The “Other Intelligence Activities”
I was a bit disappointed by the number of stories about the IG Report on the domestic surveillance program last week that claimed the report revealed the program was larger or more extensive than previously admitted or known. After all, the report itself notes,
The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.
Moreover, the "Other Intelligence Activities" have in fact been reported. Just days after the program was initially exposed, for example, Lichtblau and Risen reported,
The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.[my emphasis]
In other words, those two aspects of the program–massive collection of data directly from telecommunication circuits and subsequent data mining of that data–has been reported almost from the first reporting on this program. And EFF wrote a 63-page brief collecting the many acknowledgments, from both Administration officials and members of Congress briefed on the program, of the expansive collection and data mining aspects of the program.
The "Other Intelligence Activities" Were the Source of the March 10 Hospital Confrontation
I think it important to emphasize that we do know what these "Other Intelligence Activities" (OIA) are because the report confirms that these OIAs were the source of the March 10 hospital Confrontation.
We’ve had confirmation that the collection and data mining aspects of the program were the source of the confrontation for two years.
A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.
But the IG Report makes that explicit (though it doesn’t refer explicitly to collection and data mining). While Goldsmith and Philbin found a (legally unsupportable) way to fix Yoo’s Article II basis for the program, they couldn’t find a way to justify the OIAs.
[In 2003] Goldsmith and Philbin became concerned that this revised analysis [making AUMF, and not Yoo’s more expansive Article II argument, the basis for the program] would not be sufficient to support the legality of certain aspects of the Other Intelligence Activities that the President had authorized under the PSP.
Goldsmith and Philbin remained unable to legally justify the OIAs on the day of the hospital confrontation.
Goldsmith, Philbin, and Comey met in the early afternoon of March 10, 2004, to discuss the meeting at the White House the day before and how DOJ should proceed. Goldsmith and Philbin confirmed their position to Comey that some of the Other Intelligence Activities under the PSP could not be legally supported and would have to be changed or shut down.
Addington wrote the OIAs into his March 11 reauthorization for the program, signed by Alberto Gonzales.
The March 11 Authorization also differed markedly from prior Authorization in three other respects.
[snip]
It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior President Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 Authorization.
Goldsmith continued to maintain that these OIAs could not be legally justified.
In the days that followed [March 12, 2004], Goldsmith continued to express doubt that a viable legal rationale could be found for some of the Other Intelligence Activities being conducted under the PSP.
On March 16, 2004 Comey drafted a memorandum to White House Counsel Gonzales setting out his advice to the President. According to the memorandum, Comey advised that DOJ remained unable to find a legal basis to support certain Other Intelligence Activities that had been authorized as part of the program and that such activities should be discontinued immediately. Comey cautioned that he believed some ongoing activities under the program raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President’s decision to assert his authority to override an otherwise applicable Act of Congress."
And the Administration ultimately discontinued these OIAs.
…on March 17, 2004, the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported.
While I’m not convinced those OIAs weren’t restored as soon as Goldsmith resigned and Comey turned his back, the story the IG Report tells is that Goldsmith, Philbin, and Comey identified two legal problems with the program. First, Yoo’s basis of the program on Article II power was not sustainable; Goldsmith and Philbin got around that by claiming that the AUMF authorized the President to ignore FISA. But the other problem–the one that almost led them to resign–was that there was no basis for some of the OIAs. And, the IG Report claims, their threats to resign led to the Administration to cease at least some parts of those OIAs.
Specific Act of Congress
One reason we need to focus on the specific language about these OIAs is because it suggests why and how Comey found the program to be illegal.
Comey told the DOJ OIG that of particular concern to him and Goldsmith was the notion that Yoo’s legal analysis entailed ignoring an act of Congress, and doing so without full congressional notification.
That is, something about the OIAs–the massive collection and data mining–violated the law in a way that (according to Goldsmith and Philbin and Comey) the wiretapping of people alleged to have ties to al Qaeda did not.
There are, presumably, several reasons that’s true. (And I certainly invite the lawyers to weigh in here.)
First, the entire basis of the program was a broad interpretation of "reasonable" with regards to searches. It would take one thing to argue that it was "reasonable" to search the communications of someone whom John Brennan had declared to be a terrorist. It’s an entirely different thing to search the communications of someone whom John Brennan hasn’t even reviewed.
In addition, as the EFF suit makes clear, the search of ordinary citizens’ communications implicates two other laws: the Electronic Communication Protection Act and the Wiretap Act (see this post for my NAL discussion of these laws).
Finally, though, the language the IG Report uses to discuss the problems with the OIAs and the timing of the revolt makes me more convinced than ever that Congress’ explicit prohibition on data mining was a key part of the problem. As I’ve reported (and seem to, still, be the only one aside from joejoejoe to have reported in this context), Congress explicitly defunded the data mining of American citizens in the 2004 Defense Authorization.
Sec. 8131.
[snip]
(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:
(1) lawful military operations of the United States conducted outside the United States; or
(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens.
This was (like the ECPA, Wiretap Act, and FISA), an Act of Congress–though Bush blew it off with a signing statement. Between the time Congress passed this prohibition in fall 2003 and the time of the conflict, the Administration did not brief Congress (indeed, the appear to have missed a regular briefing in January 2004, shortly after the Appropriation Act would have gone into effect). Since Yoo was gone by the time Congress passed this appropriation, they don’t seem to have written a new opinion factoring in the appropriation. So this prohibition would seem to represent two problems for Goldsmith’s and Philbin’s reliance on AUMF rather than Article II powers. Looking again at Comey’s statement to the DOG OIG…
Comey cautioned that he believed some ongoing activities under the program raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President’s decision to assert his authority to override an otherwise applicable Act of Congress."
First, the Appropriation Act was passed (obviously) after the AUMF, which presumably clarified Congress’ intent that the Administration could not data mine US person communications. Furthermore, the legality of the program would come down to whether or not Bush’s signing statement could be considered valid. (Note, this may well be why the Administration had its last minute briefing on March 10, 2004–to try to find out whether they could reverse the prohibition on using funding to data mine Americans and to try to address Comey’s concerns about congressional notification.)
Yoo Did Not Describe These "Other Intelligence Activities"
But that raises a larger question. Given the IG Report’s details about the failure of Yoo to describe these activities, to what degree did the Administration hide the data mining activities and from whom?
The IG Report suggests Yoo did not accurately address the OIAs in his legal analysis.
Yoo’s November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program.
[snip]
Yoo also discussed in his memoranda the legal rationale for Other Intelligence Activities authorized as part of the PSP. To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe Congress may restrict the President’s inherent consitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.
However, as detailed in Chapter Three of the DOJ OIG report, Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities. Yoo’s factual discussion of these activities was later identified by his successors in the Office of Legal Counsel and ODAG in late 2003 as insufficient and presenting a serious impediment to recertification of the program as to form and legality.
Now, Yoo’s inaccurate description of the scope of the program shows two things–the later restriction on using funds to data mine Americans cannot be the whole problem with the vacuuming and data mining aspect of the program. There seems to have been a more fundamental problem with it.
In addition, consider the parallel with the Bybee Two memo, which established certain facts about Abu Zubaydah we know to have been false. The emerging pattern of Yoo using inaccurate facts in his opinions may not be an accident.
Predictably, even though Yoo didn’t accurately describe the program, the Administration tried to have his analysis of it count as having authorized the program anyway.
Later on March 5, Gonzales called Goldsmith to request a letter from OLC stating that Yoo’s prior OLC opinions "covered the program," meaning the PSP. Philbin told the DOJ OIG that Gonzales was not requesting a new opinion that the program itself was legal, but only that the prior opinions had concluded that it was. As a result of Gonzales’s request, Goldsmith, Philbin, and Comey re-examined Yoo’s memoranda with a view toward determining whether they adequately described the actual intelligence activities of the NSA under the Authorizations. Goldsmith, Philbin, and Comey concluded that Yoo’s memoranda did not accurately describe some of the Other Intelligence Activities that were being conducted under the Presidential Authorizations implementing the PSP, and that the memoranda therefore did not provide a basis for finding that these activities were legal.
Credible or not (coming from a guy who approved the program on the same day he was read into it), Ashcroft pointed to Yoo’s inaccurate description of these OIA when he explained why he had authorized the program in the past.
In a May 20, 2004 memorandum, Ashcroft wrote that it was not until Philbin and later Goldsmith explained to him that aspects of the NSA’s Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.
So why didn’t Yoo include these activities in his original opinions? We know that the Administration briefed Congress–at least partly–on the data mining aspects of the program; presumably, that’s why Jello Jay invoked TIA when he wrote his letter to Cheney. Did the Gang of Four get a full briefing on July 17, 2003, on the eve of defunding any data mining?
Or did Yoo–and the rest of the Administration–leave Congress and much of DOJ in the dark about the extent to which they were data mining the communications of American people?
Thanks for this close reading of these documents. This is too important a subject to be ignored, even if there is a Sotomayor hearing today. I hope that we are not already in EPU-land here!
Bob in HI
The thought process seems to have been: If we tell them (DOJ lawyers or Congress), they we not approve. So, we won’t tell them. By the time they find out, it won’t matter. There’s nothing they can do because the prohibitions have no teeth.
So, the question remains. Did they discontinue the activities that Comey and others objected to or just placate them enough to throw them off. How would the DOJ lawyers know whether the activities continued or not?
It’s too bad we don’t have the equivalent of the Watergate tapes so that there is an actual record of how these things worked. The Veep being a veteran of that era knew better and keeps the firewalls secure.
Have you seen this press release from the speaker? It seems to have been buried with all the other news.
http://speaker.house.gov/newsr…..es?id=1266
Of course, we would like to know what was redacted.
spell check on ‘parallel’
Hmm. Parallel. You’d think I’d see that.
You are channeling Dick Cheney very accurately, IMHO. This was exactly their strategy for 8 years on many subjects. Also fits with the famous Suskind quote about We’re the actors now; you guys will be thinking about it and writing about it for years, but we’ll be doing it. (Extensively paraphrased.)
This is all about realizing the lag between executive action (fastest), legislation
(slower), and adjudication (slowest). This also is an Israeli strategy about creating “facts on the ground,” regardless of legality, that will create precedents that will remain in place unless repudiated and removed.
This is a significant problem for the balance of powers that our Founding Fathers did not adequately appreciate.
Bob in HI
Liz Cheney can comfortably come on the airwaves and complain how unappreciative we are that they kept the country secure for eight years and now some want to prosecute the actors for ‘policy differences.’ And the MSM just nods in agreement.
I seem to vaguely recall an incident that occurred during those eight years, the like of which had not occurred since the FF guys had set up shop. And I should be grateful to the bitch because her old man only attacked us once.
If by policy difference you mean the utter ability to violate the law and Constitution with impunity, well, yes, I do have a policy difference with that.
I think they understood this. The Constitution seems to spell out multiple (and concurrent) timings with an eye to immediate and long-term redress (have checks and balances ever been truly contemporaneous?). Whether they produced a foolproof machine is of course another question!
It’s not a new attitude. Look how those who tore up the Constitution were rewarded.
http://wiki.answers.com/Q/Why_…..enforce_it
and post in general –
Doesn’t the Gonzales on screen “fess up” that, “we didn’t ask Congress because we didn’t think they’d agree” fit nicely?
Haggis just asked Sotomayor whether or not she thought the Supremes should have taken cert on ACLU v. NSA, the 6th Circuit Anna Diggs Taylor case. Her response was pathetic and unacceptable. It was NOT, as she was claiming, a question that could conflict her in future cases. There has been all kinds of happy talk about Sotomayor, and yes the Goopers are lame jerks; that said, I do not like her one bit and I do not think she will any great boon to the Court.
bmaz, your credibility wrt Holder was golden. Might need to go along with your hunch.
Because of what you’ve heard at these hearings, or for other reasons? I’d like to know them.
Looks like the IG report isn’t too freindly to Addington. He believed and then wrote that Ashcroft’s earlier approval “as to form and legality”, even if based on a misrepresentation by Yoo, still gave a pass to the other activities and the IG report goes out of its way to say no (along with Ashcroft). I wonder if this bit could finally be the beginning of Addington’s undoing. He’d been so careful to have others do his dirty work, and this time he had to do it himself. I’m so glad the IG ratted him out.
CIA’s kill teams were modeled on Israel’s hit squads
http://www.newsweek.com/id/206607
A ferocious dispute between the CIA and congressional Democrats centers on an ultrasecret effort launched by agency officials after 9/11 to draw up plans to hunt down and kill terrorists using commando teams similar to those deployed by Israel after the 1972 Munich Olympic massacre, according to a former senior US official.
Officials of the CIA’s undercover spying branch, then known as the Directorate of Operations, on and off over the last several years repeatedly floated and revised plans for such operations, which would involve sending squads of operatives overseas, sometimes into friendly countries, to track and assassinate Al Qaeda leaders, much the same way Israeli Mossad agents sent assassins to Europe to kill men they believed responsible for murdering Israeli Olympic athletes, the former official said. But several former and current officials said the highly classified plans, which last week provoked bitter argument between Congress and the CIA, never became “fully operational,” and CIA Director Leon Panetta put an end to the program in June.
Government officials say that neither the intelligence community nor the White House was especially concerned about whether the proposed kill teams violated the law.
GWB bragged about it in his ‘03 SOTU speech when he spoke of all the AQ who would not be around to bother us or our allies anymore (with the usual smirk and glint in his eye).
There has to be more or why would Panetta come to Congress now with ‘his hair on fire.’ The only time I remember that phrase was in a description of warnings to top level WH about AQ plans for 9/11 which were ignored. Was that Richard Clarke whose hair was on fire?
Also an FBI agent had her hair on fire. I’ll check, but I think her name was Rowley. Be back shortly.
http://www.huffingtonpost.com/…..33371.html
Coleen Rowley is listed on the left-hand menu of Huff Post Politics page today.
FBI Agent Coleen Rowley was trying to get their attention but I don’t remeber the phrase ‘hair on fire’ applied to her.
http://www.time.com/time/cover…../memo.html
See immediately above. Poor memory. And thanks to Maryo2 @ 31 also for getting this accurate.
The Out-of-Towner
While Bush vacationed, 9/11 warnings went unheard.
By Fred Kaplan
Posted Wednesday, April 14, 2004, at 7:54 PM ET
“Throughout that summer, we now well know, Tenet, Richard Clarke, and several other officials were running around with their “hair on fire,” warning that al-Qaida was about to unleash a monumental attack. On Aug. 6, Bush was given the now-famous President’s Daily Brief (by one of Tenet’s underlings), warning that this attack might take place “inside the United States.” For the previous few years—as Philip Zelikow, the commission’s staff director, revealed this morning—the CIA had issued several warnings that terrorists might fly commercial airplanes into buildings or cities.”
http://www.slate.com/id/2098861/
Here she is. Now, to find her with hair on fire.
September 11-12, 2001: FBI Agents Denied Permission to Interview Moussaoui, Due to Lack of Emergency
“The FBI’s Minneapolis office asks for permission to interview Zacarias Moussaoui a few hours after the end of the 9/11 attacks, but permission is denied, apparently on the grounds that there is no emergency. On 9/11, the office’s counsel, Coleen Rowley, seeks permission from the Acting US Attorney to question Moussaoui about whether al-Qaeda has any further plans to hijack airliners or otherwise attack the US. The next day she asks again; this time the request is sent to the Justice Department. Such questioning would not usually be permitted, but Rowley argues that it should be allowed under a public safety exception. However, permission is denied and Rowley is told that the emergency is over so the public safety exception does not apply. Rowley will later comment: “We were so flabbergasted about the fact we were told no public safety emergency existed just hours after the attacks that my boss advised me to document it in a memo which became the first document in the legal subfile of the FBI’s ‘Penttbom’ case.” [HUFFINGTON POST, 5/2/2007] Some sources will suggest that Moussaoui was to be part of a second wave of attacks (see September 5, 2002). He is also an associate of shoe bomber Richard Reid, who will attempt to blow up an airliner later this year (see Mid-2000-December 9, 2000 and December 22, 2001).”
http://www.historycommons.org/…..k=penttbom
I guess I remembered her hair as being on fire because this occurred in very short order when the others’ hair was on fire. Sowwy.
I couldn’t remember where he said that, but I wondered if a part of that wasn’t also the smirking wink over the Dasht-i-Leili (shipping container) killings.
“You know, it is really weird”, one source at CIA inside the program said. “Every time we found one of these bastards, got the goods on them, a targetable fix, we would send it up to OVP, and they would tell us to stand down.” He continued “Dammnit, we were so close, hundreds of times over the years.”
====
A member of the JSOC special operations squad said “these projects were so intermittent. One day it would be a finance guy, then maybe a month later a shipping guy, then five waiters in one week. Just a name, an address, some foreign country, some terminate with extreme prejudice command. We didn’t know who they were or why. But you never do on the battlefield. We just knew that JSOC ordered them killed.”
The response to Munich was not the first time the Israelis engaged in a series of killings in this way.
Michael Karpin describes in The Bomb in the Basement: How Israel Went Nuclear and What That Means for the World p. 207 a series of suspicious deaths of people involves in German weapons programs for Nasser’s Egypt in 1962-3:
(1) Private aircraft blew up in the sky over northern Germany in Sept. 1962. Owner German middleman who supplied weapons and recruited technicians for Egypt. Wife died in explosion.
(2) Dr. Heinz Krug, director of Egyptian front complany Antra that was linked to the development of Egyptian missiles disappeared in Munich in Nov. 1962. Car found abandoned, Krug never located.
(3) G
Sorry, this posted prematurely before I had finished my posting. I tried to edit it, but that seems not to have worked. I have to leave my office in a minute, but the operation involved several other attacks.
OK, I now have time to type the whole posting that I tried to post yesterday:
The response to Munich was not the first time the Israelis engaged in a series of killings in this way.
Michael Karpin describes in The Bomb in the Basement: How Israel Went Nuclear and What That Means for the World p. 207 a series of suspicious deaths of people involves in German weapons programs for Nasser’s Egypt in 1962-3:
(1) Private aircraft blew up in the sky over northern Germany in Sept. 1962. Owner German middleman who supplied weapons and recruited technicians for Egypt. Wife died in explosion.
(2) Dr. Heinz Krug, director of Egyptian front complany Antra that was linked to the development of Egyptian missiles disappeared in Munich in Nov. 1962. Car found abandoned, Krug never located.
(3) In late Nov. 1962, German secretary of German missile developer Wolfgang Pilz at missile-producing factory in Cairo opened a letter bomb addressed to Pilz that blew up and left her maimed.
(4) The next day, a gift-wrapped package blew up at the same factory, killing an Egyptian scientist and five Egyptian engineers. Parcel bomb was addressed to Egyptian army coordinator for German scientists’ work.
(5) In Feb. 1963, in southern West Germany, assailant fired pistol at Hans Kleinwachter, head of guidance systems lab in Stuttgart, but missed.
(6) For several months, German scientists received threatening letters at their Egyptian addresses. Some were sent letter bombs. Their families in Germany received threatening phone calls.
As a result of all this, the German scientists and engineers almost all left Egypt.
Like the later response to Munich, this series of covert actions by the Israelis probably had the tacit consent of the German government.
Brings to mind the death of Iranian scientists, doesn’t it?
That it does.
The unasked and therefore unanswered question is, what was the objective of the eavesdropping? It had nothing to do with terrorist attack threat, since those responsible for the eavesdropping were the perperators of the attack that gave the justification for the eavesdropping?
Some mind-expanding cactus buttons or magical mushrooms might be required to envision what those nefarious objectives might be.
Something about the program(s) may have led Comey, Philbin and Goldsmith to suspect that they themselves, at home and at work, along with everyone else they talk to, would be hoovered up by the thing(s). They may have found this obnoxious, not to say terrifying.
Not that they aren’t lawyers, with a basic sense of what passes muster as law. But the idea that you are personally at risk for the rest of your life has to count for something.
And Mueller certainly would have to opposed it: the notion that the FBI might be connected such a project–finally, who knows?, responsible for it–would have struck him as a total disaster. Bad public relations, for one thing, and for another–given the FBI’s historical incompetence at handling IT–it’s been his overriding concern to streamline those operations from the day he took the job on.
Random questions:
1. IIRC, there was some comment at one point (probably here at EW’s) to the effect that at some point Comey and others at DoJ were suspicious that they were being surveilled by US government.
2. IIRC, someone around here once noted that the FBI only stumbled onto a datamining setup by accident, shortly after it was put into place. However, I don’t have any sources to confirm accuracy; maybe someone else does?
3. At the time this was set up, Enron was still ’securitizing’ future prices for ‘energy products’ and using ‘mark to market’ accounting methods to claim vast fortunes based on fraud. And the entire ’securitization’ of global ‘financial instruments’ was exploding with zero oversight. Control of digital information almost certainly was a way commit fraud on an unimaginable scale, IMVHO.
4. And since this comment is a list of ‘random’ topics, consider the word of Elliott Abrams, talking about the ‘lessons’ of Iran-Contra reported by Seymour Hersh in the New Yorker some years ago:
Saudi money was involved in what became known as the Iran-Contra scandal, and a few of the players back then—notably Prince Bandar and Elliott Abrams—are involved in today’s dealings.
Iran-Contra was the subject of an informal “lessons learned” discussion two years ago among veterans of the scandal. Abrams led the discussion. One conclusion was that even though the program was eventually exposed, it had been possible to execute it without telling Congress. As to what the experience taught them, in terms of future covert operations, the participants found: “One, you can’t trust our friends. Two, the C.I.A. has got to be totally out of it. Three, you can’t trust the uniformed military, and four, it’s got to be run out of the Vice-President’s office”—a reference to Cheney’s role, the former senior intelligence official said.
(a) You can’t trust… well, just about anyone. Certainly not Congress.
(b) Was the ‘CIA out of it’? Or only one section of the CIA? Why was Porter Goss put in to head the CIA during that period after Plame was outed; and why did the ‘Goslings’ create such a kerfuffle that long-timers left? Was Plame outed in order to get the CIA ‘out of’ whatever ‘it’ was? (And note the strange timing of the Plame outing in July 2003 against the EW Ghorbanifar Timeline!)
(c) Someone didn’t trust the military, evidently. IIRC
(d) ‘It’ was clearly run out of OVP, whatever ‘it’ was. Maybe it’s time to find out just what ‘it’ was….?
Oh, and would Liz Cheney have known anything about this surveillance work-around while she was running the Iran-Syria desk at Dept of State? Or not? Because Gellman reports in “Angler” that Hillary Mann and Richard Haass were both ‘intercepted’ talking about negotiating with Iran.
If whoever was doing the surveillance could listen in on the Director of Policy for Dept of State (Haass) while he was chatting in Dubai, they’d probably have no qualms whatsoever listening to Comey coordinate with his spouse about what time the kids’ soccer game started, now would they?
But why would you listen in on your OWN people, unless you were doing something that you didn’t want them to know about…?
The answer to your question is obvious. You would listen in on your OWN people to find out of if they were wise to the crimes you were committing, if if they were planning on taking steps to do something about it. If they were, you had OTHER eavesdropping-collected information on them you could use to blackmail them.
WHY IS THIS NOT OBVIOUS?
Using Mossad tactics, you could also lure vulnerable persons, such as members of Congress, into compromising situations. With your surveillance apparatus, you would be in a position to influence them to do whatever you want.
Like former Congressman “lucky London gambler” Bob Ney and his relationship with “Fat Man” al-Zayat?
Certain key members of Congress were trusted not to interfer and to keep the other members in the dark or in line or bound by secrecy oaths. Porter Goss comes to mind along with a few others.
The whole system depends on there being enough people with integrity running it who will sound the alarm when the others go off track. Watergate had the Saturday Night Massacre. Nothing like that happened with this crowd. Comey and a few others were about as close as they came and that’s pathetically and tragically too little and far too late.
That is a classic understatement.
All these programs were illegal so Goldsmith and Comey’s idea that some were more illegal than others, or some they could accept and others they couldn’t misses the point. They were all part of a coordinated effort to spy on Americans in blatant disregard of the law and the Constitution. Goldsmith and Comey had no problem with that. They only had problems with some of the methodologies, not the program itself.
As for Yoo and Addington, I think it is a mistake to look for consistency in the legal defenses they tried to construct. Even those they did make were lame beyond words. They made up defenses for some things but not for others. Why? Because in some cases those involved, like the CIA, wanted cover whereas others like the NSA under Hayden with his imperfect knowledge of the 4th Amendment were completely onboard. And ultimately they could always fall back on Article II and the AUMF. Even if these were later thrown out, A)they would be long gone, B)they could argue that it was all about policies differences, and C)if they were going to be pursued someday by the law it was more likely for their torture, kidnappings, and assassinations.
an addittion
D) their objectives for the program, whatever they were, would have been accomplished long before the program was discovered and dismantled.
JimWhite
Every damning fact they reported they did so in very bland fashion–including that one, and the WH’s repeated attempts to tell DOJ to fuck off.
That said, that is a really damning fact, but IG Report doesn’t say it’s Addington who wrote that authorization.
I actually like her far more for having watched the hearings.
She is a moderate (big surprise). But I think she’s a lot smarter (and shrewder) than reported.
I think your analysis here is spot on, but involves a history of which you might not be aware. Prior to the Bush Cabal, foreign communications were defined as (a) communications between two or more foreigners outside the US and territories; and (b) stuff you needed a warrant for because of the Bright Line Rule ( if it touched US persons or Territories, 4th amendment applied). Bush Cabal changed the definition to one side being foreign. Thus every American calling Dell for computer support was wiretapped.
Bush Cabal was famous for “unitary executive (i.e. monarchy/dictatorship)” in wartime, so no stinking Congress was going to tell them how to do what to whom. FISA got into this in a big way, so they just ignored it. FISA judges even resigned, rather than sign off on warrants derived from illegal surveillance. The problem with data mining, like all vacuum cleaners, is that along with the gems that fell out of the Al Qaeda secret decoder rings, there was a huge amount of dirt. Phone sex between governoras and Argentinian paramours discussing more effective means of oral copulation, perhaps. But e-mails, texts, porn videos (remember, Al Qaeda uses steganography to hide messages in porn and thats why we study it so hard) all flood in. The problem becomes what to keep, since you can’t keep it all.
FISA has an interesting quirk. Recording your message is just a “signal”. Only CONTENT analysis, by a computer or a person, constitutes an “intercept”. Signals collection, even pre-bush, was unregulated. What do you do if you find out the person is in US territory, or a US person? FISA pre Bush gave you 3 days to RETROACTIVELY go back to get a warrant. But that meant you had to explain how and why you were listening to it in the first place.
The other problem with the warrant process, was that it needed names and addresses, which in data mining, is limited to the link itself. So you might get a call from 444-555-1212 to 333-555-1212 about “Mr. Mohammed going to do it on Sunday.” The first part, that 444 called 333, you don’t need a warrant no matter where or who the parties are (it is called a “pen register trace” in the law). So data mining uses the hooks it has to store the content of the signal prior to the intercept. All legal so far. The second part either requires computer analysis or an analyst to listen/view the intercept (Once Al Qaeda learned text could be read by computers, they switched to images. Images, Farsi, Pashtun still require people). Proceeding to step two is forbidden by FISA (except in pure foreign) unless you have a warrant. What to do, what to do?
NM
Some comments, given that your “might not be aware” comment indicates an apparent lack of awareness of the four years of writing I’ve done on this topic…
First, DNI last year very explicitly prohibited ANYTHING from being even segregated, much less destroyed. Given Bamford’s reporting on the kinds of storage facilities that have sprung up as a result of this program, you might reconsider your certainty that stuff is being destroyed. (Which is also because of WHEN they decide the info has value.)
Second, your content and pen register comments both relate to phone calls. Wainstein admitted last year (but David Kris had made clear beforehand), the big issue–and the big new legal problems with trying to surveil smartly–is email. “Content” is not so clear cut for emails.
Finally, you’re not discussing data mining as (it has been reported) it is used here. The mining they’re doing is on things like length of call. Which is of arguable legality in the first place, but to move from that to accessing content based on the data mining is clearly a problem.
Dear EW,
No slight intended. Much of my knowledge of these events has been due to your excellent coverage. I was going off of memory, and Bright Line Rule and such were old school (which applies to me). Please don’t take any offense. I seem to have gotten onto your irritated side, and I REALLY REALLY don’t want to be there. So accepted my profound apologies, no slight intended.
Minimization requirements still apply, even though we have no checks and balances on them, only their word, and you can never question that in a court of law due to “state secrets”. I wish you and Bamford could have a child together (intellectually speaking) so that the next generation has a least some hope of knowing what is going on….
Pen register doctrine applies to header of e-mails, texts, etc. – all non-content addressing information. Content for e-mails is clear cut – the message body and attachments. Everything else is fair game. Note that in an automated system you might not be able to tell when e-mail text content analysis occurred, if a “summary” or “digest” was used. Does keyword statistical sampling become the equivalent to being read by a person? You are right about the intercept part being squishier.
Yes, I was discussing data mining, in the FISA framework. The signal is acquired. The signal has address and routing information, and a length of recording, which can all properly be stored under the signals acquisition and pen register doctrines. What happens to the contents, the analysis and intercept part, the blurring of lines and non-specificity preventing the application of warrants is the crux of their legal problem, as you eloquently outlined in the text I quoted.
I get a kick out of assuming all the bad guys check this site on a very regular basis. Hi Dick Head!
It’s a very good piece, EW and will probably get linked or at least pulled up and read a lot, so I’m going to do something I never do, esp with my slapdash approach to typos in my own comments.
You also discussed in his memoranda
Yoo.
“It’s a very good piece, EW . . . ” Yes, it is, indeed.
I’m also encouraged by EW’s positive comment @ 14. And this @ 27: “Given Bamford’s reporting on the kinds of storage facilities that have sprung up as a result of this program, you might reconsider your certainty that stuff is being destroyed.”
Yottabytes and the Data Analysis Challenge Documents that the much bigger problem for data storage and analysis is image sensor data. Storing all the emails of the world is not that hard. Storing all the phone calls is much harder. Storing all of the video and image content – impossible. That is why advanced compression routines and – horror or horrors – minimization – are used. Yes, the intelligence community is eating storage capacity as fast as it can. But there is no way to store it all.
I can’t wait to use ‘yotta-’ to say something is really, really big. *g*
Oh. Thanks. And someone posted the text version and I haven’t started using that yet–which would have saved me from that error.
I was hoping you hadn’t retyped all that yourself, but didn’t know if it needed to be “Yoo” or “You (sic)” so I just you-who’ed. Or is that yoo… never mind.
That would have been me, and I was going to throw out that link again for you, but I’m guessing it just slipped through the cracks.
I think I got it yesterday while liveblogging. So it didn’t sink in.
227 F.3d 450 (DC.Cir. 2000) outlines the pen register doctrine, as applied to electronic communications.
That really is the problem. Now I know the Administration type of apologists will come up with all kinds os shuck and jive claims and theories to try to get around it, but the simple fact of the matter is that this machine conducted trolling through databases, irrespective of the particular construct, just does not meet the “reasonable and articulated specificity” to an individual to meet with the spirit of the Constitution, and specifically the Fourth Amendment thereto. And, yet, they are not only using it in that regard, they are also effectively saying it is so reliable that neutral and detached magistrate is unnecessary to the equation. It is violative on so many levels it is silly. That is a marginally inarticulate description of what I am trying to get across, but you get the drift…
Ooh, this is bad. I’m going to end up pissing off people I really, really admire, so please accept my apology in advance.
1. Government has access to all publicly available information without a warrant.
If your phone numbers (444-555-1212 BMAZ, 333-555-1212 EW) are publicly listed, they are available. If your IP address is in a packet header on the open internet (10.10.10.1 BMAZ, 10.10.10.2 EW), then it is available. If your Credit card information is available to a law enforcement agent without a warrant (it is), then all of your credit card purchases (Including that video citing oral copulation) is available. If they can look down at your house from space, or from across the street, that information is publicly available. The government is also allowed to buy access to databases to look at the information in them (yellow pages, Thomas Register, Google/Bing/yahoo searches, etc).
2. The pen register doctrine allows the government to see who you communicate with, without a warrant. This applies to your mail, your e-mail, your texts, your phone calls.
3. The government is allowed to possess and use computers, for any lawful activity. Note that all funding for the Total Information Awareness program was stripped by law, but the government was not prohibited from data mining in general. So if NSA starts up a program called “Lesser Information Awareness”, they can gather all of this stuff, plus all the foreign to foreign stuff, and put it in a Big Ft. George Meade vaccuum cleaner, use the “Traffic Master” software to connect all the links, and suddenly they know what is doing what to whom without violating any laws.
4. It is only when, on the basis of this information, they identify a specific IP address, phone number, address, or person that they even need to think about getting a warrant. Remember that FISA itself has a lesser probable cause standard than the 4th amendment, and if you are the subject of a FISA warrant, 9 times out of ten they were granted in the past. Bush changed that, I don’t think he was even batting .500.
So the data mining is not of arguable legality. “but to move from that to accessing content based on the data mining is clearly a problem.” Perfectly stated and I agree completely.
If Congress prohibits any money being spent to data mine citizens, then who is doing the data mining? How are they compensating the telecoms for the data? Who’s paying the electric bills for the computers and who’s paying for the storage facilities, being built from scrath, to store the data they’re collecting and mining?
In your scenario, all that stuff happens for free. That’s not the case.
Or to put it differently, is is not the case that they defunded TIA. It is the case that they prohibited any coutnerterrorism program to data mine within the US.
That’s probably why Panetta found out about it. Because some program manager somewhere in the DO had run out of money… And the old numbers at OVP were, strangely, no longer working…
That makes sense. The reports were that “a unit” advised Panetta, as opposed to there being a briefing, etc. Everyone is watching budgets and you have to figure Panetta got around to a line item and it had expired or he wanted to see about cutting it (remember how forthcoming he was about how much he’d save by closing down the black sites?) and initially no one could tell him what the money was going towards.
TANSTAAFL – There Aint No Such Thing As A Free Lunch. TIA was defunded, but no such prohibition on data mining by the US government was included in the legislation. NSA no doubt has contracts with the telecoms, but due to Jeppesen and Totten, you’ll never be able to prove it in a court. NSA has very big bills for the FARM (basement of headquarters building), and apparently has Eminent Domained their way into using all of Utah’s power after having used up all the power grid in Baltimore.
I never said it was free. In fact I said they might have to pay for access to databases. Clearly the NSA, DIA, CIA, DNI, and the rest of the alphabet soup of agencies pony up big dollars to build facilities to do this stuff.
Russ Feingold got scammed on his TIA bill. But a total prohibition on data mining makes borders less secure, stops law enforcement, etc.
Freedom isn’t free. But you are doing the hard work to help us keep what is left of it – and for that you will always be one of my heroes.
Actually there IS such a prohibition.
Do you have the US Code cite? Cause the language listed above by EW isn’t there. Title 50 has no such prohibition.
It appears to be more correct to say there WAS such a prohibition – briefly.
Perhaps we need to get on to Senator Feingold to make a more permanent addition to 50 USC 1801 et. seq.
You are referring to a different effort to defund TIA than the one I am referring to which came later and was written far more broadly to–as I pointed ot the language–to prohibit DOD to do data mining domestically.
They failed the first time. This was a second effort.
I am not doubting you. I’m sure you are correct. I just can’t find the language in an online search of the US code. Sure it didn’t get deleted in one of those famous midnight reconciliation sessions? I’m sure Bush would have vetoed anything like that if it was in there. But I’m also sure you are correct. So this all leaves me very, very confused.
Amen – and now Congress has wrapped it all in a secret court setting to give it more presumptions of regularity to which it is not entitled and to furher insulate the unconstitutional surveillance from magisterial and “real court” reveiw, ever.
And then they put the cherry on top and said, if you don’t have sufficient probable cause under the 4th to get a criminal warrant, it’s ok, bc you can just go use the secret FISA ct to issue a surveillance warrant, the primary purpose(s) of which can be unconstitutional, mean-spirited, abusive, political etc. harrassment and prosecutorial targeting – and that plentyfineOK as long as someone, somewhere, can articulate a made up “thought pig latin was a foreign language” kind of crap reason for it all.
I still don’t understand why, with all the revelations that have come out so far, no one is petitioning the FISCt for information it has as to executive branch FISA, ECPA, Wiretap Act and 4th amendment violations of law, esp to the extent civil penalties attach. Sure, you might not get what you ask for, but you start to kick on the door of a way to take the whole illegal one-party court allowing for unchecked surveillance of US citizens on US soil under the pretexts that owning Dijon Mustard makes it a matter of national security to seize and search their communications.
How would you go about petitioning the FISA court?
The FISC is not a court of general jurisdiction. Only the US govt. can file actions in it.
O/T (Old Topic): Back to Pay2Play + a new attraction, the Car Czar
Did Pay-To-Play Probe Cause Rattner’s Resignation?
By Zachary Roth – July 15, 2009, 2:34PM
“So: is Steve Rattner stepping down as the Obama administration’s car czar because of the investigation into whether his private-equity fund used pay-to-play tactics to win business from New York’s public pension fund?
“Probably.”
Link.
The emerging pattern of Yoo using inaccurate facts in his opinions may not be an accident.
I don’t think the cherry-picking and “call an apple a cherry” approach was “accidental” but that’s going to be the hard issue on proof. Not necessarily impossible, depending on what hasn’t been fully destroyed and who might turn, but still very hard.
This is why I agreed so strongly with the point made by my less-than-first pick, Judge Sotomayor, regarding facts and law. Law doesn’t exist without a factual context and while it gets stated differently, the old saying is bad (or sometimes someone will more candidly use “hard”) facts make bad law.
It’s why lawyers have due diligence obligations vis a vis the facts, because you can’t give advice without knowing those facts. But it’s also why Yoo’s opinions were so atrocious. He peppered them with “good sounding facts” (whether they were true or not, things he though SOUNDED good for his outcome) without ever giving any legal basis for why there were “good facts.”
For example, his torture reliance opinion, where he starts out with recitations of the fact that the torture victims are going to be al-Qaeda members with high value operational information. There, he’s kind of trying to go with an exigencies/necessity premise, but he never gets to any necessity case law bc a thirty day torture regime isn’t going to fit into any case law. Still, it “sounds good” to say you can “slap” an “al-Qaeda operative” who may have information about a nuclear bomb being detonated in the US. So he bases his factual authorizations to those facts, but without any legal rationale as to why the facts he pre-selected make a difference in the legal analysis.
If you list one of the facts on which you limit your opinion to be the fact that the torture victim is an al-Qaeda high value operative, but you never say WHY that makes a legal difference, then you leave the door to your opinion being used for other torture victims wide open. Because in the end, he’s not saying that it is because they are al-Qaeda that they can be tortured (and he has no legal support for such a claim) but rather that because the President is the President they can be tortured.
That’s the heart of his original and ever-expanded “legal” argument, since the “operative” facts he uses for other memos never end up with a case law tie in for why them make a difference. And it’s why every time the facts got worse, someone could always continue to expand on his original decision, i.e., the facts he listed as operative were never discussed by him in his memos as being legally determinative. The only fact that he really ever has argued to be determinative is the existence of a “war” basis to the claims of overweaning Presidential power.
That “war” claim is still central – to Obama’s plans for show trials under his own special little rules, to Obama’s national security claims to cover up crimes. But it’s more than that – it had to be a “special” kind of war, because not only was what Yoo advocating not viable under existing criminal law, it wasn’t viable under the laws of war. So not only were we to be subject to the “inherent war powers” of a President that superceded the Constition and Constititional protections, we were subject to a President who could also make up the “rules” of his special war as he went along, unbounded, even, by the laws of war.
The parallel issue is, why did he think he could get by with this approach? Bc that is the real heart of it. He did it because he knew the Dept of Justice was owned by the criminal conspirators.
In any event, if you can’t do it under domestic laws, claim it is being done on the “global” battlefield (and ignore Sup Ct rulings on what is and is not the theatre of battle) and if it is illegal under military law, even if done on the “global” battlefield, claim the war is a different one where no rules apply. And while you couch your “facts” as not including “Americans” among those who can be abused, since the operative facts are still only the President’s status as President and the “state of war” (which you’ve already said abrogate the Constitution) there’s no legal reason your opinion can’t become the basis for that expansion as well.
Yoo apparently views his American citizenship the way Brutus viewed Caesar’s back.
Very poignant analysis, Mary!
So, if y’all think this diary is hot (and it is), please use the Spotlight feature at the end of the main body of the diary to send it, along with your comments, to the ten media darlings who should be paying attention to it. This is a great feature of FDL, and deserves to be used more!
Bob in HI
emptywheel, human data miner extraordinaire!
has anyone ever tried to turn the tables on these irreverent jokers and actually implemented data mining software on the usual suspects and their suspicious activities?
data mine the data miners!
OT:
This is sad news from an intel perspective. KGB is not gone.
Putin and Cheney, share and share alike.
It is alive and well and living in Alexandria?
Bob in HI
NSA no doubt has contracts with the telecoms, but due to Jeppesen and Totten, you’ll never be able to prove it in a court.
Actually what Totten stands for is that the telecoms couldn’t go to court to enforce a contract to do illegal things (a spy’s surviving family couldn’t go to court to enforce a purportedly agreed upon payment to be made to the spy for spying) Not so much that Congress couldn’t defund illegal contracts or that Congress or prosecutors couldn’t get discovery on illegal contracts. IMO, FWIW.
Correct as always, Mary. Jeppesen and Totten are about proving the relationship. Jeppesen said third parties don’t have the prohibition. Second parties trying to prove a state secrets relationship to the first party are prohibited under Totten. Too loose with my language, thanks for the correction.
The timeline
In an appropriations resolution, it only counted for that one fiscal year. Bad news for our liberty in general, if true.
Right. But on March 11, 2004, it was undeniably in effect.
EW/NM/bmaz – I’m kind of glad you guys are having the back and forth. It’s helping to congeal things that you (EW – also WO, MD, bmaz, etc.) have said over a period of time and nail things down.
I think the appropriations prohibition overlay and it’s timing really adds some thickener to the soup.
I’m still not that sure that we know for sure what all the OIA were/are and which ones were/weren’t stopped. I wonder how all of this might have also tied in with that DOJ approach to just take “the program” to the FISCt, bc I am pretty darn sure what they took to the court was some kind of basket warrant approach that would jive more with datamining than most things. So I’d wonder how the FISCt dealt with the appropriations prohibition. hmmmm
I’m working on some reporting on this and I’ve been told–though in vague terms–that the approp was a very significant event. It certainly explains why the Congressional briefing was so important.
I’m wondering if the prohibition wasn’t circumvented by some creative money laundering to contractors. e.g. money allocated for legal purposes was used to set up a contract with, say, Blackwater, who in turn (gasp) used some of that money for data mining purposes (gee, who knew???).
Bob in HI
John Yoo has REPEATEDLY said that if COngress doesn’t like a program, they should defund it. They did that here, and it did not end the program. It is the most fundamental offense to the COnstitution to have Congress defund something and the Administration do it anyway.
If Congress doesn’t like it, they should outlaw it – like they did with FISA. But has anyone EVER gone to jail for violation 50 USC 1809? I bet not. I bet nobody ever does. Because the government that prosecutes and the government that does the violating are one and the same.
Correct in principle, the language only says counterterrorism funding, but all they had to do was wait a year and the prohibition vanished anyhow. They just didn’t spend any funds on it. They used the computers, people, etc., for other intelligence activities – and were left with no restraints whatsoever the next budget cycle.
It may also explain why they skipped it. This is the one they were supposed to do and didn’t do, right?
Yeah, my suggestion is that the Admin did not do the January 2004 briefing they would otherwise have done. Because the day after their previous briefing they were told (Jello Jay’s letter): I consider what we’re defunding tomorrow to cover this program and they had, nevertheless, continued the program.
So when they were screwed PARTLY bc Comey had problems with the fact that they had blown off an explicit act of Congress (based on the signing statement no doubt) without telling them, it was highly illegal. So they did a briefing so that they could go to Ashcroft, in ICU, and say, okay we’ve briefed Congress. (This is part of the reason the “consensus” that they shoudl keep the program was so important–bc htey were using it to claim they could blow off Congress.
The story is that they ended that part of the program on March 17. I’m not sure I buy that. And I definitely suspect they restarted it at some point later (or just hid it better).
Heh, I bet they didn’t stop in any meaningful or discernible way whatsoever. At best, they likely moved the pea under a different shell.
that’s the entire scenario, they broke the pea into a bunch of differant parts and called them all differant programs, in this manner they could say whatever they wanted about any particular program and “not be talking about other programs”
or, as you put it, moving that pea
couple of things;
abu torture testified to these “other programs” by saying “I am only responding to this program
that’s the first thing but here I disagree a somewhat;
I believe there are only “multiple programs” so they can testify in compartments, deny as much as they like and simply claim, “oh, my testimony wasn’ty that program it was this program
I believe they are all one and the same, illegally conieved from the start but compartmentalized to give cover and continue when exposed
Um, generally, defunding something is considered EVEN STRONGER than simply outlawing it. It was ALREADY outlawed because they were collecting ACTUAL content and disseminating it.
Remember, this is not just FISA, it is Wiretap and ECPA. And even ECPA requires law enforcement to show they are using the information in a criminal investigation. This was not a criminal investigation.
As to whether the data mining was merely “defunded” for one year or not, I would suggest that folks remember the Congressional usage of “classified annexes” in both their Military and Intelligence appropriations.
It may well be that the “defunding” of data mining was continued in additional appropriation years, but was done under cover of those “classified annexes”.
One of the particular reasons I cite the use of “classified annexes” for this purpose is the fact that when TIA was “killed”, it wasn’t really terminated but parts (the majority?) were instead moved under the management of the NSA.
And as an Intelligence organization, the NSA’s appropriations have always fallen into that “classified annex” black hole.
And to buttress the argument that the Congress was, and still is, concerned about federal government data mining, the following is from the Office of the Director of National Intelligence February 15, 2008 Data Mining Report to Congress (15 page PDF):
And I probably should have continued my cite of the ODNI’s 2008 Data Mining Report (15 page PDF) with the follwing paragraphs:
So, as you can see, data mining is alive and well in our federal government.
And 4th Amendment be damned!
I wonder if that’s how they “moved” it–by stopping the program that resulted in pizza orders being tapped, and instead playing 6 degrees of Osama bin Laden.
Of course the pizza parlors are all within 3 or 4 degrees of Osama by their calculations, but what the heck it’s all good because we are in a War on the Concept of Terror!
And we all know, because of those pest control ads, what a weapon of terror a box of pizza can be!
Bob in HI
Yeah, remember how Hayden made his big deal out of saying they weren’t doing data mining?
I’ve always thought that Diggs-Taylor pretty much left them hanging in some of the worst possible ways, by saying that she wasn’t going to rule on the data mining, but dammit – if they DID happen to SEIZE AND/OR SEARCH the communications of US citizens on US soil, it was a violation of the 4th and she while she wasn’t ruling on data mining, she was ruling that they were enjoined from violating the 4th vis a vis American citizens, they were left on the ledge. How much did they REALLY think their “link” analysis was not generating “seaches” and “seizures” of US citizen communications? How high do ya wanna bid?
The meltdown after her opinion and scrambles to get things into FISCt and get Congressional troops to support the attack on the 4th Amendment pretty much indicates that a lot was still going on – one way or another.
@80 “inputs associated with a … group of individuals”
yeah – using “inputs” that you can claim are “associated with” (but not evidentiary of anything) with a non-numeric capped “group of individuals” – how could anyone call sumpin like that data mining?
It’s like calling tennis shoes “sneakers.”
I think you’ve nailed it, and that was where I was pointing in my # 99.
I like your “shorter” version better. *g*
And to read between the lines of that ODNI 2008 Data Mining Report (15 page PDF), you might come to the conclusion that one of the things that DAG Jim Comey & Co. “fixed” in conjunction with the FISC, in regard to the PSP’s Other Intelligence Activities was to restrict its data mining to “analyses [that] reply on inputting the “personal identifiers of a specific individual, or inputs associated with a specific individual or group of individuals,” rather than the prohibited or restricted “pattern-based” analyses.
In other words, a data mining effort that began with this new type of “probable cause” predicate or nexus called “link analysis”.
I’m not sure that this isn’t a distinction without a difference.
Sheesh!
Here I am referencing the ODNI 2008 Data Mining Report (15 page PDF), and I didn’t even notice the ODNI 2009 Data Mining Report (8 page PDF).
Given the reduction in page length (from 15 to 8), either the ODNI got sneakier or more of the good stuff went into the classified version.
Could your blurb reveal a telling use of, ahem, quotes? You grafted:
The Data Mining Reporting Act requires “the head of each department or agency of the Federal Government that is engaged in activities defined as “data mining” to report on such activities to the Congress…”
As David Addington has repeatedly reminded us, the Office of the Vice President is neither part of the Executive nor Leglislative Branch.
But more importantly, and relevant to the aforementioned quotes, Addington has also argued and written that the OVP is not an Agency of the Federal Government …
So say, the OVP is engaged in data mining… Well, it’s not an Agency nor Department of the Federal Government… so OVP doesn’t have to report ’such activities,’ right?
Especially if the OVP is using consultants, right?
If Addington can be said to have a talent, it surely must be weasel-wording. *g*
A more thorough answer comes from the Department of Homeland Security’s 2008 Data Mining Report (47 page PDF), page 11:
(My Bold)
I’d like to see how Addington weasel-worded his way out of this. And I’m betting he tried.
And from page 34 of that Department of Homeland Security’s 2008 Data Mining Report (47 page PDF), an interesting definition of “data mining” in the eyes of the federal government:
Not for the first time when reading about these datamining and social networking models, somehow I didn’t get just what highly indicative factors are supposed to be stepped in to this set of iterations so that they will close in on the true liklihood that someone who buys pizza at Osama’s Cousin’s pizzeria is a terrorist.
Not that having real model would help any. If one wanted a very simple model of the generating process for human self-delusion, I think waste heat would do.
As a computer geek, I can assure that computers know nothing and are real good at it. *g*
Here is how – argue that provision only applies to non-Federal governmental entities, not contractors.
A potential minefield of weasel words await to define that one.
Dive back into the bureaucracy, the Federal Register, or some obscure place like that. That’s where his answers lay buried. But they just took such ridiculous pains to argue OVP was not part of the Executive Branch…
And there’s still not sufficient evidence yet as to why. It wasn’t to “hide” e-mail records under the VP’s Senate hat, because they just made them disappear. Still waiting for a good explanation.
Keep in mind that the first serious arguments about the OVP’s status as non-executive/non-legislative came with the fight for the Energy Task Force documents.
That’s when they cut their teeth on the concept of Fourth Branch.
Frankly, it was one of the first opportunities to parse the description of an operation, if you look at how the appeals court determined the docs should remain secret.
I thought the Energy Task Force was really an airing of the limits of Executive Privilege. Addington’s snippy letter to the GAO when they initiated a request for review of the Task Force’s docs repeatedly echoed Executive Privilege, separation of powers, and the fact that the ETF was a sanctioned operation running by direction of President Bush as part of the EOP.
Did it morph into a Fourth Branch case as it wended and bounced around the courts?
Well, the case picked up a bunch of lovely tidbits the VP and his henchman used going forward; see this nugget in the excerpt from the Brief in Opposition of the Respondent Judicial Watch, Inc.:
Not an agency, while claiming executive privilege, and yet not the Executive — that’s the germ which became Fourth Branch.
A ‘92 decision held that the President wasn’t an Agency under the definition of the APA, but how did they make the leap to the Vice President? Were they considering the VP as a Member of Congress (APA by statute exempts Congress)? Or were they considering the VP as an extension of the Presidency/Executive?
As you point out, odd indeed, since the VP claims neither to be L or E. What was the source of the district court’s jurisprudence?
IANAL – that’s why I included the link to all the documents Judicial Watch provided about the case. I’ve suspected there were flaws with the approach Judicial Watch took to obtain the Energy Task Force Documents, that perhaps with better lawyering they could have gotten what they sought. Perhaps somebody who actually is a lawyer will suss out the flaws in the case starting with the district court’s finding.
(There’s also the tinfoil theory that Judicial Watch, whose origins were of a conservative bent, actually lost the case the way they wanted to…)
@72 I think whoever/whatever got you focused on this, it would definitely be a big deal. The Constitution gives the purse strings to Congress. If they say “you can’t spend on this” and DOJ/AG is authorizing spending on it anyway, that’s kind of a big deal.
So has the language from the ‘03 appropriations bill been carried forward or repeated in subsequent bills?
I don’t think so. Why do it if you know it’s not going to be heeded.
I was told that this was one of the reasons they created the overlap between Intell and Approp, though I think the people I’m talking to have some confusion on timing. But that’s why.
Correction; that used to be a big deal. You know, back when Congress actually cared enough to protect its balance of power.
[very off topic] Shuttle lifted off successfully
PS
Marcy, I hope your here, I have an off topic bit of information I think you might be interested;
the gm plant in Wilmington is closing next week, this is the plant that made the Pontiac solstice and the Saturn sky
those of us who own those cars have a love affair with them and they will never be made again
we contacted the plant manager and got permission to go there this Monday to say thank you to the workers who built the object of our love.
it’s going to be an emotional gathering, those who own and love this sports car instant legend and those who built it
I was wondering if you have contacts, it would go a long way toward benefiting gm if this were covered on national tee vee
When are you guys going?
july 27th is the goodbye, most are going the night before, have a read here
Are the TPS illegal wiretapping and OVP/CIA death squads linked? In particular, could a person in the US get on the bad list by talking to a person overseas, and then from that point onward the US citizen be targeted for wiretapping, and ultimately be assassinated here in the States? And when the CIA says the program was on-and-off and never fully implemented, does that mean that they have not assassinated anyone in the states, but that a program for collecting a list of names of potential targets existed from 2001 until 2009?
Or are these two different topics?
The way the Bush Administration Torture Memos expanded definition of who the enemy was – it went from being a person who attacked the US, to being a person who gave aid to a person who might be considereing attacking the US or US interests – would logically transfer to who could be wiretapped and who could be assassinated by the CIA on US territory.
I think one could make a good case that stuff like the TSP/PSP connected directly to Cheney’s targeted assassination program.
As to domestic, don’t know, but Fredo’s testimony in Congress where he refused to answer questions, I believe from Senator Schumer, as to whether stuff like illegal break-ins was done under the auspices of the TSP/PSP would lead one to ask “what wouldn’t they do?”, and the answer is likely “not much”.
It’s really only a matter of time before the truth is exposed, that the Bush administration (read: Cheney) had every Democrat in Congress under surveillance, perpetually looking for anything that could be used to pressure or blackmail them with, plus being fully briefed on any Democratic political strategy. “Terrorists”? Cheney couldn’t be bothered looking for them, he was manufacturing scapegoats via torture, as we can now see from disavowed confessions. I’m pretty sure that Obama’s extention of “Secret Service protection” of him is simply a way to disguise what is in reality, a house arrest.
In spite of all the smoke and mirrors, I smell a crime here, a prosecutable crime…
Ah, but who will prosecute?
AP Sources: Tenet Canceled Secret CIA Hit Teams
By THE ASSOCIATED PRESS
Published: July 15, 2009
Filed at 8:07 p.m. ET
WASHINGTON (AP) — “As CIA director in 2004, George Tenet terminated a secret program to develop hit teams to kill al-Qaida leaders, but his successors resurrected the plan, according to former intelligence officials.
. . .
“Porter Goss, who replaced Tenet in 2005, restarted the program, the former officials said. By the time Michael Hayden succeeded Goss as CIA chief in 2006 the effort was again flagging because of practical challenges.”
Link.
Funny that should come out today. I spent a bit of time going through all the key reporting on the so-called CIA “assassination team” and wondered about the on-again-off-again nature and the timing.
What’s the chances Tenet really left because of this project, and a dispute with Rummy about the work JSOC had been doing without CIA involvement?
What’s the chances that former operative Goss came on board in no small part to implement the CIA component?
What’s the chances that Goss bailed not only because of the Foggo-Wilkes-Cunningham crap, but because of a major f*ckup related to the JSOC effort?
What’s the chances Hayden put a stake in this — putting the project in hibernation but not to death — because of the f*ckup?
The timing appears to work, just wish I could pin down the timing on the f*ckup besides first half 2006.
What about the reports from a whisteblower that the Bush “administration” engaged in warrentless wiretapping through the telecoms, months before 9/11 and just after Bush seized office? We don’t hear anything about that.
dotmafia
Because the accurate report of what happened–according to all credible reports–is that they implemented, to some degree, the capability of tapping directly into the fiber, but did not do anything with it until after 9/11. I’m not sure they even kept the signal. They just carried out a Clinton-era plan to have hte capability to get directly into the fiber bc that is necessary in digital world.
CALEA
I hope he’ll come and say this later, but scribe emailed me this:
Not unlike the Contra supply part of Iran-Contra, no?
The Boland amendments sunsetted, but during most of the relevant period they explicitly outlawed providing military aid, at least, to the Contras.
Thank you for the info Marcy and bmaz.
Been Googling to see if I could find more of the Data Mining Reports required by “The Federal Agency Data Mining Reporting Act of 2007″ for folks like the CIA (no luck so far, probably all classfied), DIA and/or DOD (still searching) and the FBI/DOJ.
Here’s one from the DOJ circa 2007 (38 page PDF) that was required reporting under earlier law:
United States Department Of Justice
Report On “Data-Mining” Activities
Pursuant To Section 126 Of The
Usa Patriot Improvement And Reauthorization
Act Of 2005
Here’s a January 2008 Department of the Treasury Data Mining Report for 2007 (20 page PDF):
Federal Agency Data Mining Report (2007)
Update on the telecom cases before Judge Walker who had 90 minutes of oral arguments today. He brings up the IG report and focuses on the part about the programs being broader that had been understood earlier.
http://www.sfgate.com/cgi-bin/…..#038;tsp=1
Crikey, I forgot that was going on today. Thanks for that.
Ditto on the thanks!
Wonder if a transcript will surface? *g*
You might want to do a new post about Judge Walker’s comments. Does he get to see the classified version of the IG report?
The dismal Summary of Prosecutions from the Walsh Report includes the following, my emphases:
It’d take a while for me to ferret out how close Walsh came to charging anyone for the actual misappropriation of funds to a prohibited purpose, but note that Abrams was on the hook for failing to inform Congress about these activities. Alan Fiers, Jr. and Robert MacFarlane were also charged with failure to inform. Several others were charged with fraud against the USG, but it is not clear from the Summary what the fraud was, i.e. whether it involved the diversion of funds or secretly pursuing an illegal program, or some other technicality.
Pretty thin smoke if you ask me (and nobody did, so that’s a freebie, or maybe just a non sequitur).
Analyst: Liz Cheney creating ‘wall of smoke’ to protect her father
BY DAVID EDWARDS AND MURIEL KANE Published: July 15, 2009 Updated 8 hours ago
Link.
And to show that bloggers are important intel sources too, a wee paper (13 page PDF) for/by the Air Force Office of Scientific Research:
“Increasingly, issues erupt from the blog world and into the real world.”
Funny. I thought it was the other way around–at least among the blogs I frequent. You know, their fantasy vs reality. And reaching reality requires very keen, committed analysis of what officialdom says.
Non-human bloggers? The “blog-world” referenced as if it is a parallel universe with some kind of mysterious portal to the “real world?” hmmm.
@138 – There really needs to be some creative discovery efforts vis a vis the FISCt IMO. And if Walker did get the telecoms suit put to bed, the upside to that would be that it opens a lot of discovery doors there (so I hope there are some good, solid, preservation orders on in those cases). If the activity is illegal and the telecoms were acting in effect as spies for gov, neither they nor gov can enforce a confidentiality agreement to the extent that it is an agreement to coverup illegal activity. If they have amnesty, they have no corporatized 5th amendment out.
@151 – figure out a way to claim standing (so I think you’d have to tie in with one of the existing cases unless you have your own peculiar and compelling fact pattern) then draft it and file it. The worst they do is deny it.
@158 – huge big ditto on redoing the AUMF. I believe at one point someone was pushing on that – Hilary maybe? Both AUMFs need to be redone.
@123 and related – after all this time it is doing my heart good to see the “classification of illegal activity” argument coming up over and over – from your link:
And yet, here’s this IG report saying … hehehe. I wonder if the DOJ classified filings adequately and candidly described to Judge Walker those OIAs?
The follow up on all this is that I’d love to see someone offer up the Keith case as Sup Ct precedent on the conflict between evidence of governmental crime and govermental assertions of state secrets. I think that is falling between the cracks because it isn’t headnoted as a states secrets case, but as I keep harping on, you have to go to the facts. The facts in Keith are that Mitchell’s affidavits were states secrets affidavits and the Sup Ct refused to allow gov to invoke state secrets to cover up their illegal surveillance of the white panthers, and gove even made the arguments at the time that their actions were all tied in with foreign threats and war powers, bc of the Vietnam war and anti-war status of the groups surveilled. I bet with some digging they’d even find the word terrorist.
To what extent did “Other Intelligence Activities” end in 2007? Any extent at all?
On January 17, 2007, Gonzales said that the TSP part of the programs would be put back under FISA.
On February 1, the final presidental authorization for the program expired. The IG report says this is specifically TSP, not the wider PSP.
But:
In March and May, there were secret court rulings, showing some sort of fight with the administration about it.
McConnell said there was a stay allowing warrantless wiretapping, presumably out of the secret court cases, that expired on May 31. So they were still doing something warrantless.
On May 2, McConnell was still asserting that the president could authorize it. I don’t see why he would bother asserting the point to no purpose.
The IG report, in discussing transition of TSP activities to be under FISC orders at p. 30, mostly just says it is all still classified.
Did PSP stop in the spring of 2007? Did it stop at the change of administration?
Ah. I find both answers and questions.
The intended centerpiece of Walsh’s set of prosecutions was to have been a conspiracy charge against North, Poindexter, Secord, and Hakim (with several unindicted others) to:
The Reagan adminstration response was by turns to file an amicus brief in support of North’s motion to dismiss on grounds of legal insufficiency(!) and to make the better-known denial of a few pieces of classified info that would have to make the charge work. Because of the latter move, Walsh was forced to drop the charge, and the most important part of the Iran-Contra case, which resembles too much of the GOP modus operandi for getting its way since then, was never tried.
However: Walsh also notes a decision by Judge Gerhard A. Gesell, who presided over the case, that acts such as described in connection with the conspiracy count are in fact criminal acts (thereby rejecting the claim of legal insufficiency):
So here was a case in which an act of Congress and an action by members of the Executive Branch (bkmrk) are in direct opposition, and it appears that the act of Congress was given primacy by a federal judge. When Walsh wrote his report in the early 1990s, Gesell’s ruling still stood.
To our bar association especially, how general is a ruling at trial such as this? Would another judge with a similar case be likely to rely on it, as far as it goes, if faced with the sublimely evanescent arguments of the Bush boys?
Yoo has a new piece in the WSJ explaining the warrentless wiretap program.
http://online.wsj.com/article/…..inion_main
“Our Constitution created a presidency whose function is to protect the nation from attack. “
He just does not get it. Now will he, because this is his primary excuse.
Thanks for posting the link.
This Yooism shows that he too can indulge in snarky remarks.
The ultimate would be if they declared the Constitution top secret, so we’d never know if the president was supposed to uphold and protect it or do all kinds of really gawdawful stuff to “protect us from attack” (which they didn’t do anyway).
I gotta go run around the block a few times. Oh, no, it’s dark outside so I can’t even do that. Arrrrrgh!
It all goes back to the AUMF as the basis for all of these broad expansions of executive power to do anything and to anyone and to do it secretly as long as it can be put under the unbrella of security from attack by terrorists (or anyone else).
The AUMF was a huge mistake and needs to be redone without the roar of fighter jets over head and anthrax filling mailboxes.
Yes, heartily agreed; I suspect the wording of the AUMFs were something pre-packaged, on the shelf, like the content which became the Patriot Act.
The AUMF against Terrorists gave far too wide a latitude without any expectation of real and documented results, with an economy of words.
The AUMF against Iraq 2002 (PDF) used so many damned loopholes and weasel words, including a repetition of the anti-terrorism angle, that the POTUS was given carte blanche to do anything.
Neither of these documents should be allowed to stand eight years without a reevaluation of the objectives for which they were issued; if we’re still engaged in a global “war on terror” eight years later, maybe the problem isn’t that we need military force applied but that we used it instead of addressing the root cause.
His hero, FDR. In answer to EW’s question –
Yoo says –
Yet FISA gives them 15 days after declaration of war to file retroactive warrants. Yoo’s complaint is really that Congress has no role in his “unitary executive”/monarch/dictator model –
Good god is that one flaming pile of manure. If it were not for lies, misrepresentations and things out of context, he wouldn’t have any words at all. At least he finally discusses Youngstown; dishonestly, but at least he discusses it.
Here’s a link to an earlier masterstroke in the WSJ in case you missed it.
http://www.aei.org/article/100188
It’s along the same lines. I did not realize he’s a visiting scholar at AEI (since ‘03 according to wikipedia). I noticed he didn’t list his other job as visiting law prof. at Chapman on his AEI resume.
EPU’d but I’ll post nonetheless…
I think that Yoo is trying to respond to Marcy’s find in her 15 Day post. And he fails yet again.
I find it interesting that since EW’s 15 Day piece got posted (I still think it is one of Marcy’s best weed working pieces ever and it quietly slipped away from MSM awareness,) we began to hear a new round of MSM memes of, “You do not know what it was like after 9-11,” and, “Under the circumstance of 9-11, we had to keep certain activities very secret, even from Congress,” type of arguments.
Marcy, if there is any way to return to that piece, I would. Many. Many. Times.
It appears, Mary agreed with me too.
That is the most damning evidence find in quite a long time and it links to many of EW’s timelines.
Ah sorry — I posted on the Sotomeyer thread. Didn’t know all y’all were over here. Thanks bmaz for the reaction to his Youngstown argument… thought it was rather, uhrm, novel.
What an effing moron. He hasn’t got the sense God gave a maggot, does he? He has no idea that he should shut the f*ck up about anything he might get called on the carpet about in the near future?
Certainly makes the case he was hand-picked to be one of the idiot fall guys they could point at and say, Gee, he’s a lawyer, we assumed he was right when he gave us legal support, how were we supposed to know he was an idiot?
Compare and contrast his chickensh*t fear-ridden justification for illegal takings and other trashings of the Constitution, with Judge Sotomayor’s response about Korematsu yesterday. What a cowering weasel Yoo is — and they picked him for that reason.
I if John Yoo would mind surveillance of his own activities, 24/7, over there in Berkeley, California. What kind of videos has he been renting from Netflix? What books has he borrowed from the local libraries? How about his wife?
It’s be a damn shame of such materials became public knowledge. I, for one, would be outraged.
2nd word dropped out — “wonder” as in “I wonder…”
Translation: PUNY LAW. WE SMASH!!!!
It’s interesting that insofar as he acknowledges the existence of the law, he’s essentially saying “Yeah, we broke it. So what? What are you gonna do about it?”
Note 52 from Walsh’s “The Operational Conspiracy: A Legal Analysis”:
Wow. The roots of the 4th branch, as it were.
I wonder how Howlin’ Wolf would have sounded singing Dionne Warwick’s “Deja Vu.” One of the music world’s great missed opportunities imo.
Stupid question, maybe: Does Congress have control of the entire DoD budget? There’s a big opaque part of its budget, right? I’m assuming that a Congressional order not to spend appropriations on particular activities applies to the entire budget, but just wonder if there are loopholes.
Also, can DoD “save” money from previous years’ appropriations somewhere to be used for a rainy day? I know, with the budgeting process, it tends to be use it or lose it, but I just thought I’d throw that out there. Contractors could do such a thing, I suppose, if they were paid (partial/full) up front for contract work. Could work continue on a particular program if a contractor was working on it and had plenty of money from payments in a different budget year?
Ah, so y’all came back here to discuss Yoo, rather than put up a new thread (maybe EW is getting some well-deserved sleep.)
Yoo’s screed may be tommyrot, but I’ll bet we’ll be hearing a lot of the same arguments here on out from Rush Limbaugh, Glenn Beck, Faux News, and the rest of the Republican Noise Machine.
Whatever happened to Rachel Maddow’s segment on “Rinse, Wash & Repeat”? I think we’ll be needing that.
Bob in HI
Administration Bridles at Bar on Contractors
By Karen DeYoung
Washington Post Staff Writer
Thursday, July 16, 2009
“The Obama administration has objected to a provision in the 2010 defense funding bill currently before the Senate that would bar the military’s use of contractors to interrogate detainees.”
Link.
Great pick-up there fatster.
Makes one wonder the origination of the objection within the administration?
Is there a contractor interrogating that benefits another national security interest?
After all that has come out on contractors, one would think barring the use of contract interrogators would be wise and welcomed.
So, I asked myself, what would override such wisdom? I came up with one answer: self-interest from a separate but equal player.
Sheer speculation, klynn, but I wonder if during the Bushco era they didn’t contract out so much (contracting out is a Repug specialty) that they have only a few in-house to do the interrogations. However, they didn’t say, oh, let us contract out for, say, six months, which will give us time to recruit and instruct our own people to do the job. Does raise some interesting questions doesn’t it?
(my bold)
That is especially true wrt Cheney. I have written a great deal here in the comments about the “feature, not a bug,” element to the Repugs using blanket purchase agreements (BPA’s) effectively placed in one department that would be an unsuspecting contract holder to the average joe-joan, and pulling the $$$ from it in order to funnel the paperwork trail out of places like DoD and CIA. Making it harder to trace the money and the contractors’ work for the government.
The holes this funding methodology opens for moles, double agents, secret-secret ops, and treason, are beyond comprehension.
Funny (actually, no-so funny), if you are correct, are we looking at the administration admitting, between the lines, “If you bar contractors, all our current interrogation goes away?”
@166 et seq I thought at first maybe the issue was translators, but since the article says there are exceptions for that, you have to wonder why they are so het up on this and for that I found this revealing:
So they have “contractors” out on patrol with them? To point out the bad guys? So guys like Dostum on payroll or Pakistani informers etc? What contractors do they have on patrol with them?
Nice find Mary.
Looks like the WH presser should hear some tough questions.
CIA Supervisor Claimed He Used Fire Ants On Detainee
Aram Roston
Author and Emmy Award-winning investigative producer
Posted: July 16, 2009 08:05 AM
. . .
“That was the first mention of insects to become public. But the memo’s release may make it worth looking back to a brouhaha that occurred in secret at the agency in 2005. A CIA supervisor involved in the “enhanced interrogation” program bragged to other CIA employees about using fire ants while during questioning of a top terror suspect, according to several sources formerly with the Agency. The official claimed to other Agency employees, the sources say, to have put the stinging ants on a detainee’s head to help break him.
“The CIA insists, however, that no matter what the man said, it never took place.”
Link.
fatster @ 173
Is that a CIA attempt at a Jedi mind trick?
“You do not need to see his identification. Move along.” said Obi-Wan as he waved his hand with the influence of the Force.
LOL. Obviously, it’s another one of those “whose reality?” issues.