Revisiting Jane Harman’s Over-Reaction to Partisan Pressure on FISA

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In October 2007, when Jane Harman was cozying up to Crazy Pete Hoekstra to forge a bipartisan compromise on FISA, I wrote this:

Buried in this article on Democrats compromising with Republicans, I noticed this paragraph:

And as Democratic leaders push their own legislation to rein in the wiretapping program, Rep. Jane Harman (D-Calif.) has been quietly exploring avenues of compromise with Rep. Peter Hoekstra (Mich.), the ranking Republican on the House intelligence committee. Centrist Democrats hope those talks can dovetail with the Senate intelligence committee’s own bipartisan measure on surveillance of suspected terrorists.

Jane Harman, of course, is a former member of the HPSCI. Only, with the changeover in Congress, she got bounced from HPSCI and relegated to chairing the Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment over at Homeland Security, which means she is not in a formal position of leadership on this issue. Harman made news last month when she called the Republicans on their bullshit attempts to use a sketchy terrorist threat as an excuse to push FISA amendment through. But she also appears to have been one of the only Democrats (if not the only Democrat) to have approved uncritically of Bush’s illegal wiretap program.

But now, apparently, she’s taking it upon herself to negotiate her own version of a FISA Amendment, presumably one designed to bypass HJC (which wants nothing to do with telecom immunity) and HPSCI, which under Reyes is proving to be increasingly skeptical of Bush’s BS.

How nice, that the one Democrat who gave approval to this illegal program is the one now negotiating immunity for them. Not a conflict of interest there, not at all.

 Strangely, she took time out of her bipartisan schmoozing to yell at two DFH bloggers for being critical.

Jane Harman sent a response to this post via a staffer.

What rubbish!  For those like me who insist that the President’s domestic surveillance program must comply fully with the Constitution and the 4th Amendment, the only way for Congress to get there is with a veto-proof majority.  That’s why I’m working with Republicans.  Got a better idea?

I opposed the FISA-gutting Protect America Act last August and supported the much-improved H.R. 3773, which did not include retroactive immunity for telecommunications companies.  Read more →

Jane Harman: Stupid and Reckless, Not the Victim of Illegal Wiretaps

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There are a lot of reasons to be appalled by the story of Harman’s agreement to pressure DOJ in exchange for help getting a Chairmanship, and by Gonzales’ decision to drop an investigation so he could protect himself.

But the fact that Harman was picked up on a wiretap is not one of them. 

The CQ story makes it clear that this wiretap was court approved and was directed not at Harman, but at the suspected Israeli spy whom she was talking to.

What is new is that Harman is said to have been picked up on a court-approved NSA tap directed at alleged Israel covert action operations in Washington. [my emphasis]

Now, we know from the court documents in the AIPAC case that there have been wiretaps involved going back years–probably as early as 2002. And it has been reported that the original focus of the investigation was Naor Gilon, an Israeli widely suspected of being a spy, not Larry Franklin or any other American. 

In other words, the investigation–and the wiretaps–were the classic, proper use of FISA: for an intelligence investigation targeting suspected agents of a foreign power operating in the US. And it goes without saying that we all better hope the NSA listens closely to conversations between powerful members of Congress and suspected spies, and that when they make quid pro quo deals, that conversation gets looked at much more closely. This was a totally proper use of NSA wiretaps. 

What is absolutely astounding, however, is that someone well-versed in intelligence like Harman got on the phone with someone reported to be under investigation at least a year earlier, agreed to a quid pro quo, and then said (so the NSA could hear her), “This conversation doesn’t exist.”

Alberto Gonzales’ Blackmail Notes and Jane Harman’s Support

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As I explained in the last post, CQ is reporting that NSA intercepts caught Jane Harman agreeing to help AIPAC avoid criminal charges in exchange for AIPAC’s support for her to get the House Intelligence Chair. That post suggests Harman was willing to intervene in a criminal case in hopes of getting a powerful Chairmanship of a committee.

But the story also shows that Alberto Gonzales’ efforts to ensure support from those members of Congress who didn’t object to the illegal wiretap program worked. The story reveals that Gonzales spiked an investigation into Harman because he needed her to support the Administration as news of the warrantless wiretap program broke in 2005. 

Justice Department attorneys in the intelligence and public corruption units who read the transcripts decided that Harman had committed a “completed crime,” a legal term meaning that there was evidence that she had attempted to complete it, three former officials said.

And they were prepared to open a case on her, which would include electronic surveillance approved by the so-called FISA Court, the secret panel established by the 1979 Foreign Intelligence Surveillance Act to hear government wiretap requests.

First, however, they needed the certification of top intelligence officials that Harman’s wiretapped conversations justified a national security investigation.

[snip]

But that’s when, according to knowledgeable officials, Attorney General Gonzales intervened.

According to two officials privy to the events, Gonzales said he “needed Jane” to help support the administration’s warrantless wiretapping program, which was about to be exposed by the New York Times.

Harman, he told Goss, had helped persuade the newspaper to hold the wiretap story before, on the eve of the 2004 elections. And although it was too late to stop the Times from publishing now, she could be counted on again to help defend the program

He was right.

On Dec. 21, 2005, in the midst of a firestorm of criticism about the wiretaps, Harman issued a statement defending the operation and slamming the Times, saying, “I believe it essential to U.S. national security, and that its disclosure has damaged critical intelligence capabilities.”

I suspect there is even more here than meets the eye.

Read more →

What Does a House Intelligence Chairmanship Cost?

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As a number of you have pointed out, CQ reports that the NSA picked up intercepts of Jane Harman agreeing to lobby DOJ to back off charges on AIPAC’s Steve Rosen and Keith Weissman in exchange for AIPAC’s support of her getting the Chair of the House Intelligence Committee.

Rep. Jane Harman , the California Democrat with a longtime involvement in intelligence issues, was overheard on an NSA wiretap telling a suspected Israeli agent that she would lobby the Justice Department reduce espionage-related charges against two officials of the American Israeli Public Affairs Committee, the most powerful pro-Israel organization in Washington.

Harman was recorded saying she would “waddle into” the AIPAC case “if you think it’ll make a difference,” according to two former senior national security officials familiar with the NSA transcript.

In exchange for Harman’s help, the sources said, the suspected Israeli agent pledged to help lobby Nancy Pelosi , D-Calif., then-House minority leader, to appoint Harman chair of the Intelligence Committee after the 2006 elections, which the Democrats were heavily favored to win.

Now, there are couple of interesting details about this news.

First, as it happens the AIPAC trial is in a very active stage right now, with both sides submitting schedules in preparation for a May 6 and 7 CIPA hearing that may end up giving the AIPAC defendants access to classified material with which to defend themselves; if the government faces setbacks in that CIPA hearing, I think it likely that the government gives up the case. If I were a law enforcement guy whose case was crumbling, I might gin up some press attention to convince people of the value of the case. 

So I find it interesting that the three sources for this story want to talk about Harman, but not the AIPAC guy on the other end of the call.

The identity of the “suspected Israeli agent” could not be determined with certainty, and officials were extremely skittish about going beyond Harman’s involvement to discuss other aspects of the NSA eavesdropping operation against Israeli targets, which remain highly classified.

I’ll comment on the Gonzales half of this story in a new post. 

The al-Haramain Case Stays On Track

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graphic by BobsViews

graphic by BobsViews

It was late and welcome news Friday afternoon when Judge Vaughn Walker’s decision came in. Marcy already gave some cogent analysis on where the punches were pulled in the decision and where they landed. I actually think (yes, yes, I know I am usually the voice of pessimism) that the punches landing will prove to far outweigh those pulled.

First, and foremost, Judge Walker has kept the suit alive in the face of all the adversity thrown in his path by both the Bush/Cheney Administration and, now, that of Obama. This fact alone entitles Judge Walker to a king’s ransom of gratitude from anybody that gives a tinker’s damn about the rule of law and the Fourth Amendment, because Obama has been following Bush in pulling every stunt in the bag out to defeat the right of citizens to hold their government accountable for the illegal and unconstitutional acts it perpetrates on them. Take the recent unconscionable assertion of sovereign immunity for instance. Please.

The seminal importance of Walker’s decision to proceed simply cannot be overstated. It is, quite simply, a ruling by a Federal court, albeit it a preliminary one, that the "Bush Program" was illegal. And keep in mind that it is not just the al-Haramain case that hangs in the balance of this determination, but potentially all the consolidated cases, including Jewell, too. As Marcy has explained, the ability of the of the plaintiffs in the remaining consolidated cases to establish the existence of illegal surveillance, separate and distinct from al-Haramain, may be effectively non-existent due to the state secrets assertion (even discounting the heinously bogus sovereign immunity assertion) made by Bush/Cheney and now Obama. In the face of the state secrets claim there is no way for the plaintiffs to establish standing as plaintiffs having been illegally surveilled. Because of "the sealed document", in the form of a surveillance log that was inappropriately forwarded to al-Haramain’s attorneys, the plaintiffs in al-Haramain have the ability to establish directly illegal surveillance.

So there is that, but there is also the process that Judge Walker has laid out in order to carry the action forward down the tracks. Having reviewed the sealed document, and the other filings made under seal (including those detailing the notorious "inaccurate information" previously lodged by the Bush administration), and determined that the case will proceed, there has to be a path crafted to allow the case to proceed and still protect the secrecy of information that is legitimately national security protected. As Marcy said:

In other words, Walker has Read more →

On the al-Haramain Decision

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Thanks to bmaz for sitting in a crappy rental car in SF for the last month and a half waiting for Vaughn Walker to make a peep. As he reported, Walker has ordered the government and the al-Haramain team to figure out a way to move forward with the litigation.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits.

Frankly, that order is largely a punt. The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work. He could have just ordered them to follow that approach, but did not.

But here are the two aspects of the order that are not a punt. First, Walker makes it clear he has read all the documents submitted in this case.

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.”

And he has said, clearly, that it’s time to get this litigation moving.

The court will then consider the submissions and enter a protective order under which this case may resume forward progress.

In other words, Walker has said, "I’ve read the secret evidence in this case and now I want you guys to figure out how to move foward with this case."

Which pretty much implies that, having read the evidence, Walker believes it will move forward. Unless I’m misreading these tea-leaves (which I doubt, because the tea-leaves have been reading the same way since well before January), Walker is prepared to rule that al-Haramain is an aggrieved party. Meaning, Walker is convinced the government wiretapped al-Haramain illegally.

Not a surprise, in the least, but it’s nice we’re finally getting around to this.

So why the punt, and why the delay?

First, a wildarsed guess. I think the delay may have related to the third of the related warrantless wiretap cases before Walker. You’ll recall the filing submitted two weeks ago, once again making expansive claims of privacy and claiming the government is immune from suit.  Read more →

BREAKING NEWS: Judge Vaughn Walker Keeps Al-Haramain Alive!

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graphic by politicalbase

graphic by politicalbase

The decision just came to me hot from a source involved in the case. Judge Walker has entered his order on al-Haramain. [pdf]

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.” RT, Hearing held January 23, 2009 (Doc #532/67) at 34 and Doc #562/71 at 2,3.

The United States, in response to the court’s directive to “inform the court how it intends to comply with the January 5 order” (Doc #562/71 at 3) has offered up three similar-sounding alternatives all of which appear geared toward obtaining a stay of this court’s proceedings and review by the court of appeals, even though its simultaneous attempts to obtain review as of right and by means of an interlocutory appeal of the January 5 order failed in February (Doc #562/71 and Al-Haramain Islamic Foundation, Inc v Obama, No 09-15266 (9th Cir February 27, 2009)). As both this court and the court of appeals have determined that this matter is properly before the court, the United States should now comply with the court’s orders.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits. The United States District Court for the District of Columbia has successfully employed protective orders in the In Re Guantánamo Bay Detainee Litigation, D DC No Misc 08-0442 TFH, even providing for the use of top secret/sensitive compartmented information (TS/SCI). See, for example, the documents at docket numbers 409 and 1481 in that matter. The United States has advanced no argument that would suggest a reason why the court’s use of a protective order in instant matter modeled on those in use in the Guantánamo Bay would not adequately protect the classified information at issue here.

The parties shall submit to the court a stipulated protective order on or before May 8, 2009. If the parties are unable to agree on all terms, they shall jointly submit a document containing all agreed terms together with a document setting forth the terms about which they are unable Read more →

The 6-Month Review

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In Lichtblau and Risen’s piece on the ongoing warrantless wiretap problems, they report that the problems were identified in preparation of a semiannual review of the warrantless wiretap program.

The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.

Best as I can tell, this is the semiannual assessment in question.

‘‘(1) SEMIANNUAL ASSESSMENT.—Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to—

‘‘(A) the Foreign Intelligence Surveillance Court; and

‘‘(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

‘‘(i) the congressional intelligence committees; and

‘‘(ii) the Committees on the Judiciary of the House of Representatives and the Senate.

So, basically, every six months, the DNI and AG need to look at the program and see whether the NSA is complying with the targeting and minimization requirements of the law.

The targeting language basically says NSA cannot intentionally target US persons.

‘‘(b) LIMITATIONS.—An acquisition authorized under subsection (a)—

‘‘(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

‘‘(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

‘‘(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

‘‘(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

‘‘(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

And the minimization requirements require that incidentally collected US person data must not be circulated improperly and must be destroyed.

(h) “Minimization procedures”, with respect to electronic surveillance, means—

Read more →

Feingold (and ACLU): I Told Congress So

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I’ll have more on this shortly. But if I were Feingold, my statement about the abuse of the warrantless wiretapping program would have been even stronger.

Since 2001, I have spent a lot of time in the Intelligence Committee, the Judiciary Committee, and on the floor of the Senate bringing attention to both the possible and actual effects of legislation that has dangerously expanded the power of the executive branch to spy on innocent Americans.  Despite these efforts, Congress insisted on enacting several measures including the USA PATRIOT Act, the Protect America Act, and the FISA Amendments Act, embarking on a tragic retreat from the principles that had governed the sensitive area of government surveillance for the previous three decades.  Congress must get to work fixing these laws that have eroded the privacy and civil liberties of law-abiding citizens. In addition, the administration should declassify certain aspects of how these authorities have been used so that the American people can better understand their scope and impact. [my emphasis]

Update: Caroline Fredrickson of the ACLU engages in some well-earned "I told you so" speech, too.

“Congress was repeatedly warned that this type of abuse would be the obvious outcome of passing the FISA Amendments Act,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Congressional leadership promised after this law’s passage that it would be reexamined along with the Patriot Act. It’s time to fulfill that promise and restore the checks and balances of our surveillance system. Warrantless surveillance has no place in an America we can be proud of. These revelations make it clear that Congress must now make a commitment to rein in government surveillance.”

Did Holder Know About the “Significant Misconduct” When DOJ Claimed Sovereign Immunity?

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On April 3, DOJ submitted a filing that argued that no citizen had the ability to sue if she had been wrongly wiretapped under Bush’s illegal wiretap program. The government, DOJ claimed, had sovereign immunity that protected it from such suits.

As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign immunity noted above, because it applies solely to a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information. Likewise, the Government preserves its position that Congress also has not waived sovereign immunity under in FISA to permit a damages claim against the United States.

Today, just 11 days later, we learn that,

As part of [presumably Glenn Fine’s  Inspector General] investigation [into the warrantless wiretap program], a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism.

So when Eric Holder’s DOJ made expansive claims arguing that no one could sue federal employees for being wrongly wiretapped under Bush’s illegal program, did he know this revelation from Glenn Fine’s investigation into the wiretapping program? When DOJ claimed sovreign immunity, were they thinking not so much of the Jewel plaintiffs, whose claim was focused on the dragnet collection of US person data, but of the Americans targeted in what Glenn Fine’s office considers "significant misconduct"?

Because if Holder did know (and the timing suggests it is quite likely he did), it makes those cynical claims of sovereign immunity all the more disturbing.

Fine’s investigation will contribute to the larger FAA-mandated Inspector General’s for which there is a presumption of openness. In other words, even if this hadn’t been leaked now, in April, it is supposed to be published in unclassified form in July. Read more →