Why Tice?

It has taken me a day or so to report that Russell Tice has been subpoenaed, mostly because I’m still puzzling through it. I’m wondering why Tice. Why not other people almost certainly involved with the leaks to Risen and Lichtblau. I mean, I’d bet my hat that James Comey was a source for Eric Lichtblau, but I haven’t heard about Comey getting subpoenaed. Why not the former technology manager who seems to be a key source for both Risen and Lichtblau and Harris and Naftali?

A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.

“All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.

He or she must have had clearance and must be senior enough to track down fairly easily. Another real doozy of a witnesses would be Mark Klein, who gave explicit details on the AT&T program to Wired News, which then published those details.

Of course, that’s the thing. We don’t know whether Tice is the only supposed Risen-Lichtblau source getting subpoenaed, or whether he’s simply the only one going public about the fact.

Sibel Edmonds’ National Security Whistleblowers Coalition suggests the Tice subpoena relates specifically to the cases against AT&T currently working their wayor not–through the courts.

In addition, the timing of the subpoena appears to be more than a little suspect. On July 25, 2006, Judge Matthew Kennelly upheld the government’s assertion of the state secrets privilege in Terkel v. AT&T. The crucial issue in the case was whether or not the government’s program of surveillance had been publicly acknowledged, and Kennelly wrote “the focus should be on information that bears persuasive indication of reliability.” If there were reliable public reports of the program then the fact of the program’s existence could not be a state secret. Kennelly found that there were no reliable sources of public information about the contested program’s existence sufficient to thwart the government’s need for secrecy. In other words, the existence of the program had not been conclusively established, and the government therefore had a right to prevent probing into the matter. This stops a case that represented a serious threat to the Bush administration.

Professor William Weaver, NSWBC Senior Advisor, stated: “Russ Tice is the only publicly identified NSA employee connected to the New York Times in its December 2005 story publicizing warrantless Bush-ordered surveillance. Tice is also publicly perceived as someone who could authoritatively establish the existence of the program at issue in Terkel; Tice could remedy the defect in the plaintiff’s case cited by Kennelly that allowed the government’s assertion of the state secrets privilege to be successful. Later, on the same day Kennelly’s opinion was filed, the Department of Justice sent out Tice’s subpoena. The date on the subpoena is July 20th, before Kennelly’s decision was filed, but the issue in the Terkel case was so pregnant that it would be easy for the government to anticipate the ruling and only issue the subpoena to Tice if necessary. It has now become necessary, and the government seems to be moving to put pressure on Tice not to reveal information that would confirm the electronic surveillance program at issue in Terkel by threatening him with investigation and possible indictment.”

Though I’d suggest an equally relevant court case and date might be the Hepting v. AT&T case; on July 20th, the same day as Tice’s subpoena got written, Judge Walker allowed the Hepting (the Electronic Freedom Federation) case to go forward.

But I’m not entirely convinced. Mostly, I’m not convinced because I don’t think Tice is the source for the specific details about tapping into the phone switches. For example, in this Reason interview, Tice talks in well-informed but hypothetical terms about a program resembling what we understand to be the AT&T program.

If you wanted to, you could suck in an awful lot of information. The biggest constraint you’re going to have is the computing power you need to do it. You need to have some huge computers to crunch that kind of stuff. More than likely you’re talking about picking it up in a digital format and analyzing it depending on how the program is written depending on whether it’s audio or digital recognition you’re talking about, the computing power is phenomenal for that sort of thing. Especially if you’re talking about mass volumes, if you’re talking about hundreds of thousands of, say, telephone communications or something like that, calls of people just like you and me, like we’re talking now.

Then you have things like, and this is where language specialists come in, linguists who specialize in things like accents and inflections and speech patterns and all those things that come into play. Or looking for key phrases or combinations of key words within a block of speech. It becomes, when you add in all the variables, astronomical. [my emphasis]

He then later says he’s talking about a program no one knows anything about.

REASON: You’re referring to what James Risen calls “The Program,” the NSA wiretaps that have been reported on?

Tice: No, I’m referring to what I need to tell Congress that no one knows yet, which is only tertiarily connected to what you know about now.

By the time this interview was published, both the Risen and Lichtblau article providing more details on the large-scale collection of data and the Harris and Naftali article had already appeared. They provide pretty specific details of intercepting switches, so it’s unlikely that Tice’s secret has to do with the AT&T intercept program.

In the same interview, Tice twice says he doesn’t think the details of the program he’s talking about should become public.

First of all, I don’t want this stuff to leak out. I’m not going to tell you or anyone in the press anything that’s classified, especially about these programs.

[snip]

In my case, there’s no way the programs I want to talk to Congress about should be public ever, unless maybe in 200 years they want to declassify them. You should never learn about it; no one at the Times should ever learn about these things.

Which suggests that Tice’s comments on any hypothetical telecom intercept case do not relate to the program he’s concerned about, and that his comments are not classified. Tice may be telling reporters there’s something big there they still haven’t found; he may be providing guidance to understand the programs they’ve already discovered. Indeed, if you look at how the ABC News story reports he was a source for Risen and Lichtblau,

But Tice disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.

It appears likely he may have just been one of the people telling Risen and Lichtblau the NSA programs were bigger than they initially reported.

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

(Though admittedly, if Tice is one of these sources, it suggests he may have given Risen and Lichtblau the general idea of direct intercept from the switches. Though it still seems that that’s not the program he’s whisteblowing.)

So why Tice, then? FWIW, Tice says he was subpoenaed to cow others into silence.

This latest action by the government is designed only for one purpose: to ensure that people who witness criminal action being committed by the government are intimidated into remaining silent.

Which might mean this is just harrassment–that Tice hasn’t broken any laws, but the government will go after him nevertheless because it will prevent others from coming forward. They’ll tar him as a paranoid former employee fired for cause. They’ll suggest that anyone questioning the domestic spying programs is just equally crazy.

But I also wonder whether the government isn’t trying to scare him from leaking details of the program he says he doesn’t want to leak. Or whether it isn’t trying to scare other whistleblowers and journalists from reporting on the as-yet unreported programs, the ones that seem to be bubbling just beneath the surface.

The AT&T cases are important because, as class action suits targeting the vacuuming of data, they involve everyone. They defy excuses that, “you only need to worry if you’ve been doing something you shouldn’t be,” because the programs target all data going through selected switches. And by targeting publicly traded corporations, they threaten to bring real financial consequences, if not legal ones. (Though TNH’s resident realist Kagro X predicts all of them will still get dismissed on State Secrets grounds, whether at the appellate level or somewhere else.)

But I’ve got a nagging feeling that we’re getting close–close to either the details that prove the known programs have been abused, or to the programs that entail a surveillance so oppressive that even Joe Sixpack will get up in arms over it.

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. Anonymous says:

    Tice represents an interesting part of the states secret defense, augmenting pressure on media. Besides the IL case in which on July 25 Kennelly tossed out the case brought by Studs Terkel (and a coterie of community blueribbon notables) against Verizon and ATT, and the SF case Hettings v ATT, which included graphic floorplans of bridgepoints where the government installed its mirror equipment, there is also a group of academics and business people involved in a Detroit case against ATT, where a more sympathetic judge heard argument and is to issue a judgment; there was a May 2006 request for injunction in a San Diego, CA case brought by academics and a very centrist ex Republican candidate for various statewide offices.
    At the national level Sen Specter is working to subsume all these under the aegis of the attorney general’s discretion in Specter’s new draft FISA secret court law.

    The Detroit case was discussed in a nice MyDD blog by the ACLU attorney on the eve of the trial last week.

    Orin Kerr, a legal scholar has a nice article linked from the Harvard Law Review at his website, a SSRN download there.

    I am following a lot of cases, and the Detroit matter is in abeyance now while judge Diggs does her research; here is one of the http://www.aclu.org/pdfs/safef…..060605.pdf" rel="nofollow">early arguments by ACLU around the time the government tried to quash based on state secrets. At that early juncture, Judge Diggs denied the government’s request and forced verbal argument. My dossier is in several places, but it is likely to be the strongest outcome among many against the telephone company. I think Diggs will force the feds to appeal; but Specter’s efforts in WA-DC, and those of other Republicans, could render that outcome moot; one of the things Specter is trying to do with the little published new draft law this past week on presidential commissions and Geneva CA3 is to revisit the old Graham-Kyl sham history of the DTA for the purpose of making all the court stripping retroactive. Various drafts of the Specter anti-Geneva-CA3 law are circulating; I am working on one obtained online; ask KX if you are interested: I have seen his byline in some sites where this work is occurring, as well, so, he would be helpful to you. I even worry the softened defense against the Bolton formal renomination is part of the strategm: to obliterate cloture. We know Harry Reid has advised congress is going to slow way down if Frist accomplishes that nefarious and illicit gambit.

    It is nice to see the midwest’s venerable Studs Terkel still in the mainstream courts working for freedom and transparency.

    As you may know, based on familiarity with technology, I have prescinded from much worry about these cases. In the San Diego case involving ACLU, former CA state sen Tom Campbell et al, I would expect a mediocre amount of followthru, as Campbell is a McCain-like Republican with a centrist agenda, though his background has connections in Silicon Valley. I would expect he is of the John Chambers (Cisco CEO)stripe of Republican; Chambers recently having hosted one of the Bush megafundraisers in Santa Clara Co.

    But this is about Democratic Party news more than the same old favorite sons network. I think if Democrats in both chambers of congress manage deftly all the many threads convering on this administration, including these wiretap vs state secrets cases, there can be a more creative outcome; and, alternatively, if Specter gives the administration all it wants for signing statements, presidential commissions, bailing out of the Geneva conventions to protect prisioners, wiretapping, and a soporific revision of the secret court system under FISA, I would find myself once again reading the old term papers about what wild ambitions pushed Weimar over the brink. Sometimes your writing seems to tread that marge.

    There is some worthwhile reading at the ACLU regional websites in the states of IL and MI.

  2. Anonymous says:

    John Lopresti

    Be careful of conflating cases–there are two in MI, the one against the NSA, brought by people who need to be able to make contacts with countries of suspicion, and the one against AT&T.

  3. Anonymous says:

    It would be nice if you are interested in describing those separate cases and their issues. I am involved in a lot of work elsewhere, and usually only follow the so called wiretap cases as constitutional matters. I think the point I was discussing from the perspective of legislators makes connections. At first glance, for example, what would an AUMF have to do with a pen register algorithm deployment for data mining. I will check the various cases, as you suggest. I recommend the Orin Kerr article; he is someone who apparently does more homework than I on these issues; he is a recognized expert in academia in some of these matters.

    As I read through the draft law to rewrite the military commissions, there, too, I realized there are a lot of people with more expertise than I in that part of the law; but, reading the Specter draft is like a wish list of declarations that, among other decisions, Hamdan was, well, irrelevant.

    I know you follow security matters, and I defer to that knowledgebase implicitly; you certainly know that field.

    I have wondered about ’peanutgallery’’s interests a lot since she apparently has been elsewhere a lot recently. Certainly in her work in academia, as well as if she were to perform consulting on civil society matters in that part of the world, her professorial speech would be of the variety that could be chilled if the wiretapping affected it. It seemed what you cited from Tice was a similar kind of chilling of speech; but, having read some of the legislative history of IIPA as background for understanding some of your other writings, I found that, too, is a forum of law that has subtleties. You are kind to post the disclaimer. Back to the books for me.
    J

  4. Anonymous says:

    The Vacuum
    The Vacuum is a program where the phone companies gave the NSA physical presence on their networks to gather up the data about the communications crossing those networks (not limited to phone calls). The program collects all the data about communications coming across these network, certainly including millions of innocent people.

    The Vacuum is illegal not least because the program violated the privacy policies in place when the program started (in late 2000 or mid-2001). But the PATRIOT Act did expand the government’s ability to legally collect this data.

    Two of the cases challenging â€The Vacuum†are Terkel v. AT&T (thrown out on State Secrets grounds; the ACLU partnered in this case, so it often shows up as ACLU v. AT&T) and Hepting v. AT&T (allowed to proceed in spite of State Secrets claim).

    The Program
    â€The Program†is the domestic spying program reported by Risen and Lichtblau last December. Presumably using the data collected in the Vacuum program, it develops profiles for likely persons of interest. Then, bypassing FISA, it taps those lines to see if the profiled people merit further attention (this is all speculation, but seems like a reasonable guess). This includes American citizens.

    â€The Program†clearly violates FISA, since it is indubitably warrantless wiretaps. It seems likely BushCo bypassed FISA because the datamining profiles developed using the Vacuum data do not constitute probable cause.

    The MI case challenging â€The Program†is ACLU v. NSA (decision on State Secrets pending). There’s also a Center for Constitutional Rights suit, CCR v. Bush (in this case, the judge has already rejected the State Secrets claim).

  5. Anonymous says:

    Maybe Tice bc they are worried that if there is a change in majority – House or Senate, some committee might actually let him give sealed testimony and they want to have him under their thumb before that happens? He can get immunity from Congress.

    fwiw

  6. Anonymous says:

    Sounds like a really plausible suggestion, Mary. Though I think he has testified before Armed Forces. Just not Intelligence.

  7. Anonymous says:

    re the vacuum, this from an interview in april:

    Tim Russert: You mention the NSA campus – What capability do they have? I’m not suggesting they’re using it – but do they have the capability of listening in to every phone call in America?

    James Risen: I think that we can look at what they’ve done overseas – because that’s where they’ve applied the full resources that they’ve had for a generation – they have listening stations all over the world – where they can download an entire country’s telecommunications system – and then store it in their data systems.
    […]
    Echelon is the public name for what the NSA has been doing overseas for many years…. Now it’s possible they are doing the same thing inside the US.

    (Shorter Risen: Yes.)

  8. Anonymous says:

    lukery

    And if I had to guess, I’d say Tice’s program is just that, the application of Echelon to the US (which would explain why someone pointed both the Slate writers and Leopold to that transition doc). One key point about Echelon is that it used to work primarily by satellites, which is where Tice was at.

  9. Anonymous says:

    EW – I’m actually leaning away from the idea that Tice=Echelon. Not least because he said â€there’s no way the programs I want to talk to Congress about should be public ever, unless maybe in 200 years.â€

    Given that we’ve long known about Echelon, and the not unreasonable assumption that it has or will migrate to domestic territory – his statement seems to point to something much more significant/intrusive.

  10. Anonymous says:

    he said â€there’s no way the programs I want to talk to Congress about should be public ever, unless maybe in 200 years.â€

    That is really scary, my admiration for Tice just went up, if it is possible. Please support Sibyl Edmunds by signing the petition on her site to lift the gag order so that we can find out the truth about 911.

    John Warner made a scary statement in the MSM, AOL news online usually AP about the very expensive new defense system being a danger to US citizens. Someone in the article commented that because of the huge expense, it was probably to do with sattelites but that sattelites would not present a physical danger to the American people. Warner within a day or so backed off and said he did not really mean that the new multi-billion dollar program would be a danger.

    I looked up Reagan’s Star Wars but still wonder about what Warner meant.

  11. Anonymous says:

    What did the â€carnavore†section of the aggressively named Echelon-Carnavore refer to?