Someone Doesn’t Want the Telecoms to Get Immunity

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Because they’re leaking–and leaking big–to James Risen, Eric Lichtblau (and Scott Shane) again. Almost two years to the day since their first big scoop.

For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

I need to go hang at FDL for the book salon thread (come meet Bob Drogin!). Afterwards, I’ll come back and fill this thread out some.

One comment though: this story says the change came bc everyone went on fiber. David Kris has shown pretty persuasively that’s not true–the wire/air split wasn’t that different in 1978 when FISA was written. The difference, I suspect, is that now everything is digital. 

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Not Three Branches, Not Two Branches, Just One Branch of Government

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Apparently, in addition to sending out a chain letter stating "butt out" to five or six members of Congress yesterday, DOJ also sent a letter to Judge Henry Kennedy, telling him not to get involved in the torture tape question (h/t Scarecrow).

The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes’ destruction.

In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.

Now, BushCo is apparently claiming–to Kennedy, at least–that the CIA was free to destroy the torture tapes since the tapes didn’t come from Gitmo.

Kennedy ordered the administration in June 2005 to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

Of course, such sophistry won’t work for Leonie Brinkema–whose questions about interrogation tapes would seem to have included the Abu Zubaydah tapes. Nor should they cover the FOIA court battle in Alvin Hellerstein’s court, which pertain to all detainees held abroad. Read more →

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Oversight or Politics?

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Michael Mukasey has engaged in a remarkable bit of sophistry with his refusal to clue Congress in on the joint DOJ/CIA IG investigation into the destruction of the torture tapes. He explains his decision as an attempt to avoid "any perception that our law enforcement decisions are subject to political influence."

As to your remaining questions, the Department has a long-standing policy of declining to provide non-public information about pending matters. This policy is based in part on our interest in avoiding any perception that our law enforcement decisions are subject to political influence. Accordingly, I will not at this time provide further information in response to your letter, but appreciate the Committee’s interests in this matter. At my confirmation hearing, I testified that I would act independently, resist political pressure and ensure that politics plays no role in cases brought by the Department of Justice. Consistent with that testimony, the facts will be followed wherever they lead in this inquiry, and the relevant law applied.

Of course, the "political influence" Mukasey was asked to address during his nomination hearings was the kind exerted when a Senator or a Congresswoman called the Attorney General privately to demand that a USA either accelerate the prosecution of a political figure or be fired. In this matter, Mukasey has been asked to respond to what is an almost unparalleled degree of bipartisan support for an open inquiry into a matter that just stinks, already, of a cover-up. Leahy and Specter (and Reyes and Hoekstra and Durbin and Biden and more) called for a procedure that had oversight built in.

And Mukasey said no. Read more →

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Really Bad Gitmo Propaganda

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The increasingly valuable WikiLeaks reveals that a Mass Communications Specialist at Gitmo has been altering Wikipedia and other web resources to hide detainee numbers and otherwise counter reports of poor conditions at the prison.

The US detention facility at Guantanamo Bay has been caught conducting covert propaganda attacks on the internet. The attacks, exposed this week in a report by the government transparency group Wikileaks, include deleting detainee ID numbers from Wikipedia last month, the systematic posting of unattributed "self praise" comments on news organization web sites in response to negative press, boosting pro-Guantanamo stories on the internet news site Digg and even modifying Fidel Castro’s encyclopedia article to describe the Cuban president as "an admitted transexual" [sic].

Shayana Kadidal, Managing Attorney of the Center for Constitutional Rights Guantanamo Global Justice Initiative, said in response to the report:

"The military’s efforts to alter the record by vandalizing Wikipedia are of a piece with the amateurism of their other public relations efforts: [such as] their ridiculous claims that released detainees who criticize the United States in the media have ‘returned to the battlefield’."

We finally got rid of Karen Hughes as Chief Propaganda Specialist. But we’ve apparently got some schmo in Cuba trying to pitch Castro as a transsexual. 

Stuff like this always reminds me of my discovery, as a college professor, that most Americans have the crudest understanding of how language works. I can’t decide how to judge the trade-off. It means our government rarely gets away with propaganda. But it also reflects a widespread inability to think critically.

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Bam!!! CIA Scores Direct Hit on the Unitary Executive!

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At least that’s what I take from this quote:

In the e-mail version of the Politico Playbook this morning, Mike Allen quotes “a senior administration official” lamenting that “they should have burned the NIE and kept the tapes.” The official was referring to the administration’s debacles with the intelligence community since the new NIE on Iran was released and the CIA revealed that it had destroyed videotaped interrogations.

In the month of December, CIA 2, Dick Cheney 0.

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Intelligence Oversight and Partisanship

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David Ignatius picks up on a point I raised last week. We need to have better oversight of our intelligence activities.

Reading the newspapers over the past week, you would have to conclude that this oversight system is broken. It was intended to set clear limits for intelligence activities and then provide bipartisan political support for the operatives who do the dirty work. Instead, the process has allowed practices that are later viewed as abuses — and then, once the news leaks, it has encouraged a feeding frenzy of recrimination against the intelligence agencies.

And then he goes on to identify one of the biggest problems with our intelligence committees–partisanship.

The oversight process has broken down in a deeper way: The intelligence committees have become politicized. Members and staffers encourage political vendettas against intelligence officers they don’t like, as happened when Goss brought his congressional aides with him to the CIA. The new National Intelligence Estimate on Iran has become a political football; so has negotiation over legal rules on intercepting foreign communications, one of the nation’s most sensitive activities. The bickering has turned the intelligence world into a nonstop political circus, to the point that foreign governments have become increasingly wary of sharing secrets. Read more →

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Phone Slip

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MadDog points out that the documents released through FOIA to EFF are available. These are documents, remember, relating to communications about the FISA amendment between DNI McConnell and Congress or representatives of telecom companies.

Declaration of what’s included

Document dump one

Document dump two

I’m reading through things now. But one thing is immediately apparent. There is almost no trace of any conversations between telecom companies and ODNI employees–there’s just one phone slip.

ODNI located one document that is potentially responsive to request number one. This document is a telephone message slip that contains the handwritten personal notes and mental impressions of an ODNI employee. This document is being withheld because it is not an agency record under FOIA. In addition, the documents qualifies to be withheld pursuant to FOIA exemptions 1,3,5 and 6.

Boy, those phone companies, they’re pretty careful, huh? Read more →

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Did the D.O. Lawyer Even Know about Brinkema’s Request?

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While it has clear Isikovian blind spots–like the rather obvious coincidence between the terror tapes timeline and the events in Leonie Brinkema’s courtroom–there are some interesting tidbits in this Isikoff-Hosenball article on the "paper trail" of the decision to destroy the torture tapes. Most importantly, it sounds like the Directorate of Operations lawyer who purportedly authorized the destruction of the tapes only said there was no legal reason not to do so.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

Which suggests this lawyer had no fucking clue that Judge Leonie Brinkema had asked the government about such tapes explicitly, within weeks of the time when the tapes were destroyed. I’m guessing that was by design–the only way they could figure out how to get a legal opinion defending the indefensible, the destruction of evidence. Read more →

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Seeing a Catfight Where There Is None

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Spencer Ackerman has a more complete version of Nancy Pelosi’s statement about when she was briefed on torture techniques.

On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.

And then he makes what I consider a gross misreading of the statement.

One: Pelosi isn’t saying that she knew how detainees were interrogated. She’s saying she was told that all techniques used in those interrogations were considered legal. So did she know what those techniques were, and what they entailed? We’ll find out, or get stonewalled trying.

Two: Never mind the brief mention of Jane Harman’s protest. Pelosi just threw Harman under the bus. It’s no secret that the two Californians don’t get along. But she didn’t need to put the blame on her committee successor in her statement on this controversy.

Let’s take the key clauses from Nancy’s statement. I’ve bolded them up there in the statement so it’s crystal clear that they’re direct quotes, written in plain language.

  1. I [Nancy Pelosi] was briefed on interrogation techniques
  2. Jane Harman, was briefed more extensively and advised the techniques had in fact been employed
  3. Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred

Read more →

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Michael Mukasey, the Shortest Honeymoon Ever

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Hoo boy, Mukasey’s having a heck of a honeymoon, isn’t he? In addition to running the joint CIA-DOJ investigation of the destroyed terror tapes, now Feingold (on both SJC and SSCI) wants him to answer the questions he refused to answer in his nomination hearings.

Dear Attorney General Mukasey:

During the hearing on your nomination to be Attorney General and in your answers to questions submitted for the record, you repeatedly refused to answer questions related to interrogation techniques on the grounds that you had not yet been briefed on the CIA’s interrogation and detention program. I was disappointed with these responses. Familiarity with the CIA program should have been irrelevant to a legal opinion about practices such as waterboarding, which have been employed by dictatorships for generations and historically condemned by our own government.

Nonetheless, now that you have been sworn in as our nation’s Attorney General and presumably have been briefed on the program, I urge you to provide your views on its legality to Congress at the earliest possible date. As a member of the Senate Intelligence and Judiciary Committees, I believe that a full and informed exchange between yourself and Congress is critically important if our intelligence activities are to be conducted consistent with our laws and Constitution and subject to appropriate congressional oversight. Such transparency would also be long overdue, given the refusal of the Department of Justice to provide to Congress any legal opinions on the program.

I oppose any interrogation techniques not authorized by the Army Field Manual, as do majorities of the Senate and House Intelligence Committees. I do not believe that their use is legally or morally defensible or that it makes our nation safer. It is my hope that, under your leadership, the Department of Justice will take a fresh look at the CIA’s program, and that you will urge the President not to veto legislation that would end the use of so-called "alternative interrogation techniques." I request that you provide current and any past Department legal analyses to Congress, and that you provide your views on the program to Congress at the earliest possible date.

That said, I think this is good politics. It takes the pressure caused by the news of the torture tape destruction and ratchets it up another level. All, hopefully, to force Bush to accept restrictions against torture.

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