The FISA Document Dump, An Inventory
I’ve put together an excel file listing the documents included in Friday’s document dump on the communications DNI McConnell had regarding the FISA amendment. I’ve still got a turkey hangover, so let me know if you spot any errors.
Here’s what I’ve noticed:
- There’s a weird chronology behind the response to the FOIA request
- The DNI’s definition of duplicative is different than my definition of duplicative
- The DNI must consider Republican correspondence classified
- The DNI seems to lose Democratic correspondence
Weird Chronology
First, the chronology. EFF originally FOIAed documents on August 31, asking for records on both meetings with telecoms and discussions with Congress (there were actually two separate FOIA requests–see exhibits K and L here). On both FOIA requests, EFF asked for materials dating from April 2007 to "the present." On September 10, DNI responded to EFF saying it would expedite the EFF request.
Now look at the dates on the documents included. They start with one document from before the time frame–a March 23 letter from the SSCI leadership asking for a FISA bill. It’s a pretty important document because it shows Congress taking the lead on this, which may be why they included it. But then the documents go through September 26–long after the August 31 request, and more than two weeks after DNI said it was expediting the EFF request. But then, it stops short of what are likely to be some interesting events leading up the October 18 SSCI bill.
There is probably a very reasonable explanation: that DNI took "present" to mean that time when it started working on the request. Though if that’s true, it suggests DNI sat on the request for almost two weeks, before it started expediting anything.
"Duplicative"
Now, when DNI explained why the review process took so long (and presumably, why they couldn’t give us document through the "present" of late November), one of the things they claimed they would do is remove duplicate documents.
As the records are located and forwarded to the IMO, the FOIA analyst handling this case conducts a continual analysis and review of the documents located. During the review process the analyst handling this case first removes any non-responsive and duplicative material from the records that are received. She then creates working copies of the documents and document indexes and assesses whether there would be any necessary consultations and/or referrals with those entities maintaining equity in the documents. She also reviews the records for the application of any FOIA exemptions. [my emphasis]
Which is why I find it curious that there are two copies of McConnell’s May 1 testimony before SSCI and two copies of his September 18 testimony before HJC. I’ll need to go back and look closely to see if these are just two revisions. But if not, it appears that this analyst, who spent at least two months reviewing these documents, still couldn’t find all the duplicative documents.
Also, what’s with the date on McConnell’s September testimony to SSCI? It took place on September 25, but is dated September 20.
Classified Republican Correspondence
One of the first things that sticks out about these documents is the absence of any documents primarily directed to Republicans. Partly that’s just a reflection of the fact that the Democrats hold the majority in both Houses of Congress–so the scheduling correspondence will come exclusively from Democrats.
But there are two indications that there may–perhaps should–be more. First is a letter sent to Senators Jello Jay Rockefeller, Levin, and Leahy on July 24, reflecting a meeting with Josh Bolten, Ed Gillespie, and McConnell the previous day. The Republican counterparts to these three Senators (Bond, McCain, and Scottish Haggis Specter) are cc’ed. But the document itself is addressed rather pointedly to the Democrats. That’s particularly interesting, given that Specter is his typical wishy washy self on these issues–did they feel they had no need to persuade Scottish Haggis?
So where’s the counterpart document, the one addressed to Senators Bond, McCain, and Specter? Did they get their own briefing? Were they invited to the one on July 23? Or did they get a briefing from the folks actually running the show on this issue: Dick and Addington?
I’m just surmising that that document exists. But it appears clear there is some kind of communication between Crazy Pete Hoekstra and Alexander Joel, DNI’s Civil Liberties Protection Officer that didn’t make it into the document dump. Alexander writes a letter to Hoekstra and Silvestre Reyes on September 17, detailing how the PAA protects American civil liberties. Alexander explains that he is responding to a request from Hoekstra.
I am writing this letter in response to a request from the Ranking Member of the House Permanent Select Committee on Intelligence.
Now, it’s possible that Hoekstra made the request in person or over the phone. But I find it doubtful that a government officer would accept such a request without memorializing it at all–there’d at least be a tracking sheet to track legislative requests. But, unlike every other example where a letter to Congress responds to a request that appears among the document requests, for this one the request is not present.
Taken together, I wonder whether the Republicans claimed privilege over their correspondence with DNI. After all, you don’t want citizens to know that you’ve gamed the legislative process, nor do you want it made clear that the guy in charge of our intelligence is a partisan hack.
[Update: of course, it goes without saying that there is also no correspondence from telecom companies. I’m not surprised about that–after all, the name of every telecom is no doubt considered classified, so I bet we won’t figure out who was lobbying McConnell until the year end lobbying disclosure forms. The question is–will we get telecom correspondence when the next dump comes, sometime before the 10th?]
Lost Democratic Correspondence
Mind you, just because they’ve included the Democratic correspondence doesn’t mean they’re responding to it quickly. There are at least three examples where’s there’s a big delay in response. For example, Congressman Tom Udall wrote Bush a letter on May 3. We don’t get a copy of that letter, but apparently Bush pawned the response off on McConnell, who finally responds to Udall on June 25. Worry not, though, McConnell gave him a very sweet response–a handwritten note saying,
Sir, I also would be happy to meet with you personally to discuss further.
I guess he doesn’t want to get Bush in trouble for the delayed response?
Then there’s a July 27 letter from Senator Whitehouse to McConnell. Under a stamped RECEIVED stamp, someone has written in the date, August 15. Now, perhaps that’s misleading, but does that suggest McConnell never responded to Whitehouse’s sincere attempt to craft the right language for the FISA amendment until after the bill was passed into law?
Far and away the most interesting delayed "response" (though it’s not a response at all) is the letter from Reyes and Hoekstra to McConnell and Alberto Gonzales dated May 31. It lists all of the documents they say they need to be able to draft an amendment to FISA–you know, things like the presidential directives on the program and the legal authorization for it? Well, we know the Bush Administration didn’t respond to any of these requests until October. But what is most interesting about this document is that it was faxed on Friday August 1 at 15:13. In other words, it was faxed–it’s not clear from whom or to whom–right in the middle of the legislative wrangling over the PAA. Now, the most logical explanation for this is that Reyes raised the outstanding request during negotiations over the bill, and McConnell told them to re-fax it. Still, I find it curious that that document was sent, from someone to someone else, right in the middle of the debate. [Update: William Ockham points out that the correct date for this–June 1, so presumably from Congress to DNI. But then he notes,
They OCR’ed that fax before they copied it into the document dump. Hmm…
That doesn’t make any sense to me, though it might explain why Reyes’ name looks so funky on this.]
Update: Link to correct Whitehouse letter fixed, per WO.
â€Also, what’s with the date on McConnell’s September testimony to SSCI? It took place on September 25, but is dated September 20.â€
It’s not the first time they lie and it won’t be the last. Thank you for the news!
Marcy, remind me to never attempt to hide anything from you… As usual, this is brilliant analysis!
I suspect that your conclusions, coupled with an article that I saw this morning in the local rag to the effect that lobbyists are scrambling to get everything they can out of Bush before he goes out of office, point to the fact that Bush and his people don’t care one bit what the public knows. They are going to continue to game the system to wring every last bit of privacy and profit from the citizens — and they will use our elected representatives to help them.
We can only hope and pray that some good sense will start to take hold somewhere. I guess that there have been a couple of attempts to stand up for the rule of law in recent weeks, but Bush and Cheney still hold all the cards.
From the extreme manner in which these people are trying to get the immunity for the telecoms, I just have to wonder what will happen if the telecoms don’t get it. The telecoms might have some major headaches, but I suspect that there are a lot of elected officials who could be prosecuted for the crimes that would be revealed.
I sure hope all of this comes out!
ew,
Aug 1, 2007 was not a Friday.
It was June 1. Look at the next page.
I see what happened. They OCR’ed that fax before they copied it into the document dump. Hmm…
Is that why they lose the name Reyes, both in the stationary and the signature?
Yeah, and they didn’t include the cover page for the fax. I’m also wondering if the person who compiled the FOIA response realized what had happened. This is probably stupid human error, but with this crowd, you gotta wonder…
Well damn. I had the longest comment just lost in the beer thirty post below. Too tired to try to recreate it.
Mary,
Get some rest and then recreate it for us tomorrow. Would love to get your thoughts on both the EFF FOIA stuff as well as the various David Kris PDFs.
sojourner, disagree with you on one point. Bush and Cheney do **not** hold all the cards. Harry Reid played a good one when he refused to allow the Senate to recess. Many parties have cards, including the EFF.
FWIW, I think you are onto something on the telcom immunity issue: …there are a lot of elected officials who could be prosecuted for the crimes that would be revealed. Consider adding: ’and administration appointees’.
And note they often did include the cover letter, at least two other occasions.
Admitting this may be human error, but assuming the moment the worst, what might they be trying to do here? There’s not much that is distorted.
EW,
I took the duplication of Mikey’s stuff and the inclusion of numerous fax cover sheets to be another example of deliberate non-responsiveness to EFF’s FOIA requests. Send just the junk stuff and we’re off the hook.
In my conspiracy-fevered mind *g*, I can’t help but believe that this was part of a deliberate stall gameplan:
A. The assignment of just â€1†person to vet these documents.
B. That â€1†person somehow couldn’t recognize the duplication of Mikey’s documents.
C. That â€1†person took months and months to come up with this crap.
D. That with a court order on Tuesday, the DNI/ODNI can miraculously produce on Friday that which they claimed on Monday could not be produced.
And the name of the gameplan? Run Out The Clock!
As a general rule, the document dump includes the cover page for a fax after the last page. That’s a strange convention. I still haven’t figured out what order these documents are in.
Btw, your link to Whitehouse’s letter is actually to the other Whitehouse letter. Interestingly, both of them have the same received stamp, but are initialled by different people. Whitehouse seems to be the only person whose mail they quarantine for at least two weeks.
[Completely OT: I love Sheldon’s url: http://whitehouse.senate.gov]
Yeah, I was wondering about that. Which is all the more stupid given that Whitehouse is the one Democrat who will give them a fair shake: honest, but tough.
I guess they don’t want a fair shake.
ROTL, my gut is telling me that there is something else at stake here besides just telecom immunity.
I still puzzle over the fact that the telecoms would roll over and do things contrary to what the Constitution said. They have scads of attorneys at their behest that had to be telling them, â€No, this is illegal,†regardless of what the administration or the attorney general was saying. A true emergency is one thing, but as someone noted several weeks ago, this ’emergency’ has been going on now for several years. Did someone hold a gun to their head? I doubt it. I do think that the administration suckered them into going along to get along, and now they are all in a pile of trouble. No one was ever supposed to know…
You are correct that Bush and Cheney do not hold all the cards, although I would sure feel better if I did not think Reid would cave in at the slightest issue…
sojourner,
The telecom immunity has little to do with the telecoms. The main, and overriding, concern of the administration is to kill the lawsuits because, if they move forward, there will be a legal ruling that the TSP was illegal (there’s really no doubt that it was illegal). Then administration officials will be liable for criminal penalties under FISA.
Also, take a look at what happened to Joseph Nacchio. I have no idea whether he was guilty, but I’m convinced he was prosecuted because Qwest didn’t play ball. I’m not sure there were any telecom executives during the first half of this decade who could have stood up to a determined U.S. attorney.
Some interesting reading:
We had some discussions wrt to CALEA and the FCC being pushed by the FBI (and DEA) to deny extensions for CALEA support by communications companies. For some additional background, you might check out THE IMPLEMENTATION OF THE COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT
U.S. Department of Justice
Office of the Inspector General Audit Division
Audit Report 06-13
March 2006:
And another interesting read is Security Implications of Applying the Communications Assistance to Law Enforcement Act to Voice over IP:
And more goodies to peruse from the EFF – FOIA Litigation: Electronic Surveillance Systems:
And there are plenty of documents released at that link to read if you are so inclined.
Sojourner – WO is quite correct. I would add that you are right about the legal prowess of the telcos legal departments and, as I have stated many times, you can bet that they were given information, assurances and probably multiple written documents by the Administration (illegally and improperly) that what was being requested was indeed legal and absolutely critical to the protection of the US. This is, without going into the whole spiel, why I have constantly said the telcos don’t need immunity. We taxpayers may not like it, but it is the government that will be eventually on the hook for most any of the losses the telcos could suffer from the suits.
BMAZ and WO — I’ve got the picture, I think… I have been pulled in too many different directions the last few weeks, and obviously have not kept up with all of what has been transpiring.
One question for WO… You state â€Then administration officials will be liable for criminal penalties under FISA.†Does that mean that George will have to shell out fines and even go to prison, or just that they will saddle the government with the penalties?
Sojourner, here’s the best way that I can think of to explain what I think this means –
When you made an analog phone call, the call started, traveled over phone lines, and routed through exchanges, then ended when you hung up. Dial, speak, hang up. Then the phone company kept a ’call log’ that listed the time you phoned, the number you called, etc, etc. But they didn’t have any way to note WHAT that call discussed, unless they tapped the wire. And analog phone calls did not lend themselves to quick and easy backup records (contrast with email or voice mail).
But with digital communications, stuff moving across the toobz is tagged, and those tags are all ’metadata’. Each ’container’ (or message) is tagged to ensure that the system can properly route it. Traditionally, the metadata was ’outside the message’ – to use an analogy: when you write an address on an envelope and toss it in a mailbox, you don’t think of the address as part of your message. But Bu$hCo have been reading your messages, AND ALSO reading the address (metadata) content. With digital content, the tags can tell a great deal about the meaning and content of your message.
And under FISA, the address (or ’metadata’) is NOT part of the message/content. But Bu$hCo are claiming that it is. Because they’ve already been reading it.
Evidently, Bu$hCo have been using all the ’metadata’ (think ’envelop addresses’ to make it easy to grasp the concept) and routing, sorting, identifying us all. The problem: that’s not legal. But obviously, they’re counting on pulling the wool over the eyes of all of us, including Congress.
But clearly, the people at Sun Research are not bamboozled.
As I understand the information in that document from Sun’s Research division, the FISA architecture probably makes it EASIER for criminals to do very bad things. Sun is saying, ’There’s a serious set of security problems here – you’re building a system that could be a superhighway for bad actors to exploitâ€. Now, how does that enhance national security?
For Congress to get bamboozled on the basis of ’national security’ to approve a system that allows any of the scenarios laid out in that Sun Research paper is beyond irresponsible. You’d think they’d never heard Lurita Doan, or Abu Gonzo, or Kyle ’the Aggregator’ Sampson testify. Because would you want any of those people in positions of responsibility about who can read your email, your online banking transmissions, etc, etc? Sheesh….!
If the government has ALREADY been mining the metadata, when the law specifically forbids it… well… that would certainly explain why Bu$hCo is so urgently pressing Congress to pass its version of FISA, and it would also explain why it smears anyone who doesn’t simply bend before their will as ’unpatriotic. (Translation of Bushspeak: â€If I can intimidate you by calling you ’unpatriotic’ into passing this law, so that it will legally cover my ass and I won’t risk charges and jail time, just watch how mercilessly I’m going to defame you.†I mean, honestly, what other options do these people have left? None.)
Perhaps Congress might want to consider whether it thinks Sun’s researchers might be more credible than Bu$hCo. That’d be a good place to start.
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As for the telecom immunity, Rayne had some great insights a week or two ago on a prior thread. At the risk of misquoting, she suggested that the telcos need Net Neutrality to keep their outdated business structures functional (by opening up Golden Revenue Flows to their newly de-regulated ’information services’). Who controls whether or not that Golden River will flow? Congress and Bu$hCo.
Just keep in mind that every single communication request or response on that system will contain metadata. So the DNI will mine it, first by claiming that the header content (which is metadata) is ’part of the message content’. You may not want reconsider downloading too much porn content ’On Demand’ <8 :-p
pow wow, once again, thanks for those links. Awesome.
And also to Wm Ockham for clarification. And EW.
The telecom scadals of the 90’s ’How one company, WorldCom, and its bankers at Citigroup, came to epitomize the conflicts of interest at the heart of the late-90s bubble’… reminds me of the corporate donor connection and how the telecoms were part of a conspiracy to defraud investors and ratepayers. Telecoms are so imbedded in the corporate oligarchy they are beholden to the WH they are in bed and of course the coporate culture is predictable. You can look at any company in the game and uncover how the â€compete†by getting around the laws, rules and regulations when they know the Fox is guarding the hen house in this administration. Sadly many dems are playing that game. Just look at Pelosi’s face and the others.
And when ROTL speaks of Kyle â€the Aggregator†Sampson, one should visualize something like this:
Which was obtained from this pdf.
rotl — it looks like we have dual threads at the moment, one here and one back at TNH. Not sure where you may check in, but if you see this and have a chance, would you post a link to the Sun report you mention above? I know someone posted it earlier, but I can’t find it at the moment and I would really like to read it. Thanks!
Oh! What lovely new digs for EW!
At the risk of duplicating info, here’s what I wrote, phred:
phred, Popped on quickly to see whether sojourner had been on with a question. Here’s the info for you:
From the “Beer & Turkey Thirty” post — http://research.sun.com/people/slandau/PAA.pdf
This link was posted by: pow wow | December 01, 2007 at 18:48
A summary worth reading, along with the document, was posted by: pow wow | December 02, 2007 at 00:12
Mad Dogs has also commented with some nice links, including, I note on this thread, a ‘little gem’ re: Kyle ‘the Aggregator’ Sampson. (And, in case you’re not familiar with the term, ‘aggregating’ is something that RSS feeds do, and that other technologies do quite well. For more: http://en.wikipedia.org/wiki/Aggregator
In Congressional testimony, Sampson described himself as ‘The Aggregator’ and no Congresscritter called him on it, so he got away with it. He used geekish-speak to avoid responsibility for his actions; typical of BushBots.
Sampson carried out Rove’s commands, and helped politicize the DoJ. That’s not ‘aggregating’; that’s boot-licking and goose-stepping. To camoflage himself as ‘an Aggregator’ who simply ‘collected information’ (as if his actions had no consequences for people’s lives, and no role in politicizing the DoJ) is cowardly and dishonest. And just where are his missing emails…? Where’d those get ‘aggregated’ off to?
Another hat tip to Mad Dogs
The time you spend on that Sun link will be worth it, I think. But also if you have time do note pow wow’s summary of the file. Best, rOTL
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EW, I hope your tip jar goes up soon, b/c I’d love to drop in some spare change.
UPDATE: I guess that I can do that now on the new digs. Woohoo ;-))