These apparent trivialities are crucial to stopping the rampant illegalities that Greenwald has been sounding the alarm about. One point I forgot to make in the comments to your prior posts is that one of the reasons that the Bush administration is so desperate to avoiding talking about the dispute is that talking about it would undermine their ’state secrets’ strategy for avoiding legal review. Eventually the federal Judiciary is going to find out that the ’state secrets’ defense is only used by the Executive Branch when they are breaking the law. With any luck this will be the case that does away with that pernicious doctrine once and for all.

I am not sure that I read the two sources who say the dispute was about data-mining and â€other issues†necessarily unhelpful to Gonzales. We don’t really know what the â€other issues†are, and it is possible that they do not include the practice of wiretapping-without-warrants.

If you look back at Bush’s 2005 announcement, he refers to the eavesdropping, and says something to the effect of â€before we do this we determine that the communications involve Al Qaeda.†If the data-mining is one of or the way in which conversations are targeted for warrantless eavesdropping (which makes sense, since you couldn’t make a showing of probable cause based on data-mining alone), then how can Abu G credibly contend that his June 2006 statement about â€the program the President disclosed/confirmed/authorized†does NOT refer to both the eavesdropping and the the data mining?

The interesting thing to me about metadata and the use of sociometric techniques to analyze it, is that it would be a very potent tool for keeping up with how and when your â€enemies†are â€talking amongst themselves.â€

That, however, would be predicated on a pretty tight focus on who your â€enemies†are.

Assuming for the sake of argument that Cheney – representing the president but not speaking officially in his name or necessarily with his actual knowledge – has â€authorized†certain government entities to collect and analyze metadata on people other that brown terrorists over yonder, could he actually convince Hayden and others at NSA to do his political dirty work? How else could domestic political (or economic) spying, based on metadata (collected by NSA) go forward? Should we be looking for another agency in DOD whose job it is to analyze the metadata traffic being sucked in by NSA? Is the â€program†or â€activity†that Comey, Goldschmidt, Philbin, Rockefeller, etc. objected to simply the fact that what has been â€authorized†is the transfer of metadata from NSA to ???

I have to really, and I mean REALLY, salute the people here scouring the weeds and plumbing the depths on the details; you are doing an absolutely amazing and important job. And, for my money, nobody does it better than the folks here and their able leader. Alright, enough of the cheerleading stuff, as you have noticed, that isn’t my strong point (if indeed there are any) anyway. As many of you are far better, and knowledgeable, about the micro-details than I, I would like to supply a couple of broader thoughts to place in the framework of your analysis.

It is basically incontrovertible at this point that the TIA never really died, and probably is still going as we speak. The bits and pieces may have been shuffled around, like a shell or three card monty game, but when all is said and done, the Administration put it in place and didn’t look back. Quite frankly, by this point, it probably has more tentacles and is more pervasive than even Poindexter originally contemplated. With Cheney et.al., if they can do they will do it, legal or not and the track record is pretty much perfect on this statement. So, assume that until proven otherwise. However, that is a far different matter and conclusion from how the intercepted data was sorted, used and distributed.

This stuff is complex (I know, that is a duh statement). My point is that I have extremely grave reservations that it, as a whole (i.e. â€the Programâ€) could be brought into compliance with both Constitutional and statutory law even if there was an earnest good faith effort, above board, by all concerned. And, of course, we know there was no above board good faith effort; it was ushered in with subterfuge, smoke and mirrors. This means there is no way in hell it is legal or constitutional; it is simply a matter of how illegal, unconstitutional and bad it really is. Keep in mind that it is the government’s incumbent duty to establish legality on fundamental Constitutional rights considerations.

There has been much consternation about the relative potential legality of the interception of the data and the subsequent sorting, use and distribution. This area of the equation is as detailed and complex as the facts we are desperately trying to piece together. There is no way to make a cogent determination on any individual aspect or piece of the puzzle without knowing the whole picture. The administration shell game depends on you not realizing this. This is also why they constantly dart, duck, appear, shift, blur and dance around like one of the Ferengi from Star Trek. If you keep trying to make legal judgments on one of the individual pieces on an interlocutory basis, it shades, jades and compromises the rest, and indeed the whole, of your consideration. You have to either assume it is all legal and start putting all the facts together with an eye toward determining if there is any thing illegal or, as I very strongly suggest, assume it is all illegal/unconstitutional and sort through it to see if there is any indicia of legality. The Administration is constantly trotting out some song and dance about why this or that is perfectly appropriate (the â€program the President has confirmed†for instance) and the media, and most of us, suddenly start focusing on that and working madly to prove or disprove that. That is the shell game; QUIT FALLING FOR IT.

There are plenty of intelligent and legal modalities, or ones that could be made so if handled properly, that would actually make sense and do far more to protect this country than what Cheney and Bush hath wrought. But Cheney and Bush would have none of that; instead they have treated us to this clusterfuck that is illegal, immoral and unconstitutional, not to mention that even if it worked properly, it is not likely (as many of the tech and security heads here have eloquently explained, and the FBI has stated after returning from pizza, beer and falafel runs) to produce usable intel. This crap makes McCarthy look like a piker in many regards.

Oh, and as to Greenwald, as much as I admire and respect him, I agree completely with EW about the parsing/non-parsing etc. for exactly the over arching considerations discussed above. I think he, like all of us have from time to time, is falling for the shell game here. I posted this on the last thread by mistake, so despite the unusual length for me, I posted here as well. Sorry about that chief….

Mary

Agree with you there. Perhaps I’m in a good mood about Rockefeller today because I’m seeing the way he constructed his letter to be a smart legal document. But boy, Reyes is a cheerleader, huh?

Dumb question — What is ’IIRC’?

The assumption here is that Hayden was being deliberately evasive –â€We would never do X,†when what he was concealing was that they were doing XY which is slightly different from X. But another possibility is that NSA was not the assigned data miner — it was farmed out to/controlled by some other entity, e.g., an org more directly under Cheneyites control. And I’d like to see this linked back to the FBI = domestic surveillance, because there had to be a reason why Mueller was so implicated that he felt he had to resign too. Having this all within NSA doesn’t get me there. Is there an answer I missed?

scarecrow

Yes, that has been (credibly, I think) explained, and Mueller alluded to it in his testimony the other day. The FBI freaked out because it was building terrorist cases on forbidden fruit and risked having high profile cases thrown out because they relied on illegal wiretapping.

EW,

Regarding the Times and Post stories, I think you and Glenn are both right. I suspect these stories began with a coordinated leak by sources friendly to Gonzales. They whispered â€data-mining†into the ears of the reporters in an effort to explain away Gonzales perjury. The reporters then contacted some other knowledgable sources whom they’d used for other stories. These other sources say â€yeah, it was about data-mining…and X, Y, Z.†I think Glenn’s right, though, that the leaks that prompted these stories were almost surely from administration officials attempting to quiet accusations of perjury against Gonzales.

EW — I see the logic, and it’s a convenient excuse for Mueller, but the problem I have is that the same forbidden fruit/prosecution misconduct argument applies to many things they’ve done to construct many cases — Jose Padilla comes to mind — but nobody threatens to resign over that. But I’ll take it for now; I just hadn’t seen an explicit Mueller acknowledgment, because that by itself would have been a huge headline — â€Bush illegal methods jeopardize prosecution of terrorist cases; dozens of bad guys may go free!†— FBI Director. Mary et al have been saying this for years, but it rarely got to the NYT and never acknowledged by Mueller.

scarecrow:

â€another possibility is that NSA was not the assigned data miner — it was farmed out to/controlled by some other entity, e.g., an org more directly under Cheneyites control.â€

This was my point above. I’m not sure that Hayden and the NSA professionals would simply agree to knowingly spy on Americans. They might, but I sort of doubt it.

Cheney needed a cutout organization to use NSA information for his purposes – whatever they were/are. I thought maybe his tapping some other DOD entity as a recipient of metadata from NSA might be enough to trigger a reaction by Comey, etc. Your post, scarecrow, makes me wonder if some non-governmental-player might have been brought in instead or as well.

With Mueller also on the consciencious objectors list, maybe the scam was to have NSA suck in metadata, transfer it to somebody like Oracle for processing (note – I say Oracle simply because they have the expertise and the equipment to do the analysis, not because I have any evidence of their involvement in NSA type surveillance), and refer â€individuals of interest†back to the FBI for particular scrutiny.

What’s illegal about all that? Dunno. IANAL.

In any case, that’s how I’d do it, if I were Cheney (ha, ha).

AL

You’re letting Glenn off to easily.

While I agree that this leak was partially a limited hang-out, Glenn goes much further, claiming that there is no way data-mining was the central issue.

There is no way to read Gen. Hayden’s briefing and reconcile it with the claim that the DOJ mutiny was triggered primarily, let alone exclusively, by some massive, sprawling data mining program.

I agree data-mining wasn’t the exclusive issue. But Glenn is inventing his own shiny object here by refusing to consider the problems inherent to data-mining, particularly as it relates to probable cause.

If you’re going to keep bitching about not knowing what the problem was (and Glenn is right to), and at least two credible sources tell you what one of the problems is (I assume CNN’s source is included in NYT’s), then you’d do well to consider that problem seriously.

EW,

I agree that the allegation that the legal dispute centered around data-mining has to be taken seriously. And frankly, that’s what confuses me. All this time, I’ve assumed that the dispute was about whether FISA applied. But now I’m not so sure. It may be that the problem centered around the pen-register statute or stored communications statute or even the 4th amendment (i.e. that the pattern-finding technique was not enough to meet the 4th amendment’s reasonability requirement). Hopefully Jack Goldsmith will shed some light on this.

zhiv – Gonzo was confirmed with the Republicans in control of Congress. They just sort of disappeared any kind of serious questions that might have been asked, as well as any embarrassing information (like just exactly what qualifications he has to be AG: I think ’none’ is the proper answer). Specter was complicit in that, as well as the confirmations of Roberts and Alito. (He should really work harder at being repentant, because he has a long way to go.)

If your selection of wiretap targets comes from a scientifically suspect pattern recognition program or something like that, then you’re well beyond (I hope) the kind of probable cause that FISA would normally approve. Which, if that’s the problem, explains why you couldn’t use the normal FISA process. You would have no probable cause until you had already tapped the content. It wasn’t a timing issue. It was a probable cause issue.

But that’s just another way of saying the problem is with the surveillance itself, not the data-mining. If you are legally data-mining, there’s nothing wrong with using that data to try to identify terrorists. And you’d be free to present that information to a FISA judge in an attempt to secure a warrant.

If the administration decided that the FISA judges would never accept this pattern-recognition as sufficient to justify a warrant and decided to bypass them, then the problem isn’t with the data-mining, it’s with the subsequent warrantless surveillance.

If that’s true, then the question is whether Comey and Goldsmith’s objection was that the surveillance was being conducted without a warrant (i.e. a FISA/statutory objection) or that the searches were unreasonable (i.e. a 4th amendment objection). If the former, then I think Gonzales guilty of perjury. If the latter, he arguably might not be.

Similarly, if the primary dispute centered around the obtaining of the data (stored communications act, pen register statute, etc.) that helps Gonzales.

AL – I don’t see how the perjury issue of no dissent on â€the program†would be dependent on a FISA v. Fourth analysis?

Somewhere I got lost on that.

Scarecrow – your point about lots of bad things – no resignation threats – is why I think the spur was a personal responsibility spur. Here’s a kos diary I did in May before Comey went to HJC that lays out some of what I think was going on.

http://www.dailykos.com/storyo…..5117/77338

I need more time to follow all the byways, but in essence, the FISA Chief Judges said that â€the program†had to keep its cooties to itself and there was a system set up to segregate FISA applications that involved people who had been targeted by â€the program†and to prevent any info from â€the program†being used for FISA warrants (which, by that time, with the wall down, were pretty close to being crim justice warrants as well).

The AG or FBI Director are often sign offs for those FISA court warrants and they were probably both briefed on what the court required. THen the court discovered that it’s requirements were being breached.

Datamining of some kind sounds like the most likely culprit on that IMO. Too many people touched – with perhaps little to no supervision at NSA and intel levels to make sure that the FBI isn’t also asking for follow up on some of those same people. The reported stories (sparse though they are) indicate the court was ready to call for scalps at the highest level.

Now, with Padilla et al – no one directly violated a court order in their machinations. Here, though, the FISA court seems to have laid down the law about what was required and lawyers could well have been asked to sign off on ’the program’ knowing that it was allowing the FISA court’s order to be violated. And what made that a more urgent issue is that —- THE COURT KNEW IT TOO.

Show of hands for the lawyer who wants to sign off on the program that is violating the FISA court’s order when the court knows or will know the order is being violated? Show of hands for who wants to be the FBI director who signed off on an application that was in violation of the FISA court’s order when the court is talking contempt?

Instead of hiding behind legal opinions that allowed the illegal – the attorneys and FBI director were being asked to sign off on a program that, in its current form, could not help but being in violation of the FISA court’s order (bc there was not enough screening/filtering to prevent datamining targets from also ending up on FBI FISA requests). IMO, that was the showdown – being basically asked to ok a plan that not only had problems, but had problems that put it in violation of a court order and with the court watching the attys and FBI director to see what they did.

I don’t think it is any happenstance that now that this story is out, Judge Lambert â€reminesced†about another FISA smackdown or that Walter Pincus ended his report on that appearance by Lambert with the quote about not lying to the FISA court without consequences.

IMO, that explains the panicked line in the sand that no one bothered with when it was OTHER PEOPLE being kidnapped and tortured and OTHER PEOPLE who might be on the line for engaging in the kidnap and torture. Suddenly, it was â€us people†might be held in contempt, disbarred, prevented from making FISA apps, etc. Now there’s something to panic the kind of lawyer who has no problem with sending other people into years of blackholed abuse.

The sad thing is – look how ready people were to follow a leader on this. Now imagine if there had ever been a leader on torture.

No one has been asking the FBI or DOJ about whether or not it has been in violation of any FISA court rulings or directives during the time of â€the program†and it would be interesting to have them answer those kinds of questions – with the additional requirement that they copy the court on their answers.

Even if I am way wrong and way out in left field, the reports that DOJ was violating the FISA court rules/procedures for illegal program targets independently needs a look. IMO FWIW

AL – I don’t see how the perjury issue of no dissent on â€the program†would be dependent on a FISA v. Fourth analysis?

It’s somewhat complicated, but here goes. Gonzales claimed that there was no dissent about the program the president confirmed. That program involved targeted warrantless intercepts of communications where one party is outside the country and one participant is a suspected al Qaeda member.

So the question is whether Comey and Goldsmith’s legal objections were relevant to that set of activities. If their concern was that there was insufficient legal justification for bypassing FISA, then that concern would apply to the program the president confirmed, and Gonzales is lying. If Comey and Goldsmith were okay with warrantless surveillance but were concerned that intercepts arising out of the data-mining/pattern-recognition technique were unreasonable under the 4th amendment, then it may be technically true that the disagreement did not relate to the activities the president described.

The same is true if their primary objection was to the way in which meta-data was collected (but not the subsequent use of that data).

For Gonzales technical defense to work, the disagreement has to be confined to activities other than what the president described.

We’re on a steep, slippery slope if/when we start having the military and its contractors look for ’enemies’ amongst ourselves.

Bush’s take on the Unitary Executive is that acting as Commander in Chief in a time of War he has unchecked power to defend the nation against all enemies foreign and domestic.

The War on Terror is an ideological war pitting Bush’s won’t back down messianic mission against any resistance to his total control. Bush really means it when he says you’re either with us or against us.

Bush’s enemies – foreign and domestic – are those opposed to his unfettered control. If he could lower the standard to search people electronically to ’suspicion’ instead of ’probable cause’ using his UE powers through the military in the name of national defense, he’d do it – because he ’sees’ enemies at home just like he sees them abroad.

Bush is a flawed, craven, moral-less, deeply insecure man, who believes he is rightly above the law, and missioned directly from God to remove the spectre of Terror (Evil) from the world – by any means, apparently.

We need to stop the madness! It’s time to stop seeing the world as ideologies locked in a nightmarish last man standing mortal conflict, and instead as people with needs and abundances that complement our own, so that we may all devote ourselves equally to life, liberty and the pursuit of happiness.

Keep the dream alive!

Greenwald thinks the leaks are Bright Shiny Objects designed to help Abu G escape a perjury charge.

I think the perjury charge is the BSO, and the leaks are designed as red rags to Senate bulls. I think Abu is teasing people like Schumer with the prospect of nabbing him on perjury, because that could potentially hide the sheer breadth of illegal surveillance that went on.