Did the Hospital Confrontation Shut Down an Illegal Dragnet against Iraq War Critics?

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Several days ago I wrote,

Both Goldsmith’s memo (see PDF 14) and the Draft NSA IG Report (PDF 10) make it clear that, in addition to temporarily shutting down the Internet dragnet, the March 19, 2004 modifications to the program narrowed the program’s focus to exclude the Iraqi Intelligence figures who had previously been included, suggesting that Goldsmith only felt he could approve the program for terrorists.

Wait, what?

I’ve known — and written — about this detail in the past. But I hadn’t really put together what it means.

Post-hospital confrontation changes include the exclusion of Iraqi-related targets

Here’s what the two passages say. Goldsmith’s (still heavily redacted) memo reveals that, along with other modifications George Bush made on March 19, 2004 in response to the DOJ resignation threats (notably, temporarily shutting down the Internet dragnet) he also “clarified” the scope of the program.

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [redacted]. He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group [redacted]

The NSA IG Report explains that “clarification” halted using the Presidential Surveillance Program authority against the Iraqi Intelligence Service.

(TS//SI//NF) Iraqi Intelligence Service. For a limited period of time surrounding the 2003 invasion of lraq, the President authorized the use of PSP authority against the Iraqi Intelligence Service. On 28 March 2003, the DCI determined that, based on then current intelligence, the Iraqi Intelligence service was engaged in terrorist activities and presented a threat to U.S. interests in the United States and abroad. Through the Deputy DCI, Mr. Tenet received the President’s concurrence that PSP authorities could be used against the Iraqi Intelligence Service. NSA ceased using the Authority for this purpose in March 2004. [my emphasis]

There may be a perfectly innocent explanation for this.

At precisely that time, Goldsmith was trying to rein in the government’s rendition program to prevent the rendition of Iraqis protected under international law governing occupation. And, at what appears to have been the same time, DOD was for the first time making a distinction between between Iraqis detained and interrogated as former regime officials and Iraqis detained and interrogated as leaders of the insurgency. Clearly, up until that point, Bush had been using the rules invented to hunt terrorists in his Iraq War, creating all sorts of legal problems. So it would be unsurprising if Goldsmith used the resignation threats to force Bush to stop targeting Iraqi officials as terrorists when they were really legal opponents in a war.

The Iraqi-related illegal wiretapping targets must include US-based collection

Except that doesn’t make sense.

That’s because, whatever violations of international law Bush was committing in Iraq, illegal spying on Iraqis was almost certainly not one of them. Nothing prevented the government from spying on Iraqis, and very little spying on Iraqis in Iraq would involve the kind of US collection that implicated his illegal wiretap program.

Which is why the IG Report’s description of an Iraqi intelligence “threat to U.S. interests in the United States” gives me pause.

The illegal program, after all, was focused on US metadata and content collection to find threats (what it called “terrorists”) in the United States. Both the method and location of collection only make sense if you’re hunting communications with at least one, if not both, sides in the US.

There was no real known threat posed by Iraqi governmental interests in the US, in part because the US military chased the Iraqi government underground so quickly. And yet, for it to be something tied into the resignation threats, some significant spying must have been going on.

The obvious guess — and at this point it is just a guess — would be they used the illegal wiretap program to hunt down people Cheney’s minions claimed helped Iraq’s cause here in the US.

You know? Iraqi intelligence assets? Like anti-war activists?

Some data points that might support Bush’s use of his illegal program against anti-war activists

Again, at this point, this is just a guess, one that would be thoroughly unsurprising but is not supported by hard facts.

But it’s worth remembering that Bush did roll out a domestic spying program to track anti-war activities, CIFA, the database for which was destroyed just weeks before NYT initially exposed Bush’s illegal program. We know there were ties between that program and heavy FBI investigations in the US. Then there’s the Antiwar investigation, started just weeks after the hospital confrontation, that used a counterterrorism purpose (a watchlist Antiwar posted) as the predicate to call for further investigation of Antiwar’s online publications, conducted in multiple cities. The Bush Administration was clearly conducting aggressive spying on anti-war activists, so it would be unsurprising to learn it used the threat of Iraqi involvement in the US to conduct illegal electronic surveillance.

Then there’s the suggestion in this NSA training program (from which the two slides above come — see this post for background) that NSA had a “present example” (in 2009) of an abuse akin to Project Minaret, in which a watchlist of citizens –largely critics of the Vietnam War — were surveilled in the name of tracking any foreign influence on them. Here’s Matthew Aid’s description of recent disclosures about that program.

As the Vietnam War escalated during Lyndon B. Johnson’s presidency, domestic criticism and protest movements abounded. Protesters surrounded the Pentagon in the fall of 1967 and two years later organized demonstrations and the Moratorium to End the War in Vietnam. The scale of the dissent angered Johnson as well as his successor, Richard Nixon. As fervent anti-communists, they wondered whether domestic protests were linked to hostile foreign powers, and they wanted answers from the intelligence community. The CIA responded with Operation Chaos, while the NSA worked with other intelligence agencies to compile watch lists of prominent anti-war critics in order to monitor their overseas communications. By 1969, this program became formally known as “Minaret.”

While the NSA slide describes the present example as “unauthorized targeting of suspected terrorists in the U.S.,” not targeting of anti-war activists, we know the collection shut down in March 2004 must have involved the targeting of people in the US based on a claim that some tie to Iraqi interests made them terrorists. Moreover, such targeting would be an exact parallel with Minaret (and while I haven’t discussed it yet, I am cognizant of Bernie Sanders’ recent questions about the targeting of members of Congress, as happened under Minaret and, for reasons explained in my earlier post, as the training program may allude to).

Again, I want to emphasize: this is just a wildarsed guess. though one consistent with what we know about Bush’s illegal program and his surveillance of anti-war activists generally.

Whatever it was, it was part of the package that almost led a bunch of DOJ officials to quit.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

10 replies
  1. Peterr says:

    To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.

    John Ashcroft, Testimony to the U.S. Senate Judiciary Committee (6 December 2001)

    Given Ashcroft’s attitude about those who protest and speak against the US, I can see why Andy Card and Alberto Gonzales would have wanted to have Ashcroft make the call on the dragnet. Their only problem was that Ashcroft knew he was in no condition to make a decision like that, and fell back on his earlier decision to leave the DOJ in the hands of his #2.

  2. Juche breath says:

    ‘That’s because, whatever violations of international law Bush was committing in Iraq, illegal spying on Iraqis was almost certainly not one of them. Nothing prevented the government from spying on Iraqis…’

    This statement shows significant residual brainwashing with the government-issued Big Lie.

    “Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.”

    http://www1.umn.edu/humanrts/gencomm/hrcom16.htm

    Look, you’re not a US-trained lawyer, thank goodness, in fact you’re fortunate to have a superb liberal education. So there’s no excuse for sharing US lawyers’ imposed delusions about binding treaty law. Mass surveillance in Iraq is legal just like feeding Uncle SongThaek to starving dogs is legal: you can get away with it on your own turf. That will not fly in universal jurisdiction.

  3. scribe says:

    Just remember, Bushie himself was talking during this time period about how “we’ve got to end this dissent”, and his press clown was reminding people in the media to “watch what they say”.

    So, it’s entirely plausible that they were monitoring the anti-war protestors.

    Don’t forget, also, how press (Amy Goodman, IIRC, among them) were treated as late as the 2008 Minneapolis convention – terrism charges for sitting there eating lunch.

  4. Peterr says:

    @Juche breath: Your words might have more effect if you looked at the source of what you were quoting from. You cite from “General Comment 16” of the “Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” not from a treaty itself. The introduction to General Comment 1 lays out the purpose of these compiled comments:

    “The Committee wishes to reiterate its desire to assist States parties in fulfilling their reporting obligations. These general comments draw attention to some aspects of this matter but do not purport to be limitative or to attribute any priority between different aspects of the implementation of the Covenant. These comments will, from time to time, be followed by others as constraints of time and further experience may make possible.

    The Committee so far has examined 77 initial reports, 34 second periodic reports and, in some cases, additional information and supplementary reports. This experience, therefore, now covers a significant number of the States which have ratified the Covenant, at present 87. They represent different regions of the world with different political, social and legal systems and their reports illustrate most of the problems which may arise in implementing the Covenant, although they do not afford any complete basis for a worldwide review of the situation as regards civil and political rights.

    The purpose of these general comments is to make this experience available for the benefit of all States parties in order to promote their further implementation of the Covenant; to draw their attention to insufficiencies disclosed by a large number of reports; to suggest improvements in the reporting procedure and to stimulate the activities of these States and international organizations in the promotion and protection of human rights. These comments should also be of interest to other States, especially those preparing to become parties to the Covenant and thus to strengthen the cooperation of all States in the universal promotion and protection of human rights.”

    The treaty upon which all these comments were made is the International Covenant on Civil and Political Rights — a covenant designed to describe how the signatory nations agree to treat THEIR OWN PEOPLE. It isn’t an agreement about how country A treats country B and its people.

    There are treaties like that, but this isn’t one of them.

    In the section of the general comments you cited, you left out the first two sentences: “Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis.” What the general comment is talking about is the legislation a country should enact to protect their own people from the activities you describe.

    As such, rather than reversing Marcy’s point, it makes Marcy’s point even more forcefully. By our signature on this covenant, we agree not to illegally spy on our own people — like those who criticized the Iraq war.

  5. Saul Tannenbaum says:

    It’s worth pointing out that, in 2004, the Deputy Under Secretary of Defense for Intelligence was William “Jerry” Boykin, a man who believes that most Mosques have been radicalized and are fronts for violent jihadists. It’s certainly plausible that a good portion of the DOJ would resign if it turned out that we were spying on Amercian Muslims based on Boykin’s views. But, as you say Marcy, this is just wildarsed guessing.

  6. emptywheel says:

    You know, one other thing they could have been looking at was the Oil-for-Food program. That would fall under a claim of “helping” Iraq. Judy Miller got many of the scoops from that. And the few cases that were brought–especially the allegations against George Galloway–were politically dodgy.

  7. emptywheel says:

    @Juche breath: The Uncle story appears to be a hoax.

    And this is not mass surveillance in Iraq–that was part of my point. The “mass” part of it took place in the US. (Though in the early part of this period, Keith Alexader, over at Army, probably was mass surveilling in Iraq, though allegedly Michael Hayden refused to share this data with him.)

  8. emptywheel says:

    @Saul Tannenbaum: Sadly, I think that overestimates the DOJ. We’ve had fairly widespread spying on mosques both before and after this period, and no one seems to have given a damn. Hell, DOJ keeps promising but failing to looking into NYPD’s spying on mosques.

  9. Juche breath says:

    A hoax, right, EW, but a great yarn and a fun example for comparison with our own loony hermit kingdom, where our dear leaders let the dogs chew but not swallow. And true too, that US surveillance in Iraq was probably more like large-scale targeting for wilful killing or torture in complicity with a plan or policy in breach of Rome Statute Article 8.2.a (i) and (ii) (and corresponding universal-jurisdiction law.) So it’s worth bearing in mind, I spose, that the surveillance was limited to instances when McRaven and Flynn needed to drill holes in helpess Iraqi captives.

    But mass or not, surveillance, “whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations” suspends the rights and actions of the nationals of the hostile party, which is a war crime in itself (Article 8.2.b.xiv). Any occupying force is held to human-rights standards that the US government has never met at home.

    As for Peterr, thanks for repeating the US official Big Lie and helpfully shouting the punchline, THEIR OWN PEOPLE. Wrong. And it doesn’t get any truer if you parrot it over and over. Take it from the Inter-American Court: the “object and purpose [of human rights treaties] is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States.” Don’t listen to the Juche of the US law schools’ Songun Pioneers.

    And the Human Rights Committee does take a softly-softly approach in interpretive guidance, but they can afford to. The law that the HRC is interpreting is supreme law of the land equivalent to federal statute with which US law at all levels must be brought into compliance. Under Article 38.1.d of the ICJ Statute, the HRC has interpretive authority.

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