FBI's Illegal Searches

From The Washington Post:

FBI broke law for years in phone record searches
By John Solomon and Carrie Johnson
Special to The Washington Post
Tuesday, January 19, 2010

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

A Justice Department inspector general's report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

The records seen by The Post do not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.

FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

"We should have stopped those requests from being made that way," she said. The after-the-fact approvals were a "good-hearted but not well-thought-out" solution to put phone carriers at ease, she said. In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process. "What this turned out to be was a self-inflicted wound," she said.

Yeah, right. Feel free to read the rest. This doesn't seem like some small 'technical' transgression. It's more fundamental. It sure seems like the FBI abused their position, just as they did shortly after 9/11 with the massive overuse of national security letters. Surveillance should require warrants, and they should be issued for legitimate reasons versus as fishing expeditions. Let's suppose that most FBI agents love their country and want to keep it safe. However, there have always been cops, feds and politicians who just aren't that keen on the whole civil rights thing, or even the democracy thing. Surveillance powers are always abused - at least without rigorous oversight. Moreover, casting an extremely wide net can run personnel ragged chasing down false leads. I'm hoping more comes out on this, because the details are important, and to date this has been both a dangerous and entirely predictable trend.

Petition the House on Telecom Amnesty

I don't know about anyone else, but the Senate vote to grant telecoms immunity today is the most depressing vote I've seen since the Military Commissions Act of 2006 stripping habeas corpus, and before that, the Authorization for Use of Military Force against Iraq in 2002. Not that any of them were terribly surprising, and it's probably a good thing to still have the capacity to feel disgusted, but none of that changes how repulsive such an immoral, unnecessary and unconstitutional act this was.

Wouldn't it be nice to know who Cheney was spying on?

Glenn Greenwald has his characteristic comprehensive rundown, and I'm sure will continue to follow this. Two key quotations:

Isn't that the very definition of a police state: that companies should do whatever the government asks, even if they know it's illegal?

— Dan Froomkin

While one can't discount legalized bribery campaign dollars entirely, I do think too often we assume they're the reason lawmakers do the "wrong thing" when the simpler explanation that they believe the wrong thing is in fact the right thing is the answer.

Too many Democrats simply don't have the values we imagine they do, and it lets them off the hook too much to assume they're simply craven people who need to get re-elected instead of bad people who don't share our values.

— Atrios

They're not all gutless. Some are just scoundrels.

That's why it's all the more essential to Petition the House to Stand Firm Behind the RESTORE Act, the House's far superior version of the same bill.

The authoritarians conjure spectres of evil terrorists, but the real horror is Cheney's wet dream: an unaccountable, Orwellian police state of proven malice.

(Cross-posted at The Blue Herald)

Civil Rights Watch 2/3/08

There are two videos you really should see if you've missed them.

The brief video below is Senator Russ Feingold (D-WI) explaining the real life ramifications of the surveillance policies the Bush administration and their allies want:



This comes courtesy of Glenn Greenwald, who has more here, and who often writes on these issues.

The second video is pretty disturbing, of a woman being strip-searched after a call to the police for help:



See The Raw Story for more (via Crooks and Liars and The Existentialist Cowboy).

Sadly, this isn't "unbelievable," although it is disturbing. There are good cops out there, but among cops and similarly-empowered people, they have always been plenty of bullies and thugs, too. This is about bullying and an abuse of power to put a woman who challenged a cop over a trivial matter in her place. Her husband relates that his wife said she felt raped without penetration. Rape is its own horrible crime, but the dynamics here are strikingly similar. Rape isn't about sex, it's about power, and here, it's not about due process or any reasonable suspicion, it's about power. The cops violated their own protocols, knowingly, since male cops shouldn't be stripping a woman. That's not to mention leaving her naked in a cell for six hours, denying her medical treatment or a phone call.

Hope Steffey deserved far better treatment, and deserves praise for the courage to get this story out. One account says there's still more video, too. There needs to be a full investigation, but let's be honest, it's not as if the conduct shown on the video is remotely excusable. I have very little doubt that the sheriff is lying through his teeth, and I hope this lawsuit leads to a loss of job, assets and reputation. These are cops, and of course they know better. Hope Steffey was reported as the victim in the call. The treatment she received was abusive and unconscionable.

We've covered these general issues many times before. (Here's the BH categories for FISA, civil rights and human rights, and the VS categories for surveillance , civil rights and human rights.)

Recent history alone provides ample examples of an important truth: surveillance power will always be abused eventually. The power to detain and imprison at will shall always be abused eventually. Unchecked power is always abused eventually. And even supposedly "checked" power can be, and is, abused.

Warrantless surveillance and police misconduct do have different aspects, but they share a common thread. It's a thread found in illegally holding onto surveillance records, eliminating habeas corpus, torturing people, and many other civil and human rights violations. It's a thread also found in retribution against whistleblowers and truth-tellers, and other vicious politics and vengeful management. It's a common thread of authoritarianism, where justice is not pursued according to due process and the rule of law, and where what's right and wrong is not decided by more objective standards of morality, but by who's in power. Torture is always wrong, even if Bush says differently. It's not wrong when perpetrated by the "bad guys" and right when perpetrated by the "good guys." In fact, torturing someone pretty much proves you're no longer one of the "good guys." The same is true of any misconduct or abuse or power.

I don't want to distract from FISA issues or the horrible treatment of Hope Steffey, which both deserve continued attention, but it's also important to see how they fit into the larger picture. They stem from the same general mentality, one that is both extremely dangerous and far too prevalent. People in power often get indignant that their virtue and judgment are questioned, regardless of the mountain of evidence proving its necessity (not to mention common sense). "Trust us," is never a sufficient explanation, and bullying bluster alone is reason not to trust someone in power. People in power must always be challenged. Bullies must always be challenged. The burden of proof lies with the people in the first group to show that they're not also part of the second group, not with the public, when these question arise. The founding fathers certainly felt the same way, as evident in our Constitution, most of all in the Bill of Rights. There's a good reason Thomas Jefferson said, "If I had to choose between government without newspapers, and newspapers without government, I wouldn't hesitate to choose the latter."

(Cross-posted at The Blue Herald)

MLK Day 2008

Civil rights are probably under greater assault now than they're been in a few decades. Glenn Greenwald reminds us the FISA fight isn't done. Director of National Intelligence Mike McConnell aims to create an Orwellian surveillance state, citing imaginary boogeymen and phantom evidence (The New Yorker article is not yet online, but will be eventually here). Eliminating habeas corpus and employing torture should never have occurred, but the scoundrels who perpetrated it are still in power, and their damage must be fixed. The basic concept of the rule of law and a sound justice system have been systematically attacked. Finally, a key Supreme Court case involving an Indiana Voter ID law is being decided — and I fear good law, common sense and basic decency will not prevail.

In previous years for MLK Day, I've posted the text of the famous "I Have a Dream" speech, and links to video of it. That speech never ceases to give me a chill, and is hard to top, so go here if you'd like to feel that inspiration again. It's a good reminder of what can, has and must be done.

This year, you might also want to check out Denzel Washington's new film, The Great Debaters. It's a little Hollywood, but it's very good within that and hard not to like, with strong performances by Washington and Forest Whitaker (no surprise), as well as very impressive turns by a group of young actors (that's not to mention several other superb supporting actors). With some frustratingly hackish blather on race recently on the national stage, The Great Debaters is also a good reminder of the reality of not-so distant history. It also embodies that idea that regardless of one's background, one of the best ways to stick it to the Man and effect positive change is to learn more about the world, to develop critical thinking skills, and to speak out! (I'll link some of Washington's excellent interviews at a later date as part of my annual film roundup).

To close, here's a poem by Afaa Michael Weaver I discovered last year. I think the last few lines are pretty extraordinary.

The Picnic, An Homage to Civil Rights

We spread torn quilts and blankets,
mashing the grass under us until it was hard,
piled the baskets of steamed crabs
by the trees in columns that hid the trunk,
put our coolers of soda pop
on the edges to mark the encampment,
like gypsies settling in for revelry
in a forest in Romania or pioneers
blazing through the land of the Sioux,
the Apache, and the Arapaho, looking guardedly
over our perimeters for poachers
or the curious noses of fat women
ambling past on the backs of their shoes.
The sun crashed through the trees,
rumbling down and splattering in shadows
on the baseball diamond like mashed bananas.
We hunted for wild animals in the clumps
of forests, fried hot dogs until the odor
turned solid in our nostrils like wood.
We were in the park.

One uncle talked incessantly, because he knew
the universe; another was the griot
who stomped his foot in syncopation
to call the details from the base of his mind;
another was a cynic who doubted everything,
toasting everyone around with gin.
The patriarchal council mumbled on,
while the women took the evening to tune
their hearts to the slow air and buzzing flies,
to hold their hands out so angels could stand
in their palms and give dispensation,
as we played a rough game of softball
in the diamond with borrowed gloves,
singing Chuck Berry and Chubby Checker,
diving in long lines into the public pool,
throwing empty peanut shells to the lion,
buying cotton candy in the aviary
of the old mansion, laughing at monkeys,
running open-mouthed and full in the heat
until our smell was pungent and natural,
while the sun made our fathers and uncles
fall down in naps on their wives' laps, and
we frolicked like wealthy children on an English estate,
as reluctant laws and bloodied heads
tacked God's theses on wooden doors,
guaranteed the canopy of the firmament above us.

— Afaa Michael Weaver

(Cross-posted at The Blue Herald)

That's Okay, I Wasn't Using My Civil Rights, Anyway

Unsurprisingly, Dan Froomkin has a splendid round-up of editorials, articles and blog posts on the recent, horrendous FISA bill. (Click any of the cartoons for a larger view. All the cartoons were linked by Froomkin, except the last one, which I've meaning to use for a while now.)

Crooks and Liars has video of Glenn Greenwald and Marjorie Cohn discussing these issues here with Amy Goodman on Democracy Now! The full show is here.

It's also no surprise Greenwald has been blogging up a storm on this matter. Here's "Democrats' responsibility for Bush radicalism," "Chris Dodd on FISA, habeas corpus and Democratic capitulation," "The strong and tough Democrats," and "Attention Democrats: GOP fear-mongering does not work."


Balkinization also has a series of excellent posts on these issues. On the FISA bill, they start around Saturday, August 5th, but there are related posts further back in July. (I'm sure the other major legally-oriented blogs have good entries as well.)


As long as we're discussing police states and Orwellian subjects, Froomkin's post also links a good piece by the ever-insightful Dahlia Lithwick on torture and Jane Mayer's New Yorker feature, "The Black Sites: A rare look inside the C.I.A.’s secret interrogation program," a harrowing piece that's getting increased attention, and deservedly so.


(The cartoons are by Telnaes, Babin, Oliphant and O'Farrell, respectively.)

(Cross-posted at The Blue Herald)

Comey's Testimony

(Cross-posted at The Blue Herald)



(Via Politics TV.) I had thought this story about the White House pressuring a sick man to approve their domestic spying program was bad enough when reading about it. That's not to mention the "You mean even Ashcroft wouldn't sign off on this?" angle. However, listening to NPR last night and hearing Comey's voice, I started getting furious. Here's the video.

Glenn Greenwald has two good pieces on this, "Gonzales' yearlong effort to block Comey's testimony" (5/15/07) and "Comey's testimony raises new and vital questions about the NSA scandal" (5/16/07). Hilzoy has a good examination of some of the key testimony in "When Christ Told Us To Visit The Sick In Their Sickrooms, This Is Not What He Meant."

I think at this point we can dispense with the ridiculous fiction that the Bush administration somehow didn't know what it was doing or possesses any innocence whatsoever. They knew what they were doing was illegal, they knew going through the proper process would stymie them, so they used every trick they could and abused their power to try to get what they wanted. They've blocked investigations, prevented oversight and lied to Congress and the American people to try to get away with this. It's a familiar pattern. Still, the conduct described in this testimony isn't just illegal, it's inhuman. The Bushies aren't just bad public officials, they're bad people. We still haven't obtained the full details of the abuses leading to war (we have the broad strokes), but there's ample evidence that the Bush administration are indeed worse than the Nixon crew and they've committed high crimes and misdemeanors. Democrats have an obligation not only to manage the country in this moral and managerial vacuum, they have a prosecutorial duty to continue to dig, and build an iron-clad case for impeachment. If nothing else, using the government to achieve something positive and just would make a nice change of pace, don't you think?

Update: No surprise, Dan Froomkin's column today, "High Drama — and High Crimes?" is also superb.

Big Brother and You

(Cross-posted at The Blue Herald)

Sir Percy Browne (Head of Security): One day, Mr. Fiennes, you will have the entire British population under permanent 24 hour surveillance — will you be happy?

Mr. Fiennes: Happy? No — Satisfied.

— A Very British Coup (TV adaptation)

The British Evening Standard reports:

The Big Brother nightmare of George Orwell's 1984 has become a reality - in the shadow of the author's former London home.

It may have taken a little longer than he predicted, but Orwell's vision of a society where cameras and computers spy on every person's movements is now here.

According to the latest studies, Britain has a staggering 4.2million CCTV cameras - one for every 14 people in the country - and 20 per cent of cameras globally. It has been calculated that each person is caught on camera an average of 300 times daily.

[...]

One fear is a nationwide standard for CCTV cameras which would make it possible for all information gathered by individual cameras to be shared - and accessed by anyone with the means to do so.

(Hat tip to Drew for the article.)

The short article doesn't fully discuss the major difference between CCTV systems installed by shop owners, which are much more defensible, and CCTV installed by the government, which are much less so. Security and discouraging shoplifting is one thing. Acquiring information mostly just for the sake of it is another. There is a potentially chilling effect, and there have always been authoritarian government officials in every government eager to pursue precisely that. Britain may exceed the U.S. in its use of CCTV and other surveillance cameras, but the U.S. Government's budget for surveillance is second to none, and the impulse is all too familiar.

Here in the United States, we've recently had confirmed that the FBI abused the use of National Security Letters, and that abuse was widespread. The only surprise is that anyone was surprised. It's hardly been the only instance of such behavior. In the past two years alone, both the Pentagon and the FBI were found to be holding onto records they were legally obligated to destroy. Once agencies have information, they are loathe to give it up, and rarely do so voluntarily.

Sadly, regardless of the country involved, there's always been a significant portion of law enforcement personnel that don't care about the law regarding civil rights (in countries that have civil rights). The reasons vary, none of them mutually exclusive. Some of these people might mean well but simply don't value civil liberties and privacy rights as much as national security and law enforcement. They think they're going after bad guys, and any means necessary are valid. Thus, we have former NSA head and current CIA head Michael Hayden arguing that the 4th Amendment doesn't require warrants for searches and surveillance, when of course he knows better. Some want all the data they can get, and lying about "expediency" and "urgent need" with a national security letter is a means to that end. Some like the rush of power. J. Edgar Hoover abused his power to blackmail politicians. Then there's the Bush administration's secret black ops prisons and NSA programs. Ostensibly these tools are used to "fight terrorists," who knows the full extent of what they've been up to, and how they've abused their power? The central lie is that if we just give up this one more freedom or level of privacy, then we'll be safe. Certainly the Bush administration has repeatedly demonstrated they cannot be taken at their word and cannot be trusted to do the right thing by conscience or even the law alone.

Entire books and blogs are devoted to this sort of thing, but the Blue Herald FBI category features a number of relevant stories, as does the Vagabond Scholar surveillance category, especially the posts "The Iceberg Cometh" and "Reporters' Phones Tapped?" because they link several related stories. Then there's stories in the vein of FBI agent James Wedick, who tried to halt what he viewed as serious misconduct and misjudgment by his colleagues in pursuit of a suspected terrorist.

For that matter, consider the story of the FBI trying to get the papers of reporter Jack Anderson shortly after he died, worthy of a feature article on its own. As covered by NPR, CBS, and The Washington Post, the FBI had no qualms about deceiving Anderson's 79-old widow in pursuit of information it wanted. The FBI wanted to track down leakers from a decades-old incident, and swooped in after Anderson died, because where he had denied them they thought they could snow his family and friends. There was no pressing "national security" issue. The crime at that point was that some FBI bigwigs had been embarrassed long ago. That's holding grudges for a long time. The Bush administration has sought unprecedented levels of secrecy over even trivial matters. The Office of the Vice President has engaged in fierce battles not to share information even within the Bush administration. Secrecy can be its own aim, to cover up wrongdoing and in a shocking number of cases, to prevent embarrassment. But as Sissela Bok has shown in Secrets and Lying, "lies for the public good" are almost always rationalizations by those in power to protect themselves, and not in the public interest.

It's hard out there for an honest cop, and it can be an extremely tough gig. However, those who "protect and serve" would do well to remember that they "serve" the public, not the other way around, and every abuse against civil rights and privacy laws is an assault on the public. If those in positions of power want our trust, they must act in a trustworthy fashion. No one forced the FBI agents to act as they did with national security letters, and they violated the law and their own consciences. What is the point of fighting for "freedom" abroad or domestically if we're willing to strip it away ourselves?

The saying that power corrupts and absolute power corrupts absolutely is true. Oversight is an necessity. Unchecked power will always be abused eventually, as Orwell knew all too well. The phrase from Juvenal goes: Sed quis custodiet ipsos custodes? Who watches the watchmen?

Beware the Ides of March!

(Cross-posted at The Blue Herald)

Caesar: Antonius!
Antony: Caesar.
Caesar: Let me have men about me that are fat;
Sleek-headed men and such as sleep o' nights.
Yond Cassius has a lean and hungry look;
He thinks too much: such men are dangerous.
Antony: Fear him not, Caesar, he's not dangerous;
He is a noble Roman, and well given.
Caesar: Would he were fatter!
— Julius Caesar, 1.2, 190-198, William Shakespeare

Bush’s men are both fat and still hungry. As corrupt as these men and women get, they are never satiated. But they’ve been choking these past few weeks. Our boy-emperor need not fear plots with daggers — but subpoenas are another matter.

Libby has been found guilty. The FBI’s abuse of the Patriot Act and their lies about their activities have been revealed. Alberto Gonzales has been laid bare as the fraud and liar he is. George W. Bush and Dick Cheney are testing the limits of how low an approval rating can go. And Karl Rove, who is still accusing the Democrats of playing dirty politics, is watching more and more of his dirty tricks being exposed.

The more we learn about the Bush administration, the worse they look. And hallelujah, Congress is scrutinizing them, and the general public is seeing more of the truth.

A year ago, this U.S. attorney scandal, a mere fraction of the wrongdoing perpetrated by this administration, would have been furious fodder for liberal blogs, but little probably would have been done. This time, the liberal blogs were right as usual — and the mainstream media actually listened. Is this a dream? Not that all the coverage is fantastic, but isn’t this widespread furor over obvious misdeeds, incompetence and villainy exactly what’s supposed to happen? Not that everything is going well, but isn’t this cause for hope?

Did the divine inspiration and brilliant instincts of George W. Bush warn him of this? Has Dick Cheney’s unerring judgment fled to an undisclosed location? Did Karl Rove see this in the entrails of a crony, or have his powers of prognostication left him?

In Shakespeare’s Julius Caesar, Marc Antony says:

The evil that men do lives after them;
The good is oft interrèd with their bones.

The truth always comes out eventually. But there’s now real hope that some of the evil can be dug out while the culprits are still alive, or even while they’re still in office. Every lie exposed and misdeed challenged is a small victory. And the permanent discrediting of these knaves and scoundrels is a matter of national security. There is providence in the fall of an attorney general. (Or something like that.)

Happy Ides of March!

Specter May Enforce the Law

(Really, it's a sad post title, isn't it? Such are the times we live in... )

In a recent post I wrote about a chilling, infuriating move by GOP lawmakers to obstruct judicial review of the illegal NSA eavesdropping program. However, with a new bill co-sponsored with Senator Diane Feinstein (D-CA), it appears Arlen Specter (R-PA) may have regained his soul after all by enforcing existing FISA law. This is extremely heartening. As with the previous post, I’m drawing on the invaluable work of Glenn Greenwald, who reports this latest development here. As Greenwald notes in his updates, Specter characteristically equivocates in his statements about the bill, which really merely reinforces existing law. The real test for Specter (as for many a politician) is always his actions.

While this new bill is merely common sense, and enforcing a sensible and successful law should never be a radical move, Specter deserves immense credit if he does the right thing and fights for its passage. This should not be a partisan issue. It’s possible that even if the bill becomes law, Bush will continues to break it, thus forcing the Constitutional showdown he’s been working to avoid (the showdown may come sooner than that anyway, with other challenges in the works). It's important in such a showdown that Congress chooses the right side: The Constitution over any political party.

The Hiding of Illegal Actions

Glenn Greenwald has produced two more splendid, definitive columns. Unquestionably one of the best writers in any medium on the illegal NSA wiretaps, Greenwald points out that the Bush administration always knew the program was illegal in "Gen. Hayden admits the Administration knew it was violating FISA." And, if you missed it, this weekend Attorney General Alberto Gonzales stated that the Bush administration can and may prosecute journalists for publishing leaked, classified information that makes it look bad. Crooks and Liars has the video here. In "Imprisoning Journalists," Greenwald observes that even Nixon didn't go this far, and persuasively argues that the illegality and the efforts to cover it up are of course related. However, the main thrust of his post is a passionate defense of Freedom of the Press. The only sad thing is that it's at all necessary to write in the first place.

(In a third post, Greenwald also has a nice account of National Review editor Rich Lowry's latest hypocrisy.)

When hostility toward the rule of law, the separation of powers, and the Constitution are accepted as mainstream ideas, we're in deep trouble. When essential civil liberties are viewed as an inconvenience and basic honesty is seen as a nuisance by the key players in the White House – and no one with the power to do so challenges them - we're in grave danger.

The consistent line of the Bush administration has been: "The incompetence and illegality of our actions is not the problem. It's the damn media reporting it." Greenwald cites a Thomas Jefferson quotation that's been much used on the blogosphere of late:

"If I had to choose between government without newspapers, and newspapers without government, I wouldn't hesitate to choose the latter."

Republicans Move to Obstruct Judicial Review of NSA Program

Glenn Greenwald links to an article from The Hill that reports:

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency’s (NSA) surveillance program, GOP sources say.

Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.

Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.

Glenn's post on this is one of the most chilling, dismaying things I've read in a long time. As bad as the systematic attack on civil liberties by the Bush administration has been, I had wanted to believe that when push came to shove, Congress would stand up for the Constitution. One absolutely infuriating paragraph reports:

Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense.

BULLSHIT. The change does not help quell "concerns about the measure's constitutionality." It avoids them. This is unconscionable. If this move succeeds, it will cause lasting, serious harm to the Constitution and our country. How the hell can anyone who serves in Congress believe for a second that this move is either moral or responsible? This move is so transparently vile civility cannot stand. As The Hill reports:

An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.

The Hill article goes on to quote this expert, "Mary Cheh, a law professor at George Washington University who specializes in constitutional law" at some length over the serious problems this move creates.

As Glenn Greenwald points out yet again:

Could anything be more obvious at this point than the fact that the Bush administration deeply fears having the legality of its eavesdropping activities adjudicated by a federal court? They have engaged in one maneuver after the next to prevent that adjudication.

One would think that if they really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.

Specter has sold out the American people and apparently his own conscience. Despite all his talk of oversight, of scrutinizing the NSA program, or grilling Bush's nominee to head the CIA, General Michael Hayden, when the time for meaningful action comes, Specter backs down. This is the man who refused to put Attorney General Alberto Gonzales under oath even after Gonzales had clearly lied to Congress. If Jack Cafferty's right that Specter "might be all that stands between us and a full blown dictatorship in this country," we are in deep trouble.

No reasonable person objects to hunting down terrorists. And there may be some far right politicians who truly believe the currently illegal NSA programs should be legal. This move has nothing to do with that, however, because it seeks to avoid having that discussion in the courts. This move is about avoiding accountability and protecting political power, nothing more. The politicians pushing for this are trying to avoid a greater scandal, greater public backlash, and personal embarrassment. Ironically, in their attempt not to look bad, they're revealed themselves as utterly craven. They're conducting a fundamental assault on American democracy for short-term political gain. The danger of this cannot be overestimated and no rhetoric opposing it can be too alarmist. The center cannot hold. It has been ransacked by the right.

The Hill article reports that more than 20 cases are "in the pipeline" that could challenge the NSA program, although if this GOP legislation passes, those cases will face an uphill battle. Let's hope Specter and other key Republicans rediscover their souls before then. In the meantime, it's time for some progressive activism.

Reporters' Phones Tapped?

I doubt there's any major reporter that didn't wonder about his or her phone being tapped when news broke of the NSA call-tracking program. Today, there's evidence that even if reporter's phones are not being tapped, their phone records are being scrutinized. Joshua Micah Marshall at Talking Points Memo links a story posted by ABC's Chief Investigative Correspondent Brian Ross:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

How worried should they be? Well:

Other sources have told us that phone calls and contacts by reporters for ABC News, along with The New York Times and The Washington Post, are being examined as part of a widespread CIA leak investigation.

Does this impulse originate from the CIA or the White House, and are they in accord? Because Porter Goss, a partisan Bush political appointee, has until very recently been running the CIA, it's highly unlikely this activity would proceed without Bush's implicit approval and may be the result of an explicit order from his administration.

Ross reports ABC is under scrutiny because of their reporting on CIA secret prisons and the CIA use of predator missiles in Pakistan. At The New York Times, the targets would undoubtedly include James Risen and Eric Lichtblau for their Pulitzer-winning work revealing another illegal NSA program of domestic surveillance. At The Washington Post, one of the targets would have to be Dana Priest, who also just won a Pulitzer, for her excellent reporting about CIA black op prisons located in foreign countries and the practice of "extraordinary rendition."

In Dana Priest's weekly online chat on 5/11/06, one interchange made the rounds in the blogosphere:

Rockville, Md.: Isn't it possible that the massive database of phone records could also be used to expose whistleblowers, reporters onto stories damaging to the Bush administration, and/or political opponents of the current administration?

Dana Priest: hmmm. sure hope we can answer that for you, and for me, by the end of the day.

Two other interchanges received less play on the web but are also essential:

Anonymous: Dana - How does the NSA data "drift net" that was exposed today differ from the Total Information Awareness (TIA) program led by Poindexter that was supposedly disbanded? Did the Pentagon just continue the program under a different name?

Dana Priest: That's a possibility. We don't know yet.
_________________
Washington, D.C.: In response to anonymous and TIA, this from Feb 2006--The National Journal reports that the Pentagon transferred two of the most important TIA components of TIA to Advanced Research and Development Activity (ARDA), located at NSA headquarters in Fort Meade, Md. One piece was the Information Awareness Prototype System. It helped extract, analyze and disseminate data collected under the project. Once the Senate cut off funding, ARDA stepped forward to fund the program and it was given a new name "Basketball." All references to TIA were dropped

Dana Priest: thank you. passing on...

The National Journal article can be read here. William Arkin has previously reported on his Washington Post blog Early Warning similar news. When the Pentagon was criticized for performing surveillance on Quakers, vegetarians, lesbians and peace groups (NBC's account here and Arkin's account here), and illegally retained records they were required to destroy, essentially they merely moved the program to escape further scrutiny.

So are Dana Priest's phone records being scrutinized, along with other recent Pulitzer winners at The Times? Considering the track record and mentality of the Bush administration, I'd frankly be shocked if they hadn't at least inquired about such an action. If they already possessed the records, provided by the NSA call-tracking program, and they wanted to track down the government officials who leaked information that made them look bad, what would restrain them? Unless there was serious internal dissent, I can't imagine them holding back… After all, in the Plame affair, Bush has not launched his own investigation, fired people, acknowledged a problem and pledged to do things differently (in fact, he authorized Libby to leak classified information while publicly decrying leaking!). Similarly, with their secret torture policy, the Bush administration faced serious opposition in private from career officials of integrity such as Alberto J. Mora but merely did an end-run around them. The same pattern has played out again and again: we can do anything we want to do, we will not be forthcoming, and we will only reveal information or act in an honorable fashion when outmaneuvered and forced to do so.

The exact extent of any activity against reporters is of course unclear, but the Bush administration doesn't need much information to work with, and who the hell trusts these guys? As Ross reports:

Under Bush Administration guidelines, it is not considered illegal for the government to keep track of numbers dialed by phone customers.

The official who warned ABC News said there was no indication our phones were being tapped so the content of the conversation could be recorded.

A pattern of phone calls from a reporter, however, could provide valuable clues for leak investigators.

Who watches the watchmen? And who are the watchmen? On Friday, 5/14/06, The New York Times' Scott Shane and Eric Lichtblau reported that after 9/11 Vice President Dick Cheney and key aide David Addington pushed the NSA to conduct warrantless wiretaps, according to "two senior intelligence officials":

If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said.

He added: "That's not what the N.S.A. lawyers think."

The other official said there was "a very healthy debate" over the issue. The vice president's staff was "pushing and pushing, and it was up to the N.S.A. lawyers to draw a line and say absolutely not."

Healthy debate? Riiiiight. When in the history of the Office of the Vice Presidency has Dick Cheney and his staff ever backed off? From the Iraq war, to torture policy, to energy policy, to taxes, to transparency, to unilateral executive power, the occasions Cheney has not gotten his way are few, if any exist. The fact that a program he wanted currently exists suggests that the usual pattern of Cheney prevailing continued.

As to these latest revelations about reporters under scrutiny, Josh Marshall cogently observes:

I think part of the issue for many people on the administration's various forms of surveillance is not just that some of [their] activities seem to be illegal or unconstitutional on their face. I think many people are probably willing to be open-minded, for better or worse, on pushing the constitutional envelope. But given the people in charge of the executive branch today, you just can't have any confidence that these tools will be restricted to targeting terrorists. Start grabbing up phone records to data-mine for terrorists and then the tools are just too tempting for your leak investigations. Once you do that, why not just keep an eye on your critics too? After all, they're the ones most likely to get the leaks, right? So, same difference. The folks around the president don't recognize any real distinctions among those they consider enemies. So we'd be foolish to think they wouldn't bring these tools to bear on all of them. Once you set aside the law as your guide for action and view the president's will as a source of legitimacy in itself, then everything becomes possible and justifiable.

Power without checks and balances, without oversight, almost always leads to abuse. As with most issues with the Bush administration, this really comes down to, do you trust these guys? If Bush's current job approval ratings are any indication, over 70% of the country says no (Bush's personal ratings have plummeted as well). Given that this administration has never restrained its own power through governmental oversight or simple moral conscience, why would anyone believe they would voluntarily start doing so now?

The Iceberg Cometh

I find I disagree with William Arkin's analysis occasionally, but his Washington Post blog Early Warning often provides valuable information about the U.S. intelligence community. His coverage of the Pentagon's surveillance programs were among the most comprehensive you'd find anywhere. Today, his entry is "Telephone Records are just the Tip of NSA's Iceberg." He reports:

The National Security Agency and other U.S. government organizations have developed hundreds of software programs and analytic tools to "harvest" intelligence, and they've created dozens of gigantic databases designed to discover potential terrorist activity both inside the United States and overseas.

These cutting edge tools -- some highly classified because of their functions and capabilities -- continually process hundreds of billions of what are called "structured" data records, including telephone call records and e-mail headers contained in information "feeds" that have been established to flow into the intelligence agencies.

The multi-billion dollar program, which [sic] began before 9/11 but has been accelerated since then. Well over 100 government contractors have participated, including both small boutique companies whose products include commercial off-the-shelf software and some of the largest defense contractors, who have developed specialized software and tools exclusively for government use.

Arkin goes on on to list "some 500 software tools, databases, data mining and processing efforts contracted for, under development or in use at the NSA and other intelligence agencies today." I'd be interested to know how many of the programs Arkin mentions are domestic versus foreign, and how many of these programs target ordinary, innocent Americans. As one commentator points out, one program is ironically named "Freedom." Other commentators added a few more programs to the list!

The Post typically has some very smart, well-informed readers. A few other comments struck me:

"1. A secret spy agency under investigation by the US Department of Justice told the Justice Department to stop... and it did.
2. I paraphrase Benjamin Franklin "Those who would give up liberty for a sense of security deserve neither."

"Didn't Bush say yesterday, when questioned about NSA's examination of phone records: "We're not mining or trawling through the personal lives of millions of innocent Americans. . ." I know Bush claims they are not examining the content of the calls, only usage patterns, etc., but isn't Bush's statement denying "mining or trawling" simply not true? Has the press pointed this out?"

""The multi-billion dollar program, which began before 9/11 but has been accelerated since then." I find this potentially very alarming. How long "before" 9/11 did this program begin ? who asked
for it, what were the stated reasons at the time (before 9/11) ????"

"Spying is a necessity in a hostile world and this has been recognized for ages. What is new and very dangerous is that this is now happening in America WITHOUT OVERSIGHT."

Yet again, no sane American would claim that the government should not monitor terrorists. However, there's no reason not to do it legally. Any system without oversight and accountability invites abuse. For all this activity, Osama bin Laden is still free… and guess what, he's not hiding out in Topeka and making phone calls to Domino's. Despite the consistent, obtuse cries that revealing such programs helps the enemy, of course terrorists, like mobsters, suspect every phone call might be tapped! Bin Laden reportedly uses hand-written notes and I'm sure al-Qaeda and other terrorist organizations use disposable cell phones. The Moussaoui trial reminds us that the FBI's problem regarding 9/11 was not that they lacked the intelligence they needed; they didn't act on it. It's really quite shameful that bin Laden has still not been caught, especially since we had the opportunity to do so at Tora Bora. However, the Constitution, and its observance domestically, is a much more important issue. Fear should never lead to curtailing essential civil liberties. But even that misses the point somewhat; choosing between fighting terrorism and upholding the Constitution is a false dilemma dangerous to embrace.

The NSA Call-Tracking Program

I think it's safe to say that the liberal blogosphere is more shocked that USA Today is the paper to break an essential story than they are by the story itself: The NSA has been collecting the phone records of ordinary Americans for the past five years or so in a massive database with the full, willing knowledge of three of the biggest phone carriers - At&T, Verizon, and BellSouth.

Anyone who remembers Alberto Gonzales parsing his words carefully before the Senate about the NSA warantless wiretap program, and his refusal to answer a question about whether other hidden NSA programs existed, will not be shocked. Anyone who's been following this administration will not be shocked. President Bush defied logic today when he:

denied that the government listens to Americans' phone calls without court approval and maintained that citizens' privacy "is fiercely protected in all our activities."

"We are not mining or trolling through the personal lives of millions of Americans," Bush said. "Our efforts are focused on links to al-Qaeda and their known affiliates."

How al-Qaeda is targeted by casting a wide net over innocent Americans is beyond me. This is not a surgical strike we're talking about. This is a massive data collection effort. How this does not violate the 4th Amendment is also beyond me.

Not surprisingly, Glenn Greenwald has written the most superb early post on this matter (that I've read, anyway). I have no doubt he'll pen more, but he highlights the same two key elements that struck me. First, per the USA Today article, these guys use bullying tactics to get their way:

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

A second, more important issue is raised by the next two paragraphs:

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

As Greenwald incisively observes:

We continuously hear that the Bush administration has legal authority to do anything the President orders. Claims that he is acting illegally are just frivolous and the by-product of Bush hatred. And yet, as I detailed here, each and every time the administration has the opportunity to obtain an adjudication of the legality of its conduct from a federal court (which, unbeknownst to the administration, is the branch of our government which has the authority and responsibility to interpret and apply the law), it does everything possible to avoid that adjudication.

This continuous evasion of judicial review by the administration is much more serious and disturbing than has been discussed and realized. By proclaiming the power to ignore Congressional law and to do whatever it wants in the area of national security, it is seizing the powers of the legislative branch. But by blocking courts from ruling on the multiple claims of illegality which have been made against it, the administration is essentially seizing the judicial power as well. It becomes the creator, the executor, and the interpreter of the law. And with that, the powers of all three branches become consolidated in The President, the single greatest nightmare of the founders.

As horrendous as the situation in Iraq still is, as bad as the aftermath of Katrina still is, as dire as the fiscal mismanagement has been, I have long felt that it's the Bush administration's consistent, aggressive, and systematic assault on civil liberties, due process and the Constitution itself that represent the gravest and most lasting threat to our country. An assault on the law itself – and good, essential law at that – will be far harder to reverse than the other mistakes. It sets a horrible precedent. For god's sake, has anyone in this administration read The Federalist Papers?

There is absolutely no reason America cannot fight terrorism (and of course it should) within existing laws. There is absolutely no reason to bypass FISA other than to avoid oversight and accountability. If Gonzales wants to complain about the paperwork again, perhaps he should resign and allow someone who can handle the workload to do the job. If Bush cannot honor the oath he swore to "uphold the Constitution" he should do the same.

I predict this NSA story will be the dominant one at least until Monday, and that Bush's approval ratings will finally drop below 30% (most polls place him at 31% now, with a 3% margin of error). Certain issues deserve widespread public outrage and full disclosure, and this is one of them.

NSA Round-Up

As I've mentioned before, much of the best writing on the illegal NSA wiretap program has come from lawyer Glenn Greenwald. One of his recent posts comprehensively links all his previous posts on the subject. You can read it here.

Liveblogging Gonzales

Gonzales' opening statement can be read here. Meanwhile, several bloggers covered the hearings. Glenn Greenwald, who has consistently written fantastic posts on the NSA wiretaps, weighs in here. He's sure to expand on it tomorrow. You can also see part of his brief C-Span interview here (courtesy of Crooks and Liars). ReddHedd of Firedoglake covered Gonzales in four entertaining and insightful parts; you can read #1 here, then scroll up (She also has some good comments on Greenwald's appearance right below). John Aravosis of Americablog also liveblogged the event, and the original Wonkette Ana Maria Cox stopped by her old blog to offer some snark here.

Mattthew Yglesias at The American Prospect and Digby at Hullabaloo had the same reaction I did, although they go into more detail - why the hell are these Repulican Senators handing away their power? They're choosing not even party solidarity, but unswerving loyalty to George Bush... and putting Bush not only ahead of their own constituents, but their own constitutional authority. This is unusual. Still, I suppose it's impressive in one sense that our duly-elected can be both self-denying and unpatriotic at the same time.

Dibgy also has a good post invoking both Rove and Nixon. Digby nicely lays out what many of us have known: this is an old battle, and the illegal NSA wiretaps are just more of the same. On a similar note, Dan Froomkin compiles a few "History Lessons" on clashes involving Rumsfeld, Cheney, and George H.W. Bush within the Ford administration. Of course, back then the Republican president choose to check his own power in regard to wiretaps.

But we all know Ford was a commie.

Gonzales Not Under Oath

This is shameful, gutless, and unconscionable on the part of Specter and the Republicans. Baseball players must be under oath, but not energy execs, or the Attorney General, even when he has already lied under oath?!!? Where's the Republican with some backbone to dissent? Kudos to the Democrats for raising the issue. May they continue to hammer it home. Typically, Congress has been very defensive about protecting its own powers... but the Judiciary Committee Republicans appear largely bought and paid for. I'm absolutely disgusted.

Crooks and Liars has the video of this sorry state of affairs. Specter of course does not offer a compelling argument - come to think of it, really any argument - for not putting Gonzales under oath. Gonzales himself claims he has no objection to going under oath - of course, an oath didn't stop him from lying before. And now, with Specter's move now he can claim it wasn't up to him. Convenient. At least he's getting some grilling...

One of the best lines in Syriana comes at a barbeque when one character explains to his client, "we need the appearance of due diligence." Until Republicans start grilling the President and the Attorney General for willfully breaking the law, they have no credibility. As Pat Roberts continues to stonewall on intelligence investigations and the Abramoff scandal grows, the Republicans remain the party of cosmetic fixes. The Constitution be damned; they will sacrifice the rule of law and civil liberties in order to retain power. Some Republicans, including far-right fanatics like Grover Norquist, oppose warrantless wiretaps. Congress possesses quite a few Republicans who have spoken out on this as well... but they need to either become more vocal, or get on more committees! It's very clear now that the opposition party must have subpoena power.