Questions and Answers about Beginning of Domestic Spying Program

The other day I noted that the Bush Administration seemed to have been using the 15-day exemption included in FISA to conduct domestic surveillance before the formal start date of the program.

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, and it began on October 6, 2001.

In other words, the program was formally approved on the 16th day after the AUMF. 

But at least according to Nancy Pelosi, Congress was briefed on ongoing underlying activities as early as October 1. 

Meaning, the Bush Administration was already using those expanded authorities–but they were doing so by exploiting the 15-day exemption written into FISA!

Since then, I’ve tried to confirm that assertion, but the picture has only gotten muddier. There are two sets of conflicting data surrounding:

  • Program start date
  • OLC memo dates

James Bamford’s Shadow Factory and Eric Lichtblau’s reporting have some answers, but answers that raise a new set of questions. So here are some answers and more questions about the beginning of the domestic spying program.

Program Start Date

The IG Report explains the beginning of what it calls the Presidential Surveillance Program this way:

In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP.

Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities. All of these activities were authorized in a single Presidential Authorization that was periodically reauthorized.

So, in the days immediately after 9/11, Hayden used "existing authorities" to gather intelligence information. Then Tenet asked Hayden what more he could do, and he said he needed more authorities. "Shortly thereafter,"  Bush granted authorities covering a range of activities. The IG Report describes Hayden having a meeting with 80 to 90 people to explain the program which is useful to date the approval.

After Hayden received the first Authorization, he assembled 80 to 90 people in a conference room and explained what the President had authorized. Hayden said: "We’re going to do exactly what he said and not one photon or electron more."

Bamford dates the original authorization of the program to October 4, 2001 (Lichtblau does too, in Bush’s Law, describing it as occurring 23 days after 9/11).

… on October 4, Hayden received authorization to bypass the Foreign Intelligence Surveillance Court and begin eavesdropping on international communications to and from Americans without a warrant. (118)

And he describes the same meeting the IG Report describes–and dates it to October 6, 2001.

In early October, Mike Hayden met a group of employees in a large windowless conference room just down the hall from his office.

[snip]

"Let me tell you what I told them when we launched the program," said Hayden. This is the morning of October 6 in our big conference room–about eighty, ninety folks in there–and I was explaining what the president had authorized, and I ended up by saying, ‘And we’re going to do exactly what he said, and not one photon or one electron more’ (119)

Note, one thing the IG Report says–but which Hayden appears not to have told Bamford–is that "all of these activities were authorized in a single Presidential Authorization." That is, the data mining and the large scale collection were authorized on October 4, too, though Hayden would like to claim just the wiretapping of al Qaeda-related calls was authorized.

Now, I had suggested that Hayden briefed Congress on October 1 on some preliminary version of this program. But that’s not entirely right–or at least, Hayden has a different explanation. As noted, the IG Report says in the days immediately after 9/11, Hayden used his existing authorities to target al Qaeda. Bamford explains,

Almost immediately after the attacks, Hayden beefed up the coverage of communications between Afghanistan and the U.S. Then, on his own initiative and without White House approval, he dropped the FISA-mandated rule of minimization on those communications, leaving in the names and other details of American citizens without court approval. (108) 

Bamford’s version–that Hayden stopped minimizing US person data–accords with the unredacted part of Nancy Pelosi’s follow-up (dated October 11) on his October 1 briefing of his activities.

During your appearance before the committee on October 1, you indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance under the Foreign Intelligence Surveillance Act and related statutes, orders, regulations, and guidelines. You seemed to be inviting expressions of concern from us, if there were any, and, after the briefing was over and I had a chance to reflect on what you said, I instructed staff to get more information on this matter for me. For several reasons, including what I consider to be an overly broad interpretation of President Bush’s directive of October 5 on sharing with Congress “classified or sensitive law enforcement information” it has not been possible to get answers to my questions.

Without those answers, the concerns I have about what you said on the 1st can not be resolved, and I wanted to bring them to your attention directly. You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted] I believe you have a much more difficult case to make [redacted] Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned. [my emphasis]

I say Bamford’s description that Pelosi’s letter accords with the notion that Hayden stopped minimizing US person data because normally (as I understand it), FBI would get intercepts with US person data redacted, and would have to make a special request to learn the identities of US persons involved in the intercept (purportedly, to make sense of the rest of the intercept, not to spy on Americans directly). Pelosi’s description that Hayden was "forwarding the intercepts … without first receiving a request for that identifying information to the" FBI appears to suggest Hayden was just sending everything over–including identifying information–right away. That said, Pelosi’s letter says more than that, which I’ll return to below. 

Pelosi’s letter doesn’t repeat the claim that Hayden was doing this "on his own initiative." That’s significant, because Bamford relies on this Lichtblau and Shane article to make his claim, and that article overreads Pelosi’s letter itself–suggesting the content I’ve included above proves the NSA "initiated growth of spying effort" (admittedly, in a headline, so it’s not necessarily Lichtblau and Shane’s doing). More interesting–for those who have followed my obsession with pixie dust–is this piece of news in the NYT article.

Bush administration officials said on Tuesday that General Hayden, now the country’s No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.

"He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities," said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. "Beyond that, we can’t get into details of what was done."

EO 12333, we know, is the EO that Bush got the authority to change without altering to set up his program. Which suggests Bush may indeed have been involved in the early authorization for the program, but did so simply by sprinkling pixie dust on St. Reagan’s own EO.

So we’ve got the IG Report, presumably relying on no more than Hayden and Gonzales’ explanation, that Hayden initiated the program on his own. We’ve got the NYT pointing to the EO that we know got pixie dusted–by George Bush–to make this program possible. And we’ve got Nancy Pelosi, not recording any indication of who initiated the program in her letter. Pelosi’s concern, "whether, and to what extent, the National Security Agency has received specific presidential authorization"–aside from echoing Jane Harman’s precise comment about the torture program 16 months later–shows that Hayden did not claim, at that point, to already have presidential authorization, but the comparison with the torture program makes it clear that’s different than official authorization for the program (remember, Bush first "authorized" torture in 2003, after CIA had already waterboarded Abu Zubaydah, Ibn Sheikh al-Libi, and Khalid Sheikh Mohammed). 

Now, as I understand it, Hayden didn’t really explain on what basis he could ignore FISA, he just said it didn’t apply or that he had expanded authorities. So he wasn’t, on October 1, making an argument that he was working within the 15-day window. Rather, after having stopped far short of what he was legally permitted to do before 9/11 (which is why he didn’t figure out Mihdhar and Hazmi were operating within the United States, even though NSA picked up calls between them and a known al Qaeda safehouse), he claims he–with his existing authorizations–ignored a very clear requirement of FISA that he minimize US person data. I find that utterly unbelievable, as I’ll explain below.

Before I do, though, note one other date in this chronology: on October 5–after Hayden first briefed the full intelligence committee, after the program was officially approved, but before Hayden told 90 people at NSA about it–President Bush issued directions that agencies involved in counter-terrorism could only brief the Gang of Eight (and only certain people within those agencies could do the briefings).

As we wage our campaign to respond to the terrorist attacks against the United States on September 11, and to protect us from further acts of terrorism, I intend to continue to work closely with the Congress. Consistent with longstanding executive branch practice, this Administration will continue to work to inform the leadership of the Congress about the course of, and important developments in, our critical military, intelligence, and law enforcement operations. At the same time, we have an obligation to protect military operational security, intelligence sources and methods, and sensitive law enforcement investigations. Accordingly, your departments should adhere to the following procedures when providing briefings to the Congress relating to the information we have or the actions we plan to take:

(i) Only you or officers expressly designated by you may brief Members of Congress regarding classified or sensitive law enforcement information; and

(ii) The only Members of Congress whom you or your expressly designated officers may brief regarding classified or sensitive law enforcement information are the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the Intelligence Committees in the House and Senate.

I’m sure the timing of Bush’s attempt to crack down on briefings to Congress, just as Pelosi is seeking more information on the program, is entirely a coinkydink.

OLC Memo Dates

In its response to an ACLU FOIA for documents on this, the Administration appears to have claimed that the first domestic spying program-related OLC opinion was dated October 4, 2001, the day Bamford gives as the first start date. I may simply be missing something, or Bradbury may have listed the document as either undated and/or not an agency document. But the ACLU’s list of all known OLC memos does not list a domestic spying memo from September. 

The IG Report claims there was an OLC memo in September, but that that memo, plus the October 4, 2001 memo–coinciding with the presidential approval of the program–and the October 23, 2001 memo–eviscerating the Fourth Amendment–were just hypothetical (though with its reference to "early October," perhaps the IG Report is trying to distance the program from the October 23 memo).

In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities, but the first OLC opinion explicitly addressing the legality of the PSP was not drafted until after the program had been formally authorized by President Bush in October 2001. Attorney General Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day that he was read into the program.

The first OLC opinion directly supporting the legality of the PSP was dated November 2, 2001, and was drafted by Yoo.

Here’s what Bamford writes of the early OLC memos, relying on Yoo’s public writings.

Ten days after the attacks, Yoo wrote an internal memorandum arguing that the NSA could use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses." He noted that while such unprecedented and intrusive actions might be rejected on constitutional grounds during normal times, they are now justified as a result of the 9/11 attacks. During such times, he said, "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

Yoo thought that constitutional guarantees instantly evaporate following a terrorist attack. "It appears clear that the Fourth Amendment’s warrant requirement does not apply to surveillance and searches undertaken to protect the national security from external threats, he said. In another memo, this one to Alberto Gonzales, the White House counsel, he reiterated his view that the president’s power trump the Constitution. "Our office recently concluded," he wrote, "that the Fourth Amendment had no application to domestic military operations."(116)

So we’ve got the September 21 (or 22) memo, in which Yoo advocates for using "more powerful and sophisticated techniques and equipment" (which would seem to envision databases and data mining). We’ve got no description–from anyone, that I know of–of the October 4, 2001 memo, dated on the day of the Presidential Authorization. We’ve got Bamford’s description of the October 23, 2001 Fourth Amendment eviscerating opinion. We’ve got the IG Report assuring us not to worry about any of these earlier memos, the only one that really counted was the November 2, 2001 memo. And we’ve got no mention, from any of these, explicitly referring to the OLC memo Whitehouse described as addressing EO 12333, which says that if the President departs from a prior EO, even without changing the language of that EO, it is the same as modifying it.

I’ll need to go and read Yoo’s book, but it seems that he doesn’t have the clarity that the IGs have regarding which of his OLC memos actually authorized the program. And given the IG Report’s claim that only the November 2 memo specifically addressed the legality of the program, and given Whitehouse revelation that a key part of the program was Bush’s claim to be able to pixie dust EOs, I’m not sure we can point to one day when the program was authorized. At a minimum, Yoo wrote at least three memos that–the IG Report claims–were not definitive, Bush at least got the authority to pixie dust EO 12333, Bush signed an authorization on October 4 purportedly not relying on the memo dated the same day, and a month later Yoo wrote a memo that determined the program to be legal.

What Hayden Was Already Doing

 Given the fluidity of the apparent authorization of the program, let’s return to what Hayden briefed Congress on on October 1, described to pertain to minimization. Pelosi wrote:

You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted] I believe you have a much more difficult case to make [redacted]

Note, first of all, in addition to suggesting that Hayden is disseminating US person data absent any request from the FBI, Pelosi’s comment suggests Hayden is doing so with at least two categories of intercepts. Pelosi suggests she "may be persuaded" by such treatment of intercepts in one case, but says Hayden has "a much more difficult case to make" with another case. [Update: See Mary’s alternative suggestion here.] Now, I have no idea what was included in the redacted information, but one of them (probably the first) is likely to be intercepts of conversations with known al Qaeda operatives (or safehouses, which is the information that Hayden’s NSA ignored leading up to 9/11). But it looks likely Hayden was already disseminating US person data on conversations of wider scope (while I don’t know if this is what is at issue, there were reports of NSA tapping everything coming from at least some parts of Afghanistan). 

Now, compare that description with Michael Hayden’s claims about the program in January 2006–claims which are limited to Bush’s "TSP" and not the whole domestic surveillance program (note, earlier in his statements he claims the activities he described in his October 1 briefing to Congress "were not related — these programs were not related — to the authorization that the president has recently spoken about").

This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. We bring to bear all the technology we can to ensure that this is so. And if there were ever an anomaly, and we discovered that there had been an inadvertent intercept of a domestic-to-domestic call, that intercept would be destroyed and not reported. But the incident, what we call inadvertent collection, would be recorded and reported. But that’s a normal NSA procedure. It’s been our procedure for the last quarter century. And as always, as we always do when dealing with U.S. person information, as I said earlier, U.S. identities are expunged when they’re not essential to understanding the intelligence value of any report. Again, that’s a normal NSA procedure.

So let me make this clear. When you’re talking to your daughter at state college, this program cannot intercept your conversations. And when she takes a semester abroad to complete her Arabic studies, this program will not intercept your communications.

Let me emphasize one more thing that this program is not — and, look, I know how hard it is to write a headline that’s accurate and short and grabbing. But we really should shoot for all three — accurate, short and grabbing. I don’t think domestic spying makes it. One end of any call targeted under this program is always outside the United States.

In one of the narrowest descriptions of the program made by the Bush Administration in the days after it was exposed, Hayden claimed the program was the interception of communications "involving someone we believe is associated with al Qaeda." He claims "US identities are expunged when they’re not essential to understanding the intelligence value of any report," which apparently they weren’t in late September 2001. He emphasizes "one end of any call targeted under this program is always outside the United States."

For the moment, let me suggest that if you were not minimizing US person data, and you could claim someone a US person was speaking to in Afghanistan or somewhere else  "is associated with al Qaeda," then you could accomplish almost all of what Hayden describes the the TSP to include. The single limitation–the single new thing the TSP seems to include–is if the known al Qaeda affiliate was in the US. But if you don’t have to show a court how you get to that person, then nothing would stop you from reverse targeting, simply claiming that the person overseas was the person who "is associated with al Qaeda." You would need no more authorization to do everything included in the TSP, as described by Hayden, than to simply stop minimizing US person data. Which, it appears, is what Hayden was doing in September 2001.

Now look at EO 12333 as written–which we know may not be the same as EO 12333 as understood in the days after 9/11. Here’s how it restricts surveillance of US persons.

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), shall be conducted in accordance with that Act, as well as this Order. [my emphasis]

As late as 2007, we know, this was actually the authority the government used to establish probable cause to wiretap Americans.

And here’s how it describes NSA’s role in foreign intelligence.

(3) Collection of signals intelligence information for national foreign intelligence purposes in accordance with guidance from the
Director of Central Intelligence;

(4) Processing of signals intelligence data for national foreign intelligence purposes in accordance with guidance from the Director
of Central Intelligence;

(5) Dissemination of signals intelligence information for national foreign intelligence purposes to authorized elements of the Government, including the military services, in accordance with guidance from the Director of Central Intelligence;

We know that in response to Pelosi’s concerns, Hayden basically said FISA does not apply. We know that OLC told Bush (at some point) he had the authority to pixie dust EO 12333, to change what it said. And we know that Pelosi understood Hayden was "treating as a matter of first impression," some kind of intercepts "being of foreign intelligence interest." (And, surely by design, we don’t know what date Ashcroft approved the program.)

Even without pixie dusting EO 12333, so long as you’ve said FISA doesn’t apply (and Yoo wrote a memo saying warrants ought not apply by September 21 or 22), the only thing preventing you from wiretapping Americans in the US for foreign intelligence purposes is the Attorney General.  But it would be pretty easy to pixie dust Ashcroft, particularly if he was not yet read into the program.

The Bush Administration tries very hard to distinguish what Michael Hayden was doing before October 4, 2001 from what he was doing afterwards. But that claim is not convincing. If–as seems to be the case from the unredacted sections of Pelosi’s letter, Hayden had declared US person data to be foreign intelligence, and if on that basis he had stopped minimizing US person data, you could (by using reverse targeting) carry out the full extent of the TSP.

What appears to have been new, after October 4, is the inclusion of data mining and large scale collection in the US in the larger presidential authorization.

While it’s always possible the Administration maintains the pre-October 4 activities are a different program by some fancy parsing game (which is, after all, what the term TSP is in any case), there is no reason to believe the actions themselves were different.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. ghostof911 says:

    In the days immediately after September 11, 2001…

    That overworked phrase, used in innumerous contexts, is followed by descriptions of all manners of hectic activity. Enormous projects immediately sprung up from the void.

    Just like the Big Bang.

  2. klynn says:

    Ask, you you shall receive.

    Thanks for keeping on this EW.

    The Bush Administration tries very hard to distinguish what Michael Hayden was doing before October 4, 2001 from what he was doing afterwards. But that claim is not convincing. If–as seems to be the case from the unredacted sections of Pelosi’s letter, Hayden had declared US person data to be foreign intelligence, and if on that basis he had stopped minimizing US person data, you could (by using reverse targeting) carry out the full extent of the TSP.

    What appears to have been new, after October 4, is the inclusion of data mining and large scale collection in the US in the larger presidential authorization.

    While it’s always possible the Administration maintains the pre-October 4 activities are a different program by some fancy parsing game (which is, after all, what the term TSP is in any case), there is no reason to believe the actions themselves were different.

    I hope this is the focus of your new book.

    • bobschacht says:

      “…fancy parsing game…”

      Is there an Olympics for this sport?

      It became high profile when President Clinton started parsing the word “is,” but Republicans took that ball and ran with it all over the field for the past 8 years.

      But it also seems to be true that many a SCOTUS case features careful parsing of the law.

      Will University English programs now be required to carry a course in parsing?

      Bob in HI

      • emptywheel says:

        I tried to teach my students that, actually. That’s why teaching Thucydides was by far one of my favorite texts to teach.

        And did you know I very narrowly avoided teaching Ari Melber in Great Books at UM? I’m guessing he learned to cut through Olympic parsers by reading Thucydides…

        • bobschacht says:

          And here I thought that you’d only developed those parsing skills during your dissertation work on that central European genre of texts, the name of which I can’t remember (you should do a Wikipedia article on them, dropping credits to your dissertation for the details).

          Thucydides was a good choice. I’ll bet your student’s class copies of Thucydides were well marked, and kept long after all other textbooks were disposed of.

          Bob in HI

  3. TarheelDem says:

    This struck me as interesting:

    Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities. All of these activities were authorized in a single Presidential Authorization that was periodically reauthorized.

    Like every 15 days periodically reauthorized?

    A rolling FISA window to keep it away from the FISA court?

    Just speculating, but it was interesting.

  4. WilliamOckham says:

    The key question is when did the NSA start doing their warrantless wiretapping inside the US. That appears to be what started in early October (remember the story about the FBI stumbling across the program?).

    • emptywheel says:

      Not so.

      If they’re wiretapping every conversation in the US that involved Afghanistan, how is that not wiretapping in the US?

      Furthermore, given the timing, it seems like FBI stumbled on stuff that came from before October 4.

      • emptywheel says:

        Meaning, so long as they’re claiming that one side was outside of the US, then there is no meaningful distinction between not minimizing and wiretapping in the US. None.

        Now, we have every reason to believe they were wiretapping US-US calls. But that’s not TSP.

        • WilliamOckham says:

          No, no, no. Gotta run now, but the location of the wiretaps are important according to FISA. I agree that not minimizing is important to, but there is an important distinction. As long as the wiretaps were outside the US, they could collect and minimize. Inside the US, they can’t even collect under FISA without a warrant. The minute they turned on the collection inside the US, the whole program was illegal and there was no way around it. If they collected outside the US, they could have ‘fixed’ the program by minimizing.

          • readerOfTeaLeaves says:

            I’ll have to catch up with this later in the day (I hope), but quickly in case it’s useful, a link from the front page at TPM re: Glenn Greenwald talking with MSNBC’s Chuck Todd about the *dangers* of not investigating problems.

            BTW: Hat’s off to Chuck Todd and Glenn Greenwald for each being willing to engage in a conversation, apart from the views expressed it’s important that they’re willing to engage in a discussion. Todd uses the term ‘cable catnip‘ to describe the presentation of politics as a he-said, she-said/ Dem-said, GOP-said, which in turn presents investigations as idelogical ‘payback’, rather than as inquiries into the nature of justice. But Todd makes a very good point that it’s too easy to bash ‘the media’; all the ‘media bashing’ short-circuits the need to hold electeds and DoJ accountable for doing their jobs — which should be to make sure the system is functioning in a healthy fashion.

            It’s my hunch that very few reporters really understand the underlying issues involved in failing to investigate. Allowing Liz Cheney come on their shows and yap about partisan politics is at least as much symptom as cause — but it means that her father’s view becomes deeply entrenched in the narrative and assumptions: it’s always, everywhere, about ‘political payback’ in their minds.

            These reporters, and too many electeds, fail to examine how much time and effort the Bush-Cheney crowd put into creating legalistic fictions to cover their butts.

            To say:

            Even without pixie dusting EO 12333, so long as you’ve said FISA doesn’t apply (and Yoo wrote a memo saying warrants ought not apply by September 21 or 22), the only thing preventing you from wiretapping Americans in the US for foreign intelligence purposes is the Attorney General. But it would be pretty easy to pixie dust Ashcroft, particularly if he was not yet read into the program.

            is to say, there are NO checks. There are NO balances. There is ‘what I want today’.

            It’s a ‘mirror, mirror, on the wall, tell me I’m the coolest guy of all’ view of the world. Zero accountability.

            If I don’t like something, I change it.
            No one will know about it because I won’t tell them, and I’ll have Yoo write a memo to tell me whatever it is that I want to hear today.

            Imagine trying to produce an automobile by saying, “Well, I’ll just call Yoo and tell him that I want him to okay that now we’re going to have 12″ wheels because that’s what I want today.” Meanwhile, the CIA thinks that it is supposed to produce a chassis designed for 10″ wheels, but Cheney’s super-secret group is retooling them to be 8″ wheels under Cheney’s super-secret private specs.

            This is completely dysfunctional.

          • dcgaffer says:

            I haven’t been keeping up with the specifics here, but are you considering the definition of “outside” in your analysis of authorities? Are we referring to where the tap is placed, or the origination and termination point of the communication, or both? Certainly, the telecom industry has changed from the time of the original FISA. While they say that “FISA didn’t contemplate” certain things when it was enacted, which is certainly true, they do so to disguise the fact that FISA limited their ability to take advantage of the structural and technological changes – not necessarily that the changes were making their lives difficult.

            Two items which of, which sometimes get forgotten because they are telecom wonky: (1) by 2001 a very large percentage of international voice traffic , which neither originates or terminates in the US, was hubbing through the US because the carriers could get the best rate and (2) the method of connecting a voice call, which for a decades had been – essentially a dedicated pipe (NYC calls London, in setting up that call a circuit is completed end to end and that circuit is conceptually similar to your own exclusive and private lane on a freeway) – was now transitioning to SIP, whereby the call is digitized turned into IP packets; no different than the internet, there is no fixed route, just insert the packets in the cloud, and reassemble them at the destination.

            So to reiterate, the industry had changed to the eavesdroppers benefit (and I’m not being pejorative here, it just the most accurate term) but the Constitution and Law was in the way of taking advantage of that change. To take advantage of the change, you have to do so physically here.

            One other wonky item, is that in the old circuit switched, straight pipe, TDM (time division multiplex) world, the telecom carriers knew clearly where a call originated and terminated, they needed that info for billing purposes. However, as the world changed and the US became a hub, the practice of “refile” exploded. So customer A in Turkey wants to call B in Indonesia. Let’s say the bilateral rate between the telecom companies in Turkey and Indonesia is 35 cents (i.e., Telecom Turkey pays 35 cents to Telecom Indonesia to terminate the call, and vice versa.) However if Telecom Turkey sends the call to a middleman, middleman charges Telecom Turkey 25 cents, middleman takes the “call” to the US, strips out the originating information on the header and send the call to Indonesia so that it appears that the call originated in the US, and pays telecom Indonesia 15 cents (since the bilateral rate between US and Indonesia is – for example – is 15 cents.) Telecom Turkey save 10 cents, middleman makes 10 cents gross profit, Telecom Indonesia loses 20 cents.

            In short, because of the practices of hubbing, refile and SIP, in many, many cases you really don’t know where the voice call originates.

            Again the what, why and when needs to be mindful of the need for physicality, in what drove these decisions. As an aside, I don’t know what NSA can do, but to the best of my knowledge most carriers cannot examine the contents of a VPN tunnel. Unless NSA can, sophisticated bad guys will defeat most of the increased collection activity anyway.

            • Mary says:

              WO as well as Mad Dog and EW and others have talked about some of the things you are raising here in other, earlier threads over a period of time. I’m glad you rais them here in this thread bc it is nice for non-techies like me to get the reminders and keep re-hearing the info in simplified form on how the tech works. So while I think WO has gone into your question before in other threads, I’m glad you have it here too, especially with the explanations.

              A related point on the “not knowing where” has been made with respect to emails too. If you have a laptop with email addresses, unlike a phone number you might not be able to tell facially where they originate from and you also don’t know where someone will be, physically, when they pick them up.

        • quake says:

          Now, we have every reason to believe they were wiretapping US-US calls. But that’s not TSP.

          Is there any chance they were using some sort of bogus six degrees of separation-type argument? If so that would let them “justify” snooping on basically everyone in the U.S.

          • emptywheel says:

            Yes, and yes. But my take is that’s when you get into the Other Intelligence Activities.

            The entire term TSP was invented to reassure Americans that they weren’t being tapped. But that doesn’t mean they weren’t.

      • Mary says:

        and WO @ 4. This is one of the big takeaways from this piece IMO. What EW has laid out is that Hayden started up immediately with sending over all kinds of non-minimized info to FBI.

        I have to say a couple of things about that. First, perhaps under FISA he had a 15 day period after 9/11, depending on interpretations, where this would have been ok. However, both during that 15 days and beyond it, there may well be another big, lurking problem on the minimization front, in that it is pretty likely (almost certain) that, in addition to the statutory requirements of FISA, there were FISCt minimization ORDERS on.

        If you had minimization orders on by the court, acting under it’s authority under FISA, Hayden might feel his only consequences would stem from the Executive branch/DOJ and those were immaterial since DOJ was wholly owned and willing to sit quiet in whatever criminal pocket they were placed; but for the LAWYERS involved the knowing, direct violation of existing court orders is a very different thing.

        This is one of the peripheral topics I’ve been nipping at from time to time – opinions that say Bush doesn’t have to pay attention to Congress and laws on a dictatorial power grounds also mean that Bush doesn’t ahve to follow court orders. That’s the “next step” from the reasoning. The thing is, not many courts, no matter how enfeebled, are going to buy in to the concept that a lawyer who tells his client to defy court orders and then assists in covering up that info from the court should keep their license to practice and definitely shouldn’t have the right to practice in front of THAT COURT, because lawyers even while in the Exec branch are hybrids (maybe Cheney could call them fourth and a half branches?) who always owe independent duties to the tribunal.

        This may have been one more reason to so insulate what was going on from the other lawyers – open up the pool of lawyers who know about direct violation of court orders and someone is gonna tell the court and/or when the courts find out otherwise, you have that much bigger a pool of partisan prosecutorial loyalists who lose their licenses.

    • 1boringoldman says:

      Notice John Yoo’s title “Why We Endorsed Warrantless Wiretaps.” As in previous op-eds, John Yoo writes explaining Administration policy. There’s nothing about policy in the OLC Mission. It’s as if he has no idea that he was tasked to give legal advice, not to help make policy decisions. His Memos have the same flaw. Rather than being interpretations of the law, they are arguments about how the law could be warped in order to fit the wished for policy. I suppose We is Yoo, Addington, Gonzales, and the “big guys” – We policy makers.

      • Mary says:

        and when Mora tackled him, he gave the opposite line. *I’m only saying what we COULD do, LEGALLY, I’m not involved in policy* So Mora asked for the policy discussion and Yoo shuffled out.

  5. JasonLeopold says:

    Yoo on the IG report:

    Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis.

  6. earlofhuntingdon says:

    The mud in the water seems there, in part, owing to a panicked reaction: the first large-scale foreign terrorist attack, causing billions in damage, hundreds of billions in lost business, and thousands of lost lives, took place nearly a year into a new, untried, Republican administration.

    It was accomplished by a group the administration had specifically and repeatedly been warned about. Whether or not the warnings were specific enough to be actionable, they were political dynamite for an administration with no street cred and which never stopped running for office long enough to run their offices.

    Given Cheney’s hatred of the bureaucracy, and of legal checks and political balances on his authority – he had none himself; he had only partial delegated authority to act on behalf of the president – the mud in the water seems also partly intentional. Cheney, Libby and Addington knew full well the evidentiary and proof problems facing a federal prosecutor investigating a senior political operative in the executive branch.

    However hardened I may be to Cheney’s behavior, John Yoo’s continues to make me stare in disbelief. He just invented as he went along, as if the Ivy League degrees and scholarly law we know he knew flew out the window along with our civil rights. That’s not the panicked behavior of the eternal yes-man. It’s something more and more deeply corrupt.

    • emptywheel says:

      Well, and the other thing is that they worked with Hayden at a time when HE KNEW WELL he fucked up by not pursuing the Mihdhar and Hamza call from the Yemen safe house. So of COURSE Hayden was going to welcome new authorities (though I’m certain he didn’t decide to pursue him by himself). He had to appear to be willing to do what he didn’t do before, which might have prevented 9/11.

      • earlofhuntingdon says:

        Agreed. Whether 9/11 could have been overted is less critical than this rogue regime of ours fear that it could have been. If that label stuck, it would have been a political death sentence and cause for immediate impeachment, creating a more explosive problem than a blowjob.

        As you’ve pointed out, Cheney and his acolytes had long wanted to put into effect such intensive data gathering. An unobstructed path was now open to them, so long as some schmuck lawyer with playable frailties could be persuaded to give them a season hall pass to do it.

        Assessing and acting on just how much of this was illegal or corrupt would seem to be a principal task of a president whose oath of office charges him with enforcing the law and protecting the Constitution. It is not a distraction from a legitimate agenda, but a prime component of it. Or would be to anyone who doesn’t think like Cheney.

  7. susiedow says:

    In one of the narrowest descriptions of the program made by the Bush Administration in the days after it was exposed, Hayden claimed the program was the interception of communications “involving someone we believe is associated with al Qaeda.” He claims “US identities are expunged when they’re not essential to understanding the intelligence value of any report,” which apparently they weren’t in late September 2001. He emphasizes “one end of any call targeted under this program is always outside the United States.”

    For the moment, let me suggest that if you were not minimizing US person data, and you could claim someone a US person was speaking to in Afghanistan or somewhere else “is associated with al Qaeda,” then you could accomplish almost all of what Hayden describes the the TSP to include. The single limitation–the single new thing the TSP seems to include–is if the known al Qaeda affiliate was in the US. But if you don’t have to show a court how you get to that person, then nothing would stop you from reverse targeting, simply claiming that the person overseas was the person who “is associated with al Qaeda.” You would need no more authorization to do everything included in the TSP, as described by Hayden, than to simply stop minimizing US person data. Which, it appears, is what Hayden was doing in September 2001.

    I just wanted to expand on the above – communication between a party inside the US and outside the US and whether or not that person has an affiliation with or to Al Qaeda.

    How many communications are intercepted, stored and reviewed before someone can definitively say, “subject not of interest” or determine the party is American and their name should be minimized? From what has been described in the past, once an intercept is deemed of interest, a domino effect triggers whereby each and every subsequent communication to and from the original two parties gets scooped up in the course of the operation. But how does the NSA decide a party is or is not of interest if they don’t have enough information? Collect more information until it becomes clear?

    Such a process is not finite but just keeps expanding.

    So how far does this process go? Is each subsequent party subject to investigation to determine if they do or do not have a relationship to AQ if the first parties relationship is unclear?

    All of this raises further questions, who exactly was reviewing the intercepts and determining who is and isn’t of interest? Add in the necessity of translation before any decision can be made and the entire process keeps growing bigger.

    It’s not hard to imagine a month or two going by before any determinations are made. And by that point, just exactly how much communication was intercepted and stored?

  8. bmaz says:

    Yoo thought that constitutional guarantees instantly evaporate following a terrorist attack. “It appears clear that the Fourth Amendment’s warrant requirement does not apply to surveillance and searches undertaken to protect the national security from external threats, he said. In another memo, this one to Alberto Gonzales, the White House counsel, he reiterated his view that the president’s power trump the Constitution. “Our office recently concluded,” he wrote, “that the Fourth Amendment had no application to domestic military operations.”(116)

    Well that was wrong, and everything that followed was poisoned.

    • earlofhuntingdon says:

      Yoo’s legal “logic” wasn’t true in any past war – though I imagine Douglas MacArthur would have loved it – nor in response to, oh, the Oklahoma City bombing. If I recall, the culprit there was investigated, arrested, tried and sentenced to death, none of which threatened the foundations of liberty for ourselves or our posterity. Nor does it seem to have applied in law enforcement’s response – or lack of it – to the terrorists trained in Florida and elsewhere and who continue to dream of retaking Cuba.

      I can’t get beyond the observation that Yoo just made this shit up.

  9. earlofhuntingdon says:

    But Todd makes a very good point that it’s too easy to bash ‘the media’; all the ‘media bashing’ short-circuits the need to hold electeds and DoJ accountable for doing their jobs — which should be to make sure the system is functioning in a healthy fashion.

    It would seem the media is doing its damndest to keep those in power from being held accountable, second only to the actors themselves.

    The claim that media “bashing” – pejorative shorthand for accurately accusing the media of journalistic malfeasance – substitutes for holding public officials accountable is circular and assumes the media is interested in and that it is not fighting such accountability. Plainly it’s fighting that accountability to promote its own business and political, not journalistic, interests.

    If that’s Todd’s argument, he’s being disingenuous and condescending.

    • readerOfTeaLeaves says:

      When political coverage is descended from sports coverage, all you get are wins-loses.

      The political media don’t seem capable of asking HOW would it be different if X won? HOW would it be different if Y won? At least, the cable media don’t seem to ask those questions.

      And if that’s the primitive, junior-high level of coverage, how on earth could they begin to get their heads around the idea of ‘pixie dust’?

      Sometimes I just shake my head; it’s easy to see why Cheney holds the media in such utter contempt. They never actually hold him to any kind of account.

      Ditto Bush.

      What’s ultimately incredibly sad about the media being caught in the whole ‘catnip conundrum’, like an infinite loop that goes nowhere but over, and over, and over, and over… is that they don’t seem capable of seeing how things could be different.

      Apart from a few (Sy Hersh, McClatchy), for the most part Cheney played the media for a pack of junior-high level fools. No wonder he dismissed them; he dismisses anyone that he doesn’t view as a potential threat. His daughter, and GWBush, are the same.

      Greenwald brilliant today, IMHO.

      The media don’t seem to ask, “Why are things so screwed up?”
      Instead, they get sucked into the narrative about political agendas and political expediency. That makes them sitting ducks for the Cheneys of the planet.

      Oh, and BTW: it’s getting rather sobering, now that TPM has an item up about how Cheney’s private ops group could even ‘hit targets’ inside the US. You’d think those media folks would take a deep breath and ask themselves what the logical result of something like Nixon’s “Enemies List” was in Cheney’s hands, and wonder if they would find themselves targets in the event they said or wrote something that got sidewise of His Imperial Highness.

      *sigh*

      • earlofhuntingdon says:

        Conformity and good press coverage are so much easier to enforce when one has one’s own domestic special ops team with a license to kill.

      • quake says:

        When political coverage is descended from sports coverage, all you get are wins-loses.

        Disagree. Sportswriting is probably the most honest kind of journalism left. And look at Olbermann, who got his start in sports, and is one of the best journalists in TV.

        • readerOfTeaLeaves says:

          Well, you make a very good point. But KO is a far smarter sportscaster than, say… Terry Bradshaw.
          And yeah, good sports journalists generally use sports as a great metaphor for larger life issues.

          • Mason says:

            And then there’s Yogi Berra in a class by himself and quite possibly the only person who could have metaphorically described this mess in five words or less without using the word “parse.”

            • readerOfTeaLeaves says:

              Oh, yeah. There’s a guy who knew that “”A nickel isn’t worth a dime today”, and that Texas had a lot of ‘electricity votes’.

              Yogi might be the perfect analyst for this degree of lunacy. Probably something along the lines of: “Mirror, mirror on the wall, let’s make sure Dick takes the fall.”

              But then, Dick probably has a few mirrors himself. God only knows what they say… (Off the top of my head: “Listen, G*d, don’t f*ck with me. And if you don’t believe me, go ask Tenet or anyone at CIA.”) …

  10. BillE says:

    Since all of this sounds like TIA, at least in how everyone thinks TIA should work. Is there a way to connect the historical assumed design of TIA to the various “programs” that have been announced or inferred?

  11. scribe says:

    One of the key sections of the IG report seems to be this, which you quoted above:

    In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities, but the first OLC opinion explicitly addressing the legality of the PSP was not drafted until after the program had been formally authorized by President Bush in October 2001. Attorney General Ashcroft approved the first Presidential Authorization for the PSP as to “form and legality” on the same day that he was read into the program.

    The first OLC opinion directly supporting the legality of the PSP was dated November 2, 2001, and was drafted by Yoo.

    I think we’re missing something important here.

    Look particularly at the sentence:

    In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities, but the first OLC opinion explicitly addressing the legality of the PSP was not drafted until after the program had been formally authorized by President Bush in October 2001.

    I think it is quite fair to parse this sentence closely (as much as it might be seen as overdoing it), because this report is both closely written by lawyers and thoroughly reviewed and edited prior to being sent out.

    This sentence has two major clauses:

    (1) In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities,

    and

    (2) but the first OLC opinion explicitly addressing the legality of the PSP was not drafted until after the program had been formally authorized by President Bush in October 2001.

    The use of the disjunctive “But” in this sentence tells me that there are two separate threads going on here – the OLC opinion(s) in October declaring the PSP legal, and the hypothetical random surveillance memos of September.

    We all seem to have been concentrating on the PSP, but I think even that is, to some degree, a shiny object. I want to look at the “several preliminary opinions relating to hypothetical random domestic electronic surveillance activities”.

    Every one of the public proclamations by government officials – regardless of who made them: Bush, Cheney, Hayden – has emphasized that the program of surveillance has been narrowly targeted to only those communications involving persons suspected of being (or actually) affiliated somehow with AQ. Indeed, the gist of all the surveillances the government talks about has been that it’s narrowly targeted and that US persons are safely excluded by the numerous safeguards built in to the program.

    So, why would the lawyers writing, editing and haggling over the IG report include a 4-adjective chain: “hypothetical random domestic electronic” surveillance activities when writing about what Yoo was writing?

    Parsing them out:

    “hypothetical” means, to me, that at the time Yoo was writing those memos, in September and October, 2001, the surveillance activities were not yet actual, but rather were being considered. Whether they were technically capable of being brought into being or not is a separate question – what was being considered was more likely to have been “under the law as we interpret it, can we arguably get away with doing the sort of surveillance proposed?” This indicates to me that there was some (or a lot) of brainstorming going on about whether a particular form or forms of surveillance would be worth pursuing – and part of that was seeing if a veneer of legality could be wrapped around it.

    “random” – this is the word that stuck in my craw (like that bit of undigested potato for Scrooge). What kind of surveillance could be described as “random”? The point of surveillance is not to look at everything and then decide what was suspicious. Rather, the point of surveillance is to determine what you wanted to look for – in this situation, people with links to AQ, regardless of whether they were real or imagined. Indeed, and particularly in the terrorism hunting context, it makes little sense to be randomly surveilling anything, or something.

    There is a truism in flyfishing that 90 percent of the fish are found in 10 percent of the water. Following this, you learn to read the water and determine which part of the water is that 10 percent, and then devote your effort there. You don’t go covering every inch of water with casts, particularly at random; in the first place only 10 percent of them (at best) will hit water containing fish and, in the second, you’re likely to spook the fish into refusing to rise by both the frenetic activity and your line crossing that 10 percent to hit the other 90 percent.

    So, why would anyone want to be surveilling randomly? It does not make sense as it’s a waste of time and effort.

    Moreover, let’s look at what a random surveillance model would be. In the first place, to be truly random, it would have to have the largest possible universe of intercepts from which to choose “randomly” to surveil. And that means – they would have to be capturing everything or close to it.

    In other words – they were looking to dragnet everything.

    Then the people operating it would have to have some way of determining which of the communications they randomly wanted to listen to. In today’s world, that would mean listening to a lot of teenaged girls talking about their fave boy-idols, and similar. Most of the traffic is garbage from an intelligence perspective – calls to Aunt Martha, emails confirming someone will be doing something inescapably domestic (i.e., bringing a casserole), and so on.

    In reality, people don’t do “random” well. They may say that they are looking randomly, but in reality and whether they admit it (to themselves or anyone else) they know what it is they are looking for and, when they claim “randomness” are really saying they are looking for a bullshit way of covering what they are really looking for from the people who are asking them what they are looking for. Even when they think they are acting randomly, they likely aren’t – they just won’t admit (even to themselves) what their objective might be.

    So, we get NSA people listening to their girlfriends’ conversations and mapping their contacts, to see if they’re cheating. And listening in on some overseas US person having phone sex with their back-in-the-states lover.

    “Random” isn’t reall random, at all.

    “Domestic”. This is the radioactive part. Yoo was exploring on how to find a veneer of legality for intercepting domestic communications. But, this work was entirely separate from his work on finding a way to support the PSP and the TSP. As EW says at 8 on this thread:

    Now, we have every reason to believe they were wiretapping US-US calls. But that’s not TSP.

    “Electronic”. Surveillance comes in many flavors, only one of which is electronic. Surveillance can include putting some guys in cars near your house to watch who goes in and out – not electronic. Putting a tail – virtual or actual – on your car. Not electronic (remember, FISA had a closely wrought definition of “electronic surveillance”). A GPS recorder to determine where your car went? Not electronic surveillance. A record of where your cell phone had been? Not electronic surveillance. A black-bag job? Not surveillance.

    So, in summary, I think it eminently clear Yoo was working on figuring out how to listen to purely domestic calls and read purely domestic emails of US persons without any legal impediments, from FISA or otherwise. To do this, they intended to put together a comprehensive dragnet of all electronic communications. Apparently, they would have been able to access – by manipulating search parameters – any set of this huge store of information at any time, for any reason.

    Sounds kind of like that big pipe that Verizon ran into Quantico, no?

    What we don’t know, yet, is:

    – what was the content of Yoo’s memos
    – what conclusions he came to
    – whether he (or anyone else) continued working on this legal justification after October 2001
    – whether (or, rather, to what extent) this program was implemented.
    – who he was writing for (though I’m fairly certain it was Addington and Cheney).

    There’s probably something else there which I’m missing, but the point is that if it’s going out in the electromagnetic spectrum, the NSA is reading and recording everything, in real time. And they don’t care about law.

    • emptywheel says:

      I agree with your point and think it’s an important one but this is not entirely true:

      What we don’t know, yet, is:

      – what was the content of Yoo’s memos
      – what conclusions he came to
      – whether he (or anyone else) continued working on this legal justification after October 2001
      – whether (or, rather, to what extent) this program was implemented.
      – who he was writing for (though I’m fairly certain it was Addington and Cheney).

      Because we have one of the three known opinions–the October 23, 2001 4th Amendment one.

      We know it was written for Gonzales and Haynes, we know that it said you could search US entities and even do property damage in pursuit of an Al Qaeda figure who might be in that US entity (think email server).

      That said, we also know that the November 2, 2001 memo at least cursorily deals with domestic collection and wire tapping, which looks precisely like this hypothetical domestic system.

      • scribe says:

        I’ll agree with you in part, because I was not being as clear as I could or should have been when I wrote

        What we don’t know, yet, is:

        – what was the content of Yoo’s memos
        – what conclusions he came to
        – whether he (or anyone else) continued working on this legal justification after October 2001
        – whether (or, rather, to what extent) this program was implemented.
        – who he was writing for (though I’m fairly certain it was Addington and Cheney).

        When I came to those conclusions (implicitly including a bunch of questions), I was casting them in the context of digging out the information relative to this clause of this sentence (to which I deovted my initial comment):

        In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities,

        We know a lot – as you correctly note – about what Yoo wrote and did relative to the so-called PSP and its’ subset the TSP. But that’s all an entirely separate animal from the hypothetical random domestic electronic surveillance activities dealt with in the first clause of the particular sentence I/we dug out of the IG report.

        Said another way, the warrantless surveillance of international calls and emails and so forth, together with “other intelligence activities”, which comprised the so-called PSP was one program. We know a lot about it. The “hypothetical random domestic electronic surveillance activities” Yoo was working on building a veneer for in September and October is an entirely different program. We surmised that it existed, but AFAIK the IG report is the first time that a government report or document has admitted even so much as the fact that people were working on creating such a dragnet regime devoted solely to domestic communications.

        So, to summarize:

        Program #1: PSP = international, pretty-much known about, Yoo memos are available.

        Program #2: “hypothetical random domestic electronic surveillance activities” = existence surmised, purely domestic, next-to-nothing known about, Yoo memos are not available.

        So, as to the purely domestic program #2, those September/October 2001 opinions are not available to us. Until the IG report came out, AFAIK, no one knew they even existed.

        We all need to be quite clear on this.

        And, FWIW, there may still be out there programs #3, 4, ad infinitum about which we know nothing, yet.

        As to answering the conclusions/questions I posed in my initial comment, I think we all “know”, given his history, what Yoo’s would have written in his September/October 2001 opinions: “sure, go ahead. You’re the president and can do whatever you damn well please and that includes domestically dragnetting everything.” would be a good place to start. The content of the September/October 2001 opinions would be yet another piece of evidence indicating what a hack Yoo was, and how thoroughly he’d whored out the OLC. Similarly, given the repeated instances in which the Cheney/Addington/Yoo cabal had worked together to remake the government from something resembling a Republic into a figurehead-dictatorship (Bush=figurehead, Cheney=dictator), I think it quite fair for us to conclude (as a working hypothesis) that those three were working on this and Yoo was writing for Cheney and Addington, such that they could then turn around and hammer others into doing their will using the OLC opinions they would not allow the others to actually read.

        The bigger questions would remain: did the domestic program continue post October 2001? Who worked on it post October 2001, and to what extent was it implemented?

        • emptywheel says:

          This is simply not true:

          Said another way, the warrantless surveillance of international calls and emails and so forth, together with “other intelligence activities”, which comprised the so-called PSP was one program. We know a lot about it. The “hypothetical random domestic electronic surveillance activities” Yoo was working on building a veneer for in September and October is an entirely different program.

          PSP is NOT foreign. If you claim it is you’re ignoring all we know about collecting ALL signals and doing data mining on it.

          Further we know one of the memos was considered to be among Yoo’s hypotheticals (at least by Bradbury when he withdrew it last year).

        • bobschacht says:

          …the so-called PSP was one program. We know a lot about it….

          (Sigh) Only a week or so ago, no one even knew there was a PSP, at least not by that specific name. But here, I guess, it is old news, thanks to EW, bmaz, and the commenters.

          We may be bandying about information that used to be top secret, but they had their 8 years to bend and twist the law and the Constitution for their benefit, and now the President wants to look forward, so they may get away with their crimes. They got to act, and cultivate their advantages, setting a trim-tab affecting the course of history, and Rove may be right: they got to DO things; and here we are just writing about it, while the flow of history has been diverted.

          Bob in HI

          • readerOfTeaLeaves says:

            Yeah, but we’re a patient crowd in many respects ;-))
            Short term, how many complete assholes have you seen appear to ‘win’?
            Karma always seems to like the long, scenic route.

            We’re on a longer time cycle than Rove; we know that ‘what comes around, goes around’ and we’re willing to wait — until now! — for Congress to address the issues that underlie so much that’s wrong: tax havens, black markets, black budgets, black money, too few resources in social and community health.

            BTW: Who cares what ‘the Pres’ wants or says??
            This is a CONGRESSIONAL responsibility.

          • NMvoiceofreason says:

            As a practical matter, nothing except capital crimes (war crimes, treason, murder, torture) that occurred before July 16th, 2004 can be indicted today, unless the statute of limitations is tolled by an ongoing criminal conspiracy. And we lose another day every day.

      • bmaz says:

        From that 10/23/01 opinion, we also have a pretty good feel for the scope they arrogated for themselves; i.e bound by little. If anything and anyone in the large apartment building or business was considered fair game for not just surveillance, but physical search and seizure, it is nigh impossible to believe they would not surveil anything or anyone they considered related in any way. You know they were reversing the old hub conspiracy theory and treating any hard information whatsoever as a hub and working outward to infinity on the spokes.

    • Mary says:

      hypothetical” means, to me, that at the time Yoo was writing those memos, in September and October, 2001, the surveillance activities were not yet actual, but rather were being considered.

      I disagree on this part. I think it is very likely that the surveillance activities were being carried on at the time and they were ponging back and forth to flesh out which of the facts of what they were really doing they could comfortably give Yoo for a reliance opinion, knowing that he’d generate what they wanted based on the “real” facts they gave him. It’s like the original Bybee torture memo hypotheticals – torture programs were already in place and operating at the time. Ditto for the hypotheticals of torturing generic detainees under prototypical interrogations from Bradbury – the torture was already ongoing.

      The hypotheticals were kind of a fishing back and forth, without otherwise having to create a traceable trail of conspiracy communications to support the eventual, actual reliance opinion. Why would the OLC of all entities be issuing opinions based on hypotheticals for all of this stuff? At a minimum, you’d expect to see the agency lawyers spitting something out and then sending it to OLC for a blessing, and that would have speeded the process as well in a time where speed was needed. Instead, you had OLC lawyers playing pong – “um, hey guys, here’s some stuff I kinda think you could do if you wanted” later a “uh, hmmm, didn’t hear back from you on that, so here’s some other stuff and other arguments” then a tender of by then pre-existing facts, put in a future tense, with a reliance opinion tailored to them.
      IMO,FWIW.

      I agree on the rest and the random in particular sticks. It’s like he was out soliciting crime by offering up a menu hoping to tempt a palate.

      And btw, I think your discussion on electronic hits again on the reasons that these limited issue IG reports are not nearly as helpful as they could/should be. If US citizens homes were being searched, bank accounts examined, children stalked surveilled etc. that might have been “outside the scope” of review. And if those citizens were members of Congress even?

  12. fatster says:

    Report: CIA Assassin Program Could Operate Anywhere — Even Inside U.S.
    By Zachary Roth – July 16, 2009, 11:31AM

    “We may have gotten a good piece of the answer here: The Washington Post reports today on how the program had been revived and then put on hold several times since 2001. But it also says, referring to the “presidential finding” with which President Bush authorized the program in 2001:

    ‘”The finding imposed no geographical limitations on the agency’s actions, and intelligence officials have said that they were not obliged to notify Congress of each operation envisaged under the directive.”‘

    Link.

    • earlofhuntingdon says:

      The black helicopter and its occupants coming to a neighborhood near you.

      What this has to do with keeping anyone but Cheney or his successors in power, rather than all of us safe, we’ll never know.

  13. JThomason says:

    “Endorse” is a funny word for describing the purposes of legal memoranda. It rings of political activity. The relevance of the constitution to Yoo could not be more clearly evident in that if he were advocating constitutional change he should have suggested an amendment which he clearly did not. Wishful private argument really should not be enough.

    • earlofhuntingdon says:

      It’s not enough and Yoo knew it, which helps trash the argument these opinions were rendered in good faith or could reasonably be relied upon.

  14. Mary says:

    Super.

    Again, so superlative I’m going to do something I almost never do. This, “he doesn’t have the clarity that the IGs have[?]which of his OLC memos” is missing a couple of words. You were thinking faster than typing, even as fast as you type.

    Also, I don’t have a strong feeling on this, and if I had an inclination it would be that you are right about Pelosi meaning two sets of communications, but this part,

    You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted] I believe you have a much more difficult case to make [redacted]

    might also be referring to the bifurcated issues of turning over info to the FBI without getting a request for the info (which she could understand) vs. not minimizing in connection with those unrequested turnovers (which she thinks he has less of an argument for).

    More later.

  15. Mary says:

    BTW – while I know nothing about the book world and publishiing, I can’t help but think this post, the 15 days post and the OIA post form a nice summary for submission of a book concept. Really really good stuff.

    edited to add –

    LOL, I just started on the commments and see @2 that someone beat me to this.

  16. Garrett says:

    Pelosi’s letter doesn’t repeat the claim that Hayden was doing this “on his own initiative.” That’s significant, because Bamford relies on this Lichtblau and Shane article to make his claim, and that article overreads Pelosi’s letter itself

    The idea that Hayden was doing it on his own is at least partly supported by Haydn’s response to Pelosi:

    In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.

    The parsing (”I was attempting to emphasize”) is interesting.

    I can never get links to work here, so:
    www .house.gov/pelosi/press/releases/Jan06/declassified.html

    • emptywheel says:

      I disagree.

      His initiative says he came up with the idea.

      His authority says that he used authorities granted to the NSA Director.

      What he’s doing is precisely parallel to what Scott Muller did in response to Jane Harman in 2003 (that is, a full year after the torture started) by saying, we’ve got the authority. It’s a way to shut down the question of whether the President has approved the program, but is in no way 1) a denial that the President has approved it or 2) a denial that Cheney came up with the idea.

      Throw in the reference to 12333 (which we have reason to believe the President changed), and there’s no case, for or against, that this came of his own initiative.

      • Garrett says:

        I disagree.

        OK. Much of the recent focus has been about lying to congress. This is just another instance of it.

        After September 11
        NSA Director Michael Hayden, without Presidential authorization and using Executive Order 12333 as “authority”, begins an expansive surveillance program.
        NSA Director Michael Hayden begins an expansive surveillance program. Hayden will claim the early NSA activities were without Presidential authorization and under Executive Order 12333 as “authority”. The dirty lying bastard.

        www .dkosopedia.com/wiki/Warrantless_Eavesdropping_Timeline#After_September_11

  17. scribe says:

    Oh, yeah. For more of Yoo’s hacktastic goodness, go read this tissue of lies.

    I think you’ll see he kind of confirms (very indirectly) what I’ve been saying about the domestic program.

  18. Mary says:

    Couple of other things.

    Re: Hayden acting on his own crook or under one or a combo of a Yoo opinion re hypotheticals and an EO, here’s something that I think supports strongly the notion that he had something more.

    Once he starts sending over to FBI, without request, all kinds of transcripts and captures of non-minimized communications, someone there is going to say something. So what would have overcome the FBI reaction to getting all kinds of US citizen info? I’ve always thought Mueller had some real self interest in the outcome of the hospital showdown.

    Another area – the whole history on all these programs has been rolling disclosure and obfuscations. While I think it is very likely that Hayden did start collecting pretty much “everything” vis a vis Afghanistan/US (which might have been a big job but not overwhelming given the nature of Afghanistan and it’s US communications at the time) I don’t buy that Hayden limited himself to Afghanistan.

    You had hijackers immediately known to be primarily from Saudi Arabia and Egypt. I’m guessing there were existing minimization orders on for a number of people in those countries who had frequent US contacts. I’m guessing those went by the by as well.

    Getting into more WAG territory, Hayden sending over a lot of non-minimized info to FBI might have had a tie with some of the things Sybil Edmonds alludes to having seen in intercepts she was translating. And why everyone might want to kill that story too – not only the names/people involved, but the fact that going into it would demonstrate a clear tie between the FBI and violations of FISCt orders and violation of law as well.

    Both these last two are just spec and getting less removed from fact from the first to the second, but I don’t buy Hayden pulling up US info but only for calls from Afghanistan when so much of al-Qaeda’s ties were SA, Egypt and financially via UAE.

  19. Mary says:

    BTW – the Harman call, where apparently the whole transcript of her end of the conversation was passed around willy-nilly even though she was not a target and without any minimization — wasn’t that in 2005?

  20. Mary says:

    @16 – “all the ‘media bashing’ short-circuits the need to hold electeds and DoJ accountable for doing their jobs” yes and no. The media is a huge propaganda tool, bigger than it has ever been and the US public, after conditioning in the 60s-80s to believing in the concept that if the media learned of bad stuff, it would report it and report it heavily, the US public is now conditioned to think that if they don’t hear something hammered on in chorus by the 24 hour networks and the MSM news, it isn’t true or it isn’t news. The media shifts reality points. So you NEVER get to a point where you can hold anyone accountable bc the media has propagandized the electorate to where they don’t believe there is an issue. IMO, fwiw. I have certainly had quite a few people (fox watchers) when I tell them something, they say it can’t be true or they would have heard it on TV and when I do things like give them court opinions, they are a bit stunned. They really think Glen Beck can’t be a liar and an idiot, or he wouldn’t have his show.

  21. klynn says:

    Both these last two are just spec and getting less removed from fact from the first to the second, but I don’t buy Hayden pulling up US info but only for calls from Afghanistan when so much of al-Qaeda’s ties were SA, Egypt and financially via UAE.

    (my bold)

    I agree.

  22. WilliamOckham says:

    All three locations matter, but I was referring to the location of the tap. FISA was quite specific that, if the wire tap was located in the US, you have to have warrant. I strongly recommend that you look at the transition document that the NSA prepared for the incoming Bush administration in late 2000. I’m on a mobile device and can’t give you a link but it is on the National Security Archives site.just google NSA transition FOIA to find it. Then look at the discussions of the Nacchio trial on this site.

    • Citizen92 says:

      After all, CIA’s In-Q-Tel (according their 990’s) did make significant payments to a La Jolla company called Graviton…

      And Graviton was headed by Sol Trujillo, who was a long term Bell Systems executives, then US West Executive. (US West was acquired by Qwest, when Joe Nacchio was at the helm… Nacchio and Trujillo had a falling out… You may remember Qwest apparently refused to wiretap).

      Anyway, Gravitron was working on a wireless data network.

      Other In-Q-Tel Major expenditures (for professional services) included:
      2000
      Open GIS Consortium (Wayland, MA)
      SAIC
      Business Performance Management (Chevy Chase, MD)
      TASC (Reading, MA)
      Systems Research & Applications Corp (Fairfax, VA)

      2001
      Stratify Inc
      SAIC
      Zaplet Inc
      Sher Associates (Round Hill, VA)
      Arnold & Porter

      2002
      Attensity Corp
      Qynergy Corp
      Gravitron
      Stratify Inc
      Arnold & Porter

      2003
      Inxight Software
      Keyhole Corporation Inc
      Qynergy
      Convera Technologies
      DataMatrices

      2004
      Language Weaver Inc
      Novo Dynamics
      Fluidigm Corp
      Endeca Technoligies
      Nanosys Inc

      2005
      Multi Threaded (Herndon VA)
      Arnold & Porter
      Sher Security, LLC
      PWC
      LMN Solutions

      2006
      Multi Threaded (Herndon VA)
      Arnold & Porter
      Sher Security, LLC (Round Hill VA)
      Cornershione Communications (Fairfax VA)
      LMN Solutions (Oak Hill VA)

      2007
      Multi Threaded Inc (Herndon VA)
      Arnold & Porter
      PWC
      Mercer Human Resources Consulting (Charlottesville, VA)
      LMN Solutions (Oak Hill VA)

      Expenses for “tech development” also begin to appear for the 2007 and 2008 filing periods.

      • Citizen92 says:

        A lot of these companies seem to have a lot to do with business intel or data mining and processing.

  23. al75 says:

    Just a few points of clarification: all or most of these intercepts are in English, right? These massive “data-mining” operations don’t engage the arabic language – am I right?

    And the sensitive part of the program is the extent to which it ropes in english-speaking Americans. Right?

    Another point: there’s no documented evidence of this massive, invasive program ever catching a terrorist or thwarting a significant attack, right?

    So…what’s the program really for?

  24. Mary says:

    @ 38 – scarey, almost. I’m glad you aren’t signing as “mary’s Hanni #1″

    @32/45
    Again, I’m not nearly as into the operational and tech stuff as you guys, but here is what I am understanding from EW, to Mad Dog, to scribe.

    In addition the “al-Qaeda is on the line and 1/2 the call is out of country” TSP, we have other OIA some of which is data mining and some of which many of us would call data mining but the Intel community has tried to define as something else. So we have “pattern recognition” data mining programs (tennis shoes) vs. “links” non-data mining bc we self define them to not be data mining programs. All of which have been hit on by these most recent posts and many EW has generated earliers.

    But my reaction to the “hypothetical random domestic electronic surveillance” language is that random means random. Not links based, not pattern based, but random. That’s the mindset that I had when I read scribe’s comment and how I am interpreting this. Or at least, random with respect to how the communications (if not the communicator) were selected.

    Whatever very weak argument you might try to make for the reasonability of warrantless domestic searches/seizures of communications based on patterns or links, if they are random, that’s really hard to justify.

    So for example, if they did a patterns analysis to pick someone here in the US as a likely, they might have then had an element where they just randomly went through as looked at pieces and full lenghts of communications to see if that smoked out anything. Or if they just picked a US person bc they wanted to (not based even on a links or patterns approach) and started pulling up random calls/emails etc to look at. That’s what random says to me in the quasi legalistic fashion it seems to have been used. fwiw.

    • MaryCh says:

      Another reason to see the earlier memos — I’ll believe these were “hypothetical” when I can see the characterization for myself.

      I’m inclined to believe, given the mix of immediate post-9/11 hysteria and opportunity, that the more important content of these memos was provisional justification rather than hypothetical analysis.

      OIW, the first memos were shots from the hip erring on the side of “whatever you want to do” with a large helping of “I’ll cobble together a CYA to get pass the laugh and perp walk tests and get back to you.”

    • bobschacht says:

      But my reaction to the “hypothetical random domestic electronic surveillance” language is that random means random. Not links based, not pattern based, but random.

      Mary, “random” has a technical meaning in sampling theory. It is not the same thing as “haphazard,” or catch as catch can. “links based,” and “pattern based” are types of “systematic” sampling.

      Actually, it strikes me now that the type of sampling they were using resembles “snowball sampling“– or is that what you meant by “links based”?

      Bob in HI

      • NMvoiceofreason says:

        I can’t answer for Mary (she would have a better answer than I do anyhow), but link based analysis is tied to the communications links involved. In a phone call, the phone line. In an e-mail message, the internet. Phones have number, so do computers, so do house, and nowadays, so do people. Link analysis in NSA terms derives from the old technique of Traffic Analysis – who is talking at the same time on the same channel (radio), do we know who they are, who do they talk do, which way does traffic flow, etc. This is what the Traffic Master software automated years ago because there were not enough bright humans to go around. So link analysis takes some PID (personal identifier: phone#, IP#, house#, CC#, etc) and sees who (or more accurately, which other PIDS) are being communicated with.

        • Mary says:

          I kind of think it goes to Hayden’s attempt at “hot pursuit” of communications explanation too. A (presumably a “known terrorist” like the kid who bought tomatoes for the Taliban) in Afghanistan calls B here in the states, so using that “first link” they start following the calls B makes to others, then the calls the others make to more others, etc. to see if they can pick up relevant (to A’s terrorism) communications from the spin offs of B’s calls.

          I defer to the techies like WO, EW, Mad Dog and many others on this stuff though.

          • bobschacht says:

            Once you start following everything Afghanistan, you start including communications with the Revolutionary Association of the Women of Afghanistan and other charitable organizations, such as the International Rescue Committee/Afghanistan branch, as well as a personal friend of mine, who donates her expertise as a gynecologist for 6 months per year to a hospital in Kabul, and writes “notes from the field” while she’s there. All fair game to the dragnet, I suppose, and since most of them may have a skeptical attitude towards our Afghanistan policies, they might be regarded as “associated” with “terrorist” organizations within the ample scope of the weasel words the dragnets used.

            Bob in HI

      • Mary says:

        On the snowballing, pretty much. I am referring back to Mad Dog’s comments and DNI info at comment 95 here:
        http://emptywheel.firedoglake……ent-174075
        and also in subsequent (110, 111 etc.) comments on that thread.

        The ODNI was stating there what it thought data mining was, and wasn’t.

        It was (to them per their definintion): “pattern-based queries, searches or other analyses of 1 or more electronic databases” in order to “discover or locate a predictive pattern or anomaly indicative of terrorist or criminal activity”

        It was not (to them, per their definition): “various types of link analysis tools. These tools start with a known or suspected terrorist or other subject of foreign intelligence interest and use various methods to uncover links between that known subject and potential associates or other persons with whom that subject is or has been in contact.”

        Or as EW put it, playing 6 degrees of Osama was not being treated by ODNI as data mining and therefore not subject to prohibitions on datamining by statutes.

        My point on random was that it would have been something other than either of those two examples. Maybe using a search pattern, but not necessarily one that was generated with a basis and arguable intent to “discover or locate a predictive pattern or anomaly indicative of terrorist or criminal activity” but instead to more directly just pull communications of US targeted persons without a probable cause or reasonable basis that you were pulling terrorist communications.

  25. joanneleon says:

    Ten days after the attacks, Yoo wrote an internal memorandum arguing that the NSA could use “electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses.”
    [emphasis added]

    NSA is a signals intelligence agency. Have we ever been told about how they “observe the movements of persons”? Why does he choose the word “observe”?

    ———–

    “The president has not presented this truthfully,” said Klein, a 62-year old retiree. “He said it was about a few people making calls to the Mideast. But I know this physical equipment. It copies everything. There’s no selection of anything, at all — the splitter copies entire data streams from the internet, phone conversations, e-mail, web-browsing. Everything.”
    Mark Klein’s statement – TPMMuckraker

    Assuming that the PSP program is the one that authorized tapping into telecom switches, “vacuuming” up the data and then putting it into storage facilities, I would like to know not only when the program was approved, but when it became operational. Storing all the data coming out of those switches in real time is a massive technological feat. I have to go back and read again on this subject but I believe it was thought to be technologically impossible at that time. How long was the NSA working on this capability?

    ——
    I have to laugh when Hayden tells his people “We’re going to do exactly what he said and not one photon or electron more.” In terms of communications, were there any photons or electrons left that they didn’t “hoover”?

    • Mary says:

      Apparently photons and electrons have rights, it’s just US citizens that don’t.

      I think there have been some other posts here about the NSA satellite surveillance capabilities.

      Here’s a link to a story from last Oct about the capabilities and surviellance.

      The Department of Homeland Security will proceed with the first phase of a controversial satellite-surveillance program, even though an independent review found the department hasn’t yet ensured the program will comply with privacy laws.

      Congress provided partial funding for the program in a little-debated $634 billion spending measure that will fund the government until early March. For the past year, the Bush administration had been fighting Democratic lawmakers over the spy program, known as the National Applications Office.

      The program is designed to provide federal, state and local officials with extensive access to spy-satellite imagery — but no eavesdropping — to assist with emergency response and other domestic-security needs, such as identifying where ports or border areas are vulnerable to terrorism.

      Like so many other things, whether it had already been being done, esp via NSA instead of via DHS directly, is up for grabs, but the answer is likely “yes.” And some of this has been recently shot down, but only in the more visible DHS guise – in a warrantless NSA program, who knows?

      Homeland Security officials are expected Tuesday to announce the elimination of an intelligence satellite monitoring system that has been approved for domestic terrorism surveillance and has been criticized by law enforcement officials, who say it tramples civil liberties.


      Homeland Security Secretary Janet Napolitano reached the decision after discussions with law enforcement officials, the Associated Press reported late Monday night.

      • Jesterfox says:

        Congress provided partial funding for the program in a little-debated $634 billion spending measure that will fund the government until early March.

        If this number is correct, why are we arguing about the cost of healthcare?

    • drational says:

      If you hold a cell phone, you broadcast signal constantly, allowing your location to be pinpointed by triangulation of the towers your signal hits.

  26. emptywheel says:

    joanneleon

    I’m guessing that the movement refers to using GPS trackers in cell phones. They are using that now in some cases (Chris Christie in NJ is a big fan of them), though it remains contentious.

    • drational says:

      There is also the possibility for passive radiofrequency ID tracking on the chips you have in your credit cards, passport, and if you were a cat (and maybe a former detainee), under your skin.

      • emptywheel says:

        Dog too, if you get him from the pound. I’ve discovered that’s actually how NSA decided to track me, after they realized I was more likely to go somewhere with my dog than my cell phone. Thing is, I love my dog much more than I love my cell phone.

  27. lysias says:

    Once you have the Bush (and now Obama?) administration’s postulate that it will do whatever the law permits against the terrorists, then deciding what the law is is deciding what the policy is.

    Myself, I’ve always been extremely troubled by that postulate. It means that you’re willing to go at least as far as up to the line that divides legal from illegal conduct, which in turn means that, if you get the law even slightly wrong, you’ve stepped over into illegality.

  28. lysias says:

    Once you’ve got an OLC opinion saying that some apparent violation of FISA is in fact legal, that’s binding law on the whole executive branch, and any NSA lawyers or executives who want to refuse to perpetrate the violation can no longer use the argument that the law prohibits it. They’re pretty much forced to go ahead and do it.

  29. lysias says:

    Congress has the power to solve the statute of limitations problem. The courts have ruled that it is no violation of due process to prosecute someone using a statute of limitations that Congress (or a state legislature) has extended before the statute has run on the defendant in question.

    • NMvoiceofreason says:

      No ex post facto law means the crimes committed before this date on 2004 are out of reach. Yes, statute of limitations can be extended, but nobody in Congress is going to act on this before it is too late – much less Holder and Obama who would rather just see it go away.

    • fatster says:

      Please pardon the sarcasm, but dream on. They aren’t interested in stuff like that. They are interested in giving retroactive immunity in order to protect those powerful and well-monied corporations who were doing some very very illegal things in consort with the gubmint.

  30. bubbagoober says:

    Marcy,

    The modern sherlock Holmes.

    (Btw, the next time you’re on teevee, forget bj’s — just go racial and sexist, then msnbc will make you a full time guest, just like Herr Buchanan)

  31. Xboxershorts says:

    Siegleman, Minor, Georgia Thompson, 700 odd elected oofficials investigated by Bush’s justice department since 2001…87% democrats

    When did these prosecutions begin? How early in the Bush 1st term were indictments beginning to be handed down? Even before taking office, in 2000, his National Security team was laying the groundwork for an expansion of data collection.

    Joseph Nacchio of Qwest communications has submitted sworn testimony and (redacted) documents to support that testimony that the NSA was implementing a broad data collection program in February 2001, Qwest’s lawyers advised Nacchio that the program was not legal and Qwest would not participate. Nacchio would later be prosecuted for insider trading after the company’s stock value tanked when NSA pulled out of hundreds of millions of dollars worth of contracts already in place.

    Domestic surveillance, outside of FISA authority, was already in place well prior to the events of September 11th 2001. How plausible is it, that the orignal target of this surveillance was not criminal, but political?

    In this context, therefore, since their target was domestic politics, their surveillance would completely miss the very real terror threat this country faced…missing the terror threat from abroad because their real interest was in consolidating power at home.

    Your work is invaluable Marcy, but I suspect that even you might have difficulty accepting that…the roots of Bush’s criminal spying activity stretch well beyond that which which is relevant to the unspeakable horrors of September 11th, and their overreaching reaction to that terrible day. Look beyond September 11th, Bush and Rove, above all else, are political animals. And Rove’s permanent republican majority was more than a pipe dream.