McConnell Kills

/in /by

Wow. I’m with Spencer Ackerman. If transparency is going to kill Americans, Mike McConnell just killed a lot more Americans blabbing to the El Paso Times than a Congressional debate with marginal transparency ever will. Consider this example, where McConnell tries to convince the reporter that the Administration is not data-mining on a massive scale:

Now there’s a sense that we’re doing massive datamining. In fact, what we’re doing is surgical. A telephone number issurgical. So, if you know what number, you can select it out. Sothat’s, we’ve got a lot of territory to make up with people believingthat we’re doing things we’re not doing.

It’s not a detail we’ve had before, now we have it. And note his disingenuousness. The claim of opponents is not that the Administration is now doing massive data-mining (well, not through the NSA–they’ve just moved that program to the FBI). The claim is that they were doing massive data-mining up until March 2004, when Comey and much of DOJ balked. Which kind of explains the reason why there’s deep distrust.

And here’s another reason for that distrust.

Now the second part of the issue was under thepresident’s program, the terrorist surveillance program, the privatesector had assisted us. Because if you’re going to get access you’vegot to have a partner and they were being sued. Now if you play out thesuits at the value they’re claimed, it would bankrupt these companies.So my position was we have to provide liability protection to theseprivate sector entities.

What McConnell all but admits is that those lawsuits have merit–that there is a real possibility that having cooperated in the Administration’s ill-conceived spying program will bankrupt big telecom. Again, if those suits have merit, there’s a reason for the deep distrust–it’s because BushCo encouraged the telecoms to violate the privacy of their customers on a massive scale.

And finally, one more reason for the distrust.

We submitted the bill in April, had an open hearing1 May, we had a closed hearing in May, I don’t remember the exact date.Chairman (U.S. Rep. Silvestre Reyes, D-Texas) had two hearings and Ihad a chance to brief the judiciary committee in the house, theintelligence committee in the house and I just mentioned the Senate,did not brief the full judiciary committee in the Senate, but I didmeet with Sen. (Patrick Leahy, D-Vt.) and Sen. (Arlen Specter, R-Pa.),and I did have an opportunity on the Senate side, they have a traditionthere of every quarter they invite the director of nationalintelligence in to talk to them update them on topics of interest. Andthat happened in (June 27). [my emphasis]

McConnell did not give a private briefing to the Senate Judiciary Committee. And if his description is accurate, he didn’t give one to the Senate Intelligence Committee, either. The former, of course, has been reviewing these issues for a year and a half and has subpoenaed documents from the Administration on precisely this program, only to be denied. The notion that McConnell didn’t brief them (was he afraid they’d demand subpoenas?)–and that Leahy didn’t demand that he brief them–is a ridiculous affront to the legislative process. And to think Cheney would tell such a good ally as Leahy to go fuck himself.

Finally, one last reason for distrust. McConnell also revealed the reason the Administration refused the Democratic bill: because it provided a real mechanism to the minimization procedures (which are what ensure your side of the conversation is not kept when you’re calling to Pakistan).

So I walked over to the chamber and as I walkedinto the office just off the chamber, it’s the vice president’s office,somebody gave me a copy. So I looked at the version and said, ‘Can’t doit. The same language was back in there.’

Q: What was it?

A: Just let me leave it, not too much detail, there were things withregard to our authorities some language around minimization.

The Administration refused the Democratic bill because it required the someone besides McConnell and Alberto Gonzales to review the minimization procedures of the taps themselves, rather than just buying off on the minimization procedures as a general plan. And the Administration refused that minimum level of oversight.

And note–the decision that the Democratic bill was unacceptable occurred in Cheney’s Senate office.

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  1. zhiv says:

    The El Paso Times? A gigantic transcript directly from McConnell?

    I thought these guys weren’t into transcripts.

    Gorgeous twist of the knife at the end of the post–is that 4th branch west or east where they hand out those copies?

    I also liked McConnell’s blunt lie in answer to the first El Paso question, which was how much has your view of the FISA issue been shaped by Bush/Cheney: â€Not at all.†Yeah, right.

  2. albert fall says:

    The louder they scream because they are being ignored by the public, the more they get ignored.

    MSM–this applies to punditry too.

    Wolf! Wolf!

  3. Anonymous says:

    Let us please cut out one line of total BS right here and now. None of this will bankrupt the telecoms. If they have liability exposure, and I think they have a ton of it, they are entitled to indemnification by the government. This is a freaking no brainer. There is absolutely liability, but that liability has to be a pass through to the government. Please don’t shed any tears for ATT.

    Secondly, as EW noted, the claim is not that they are now doing data mining (they are); the claim is that they have been doing it continuously from the outset. EW charitably gives them the benefit of the doubt post Comey. Not me. They were doing it and have never stopped. their track record and common logic mandates that presumption; why in the world would anybody believe otherwise from this group.

    Lastly, and EW doesn’t touch on this, but it is in Spencer Ackerman’s piece she links, and in the interview of McConnell it is based on. McConnell makes the laughably absurd claim that it takes 200 plus man hours for each individual FISA warrant for a number. 200 man hours for a subpoena? What an unequivocal pile of crap. Nothing short of a bald face lie. That is the footwork and elbow grease they are doing, and are supposed to be doing, anyway. If, from that, they develop information on a specific person or entity that rises to a legal threshold level to obtain a warrant, they then go apply for a warrant and that process is pretty streamlined at that point. there may be provisions to do it telephonically; there are in every other court. The FISA warrants are granted literally about 99% per cent of the time they are requested. This Administration just doesn’t want to be supervised in their illegal and immoral activities, nor have their past crimes exposed. What McConnell is saying here is akin to saying it takes a cop 8 hours to arrest a criminal traffic offender; when what he has actually done is spend 7 hours and 45 minutes sitting in his cruiser eating donuts and then pulls someone over.

  4. Tomj says:

    OMG, McConnell is either psychotic or Republican, although being psychotic doesn’t lend itself to following such a scripted worldview.

    Reading his words I can only have the greatest fear our representatives are all cast from the same mold, regardless of their public statements. At least the republicans have the decency to do what they say. Whoever would support this idiot, or give his arguments any merit is a fool of the highest degree. It only takes 40 votes to stop anything, _anything_! What is so fucking hard to figure out about this fact? I now remember reading a wonderful book: _A Confederacy of Dunces_. Yes, this is our condition.

  5. William Ockham says:

    ew,

    You missed the most significant part. Take a close look at what McConnell says in that interview. He makes the following statements:

    First off, the issue was the technology had changed and we had worked ourselves into a position that we were focusing on foreign terrorist communications, and this was a terrorist foreigner in a foreign country. The issue was international communications are on a wire so all of a sudden we were in a position because of the wording in the law that we had to have a warrant to do that. So the most important thing to capture is that it’s a foreigner in a foreign country, required to get a warrant. Now if it were wireless, we would not be required to get a warrant.

    AND

    On the U.S. persons side it’s 100 or less. And then the foreign side, it’s in the thousands.

    Now, those two statements are disingenuous in the extreme, but they tell us something important. Couple it with the involvement of the telcos, and the only way those statement make any sense is to assume that the real target is email and other data traffic. There’s just not enough wireline voice traffic that is funneled through the U.S.

  6. Anonymous says:

    Heh, bmaz.

    The pass-through may work. May just show up on people’s bill as stupid-fucking-ceo-fee. But, you know, not all the telcos played ball. This is going to get really good.

  8. Anonymous says:

    tryggth – Well, that may be too; but my point is that it will be passed through to the government; they forced the hand of the telcos and undoubtedly certified that everything was legal and on the up and up. It was the government’s program, the telcos are not going to go broke because they were spooked into it.

  9. Mary says:

    I agree with William Ockham about the email issue – especially because the old FISA language allowed for interception of spoken messages using US funnels and taps.

    But isn’t it also interesting that Hayden, while then NSA director, stood in uniform and told the country that the program was targeted and not involving broad sweeps of all kinds of data –

    Bush told the Countr that the program would only affect a US citizen in the US if al-Qaeda was calling that citizen –

    McConnell says now that they’ve gone to FISA court supervision and warrants that only 100 or so people in the US are involved –
    and yet . . .

    . . . and yet McConnell also says that the size, scope and magnitude of the program is such that the telecoms would be wiped out and forced into bankruptcy (like a lot of military families and the ever burgeoning ranks of the Bush created poor in the US I guess – but with lots lots nicer Chapter 11 protections for the mega salaries of the telecom CEOs) if courts actually applied the current law to them.

    Wow – are telecoms living on such a thin, dicey edge that paying out statutory fines to 100 people will break them?

  10. Mary says:

    The Bush Telecom (NSA) and the Bush Law Firm f/k/a U.S. Department of Justice – – together they are doing just a lovely job of protecting Americans Amerika the Constitution freedom and democracy the telecoms.

    Just like the founders of this nation intended.

  12. Mary says:

    btw â€minimization†language vis a vis FISA is about taking steps to reasonably minimize the likelihood that you will be collecting surveillance info on US citizens which your warrant does not permit.

    So that â€surgical†program – how tight is it if you can’t comply with minimization requirements? Like surgery to remove a splinter where the permission form says you won’t cut off the head – – is too much to ask for? And after reading through the f/k/a DOJ torture memos, who wants to have the Dr. Mengele’s in this Adminsitration performing surgery? Especially without a license and without even someone with a blackmarker to write on the healthy parts – Do Not Remove!

    *sigh*

    BTW – I still don’t buy that data mining in and of itself is what set Comey et al off. Just doesn’t make sense and Comey’s assertion that his certification that he did not sign off on was not related to any statute removes the issue of the telecoms statutory certifications from an AG issue. And it especially doesn’t make sense when all he seemingly wanted was more oversight and not a scaled back program. So that all still seems to me (insert -dead horse, beat- here) to go back to the fact that not being able to keep track of all the datamining or direct surveillance that was taking place was causing DOJ – attys at USA offices and in main justice and FBI agents – to get crosswise with a court/courts in ways that would come back to generate personal liability issues.

  13. AmIDreaming says:

    Minimization is *always* the hangup. The major legacy from the Church era. What the contractors can’t, can’t, can’t get right. And, therefore, what needs to be left out — the spigot opened fully — in order to get *any* meaningful collection.

    Back in the old PINWALE days, you had to get keywords for flagging satellite traffic past a corps of lawyers, just on account of minimization requirements in USSID-18.

    The more we hear, the more this all resembles a CYA operation a priori — we can’t get the intel, but we have to be able to prove it wasn’t there, at least on our watch.

  14. Anonymous says:

    Mary – Once again, I must assist you in flogging that dead equine. Datamining and telcos may have been part of it, but not all. And some portion (large) of the panic had to be motivated by fear of the judicial branch; irrespective of what the exact mechanism of the fear was.

  15. Anonymous says:

    If what they were doing was not illegal, why put so much effort into covering it up?

    Hey, where’s Ashcroft these days? Has he been summoned before Intelligence or Judiciary? Is he defying a subpoena, or will he testify?

  16. pseudonymous in nc says:

    I’ll repeat my speculation: we’re basically talking about automated, on-the-fly, voice-to-text processing, perhaps with some translation thrown in. The hardware exists; large government agencies have bought it. McConnell’s ’surgical’ and ’lighter touch’ basically point to that technology. The computers are doing the active snooping, and my guess is that Comey balked at the idea that the ’pre-surveillance’ could be done warrant-free.

  17. sojourner says:

    Mary, your comments at 20:22 are dead on… The story keeps changing. And I also agree that this is not all that set Comey off. My first thought this afternoon when I saw the McConnell story coming out was that it is a distraction… It is an attempt to throw a little ’meat’ out there to those of us raising a ruckus and get us to quiet down. They hope that most people will say, â€Oh, okay†and go on about their business. It is a bit of misdirection to take the focus off of something deeper.

    If McConnell is so concerned about the telecoms, obviously something was rotten.

    Since so many members of the Bush administration seem to enjoy selectively declassifying information, and don’t seem to get nailed for it, maybe it is time for a real patriot to come forward the tell the whole story. No, Bush and Cheney won’t like it, but that is too bad. How is the DoJ going to prosecute them? Prosecute one, you have to prosecute them all.

    I have never seen such a disreputable bunch in my life!

  18. AJ says:

    Tomj — you said:

    â€OMG, McConnell is either psychotic or Republican, although being psychotic doesn’t lend itself to following such a scripted worldview.â€

    But being egregiously stupid and massively ill-informed makes him the perfect Charlie McCarthy to the GOP’s Edgar Bergen (Cheney).

  19. masaccio says:

    Here’s my favorite part:

    Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we’re doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they’re using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.

    On one hand we get the â€killing Americans†trope, suggesting that public discussion of the Program results in revelation of the names of US personnel who will then be killed by the bad guys. On the other hand, we get the obvious fact: there are plenty of other ways to communicate without being caught. So, why wouldn’t they use these means? What is it that we are really capturing? Does anyone actually know? As far as I am concerned, this is the real reason for distrust. We don’t know enough, and there is no reason we shouldn’t know.

  20. BillE says:

    When you are using things like this

    http://constantpated.blogspot&…..-6400.html

    which was assumed to be in the â€room†in san fransisco for the 9th circuit case.

    The other cool things in use are the IP deep packet inspectors. These guys are pretty impressive on what they can do with the major connection oriented (tcp) internet protocols http, ftp, nntp, smtp, pop3, etc… A big Lucent 5E switch does a million simultaneous calls. One specialized DPI box can apply rules to 6 million simultaneous bi directional tcp connectons.

    Its pretty cool when you capture all the email of your political opponents, the DC madams list was probably old news to these guys. Plus the had the Billing to connect numbers to people.

  21. cboldt says:

    If a foreign bad guy is calling into the United States, if there’s a need to have a warrant, for the person in the United States, you just get a warrant. And so if a terrorist calls in and it’s another terrorist, I think the American public would want us to do surveillance of that U.S. person in this case. So we would just get a warrant and do that. It’s a manageable thing. On the U.S. persons side it’s 100 or less.

    â€If†there is a need for a warrant. Only for the terrorists, those are the ones that get the benefit of a warrant — but notice WHEN it’s obtained?

    What about the number of them without warrants?

    Big push for immunity too. Big push for immunity.

  22. Anonymous says:

    cboldt – As I stated above, I just don’t see the telcos as anything but an interlocutory issue. If telcos have liability, they should be entitled to indemnification by the government for this compelled nonsense. The Administration is hot for immunity alright; but it is for themselves, and it is not particularly for monetary exposure either.

  23. cboldt says:

    I agree. The big fish in immunity is to dispose of the case and attendant publicity.

    I get a kick out of this one …

    and the third point was we must be required to have a warrant for surveillance against a U.S. person

    LOL. They already HAD that.

    I suppose there’s room to debate the meaning of â€surveillance against,†as opposed to just plain ordinary interception and analysis of the contents of the Americans’ international communications.

  24. BillE says:

    to bmaz’s point. What will they do January 20 2009? Will they even leave. It seems that they might even be brash enough to threaten the peaceful handover of power tradition. Is a trade of accountability for allowing replacements in the works? This is very personal to these guys. When they start talking about not allowing US Agents to be tried in the Hague we will know personal it really is. If they actually allow power to be handed off, does anyone think they beleive that all the unitary executive stuff will be allowed to continue without them.

    What happens to the VP role in the future ? Do we see a new amendment coming?

  25. Anonymous says:

    Two comments:

    1. I’m glad emptywheel called out â€surgical†— perhaps McConnel meant to say â€surgaliciousâ€? — because that claim focuses only on voice and not on data (ie, mail, web site traffic, blogs, public records and, of course, the social networking and datamining software that ties it all together). This deliberate conflation has been a central feature of coverage in the trad press from the time the story broke, and we shouldn’t be taken in by it. Taken as a whole, the program is anything but surgical, for which I supply a mountain of evidence.

    2. McConnell’s â€kill Americans†line is the first time a major political figure has introduced der dolchstosslegende (â€stab in the back†theory) into the discourse. We knew it was coming, and now it’s here.

  26. Anonymous says:

    cboldt

    You’ll note his definition of â€foreign intelligence;â€

    the last time I checked we had a mission called foreign intelligence, which should be construed to mean anything of a foreign intelligence interest, North Korea, China, Russia, Syria, weapons of mass destruction proliferation, military development and it goes on and on and on.

    Or foreign country, foreign country, foreign country, oops! oops again!

    If I were, say, a researcher on anthrax, I’d assume my communications are tapped just as frequently as the Pakistani down the street.

  27. cboldt says:

    – If I were, say, a researcher on anthrax, I’d assume my communications are tapped just as frequently as the Pakistani down the street. –

    Add airline pilots, those who train on multi-engine aircraft, employees of chemical, petrochemical, power generation and transportation industries, demolition firms (those who drop buildings at any rate), and any other employment activity that DNI finds is within a critical infrastructure.

    All are threats, because of their knowledge, skills, or access by dint of assignment.

  29. KLynn says:

    Great post EW.

    cboldt-

    Throw in environmental scientists and any materials engineers or chemical engineeers, etc… The list gets long folks and it is not a few 100. It would be interesting to see if there are any mechanisms (memo/operational dictate) for information triage within the intelligence community? For instance, if you oppose the war or are of a certain political persuasion? We have seen such practices used on Quakers. Political profiling of sorts…

    The best way to destroy a free democratic country was/is through the threat of fear in order to stage the need for a unitary executive. Add to the fear mongering, a party hungry for power to the point of wanting one party rule indefinitely, as opposed to working to preserve, protect and uphold the Constitution. Tweak the economy to the point people are so distracted with working to make life work and the national debt is so large it is at critical mass…You have the perfect storm towards the end of democracy. If We the People do not push back hard then I guess we will have lost the Cold War after all.

    Wow, I hope an updated special edition of Peter’s Priniciple is issued soon.

    An aside… The greatest part of this blog is the courage of EW and all who post with boldness and clarity. The fact that there is no self-sensorship is a light for freedom and democracy. Thank you.