Archive for category: Law

Hey, Scottish Haggis!?!?!? What happened to that letter from the White House you promised us?

According to RawStory, it’s still in the mail. Or maybe it’s not coming after all.

The White House has refused to comply with a Republican senator’srequest for information about Alberto Gonzales’s conflicting testimonyon a secret surveillance program by a 12 p.m. Tuesday deadline.

Sen. Arlen Specter (R-PA), the ranking Republican on the SenateJudiciary Committee, said yesterday that he requested from the Bushadministration a "letter addressing that question [of Gonzales’veracity] from the administration" by noon Tuesday. He promised torelease the letter to the media, but so far the word from JudiciaryCommittee staff is that no letter has arrived.

It is unclear whether the administration is refusing Specter’srequest outright or is simply tardy in delivering its response. Aspokeswoman for Sen. Patrick Leahy, the committee chairman who also isexpected to receive the administration’s response, told RAW STORY early Tuesday afternoon that no letter had arrived yet.

Specter’s office was releasing little information Tuesday.

Your guess is as good as mine what happened to Specter’s love letter. Some possibilities:

• Dick heard about the promised letter and stole all of Bush’s crayons
• With Mike Gerson gone, the White House can’t think of a new fancy acronym–Not-TSP–that they can use to parse wildly some more
• The White House forgot that there was a still-unresolved anthrax attack on the Senate, and so mail takes a while to get to Senators
• The White House has decided to call Scottish Haggis’ bluff–they’re going to blow him off entirely, because they strongly suspect (with good reason) that he’s just not going to do anything to stop them
• The White House is trying to postpone sending the letter–which may well admit to having broken the law–until after Congress passes some changes to FISA

There’s something particularly nice about this timing. First comes the news that Representative Jay Inslee will submit a resolution to start an impeachment investigation against Alberto Gonzales. My favorite part is that the resolution (unlike recent resolutions for censure) calls for an investigation, which would give us enhanced claim on subpoena power and a megaphone to explain Gonzales’ crimes to the American people.

RESOLUTION

Directing the Committee on the Judiciaryto investigate whether Alberto R. Gonzales, Attorney General of theUnited States, should be impeached for high crimes and
misdemeanors.

1 Resolved, That the Committee on the Judiciary shall
2 investigate fully whether sufficient grounds exist for the
3 House of Representatives to impeach Alberto R. Gonzales,
4 Attorney General of the United States, for high crimes
5 and misdemeanors.

And at almost the same time, CBS reports (via TPMM) that Cheney luvs Alberto Gonzales.

Vice President Dick Cheney said Monday that he is a "big fan" of embattled Attorney General Alberto Gonzales.

In a interview with CBS News White House Correspondent Mark Knoller, the vice president also said Gonzales has been truthful in his testimony before Congress.

Senate Judiciary Committee Chairman Pat Leahy, a Democrat, has saidhe doesn’t trust Gonzales, but Cheney said the attorney general has thesupport of the only man who really counts.

"I’ve had my differences with Pat Leahy," Cheney said. "I think thekey is whether or not he (Gonzales) has the confidence of the president— and he clearly does."

Mwaaahhhh!

This is just a quick post to register two disagreements with Glenn Greenwald’s post claiming the NYT’s data-mining story is a shiny object. First, Glenn claims that the stories were floated by "anonymous sources seeking to protect Alberto Gonzales" and "anonymous pro-Bush sources." But then he goes on to point out that the NYT story (unlike the WaPo story) includes a detail–which I pointed out in my post on the story–that doesn’t help Gonzales.

A half-dozen officials and former officials interviewed for thisarticle would speak only on the condition of anonymity, in part becauseunauthorized disclosures about the classified program are already thesubject of a criminal investigation. Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. [Glenn’s emphasis]

In other words, the story relies on six sources, but at least two of those sources are actually pointing out the same thing that the blogosphere is pointing out: the problem was data-mining, plus other issues. At least two of the sources for the story are not "pro-Bush sources … seeking to protect Alberto Gonzales."

Now, I’m not going to bet any money that the NYT, if two of its sources stated, "well, yeah, data-mining was a problem, but the real problem …" would faithfully render that point of emphasis. But at least as reported, these at-least-two sources who are not helping Bush still confirm that data-mining is part of the problem.

Marty Lederman’s post on data-mining says what I’ve been trying to say for two years about the NSA program. Contrary to what the NYT and others suggest, we don’t have to look beyond data-mining to find something so horrible that a good conservative like James Comey would object. We just need to get to the point where the US is using data-mining of dubious connections to replace the idea of probable cause in a surveillance program.

Here’s the theory, roughly:

There wassome sort of data mining program going on. Probably not of content,almost certainly not content reviewed by humans. That is to say, itinvolved computers searching through "meta-data" related to calls ande-mails, looking for certain patterns that might suggest connections toAl Qaeda or to suspicious activitiy that might be terrorism-related. (Ihave my theories as to what the programs might have been looking for,but don’t want to get into such speculation in this forum. And in anycase, my theories are probably way off.)

This data-miningindicated that it might be valuable to do more targeted searches ofparticular communications "pipelines" (John Yoo’s phrase), looking formore specific information. But that’s where FISA came in. In order totarget a particular U.S. person, or to wiretap a particular "facility,"FISA requires that the NSA demonstrate to the FISA court probable causeto believe (i) that the target of the electronic surveillance is aforeign power or an agent of a foreign power, and (ii) that each of thefacilities or places at which the electronic surveillance is directedis being used, or is about to be used, by a foreign power or an agentof a foreign power. 50 U.S.C. 1805(a)(3).

Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious "channels" or "pipelines," "because we would have no specific al Qaeda suspects, and thus no probable cause."  [Lederman’s bold, my italics]

And again, we can be sure that this is one of the things that was going on, because when Bush "confirmed" a program in December 2005–clearly aiming to confirm just that part of the program of undisputed legality–he stressed that the targets for wiretapping were people with clear ties to Al Qaeda. The problem was that the Administration was using data mining (already of dubious legality for reasons I’ll get into a second) as their basis for choosing targets to wiretap. They were therefore tapping people whose communication patterns–rather than their actions–suggested they might have terrorist ties.

Anonymous Liberal has a really important post that shows that–wait for it–Alberto Gonzales is a lying sack of shit. AL shows that, in the same Senate appearance where Gonzales tried to parse the Administration out of trouble for illegally spying on American citizens by claiming the program wasn’t the program, Gonzales also admitted that the program was the program. Orwell would be proud.

But AL also points back to the radio address where President Bush famously confirmed the program that both was and wasn’t the program, and I see that Gonzales’ precarious parsing was built on top of Bush’s own precarious parsing. Bush’s confirmation consists of confirming certain details about certain activities that have occurred since fall 2001.

In the weeks following the terrorist attacks on our nation, I authorizedthe National Security Agency, consistent with U.S. law and theConstitution, to intercept the international communications of people withknown links to al Qaeda and related terrorist organizations.  Before weintercept these communications, the government must have information thatestablishes a clear link to these terrorist networks.

Those details include intercepting international communications of people with known links to Al Qaeda. Bush repeats, before such wiretapping occurs, "the government must have information that establishes a clear link to these terrorist networks."

Bush’s admission here carefully avoids conceding two details that the program has been reported to include: the tapping of of domestic communications, and the tapping of people whose link to any terrorist networks have only been established through legally-suspect data-mining. In other words, Bush is not admitting to the two aspects of the program that most clearly violate FISA: the tapping of domestic communications, and tapping people for whom probable cause has not been established. These, I’m certain, are the same parsing distinctions that Gonzales has in mind when he refers to the program that is/is not the program.

Following this paragraph of distinctions, Bush makes the only reference to "a program" that appears in the whole address.