DOJ: Give Us More Powers Because We F*** Up So Often

I don’t have time to do this EFF report justice–so just go read the whole thing. It traces the story of one of FBI’s misuses of National Security Letters–and the way in which Robert Mueller, having misused the NSLs, used the story to claim FBI needed more investigative powers. The short version is:

  • The FBI used a grand jury subpoena to get the educational records of an NC State Chemical Engineering student suspected of ties to the London subway bombers.
  • Then, someone in FBI HQ effectively said, "No, let’s use our fancy new toy, the National Security Letter, even though National Security Letters don’t apply to academic records!"
  • So the FBI returned the records, and then submitted a NSL.
  • NC State, which apparently has better lawyers than AT&T and Verizon, read the law and said, "Golly, you can’t use an NSL to get academic records!" So they denied the request
  • The FBI then gave up on the NSL, submitted a second grand jury subpoena, and voila! They got the records they had originally gotten with a grand jury subpoena.
  • Robert Mueller went before Congress and claimed that the NSL process had resulted in a two-day delay in getting the records, which justified giving FBI more investigative powers. You will not be surprised to learn that Mueller didn’t reveal the real details behind the request for records.
  • The FBI did not report this incident to the Intelligence Oversight Board as a potential violation of civil liberties until two years later, at a time when the IG was already investigating the incident.

As I said, it’s worth reading the entire EFF report, particularly its list of open questions about the incident.

But for now, I just wanted to point the the incident as yet another example (Mike McConnell’s false claim that the FISA process resulted in a delay on wiretaps on Iraqis who had kidnapped American soldiers and Michael Mukasey’s claim that FISA had prevented the FBI from learning that one of the 9/11 hijackers was communicating with a known Al Qaeda safe house are two others) where the government fucked up–and then used its own failure as an example to claim it needed more investigative powers.

It’s really a disturbing pattern. The Bush Administration apparently thinks it reasonable to argue, "we’re incompetent, so give us more ways to invade your privacy."

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103 replies
  1. looseheadprop says:

    The NSL letters are a real power grab for FBI, and dumb one. In order to get a GJ subpeona FBI has to make a request to a US Attonreys Office or Main Justice which menas a couple few lwayers will examone the request (plus there must be a GJ actually sitting at the time of the request)

    The nSL letters are only reviewed by FBI’s own lawyers. Now some FBI Lawyers, especailly the one in the NEW York Feild office, are super competenet, and the FBI general Cousnel used to be an ASUA,

    BUT

    many FBI lawyers have never actually tried a cse, their not prosecutors, so they havene’t had the (humbling and educational) experience of having defense counsel and jdudges examine thier information gathering methods with a jaundiced and suspicious eye.

    FInding out you did it wrong, is REALLY consciousness raising and makes you much more sensitive going forward. These none practicing FBI lawyers, don’t have that experience, or the sensitivitythat goes with it.

    And just sending them to yet another training class won’t solve that problem. It’s a sensitivity thing.

  2. MarieRoget says:

    At this point IMO giving BushCo any more anything in this regard is an effort to legitimize what they’ve already put in place that we don’t yet know about. It’s a CYA activity, plus they have zero to point to as a compelling argument for more invasion of our privacy, only the usual (& obvious) spin.

    As per selise, HJC subcommittee hearing today:

    1 pm – House Judiciary
    Subcommittee on the Constitution, Civil Rights, and Civil Liberties
    Hearing on H.R. 3189, the “National Security Letters Reform Act of 2007”
    as reported by the ACLU, witnesses will include:
    Glenn Fine, DOJ Inspector General
    Valerie Caproni, FBI General Counsel
    Jameel Jaffer, director of the ACLU National Security Project

  3. selise says:

    Whenever power is unchecked and unaccountable it almost inevitably leads to mistakes and abuses. In the absence of rigorous accountability, incompetence flourishes. Dishonesty is encouraged and rewarded…

    It is often the case that an Executive Branch beguiled by the pursuit of unchecked power responds to its own mistakes by reflexively proposing that it be given still more power. Often, the request itself it used to mask accountability for mistakes in the use of power it already has.

    al gore 1/16/2006

    • Hugh says:

      LOL I remembered you brought up that quote the last time this subject was raised. It’s a great quote. More competence, less need for power; greater incompetence, more need for power.

      • selise says:

        caught me. you have a good memory.

        warning – i’ll probably keep doing it too. it was a great speech, imo. and i figure if the big lie gets traction from repetition, maybe this idea canl too.

        broken record = me. *g*

    • bobschacht says:

      Whenever power is unchecked and unaccountable it almost inevitably leads to mistakes and abuses. In the absence of rigorous accountability, incompetence flourishes. Dishonesty is encouraged and rewarded…

      It is often the case that an Executive Branch beguiled by the pursuit of unchecked power responds to its own mistakes by reflexively proposing that it be given still more power. Often, the request itself it used to mask accountability for mistakes in the use of power it already has.

      al gore 1/16/2006

      This is one of my all time favorite speeches of Al Gore, “Restoring the Rule of Law,” to an audience of over 3,000 people in DAR Constitution Hall in Washington, DC. The event was co-sponsored by ACS and The Liberty Coalition, and broadcast live by C-SPAN. If you haven’t heard it, you really should. Note especially in his closing remarks the 5-point action plan.

      I also liked his comment that

      It is therefore vital in our current circumstances that immediate steps be taken to safeguard our Constitution against the present danger posed by the intrusive overreaching on the part of the Executive Branch and the President’s apparent belief that he need not live under the rule of law.

      I endorse the words of Bob Barr, when he said, “The President has dared the American people to do something about it. For the sake of the Constitution, I hope they will.”

      A special counsel should immediately be appointed by the Attorney General to remedy the obvious conflict of interest that prevents him from investigating what many believe are serious violations of law by the President. We have had a fresh demonstration of how an independent investigation by a special counsel with integrity can rebuild confidence in
      our system of justice. Patrick Fitzgerald has, by all accounts, shown neither fear nor favor in pursuing allegations that the Executive Branch has violated other laws.

      It is a special mark of shame on all concerned that this has not happened.
      It still needs to happen.

      Bob in HI

  4. rincewind says:

    The House Jud subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on NSL’s today (1:00 EDT) is posted on the website but the witness list is empty. Also, tomorrow’s Senate Jud hearing on NSL’s has apparently been “postponed”.

    • selise says:

      rincewind – i got the (possibly incomplete) list of witnesses for this afternoon hjc hearing from the aclu’s diary at daily kos yesterday. if you click on my name, you will see the complete list of hearings for the week (at least as complete as i could make it when i put it together yesterday). on it, there are links to all my sources. hope that helps.

  5. Gooey says:

    I want to challenge the premise that they f**ked up and did stupid things and submit they purposely took us to places that undo america and create instability so that a grander plan can unfold. And it all started with false flag 9/ll. To me, assuming its all incompetence and nothing else just feeds into their defense plan.
    ‘The individual is handicapped coming face to face with a conspiracy so monstrous, he cannot believe it exists’ Hoover

    • rincewind says:

      My WAG is that a small core of extremely “competent” people have gotten/are getting exactly where they wanted to go, and that one of the methods they’ve used to take us here is by flooding the fed gov’t with incompetent stooges who will do whatever is asked of them. IOW, the hard-core PNAC’ers have been very successful at intentionally using mid-level incompetence to achieve their goals.

  6. Bushie says:

    The issue extends way beyond the NSL to the core culture of the FBI. Hoover so bent the FBI culture during his tenure that any subsequent Directors wanting change failed. The problem is most didn’t try.

    One would hope the next Prez. will work to abolish the Director of National Intel, Homeland Security and kick serious ass at the FBI and CIA. Nah!

  7. drational says:

    I’d echo 8.
    This was not a screw-up.
    This seems more like a deliberate, premeditated effort to get rebuffed, with the specific goal of having an incident to cite in a quest for broader power.

    They gave back the records after the initial subpoena, at the direction of FBI headquarters.

  8. behindthefall says:

    I don’t really see that incompetence crops up in this matter, as it is explained in the ’short summary’. The FBI got what it wanted up front, but that was through an ‘old-style, pre-9/11′ GJ subpoena. SOMEBODY wanted to either (1) set a precendent for the ‘new-style, we’re-at-war’ NSLs being used for anything they chose or (2) show that NSLs could fail in some situations (duh!) and use that to accrue more powers. (See Gore, above.) Nothing incompetent about that, that I can see. Arrogant. Unhelpful. Sneaky. Definitely.

    • MadDog says:

      One of the “benefits” of NSLs is the fact that they can be and are used, to muzzle the recipient. NSLs have a “no talkee” provision that prohibits one from even admitting you have been served.

      A subpoena on the other hand, even one issued via a GJ, can be talked about. It can be publicly discussed, even with folks like Journalists…OMG, not Journalists!

      So the whole ruse by FBIHQ was an attempt to do their dirty deeds undercover and out of sight.

      Deadeye’s people throughout the government have this thing about doing stuff in the dark.

      Sure, it gives them a tingle, but also prevents the outside world from knowing just what kind of “reality” Deadeye and crew are creating all by their lonesome.

      Playing poker and never having to show your cards is the only way Deadeye knows how to cheat play.

      • JimWhite says:

        One of the “benefits” of NSLs is the fact that they can be and are used, to muzzle the recipient.

        What are the chances they used these on the press? Could that be why Bush’s open admission of authorizing torture is getting almost no coverage?

        • MadDog says:

          IANAL, so take with grain…no, entire salt shaker. *g*

          From what I understand of NSLs from reading the EFF story EW headlined, they have a very limited umbrella of stuff they can be used for such as:

          The three available options were “Subscriber and Toll Billing Records,” “Financial Records,” and “Consumer Credit Records.”

          Wrt this particular case, they could not be used for the “Educational Records” of the terrorist suspect student.

          And as for muzzling Journos, doesn’t seem like NSLs currently have the reach. Maybe this is why the DOJ/FBI wants to expand them to include every-fookin’-thing!

        • JimWhite says:

          Yeah, but there is also this from ACLU:

          The National Security Letter provision of the Patriot Act radically expanded the FBI’s authority to demand personal records like Web site visits and e-mail addresses without prior court approval. The provision also allows the FBI to forbid or “gag” anyone who receives an NSL from telling anyone about the record demand.

          If they go after contacts people have made with reporters, could they effectively silence what has been said to the reporters while simultaneously preventing them saying why they are silent?

        • MadDog says:

          If they go after contacts people have made with reporters, could they effectively silence what has been said to the reporters while simultaneously preventing them saying why they are silent?

          It’s kind of a Catch-22. If they use NSLs for your stated purpose, and since no one can publicly discuss an NSL, who would ever know to be “silenced”?

          Again, IANAL, but I believe that NSLs also are different from subpoeanas in that the “target” is never notified that s/he has been targeted.

          IMHO, NSLs don’t seem to be particularly useful in “intimidating” someone since their very secrecy means no one but the Feds and the providing institution know that that an NSL has been served.

          I would however, surmise that folks like the NYT’s James Risen are far more cautious and even devious in how they contact and communicate with their sources.

          The NYT’s James Riesen is officially being targeted by Junya and Deadeye via Federal prosecutors:

          The issue is especially timely for James Risen, a reporter for The New York Times. In February, Risen was subpoenaed to appear before a Federal grand jury in Alexandria, Va. to divulge the source of information for a chapter in his book State of War. The chapter deals with Operation Merlin, a failed CIA operation aimed at infiltrating Iran’s nuclear development program. According to CBS, one of the CIA agents who worked on Operation Merlin was Valerie Plame Wilson.

          Charlie Savage’s book “Takeover – The Return of the Imperial Presidency and the Subversion of American Democracy” writes that back in the 70s, Dick “Deadeye” Cheney, working as President Ford’s Chief of Staff, strongly promoted the tactic of using Federal Espionage laws to try to target both the NYT and the authors who published The Pentagon Papers.

          At that time, some cooler heads in the DOJ said that was a real stretch and that they would not likely win in court, so the DOJ turned Deadeye down.

          Charlie Savage makes the point that Deadeye has never forgotten that episode and that, like many other of his extremist views, Deadeye is adamant that he now has the power to enforce his unconstitutional heresies.

          Hence the Deadeye-staffed and Repug-politicized DOJ/FBI are now going after Journalists via “espionage laws” with a zealot’s mania.

          Btw, now Supreme Court Justice Scalia was the head of the DOJ’s OLC during this time. He spent a lot of time at the White House, reports Charlie Savage, delivering Deadeye and Rummy-inspired OLC opinions like this for his masters: Presidential Authority To Decline To Execute Unconstitutional Statutes

      • behindthefall says:

        Hah. The recipient of an NSL can’t tell anyone that s/he’s gotten one, not even a lawyer, eh? That’s decisive. I wonder whether the unfortunate old-style person who sent out the first GJ subpoena got reamed a new one?

      • bobschacht says:

        “Deadeye’s people throughout the government have this thing about doing stuff in the dark.”

        Cheney = Gollum. And like Gollum, he won’t rest until he gets his “precious”.

        Bob in HI

  9. Loo Hoo. says:

    Via Attytood, Obama says he would go after Bush Administration officials who have broken the law:

    What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.

    So this is an area where I would want to exercise judgment — I would want to find out directly from my Attorney General — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.

    • looseheadprop says:

      This is th emoney quote

      You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances.

      What about our current circumstances are not exceptional enough for him? Impeachment not fruitful to pursue?

    • bobschacht says:

      Via Attytood, Obama says he would go after Bush Administration officials who have broken the law:

      What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. . . .

      . . . . You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.

      Well, methinks Mr. Obama needs to see an eye doctor and get properly fitted with spectacles or at least them cute little lensy things that go right onto one’s eyeball, because it is clear that his vision is not so clear. Maybe he just needs an aide who will read the this year’s FDL archives and bring him up to speed. If only Speaker Pelosi would stop Obstructing Justice and allow the HJC to begin impeachment investigations, we might get somewhere.

      Bob in HI

  10. earlofhuntingdon says:

    And just sending them to yet another training class won’t solve that problem. It’s a sensitivity thing.

    I agree with your premise about the educational value of being proven publicly wrong about a major element or process in your case. It’s like getting lost for an hour and a half a block away from your destination. It tends to burn the street map and one-way system vividly into your memory.

    BushCo, on the other hand, seems to have a negative learning curve, and a petulance proportional to it. Its best attempts are about as sensitive as a two-by-four, so it brags about “sensitivity” being counterproductive. Bush’s behavior since he could tell mummy from daddy. May I hazard a guess you’ve met one or two guys like that in a bar or on the witness stand?

    • Gooey says:

      These guys cannot be embarrassed or shamed because their actions are not dumb ideas but rather are well-planned means to an end that they hold above all others. They have proven themselves to be fearless, brazen, unashamed brilliant manipulators who trot out effortless spin when confronted. They have the very zeal they attribute to the “terrorists”. Terrorists were a fabrication made to come true by Bush’s actions and inactions in Iraq. FalseFlagism and deceit are their modus operandi. We need to root these guys out and bring them to very stiff justice, like what they did to Saddam, in order to be safe from the terrorists they have created. Bush created the terrorists so that when they now do something he can say “See? I warned you but you would not listen! I was right! You need us to protect you, so do as we say and follow our rules and do not object or else I cannot protect you! I know best so do not resist!”

    • looseheadprop says:

      I’m sorry, I’m leaving out info you kinda need. To become an FBI agent you usally need an accounting or other finance degree, some specialized foreign language experience, relevant prior law enforcemnt experience, or a law degree.

      There are a number of FBI agents who went to law school, but NEVER practiced law. However, some of them after being regular feild agents become “legal officers” for the Bureau and then report to the Bureau’s General Counsel. Now, this is not EVERY legal officer in the coutry, but this is the more common career path. So, you have guys who have never practiced, who may never have taken a course in prosecutorial ethics, who may have snoozed through their evidenc class (I got a decent grade in evidence in LAw shcool, but every single thing I know about how evidence law and criminal discovery law actually works, I learned on the job after I got out of school.).

      So, some have zero practical experience and having has an interegnum during which they were feild agents, may have forgetten a great deal of their book learnin’, and now they are asked to review and pass upon the legality of these techniques.

      Like I said, ther are a few really great great ones, as in NY, but in the main, they really don’t know much about what they are doing–as waas obvious from teh IG’s report on the NSL letters.

      Nonetheless, these guys are, in the main, career FBI. Most would have pre-datted Shrub and are just working twoards their 20 so they can retire. They are not part of the Shrub ideologues. There is no Monica Goodling for FBI agents–it’s a differnt hiring process

      • earlofhuntingdon says:

        I’m familiar with the legal/accounting/special skills requirements for hiring Fibbers. I didn’t know that field agents with no or virtually no legal practice could start practicing for the Bureau. If that’s how they hire some of their practicing lawyers, it’s a recipe for malpractice, like having a salesperson account for their own spending.

  11. earlofhuntingdon says:

    Reader heaven; from a notice in the Seattle Post-Intelligencer:

    Dahlia Lithwick, a senior editor at Slate, will be a guest columnist during August. Thomas L. Friedman is on leave until October, writing a book. Maureen Dowd is on vacation.

    http://seattlepi.nwsource.com/…..ick18.html

  12. perris says:

    we are not being as effective as we can giving away too much when we use terms like “invading our privacy” and “violating the constitution”, these are terms the base republican constituents can’t come to terms with and they actually think the government SHOULD be able to do these things ( so long as it’s not a women, a black man, a democrat or a gay man doing it)

    we can easily be more effecitive;

    “they are taking information from us without anyone to make sure they aren’t stealing from us”

    ‘they can steal my business secrets, my bank accounts, they can find my contacts, they can follow my wife and my teenage daughter and nobody is there to make sure the information they are taking from me is for national security”

    see this?

    it is far more effective then using the abstract terms like ‘invading our privacy”

  13. perris says:

    looseheadprop, I really appreciate the information you gave me on the other threads

    of note especially is the fact that the jurisdiction where a person practices is where lawyers are disbarred

    I am wondering if there aren’t some jurisdictions where yoo is still submitted that are so appalled they might consider disbarring the man

    • looseheadprop says:

      I am wondering if there aren’t some jurisdictions where yoo is still submitted that are so appalled they might consider disbarring the man

      you don’t get disbarred for being unpopular. There would have to be a specific complaint (usally in a specified format) of a specific provision of that state’s ethics rules, that is of sufficient gravity t merit disbarrment.

      I don’t practice in Pa. So, we have pretty much exhausted my top of the head analysis of Yoo’s likely disbarrment proceedings.

  14. Neil says:

    So either Mueller is “under informed” on the facts in the NC State investigation or he is lying to Congress. Will someone please ask him which under oath? You can’t run a government of by and for the people when leaders of your most important institutions are not accountable for their words.

  15. skdadl says:

    I hope that some of the lawyerly types heard that fascinating exchange between Nadler and Caproni (FBI general counsel). It deserves a more sensitive summary than I can do, but my eyebrows went up during the discussion of what was a constitutional violation and what a statutory violation (ie: what changes when you hand your info over to a third party). Very good examination from Nadler.

  16. skdadl says:

    Right here.

    The first panel is already gone — Fine and Caproni. Fine made a good statement, but all the questions were directed at Caproni.

    You can see members of second panel if you click through on “Hearings …” (in red).

  17. maryo2 says:

    Alternet attributing to EW and pondering whether the torture tapes were destroyed because the Principals watched them?
    http://www.alternet.org/rights/82308/

    Even more disturbing, did the Principals watch these tapes in order to examine how the techniques worked? Notice the timeline implied by this Associated Press account of events:

    At times, CIA officers would demonstrate some of the tactics, or at least detail how they worked, to make sure the small group of “principals” fully understood what the al-Qaida detainees would undergo.

    • SparklestheIguana says:

      At times, CIA officers would demonstrate some of the tactics, or at least detail how they worked, to make sure the small group of “principals” fully understood what the al-Qaida detainees would undergo.

      Of course, Rumsfeld already fully understood the “stress positions”, because he works standing up.

  18. Mary says:

    26 – in addition to the possible Plame connection, they are very cagey in focusing on the Iranian disclosures, since so many of his other disclosures involve things which are very likely Executive Branch crimes, and the pursuit on those fronts gets a little dicier. This is how the paths are paved, though. You (they)pick your (their) best cases to push on, then lay the case law that helps you (them) skewer the people in the not-so-good facts case.

    Cheney hasn’t forgotten and has even stacked the DOJ and the courts to be more accomodating. As the AIPAC case shows, at the Dist court level at least, they haven’t been all the likely to lose, given that they won the ruling.

    Perris @23, I agree with you and not only is there no oversight to show that these things are only being used for “national security” but there are also no restrictions to keep the Claude Allen’s in the administrations from having untraceable access to that credit card info.

    One final item on the NSL front – DOJ has lied about them over and over, yet no one ever gets in trouble. Remember the assertions that they were never used for library records, with the then gagged librarians unable to come forward and testify that this was a lie?

    Not on that topic, but a related on, this librarian penned USA Today op piece that ends:

    With a Patriot Act order in hand, I would have been forbidden to disclose even the fact that I had received it and would not have been able to tell this story.

    And there was the squabble, just back in Dec/07 Jan/08, over the program FBI agent Bassem Youssef was going to give to the ALA, which was likely to bring into question what was going on with the civil liberties front, and the threats and gagging from FBI to force him to stay silent:

    http://www.atlargely.com/2008/…..ussef.html
    http://www.whistleblowersblog……ppearance/

    • looseheadprop says:

      The IG’s report made pretty clear that the FBI feild offices that did the fewest NSL letters did the worst abuses.

      You would Expect that the NY feild office which does hte most NSL letters would have the most violations, but you would be wrong. The fewr NSL letters a given office processes/issues per year, the more likely it was to be done incorrectly.

      I’m telling you, it’s that these guys didn’t know how to do it. AND AND AND, they got a little drunk with the idea that the wouldn’t need an AUSA’s permission to get a subpeona.

      Bad combination, ignorance and greed

  19. Mary says:

    33 – but that’s the case to an even greater degree with Clinton and McCain. Plus, you can’t even go into a thorough investigation on warrantless wiretaps and rendition without getting into Clinton’s shipments to Egypt and Clinton’s Latin American eavesdropping program coming up – so Hillary isn’t going to tackle any of that with the same gusto she brought to the flag burning amendments.

    Obama’s lukewarm is as hot as it gets. *sigh*

    Monty Hall has pulled back the drapes and what we have behind each of the curtains isn’t something that is worth trading for that hard boiled egg you tucked into your purse in hopes of your shot at the big deal.

    • bmaz says:

      I believe Monty used to call that a “zonk”. None of the three have any intention whatsoever of doing anything, including Obama. We been zonked

      • randiego says:

        heck, that’s a lot more than you’re gonna get from the other two, that’s for sure.

        Given that the press won’t give the guy a fair shake (see Wright and ‘bitter’ – the ol’ “some people are talking today about controversial remarks made by…”), I’m not at all surprised that he hasn’t said more – you watch what they do with what he has said so far to see if I’m right.

        (not that i’m covering for him – I have no idea what he’ll do, but again probably more than the other two)

        • bmaz says:

          I like Obama just fine, but he is no more likely than Clinton to do anything on this front. I could make out an argument for either one being a little more likely than the other to do something (assuming they paid my hourly rate for lawyerly dissembling), but the truth of the matter that any difference is infinitesimal and neither will do diddly squat.

          The Democrats never learn and always repeat their weaknesses and mistakes. Watergate, Iran-Contra, and now this; we are going to leave the Zombie Borg intact to be undead assassins again, thats just what we do. We get the crap kicked out of us, go in the corner and lick our wounds, come out and sing Kumbaya and repeat the process. It is insane, and this is exactly what Obama’s quote indicates. The Goopers, on the other hand, are indeed the Borg. They learn from their mistakes, adapt and assimilate and return with stronger evil every time, because we never step on their fucking throat while they are down. The meek shall inherit the earth, and Democrats are constantly eating dust and dirt. It is literally kind of pathetic.

        • looseheadprop says:

          The Democrats never learn and always repeat their weaknesses and mistakes. Watergate, Iran-Contra, and now this; we are going to leave the Zombie Borg intact to be undead assassins again, thats just what we do. We get the crap kicked out of us, go in the corner and lick our wounds, come out and sing Kumbaya and repeat the process. It is insane, and this is exactly what Obama’s quote indicates. The Goopers, on the other hand, are indeed the Borg. They learn from their mistakes, adapt and assimilate and return with stronger evil every time, because we never step on their fucking throat while they are down. The meek shall inherit the earth, and Democrats are constantly eating dust and dirt. It is literally kind of pathetic.

          What Bmaz said

        • Sara says:

          “In response to bmaz @ 46
          The Democrats never learn and always repeat their weaknesses and mistakes. Watergate, Iran-Contra, and now this; we are going to leave the Zombie Borg intact to be undead assassins again, thats just what we do. We get the crap kicked out of us, go in the corner and lick our wounds, come out and sing Kumbaya and repeat the process. It is insane, and this is exactly what Obama’s quote indicates. The Goopers, on the other hand, are indeed the Borg. They learn from their mistakes, adapt and assimilate and return with stronger evil every time, because we never step on their fucking throat while they are down. The meek shall inherit the earth, and Democrats are constantly eating dust and dirt. It is literally kind of pathetic.

          What Bmaz said”

          Might be useful to contrast with what FDR did during the 30’s with the boyz who persued business practices that led to the Great Depression, or at least the depth of it.

          Because many of those practices were not illegal precisely at the time they were in fashion, FDR persued a political course, encouraging members of the House and Senate to hold elaborate hearings throughout his first term that served mostly to ruin the reputation of the bankers, fianceers, brokers, and the like. A few obviously criminal acts were prosecuted, but relatively few, and on fairly narrow grounds. But someone like Andrew Mellon, who had been both Coolidge and Hoover’s Secretary of the Treasury spent months before Congressional Committees being taken apart, piece by piece. The elaborate and detailed hearings were premised on the question that Congress needed to have detailed information, so as to make certain practices properly illegal. After four years of being investigated, FDR finally allowed him into the WH for tea, and accepted the deed to the National Gallery and its foundation collection (much of which Mellon had bought cheap out of the Tzar’s collection after the Russian Revolution, illegally dealing with the Soviets). Mellon promptly died a couple weeks later. FDR repeated this form with a number of other “villains” enough to create the political narrative that made Republicans and Hoover nasty words for a couple of decades. In a sense it was a Truth and Reconciliation Commission, Congress required the details under oath, and at least a major part of ill gotten assets had to be delivered to the public commons.

          I recommend the method. Political “crimes” need to be punished via political methods. Much of what they have done has to do with greed for power, and methods that cause them to destroy themselves for a couple of generations really represent Justice.

        • bmaz says:

          I could go along with that, I could go along with impeachment; but there needs to be some mechanism of accountability. I tend to agree that a political mechanism is better and more effective than any criminal prosecution which, for a number of reasons, I do not think will work.

        • bobschacht says:

          …I recommend [FDR’s] method. Political “crimes” need to be punished via political methods. Much of what they have done has to do with greed for power, and methods that cause them to destroy themselves for a couple of generations really represent Justice.

          Sara,
          Very nice historical insight. Thanks! This might indeed be the way to go.

          Bob in HI

        • Loo Hoo. says:

          Interesting. I could live with that type of “outing” to make sure these criminals never hold office or have power again.

        • masaccio says:

          What bmaz said. In the run-up to the 1992 election, my then 8th grade daughter asked over and over why the repubs were attacking Clinton and we democrats weren’t responding with force. I gave here a wishy-washy answer. She was right, I was wrong, and I have told her so.

          Criminal prosecution is the only thing that will stop these people. I was sick that Clinton let bygones be bygones in 1992, and I am afraid I will have to hate it again. We desperately need to put their cowardly asses in the dock and make them defend themselves.

        • Sara says:

          “Criminal prosecution is the only thing that will stop these people. I was sick that Clinton let bygones be bygones in 1992, and I am afraid I will have to hate it again. We desperately need to put their cowardly asses in the dock and make them defend themselves.”

          As I have said in other threads, I dream of a trial followed by a hanging on the Mall, complete with drawing and quartering after the hanging, but our problem is whether under existing law and procedural rules and the inventory of Judges, you could even get to trial. I suggest that the huge effort necessary to try and probably fail would be worse than extracting the pound of flesh by political means. More important, I seriously doubt if voters for democrats in the next election put the pound of flesh before things that impact daily lives, such as health care, educational matters, jobs, home mortgages, National bankruptcy, and the rest. A President and much of the next Congress will have to be busy with those immediate issue matters.

          Better to understand how a smart pol can cause political death for a generation or so of Republicans. When FDR started talking about “Economic Royalists” in that 1936 election campaign, all the folk who depended on beans for part of their diet fully understood what he meant — even if he was one of the most “Elitist” men ever elected President, and certainly not one who really shared their pain. (Remember; “Traitor to his Class”?) He meant the perps who had been dragged before committees in Congress, and forced under oath to describe their practices and shame themselves.

          Earlofhuntingdon says…”The only thing history teaches us is that we refuse to learn from it.”

          Sadly our problem isn’t so much a refusal to learn from — it is a refusal to learn any History. We are a nation of Historical Illiterates, and much of the system is set up to preserve that state of affairs.

        • masaccio says:

          I understand the validity of your point that a clever politician can ruin a generation of these vipers. That could have happened in 1992, lord knows Clinton was clever enough. But he didn’t do it. How are things going to be better this time?

          I think that the most important thing about prosecution is that it makes the repubs defend, rather than attack. Prosecution will only consume a small part of the efforts of the new administration. While the repubs defend their past, they cannot attack. We can proceed with the democratic agenda.

        • Gooey says:

          ..and doesn’t it all makes sense only if the Dems are in on it too? There is no difference between the parties. Door number 1 is the same as door number 2. Obama is a 32 level freemason, who is silent on his early 80’s time at Columbia Univ where he was brought on board with the Illuminati. He is related to Cheney, and there is the upcoming Larry Sinclair accusation which point to a dark side to Obama. Ron Paul or Kucinich are the only ones who aren’t “in” and Kucinich is not on the ticket. We are in such amazing times that the only way out may be to vote GOP(Paul)!

        • Gooey says:

          no offence taken, at all :), I don’t want it to be true either, but why would Eisenhower, on his last day, and JFK, a few months before his assassination and J. Edgar Hoover say that there is a secret insideous power group in place and we must stop it? The evidence is consistent with it and that invokes Sherlock Holmes quote about going where the evidence leads no matter how improbable.

    • bobschacht says:

      “Plus, you can’t even go into a thorough investigation on warrantless wiretaps and rendition without getting into Clinton’s shipments to Egypt and Clinton’s Latin American eavesdropping program coming up – so Hillary isn’t going to tackle any of that with the same gusto she brought to the flag burning amendments.”

      This is one of the reasons why I’m supporting Obama.

      Bob in HI

    • skdadl says:

      Thanks for that. Krugman made me laugh because Michael Ignatieff wrote last year exactly as Krugman says the serious people are still doing. Ignatieff on people who opposed the invasion of Iraq: the people who were right are still wrong because they were right for the wrong reasons, and besides, it was too soon to be right.

  20. looseheadprop says:

    OMG, Great minds think alike! No, I hadn’t read your comments before, But I do agree.

    Obam’s quote promises nothing, takes a stand on nothing, and by dismissing impeachment, gives us an (unhappy) view into his likely future analysis of Buscho crimes.

  21. maryo2 says:

    Obama said that he would listen to his AG. That sounds reasonable.

    I hope his AG is law-abiding. God, wouldn’t that just be the shit? A law-abiding AG while the century is still young.

    • bmaz says:

      I dunno; what’s new about a president listening to his AG in this century? Bush always listened to his AGs. Right after Cheney told the AGs what to say…..

  22. maryo2 says:

    OT – why has no one asked Dana Perino about Bush lying about his Administration’s Torture Policy?

  23. Mary says:

    From the Nov 2005 Wa Po article on NSLs that preceded the IG reports, Bob Barr(former representative, CIA analyst and prosecutor) on NSLs:

    “There’s no checks and balances whatever on them. It is simply some bureaucrat’s decision that they want information, and they can basically just go and get it.”

    And don’t forget that NSLs got the same blurring of the line between prosecutions and “political intell” that happened for FISA secret spying (and for non-FISA secret spying too I guess):

    Under the old legal test, the FBI had to have “specific and articulable” reasons to believe the records it gathered in secret belonged to a terrorist or a spy. Now the bureau needs only to certify that the records are “sought for” or “relevant to” an investigation “to protect against international terrorism or clandestine intelligence activities.”

    That story also mentions an ex-FBI chief of national security law unit, “Michael J. Woods [who] had helped devise the FBI wish list for surveillance powers” and his caution to use the NSLs for good and carefully, or the result might be that “Legislators [who had] granted the new authority and could as easily take it back [might]. When making that decision, he wrote, “Congress certainly will examine the manner in which the FBI exercised it.”

    OK – he may have been wrong about that part – apparently what Congress does when faced with massive NSL abuse is to go figure out how much MORE power to give to the FBI.

    Woods noted back in that story how badly he had misjudged the way in which the new powers would be used and the story goes on to supply some explanation – St. Ashcroft.

    One thing Woods did not anticipate was then-Attorney General John D. Ashcroft’s revision of Justice Department guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft rewrote the playbooks for investigations of terrorist crimes and national security threats. He gave overriding priority to preventing attacks by any means available.

    Ashcroft remained bound by Executive Order 12333, which requires the use of the “least intrusive means” in domestic intelligence investigations. But his new interpretation came close to upending the mandate.

    The observations – that even John Gotti eventually gets to find out he was wiretapped – but not targets of NSL search and seizures.

    Back then, Caprioni tried to minimze the effects, saying that while, sure, the FBI could use the low standards, lack of review, and lack of accountablity forever, to just pretty much go search everyone, why would they?

    “Everybody’s connected” if investigators keep tracing calls “far enough away from your targeted bad guy,” [Caprioni] said. “What’s the point of that?”

    One point is to fill government data banks for another investigative technique. That one is called “link analysis,” a practice Caproni would neither confirm nor deny.

    The article goes on to discuss the fact that CASINOs as well as Universities (and unlike ATT & Verizon) seemed to think that they needed a piece of paper, and that NSLs were used to try to get them on board. One anonymous interviewee indicated to Gellman “that national security letters may eventually have been withdrawn” and for some reason, Caprioni declined to disuss the Casino information use of NSLs.

    What happened in Vegas stayed in federal data banks. Under Ashcroft’s revised policy, none of the [Casino and Las Vegas]information has been purged.

    And the emergency that started it all? A washout. Maybe the result of a tortured “confession” with no actual plot, just a need to make the torture stop or a hallucinating mind – who knows?

    The North Carolina State U story in there too, from 2005. And the library showdown case.

    The WaPo story also discusses the gag orders being taken to court and struck down, and the frustration of judges because “the FBI is not obliged to describe what it is looking for, or why” and the reference by one of the judges to an explanation so vague it would provoke laughter if she did mention it.
    The FBI activities in the cases described in the story are pretty revealing. As was the position, then, of the Republicans on the Intel and Judiciary committees with oversight, who claimed that everything had to be fine with NSLs because Fine had power to investigate Patriot Act abuses if complaints were filed with him, and he hadn’t done any investigations, so things must be fine.

    Fine’s response was to point out that it would be difficult for a person to file a protest over the searches of his personal records if he did not know they had taken place. Not to worry, said Caprioni at the time.

    After all, the public could count on the oversight of the Congress [by which she meant the few members of congress who received briefings and of them, deducting out the Republicans who were relying on Fine to initiate investigations based on complaints and then deducting out the Democrats who had no power]

    “People have to depend on their elected representatives to do the job of oversight they were elected to do,” Caproni said. “And we think they do a fine job of it.”

    Aww – neato. Pat Roberts got a “Fine Job” sticker from the FBI.

    • skdadl says:

      That helps me to think about what I saw and heard today with the second panel especially. (For those missing the context, the hearings are at least partly a way of taking advice about a Nadler et al. sponsored revision to the NSL legislation.) Of the four on the second panel, Woods was the most conservative, although they were all interesting, and the reps were obviously interested in drawing them out. (Well, Nadler, Scott, and Conyers were. Franks kept doing fear and terror, but I guess that’s his job.)

      The only friction happened during the first panel, where Nadler and Scott questioned Caprioni very closely. Since IANAL, without a transcript I wouldn’t dare to attempt a summary; I was working very hard to keep up with the distinctions, which came fast during the longer second panel. But both sessions were very useful for anyone interested in the NSLs.

    • bmaz says:

      Just for you! Looks like the SECOND jury is going to hang up on the lame Liberty City Seven “terrorism” trial in Miami. I wonder if the defendants have ever gotten tennis shoes, cell phones and a map to Chicago yet?

  24. GeorgeSimian says:

    It’s really a disturbing pattern. The Bush Administration apparently thinks it reasonable to argue, “we’re incompetent, so give us more ways to invade your privacy.”

    And then Congress gives it to them!

    I know it was mostly Republicans that gave them most of this power, but I still don’t get it. Power is gold in Washington, and they just gave it away. Time after time.

  25. MadDog says:

    For folks interested in reading the hearing statements of the participants in today’s House Judiciary Committee Hear on H.R. 3189, the “National Security Letters Reform Act of 2007″, here are most of the participants:

    Panel I

    Glenn A. Fine
    Inspector General
    Office of the Inspector General
    U.S. Department of Justice

    Valerie Caproni – No statement yet available – funny that.
    General Counsel
    Office of the General Counsel
    Federal Bureau of Investigation

    Panel II

    Jameel Jaffer
    Director
    National Security Project
    American Civil Liberties Union

    Bruce Fein
    The Lichfield Group, Inc.

    Michael J. Woods
    Former Chief
    FBI National Security Law Unit

    David Kris
    Former Associate Deputy Attorney General
    U.S. Department of Justice

  26. MadDog says:

    From Glenn Fine,
    Inspector General
    Office of the Inspector General
    U.S. Department of Justice

    The FBI’s reviews also confirmed two of the most significant findings in our first NSL report. First, the reviews confirmed that the FBI’s use of NSLs resulted in many intelligence violations. For example, the FBI’s 10 percent review of field office NSLs found at least 640 potential intelligence violations from 2003 through 2006. Extrapolating the results of the FBI’s 10 percent statistical sample to the full number of NSLs means that the total number of possible intelligence violations among all NSLs issued over the 4-year period could be as high as 6,400.

    (My Bold)

  27. MadDog says:

    Again, from Glenn Fine,
    Inspector General
    Office of the Inspector General
    U.S. Department of Justice

    Second, the FBI’s reviews confirmed that the FBI’s internal policies requiring reports to FBI Headquarters of possible NSL-related intelligence violations had not been effective. For example, less than 2 percent of the possible intelligence violations identified by FBI inspectors in the 2007 field review previously had been reported to FBI Headquarters as required.

    • bmaz says:

      So, let’s see here, out of 6,400 likely violations, about 128 were likely reported. Am I to presume that out of these 128 reports that were maybe actually filed, a grand total of zero, zip, nada resulted in any corrective and/or disciplinary action?

      • MadDog says:

        Punishment? At the DOJ/FBI branch of the Repug Party?

        Shirley you jest. I know, I know, stop calling me Shirley.

        That and they evidently were handing out NSLs like Toilet Paper Salespeople at a Diarrhea Convention.

  28. MadDog says:

    Again, from Glenn Fine,
    Inspector General
    Office of the Inspector General
    U.S. Department of Justice

    Our report discussed another case in which the FISA Court twice refused to authorize a Section 215 order based on concerns that the investigation was based on protected First Amendment activity. The FBI subsequently issued NSLs to obtain information about the subject based on the same factual predicate and without a review to ensure the investigation did not violate the subject’s First Amendment rights. We questioned the appropriateness of the FBI’s actions because the NSL statute contains the same First Amendment caveat as the Section 215 statute.

    I wonder if this “order” turned down by the FISC had to do with getting phone records of someone like James Risen of the NYT.

    Trying to suss out who was giving him access to stuff he was reporting on…stuff like illegal warrantless domestic surveillance or as Junya calls it, that TSP thingee.

    Shorter FBI: “When the FISC won’t do, use an NSL.”

  29. Mary says:

    79 – don’t those panels get more interesting nowadays? Jaffer, Fein, Woods (see the old 05 WaPo story) and Kris. A line up that you can respect even if you don’t agree with them on everything. What a seachange.

    81/82 – and the first IG report from last year indicated that there were quite a few letters that were never logged, too, so there’s no tracking on them, one way or another.

    It was interesting to see that Caprioni is reasoning that the FBI doesn’t need legislative tightening bc they have “in house” tightened up, including the fact that they now have decided that they will not send NSLs to entities they weren’t allowed to send them to under the current legislation. It’s kind of like the FBI is trying to get Congress to bite on a Deferred Legislation Agreement. Hey – here’s a thought. Gonzales isn’t doing much these days – why not give him a big nobid contract to supervise FBI’s decision to voluntarily comply with the existing laws that they were voluntarily breaking before.

    A match made in Heaven.

    Or someplace.

    • bmaz says:

      …and the first IG report from last year indicated that there were quite a few letters that were never logged, too, so there’s no tracking on them, one way or another.

      Yeah, no kidding; don’t suppose there are any bad eggs in the unlogged/untrackable ones eh?

      MadDog @ 84 – And I’m interested what Mary has to say on this, but I think they have real problems on that one. Not once, but twice, a Federal Court with subject matter jurisdiction determined that their proposed activity was not legally supported, i.e. illegal, and they go ahead with it anyway in a secret extra-judicial manner? If this is indeed what occurred, and that is the plain reading of the quote, the FBI has a real shit creek/no paddle problem here. I would like to here a whole lot more about this one….

  30. WilliamOckham says:

    The Daily Show just had the best segment on the Torture Conspiracy in the White House that I’ve seen. They had the relevant clips from the ABC report, Jon Stewart read from the Yoo Memo, and he interviewed Jack Goldsmith.

    Why is a comedian our best reporter (although I will admit that ex-sportscaster’s not bad)?

    • Sara says:

      “Why is a comedian our best reporter (although I will admit that ex-sportscaster’s not bad)?”

      SUSH SUSH, Don’t call too much attention to it, We are about to send a Satirist to the US Senate. As Walter Mondale put it in late 2005, “many in Washington don’t know that they really do satire, or stand up comedy, so it is time for Minnesota to send them a real Professional.”

      By the way, we also have a restless free radical professional wrestler, addicted to independent Politics, … should any state have a need for such, comes complete with a fake claim to being a Navy Seal, with ghost written books, pink tights, and feather boas. All serious offers considered.

  31. Sara says:

    In 1992 Clinton won by less than 50%, largely due to what Ross Perot extracted from the Popular vote. In 96 he was re-elected by less than 50%. That is not a strong hand to play when taking on a previous administration and attempting to prosecute some of their members, particularly if you know well that congress is iffy given retirements from the old democratic one-party south contingent, likely to be replaced by right wing Republicans. Southern Strategy was about to be consumated in 1994, and Clinton had no responding semi-progressive strategy, (if he wanted one?) In fact between 92 and 94 he was spending DNC resources on trying to find a primary challenger for Paul Wellstone for 96, because he didn’t want a true progressive populist moving up a notch with a second term in the Senate. Bill Clinton had no intention of investigating anything before he won by that slim margin. He was a pragmatic Pol.

    You want something to happen after next November? Well the demand for it needs to be on the table now, and around the edges people need to be talking about the matter. No, not an electorial promise — we should be so stupid, but a political comprehension. You can encompass both politics and the law in “wrongdoers should not walk away with the fruit of their wrongs.” You don’t have to promise Gitmo to everyone. (as I said, I have my personal fantasy as to the proceedings on the Mall.)

    • bmaz says:

      And again I agree. But the table has to be set, even if the meat isn’t to be put on it yet. It is imperative, as you point out, for the discussion to be initiated. That, however, is not being done.

  32. bmaz says:

    By the way, I saw some folks at FDL talking about Law of the Sea Goldsmith on Jon Stewart earlier as they were watching it on the east coast. For the life of me, I don’t know why people keep holding this cluck out as some kind of admirable dude. Although I had not seen it yet, I said this:

    Captain Jack “Law of the Sea” Goldsmith is a worthless puke just like the rest of them. There is absolutely nothing admirable about him. His actions in withdrawing and rewriting memos were almost certainly motivated by fear of having his own, Comey’s and other’s asses on the ethical firing line by way of the FISC, NOT out of their ethical and moral worthiness. The story he is peddling now is almost certainly complete revisionist history. Furhtermore he wrote his superceding documents, his book and has otherwise done everything in his power to exculpate his predecessors. He can go straight to hell with the rest of them.

    Well, I am watching The Daily Show now and, um, I will stick with my earlier opinion. I know you are all shocked by that….

    • WilliamOckham says:

      Yeah, I hope nobody took my endorsement of Jon Stewart to include Jack Goldsmith. Goldsmith has only slightly less culpability than Yoo and Bybee.

  33. Hmmm says:

    OT – I lack words adequate to describe the mental sensation this page’s “AT&T Yahoo High Speed Internet” banner ad is giving me.

  34. klynn says:

    Watched this with my son yesterday…

    Glenn Greenwald & Megan McArdle April 14

    http://bloggingheads.tv/diavlogs/10187

    My 15 year old said, ” I think Greenwald has a grasp on the historic role of the press in a democracy. McArdle? She’s got nothing. In the end it’s Greenwald 3, McArdle – goose egg!”

    I had not said anything to him as to what I thought of the dialog (minus the many times my jaw dropped at a few of McArdle’s perspectives). My son, he’s got the take on this dialog spot on.

    If you watch, keep heavy objects away from your hands and preferably no small children in the room (due to what you might yell at your monitor).

  35. perris says:

    DOJ: Give Us More Powers Because We F*** Up So Often
    By: emptywheel

    this is interesting Marcy and I think you’ll appreciate it;

    when the 9/11 commission made some recommendations, one was some kind of “terror czar”, a central figure who was authorized and charged with consolidating the information from all of our intelligence agencies

    the interesting thing about that position and how it relates to the title of your post is the fact that we already had that position only under a different title

    that position is the job description of the president

    we know as a fact the president was indeed given all the information, in precise format, with accurate detail and with absolute urgency, all that was needed to avert the attack on 9/11

    he instead took vacation and didn’t care one stitch that his intelligence gathering agencies agent’s “hair was on fire” they were worried more then ever before

    so the president started this entire episode by being so inept he needed even more power

    how bizarre a scenario, the peter principle on steroids

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