Did Obama Flip-Flop on FISA to Protect John Brennan?

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Aside from his career of moderate political stances, the earliest clue that progressives were going to be disappointed with Barack Obama came last July, when he flip-flopped on his previous promises to oppose retroactive immunity on FISA. Yesterday’s IG Report may reveal the source of Obama’s flip-flop and subsequent reversal of his stance that Bush’s domestic surveillance program was illegal: John Brennan.

Brennan, you see, appears to have been a key figure in the illegal surveillance program from at least May 2003 through December 2005–precisely the period when the program was such an object of controversy internally.

While it was apparent from the Scope of the IG Report released in March and the various declarations in support of State Secrets that the Intelligence Community provided threat assessments that were used in the program, the IG Report provides a great deal of new detail on this process and–more importantly–a chronology describing which element of the IC conducted the threat assessments. The chronology is:

October 2001 to May 2003: DCI Chief of Staff (then John Moseman)

May 2003 to August 2004: Terrorist Threat Integration Center

August 2004 to April 2005: National CounterTerrorism Center

April 2005 to January 2007: ODNI

Now look at John Brennan’s career path (these dates are somewhat vague, but accurate to the best of my knowledge):

March 2001 to May 2003: Deputy Executive Director, CIA

May 2003 to August 2004: Director, Terrorist Threat Integration Center

August 2004 to December 2005: Interim Director, National CounterTerrorism Center (including ODNI after April 2005)

While Spencer is right that John Brennan was not the guy who compiled these assessments when the program first began (that is, John Brennan was no longer DCI COS), Brennan appears to have overseen the units that conducted the threat assessments that were a key part of the illegal program from May 2003 at least until August 2004, and possibly up until he left ODNI in December 2005, just days before the NYT broke this story.

For at least a year and possibly two, John Brennan appears to have been the guy inventing "reasonable cause" to wiretap people in the United States. John Brennan was also likely the guy who put together the list of groups considered al Qaeda affiliates (including al-Haramain) that could be wiretapped.

And John Brennan was consulting with candidate Obama last year when Obama flip-flopped.

And John Brennan remains a key national security advisor for Obama as the President has cowardly refused to prosecute a program he himself once called illegal.

Are Obama and Eric Holder refusing to prosecute illegal domestic surveillance because they’re protecting a key member of Obama’s Administration? Read more →

FISA’s 15-Day Exemption

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Update, 7/16: See this post for a modification of this one.

I’m updating my warrantless wiretapping timeline and noticed something important (I think).

The IG Report released today notes that the 15-day exemption in FISA proves that Congress always intended FISA to restrict the Executive Branch’s authority, even in times of war.

Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 USC 1811. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance.(12)

But now look at the timeline (this is evolving quickly so it may change by the time you look at it).

September 12, 2001: AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

September 18, 2001: Bush signs AUMF.

September 25, 2001: OLC provides memo to David Kris on “a purpose” language for FISA.

October 1, 2001: Hayden briefs HPSCI.

October 2, 2001: Predecessor bill to PATRIOT Act introduced into House.

October 3, 2001: 15-day exception in FISA after declaration of war expires.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists. Warrantless wiretapping program authorized. Predecessor bill to PATRIOT Act introduced into Senate.

October 6, 2001: Program begins. [my emphasis]

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, Read more →

George Bush PERSONALLY Sent Card and Gonzales to Thug Up Ashcroft

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Bush Thug Life

by twolf1

Today’s IG Report on illegal wiretapping answers another previously unanswered question: who called Mrs. Ashcroft to tell her Andy Card and Alberto Gonzales were coming to the ICU ward to rough of John Ashcroft.

George Bush did so himself.

From the report:

According to notes from Ashcroft’s FBI security detail, at 6:20 PM that evening Card called the hospital and spoke with an agent in Ashcroft’s security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft’s wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft’s Chief of Staff David Ayres at DOJ to request that Ayres speak with Card about the President’s intention to call Ashcroft. The agent conveyed to Ayres Mrs. Ashcroft’s desire that no calls be made to Ashcroft for another day or two. However, at 6:5 PM, Card and the President called the hospital and, according to the agent’s notes, "insisted on speaking [with Attorney General Ashcroft]." According to the agent’s notes, Mrs. Ashcroft took the call from Card and the President and was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security. (24) [my emphasis]

That use of the passive–almost the only incidence of its use in this report–is a nice touch. I guess five Inspectors General still don’t want to admit that the President of the United States personally led this kind of thuggery.

Neither of Cheney’s Illegal Programs Was Effective

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DOJ’s IG on Cheney’s warrantless wiretap program:

DOJ OIG found it difficult to assess or quantify the overall effectiveness of the PSP program as it relates to the FBI’s counterterrorism activities. However, based on the interviews conducted and documents reviewed, the DOJ OIG concluded that although PSP-derived information had value in some counterterrorism investigations, it generally played a limited role in the FBI’s overall counterterrorism efforts.

CIA IG on Cheney’s warrantless wiretap program:

CIA OIG determined that the CIA did not implement procedures to assess the usefulness of the product of the PSP and did not routinely document whether particular PSP reporting had contributed to successful counterterrorism operations. … consequently, it is difficult to attribute the success of particular counterterrorism case exclusively to the PSP. 

[snip]

Officials also told the CIA OIG that working-level CIA analysts and targeting officers who were read into the PSP had too many competing priorities, and too many other information sources and analytic tools available to them, to fully utilize PSP reporting.

CIA’s IG on Cheney’s torture program:

As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks.

Gonzales KNEW Ashcroft Was Too Sick to Reauthorize the Program–But Asked Him To Anyway

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Back when he was testifying before Congress, Alberto Gonzales played dumb about whether or not he knew John Ashcroft was too sick to sign the reauthorization for the warrantlesss wiretap program. But the IG Report makes it clear he was well aware Ashcroft couldn’t sign it.

On March 9, Gonzales admitted publicly that Ashcroft couldn’t sign the reauthorization.

Gonzales reasoned that Ashcroft, who was still hospitalized, was not in any condition to sign a renewal of the Authorization, and that a "30-day bridge" would move the situation to a point where Ashcroft would be well enough to approve the program.

But on March 10, here’s what happened. 

Gonzales told the DOJ OIG that he carried with him in a manila envelope the March 11, 2004, Presidential Authorization for Ashcroft to sign. According to Philbin, Gonzales first asked Ashcroft how he was feeling and Ashcroft replied, "Not well." Gonzales thetn said words to the effect, "You know, there’s a reauthorization that has to be renewed…" 

I know none of you had any doubt that Gonzales knew full well Ashcroft shouldn’t sign that reauthorization. But if you needed proof, now you’ve got it. 

Stunning al-Haramain Filing Shames Obama; Shows Duplicity Of Officials

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In early June, a critical hearing was held in front of Judge Vaughn Walker in the al-Haramain warrantless wiretapping case. As a result of that hearing, Judge Walker entered an order commanding the attorney for plaintiffs al-Haramain et. al to file a motion for summary judgement. Hot off the press, the motion was filed minutes ago, and it is a stunning demonstration of just how disingenuous and two faced President Obama and his administration have been on the seminal issues of warrantless wiretapping, protection of Constitutional rights, transparency and accountability.

The first words in the main body of the motion are a stark reminder to President Obama and Attorney General Eric Holder of the very words and promises they have spoken in the past on the issue of illegal wiretapping:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

Apparently those words only were operative during the election, because that sure is not what Obama and Holder are saying and doing now. Instead, in pretty much as big of a Constitutional about face as is imaginable, Obama has decided to turn his back on his words and promises and throw his lot in with Bush and Cheney by asserting state secrets to protect the government from inquiry and accountability on its illegal and unconstitutional acts. It is not radical left wing bloggers saying that, it is distinguished US Senator Russell Feingold:

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program

Senator Feingold is exactly right in his quote. The Ninth Circuit Court of Appeals has also slapped Obama hard on his continuation of the Bush/Cheney policy. And lest there be any illusion that Bush wiretapping program was legal, the following uncontroverted facts from the motion for summary judgment dispatch that notion:

On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22, 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney General James B. Comey made the following statements demonstrating that defendants knew the warrantless surveillance program was unlawful yet continued it for several weeks in 2004 without the DOJ’s approval:

• As of early March of 2004, Comey and Attorney Read more →

Obama and Gang of Eight Veto Threat: “Fundamental Compact” My Ass

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Obama says he’ll veto the Intelligence Authorization Bill if it includes measures to expand notification on covert ops outside of the Gang of Eight. Laughably, he says the Gang of Eight notification requirement has been a "fundamental compact between Congress and the President."

Report on Covert Actions (Section 321).  The Administration strongly objects to section 321, which would replace the current “Gang of 8” notification procedures on covert activities.  There is a long tradition spanning decades of comity between the branches regarding intelligence matters, and the Administration has emphasized the importance of providing timely and complete congressional notification, and using “Gang of 8” limitations only to meet extraordinary circumstances affecting the vital interests of the United States.  Unfortunately, section 321 undermines this fundamental compact between the Congress and the President as embodied in Title V of the National Security Act regarding the reporting of sensitive intelligence matters – an arrangement that for decades has balanced congressional oversight responsibilities with the President’s responsibility to protect sensitive national security information.  Section 321 would run afoul of tradition by restricting an important established means by which the President protects the most sensitive intelligence activities that are carried out in the Nation’s vital national security interests.  In addition, the section raises serious constitutional concerns by amending sections 501-503 of the National Security Act of 1947 in ways that would raise significant executive privilege concerns by purporting to require the disclosure of internal Executive branch legal advice and deliberations.  Administrations of both political parties have long recognized the importance of protecting the confidentiality of the Executive Branch’s legal advice and deliberations.  If the final bill presented to the President contains this provision, the President’s senior advisors would recommend a veto.  [my bold]

With all due respect, Mr. President. But are you fucking nuts?!?!?!

The Gang of Eight briefing system has been a central instrument of abuse of power, by which the President does things that violate fundamental tenets of the Constitution, but gets legal "sanction" for those things by telling eight four people who are all but hamstrung to do anything about those things. And when people "lie affirmatively" to you, you can’t really say that’s part of "comity" or a "fundamental compact." The Gang of Eight briefing system has been neither an element of "comity" nor a "fundamental compact" but rather a keystone of a dysfunctional, abusive relationship that guts our Constitution. 

And Obama wants to keep Read more →

Jello Jay Rockefeller on the Public Option

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A number of people have been expressing pleasant surprise at Jello Jay’s recent comments on the public option:

"We can’t count on insurance companies. They are just maximizing their profits. They are sticking it to consumers.

"I am all for letting insurance companies compete. But I want them to compete in a system that offers real health-care insurance. I call it a public plan," Rockefeller said….

Government-backed programs are big enough to bring medical costs down, Rockefeller believes.

"Back in 1993, all our Veterans Administration hospitals got together and agreed to buy prescription drugs as a group. The next week, the costs of those drugs went down by 50 percent.

"Today, the insurance industry runs this whole deal, spending $1.4 million every day to fight health-insurance reform. The government has a lot of power to lower prices," Rockefeller said….

"We have a moral choice. This is a classic case of the good guys versus the bad guys. I know it is not political for me to say that," Rockefeller added.

"But do you want to be non-partisan and get nothing? Or do you want to be partisan and end up with a good health- care plan? That is the choice." [my emphasis]

Now, I am happy to hear Jello Jay talk like a Democrat, demand that we put people’s interest ahead of corporations.

And I think the commentary on Jello Jay’s aggressive words here often forgets the "politics is local" rule: while every state (save maybe insurance-heavy states like CT) would benefit from the implementation of real health care reform, West Virginia no doubt really could use it.

That said, I am also cognizant of a little historical detail. The most "important" legislative act Jello Jay did last year, for his own career, was to shepherd the FISA Amendment Act through Congress (yeah, "important" is in scare quotes). And the single most important event that brought about Jello Jay’s success came when then-candidate Obama flip-flopped on his promises to oppose retroactive immunity, and with that flip-flop signaled to the rest of the caucus it was time to support the bill.

Candidate Obama saved Jello Jay’s legislative butt last summer (much to our chagrin).

One of Candidate Obama’s earliest Senate backers, of course, was Jello Jay. A guy who loudly supported Obama even when his state voted in large numbers against him in the primary.

Well, here we are with President Obama, revving up the fight for his most important legislative project. Read more →

Froomkin’s Sins of the Village

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As you’ve heard by now, that beacon of sanity at the WaPo during the Bush years, Dan Froomkin, just got canned. I’ve been puzzling through what Dan might mean with his statement,

I’m terribly disappointed. I was told that it had been determined that my White House Watch blog wasn’t ‘working’ anymore. But from what I could tell, it was still working very well," Froomkin said. "I also thought White House Watch was a great fit with The Washington Post brand, and what its readers reasonably expect from the Post online.

I think that the future success of our business depends on journalists enthusiastically pursuing accountability and calling it like they see it. That’s what I tried to do every day," he continued. "I’m not sure at this point what I’m going to do next. I may take White House Watch elsewhere, or may try something different.

And I keep coming back to his emphasis on "pursuing accountability." So I decided to review a selection of Dan’s most recent columns to see what he might mean by that:

Spending Jitters Don’t Change the Fundamentals

The Amazing Shrinking Regulatory Overhaul

Obama’s New Road Rules May Fall Short

Consolation Prize for Gays

Push Back, Mr. President

Who’s Reading Your E-Mail?

The Foot-Dragging Continues

Baking Transparency Into Government

Good Questions From a Senator and an Activist

Bush’s Red Ink, Obama’s Problem

Too Embarrassing to Disclose?

Crunch Time for Health Care

How Cheney Bent DOJ to His Will

Renouncing Bush’s Worldview

Obama’s Big Health Care Test

Obama Getting ‘Honest’ With Israel

Cheney Watch

The Accidental CEO

And there was an interesting exchange in a live chat earlier in the week where Dan complained that "more news organizations haven’t put top reporters on [the wiretap story] (and the torture story) and told them not to let go until they’ve gotten to the bottom of everything."

Aside from Froomkin’s sheer productivity (particularly as compared to his colleague, Dana Milbank, who complains about writing 3-4 750 word columns a week), these posts reveal certain things. On some issues–torture and wiretapping–Froomkin is increasingly critical, particularly as to Obama’s "schizophrenia" regarding "transparency." On financial, health care, and foreign policy issues, Dan has been balanced–critical at times, but definitely appreciative of the complexity of Obama’s task and his successes there. And of course, he’s still beating up Bush and Cheney.

And that, apparently, is enough to get you fired from the Village rag.

Read more →

Holder Refuses to Stand By Statements Saying Violating FISA Breaks the Law

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By far the most disturbing part of the Senate Judiciary Committee oversight hearing today came when Russ Feingold asked Eric Holder whether he stands by a statement he made before the American Constitution Society last year.

In the midst of a speech that repeated "rule of law" like a Greek Chorus, after introducing this passage from his speech by saying certain steps taken by the Bush Administration "were unlawful," Holder said, "I never thought a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

When Feingold asked Holder whether he stands by that statement, Holder ignored the early part of his speech where he described all of Bush’s abuses to be "unlawful," and instead tried to claim he was narrowly saying that Bush simply "contravened" FISA.

FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration’s warrantless wiretapping program. At the letter was prompted in part by a recent speech that I’m sure you’re aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.

In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as — as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard…

FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that’s certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.

Read more →