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I Don’t Think “Accountability” Means What Obama Thinks It Does

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Obama’s statement on FISA:

I want to take this opportunity to speak directly to those of you who oppose my decision to support the FISA compromise.

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That’s why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any President or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I’ve said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility

The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I’m persuaded that it is necessary to keep the American people safe — particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise. Read more →

Dean and Bush and Pardons

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John Dean’s piece on FISA reads with all the angst of someone who–after a number of people have demonstrated his error–is hoping to persuade Barack Obama to get him out of the hole he created for himself. "Please, Obama," Dean seems to be saying, "hold Bush accountable so I don’t have to admit immunity really is immunity."

One gaping problem with Dean’s argument is the absence of any discussion of statutes of limitation. Even if Obama did what Dean wanted–and announced he would direct his AG to immediately review the warrantless wiretap program–the Republicans in the Senate could just filibuster approval of Obama’s AG until, say, April 26, 2009 (five years and 45 days after the authorization signed by Alberto Gonzales on March 11), and the statute of limitations on the known crimes would expire.

But the proposition I find really ridiculous is Dean’s contention that Bush isn’t going to issue blanket pardons of all the law-breakers in his Administration.

Given the downside, it is not clear whether Bush would issue a pardon in this context.

If it were issued by Bush, however, a blanket pardon to his “national security” miscreants would require acceptance by them of the fact that they had broken the law, and thus an admission of guilt. Were Bush to issue such a remarkable pardon, it would, of course, cement his historical stature as several notches below even that of Richard Nixon, who refused to pardon those who (many “for national security reasons”) engaged in the so-called Watergate abuses of presidential power on his behalf. Not many presidents want to be viewed by history as worse than Nixon. And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch. It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.)

Bush is very politically savvy. He knows that a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election. Most Americans are deeply concerned about Bush/Cheney’s conduct of foreign affairs and national security, which ignores American laws and treaty obligations. Read more →

Confirmed: Final FISA Votes on July 8

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As I understand it, Dodd and Feingold have signed off on a unanimous consent agreement to hold debate on three amendments (one of them immunity) on July 8, and then hold the vote then.

Here’s Feingold’s short statement on the delay.

I’m pleased we were able to delay a vote on FISA until after the July 4th holiday instead of having it jammed through. I hope that over the July 4th holiday, Senators will take a closer look at this deeply flawed legislation and understand how it threatens the civil liberties of the American people. It is possible to defend this country from terrorists while also protecting the rights and freedoms that define our nation.

And here’s Dodd’s statement on it.

I’m pleased that consideration of the FISA Amendments Act has been delayed until after the 4th of July recess. I urge my colleagues to take this time to listen to their constituents and consider the dangerous precedent that would be set by granting retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.

When and if FISA does come back to the Senate floor, I will offer my amendment to strip the retroactive immunity provision out of the bill. I implore my colleagues to support the rule of law and join me in voting against retroactive immunity.

So we’ve got 12 days to convince our Senators to stop channeling the barnacle and protect our Constitution.

Update: Here’s what’s going to happen on the 8th.

This evening Senator Reid filed cloture on H.R. 6304. Under the agreement at a time to be determined on Tuesday, July 8, the Senate will proceed to Calendar #827, H.R. 6304, FISA. The following amendments are the only amendments in order:

Dodd-Feingold-Leahy amendment to strike immunity;

Specter amendment which is relevant; (60-vote threshold); and

Bingaman amendment re: staying court cases against telecom companies (60-vote threshold).

Debate on the amendments is limited to the times listed below with the time equally divided and controlled:

Dodd- 2 hours, with Senator Leahy controlling 10 minutes;

Specter- 2 hours; and

Bingaman- 60 minutes.

Upon the use or yielding back of time, the Senate will proceed to vote on the amendments.

Prior to the cloture vote, there will be up to 60 minutes for debate equally divided and controlled between the Leaders or their designees, with Senator Leahy controlling 10 minutes. Senator Feingold will control an additional 30 minutes and Senator Read more →

Trading our Constitution Away Based on the Word of Alberto Gonzales

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Here’s what Jim Comey had to say about the illegality of the warrantless wiretap program:

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I’m not saying — again, that’s why I kept avoiding using that term. I had not reached a conclusion that it was.

The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK.

Well, now I understand why you didn’t say it was illegal. What I don’t understand is why you now won’t say it was legal.

COMEY: Well, I suppose there’s an argument — as I said, I’m not a presidential scholar — that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.

I disagreed with that conclusion. Our legal analysis was that we couldn’t find an adequate legal basis for aspects of this matter. And for that reason, I couldn’t certify it to its legality.

Comey’s a pretty conservative lawyer. Even still, he obviously struggled seriously to figure out whether, if the President said something that had no basis in law was legal, it was legal, or not.

You might think that’s the kind of challenging legal assessment Attorney General Mukasey is doing, preparing (as he surely is) to deliver the immunity the FISA capitulation will give the telecoms within the next week.

But you’d be wrong. As a reminder, here’s what the immunity language in the FISA capitulation says.

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that

[snip]

(4) the assistance alleged to have been provided by the electronic communication service provider was —

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

Look at the language carefully. It doesn’t say, "Michael Mukasey, a conservative and complicit–but still a once-respectable–lawyer, must review the program and certify that the program was legal." Rather, it says that, for the telecoms to receive their immunity, the Attorney General (Mukasey) only has to certify that at the time the Administration requested the telecoms’ assistance, they were told, in writing, that the program was "(i) authorized by the President, and (ii) determined to be lawful." There’s no "determining to be lawful" going on now. There’s simply the assertion, on a piece of paper, that someone–they don’t even have to say a lawyer did the determining!!!–someone determined the program to be lawful. It could have been Jenna Bush, on a bender, "determining the program to be legal." So long as she could manage to put pen to paper to certify as such–that’s the only standard the FISA capitulation requires!! Me, you, my dog McCaffrey–anyone of us could determine the program to be legal; had we done so, and told the telecoms as much, they go scot free.

And, in fact, it’s almost that bad. We know, after all, that on one of the certifications, someone almost as incompetent as Jenna on a bender (though not quite as competent as my dog McCaffrey) "determined the program to be lawful." Read more →

What Should We Call the Telecoms?

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I’m in a wretched mood because Sears just called and told me, after assuring me last week they could get me a fridge this week, and after they sent me a badly damaged fridge yesterday, and after then promising I’d have a fridge today, then kept me on the phone for an hour and a half to tell me they won’t actually have my replacement fridge to me until Monday and oh by the way would you like a gift card for the trouble of having to unload and reload three different fridges so you can shop at our crappy store some more?

I tell you, always buy local or you’ll end up looking like a chump like me.

So I thought I’d put my crappy mood to some use to try to brainstorm the appropriate moniker for what the telecoms after they receive their Congressional pardon sometime next week. They won’t really be "pardoned felons," because we never got to the point of a jury trial to certify them as felons. I guess "pardoned lawbreakers" might work, but it’s not very catchy.

Once we figure out a catchy name for what you call corporations after the President and Congress decide to put aside separation of powers in order to make sure they avoid any consequences for their law-breaking, I figure we can do some google-bombing and make their legislative win a PR disaster.  

Details on the FISA “Compromise”

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CQ and WSJ are finally giving more details about what Steny and Jello Jay have concocted with their Republican buddies and telecom lobbyists. CQ confirms what we’ve been hearing–that the immunity would basically consist of a District Court reviewing the authorization, with almost no way to rule against the telecoms.

One source said the federal district court deciding on retroactive immunity would review whether there was "substantial evidence" the companies had received assurances from the government that the administration’s program was legal.

And it appears that Steny’s grand bargain consists solely of prospective review of the programs, rather than review as the program is being implemented.

Under the prospective deal, the secret court created by the original law would get to review, in advance, the process by which the administration chooses foreign surveillance targets who may be communicating with people in the United States.

Of course, note the word "process" here–it sounds like FISA still doesn’t get to review the actual choices.

There’s an interesting wrinkle in the WSJ version, though, that I find notable. The telecoms would have to prove that either the AG–or an intelligence agency head–signed off on the wiretap requests.

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed. [my emphasis]

That’s an interesting detail, because up until now, we’ve been told that the Attorney General approved this program, with the sole exception of the period immediately following the hospital confrontation on March 10, 2004. After that confrontation, the SSCI had reported, the White House Counsel (yup–Alberto Gonzales) approved the program for a period of not more than 60 days. Read more →

What Databases Are You Using? We Won’t Tell…

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I’ll be in my Scottie McC daze for one more day yet, but I wanted to point those of you with free time to this Ryan Singel post and the collection of documents he’s reporting on. The EFF just got a slew of documents recording the questions the FISA Court asked of the FBI.

Does the FBI track cellphone users’ physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database? Does the FBI’s wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?

That’s what the nation’s Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau’s counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.

I’m most intrigued (though not at all surprised) by this question.

In October 2005, the court also asked the FBI to explain how it stored "raw" foreign-intelligence wiretap content and information about Americans collected during those wiretaps.

The government is supposed to "minimize" — that is anonymize or destroy — information gathered on Americans who aren’t the targets of a wiretap, unless that information is crucial to an investigation.

The court wanted the FBI to explain what databases stored raw wiretaps (.pdf), how those recordings could be accessed, and by whom, as well as how minimization standards were implemented.

The documents don’t reveal the answer to that question. The FBI did not respond to a request for comment by press time.

The question came, of course, just months before the NYT broke the story on the illegal wiretap program. You think maybe there’s a connection?

The Yoo “Exclusivity” Opinion: More Outrageous Hackery

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After significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."

Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:

Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.

As it happens, DOJ actually appears to be somewhat cognizant of the legal hackery of this Yoo opinion. When he learned DNI had declassified the passage from the opinion, Brian Benczkowski sent a letter to Senators Whitehouse and DiFi, trying to claim that Yoo’s opinion is unremarkable:

The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President’s constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties.

Read more →

Main Core

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I don’t know about the track record of Christopher Ketcham, the author of this Radar piece explaining the "big thing" that that made Jim Comey object to the warrantless wiretapping program so aggressively in March 2004. But it sounds like a plausible explanation.

Ketcham describes a database of Americans who, in case the government ever implements its Continuity of Government program in a time of national emergency, can be rounded up and jailed.

… a number of former government employees and intelligence sources with independent knowledge of domestic surveillance operations claim the program that caused the flap between Comey and the White House was related to a database of Americans who might be considered potential threats in the event of a national emergency. Sources familiar with the program say that the government’s data gathering has been overzealous and probably conducted in violation of federal law and the protection from unreasonable search and seizure guaranteed by the Fourth Amendment.

According to a senior government official who served with high-level security clearances in five administrations, "There exists a database of Americans, who, often for the slightest and most trivial reason, are considered unfriendly, and who, in a time of panic, might be incarcerated. The database can identify and locate perceived ‘enemies of the state’ almost instantaneously." He and other sources tell Radar that the database is sometimes referred to by the code name Main Core. One knowledgeable source claims that 8 million Americans are now listed in Main Core as potentially suspect. In the event of a national emergency, these people could be subject to everything from heightened surveillance and tracking to direct questioning and possibly even detention.

[snip]

Another well-informed source—a former military operative regularly briefed by members of the intelligence community—says this particular program has roots going back at least to the 1980s and was set up with help from the Defense Intelligence Agency. He has been told that the program utilizes software that makes predictive judgments of targets’ behavior and tracks their circle of associations with "social network analysis" and artificial intelligence modeling tools. [my emphasis]

Ketcham goes on to explain that the Bush Administration was cross-referencing Main Core with its warrantless wiretap program. Read more →

The Commission on Warrantless Wiretapping and FISA Compromise

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Apparently, while I’ve been on my Haggis and Beamish pilgrimage, Steny Hoyer has been busy brokering a compromise on FISA.

House Majority Leader Steny H. Hoyer (D-Md.) said Wednesday a FISA deal is “still in flux” but he described the latest developments as “promising” and said he hoped to have a solution soon.

[snip]

Sen. Kit Bond of Missouri, the top Republican on the Intelligence committee and one of the GOP’s top negotiators on the issue, said he met with Hoyer to discuss the issue on Monday, but did not say a breakthrough had been achieved.

“This is still a ping-pong match,” said Rep Jane Harman (D-Calif.), referring to the back and forth on the bill between the two chambers.

Harman said the latest developments signify "positive movement" on the bill and praised the job Hoyer has been doing on the issue.

Hoyer has been the strongest proponent of a compromise in the Democratic leadership and has worked hard to broker a deal on the issue. He often acts as an intermediary between liberal House Democrats unwilling to grant the telecom companies immunity and conservative Senate Republicans and the White House, both of whom will not accept any FISA bill without immunity.

Now, before I say what I’m about to say, let me reiterate that I believe we should not compromise. The telecoms broke the law when they accepted a letter authorizing the spying on Americans signed by the White House Counsel in lieu of the Attorney General in March 2004, and they should be held accountable for breaking the law.

That said, let me make some points about what basis for compromise Steny might be negotiating, and how such a compromise might be an avenue for transparency about the Administration’s (as distinct from just the telecom’s) lawbreaking with the illegal wiretap program.

Remember that Steny is not just the chief broker currently on FISA. He was also the chief broker on the House bill that passed on March 14. And that bill had one provision that seems to have been forgotten in recent discussions of compromise, but was clearly intended, even in March, to serve as the kernel of any future compromises: the call for a commission to investigate the illegal wiretap program.

Read more →