Russell Tice Confirms Everything We've Surmised About Bush's Illegal Wiretap Program

/in /by

 

Teddy linked to the stunning Russell Tice appearance on Keith O tonight. I wanted to add a few points.

First, Tice’s description of the program confirms everything we have surmised about the program. The program:

  • Established the means to collect all American communications
  • Analyzed meta-data to select a smaller subset of communications to tap further
  • Conducted human analysis of those messages

That is, the Bush administration used meta-data (things like length of phone call that have nothing to do with terrorism) to pick which communications to actually open and read, and then they opened and read them.

And of course, everyone’s communications–everyone’s–were included in the totality of communications that might be tapped.

Including–especially–journalists. We knew that both Christiane Amanpour and Lawrence Wright’s communications were tapped. Well, apparently so were every other journalists’.

Tice figured out that they were getting journalists’ communications when he realized that they were separating out all the journalists’ communications–but then ensuring that those communications were still collected 24/7.

I guess I was right to doubt the government’s claim–made to the FISCR–that it does not have a database of the communications of incidentally collected non-targeted persons, seeing as how this separate collection of journalists’ communications would be just that kind of database. (Unless, of course, the Bush thugs want to admit they deliberately targeted journalists as suspected terrorists.)

Tice also explained how BushCo evaded oversight by claiming some of this program was an intelligence program, and some was a military program. (Presumably, though, my smart Senator Carl Levin might notice something like that…) That strategy seems remarkably similar to the means by which BushCo legally justify the PAA (and presumably the program operating without Congressional sanction before it)–by using hybrid means of approving the program so as to eviscerate the Fouth Amendment. Nothing was too cute for these folks in their efforts to gut the Constitution, I guess.

Now that Tice has confirmed that all those journalists who have been poo-pooing the blogosphere for its concerns about the program in the last three years were being wiretapped, we may finally get some large scale press attention on this. Russ Feingold is going to look pretty damn smart for insisting that this is precisely what was going on. And perhaps, finally, we’ll have some accountability on these issues.

As I’ve been hinting, I did my small part in the hopes of accountability today; hopefully I’ll have the video done to explain tomorrow.

I’m beginning to believe we Read more →

Hints That the FISCR Plaintiff Is an Email Provider

/in /by

I’ve said in the last two threads on the FISCR opinion that the plaintiff is an email provider. Here’s why I believe that to be true.

On February 29, 2008, the Computer & Communications Industry Association wrote the Members of the House (which was then considering its own amendments to FISA, distinct from those that had been already passed in the Senate), lobbying against retroactive immunity. CCIA, recall, is the trade group for a bunch of tech companies, including email providers Yahoo, Microsoft, and Google. That letter reads:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact. !!

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well. [my emphasis]

On February 29, 2008, at a time when the plaintiff in this case was almost certainly actively pursuing the case (I’ll do a review of timing in a later post), the trade association for the country’s biggest free email providers was lobbying:

  • Against retroactive immunity for those companies participated in violations of federal law, suggesting that the trade organization believed earlier cooperation was clearly illegal Read more →

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

/in /by

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yesterday, I showed that the government claims it doesn’t have a database of incidentally collected data from non-targeted US persons; and then I showed why that claim is not credible. Today, I’ll point to another big loophole in the government’s wiretapping program revealed by the FISCR opinion: the use of three or more different methods of getting around Fourth Amendment requirements of probable cause and particularity.

The opinion describes what it seems to present as abundant protections involved in the wiretapping at issue–noting that these protections are included not just in Protect America Act, but also Executive Order 12333 and certain classified procedures.

Beginning in [redacted] 2007, the government issued directives to the petitioner commanding it to assist in warrantless surveillance [redacted, redacted footnote]. These directives were issued pursuant to certifications that purported to contain all the information required by PAA.

The certifications require certain protections above and beyond those specified by the PAA. For example, they require the AG and the National Security Agency (NSA) to follow the procedures set out under Executive Order 12333 2.5 …, before any surveillance is undertaken. Moreover, affidavits supporting the certifications spell out additional safeguards to be employed in effecting the acquisitions. This last set of classified procedures has not been included in the information transmitted to the petitioner. In essence, as implemented, the certifications permit surveillance conducted to obtain foreign intelligence for national security purposes when those surveillances are directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. [my emphasis]

Much later, when the Court is testing the government’s claim that certifications in question qualify as “reasonable,” it again lists these several “safeguards.”

The government rejoins that the PAA, as applied here, constitutes reasonable government action. It emphasizes both the protections spelled out in PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of a surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 2.5, and [redacted] procedures [redacted] outlined in an affidavit supporting the certifications. [my emphasis]

Understand–this opinion is not about whether PAA (or, more generally, a Congressionally-sanctioned wiretap program) by itself authorizes under the Fourth Amendment the actions the government required the plaintiff to take. It is about whether PAA + EO 12333 (the Reagan Executive Order laying out our intelligence program, plus the amendments to that EO) + redacted procedures submitted in conjuction with, but not mandated by, PAA fulfill Fourth Amendment requirements. PAA, by itself, does not fulfill Fourth Amendment requirements.

Read more →

The Government Sez: We Don’t Have a Database of All Your Communication

/in /by

I’m going to try to do a series of posts on the FISA Appeals Court ruling before football starts tomorrow. In this post, I just want to point to a passage that deserves more scrutiny:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

To translate, if the government collects information from a US citizen (here or abroad), a legal permanent US resident, a predominantly US organization, or a US corporation in the course of collecting information on someone it is specifically targeting, it it claims it does not keep that in a database (I’ll come back and parse this in a second). In other words, if the government has a tap on your local falafel joint because suspected terrorists live off their falafels, and you happen to call in a take out order, it does not that have in a database.

There are reasons to doubt this claim. First of all, because we know of huge new data storage facilities, and they’ve got to be filling those facilities with something. Of course, they might just store US person communications on servers, but not in a formal database, and thereby be able to claim they’ve not got your falafel order in a database proper.

But we also know that when Russ Feingold proposed several measures to protect this kind of incidental data during last year’s FISA debate, Mike McConnell and Michael Mukasey started issuing veto threats. For example, when Feingold proposed adding this amendment to the new FISA changes,

At such time as the Government can reasonably determine that a communication acquired under this title (including a communication acquired under subsection (a)(2)) is to or from a person reasonably believed to be located in the United States, such communication shall be segregated or specifically designated and no person shall access such a communication, except in accordance with title I or this section.

Mukasey and McConnell threw out a bunch of vague alarmist objections.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence Read more →

FISA Appeals Court Opinion

/in /by

I’ll get to these later. But if you want to start reading them, be my guest.

Opinion

Order

One thing I note is that they’ve redacted the number of requests this telecom provider got (page 4). They’ve also redacted a description of their term "certain customers."

Also, the Court premised what it was saying on the fact that "The PAA was a stopgap measure."

Another point: there may have been a problem with the original certifications on these surveillance requests.

The original certifications were amended, and we refer throughout to the amended certifications and the directives issued in pursuance thereof.

The OLC Opinion Eliminating the 4th Amendment (and "Justifying" the Warrantless Wiretap Program)

/in , /by

Christy linked to HJC’s report on the Imperial Presidency earlier.

I’ll have a lot more to say about it. But for the moment I wanted to point to details it includes on the October 23, 2001 OLC opinion eliminating the 4th Amendment we’ve been looking for (this is the memo cited in Yoo’s Torture Memo). 

On page 74 it describes the memo:

On October 23, 2001, Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty in the Department of Justice’s Office of Legal Counsel (OLC) prepared a memorandum entitled: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”291 This unclassified memorandum suggests broad power of the president as Commander in Chief to use military force inside the United States, contemplating even seizure and detention of United States citizens (or lawfully admitted aliens) in some circumstances. As such, the memorandum – though it does not squarely address detention policy — is consistent with the September 25, 2001, War Powers Memorandum which claimed for the president domestic war powers, anticipates the assertions of presidential power in the domestic detention context just a few months later, and anticipates the November 2001 conclusion that the president has the power to subject United States citizens to military commissions.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 Read more →

The al-Haramain Dates

/in , /by

Before you read this post, go read this post and this post for background about Judge Vaughn Walker’s order yesterday that the government must give him a document accidentally given to al-Haramain years ago that the Muslim charity claims proves they were wiretapped using the illegal wiretap program. Those posts explain that Walker will finally assess the warrantless wiretap program itself to determine whether it violated FISA. The second post goes on to suggest that this decision will likely impact Walker’s pending decision on whether or not the retroactive immunity passed by Congress is legal.

In this post I’m going to wallow in some delightful weeds, because they show that al-Haramain is going after Bush personally.

Recall that, back in July, Walker told al-Haramain that, before he would review the document itself to determine whether or not the program was illegal, they would have to use unclassified material to prove they are aggreived persons–that they had been wiretapped. A central part of their response to that direction was a description of a series of phone calls which they assert the government used to classify al-Haramain as a super-duper terrorist group, one with direct ties to Al Qaeda. Walker cites those calls in his opinion.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.)

In the telephone conversations between Belew and al-Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. Read more →

Vaughn Walker Will Review the al-Haramain Document

/in /by

Threat Level is reporting that Judge Walker–who is overseeing several of the FISA suits against the telecoms and the government–will review the log of warrantless wiretapping of lawyers representing the Muslim charity al-Haramain to determine whether or not the lawyers were spied on illegally.

U.S. District Judge Vaughn Walker said the lawyers’ amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation’s spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful.

[snip]

Walker’s decision Monday came six months after he ruled that he could look at the Top Secret document in private to see if the surveillance was illegal, but only if the lawyers could first find independent evidence they were allegedly spied on in violation of how the Foreign Intelligence Surveillance Act was written at the time.

On Monday, Walker ruled: "To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."

This will finally put Bush’s behavior in ordering illegal wiretapping under scrutiny by a judge. It’s a far cry, yet, from putting Bush in the pokey for his illegal acts. But at least it is judicial review.

Is Cheney Relying on Gonzales’ Retroactive Notes?

/99 Comments/in /by

Glenn picked up on Cheney’s recent reiteration of a claim that Alberto Gonzales has made (and may be in trouble for lying to Congress for): that he briefed Congressional leaders on the illegal warrantless wiretap program and they all agreed it should go forward without Congressional approval.  Glenn calls on those Congressional leaders who were at the briefing to respond to Cheney’s claims. But I’m more interested in the way Cheney’s willingness to repeat Gonzales’ story puts the notes Gonzales made to (presumably) back his side of the story back in play.

As I emailed Glenn and Barton Gellman explains to Rachel Maddow (at 6:30 and following), the meeting in question is the March 10, 2004 meeting at which Cheney tried to go around Jim Comey so as to get legal cover for their warrantless wiretap program.

Gellman: He’s talking about a meeting on March 10 of 2004. He’s never previously talked about it in public. And he’s backing up the official story which is that eight members of Congress–four Republicans and four Democrats–came in and were told "The Justice Department thinks this program is illegal, should we go ahead with it anyway, despite there’s no law in Congress authorizing it?"And that four Republicans and four Democrats said "Yes, go right ahead. Do the illegal thing." Now, I talked to four people who were in that meeting and not all of them were Democrats and all of them dispute that that’s the way it happened.

Maddow: Isn’t there some way that could be checked? Doesn’t somebody write down what happens at those things?

Gellman: Yeah, and it was Top Secret code word classified and remains so. 

First, let me correct Gellman. Cheney’s making a somewhat different claim–one apparently disproven by the facts. He’s claiming he briefed all nine Congressional leaders: that is, the Gang of Eight, plus Tom DeLay.

CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until – this was – be from late ’01 up until ’04 when there was additional controversy concerning the program.

At that point, we brought in what I describe as the big nine – not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.

I presided over the meeting. Read more →

The Holder Delay, the OLC Delay, the SJC Delay

/37 Comments/in , , /by

I suggested last week that the Republicans have suddenly decided to challenge Eric Holder’s nomination in an attempt to postpone the time when AG Holder (if he is approved) would review the OLC opinions supporting warrantless wiretapping and torture.

It turns out that Patrick Leahy is also worried that BushCo are sitting on OLC opinions it has promised to the Senate Judiciary Committee (h/t Secrecy News).

Even in the final days of the Bush administration, the Department of Justice continues to stonewall congressional subpoenas for documents from the Office of Legal Counsel (OLC), according to the chairman of the Senate Judiciary Committee. Sen. Patrick Leahy (D-Vt.) on Friday underscored the Department’s continued obstruction and hit the Department on going back on its word to provide the Committee with copies of six documents related to a subpoena issued in October for OLC documents.

In a letter dated November 14, Justice Department officials said the Department was "prepared to make available for Committee staff review at the Department" two national security-related OLC opinions subpoenaed on October 21. The Department also wrote that it was "prepared to provide the Committee with copies of additional OLC memoranda on November 17, 2008." Upon receipt of the letter, followed by a verbal assurance on November 17 that the documents were being delivered to the Committee, Leahy postponed the return date of the subpoena, which was scheduled for November 18. To date, the Department has provided the Committee with copies of just two documents, one of which was not listed in the October 21 subpoena and was already widely available in the public domain. The remaining six documents have been made available at the Department only for staff review.

Here’s a list of the OLC opinions the Administration has been playing games with:

A. Memorandum for Alberto R. Gonzales, Counsel to the President, Re "Protected Persons" in Occupied Iraq (March 18,2004).

B. Any final OLC memorandum or written legal advice concerning applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49, including any March 19, 2004 memorandum, Re: Applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49.

Read more →