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Lichtblau and Risen Report Illegal Wiretapping of Americans … Again

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It’s pretty pathetic that, three years after they first broke the story of the Bush’s illegal wiretap program, Eric Lichtblau and James Risen are still reporting on illegal warrantless wiretapping of Americans.

Their story has two main revelations. First, in preparation for Holder’s first semi-annual certification of the FISA program to the FISC, NSA realized it was not complying with the law.

In recent weeks, the eavesdropping agency notified members of the congressional intelligence committees that it has encountered operational and legal problems in complying with the new wiretapping law, according to congressional officials .

Officials would not discuss details of the over-collection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s inability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mails.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority.

Sort of funny how this illegal collection wasn’t discovered six months ago, while Bush was still in charge, huh?

From the sounds of things, though, this was not just a technical violation–it flouted the few protections included in the FISA Amendment Act for civil liberties (which almost certainly means minimization, because there aren’t many other civil liberties protections in FAA). 

Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the N.S.A. had ignored civil liberties safeguards built into last year’s wiretapping law.

In addition to these ongoing violations of Americans’ privacy, the ongoing Inspector General investigation has discovered more troubling incidents when the warrantless wiretapping program was deliberately used under Bush to target–among other people–a Congressman traveling overseas.

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, according to a U.S. intelligence official with direct knowledge of the matter.

Read more →

What the Scope of the IG Report on Warrantless Wiretapping Tells Us

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Remember how when Congress passed the FISA Amendment Act last year, they required that the Inspectors General of the various agencies involved in the warrantless wiretapping produce a report on the program? They did an interim report–basically describing the scope of the report–last September (and produced in unclassified form last November). It took Secrecy News pulling teeth to get this released (six months after the fact), but here is the interim report.

General Scope

I’m going to show you the whole scope-related section, then unpack it line by line.

The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months. In accord with its normal procedures and consistent with classification requirements, the DoJ IG will release its report when completed. The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders. The review will also include a description of NSA’s oversight of the Program. To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.

The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.

The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program. Read more →

FISA: Grill the Executives

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Threat Level has posted an intriguing interview with Russell Tice from 2006. Tice provides a better idea of how some of the sorting might have happened.

Tice: Say you’re pretty sure you’re looking for terrorists, and you’re pretty sure that the percentage of women terrorists as opposed to men is pretty [small]. So you just filter out all female voices. And there’s a way to determine whether the signature of the voice is male or female. So, boom, you get rid of 50 percent of your information just by filtering there. Then from your intelligence work you realize that most terrorists never talk more than two minutes. So any conversation more than two minutes, you immediately filter that out. You start winnowing down what you’re looking for.

Q: Without really knowing what it is you’re looking for?

Tice: Right. And if you can develop a machine to look for the needle in the haystack and what you come out with from having the machine sift through the haystack is a box of straw, where maybe the needle’s in there and maybe a few bonus needles, then that’s a whole lot better than having humans try to sift through a haystack.

Sounds like a pretty easy system for determined terrorists to game.

The main point of the Threat Level post, though, is that 1) this involved more than just telecom (and email) providers. It also included our banks and whatnot, and 2) since former participants in this sytem will always invoke executive privilege (and state secrets) the only way to figure out what happened would be to subpoena the CEOs of the companies to testify.

I spoke with Tice extensively in the spring of 2006. With Bush still in power, the whistleblower was considerably more taciturn than on television last week. But looking back through the transcript of my interviews now, in the context of his new revelations, it seems clear that Tice was saying that credit card companies and banks gave the same kind of cooperation to the government that phone companies did.

"To get at what’s really going on here, the CEOs of these telecom companies, and also of the banking and credit card companies, and any other company where you have big databases, those are the people you have to haul in to Congress and tell them you better tell the truth," he said at the time. "Because anyone Read more →

Glenn Fine Visits HJC

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Live hearing on CSPAN2 and HJC’s stream.

Linda Sanchez is hammering the ways in which appointing Nora Dannehy will actually ensure that this story gets covered up. 

Jeebus, Chris Cannon is still trying to claim there’s no evidence of White House awareness and involvement–even though the IG complained about non-cooperation with the White House. He’s trying to say that the Dannehy investigation will mean that Rove and Miers should not have to testify. I don’t have the patience for this today.

John Conyers sounds … old.

Glenn Fine up. Most serious allegation: that partisan political considerations did play a part in the removal of several USAs. 

"While USAs can be removed, they cannot be removed for an illegal reason."

Fine: Gaps in the investigation: Miers, Rove, and documents the WH refused to turn over. 

Chris Cannon, hitting on Iglesias for not reporting contact from Congress.

Cannon is on thin ice here–the reason Iglesias was removed was because he was incomptent.

Fine: We didn’t find that that was the reason the Department remove him.

Shorter Fine: No, you’re wrong, Congressman. 

Cannon: Couldn’t it be possible that people within DOJ said he was weak-minded.

Fine: But they didn’t. 

Fine: If it were that you had to remain political support, every prosecutorial decision would be suspect. It was unprecedented in the Department’s history to have this group removed. 

Fine: I don’t think it was the case [that these prosecutors were not being effective]. It’s not the Department’s job simply to accept complaints without investigating them. 

Linda Sanchez: Is it fair to say you couldn’t completely investigate the firing. Those witnesses were Karl Rove, Harriet Miers, and Monica Goodling?

Fine: Among others. 

Sanchez: I’m concerned that Nora Dannehy hasn’t been appointed special prosecutor. How can a prosecutor attack the claims of privilege at the same time that the Department is defending the White House in its privilege claims?

Fine: Not necessarily. You’d have to ask the department.

Sanchez: Under special counsel regulations, should appoint one not in DOJ, when DOJ pursuing the matter would present a conflict of interest.

Fine: A close question. 

Ut oh, Darrel Issa.

Issa notes that Rove would have to answer fully if he were pardoned. Sounds like he’s making a case for giving Rove a pre-emptive pardon.

Issa: If all we’re interested in is seeking the non-partisan truth, then a pardon is not a bad thing.

Issa: You’re saying that Lam was not removed bc of Cunningham and Foggo. And they’ve both been convicted, correct?

Um, kind of. Read more →

The USA Purge: DOJ’s IG Punts

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Well over a year after the Department of Justice’s Inspector General started an investigation into the US Attorney firings, they’re set to punt tomorrow. They won’t refer Gonzales–or anyone else–for prosecution, but they will recommend that someone–someone with subpoena power–continue the investigation.

Justice Inspector General Glenn A. Fine and Office of Professional Responsibility director H. Marshall Jarrett, who wrote the report, will not absolve Justice Department officials of blame but will recommend that efforts continue to resolve unanswered questions, said the sources, who spoke on condition of anonymity because the findings have not yet been made public. 

The problem, it seems, is the same problem that prevented Congress from determining the truth behind the US Attorney firings: key participants refused to cooperate.

An intense effort to determine how the firing plan originated and whether perjury or obstruction of justice laws were violated in refusing to reveal the basis for the dismissals has been thwarted, partly because investigators lack the power to compel testimony from people outside of the Justice Department.

[snip]

Investigators did not win access to lawmakers and their assistants or former White House aides despite attempts to interview them.

Yeah, those key participants: Harriet Miers, Turdblossom, Bush, Domenici and his staffers, Heather Wilson and her staffers, etcetera. What a surprise. Mukasey’s refusal to appoint a prosecutor last year–and his ongoing support for the claims of executive privilege and absolute immunity–bought the White House a year in their attempts to stall or quash this investigation.

And, as if you didn’t already guess, Mukasey seems unprepared to appoint a special counsel to investigate this–he seems poised to appoint someone internal, just as he did with the torture tape destruction investigation.

Despite calls from some of the fired U.S. attorneys, Mukasey will not name a special prosecutor from outside the department. Instead, he intends to hand over the project to a career lawyer with experience in public corruption work, the sources said. 

Tune in tomorrow where we see yet more evidence of DOJ’s changing stories about why they fired the US Attorneys.

Bush’s Cover-Up

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Murray Waas argues that George Bush–and the Republican party–will regret Bush’s efforts to claim absolute immunity to prevent Congress from getting testimony and documents pertaining to the US Attorney purge.

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the pub[l]ic part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

[snip]

Even though the President might think otherwise, and he is being advised to stay his course, his best hope in assisting Republican congressional candidates in the fall would be to have Karl Rove and Harriett Miers testify before Congress– and the sooner the better. As for the public welfare, the testimony would help resolve many unknowns about the firings of the U.S. attorneys and other allegations of White House misuse of the Justice Department.

He bases that argument on the following logic:

  • Per Evan Perez of the WSJ, the two remaining DOJ IG reports on politicization will be released before the election.
  • The Civil Rights division IG report–that investigating Shorter Schloz and Hans von Spakovsky–may include criminal referrals.
  • The larger US Attorney purge IG report will show that the Kyle Sampson and Rove lackey Chris Oprision deliberately hid Rove’s role in the firings on at least two occasions.
  • As the Administration continues to stall on Miers and Rove testimony at the same time as these reports come out, it will be increasingly clear to the public that Bush is stalling precisely because he is trying to cover up the real White House involvement in the US Attorney purge.

I’d be happy if all this came to pass–but I’m a little skeptical, based on three things.

First, when asked by the Senate Judiciary Committee when his reports on the Civil Rights and US Attorney purge would be done, Glenn Fine said he didn’t know–he had to follow whereever the evidence led, and therefore couldn’t know how long it would take to finish up the reports. He specifically said he couldn’t guarantee they’d be done before the election. Read more →

No Consequences for the Wholesale Politicization of Justice

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Glenn Fine, DOJ’s Inspector General, showed up before the Senate Judiciary Committee today to talk about the two reports showing pervasive politicization of the Department of Justice.

The big take-away from the hearing–which reinforced what was already evident from the reports–is that those who politicized DOJ have basically gotten away with it: Monica Goodling, Kyle Sampson, Mike Elston, and others will not be held accountable for their actions.

For example, when Chuck Schumer asks Fine about consequences, Fine says the lawyers involved (and not all of them were lawyers) may–possibly–face sanctions from their Bar.

Schumer: On of the most shocking conclusions in your report is that someone like Monica Goodling, who politicized the appointment of Assistant US Attorneys, Immigration Judges, and even Counter-Terrorism positions may not face any consequences for her actions. So let me ask you this, Mr. Fine. Should such blatant politicization and illegal activity be subject to some criminal punishment so there would be some ultimate accountability.

Fine: I’m not sure it’s true to say she escaped any accountability and punishment. As I discussed with Senator Whitehouse earlier, she–people did leave the Department, so they can’t be disciplined by the Department, but we’ve recommended that they never get a job with the Department again and hopefully with the federal government again and that hopefully they consider this report if they ever do reapply. They have been exposed. Their conduct has been exposed in a transparent way for all to see. And then, there may be–I’m not saying there is but there may be appropriate Bar sanctions for–possibly–for attorneys who have committed misconduct and may have violated a Bar rule and so the Bar may look into that.

Sheldon Whitehouse follows up on Schumer’s questions to ask for specifics, looking for some means to hold these guys accountable. Whitehouse seems to be pointing to something bmaz has talked about (update: see this comment)–the difficulty in identifying the Bar rule that such misconduct might have violated.

Whitehouse: Um, with respect to the consequences for the violation of federal law. Can you identify what Bar rules might have been broken. … I did not see OPR making any referrals to the Disciplinary Council as a result, so I’m a little confused about what disciplinary consequences lawyers might face?

Fine: My understanding is, and I’ve had discussions with OPR about this, that OPR intends to, and we will participate in a notification to the Bars of individuals who are found to have committed misconduct, for them to review the conduct. Read more →

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 →

CIA Once Again Buries Information on Abu Zubaydah’s Torture

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I have long pointed out the close connection between the CIA’s OIG report on torture and the tapes of Abu Zubaydah’s interrogation. The key dates are:

January 2003: CIA IG begins investigation into detainee interrogation.

February 10, 2003: Jane Harman writes a letter recording CIA Counsel Scott Muller drawing a connection between the torture tapes and the CIA IG investigation.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry

May 2003: CIA IG reviews the torture tapes at black site.

May 2004: CIA IG completes investigation, finding that CIA interrogation techniques are "cruel and inhumane."

May 2004: CIA and White House discuss destroying the tapes of Abu Zubaydah’s interrogation.

November 9, 2005: Most complete report of IG investigation appears, revealing the "cruel and inhumane" conclusion.

Mid-November 2005: Torture tapes destroyed.

While there are surely other reasons why the CIA destroyed the torture tape, one thing the destruction of the tapes did was to eliminate one key piece of evidence that led the CIA’s own IG to conclude that the CIA’s interrogation methods were cruel and inhumane.

Well, over the course of the DOJ’s IG investigation into interrogation techniques, the CIA once again prevented investigators from accessing information–this time in the form of an interview of Abu Zubaydah–that would contribute to a conclusion that interrogation treatment was cruel and inhumane. In a footnote, DOJ’s IG report reveals that it interviewed High-Value Detainees at Gitmo, but that CIA refused to let DOJ’s IG to interview Abu Zubaydah.

When the OIG investigative team was preparing for its trip to GTMO in early 2007, we asked the DOD for permission to interview several detainees, including Zubaydah. The DOD agreed, stating that our interviews would not interfere with their attempts to obtain any intelligence from the detainees, including Zubaydah. However, the CIA Acting General Counsel [John Rizzo] objected to our interviewing Zubaydah. [three lines redacted]

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DOD and Torture Declassification Timing

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I think I’ll be doing a series of posts on the DOJ IG report on torture. In this post, I will look at some of the timing surrounding torture declassification.

The very first footnote in the 300-odd page report sticks a shiv into DOD for its stalling on this report:

The OIG has redacted (blacked out) from the public version of this report information that the FBI, the Central Intelligence Agency (CIA) or the Department of Defense (DOD) considered classified. We have provided full versions of the classified reports to the Department of Justice, the CIA, the DOD, and Congressional committees. The effort to identify classified information in this report has been a significant factor delaying release of the report. To obtain the agencies’ classification comments, we provided a draft report to the FBI, the CIA, and the DOD for classification review on October 25, 2007. The FBI and the CIA provided timely responses. The DOD’s response was not timely. Eventually, the DOD provided initial classification comments to us on March 28, 2008. However, we believed those classification marking were over-inclusive. After several additional weeks of discussion with the DOD about these issues the DOD provided revised classification comments. The DOD’s delay in providing comments, and its over-inclusive initial comments, delayed release of this report.

This is not the first we’ve heard of DOD’s stalling. In an April interview with McClatchy, Fine complained about it.

Marisa Taylor reports that DOD is stalling the release of a DOJ IG report on the FBI’s role in torture.

The release of a report on the FBI’s role in the interrogations of prisoners in Afghanistan, Guantanamo Bay and Iraq has been delayed for months because the Pentagon is reviewing how much of it should remain classified, according to the Justice Department’s watchdog.

Glenn Fine, the Justice Department’s inspector general, told McClatchy that his office has pressed the Defense Department to finish its review, but officials there haven’t completed the process "in a timely fashion."

"Why that happened, I don’t know," Fine said in an interview this week.

Tell me, Marisa Taylor, did Fine have a smirk on his face when he said that? I couldn’t imagine why DOD would be stalling the release of this report!

Read more →