Electronic Surveillance

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James Risen and Eric Lichtblau have a report today supporting what many around these parts have suggested–that one effect of the amendments to FISA is to expand the kinds of surveillance the Administration can do.

Broad new surveillance powers approved by Congress this month couldallow the Bush administration to conduct spy operations that go wellbeyond wiretapping to include — without court approval — certain typesof physical searches of American citizens and the collection of theirbusiness records, Democratic Congressional officials and other expertssaid.

[snip]

“This may give the administration even more authority than peoplethought,” said David Kris, a former senior Justice Department lawyer inthe Bush and Clinton administrations and a co-author of “NationalSecurity Investigation and Prosecutions,” a new book on surveillancelaw.

Several legal experts said that by redefining the meaningof “electronic surveillance,” the new law narrows the types ofcommunications covered in the Foreign Intelligence Surveillance Act,known as FISA, by indirectly giving the government the power to useintelligence collection methods far beyond wiretapping that previouslyrequired court approval if conducted inside the United States.

Thesenew powers include the collection of business records, physicalsearches and so-called “trap and trace” operations, analyzing specificcalling patterns.

Note that David Kris is pretty smart about these issues, so if thinks this is possible, then it probably is.

I’m also struck by the inclusion of trap and trace operations in this list. Somewhere, I expect us to be discussing data-mining again, and with trap and trace we’re getting closer to data-mining.

In addition to reiterating some of the concerns that have been raised here and in other blogs covering this, Risen and Lichtblau give sketchy details of two meetings that have occurred since the passage of the bill, one I didn’t know about…

These new powers are considered overly broad and troubling by someCongressional Democrats who raised their concerns with administrationofficials in private meetings this week.

[snip]

The senior intelligence official acknowledged that Congressional staffmembers had raised concerns about the law in the meetings this week,and that ambiguities in the bill’s wording may have led to someconfusion. “I’m sure there will be discussions about how and whether itshould be fixed,” the official said.

It’s a Small World–Impugning a Witness Edition

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Wow. Brent Wilkes co-conspirator John Michael is going after Tommy Kontogiannis hard. And they’ve got a very interesting way to do it (hat tip to CC for the alert).

As you’ll recall, John Michael is the least famous of the thugs indicted in the larger Duke Cunningham scandal–Michael was involved in the mortgage company money laundering side of things. Originally, Michael was indicted seemingly almost as an afterthought (except that he allegedly lied in interviews with investigators). But a superseding indictment almost certainly prepared with the cooperation of Kontogiannis added three charges to his indictment. It’s clear there’s something funky about Kontogiannis–he has been in trouble with the law before, but every time–and this time–the government seems to let him off easy. The government’s attempts to seal trial materials relating to Kontogiannis’ plea after the fact seemed to most hurt Michael, since Michael’s indictments must be tied to Kontogiannis’ cooperation.

In a new filing, Michael’s lawyer is basically arguing that Kontogiannis got special treatment from the government. And he’s alleging that he got that special treatment, among other reasons, because Kontogiannis and his daughter had ties to the late uncle of one of the AUSAs prosecuting the case, Phillip Halpern.

Or Maybe It’s the Hatch Act that Will Do Karl In

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Pachacutec sent this in an email:

During the briefings at Treasury and Commerce, then-Bushadministration political director Ken Mehlman and other White Houseaides detailed competitive congressional districts, battlegroundelection states and key media markets and outlined GOP strategy forgetting out the vote.

Commerce and Treasury political appointeeslater made numerous public appearances and grant announcements thatoften correlated with GOP interests, according to a review of theevents by McClatchy Newspapers. The pattern raises the possibility thatthe events were arranged with the White House’s political guidance inmind.

What I find most, um, curious, is that the same Republican thugs are always at the center of each new scandal:

In the months leading up to the 2002 election, then-CommerceSecretary Don Evans, Bush’s former campaign finance chairman, madeeight appearances or announcements with Republican incumbents indistricts deemed by White House aides either as competitive districtsor battleground presidential states.

During the stops, he doledout millions of dollars in grants, including in two publicannouncements with Rep. Heather Wilson, a New Mexico Republican in acompetitive district.

Republicans ultimately regained control ofthe Senate and expanded their majority in the House of Representativesin the 2002 elections.

In 2004, Evans and his aides significantlyscaled back appearances with candidates, but an assistant treasurysecretary returned to New Mexico to announce with Republicans Sen. Read more →

Domenici and Rove

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The Great Orange Satan links to an article tracking Heather Wilson’s Senate campaign activities, suggesting that she’s angling to replace Domenici. Markos notes what the local bloggers don’t–that Domenici may actually be thinking of retiring to spend time with Karl Rove’s family.

An intriguing bit of intel from folks down in New Mexico:

She’s recently been in Clovis, Los Alamos and Las Cruces. Now one ofthe Alligators has an unconfirmed report that ABQ GOP Rep. HeatherWilson has had an appearance slated for Farmington. You know the score,but it bears repeating. Wilson is positioning herself for the US senateseat held by Senator Domenici–just in case. Domenici is indeed runningfor a seventh term in ’08, but frail health is the opponent that couldkeep him out of the race. He is 75.

Frail health and the U.S. Attorney scandal, a potent combination.

I find the timing on this curious. As I suggested the other day, there’s a lot of reason to suspect Rove may be getting nervous about the White House cover-up of the reasons why Iglesias was fired.

Activities and Yoo

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Anonymous Liberal is trying to sort through something I’ve been looking at for a while: to what degree was Ashcroft fully read into the warrantless wiretap program? I think there’s a two-part answer to this question. As I’ll show below, I think BushCo had Ashcroft approve the multiple aspects of "the program" in isolation from each other, giving him an incomplete picture of how the parts worked together. Furthermore, as they did with Congress, they made sure that no one who could offer any real advice on the program every got read into it, forcing Ashcroft to make his determinations from a position of ignorance. And all of this likely fits into a larger process, whereby Cheney and Addington worked directly with John Yoo to obtain the substantive approvals from DOJ, thereby bypassing Ashcroft on the larger issues. All of which might explain why Ashcroft raised the issue after Gonzales and Card tried to manhandle him while he was recuperating the ICU ward.

Contrary to what Spencer Ackerman claims, this is not "the first time" the allegation that Ashcroft wasn’t adequately read into this program has been made. Aside from Whitehouse’s questioning of Gonzales in his last SJC appearance and the correction Gonzales submitted after that appearance, a number of reports have laid out the Cheney-Addington approach to shredding the Constitution more generally.

Cheney and Addington’s MO

Take this article from December 2005, laying out how John Yoo bypassed normal review processes when writing opinions that justified these expansive policies (including the warrantless wiretapping program):

Within weeks [of 9/11], Mr. Yoo had begun to establish himself as a criticalplayer in the Bush administration’s legal response to the terroristthreat, and an influential advocate for the expansive claims ofpresidential authority that have been a hallmark of that response.

Whilea mere deputy assistant attorney general in the legal counsel office,Mr. Yoo was a primary author of a series of legal opinions on the fightagainst terrorism, including one that said the Geneva Conventions didnot apply and at least two others that countenanced the use of highlycoercive interrogation techniques on terror suspects. Recently, currentand former officials said he also wrote a still-secret 2002 memorandumthat gave legal backing to the administration’s secret program toeavesdrop on the international communications of Americans and othersinside the United States without federal warrants.

A genial, soft-spoken man with what friends say is a fiercelycompetitive streak, Mr. Yoo built particularly strong workingrelationships with several key legal officials in the White House andthe Pentagon. Some current and former government officials contend thatthose relationships were in fact so close that Mr. Yoo was able tooperate with a degree of autonomy that rankled senior JusticeDepartment officials, including John Ashcroft , then the attorney general.

[snip]

Mr. Yoo’s belief in the wide inherent powers of the president ascommander in chief was strongly shared by one of the most influentiallegal voices in the administration’s policy debates on terrorism, DavidS. Addington, then the counsel to Vice President Dick Cheney.Documents and interviews suggest that those views have been part of thelegal arguments underpinning not only coercive interrogation and theprosecution of terrorism suspects before military tribunals but alsothe eavesdropping program.

Some current and former officials saidthe urgency of events after Sept. 11 and the close ties that Mr. Yoodeveloped with Mr. Addington (who is now Mr. Cheney’s chief of staff),Mr. Gonzales, Mr. Flanigan and the general counsel of the DefenseDepartment, William J. Haynes II, had sometimes led him to bypass theelaborate clearance process to which opinions from the legal counseloffice were normally subjected.

[snip]

"They were not getting enough critical feedback from within O.L.C.,or from within the Justice Department, or from other agencies," oneformer official said of Mr. Yoo’s opinions. Officials said senior aidesto Attorney General Ashcroft also complained that they were notadequately informed about some of the Mr. Yoo’s frequent discussionswith the White House.

Mr. Yoo said he had always duly notifiedJustice Department officials or other agencies about the opinions heprovided except when "I was told by people very high in the governmentnot to for classification reasons."

So, we know Yoo wrote the opinion justifying the warrantless wiretapping program. We know Yoo sometimes bypassed normal clearance processes. And we know he did this when Dick Cheney "people very high in the government" told him not to share the opinions with others "for classification reasons." This method has been mapped in a number of articles since then, including the WaPo’s Angler series (though that article specifically maps what happened with military commissions). So we’ve known for some time that Cheney and Addington worked directly with John Yoo in an effort to bypass normal vetting processes and John Ashcroft himself.

What AGAG Learned from the Newspapers

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This is a persnickety point, perhaps, but it’s so much more fun to bust Alberto Gonzales in one of his subtle evasions than one of his real blatant lies.

In his most recent appearance before the Senate Judiciary Commitee, Chuck Schumer asked Gonzales whether he knew that Comey had assumed the powers of Acting Attorney General–Schumer was trying to point out how totally inappropriate it was for Gonzales to go to Ashcroft’s hospital room at all.

As is his way, Gonzales invented a lame, transparent excuse for his unethical behavior, admitting only that he "probably knew" that Comey was acting Attorney General and suggesting he learned of that fact from newspaper accounts.

SCHUMER: Thank you, Mr. Chairman. I appreciate your waiting for the votes.

I have just a few quick questions that I hope you’ll be able to answer quickly and concisely.

First,Mr. Attorney General, at the time you went to Mr. Ashcroft’s hospitalbed, did you know that power had been transferred to Jim Comey?

GONZALES: Ithink there were newspaper accounts, and the fact that Mr. Comey wasthe acting attorney general is probably something that I knew of.

SCHUMER: Probably you know of it?

GONZALES: Well,again sitting here today, I can’t tell Read more →

Leahy’s Keeping Busy

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Shouldn’t Pat Leahy be back in Vermont tipping cows or something like that? Instead, he’s churning out letter after letter, closing in on the Bush lying thugs. Tuesday’s letter seemed to target Karl Rove. In today’s letter, Alberto Gonzales is clearly the target.

I am writing to ask that you investigate and evaluate potential misleading, evasive, or dishonest testimony by Attorney General Alberto Gonzales before the Senate Judiciary Committee on July 24, 2007, and in previous hearings before this and other congressional Committees.  I have identified numerous instances in which the Attorney General appears to have contradicted his own previous testimony or the statements or testimony of other senior officials, or where he appears to have engaged in efforts to mislead.  I have given him an opportunity to clarify and revise his testimony, but he has not meaningfully addressed our significant concerns.

Now just because I’m a timing weenie, let me remind you that the last we heard from Leahy (way back on Tuesday) he had agreed to contact the White House to see if they would meet and negotiate. Does this letter indicate he has already gotten his "go fuck yourself" in response?

In any case, Leahy seems to be striking a Read more →

Mueller’s Chronology

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id you ever notice that if you take a log recording the events regarding an illegal surveillance program, and redact the heck out of it, it looks like a chronology that a dirty fucking hippy blogger might write? Below you can read what’s left of Mueller’s log, with my notes. The big takeaways are:

  • Mueller refers to a “program,” singular. Which backs up what everyone has been saying: Gonzales is a lying sack. There was one program that was the subject of a DOJ revolt, not the parsing tidbits of programs Gonzales would like to pretend there were.
  • All Cheney, no Bush. With the exception of the famous meeting where Mueller met Bush directly, Bush was uninvolved, at least from Mueller’s perspective. Cheney, on the other hand, attended all the group meetings (though Card was in charge of twisting Mueller’s and Comey’s arms). And the final meeting Mueller felt the need to record was one with Cheney. Is there any doubt, then, when Gonzales say “at the behest of the President,” he really means, “Dick”?
  • Mueller almost seemed to be a go-between between those in DOJ preparing to resign and the White House, with Gonzales as the point of contact.

Monday 3/1/04, 1700: Meeting with Comey in his office.

This was actually before the meeting at which Comey and Ashcroft decided not to reauthorize the program, which he said occurred on March 4, the same day Ashcroft was hospitalized. That means two things–Comey was not acting AG when the meeting occurred, and that it happened before the final decision was made. Note that Mueller draws a line after this entry, suggesting some kind of separation between this meeting and subsequent meetings.

Tuesday 3/9/04, 1000: Meeting with Fedarcyk, Pistole, Caproni (and perhaps Wainstein and Gebhardt).

These were then all top FBI people, most with a focus on counter-terrorism–Wainstein is now the AAG in charge of Counter-Terrorism. Fedarcyk, who has since retired, was quoted after Mueller’s testimony as suggesting Mueller was “throwing Gonzales under a bus.”

Mike Fedarcyk, a retired senior FBI official called Mueller’s shot at Gonzales a “jawdropper inside the bureau.”

Mueller, who was not in the hospital room, spoke to Ashcroft right after Gonzales left and testified he took notes about the incident. Fedarcyk said that appeared to be insurance against a White House counterattack.

“Usually you take notes to protect yourself. He used them to throw Gonzales under the bus. That’s huge,” Fedarcyk said.

“This is not partisan politics. It’s a bold, strategic, calculated move.”

Presumably, this meeting served to finalize the FBI position on what they needed from the program, just before Mueller went and represented the FBI’s position at a White House meeting on this.

Tuesday 3/9/04, 1200: Meeting at Card’s office, VP, [CIA Deputy Director] McLaughlin, [NSA Director] Hayden, Gonzales and others present.

Note that it appears Meuller was there, but Comey was not, which suggest they thought of Mueller, but not Comey, as a key member of National Security policing.

Tuesday 3/9/04, 1600: Meeting at Card’s office with Comey, attorneys from OLC, VP, Card, Gonzales, Hayden and others.

I wonder how long the earlier meeting was, since it includes most of the same people as the last meeting, plus the people at OLC to explain to Cheney why they couldn’t
reauthorize the program. Interestingly, Jack Goldsmith was not mentioned by name.

Wednesday 3/10/04, 1920: Called by DAG while at restaurant with wife and daughter. He is at AG’s hospital with Goldsmith and Philbin. Tells me Card and J. Gonzales are on the way to hospital to see the AG but that AG is in no condition to see them, much less make decision to authorize continuation of the program. Asks me to come to AG’s hospital to witness condition of AG.

This is one of just two unredacted passages in this log–but it reveals certain things. First, there is one program, not a set of several programs, some legal, some not, as Alberto Gonzales has claimed before Congress. But also, note that Mueller is very clear that he is to “witness condition of AG.” You only get a witness for something if you know it’ll be needed for testimony later. Comey knew they’d try to lie their way around this.

Mueller appears to have been uninvolved in the events that happened between late afternoon on the 9th and evening on the 10th, most notably, when Comey told Cheney no. And also, when the Gang of Eight were briefed on the program’s problems.

Wednesday 3/10/04, 1940: At hospital. [click through for the description]

It took Mueller twenty minutes to get to the hospital, and Card and Gonzales had come and gone by the time he got there–suggesting they were in the hospital for just minutes. Also note–this is when Comey had Mueller order Ashcroft’s detail to keep visitors out, which seems to contradict Comey’s testimony slightly.

Wednesday 3/10/04, 2010: Saw AG. Janet Ashcroft in the room. AG in chair, is feeble, barely articulate, clearly stressed.

The timing on this suggests that Comey and Mueller had a half hour to speak before Mueller went into see Ashcroft. That may not all have been a discussion of the program and Card and Gonzales, but it’s curious that this time period is longer than Card and Gonzales were at the hospital. Also note Mueller’s description of Ashcroft: clearly stressed. Suggesting he was pissed about more than just being interrupted in the ICU.

Wednesday 3/10/04, 2020: Departed the hospital.

Mueller didn’t stay long with Ashcroft.

Thursday 3/11/04, 1200: Meeting at Card’s office with him at his request. [6 paragraphs are redacted]

Note the timing of this meeting–1200. In the interim period, Card had demanded that Comey come to his office–he and Olson had gone at “about 11 at night” after the hospital meeting. It appears that Mueller was alone with Card, and that whatever transpired, Mueller had a lot to say about it. The meeting lasted 40 minutes.

Thursday 3/11/04, 1240: Stopped by J. Gonzales’ office after meeting with Card.

Clearly, this wasn’t a substantive discussion–just one sentence description. Which suggests Card was the one really taking the lead on the 11th.

Thursday 3/11/04, 1315: Meeting with Comey, et al., at his office.

No mention of who is included in “et al,” which is particularly interesting since everyone at DOJ was considering resigning en masse. And this meeting would have occurred immediately after Mueller returned to DOJ from the White House–was everyone together all day, or did they pull the meeting together after Mueller returned? Also remember–sometime in this time period, Tom DeLay was briefed on the program.

Thursday 3/11/04, 1450: Telephone call from J. Gonzales.

Friday 3/12/04, 0945: The President called me into the side office off the Oval Office after we had concluded our morning briefing of him. [7 paragraphs redacted]

Curiously, Mueller doesn’t mention (at least in the unredacted section) that Comey met with Bush first. Nor does he suggest the meeting happened at Comey’s insistence, as Comey claims.

Friday 3/12/04, 1045: Met with Comey and others at DOJ.

Comey provides this description of what happened after the meeting with Bush:

After those two sessions, we at his direction to do the right thing, to do what we believed DOJ was necessary to certify as to its legality, we set out to do that.

So this meeting (which may have directly followed the meeting with Bush, given the timing) must have been DOJ’s first stab at “doing the right thing.”

[Update] Friday 3/12/04, 1606: Mueller first saves this file. Hat tip to Austin Cooper on this thread.

“H:\RSM_Docs\Miscellaneous\Program.wpd March 12, 2004 (4:06PM)”

Mueller did not record these thoughts until after the conversation with Bush. Did something about that conversation make Mueller think he had to start CYA-ing?

Friday 3/12/04, 1650: Called Judge Gonzales.

Friday 3/12/04, 1700: Met with Comey and others.

Friday 3/12/04, 1845: Called Judge Gonzales.

Saturday 3/13/04, 0955: Called General Hayden.

Sunday 3/14/04, 1500: Meeting at DOJ with Comey, et al.

Sunday 3/14/04, 1820: Called Comey.

Sunday 3/14/04, 1845: Called Gonzales.

Monday 3/15/04, 0850: Discussed issues with Tenet after morning briefing in Sit Room.

Monday 3/15/04, 0930: Called Comey.

Tuesday 3/16/04, 1345: Call from Judge Gonzales.

Tuesday 3/16/04, 1840: Call from Comey.

Tuesday 3/16/04, 2000: Call at home from Judge Gonzales.

Tuesday 3/16/04, 2030: Comey called.

Wednesday 3/17/04, 1105: Comey called.

All these contacts appear to be the negotiation between (primarily) DOJ and WH on how to “do the right thing.” Hayden and Tenet were contacted just once each, at least by Mueller. Several times, Mueller refers to “Comey et al,” suggesting Mueller has an idea of the key people working with Comey on this–presumably Philbin and Goldsmith. And note that Mueller makes a point of noting the Gonzales call at home. This appears to have taken place just as things got settled–then why the call at home? Why the Comey follow-up?

Altogether it appears that this negotiation period went on for about 5 days. Was the program inactive during that period?

Tuesday 3/23/04, 1200: Meeting with Vice President at his request in his Office.

I love the “at his request” here and in the reference to the Card meeting. That’s probably code for Dick called me into his office to chew me out.

Which is likely what happened, and why this meeting, a week after the program appeared to get settled and two weeks after the hospital confrontation, got recorded as the last entry in Mueller’s log.

Security Clearances Two

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I’m stuck between three gallons of canned tomatoes, a soon-to-be gallon of canned peaches, and a big pot of borscht. Which means I’m too hot to deal with the Padilla verdict yet. So instead I’m going to point out that my reading of Gonzales’ correction from a few weeks ago was correct. Back then I said:

But here’s an interesting detail about the hospital visit:

Ialso recall that, prior to the time I departed, General Ashcroftbriefly mentioned a concern about security clearances for members ofhis staff regarding the NSA activities that were the subject of thepresidential order.

I find this interesting for several reasons. First, it suggests that Ashcroft was complaining that his staffers weren’t givensecurity clearances to be read into this program. Recall that Bushrefused to give some Office of Professional Responsibilitiesinvestigators security clearances, which meant they couldn’tinvestigate the program. We also know that Cheney and Addington wereworking directly with John Yoo, bypassing Ashcroft, to pull off theirshredding of the Constitution. But this detail suggests they were alsoshrouding their program by preventing top DOJ officials from gettingsecurity clearances.

I’m also struck that Gonzales felt like he needed to clarify thispoint. Is this something that Comey–or Ashcroft himself–alreadytestified to the Senate about? And what Read more →

Banana Pudding

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The NYT has a funny article out about the involvement of bigtime Republican lawyer Roderick Hills in directing Chiquita to continue bribing a Colombian right wing militia even after the State Department listed the organization as a terrorist organization. I say funny, most of all, because Neil Lewis bills the competing narratives surrounding Hills’ actions as a "Rashomon-like set of narratives," but Lewis really provides only one of those narratives–Hills’. Because, you know, Rashoman would definitely have been the same movie if Kurosawa had only provided one viewpoint.

The other reason it’s interesting is because it suggests Michael Chertoff may have advocated Chiquita to break the law so Chiquita could provide intelligence on the terrorist organization they were bribing–which looks more like a Chertoff-sponsored suggestion of a way to evade the law on funding terrorists.

So here’s the side of the story Lewis doesn’t provide. The proffer on Chiquita’s action offers the following picture. At the beginning of 2003, Chiquita’s outside counsel told Chiquita–in no uncertain language–to stop paying bribes to the terrorists:

Must stop payments.

Bottom Line: CANNOT MAKE THE PAYMENT

You voluntarily put yourself in this position. Duress defense can wear out through repetition. [Business] decision to stay in harm’s way. Chiquita should leave Columbia.

Pretty clear, right? On April 3, 2003, after Chiquita’s law firm had been warning the company to stop bribing terrorists for at least two months, Hills and a Chiquita executive told the board that Chiquita was making payments to a designated terrorist group. Even though one board member favored withdrawing from Colombia, the board instead decided to disclose to DOJ they had been paying terrorists.

At about the same time, Chiquita’s outside lawyers recorded a conversation with Hills, in which said outside lawyer interpreted, "[Hills’] opinion is just let them sue us, come after us."

And then, on April 24, Hills, that Chiquita executive, and the outside lawyers met with DOJ. They,

stated that defendant CHIQUITA had been making payments to the AUC for years, and represented that the payments had been made under threat of violence. Department of Justice officials told [Hills] and [the Chiquita executive] that defendant CHIQUITA’S payments to the AUC were illegal and could not continue. Department of Justice officials acknowledged that the issue of continued payments was complicated.