secret FISA court to have determined whether the telecoms had followed the law or participated "in good faith with an objectively reasonable belief that such assistance was lawful." Most Democrats supported that, but all Republicans except Sen. Arlen Specter (R-PA) didn't. Since Bond says that his solution doesn't "endanger" the telecoms, one would think that his proposed solution would be even less risky than having the secret court make a determination as to whether the telecoms really believed they had legal cover. I can't wait to see it.

Meanwhile, The Hill also reports that Bond is negotiating directly with Rep. Steny Hoyer (D-MD). It's unclear as of yet whether Hoyer is amenable to Bond's offer, but they're talking.

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Topics: Surveillance

Must Read

Today's Must Read

Paul Kiel | May 12, 2008, 10:01AM

The president has said that his administration is employing every tool at their disposal to foil terrorists while protecting the civil liberties of Americans. For some reason, The Los Angeles Times opted not to take him at his word.

The secrecy necessary for counterterrorism prosecutions has combined with the rampant secrecy of the Bush administration to make it all but impossible to measure that balance. But the Times chooses a method, however imperfect, to gauge what's going on. Simply put: spying is up while counterterrorism prosecutions are down. The specifics:

A recent study showed that the number of terrorism and national security cases initiated by the Justice Department in 2007 was more than 50% below 2002 levels. The nonprofit Transactional Records Access Clearinghouse at Syracuse University, which obtained the data under the Freedom of Information Act, found that the number of cases brought declined 19% in the last year alone, dropping to 505 in 2007 from 624 in 2006.

By contrast, the Justice Department reported last month that the nation's spy court had granted 2,370 warrant requests by the department to search or eavesdrop on suspected terrorists and spies in the U.S. last year -- 9% more than in 2006. The number of such warrants approved by the Foreign Intelligence Surveillance Court has more than doubled since the 2001 terrorist attacks.

The department also reported a sharp rise in the use of national security letters by the FBI -- from 9,254 in 2005 to 12,583 in 2006, the latest data available. The letters seek customer information from banks, Internet providers and phone companies.

And as the Times notes, the Justice Department's performance in terrorism prosecutions has lately been underwhelming -- to wit, the farcical Seas of David case, where two juries have failed to reach a verdict.

As to what to make of these numbers, it depends on how much you're inclined to give the administration the benefit of the doubt.

On the civil liberty advocate of the question, the conclusion is clear:

"The number of Americans being investigated dwarfs any legitimate number of actual terrorism prosecutions, and that is extremely troubling -- for both the security and privacy of innocent Americans as well as for the squandering of resources on people who have not and never will be charged with any wrongdoing," said Lisa Graves, deputy director of the Center for National Security Studies, a Washington-based civil liberties group.

Meanwhile, the former head of the FBI national security law unit says it's just in the nature of the enterprise:

"Most of these threats ultimately turn out to be wrong, or maybe just the investigating makes them go away.... A lot more information is going to pass through government hands, and most of that is going to be about people who turn out to be innocent or irrelevant."

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Topics: Must Read, Surveillance

Surveillance

Today's Must Read

Paul Kiel | May 8, 2008, 9:59AM

Three for three?

National Security Letters have been the FBI's favorite toy for the past several years, and who can blame them? With none of the hassle of a warrant and a gag order that ensures stealth, the NSL is a counterterrorism investigators best friend. The FBI issues tens of thousands of NSL requests each year (nearly 50,000 in 2006). After a major review by the Justice Department's inspector general last year found a host of abuses, FBI Director Robert Mueller promised that the FBI would clean up its act. But that doesn't necessarily mean that the number of NSLs issued has gone down -- just that agents are on alert that they can't be so sloppy.

Yesterday, the Electronic Frontier Foundation and ACLU announced that they'd succeeded in getting the FBI to back down from an NSL request issued in late 2007. The request had gone to the Internet Archive and had requested personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records. It just so happens that the Archive's Digital Librarian Brewster Kahle is on EFF's board of directors, and he decided to fight the request. Except it wasn't easy due to the gag order that accompanied the letter: "Because they initially were not allowed to discuss the NSL over the phone, Kahle and his attorneys had to drive to one another's offices whenever they wanted to talk about the case."

But Kahle's lawyers at the EFF and ACLU were ultimately successful -- and the ACLU says this means that they've won every time they've gone to court to fight a NSL:

Every time an NSL has been challenged in court, the FBI has backed off, said Melissa Goodman, an ACLU staff attorney. "That calls into question how much the FBI needed the information in the first place, and finally, whether the FBI needs this kind of sweeping and unchecked surveillance power."

The two other instances of NSL withdrawals involved a library and an Internet consulting business. In February 2004, the FBI served an NSL on the Internet firm. In November 2006, the FBI withdrew the letter, after a lawsuit by the ACLU, but maintained the gag order, which is why the firm has not been publicly identified. The lawsuit, which challenges the constitutionality of the law authorizing NSLs, is still pending.

In July 2005, the FBI served an NSL on Library Connection, a library consortium in Connecticut. That year, the ACLU sued on grounds similar to the other case. In April 2006, the FBI withdrew the gag order. Three months later, it withdrew the NSL as well.

Meanwhile the FBI says that the information requested was "relevant to an ongoing, authorized national security investigation." I guess they'll just have to get the information some other way.

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Topics: Must Read, Surveillance

Surveillance

Secret Docs Show Telecoms, Admin Talks on Immunity

Paul Kiel | May 1, 2008, 11:02AM

From Newsweek:

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

One court declaration, for example, confirms the existence of notes showing that a telecom representative called an Office of Director of National Intelligence (ODNI) lawyer last fall to talk about "various options" to block the lawsuits, including "such options as court orders and legislation....

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

You can put this in the known unknowns category.

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Topics: Surveillance

Must Read

Today's Must Read

Paul Kiel | May 1, 2008, 9:59AM

You know those secret legal opinions by the Justice Department that tell the administration how far it can go without breaking the law? After all the hullabaloo over John Yoo's five year-old torture authorization memo, Attorney General Michael Mukasey assured Congress that the Justice Department really was working on releasing other memos. But he made no promises.

And yesterday, during a hearing on secret law held by Sen. Russ Feingold (D-WI) before the Senate Judiciary Committee, an official from the Office of Legal Counsel promised that the Department would allow members of the intelligence committees to see them -- but lawmakers won't be able to keep paper or electronic copies. The Department says that it's thinking really hard about whether the Senate Judiciary Committee can see them as well. For some reason, Feingold and his peers didn't seem satisfied.

The man who was the top classification official until January of this year appeared at the hearing and testified that the Department's decision to mark Yoo's torture memo "secret" and keep it classified for years after it was withdrawn showed "either profound ignorance of or deep contempt for" classification rules.

But as Donald Rumsfeld put it, there are known unknowns and unknown unknowns. And with this group, it's always a toss-up which is more worrying:

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

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

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration's contention that it can selectively modify executive orders "turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret."

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department's view that the president has the power to change executive orders.

Mr. Whitehouse said, "There's an important piece missing from that, which is not telling anybody and running a program that's completely different from the executive order."

Only seven more months of the Bush administration to go, and plenty more to find out.

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Topics: Must Read, Signing Statements, Surveillance, Torture

Surveillance

GOP Still Pushing Retroactive Immunity for Telecoms

Paul Kiel | April 25, 2008, 11:22AM

While House Majority Leader Steny Hoyer (D-MD) presides over negotiations on the new surveillance bill, House Republicans have continued to push the Senate's version, which contains retroactive immunity for the telecoms, every which way they can.

Earlier this week, they tried to convince moderate Dems that it really was in their best interest (sub. req.):

"This is an opportunity for the 21 Blue Dog Democrats who signed a letter supporting the bipartisan, Senate-passed FISA bill to prove that they are serious about America's national security," said Michael Steel, House Minority Leader John Boehner's (R-Ohio) spokesman. "Will they choose to protect their constituents or will they back the Democratic leadership in kowtowing to trial lawyers and liberal special interests?"

Meanwhile, Rep. Jerry Lewis (R-CA) (yes, that Jerry Lewis) will try to tack on the Senate's bill to the war supplemental spending bill. As The Politico notes, the Dems on the appropriations committee will likely vote that down, but "at the very least, he would put members of the majority on the record rejecting the Senate bill, something Republicans have done repeatedly."

So far the moderate Dems have held strong to the Dem leadership's position that retroactive immunity is off the table. Hoyer has said that he hopes that negotiations will result in a new bill by late May. Regardless, the next showdown is likely to take place before August, when the wiretaps authorized under the Protect America Act will actually begin to lapse. So we'll see what happens then.

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Topics: Jerry Lewis, Surveillance

Surveillance

Talks Start Again on Surveillance Bill

Paul Kiel | April 22, 2008, 1:49PM

The administration's campaign to gin up alarm over the lapse of the Protect America Act having failed , Republicans first signaled a willingness to sit down with Democrats earlier this month.

Of course, the administration still wants its retroactive immunity for the telecoms that participated in the warrantless wiretapping program and the House Dems still refuse to grant that. So it's unclear what sort of compromise might emerge. But the talks have begun. From The Politico:

Congressional staffers from both parties met with administration officials Monday to discuss controversial electronic surveillance legislation, an aide to House Majority Leader Steny H. Hoyer (D-Md.)confirmed, offering a ray of hope for the long-stalled bill....

Behind the scenes, Hoyer has emerged as a deal maker on the issue over the past several weeks, working as the go-between for liberal House Democrats unwilling to accept immunity and Senate Republicans who would block any bill that does not protect the telecoms from prosecution....

One House GOP aide said Hoyer is trying to get a proposal by the end of the week.

"He has August on his mind," said the GOP aide. "He knows it is the real do-or-die time for this."

Several of the authorizations governing ongoing surveillance programs are set to expire in August, which could force congressional action.

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Topics: Surveillance

Surveillance

Mukasey Refuses to Say Yoo Fourth Amendment Memo Withdrawn

Paul Kiel | April 10, 2008, 11:24AM

During a Senate Appropriations Committee hearing this morning, Sen. Dianne Feinstein (D-CA) questioned Attorney General Michael Mukasey about that October, 2001 Justice Department memo in which John Yoo found that the Fourth Amendment, which protects citizens against "unreasonable searches and seizures," had "no application to domestic military operations."

Has that memo been withdrawn? If not, was it still in force? Feinstein wanted to know.

She found it difficult to pry an answer loose. "I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo.

Here's video of the exchange:

That memo remains classified, and Mukasey said that working to declassify portions of or entire secret Justice Department legal memos by Yoo and others was a "priority" of his, but he refused to supply a timeline for when he might make those determinations. He was very mindful of Congress' "legitimate oversight role," he said.

"This isn't a question of oversight," Feinstein said. "I'm just asking you, 'Is this memo in force that the Fourth Amendment does not apply?"

"The principle that the Fourth Amendment does not apply in wartime is not in force," Mukasey replied.

"That's not the principle I asked you about," Feinstein countered. The memo referred to domestic military operations, she said.

"There are no domestic military operations being carried out today," Mukasey replied.

"I'm asking you a question. That's not the answer."

"I'm unaware of any domestic military operations being carried out today," he repeated.

"You're not answering my question," she said.

Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board."

When Feinstein pronounced herself satisfied, Mukasey said, "with due respect, I don't think there's anything really new about that answer." He went on to imply that Yoo's discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. "The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."

"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.

"Without regard to the Fourth Amendment?"

"Yes."

"My understanding is that is not operative."

The Washington Post reported last week that the Justice Department "repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on 'the particular context and circumstances of the search.'"

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Topics: Michael Mukasey, Surveillance

Surveillance

Post: Ashcroft Didn't Sign Off on Yoo Pentagon Torture Memo

Paul Kiel | April 4, 2008, 2:17PM

More evidence that John Yoo was the most powerful deputy assistant attorney general in the Justice Department's history. The Washington Post reports this morning that when Yoo issued his now-infamous March 14, 2003 memo to the Pentagon, neither Attorney General John Ashcroft, nor his deputy Larry Thompson "were aware."

As Marty Lederman has pointed out, the fact that the memo was issued under Yoo's own name is further indication that this was a back door authorization of interrogation practices.

The Post also sheds light on Yoo's earlier October 23, 2001 legal memo, the one that declared that the Fourth Amendment had "no application to domestic military operations." The memo "focused on the rules governing any deployment of U.S. forces inside the country 'in the event of further large-scale terrorist activities' by al-Qaeda" according to "a Justice Department official." Just what that sort of operation that might have been discussed or how long that memo remained in effect are unclear. In fact, it's unclear whether it might still be relied upon:

Although the memo has not been formally withdrawn, the Justice Department yesterday repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on "the particular context and circumstances of the search," according to a statement.

All that is clear is that Department officials are insistent that that memo had nothing to do with the warrantless wiretapping program. But as the AP has shown, that appears not to be entirely true.

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Topics: Surveillance, Torture

Michael Mukasey

Conyers Questions Mukasey on FISA Claim

Paul Kiel | April 3, 2008, 5:45PM

It's gotten to be something of a pattern with administration figures of late: making sweeping claims about national security matters that do not stand up to scrutiny. Just Monday, Sen. Russ Feingold (D-WI) complained that Director of National Intelligence Mike McConnell (who has something of a habit with this), had mischaracterized liberal opposition to retroactive immunity in the Senate as a bunch of impeachment-crazed loonies.

This time it's Attorney General Michael Mukasey who's catching flak. In a Q&A session after a speech last week, Mukasey said:

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

The problem with this, as Glenn Greenwald at Salon has shown, is that nothing of this sort seems to have happened. Greenwald asked former executive director of the 9/11 Commission Philip Zelikow, who responded that he was "not sure of course what the AG had in mind" and came up empty guessing.

In a letter today, House Judiciary Committee Chair John Conyers (D-MI) calls Mukasey's statement very disturbing and writes, "I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have helped prevent the 9/11 attacks." And anyway, he adds, there's no reason why the FISA law would not have served to intercept the call in this instance. So what's Mukasey talking about? he wants to know.

You can read the letter, which was also signed by fellow committee members Jerrold Nadler (D-NY) and Bobby Scott (D-VA), below. The lawmakers also ask, not for the first time, for a copy of the October 23, 2001 memo by John Yoo that declared the Fourth Amendment kaput (it had "no application to domestic military operations").

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Topics: Michael Mukasey, Surveillance

Surveillance

Interview with The New York Times' Eric Lichtblau

Paul Kiel | April 3, 2008, 2:24PM

Do we really understand the scope of the administration's warrantless wiretapping program?

We've already written a number of times about the new book by New York Times reporter Eric Lichtblau. And on Tuesday, I interviewed Lichtblau, who began reporting on the administration's wireless wiretapping program back in 2004 and won the Pulitzer Prize along with James Risen for breaking the story in December of 2005.

Among other things, I got him to walk me through what we do and don't know about the program. How broad was the surveillance? What does the NSA's massive data mining project have to do with the warrantless wiretapping? And does Lichtblau suspect that his own phone has been tapped?

Lichtblau also responded to Rep. Jane Harman (D-CA), who posted at TPMcafe on Monday of this week. Harman was in turn responding to a passage in Lichtblau's book, where he writes that when he approached Harman in 2005 about the administration's then-still-secret warrantless wiretapping program, she'd shushed him and told him that The New York Times did the right thing by not publishing the story in 2004. Beginning in February of 2003, Harman was a member of the so-called "gang of eight," the eight lawmakers, four Republicans and four Dems, who were briefed on the surveillance program.

Harman didn't dispute his account, but did take issue with his characterization that her position on the program underwent "a dramatic transformation" after the Times broke the story. She wrote in her post that she'd been completely in the dark that the program had involved wiretapping without warrants.

To which, Lichtblau responds below:

I think that assertion was consistent with what we’ve heard, that these briefings were very limited, very carefully crafted, that they were only told a certain amount about the program and given sort of a filtered view of it. I believe all that much is true.

I guess the next question is why the gang of eight were willing to settle for that....

I’m not saying the program shouldn’t have continued, but it’s one thing for four members of Congress to know what they were approving and to say, okay. It’s another thing to say we had no idea, then to allow this to continue for five years.

The full interview is below. TPM research hound John Amick provided the transcription.

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Topics: Surveillance

Surveillance

Yoo: Warrant Schmarrant

Paul Kiel | April 3, 2008, 10:58AM

Yesterday the ACLU noticed another of John Yoo's contributions to legal thought, tucked in a footnote of the March, 2003 memo. That footnote indicated that in a October 23, 2001 memo, Yoo had advised that the Fourth Amendment was too much bother. Here's that footnote:

The October 23, 2001 memo remains classified. And as the AP and The Wall Street Journal report, it's unclear exactly what sort of activities the memo was used to support. A White House spokesman denied that it had anything to do with the warrantless wiretapping program, but as the AP points out, "the government itself related the October memo to the [Terrorist Surveillance Program] when it included it on a list of documents that were responsive to the ACLU's request for records from the program."

And how long did the administration rely on this finding? "It was in use at least until March 2003 but not after January 2006," reports the Journal.

At the very least, it's apparent what Yoo thought about "Authority for Use of Military Force to Combat Terrorist Activities Within the United States." There seems to have been no limits to that authority. As Justin points out over at ABC, another of Yoo's infamous memos, the August 2002 "Torture Memo" signed by then-Office of Legal Counsel chief Jay Bybee, gave another indication of this:

A footnote to the Bybee document said that the October 2001 memo also concluded that Posse Comitatus –- an 1878 statute barring the military from participating in "law and order" missions domestically, under most circumstances – does not apply to the war on terror.

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Topics: Surveillance

Surveillance

Hoyer: The Administration Wants to Talk

Paul Kiel | April 1, 2008, 12:15PM

House Majority Leader Steny Hoyer (D-MD) confirms this morning's Wall Street Journal story that the administration has changed its tune. From Roll Call (sub. req.):

The Bush administration is “now in a position where they want to talk about a possible compromise” on stalled electronic spying legislation, House Majority Leader Steny Hoyer (D-Md.) told reporters today.

“I think, frankly, they were surprised” that House Democratic leaders were able to pass their preferred version of the bill, which would reauthorize and update the 1978 Foreign Intelligence Surveillance Act, just before lawmakers left for the two-week spring recess, he said.

Hoyer said he has been in conversations with administration officials and with House Minority Whip Roy Blunt (R-Mo.), all of whom have indicated that they are ready to reach a compromise.

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Topics: Surveillance

Surveillance

Feingold: McConnell Distorted Senate Surveillance Debate in Speech

Paul Kiel | April 1, 2008, 11:23AM

As we've often noted here, Director of National Intelligence Mike McConnell has frequently gotten into trouble for making statements that were either impolitic or, well, not true. And last week, in his zeal to demonstrate the unreasonableness of liberal critics, he made a statement that was both.

Speaking at Furman University, he said (pdf):

We had a bill go into the Senate. It was debated vigorously. There were some who said we shouldn't have an Intelligence Community. Some have that point of view. Some say the President of the United States violated the process, spied on Americans, should be impeached and should go to jail. I mean, this is democracy, you can say anything you want to say. That was the argument made. The vote was 68 to 29. It's a bill we can live with. It's the right bill.

Sen. Russ Feingold (D-WI) is not happy. Sure, many senators -- particularly Feingold and Sen. Chris Dodd (D-CT) -- objected to key aspects of the legislation, including the provision granting retroactive immunity to the telecoms. But the debate was nothing like McConnell describes. And Feingold writes in a letter to McConnell today that he ought to either back up his statement or "issue an immediate correction and an apology."

Feingold concludes:

While all sides of this debate deserve to be heard, to falsely attribute statements to United States Senators serves only to mislead the American people. It also undermines your credibility and that of the position of Director of National Intelligence.

We put a call in to McConnell's office to see what the response is. We'll let you know when we hear back.

You can see Feingold's letter here or read it below.

Update: As Spencer reported over at The Washington Independent last month, McConnell was similarly glib in criticizing those who disagree with him at a talk at Johns Hopkins.

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Topics: Surveillance

Surveillance

Today's Must Read

Paul Kiel | April 1, 2008, 9:57AM

OK, things were said. Patriotism was impugned, fear was mongered, attack ads were run. But that doesn't mean we can't work something out, does it?

The administration is ready to talk turkey, reports The Wall Street Journal. But if the administration "has signaled to Democratic lawmakers it is open to negotiation" about the surveillance bill, it's not entirely clear just yet where the administration is willing to give.

The centerpiece of negotiations, of course, will be whether telecoms will receive retroactive immunity for their participation in the administration's warrantless wiretapping program. Though a number of Senate Dems crossed over to support that, the House has managed to hold firm, twice passing a bill without retroactive immunity. Some Dems are floating "a pared-back version of immunity," such as limiting immunity to certain aspects of the program or capping possible damages. Talks about other aspects of the legislation, for instance concerning judicial oversight of surveillance, might come more easily.

But the reason for the White House's new tack is pretty clear: they used every weapon at their disposal -- presidential statements and press conferences, alarming letters and public appearances by the director of national intelligence and attorney general, time pressures created by the lapsing of legislation or a Congressional recess -- and none of it worked. The House, after all that, still passed a bill a world away from what the administration was pushing for. It was, as the Journal points out, a strikingly different outcome from August, when the White House's squeeze play worked to perfection.

The difference? Well, a number of things. But one thing in particular is the fact that Dems no longer trust the administration's point man, DNI Mike McConnell. From today's Los Angeles Times:

On the eve of a House vote on controversial wiretapping legislation last month, the nation's intelligence director, J. Michael McConnell, convened a secret weekend meeting in northern Virginia with members of the House Intelligence Committee.

The two-day session was designed to promote a calmer atmosphere for discussing an array of intelligence issues, including the nation's eavesdropping laws. But participants said the event ended with a series of acrimonious exchanges.

Democrats accused McConnell of making exaggerated claims and of doing the bidding of the Bush administration, according to officials who attended the event. McConnell bristled at the Democrats' charges, and chastised members of the committee for failing to defend the intelligence community amid a barrage of bad press.

As a wise man once said, "Fool me once, shame on — shame on you. Fool me — you can't get fooled again."

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Topics: Must Read, Surveillance

Surveillance

Harman: I Didn't Know Surveillance Program Broke The Law

Paul Kiel | March 31, 2008, 6:03PM

Earlier this month, we published an excerpt from Eric Lichtblau's new book, Bush's Law, in which Lichtblau wrote that when he'd approached Rep. Jane Harman (D-CA), then the ranking member of the House intelligence committee, about the administration's then-still-secret warrantless wiretapping program, she'd shushed him and told him that The New York Times did the right thing by not publishing the story in 2004.

In a post at TPMCafe today, Harman doesn't dispute Lichtblau's telling of the interaction, but does dispute that her position on the program underwent "a dramatic transformation," as Lichtblau writes, after Lichtblau and James Risen of the Times broke the story under the headline "Bush Lets U.S. Spy on Callers Without Courts" in December of 2005.

Before the story broke, she writes, she had no clue that "the Administration was violating FISA." She writes that the gang of eight had been briefed on "an NSA effort to track al Qaeda communications using unique access points inside the US telecommunications infrastructure," but that they'd been told nothing about warrantless wiretapping. Her "first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of “inherent” executive power," she writes, came after the story broke, when she was free to consult her staff.

So what does Lichtblau think of this? Well, we'll be interviewing him tomorrow about his book and we'll pop the question.

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Topics: Surveillance

Surveillance

Mukasey: I'm Open to Compromise... As Long As The Telecoms Get Retroactive Immunity

Paul Kiel | March 21, 2008, 5:33PM

Attorney General Michael Mukasey has an open mind. Way open. From The Legal Times' blog:

"We need to stay engaged here because the stakes are tremendous," Mukasey said. "We're willing and happy to work with Congress on a workable bill. The Senate passed a workable, bipartisan bill that contains some compromises. The House passed a bill that was neither bipartisan nor workable."

While Mukasey offered no hint that a compromise is in the works, he said the House proposal does not offer guarantees to the communications industry.

"The people we work with need to know that they can be secure in working with us," he said. "That would introduce the same level of uncertainty that would be introduced by having litigation go on in public...If you tell somebody that you've received assurances, but the propriety of your conduct is now up for grabs, that's not exactly reassuring."

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Topics: Michael Mukasey, Surveillance

Surveillance

Key Dem Urged NYT Reporter against Running Warrantless Wiretapping Story

Paul Kiel | March 19, 2008, 4:58PM

Here's another nugget from Eric Lichtblau's new book.

It's well known that The New York Times held the story about the warrantless wiretapping program for more than a year. A concerted lobbying campaign by the administration at first convinced editors at the Times not to run the story in late 2004. But Lichtblau adds a new detail about how one of the few Democrats who had been briefed on the program seemed to take the administration's side of things.

The administration's main contention (beyond lying about there being no dissent about the legality of the program) was that reporting the existence of the program would compromise it and tip off the terrorists. In his book, Lichtblau tells how a few months after the story was held, he happened to be covering a House hearing where he heard Rep. Jane Harman (D-CA) argue passionately for stronger civil liberties safeguards in the reauthorization of the Patriot Act.

Lichtblau saw this as an opportunity to question Harman about the warrantless wiretapping program, since Harman, as a member of the "gang of eight," was one of the four Democrats who'd been briefed on it. He writes:

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Topics: Surveillance

Surveillance

"The Pizza Hut Leads"

Paul Kiel | March 19, 2008, 2:21PM

In March of 2004, virtually every member of the Justice Department's leadership was prepared to resign over the administration's warrantless wiretapping program. Thanks to former Deputy Attorney General James Comey's testimony, that much is well known. But even as Congress has debated giving the telecoms immunity from civil suits for participation in that program, it's still not understood precisely what was going on that caused such a revolt.

In his new book on the Justice Department under George Bush, New York Times reporter Eric Lichtblau, who, along with James Risen, broke the warrantless wiretapping story, sheds more light on this episode (while leaving plenty unexplained). But putting Lichtblau's telling together with recently reported details about the National Security Agency's data driftnet, it's possible to come to a fuller understanding of what was going on.

Shortly after 9/11, the administration began a much more aggressive surveillance program, a program that had two main components: an aggressive data mining program led by the National Security Agency and wiretapping done without a warrant that stemmed from leads generated by the data mining.

While that program was ongoing, the FISA court was still approving warrants submitted by the Justice Department like normal. But sometimes the two processes crossed. Sometimes the Justice Department would want a wiretap for someone who had already been wiretapped without a warrant. Lichtblau reports that "some 10 to 20 percent of all court warrants fell into this area of 'double coverage.'" Department lawyers had a clear reason for wanting to go through the court if possible: they could not build a legal case against a suspect if the surveillance was illegal.

In that case, the Department, with the consent of the chief judge of the FISA court, set up a system where only the chief judge would handle such applications -- since none of the other judges were privy to the program. It was a dicey process. James Baker, the Justice Department official in charge of intelligence issues, set up a process where any Department lawyers working under him could "opt out," if he or she didn't feel comfortable forwarding such a wiretap application to the court, Lichtblau reports. "Several lawyers" took him up on that offer.

But about that data mining. The NSA's driftnet spat out leads that FBI agents found largely useless. Lichtblau explains:

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Topics: Surveillance

Surveillance

Complaints from Treasury Dept. Watch List Released

Paul Kiel | March 19, 2008, 11:02AM

From The New York Times:

A sheaf of documents that a federal court forced the Treasury Department to release indicate there have been repeated complaints from American consumers who have been falsely linked to terrorism or drug trafficking during routine credit checks, the organization that sought the documents in a lawsuit said Tuesday.

The more than 100 pages of documents released Monday to the organization, the Lawyers’ Committee for Civil Rights in San Francisco, include a variety of complaints about the list maintained by the Office of Foreign Asset Control in the Treasury Department, said Philip Hwang, a lawyer for the group....

The documents include e-mail messages from a Navy veteran who had been unable to use the Internet service PayPal, and an 18-year-old who wrote to say that he was not a Libyan minister who was apparently on the list.

A client of a Maryland Toyota dealer reported being checked by a salesperson for tattoos because of a Treasury list match.

A Treasury Department official was baffled by the last claim, saying information on the list did not include physical characteristics....

Another official said the department did not have numbers on how many people might have been falsely identified, since institutions can check their clients’ identity against the list and ignore it if something like the date of birth obviously does not match the person in front of them.

Remember that, according to The Wall Street Journal, the Treasury Department feeds transaction information to the National Security Agency for their vast data driftnet. So it's possible that a mistake on that watchlist could have led to much more than an inconvenience during a credit check.

If you're curious, the Treasury Department posts its watch list here (pdf).

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Topics: Surveillance

Torture

Administration's Lawyer Lauds "Healthy Process of Back and Forth"

Paul Kiel | March 18, 2008, 4:45PM

Last time we checked in with Steven Bradbury, the guy who tells the administration how far they can legally go (the head of the Justice Department's Office of Legal Counsel), he was explaining to Congress that the waterboarding technique used by the CIA on detainees was nothing at all like the "water cure" technique used by the Spanish Inquisition (it's actually similar to the Khmer Rouge). He also explained in detail his reasoning for why waterboarding was not in violation of the criminal statute barring torture.

This is the guy currently with the power to issue "advance pardons" for administration lawbreaking.

He is clearly not a man who shrinks from airing his views. And in a rare interview (sub. req.) with Legal Times, Bradbury proclaims that he's enjoying the healthy, vigorous debate occasioned by the administration's interrogation and surveillance policies.

Of course, Democrats might have a different way of seeing things. Bradbury has effectively run the office since 2004, even though his nomination has been blocked by Democrats. He has been nominated five times. Dems have even charged that the administration is breaking the law by keeping Bradbury atop the Office of Legal Counsel. The Vacancies Reform Act bars non-Senate-confirmed appointees for holding their jobs for longer than 210 days. But the Justice Department has responded that Bradbury is not breaking the law because he is not the official acting head of the office; he's officially the deputy who's carrying out the duties of the chief because the position is vacant. So voila! no problem.

In his interview, Bradbury proclaims that he "very much respects" the role of the Senate in confirming nominees:

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Topics: Surveillance, Torture

Must Read

Today's Must Read

Paul Kiel | March 18, 2008, 9:54AM

The administration threw everything it had at the Democrats. Statement after statement after statement on the White House lawn. TV ads, web ads. Letters from the attorney general and director of national intelligence raising the alarm about the danger the country is in. Even a TV appearance by the DNI himself to highlight the "increased danger."

And what did it get them? At the end of last week, nearly a month after the Protect America Act lapsed, the House passed a bill that does not contain retroactive immunity -- the bill even contains a provision that dispenses with the administration's main legal argument for blocking the lawsuits, the state secrets privilege.

So what now? No one on the Democratic side of the aisle seems to have bought the administration's line that the lapse of the Protect America Act is cause for concern. Wiretaps authorized by that law can go until August of this year. Wiretaps of new targets would have to be authorized under the old FISA law. But the authorities granted by the PAA are so broad (it authorizes wiretaps of entire terrorist groups) that as of two weeks after the law's lapse, no warrants of wiretaps for new targets had yet been required. That makes the administration's claim that such warrant requests will create a mountain of paperwork look pretty silly.

There seems to be a definite lack of urgency (despite the Republicans' terrifying web ad). And as the Politico reports, that lack of urgency on top of the considerable differences between the House and Senate surveillance bills -- most evidently on the issue of retroactive immunity -- means that the prospects for passing any bill through both houses appear dubious:

“I don’t know if there is a dire need to get it done tomorrow,” said one Senate Democratic aide. “Obviously we would like to see a resolution on this, but that is really hard to do when the House is voting on legislation that won’t pass the Senate and Republicans won’t even come to the table.”

Both houses are in recess for the next two weeks. And when the Senate gets back, Senate Majority Leader Harry Reid (D-NV) has planned a push on economic issues. How surveillance will fit into that agenda when the Senate likely doesn't have the 60 votes to even begin debate on the House's bill is not at all clear. And even if the Senate did pass something eventually, the distance between the House leadership and key Senate Democrats like Senate intelligence committee Chairman Jay Rockefeller (D-WV) on the issue of immunity makes the fate of such a bill unsure.

One thing that is sure is that conservatives think they have a winner of an issue here. So either from billionaire-funded attack groups or the Republican Party committees, the ads targeting House Democrats on the issue will keep coming. So far, however, such ads have had zero impact.

If no bill does pass in the next couple months, the next flashpoint seems likely to be July, shortly before the wiretaps authorized under the Protect America Act will actually begin to lapse.* You can be sure that the administration will mount another offensive. We'll see if that one is any more successful.

*Update: This post originally said that the authorizations under the Protect America Act will lapse in August. The authorizations are good for one year, meaning that authorizations from August of 2007 will lapse that month, but later authorizations will not lapse until a full year after their initiation. Thanks to TPM Reader CR for the fix.

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Topics: Must Read, Surveillance

Surveillance

Reid: "Very Encouraged" By Passage of House Bill

Paul Kiel | March 14, 2008, 2:22PM

Just out from Senate Majority Leader Harry Reid (D-NV):

“I am very encouraged by House passage of a new FISA bill. The new House version adopts the basic structure of the Senate-passed bill, but contains added privacy protections. Now is the time for Republicans to come to the negotiating table so we can resolve the last few issues. The President should stop giving high-handed speeches in the Rose Garden and start working with Congress to finalize this important national security bill.”

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Topics: Surveillance

Surveillance

House Passes Surveillance Bill without Retroactive Immunity

Paul Kiel | March 14, 2008, 2:07PM

The House Dem leadership's surveillance bill just cleared the House by a vote of 213-197 with 1 vote of present. 12 Dems crossed the aisle to vote against it.

The bill has stricter privacy safeguards than the Senate's version -- and of course does not contain a provision granting retroactive immunity for the telecoms' participation in the administration's warrantless wiretapping program.

As for what's next, it's over to the Senate where it's sure to undergo some modifications. In a statement earlier this week, Senate intelligence committee Chair Jay Rockefeller (D-WV) said that "considerable work remains" on reconciling the House's latest version and the Senate version. Rockefeller said he's willing to adopt a number of the House's provisions, including a much shorter sunset (2 years) on the law, but notably omitted the topic of immunity. Rockefeller supports blanket immunity for the telecoms.

The Senate is certainly a different place. Today, 12 House Dems voted against a bill that does not contain retroactive immunity (and some of those were from liberals like Rep. Dennis Kucinich (D-OH)). Last month in the Senate, 18 Dems voted against an attempt to strip retroactive immunity from the Senate bill.

Update: Here's the roll call.

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Topics: Surveillance

Surveillance

TOP SECRET

Paul Kiel | March 14, 2008, 11:25AM

The House is expected to finally vote on the leadership's surveillance bill this afternoon and debate is ongoing now. We'll keep you updated on how it goes.

The reason the vote was delayed, of course, was the extremely rare secret session requested by Republicans (only the fifth since 1825).

It's unclear exactly what went on. For one thing, it appears from comments Republicans made going into the session that they didn't actually discuss the details of the administration's warrantless wiretapping program. Rep. Pete Hoekstra (R-MI) tells the AP that he had read aloud the titles — but not details — of intelligence reports "that shows the nature of the global threat and how dynamic the situation is, and how fluid."

Democrats are as dismissive afterwards as they were skeptical going in. Rep. Lloyd Doggett (D-TX) dismissed it as "mysterious hocus-pocus" on the House floor this morning. House Majority Leader Steny Hoyer (D-MD) said that he didn't "hear any new information" that dissuades him from supporting the Dems' bill. (Meanwhile, House Minority Whip Roy Blunt (R-MO) said in a statement that he was satisfied with the session and “As members go home, I hope the information and debate we heard will help inform their decisions when we consider the legislation that will be before the House tomorrow.")

Dana Milbank writing in The Washington Post can hardly restrain his mockery of the whole thing -- and has a hard time deciding whether the debate to go into closed session was sillier than the closed session itself.

But if it was a PR stunt, I have to say that the secret session seems to have fallen far short of the GOP's staged walkout in garnering publicity.

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Topics: Surveillance

Surveillance

House Vote on Spy Bill Delayed until Tomorrow

Paul Kiel | March 13, 2008, 6:25PM

We'll keep you updated. And we'll see how that historic closed session goes.

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Topics: Surveillance

Surveillance

House to Enter Rare Closed Session over Spy Bill

Paul Kiel | March 13, 2008, 4:18PM

From CQ:

The House was to meet Thursday in its first closed session in 25 years to debate a Democratic leadership-backed rewrite of electronic surveillance law....

Earlier, Minority Leader John A. Boehner said Republicans would ask for the closed session to have an “open and honest debate about some of the important details about this program, that don’t need to be heard in public.”

Speaker Nancy Pelosi , D-Calif., has agreed to the request.

“We’re having debate on the bill. And I don’t have any problem with having part of it in closed session, and part of it in open session,” Pelosi said.

House Judicary Committee Chair John Conyers (D-MI) is skeptical:

"The more my colleagues know, the less they believe this Administration's rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration's actions in the area of warrantless surveillance, the more likely they are to reject the Administration's scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration's documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

Read more »

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Topics: Surveillance