All Your Data Belong to George

There’s a striking passage in one of the documents released in yesterday’s document dump.

Would NSA object to a legislative codification of E.O. 12333 minimization?

Yes because it can be difficult to change a statute if the procedures need to be changed in order to meet operational needs.

The passage refers to minimization, the process by which intelligence agencies protect the privacy of Americans whose communications are collected incidentally to their wiretapping activities. I find the passage striking, first of all, because it (indeed, the whole document) emphasizes the basis for minimization requirements in EO 12333, and not FISA. In response to a question about where minimization comes from, the document points to the EO.

Where does the need for minimization procedures come from?

The most direct answer is Executive Order 12333. Section 2.3 of that Order specifies that agencies in the Intelligence Community are authorized to collect, retain, or disseminate information concerning U.S. persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.

This basically repeats that passage of EO 12333, which says,

Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order.

And then goes on to describe the kind of information that can be collected.

But why refer to an Executive Order, when FISA imposes a statutory requirement on minimization? And FISA’s minimization requirements provide more detail about what can and cannot happen with US person data.

(h) “Minimization procedures”, with respect to electronic surveillance, means—

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

Now, the emphasis on EO 12333–and not FISA itself–may be innocuous. But given that George Bush went to the trouble of getting an OLC opinion stating he can turn any of his EOs into pixie dust, and given that Sheldon Whitehouse strongly implied that in some cases Bush had turned this particular EO into pixie dust, the emphasis on the EO doesn’t make me very comfortable.

And then there’s the continued refusal to consider subjecting the minimization procedures to some kind of oversight. As I have shown, DNI Mike McConnell appears to have abandoned the Democratic bills to amend FISA in August because they imposed some kind of review to ensure the NSA met its own minimization procedures.

And as the SSCI bill stands now, Sheldon Whitehouse (he who discovered the pixie dust Executive Orders) remains concerned about the minimization procedures.

The bills, as they are currently written, require the ICs to meet the minimization requirements in FISA, included above. But for some reason, the Administration remains really squeamish about any oversight into their minimization procedures. That’s not a good sign.

Update: Did you knew "data" is a plural? I did, but I forgot that until BobbyG reminded me.

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  1. Pachacutec says:

    What’s the practical implication of this for someone who does not understand procedural talk? How would you express it?

    I’m thinking in terms of a synopsis a little more complete than the title.

    • drational says:

      Prior to August 2007, there was a law (FISA) requiring intelligence agencies to destroy (minimize) accidental surveillance of US citizens, and requiring oversight of this minimization. There was also an Executive Order (12333) that iterated respect for FISA minimization and oversight, and contained guidelines for intelligence agencies to follow in this light.

      Marcy notes that NSA did not want to make EO12333 law, allegedly because it would bind their hand technologically.

      Bush Administration had already decided FISA invalid, because they believed they were exempt from law under Article II and AUMF. So the residual guidelines for surveillance behavior that was issued by the executive branch for the executive branch, EO12333, is the only thing burdening them with minimization and oversight.

      But Sheldon Whitehouse shows us that Bush decided executive orders do not have to be followed (pixie dust).

      In summary, Bush Administration believes that there is no existing legal reason for minimization or oversight of surveillance of US Citizens abroad. Hence, all your data belongs to George. They can capture and store and search and explore all of the data they want on any US citizen abroad.

      This includes US military, contractors, people working for NGOs, and of course, members of the Press. If you are abroad, they can acquire and keep your data, and they do not have to tell anyone they did it.

      • nolo says:

        “. . .In summary, Bush Administration believes that there is no existing legal reason for minimization or oversight of surveillance of US Citizens abroad. Hence, all your data belongs to George. They can capture and store and search and explore all of the data they want on any US citizen abroad. . .”

        much more precisely-put — than mine @ 5.

        and you even completed the pop-culture cross-reference.

        s w e e t.

      • MadDog says:

        In summary, Bush Administration believes that there is no existing legal reason for minimization or oversight of surveillance of US Citizens abroad. Hence, all your data belongs to George. They can capture and store and search and explore all of the data they want on any US citizen abroad.

        I have a quibble with the “abroad” delineation. I think it is much worse than that.

        Junya and crew have no effective way to discern “abroad” with respect to”

        1. Email on US-based servers.
        2. Email that traverses US communications pipes.
        2. Web access to US-based servers (blogs, message boards, etc.).
        3. Web access that traverses US communication pipes.

        The DNI Mikey McConnell has explicitly acknowledged this technological limitation.

        Additionally, the NSA finds it operationally and technologically less work to have a “vacuum-cleaner” approach to “drinking from the firehose” on the mucho large capacity communications pipes that traverse the US that carry voice and data sent and received from all over the world.

        And one final gotcha. It seems that no warrant is required to acquire one’s email if it has been read by the recipient and is at least 6 months old. There is no delineation on this as to the geographic location of the recipient nor citzenship.

        Since 6 month-old email is not of tactical use, I’m willing to bet that Junya and crew find that dating mostly irrelevant as they squeeze folks like Google’s Gmail, Microsoft’s Hotmail, Yahoo!’s Yahoo!Mail for every-feckin’-thing.

        • drational says:

          I agree with your assessment of abroad vs domestic.
          I was just focusing on language of 12333 and PAA which makes it seem like they are concerned about minimizing US citizens abroad. What they leave unsaid is the almost certain acquisition and storage of domestic-domestic communications. another compelling reason for having no oversight.

        • Rayne says:

          EXACTLY.

          Worse, not only is there no tactical value to email over 6 months, there’s reason not to “minimize” what they’ve Hoovered up since retaining data over a longer period of time allows for better pattern detection.

          Think of Amazon, for example; the longer you shop with them, the better their predictions are at products you’ll like.

          They want it ALL, indefinitely.

  2. emptywheel says:

    To be honest, I’m still trying to think that through, PAch.

    I think they reference the EO because the surveillance they’re talking about is technically outside of FISA.

    If so (and the lawyers appear to still be asleep), then it would mean that by defining surveillance the way they have (that is, by putting these large data mining projects outside the scope of FISA), they would create a loophole where the only requirement to use minimization procedures is the EO that we have reason to believe has been turned to pixie dust. Which would effectively mean there are no required minimization procedures, not if President pixie dust decides he doesn’t want them. And then the response here–that they don’t want minimization legislated–would be an admission they didn’t want their pixie dust protections to be solidified.

    But like I said, I’m still thinking this through. FISA’s like a giant double negative, and the coffee hasn’t entirely kicked in.

    • looseheadprop says:

      so (and the lawyers appear to still be asleep), then it would mean that by defining surveillance the way they have (that is, by putting these large data mining projects outside the scope of FISA), they would create a loophole where the only requirement to use minimization procedures is the EO that we have reason to believe has been turned to pixie dust. Which would effectively mean there are no required minimization procedures

      Only if we believe that the defintition they have created is correct. Because FISA has an exclusivity clause. ALL Foriegn Intelligence Survaillance conducted in the US, is governed by FISA.

      If they are doing it in the US and they are not complying with FISA, it cannot be legal, until a court says it is.

      • emptywheel says:

        LHP

        There’s not an exclusivity provision in PAA. It’s one thing even the moderates (DiFi) have danced around changing, but as I understand the SSCI bill, it still doesn’t have an exclusivity provision.

        And as I understand it (again, with the nested eggs), the first thing they do for this data mining stuff is exclude it from the definition of electronic surveillance, which gets them out of the exclusivity provision.

        There still is the matter of pointing to the FISA minimization requirements, which would SEEM to make the minimization statutory regardless of what Bush has done with his pixie dust. But I suspect they’ve invented some loophole there and I just don’t see it yet.

        • looseheadprop says:

          There still is the matter of pointing to the FISA minimization requirements, which would SEEM to make the minimization statutory regardless of what Bush has done with his pixie dust. But I suspect they’ve invented some loophole there and I just don’t see it yet.

          You don’t see it because it isn’t actually there. This is all false. It’s smoke and mirrors. They have no legal basis for most of what they are doing. So they are trying to get Congress to retroactively make it legal.

          Do NOT BUY INTO IT!!

          • nolo says:

            D I N G!

            this is exactly right.

            moreover, executive orders
            must always only supplement
            existing law — not contradict
            the existing law — so, to EW’s
            point, even if there is no exclusivity
            assertion in the legistlation, the
            EO cannot lawfully purport to con-
            tradict the express terms of the legislation.
            . . .at least, not in the america governed
            by our constitution prior to nine-eleven.

            honestly — i do suspect even this scotus
            would still hold the above, to be true.

            p e a c e

          • emptywheel says:

            I think I’m not being clear.

            Here’s what I understand.

            1) There is no exclusivity provision in PAA, and there’s not yet one in SSCI’s FISA amendment AFAIK. That leaves one loophole, which is that they can always do electronic surveillance by some other means that is not FISA.

            2) The datamining program that the amendment is designed to legalize does not qualify as electronic surveillance, at least in PAA. That gives them another loophole to exploit.

            3) Nevertheless, both PAA and the SSCI’s FISA amendment require the minimization procedures to meet the terms of FISA’s minimization definition. That SHOULD mean we get real minimization. But it’s so clear to me they have no intention of conducting minimization such that it would stand up to real scrutiny (and honest, their rationales for opposing it change more often than I change underwear), that I’m looking for the loophole. I’m not sure I’ve found it, but the pixie dust with the EOs makes me think I’m close.

            I’m not trying to say they’re conducting business legally. I’m trying to point to where the bill that will likely be passed has gaping back doors for George to drive his unconstitutional truck through.

            • Rayne says:

              Don’t you think that no matter what the bill actually contains, George will use the ultimate pixie dust, “state secrets”, to prevent us from looking in?

              We cannot ever know how they do the minimization or not do it, because that would expose a “state secret”.

              We know as LHP says that none of this crap is legal, but the final method for keeping us from making that final determination is maintenance of Schrodinger’s paradox; they will not allow us to see the dead cat’s carcass no matter how bad it smells on the outside.

              • TheraP says:

                Basically that the “social compact” is broken. And how do we, for sure, ever get it back again? How know that we can “trust” that the written laws or written “orders” are indeed the ones they operate by?

              • bmaz says:

                But kill the kitty we should; nine times over, just to be sure, because these seed pod zombies keep coming back. I actually think Cheney has been existing in a not dead/not alive superposition state for a long time now. According to the Copenhagen theory, we can stop his flux through cogent observation. Time to shine the light.

                • Rayne says:

                  Hmm. I have to meditate on that one, bmaz. Would enough cogent observation really crack open the black box? How much observation, and for how long?

                  I think EW’s doing it, as are a few other intent bloggers, but will merely dissecting the facts around the black box really make a determination as to what’s inside in sufficient time to stop further damage?

                  That’s the other factor here in this wicked game of Calvinball-War-Rock-Paper-Scissors-Fire; we are on a clock of undetermined duration.

                  • bmaz says:

                    Heh heh. No clue. I used to understand and know all the relative theories on Shroedinger’s Paradox pretty well; but that was way long ago and way far away. I have exhausted the bits and pieces I remember. I do recall, however, that Stephen Hawking has said something to the effect that anybody bringing up Shroedinger’s Paradox should be shot….

                • PJEvans says:

                  No, he’s a body animated by a demon, according to Dante. (Those who commit treachery have their souls promptly collected for whichever circle it is, while a devil/demon animates the body until the appointed time of death. It would explain a lot about Darth.)

                  • Rayne says:

                    Ah-ha, that’s the next level in the game:

                    Your demon-animated golem trumps my feeble Congressional attempt to hold you in contempt of Congress by claiming pump-head or cardiac arrhythmia…

                  • Rayne says:

                    You know, that’s where we are at right now, unable to see or predict any collapse of this function/particle.

                    We’re caught up up in a Zeno’s paradox.

                    • TheraP says:

                      Also to Hugh @112

                      Seems to me that we’re simply trying to play “catch up” and lodge disputes with the umpires as the crooked players remain one step ahead, always initiating new illegal plays.

                    • Rayne says:

                      Yes, that’s the arrow that is always in flight, never landing its target, each moment observed as unmoving.

                      But the solution is that the arrow is the collection of its moments, not any one moment; it is the entire wave, not the snapshot of the particle at any moment in time.

                      It is the entirety of the White House’s actions that are the answer; they are not acting and have never acted in good faith. At some point in the entire trajectory of options, the public’s absolute power over government that serves it is larger than the power of the executive; at some point in the arc the public’s right to know, to be assured in their privacy, to be free from unlawful takings is as great as their need to be protected from outside threats to their security. At some point all retained rights not delineated in the Constitution belong to and should be exercised by the people; they do not belong to the executive. And those points are part of the entire wave, the flight of the arrow.

                      It might simply be time to move in a manner appropriate to demonstrated bad faith.

                    • TheraP says:

                      Beautifully put. I think you refer to the Declaration of Independence. Yes… when do we put that into operation again?

                      Yes, I understand. The trajectory. This is exactly the kind of thinking I do in my work. “dynamics” … you can ’see’ all of it because you understand the underlying principles at work. (and in my work… people want to change! this is different; I can analyze what’s happening, but not sure what interventions might actually make a difference. crooks are so good at these games!)

                      I’m still not sure, however, if a huge nation can do the kinds of repairs that smaller nations can do, once this kind of rot sets in.

                      My sense is that you people have done a superb job of getting “their number.” Now what!

                    • Rayne says:

                      Part of the solution may lie in the judiciary; we need to construct cases in such a way that we are asking whether the government’s actions are truly in good faith, and truly serve the public’s interests. That’s pretty simplistic, but I honestly don’t know if we’ve seen enough cases where the court has had to weigh in on the side of the common good over the powers of the executive, where the public has been able to remind both the executive and judiciary that all powers are derived from the consent of the governed.

                      Where and when did we consent to forfeit our Fourth Amendment rights? How is any action the government takes to “protect” us any such thing if it takes without consent in the process? Agh…the most exasperating part of this scenario is that we have appointed representatives by default. The persons who serve on our behalf are folks who are often not the best qualified, but those who were the only ones who wanted the job or the only ones that interest groups would fund adequately; these are not people who will likewise act in good faith. It’s no wonder we’re stuck as we are in this paradox.

                    • TheraP says:

                      Paragraph 1: very interesting. IANAL… so not used to thinking like that. But it’s like trying to elevate the level of moral reasoning… to see if the Supremes are adequate to the task. I like that scenario. So… testing that branch of govt to see if they will act in view of the greater good (or stupidly, as they did when they put bush in power… to “save us” from a crisis! That caused so many to lose faith in the Supremes!)

                      Paragraph 1: Over and over I’ve seen that the best people, those with a conscience and able to think clearly in ways that are beneficial to the greater good of society, shun that kind of pandering to get elected role. And I guess the pandering just extends to “public prayer” and “never-ending military spending” – all to save us “from evil.” Stuck in a paradox is right!

                      I just wish that all public servants would see their Oath of Office as something truly sacred – and I don’t mean religious… but ultimate. Trumping everything!

                      But still the main question is, I think, whether or not the Constitution is fatally flawed and/or repairable?

                      I imagine you people have thought long and hard on that one.

                      Sigh.

                    • Rayne says:

                      Here’s an example, wonder whether a post-mortem should be done to see if the correct tack was taken in pursuing this case:

                      Court throws out spying lawsuit — based on plaintiffs’ lack of standing.

                      It’s the same kind of Catch-22 in which detainees have been caught; they’ve been wronged, but to prove the wrong requires access to information they won’t give under “state secrets”. Why are we stuck in this loop? how do we break it? was there a different approach that should have been taken? And is there another case right now that should be applying a different, better approach?

                    • TheraP says:

                      Yes, I understand the difficulty of bringing a case that way.

                      I don’t know the solution, except that if playing the game no longer works, cuz the game is rigged against you… then you need to disengage from the game somehow. Declaration of Independence speaks to that. But that’s pretty drastic. And where does it take you? Again… such a large country. Renewal has been possible in Japan, Germany, Spain, Italy (to some extent). Much smaller countries. But has any large empire ever been able to pull back from the brink? This is my worry.

                      Unless the States themselves, on behalf of We the People, somehow sue for the federal govt to carry out its responsibilities?

                    • Rayne says:

                      That’s the challenge with the legislation, TheraP; there has to be some method included that ensures that 1) there is oversight of an appropriate party, and 2) that the people who believe they have been damaged have a fairly low threshold to proving damage and making a reasonable claim.

                      This is another point that I think the criminals in the White House have managed to get around; they’ve manipulated the system so that reasonableness is removed. It’s unreasonable for the public not to be able to determine whether they’ve been spied upon by their nation; it’s unreasonable for the government to lock everything up from the public that owns it under the guise of national security.

                    • Hmmm says:

                      Unless the States themselves, on behalf of We the People, somehow sue for the federal govt to carry out its responsibilities?

                      That’s interesting. Would a US citizen have standing to sue for specific performance of the Oath of Office? I.e. the oath as a contract between the Executive and the People.

                      Hmmm.

                    • bmaz says:

                      “But still the main question is, I think, whether or not the Constitution is fatally flawed and/or repairable?”

                      The Constitution is not broken and is not particularly in need of repair. There are a couple of tweaks maybe, but they could probably be accomplished by statute as opposed to amendment. The problem is us; the Amerilcan public as a whole. Any constitution you could make that proscribes the open and free society we think we are supposed to be is, by it’s very nature, gameable by politicians with nefarious and criminal intent. No, the problem is that our citizenry as a whole have become too uneducated and too distracted to live up to their civic duties and responsibilities. We have seen the problem, and it is us.

                      Rayne @119 – “Where and when did we consent to forfeit our Fourth Amendment rights?”
                      I’ll bet you sense a pattern coming here. The last specific “where” was the voting booth and “when” was 2006. To a lesser extent, this last August when the PAA (Phuck America Act) was being slammed through. Nobody said a peep. Hell, the blogosphere was even silent because they were all at YKos (except me and Mimikatz and we weren’t able to rally much outrage). The power is in the people, but they have to care, and use it. Bush/Cheney didn’t just miss maybe the last, best opportunity to reunite this nation in spirit and body immediately following 9/11; their actions further fractured us and cemented that fracture and ingrained to the populous that they shouldn’t do or sacrifice shit for this country other than going to the mall to shop. We give consent to forfeit our civil rights every day we don’t impeach Bush and Cheney.

                    • Rayne says:

                      I was at YKos, too, in August — and I was panicky about another EO.

                      Have worried since then that this was another form of pixie dust, although I didn’t have EW’s label for it. It could the next play after the “state secrets” one, the “national emergency” card.

                    • bmaz says:

                      Rayne – As an almost semi-rational person, I would like to believe “They’re bad, but they’d never do THAT”; but don’t know anymore that I can say that. And I wasn’t griping about the YKos angle (I got that off my chest immediately upon everybody’s return and have since forgotten about it). Not to mention that my hands weren’t clean either. I should have put 2+2 together and figured it out sooner; and I know at least one, if not a couple, of big time people that were at YKos and I could have, and arguably should have, called and emailed them with my alarm, and failed to do so. Bottom line is we were sold out, in a Filene’s bargain basement wholesale manner, by our Democratic leadersheep in a truly pathetic and unforgivable manner. The subterfuge was on and the fix was in, I am not sure even if everybody was around and riled up that it could have been stopped; we were sold out.

                    • rapt says:

                      On your last line Rayne…

                      I haven’t seen it much so far on here or elsewhere – Cheney govt encourages lawlessness of all kinds by anyone/everyone. A few years ago I took govt criminality of the obvious & blatant kind to mean that the lizards are getting desperate, lowering the cover shield to get more legroom in the final act.

                      I still think that is true, even more now than then. Now watching to see if Cheneyco is fretting out its weakened last days, ineffectually covering its ass by the old methods of threat & blackmail, but I still fear (damn that word) that something new and deadly may pop up out of the black morass. Desperation is dangerous.

                  • bmaz says:

                    Aw jeez Professor, I wasn’t kidding when I said I had exhausted the last remnants of physics/quantum mechanics I had rattling around in my clap trap brain. Had to click your link and go look that up and am still in Hugh’s boat. Now, back to the dark matter that is the Fourth Branch….

          • BayStateLibrul says:

            Geez, you mean “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”

            See Doublethink, see George Orwell, see George Bush

  3. Rayne says:

    It’s a circular reference — that’s why it doesn’t compute, and why it’s difficult to explain.

    Although more coffee would be good.

  4. nolo says:

    for what it’s worth — and with
    the caveat that i am by no means
    a spook-lawyer — but i am well-
    versed in the fourth amendment juris-
    prudence, i’d employ sir william of
    occam’s parsimony to say that what is
    going on here is best understood by
    the simplest explanation:

    cheney (and bush) crafted a byzanntine
    executive order/statutory interface, then
    convinced junior lawyers to sign off on
    the idea that the executive — bush — could
    effectively ignore his own proclaimations,
    in secret, whenever he wanted.

    thus, the effort to keep FISA from setting
    the minimization procedures in stone (erh,
    actual laws — not “calvin-ball” pixie dust).

    if that’s a simplified summary of what the EFF
    f.o.i.a. lawsuit has turned up, then. . .

    richard bruce cheney sez:

    all your basedata are belong to us. . .”

  5. WilliamOckham says:

    Here’s the deal. The technical details of the system they have set up make it impossible for them to follow the minimization requirements. Don’t forget the USA Today story (the one about the call detail records). They are actively using CDRs to feed the system. Minimization will break the whole thing.

    • nolo says:

      i might disagree — in only a very small
      way, to yours — IF one believed that
      any actual legislation, from congress,
      on this precise topic would trump all
      inconsistent executive orders, in this
      area (as i do) — then, a FISA amendment
      which required minimization would trump
      any inconsistent provision in the executive
      order(s).

      that is what “richard the bruce“,
      and “dubbya the dim” were after here:
      stopping any conflicting legislation.

      just my $0.02.

      • looseheadprop says:

        then, a FISA amendment
        which required minimization would trump
        any inconsistent provision in the executive
        order(s).

        that is what “richard the bruce“,
        and “dubbya the dim” were after here:
        stopping any conflicting legislation

        Yep. Executive Orders are like agency rules, except they apply to all agencies to the extent relevant to that agency.

        Eo’s DO NOT TRUMP STATUTES, nor tdo signing statements which carry no more weight than legislative histories and are not binding on any court.

        Bush is just making shit up

        • OleHippieChick says:

          . . .Bush[/cheney] is just making shit up. . .

          I love everyone’s eloquence and love for the law.

          LHP, this is the bottom line for me in plain talk, right next to “rust never sleeps.”

          They’ve been so careful and creative and thorough in their power gathering and subversion of the law, to the obvious exclusion of doing anything else for seven years.

          They keep flinging monkey crap against the walls and everyone still “just watches.” The energy that’s expended refuting! OY. One BS paragraph on their part generates millions of words in the b-sphere. It’s an amazing long-con diversion!

          bu$hler’s eating out our substance.

        • BobbyG says:

          Bush is just making shit up

          That’s Wayne Brady’s job. (In fact, that’s the name of his show here in Vegas, “Making #%it Up.” LOL.

  6. TheraP says:

    Am I getting the gist of this correctly?

    Basically, we should all just stop thinking. Just go about our lives. Without any thoughts of what the govt is doing or not doing. Because the govt will do all that thinking for us!

    so…. become sheep… right?

  7. WilliamOckham says:

    Actually nolo, we agree. They have no intention of following the law, no matter what Congress does. They want to get as much of their program enshrined in law as possible to lock in the tyranny for the next administration.

    • nolo says:

      okay — i see. it is certainly true
      that actual legislation parroting the
      executive order(s) would do that.

      but it would then leave them bereft
      of calvin-ball rules/pixie-dust, to
      further depart from their prior practice.

      but as you imply, they don’t care.

      richard the bruce will simply ignore
      actual legislation — as he did with
      the presidential records act, for five
      years running, now.

      sheesh.

  8. drational says:

    Marcy, can you address the possibility that the Press may be what they are interested in surveilling abroad?

    If I am NSA interested in identifying terrorists, I am surely going to want to monitor the communications of press in Iraq. Specifically, the Iraqi and other foreign journalists who are getting tips from people who are either insurgents or one step removed. If you are acquiring all the data from an Iraqi Journalist working for Reuters or the AP, then chances are you are also getting a lot of unrelated communications from US Citizen members of the press. So it seems likely there would be a lot of minimization needed. Any FISA update bill or statutory language that includes a time limit for minimization probably requires a live NSA analyst to evaluate data to identify and minimize collections on US Citizens.

    Given the volume of data collected, this may be a part of the problem they have with FISA and minimization.

    • emptywheel says:

      I think the fairly accepted rumor that Christiane Amanpour was surveilled under “the Program” would support your point.

      But I wouldn’t want to limit the discussion of US person abroad to just journalists. NGO affiliates would be in the same boat, as would a number of others.

      • Hugh says:

        I think the fairly accepted rumor that Christiane Amanpour was surveilled under “the Program” would support your point.

        But I wouldn’t want to limit the discussion of US person abroad to just journalists. NGO affiliates would be in the same boat, as would a number of others.

        Some of those others would be business people, polticians, academics, and certain ethnic groups.

  9. bmaz says:

    William Ockham is correct; they can’t really comply with valid minimization protocols and do the mass surveillance and data capture they are doing, and wouldn’t want to even if they could. They want no effective limits on their behavior; so in order to be able to flap their lips about using and complying with minimization protocols, they phrase it in terms of a semi-obscure executive order process they feel they can change or disregard in a seconds notice, and in one off bases, anytime they are so inclined. Simply put, they want unfettered discretion. But I am still mostly asleep.

  10. selise says:

    op-ed from mukasey today:

    The Senate Intelligence Committee’s bill is not perfect, and it contains provisions that I hope will be improved. However, it would achieve two important objectives. First, it would keep the intelligence gaps closed by ensuring that individual court orders are not required to direct surveillance at foreign targets overseas.

    Second, it would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful.

    It is unfair to force such companies to face the possibility of massive judgments and litigation costs, and allowing these lawsuits to proceed also risks disclosure of our country’s intelligence capabilities to our enemies. Moreover, in the future we will need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.

    • BayStateLibrul says:

      We have added the 5th estate to the government — telecommunication
      companies…
      Hot tip… sell their stock short?

    • Hugh says:

      Really good catch on the Mukasy op-ed

      Second, it would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful.

      Does anyone seriously think that Mukasey will do anything other than give cheap, convoluted rationalizations for the Bush Administration’s power grabs? Despite his dodgy confirmation responses, he made it clear that this is exactly what he would do. The op-ed is further evidence.

      The 9/11 or national emergency argument only works for a while. We are nearly into 2008. Why did the telecoms not demand further and more substantial guarantees in the intervening 6 years? As for the rest, more pixie dust. Mukasey waves his wand and certifies that what the telecoms did was OK because the President said so, and voila the lawsuits against the telecoms are gone.

      • PetePierce says:

        Does anyone seriously think that Mukasey will do anything other than give cheap, convoluted rationalizations for the Bush Administration’s power grabs? Despite his dodgy confirmation responses, he made it clear that this is exactly what he would do. The op-ed is further evidence.

        The 9/11 or national emergency argument only works for a while. We are nearly into 2008. Why did the telecoms not demand further and more substantial guarantees in the intervening 6 years? As for the rest, more pixie dust. Mukasey waves his wand and certifies that what the telecoms did was OK because the President said so, and voila the lawsuits against the telecoms are gone.

        Amen to that Hugh. The Mukasey op ed = the McConnel Op Ed and the strategy for doing them is straight out of Ed Gillespe’s play book. Gillespe considers Telcom Immunity and complete wiretapping without consequence as a major target. And Gillespe knows that Cheney-Addington have completely secretly written a doctrine that they can ignore any law passed by Congress and any court order.

        The op ed affirms the principle articulated in several of the Federalist Papers–”If you’re a Senator on SJC–do not vote for confirmation of an individual who is flipping you the bird at every question.” That’d be Mukasey, Alito, and Roberts. The article that Mukasey was not Fredo Gonzales was a consumately stupid one waged by the Democratic Jello spines, and it translated to “any warm body” even if he or she obviously will be a Bush-Cheney-Addison shill.

        BTW–Kudos to ACLU who filed a motion to hold CIA in contempt today.

        There are actually 3 separate court orders directing the CIA to save their torture tapes.

        Citing Destruction of Torture Tapes, ACLU Asks Court to Hold CIA in Contempt (12/12/2007)

    • PetePierce says:

      Mukasey affirms Telco Immunity and the Unitary Executive

      It should be beyond doubt by now that again when someone gives you the finger and says they won’t answer your questions you don’t confirm them out of SJC.

      Mukasey is going to carry on the tradition of Fredo Gonzales as a Bush, Cheney, Addington lackey and knows he has a Jello-spined Democratic Congress to do his bidding.

      • Leen says:

        Jesus Mary and Joseph…. Schumer and Feinstein flipped and brought us Mukasey. They knew he would do the Bush administrations bidding.

        This is depressing Mukasey marching in lock step.

  11. selise says:

    all your data can only belong to george if the telcos are made to recognize the pixie dust rule – which for them means that a “written request indicating that the activity was authorized by the president and determined to be lawful” = immunity.

    • nolo says:

      excellent, selise!

      the telecos (save qwest during
      its nacchio-led era — separate
      problems there!) already do — and
      likely always will. . .

      thus, you may be right about
      a fifth estate — except that this
      nascent fifth estate seems, for
      the moment to entirely in the
      thrall of the “fourth branch“. . .

      a/k/a richard the bruce.

      so that makes this putative fifth-
      estate no more than a vestigial organ
      of the OVP’s intelligence activities.

      y i k e s.

        • nolo says:

          excatly that. yes.

          how i long for the AT&T
          lawyers of the 70s — they
          told the govt. to “shove it,
          unless you have a warrant

          when asked to allow unfetterd
          access to their data and switches.

          and then, the scotus agreed with AT&T.

          ah, those were the good ole days. . .

          [hitches up his pants, cinching his belt
          just under his armpits, and wanders off. .
          .]

  12. TheraP says:

    If they’re capturing all this, wouldn’t they also be capturing their own stuff too?

    Where does that go? What happens to it?

    And since many US calls are routed through international connections, doesn’t this pretty much guarantee any of us might be considered “abroad?”

  13. alank says:

    It ultimately comes down to lengthy adjudication in a politicized justice system that will be resolved or abandoned long after we’re dead.

  14. BayStateLibrul says:

    OT,

    Before I forget…
    Let’s nominate Reggie Walton as “Man of the Year” for his attempt
    to bring justice to the new “Police State”

  15. bigbrother says:

    BIG BROTHER IS WATCHING YOU AND LISTENEING TO YOU;
    What is wrong with Congress? How many have their antennas blocked? Can a survey of each of them be taken to see who wants to oppose data mining? Their collective feet need to be held to the fire. What has informatiion obtained from torture prevented? This is mass fear and terrorism. Can insurance be had for this risk?

  16. Leen says:

    EW “(that is, by putting these large data mining projects outside the scope of FISA)”

    So it would seem that all the Data mining would not belong to George but to Amdocs and Comverse Infosys.

  17. WilliamOckham says:

    The verbal sleight of hand in the NSA’s answers on that questionaire is really slick. To wit:

    This collection effort is primarily focused on tragets located outside the United States. The bulk of NSA intelligence reporting does not include information about U.S. persons.

    Emphasis in the original.

    Notice “collection effort” vs. “reporting”. A more honest rendering of this policy would be:

    We collect as much data as we can from both foreign and domestic sources in our effort to find foreign targets to surveil. We make sure that the stuff we share with other folks in the intelligence community is mostly about foreigners because we don’t want other agencies to think we’re in the domestic intel business because they would be jealous.

    • TheraP says:

      We collect as much data as we can from both foreign and domestic sources in our effort to find foreign targets to surveil. We make sure that the stuff we share with other folks in the intelligence community is mostly about foreigners because we don’t want other agencies to think we’re in the domestic intel business because they would be jealous.

      = Just trust us.

  18. BobbyG says:

    Data “belong,” not “belongs,” BTW.

    I know, eyes roll. Picky, picky, picky. I’ve pretty much lost that fight. Even Fowler’s has sorta thrown in the towel.

    • brendanx says:

      Language evolves through usage. There’s no real reason we have to retain Latin’s second declension neuter plural in ours.

      • nolo says:

        folks — the plural/singular error
        IN THIS CASE — is INTENTIONAL. it
        is a reference to an atari-era video
        game, translated from japanese to
        english — and badly: the character
        proclaims “all your base ARe belong
        to us
        !” when he wins the game. . .

        accordingly, in this setting, everyone
        (EW included)is substituting “data” for “base“,
        and leaving the mangled english — intentionally.

        it is a cultural cross-reference.

        this is the end of my pop-cultural exposition.

        p e a c e

        • TheraP says:

          executive orders
          must always only supplement
          existing law — not contradict
          the existing law

          Makes total sense to me!

          But how, from now on, would one know that for sure? If things are not written down or are hidden?

          That’s what worries me!

          • nolo says:

            “. . .But how, from now on, would one know that for sure? If things are not written down or are hidden?

            That’s what worries me!. . .”

            this is why the EFF’s FOIA lawsuit,
            among many others, is so very important.
            we need to decide — once again — as a nation,
            that we will countenance nosecret laws“.

            this idea is as old, and as sound,
            as the magna carta, itself. . .

            that the people are entitled to know what
            laws govern their conduct, and the con-
            duct of. . . dare i say it — in magna carta
            terms — their king.

      • PetePierce says:

        Wow–I like haven’t like heard the phrase “second declension” since like 4 boring years of high school like Latin.

        I don’t remember getting the basis for the Val Girl speak that systemically permeates the language of middle aged adults now with the promiscuous insipid use of “like” learned from their kids and adapted as a possible sip of the Fountain of Youth.

        I know the favorite Latin phrase of the Bush administration:

        “Nescio de quo Loquerus”

        “I don’t know what you’re talking about.”

        Where did they get that S&M Princess for the jokes that were the “Republican debates”in Iowa today?

  19. emptywheel says:

    Folks

    Let me add a caution here, which is why I insist we’re still playing in the world of double negative.

    PAA requires the govt to meet the terms of minimization as defined by the FISA minimization rules. So it DOES call for minimization by statute, which is more than 12333 does.

    But I suspect there’s some shell game going on here where they the statutory requirement is so nested it ends up pointing back to the Pixie Dust EO.

    Also, note MY discussion was solely about minimization. That is a different issue from “Americans abroad,” which is what Whitehouse explicitly mentioned. The point is that 12333 is the basis for several protections on wiretapping, of which travel abroad is just one, and what i’m trying to do is expose what I consider to be an even more troubling one, which is that there seem to be only tenuous limits on what they can do with your data.

    • BobbyG says:

      “…there seem to be only tenuous limits on what they can do with your data.”

      Panoptic 24/7 surveillance capability is ever closer to being a worldwide operational reality. David Brin (“The Transparent Society”) says that “if our salvation resides in blinding the powerful, then we are lost.”

      What can be done with our data by whom is the salent question.

  20. Leen says:

    The Bush administration has spent the last six years “Minimizing” procedures and “enhancing” techniques with their “pixie dust”. I just want this band of pirates and Peter Pan Bush to be taken out with a Justice “hook” before they kill any more innocent people.

  21. emptywheel says:

    BobbyG

    I fixed it. If it’s any consolation, I almost always get “whom” correct. Data, though–it just seems like it can be both. And to be honest, I had “fora are” corrected once in an official document, it got changed to forums.

    • BobbyG says:

      All I’m saying is that, in hard science (an area I published in), using “data” as a singular marks you as a rube not to be taken seriously, And, brendanx, I don’t but the “relativism uber alles” beg-off. Which makes me “picky,” I know.

      • TheraP says:

        even in psychology…. which is not a hard science. Yes…. they make you toe the line!

        But now… really, I do understand that common usage is taking over in everything except technical writing for “science.”

        I think we should not sweat the small stuff… unless it’s taking away our rights!

        • BobbyG says:

          I worked for a while as the Technical Editor in a high-tech industrial engineering diagnostics company in Tennessee. I would routinely change their “data is” to “data are” and the engineers (and my boss) kept changing it back. My boss kept saying “but, it just looks wrong that way.”

          LOL!

    • brendanx says:

      Of course it can be both, as you can say “the public are” or “the public is”; it’s reasonable to think of “data” as a collective “it”.

    • nolo says:

      doesn’t it matter, at all, to you
      guys that the error is intentional?

      it makes fun of a bad
      english translation. see mine @ 48.
      can we let it go, now?

      p e a c e

  22. TheraP says:

    Bush is just making shit up

    That’s the story of his life!!! As far back as we know. And mom and dad simply allowed or endorsed that… “isn’t he cute?” and picked up the pieces when he made a mess!

    And his explanation when things go bad: “nobody ever told me that!”

    • brendanx says:

      Actually, I think Barb probably said, “George, you’ll never amount to anything”, and only then picked up the pieces.

  23. truebluetexan says:

    Do you think this relates to Alberto’s parsing of “the program that the president has acknowledge”? That there is another program that is being used to collect this data that hasn’t been openly acknowledged?

  24. selise says:

    trying to follow along…

    it cannot be legal, until a court says it is.

    – lhp

    I’m not trying to say they’re conducting business legally. I’m trying to point to where the bill that will likely be passed has gaping back doors for George to drive his unconstitutional truck through.

    – ew

    i think we have accumulated enough evidence to conclude that this administration does not care about acting within the law. the exercise of power is, i think, their goal.

    but for surveillance of the population they need two things – which they are trying to get by cover of the law (no matter how lame or false their argument):

    1. they need to be able to instruct the nsa and other gov. agencies to do what cheney tells them to do – regardless of the law or the constitution. signing statements and pixie dust appears to partially cover this. the goal is now to create a new permanent fisa amendment that will not interfere with the function of the large amounts of pixie dust they intend to use.

    2. they need to be able to instruct the telcos (and other related corporations) to do what cheney tells them to do – regardless of the law or the constitution. looks like national security hype and the threat of retribution (see quest) used to be enough… but no more. maybe the lawsuits have spooked the telcos. but now, the telcos want get out of jail free cards for both past and future acts. i wouldn’t be surprised to learn that the telcos gave some very serious push back for their participation earlier this year – that may have even been the reason we got the paa when and how we did (pure speculation of course)

    so… i see three things bushco is insisting on: non-exclusivity, executive (not judicial) oversight of minimization and telco immunity (it’s legal if the potus says so).

    am i missing (or misunderstanding) anything? i didn’t include basket warrants because it looks like they may not need that if they get non-exclusivity.

  25. portorcliff says:

    Marcy….

    Keep looking. My BS meter is pegged beyond ‘tinfoil hat’.

    When it gets this deep I look to Addington. Where was he during the EO Pixie Dust power grab?

  26. Rayne says:

    I picture a card game here that looks rather like the old children’s game of “War”:

    My court order takes your illegal act;
    Your EO takes my court order;
    My legislation takes your EO;
    Your signing statement takes my legislation;
    My new and improved legislation takes your signing statement;
    Your offshored/contractor-provided act voids my new and improved legislation;
    My Congressional subpoena takes your offshore/contractor acts;
    Your “executive privilege” takes my Congressional subpoena;
    My inadmission of same as not applicable takes your “executive privilege”;
    Your “state secrets” takes my second demand for compliance under subpoena…

    What’s the next trump here? I don’t see it.

    • nolo says:

      my new attorney general takes your refusal
      to comply with the subpoena — yep, back to
      the d.c. district court, for enforcement.

      now, repeat ad infinitum, starting at/
      from line one of raynes!

      honestly, i dont think it’ll be this bad.

      • Rayne says:

        Don’t you think we’re already there, though? Mukasey is highly unlikely to enforce a Congressional “contempt of Congress”? He’d leave to Congress to enforce, and Congress can’t claw their way out of a f*cking wet paper bag.

        BobbyG — I think the SCOTUS isn’t on our side, though, can’t be used to execute the Nixon bitch-slap; SCOTUS is really more of a wild card.

        EW — and that’s the problem with “fire”, it’s the wild card SCOTUS or the inscrutable USAG that we can’t read; the point at which one uses fire is so late in the game that it’s nuclear winter on both sides.

        I can think of only a couple more moves beyond this, like a military stand-down or all white-hat CIA’s going public, or a foreign agent/state making full disclosure, or a bunch of completely unscripted Calvinball-like moves.

        • TheraP says:

          I’ve been thinking for a long time that other nations are likely signing secret pacts against us. Not sure how that would play out. But… it’s hard to believe they aren’t aligning together (against us) for their own protection.

          Unless the economic situation gets so bad… that it basically brings the nation to its knees.

    • emptywheel says:

      Have you ever played “rock paper scissor” with “fire” available?

      That’s where we’re at. No one wants to use their “fire” and we’ll never get out of the game.

  27. LS says:

    Addington and Fielding have created the most blatant wall of obstruction of justice this country has ever seen for this Administration.

    Bushco has committed many violations of the law during their terms in office, starting with stealing the 2000 election. They planned everything prior to taking office. Everything. Then when the shock and awe of the people began to wear off, they really clamped down with the secrecy by abusing every tool possible.

    They created the terror climate in order to control the people and the rest of the government. Years have now passed, and tons of people have dug up their dirty deeds, despite being labeled as conspiracy theorists, etc. Every fact presented was knocked down by those still in shock….now, they are trying to create a ton of smoke and confusion everywhere in order to exit unscathed.

    I believe that at one point, and possibly still, they seriously considered remaining in power after January, ‘09. Now, too many things have exposed their nekkedness and their lies. Now, they are afraid of being held accountable by war crimes tribunals…Goldsmith said they are afraid.

    Those closest to them cannot see clearly, because they are still throwing sand in the umpire’s face; but if you step back and look at the magnitude of their actions, it becomes crystal clear just how bad they really are, and how that dog doesn’t hunt anymore…I put nothing past them at this point…unless they are allowed to leave office without prosecution. They are the most dangerous terrorists in the world.

  28. TheraP says:

    You people are doing a super job!

    I hope Nolo is right. I fear EW and Rayne are on target. An endless game of rock, paper, scissors (I had the same image).

    I sometimes wonder, these days, if our country is just too large to be a democratic type (yes, I know it’s a republic) nation. I honestly wonder.

    Of course I’m not throwing in the towel… but I was “round the block” with Vietnam and Nixon… and this is worse. And how can we really be sure next time that there aren’t smoke and mirrors going on?

    Like I said, to me, something feels almost irretrievably broken.

    It’s like when I used to do psych testing reports. And I had to say someone was a paranoid schizophrenic. I always hoped I was wrong!

    I would be so happy to be proved wrong here!!! Please, prove me wrong!

  29. BobbyG says:

    It has always puzzled me — where are the Suits in all of this? Totally unfettered spying on everyone with no independent oversight means various operatives on the inside could untraceably steal and quietly profit from proprietary commercial / financial information ongoing. It’s way more than just the Bu’ushies tracking your personal web surfing, phone calls, or VISA transactions.

    • emptywheel says:

      I was listening to Chatter as I walked my dog today, and it goes over the handbook for GCHQ in the UK (where the US and UK do their SigInt together), and it starts with an admonition about all the information that walks out the front door in the memory of the analysts.

      ANd I had precisely your thought, particularly as I was thinking of this post. If we let them access the information, it’s going to get out, for and to someone.

      Also note, this whole minimization discussion started with a discussion of what happens when NSA decides to spy on a foreign business; do all the communications from Americans doing business with that company get vacuumed? Yup.

      • BobbyG says:

        There was a dust-up a few years ago when the feds tried to order a scuba diving company in L.A. to cough up customers’ data — you know, Terrists in Wet Suits planting mines stuff. No subpoena or warrants, just give it up.

    • Rayne says:

      The suits are playas in this game, BobbyG. They aren’t quite a wild card, more like a penalty card that’s heavily weighted to favor the executive side of the field.

      We’re in a quid pro quo, where the telco suits carry on with their nearly extinct business model while providing financial incentives in the form of campaign donations as long as Congress continues to reinforce the telcos’ death-grip on communications. All other corporations have a vested interest in maintaining the status quo because 1) they’d otherwise have to completely rethink how they do business and that costs money, and 2) they could be punished until a new communications infrastructure was in place with telcos selling their corporate info on the sly or assessing a toll on their data favoring other corporations that don’t rock the boat.

      The telcos are playing a game parallel to our game, in that they are constantly fighting with lower courts and with the executive office; we’re not only penalized by their efforts, we’re pawns in their game.

  30. LS says:

    I’ve decided that the only explanation for all of this, is that W and Dick modeled their Administration on the exploits of….ta da…Butch Cassidy and the Sundance Kid….with Paraguay, instead of Bolivia….

  31. selise says:

    Why did the telecoms not demand further and more substantial guarantees in the intervening 6 years?

    1. quest
    2. they’d rather have deregulation
    3. i think they very likely finally did earlier this year (and the paa may have been the result)

    • Hugh says:

      3. i think they very likely finally did earlier this year (and the paa may have been the result)

      Telecom immunity became an issue for them I think when court suits were allowed to go forward despite the government’s state secrets argument. And then too the story was getting more play in the blogosphere.

  32. petrecca says:

    1. (I) go online and write critical emails to various congress-critters and to the white-house.
    2. (I) go online to email cousins overseas about business. (I) make phone calls overseas.
    = Above 2 items is enough to get scooped in to george w.’s surveillance net.
    (((i.m.p.e.a.c.h.)))

  33. earlofhuntingdon says:

    The secret lies in keeping Cheney’s subversion of the bureaucracy and established laws secret, to hide his influence and that of his network spread throughout the bureaucracy, and to keep his changes from being scrutinized by knowledgable professionals or the public. One aspect of that is exempting Team Cheney from the normal rules of govt. His claims that his senate duties are “executive” and that his executive duties (all of which are via delegation of the president’s powers) are “not part of the executive branch” are an outgrowth of this.

    I agree that many of Team Cheney’s hires are academically gifted, but ultra-conservative and often wholly inexperienced. Hence, they are more than usually beholden to their superiors for approval and their career prospects. Add to that Team Cheney’s gutting of the experienced bureaucracy and normal policy review processes, and you’ve missed entirely the opportunity to call bullshit on some of Cheney’s more wild-eyed legal “arguments” that hide his usurpation of power.

    Re plural “data”, I must appropriate Churchill: “Up with this, I will not put.” It is now largely recognized as singular. Insisting on the plural for most usage is as an outmoded latinate literalism, not just among the IT crowd, but even among the English, who revere plural nouns like no other.

    • TheraP says:

      Like a crime family, I am sure that cheneydom is entered by proving one’s willingness to engage in “crime” for the cause. People who have such an idealistic view of him/them, that they overlook the fact that they are compromising their own imagined values for the so-called “ultimate good.” There was a British spy series, that shows this perfectly, how people are corrupted in the process of proving their worth to join the cause.

      So, as you say, they hire “inexperienced” people, starstruck by the power and the propaganda spewing, then corrupted little by little… so they never really notice they have sold their soul.

      Sorry if I am describing something so very obvious. (posting this, then following Rayne’s link)

  34. earlofhuntingdon says:

    As a related matter, naming ‘Fredo as Lawyer or Man of the Year fails even as parody. In like mode, it should bring the American Lawyer’s contributors before their local bars for bringing the profession into disrepute. A modest exaggeration, beyond the pale of the First Amendment, but it’s like naming Cheney a champion of open goverment and civil liberties. The parody will be lost on too many people.

  35. earlofhuntingdon says:

    Yoo, Goodling, Griffin, et al, “made their bones” all right. I suspect we’ll never really dig up all the skeletons: the legion of perverted regulations, the lost procedures, the outsourced, dismissed or fired staff and their motherlode of informal knowledge, and the corrupt deals masquerading as necessary because, “9/11 changed everything”. But we wouldn’t be Democrats if we didn’t try, even in the face of pseudo-Democrats who remain among the party’s leadership. Emanuel to that.

  36. TheraP says:

    Sometimes I pine for a Parliamentary system!

    Thanks for all your cogent comments. I see better what we are up against in terms of how rigged the system has become. And then all those right-wing judges etc. And the ways in which corporations and legislators are intertwined.

    It may take the rest of our lives to try and dig out of this… if that is possible. Believe me, I’m on board here! (like a rat in a maze… but still on board)

    Kudos to all here who have clearly worked so hard!

  37. JohnLopresti says:

    Some Republican senators tried to game the Supreme court and got chastized for it. Senators have a right to enter documents in the record, but these two senators’ document was a feigned dialog written to appear as if the senators had spoken in an interchange during live argument in the senate chamber; their document was intended to fool the SCourt into believing the legislative history of the writing of the executive detetention law was such that congress intended to end habeas. Dean wrote about the worthy Senators’ scam. With respect to signing statements, in the dissent in Hamdan, Scalia chafes, at p.15 of the dissent, while citing the signing statement Bush wrote after DTA passed. Both of those ploys were unusual, but are notable alerts that there is a political context in which Scotus exists, so some of the reliable record of that court is less firmly available. I thought the 6th circut appeal decision in the other cited case weak, but Alito has two companions on the Scourt who have proclivity to apply the NoStanding rule, and it would take a lot of anxiety to make Roberts dissent from the Alito faction in that particular case, though it could be accomplished with some deft advocacy. The wiretap protection law congress is developing now is part of the endgame in that hassle. It might be interesting to see what a Democratic party administration would do to improve standing for business and academic and others such as the NGOs mentioned above by other writers, in communications privacy. The slip could be when some small country’s petty tyrant is replaced, and if an archive of metadata of NGO comms then were to appear in the former regime’s strategy planning documents.

  38. wavpeac says:

    I work with folks who have mental illnesses. It has been my observation that arguments with “valid” points steeped in some reality are easier to poke holes in than those that are not based in reality at all. Seems like it would be the opposite, but there is a lot more meat to work with when they give me some solid foundation and logic. It seems to me that this is part of the problem in confronting bushco.

    So Mr. President please explain to the american people why you have decided to spy on them?

    Because I can. Can you prove I can’t? I see flying monkeys. Can you prove I don’t? Therefore I do have the right to spy on american people. And you sir have no right to question me on that because by questioning me you are giving the impression that you do not support my point of view. Since I am right, that makes you wrong. Got it?

    Now, debate those points and win the arguement.

    • bmaz says:

      Are you Katie Jensen?

      Pete Pierce – Yeah, the ACLU order is a good one on the torture tapes destruction front; arguably as strong or stronger than those in the Mossaoui case. At the root level though, there is no reason to go beyond the tortured individuals themselves. The tapes were evidence as to them; that alone was more than enough to mandate their evidentiary retention, the other cases are just icing on the cake.

      • PetePierce says:

        Bmaz–

        Did you catch news of the D.C. Circuit panel order yesterday afternoon for preservation of tapes at Gitmo after J. Wells Dixon and other attorneys for Gitmo detainee, Majid Kahn, filed a motion requesting the order. I see many more motions coming as attorneys realize that it’s the government’s MO to tape the torture and then destroy the tapes or hide them and lie and say they don’t exist. The level of DOJ cooperation in this obstruction is not surprising at all to me. I couldn’t find the order on the D.C. Circuit website, and didn’t feel like logging into Pacer. Why is it that the Circuit Courts of Appeals and many district courts have such crappy haphazard websites when people are paid to make them usable? Many of them are egregiously horrible at even displaying recent opinions and particularly orders issued.

        U.S. court orders Guantanamo torture evidence preserved

        There are 3 federal court orders that were issued forbidding the destruction of the CIA torture tapes. I think EW alluded to one of them in a recent blog.

        The CIA destroyed the tapes in November 2005. That June, U.S. District Judge Henry H. Kennedy Jr. had ordered the Bush administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”

        U.S. District Judge Gladys Kessler issued a nearly identical order that July.

        At the time, that seemed to cover all detainees in U.S. custody. But Abu Zubaydah and Abd al-Rahim al-Nashiri, the terrorism suspects whose interrogations were videotaped and then destroyed, weren’t at Guantanamo Bay. They were prisoners that existed off the books — and apparently beyond the scope of the court’s order.

        Attorneys say that might not matter. David H. Remes, a lawyer for Yemeni citizen Mahmoad Abdah and others, asked Kennedy this week to schedule a hearing on the issue.

        CIA destroyed tapes despite court orders

        I suppose the defense will be they were lol renditioned so the torture took place by CIA agents outside the U.S. so the orders did not apply. I would find this a ridiculous defense, and one no federal judge with an IQ one tenth the thermometer would let fly.

        • bmaz says:

          Pete heard about the DC order being issued; haven’t looked at that case much yet. If I was a lawyer on any of those cases, I would be beating feet to the courthouse to file all kinds of crap; because the reputation and credibility of the DOJ is getting so bad on this stuff, that pretty soon even weak stuff might end up sticking.

          Yep, I agree about Federal Courts websites. Couple are actually good most mediocre at best and some downright homely/pathetic. I am glad to have PACER, but not that fond of it. In fact, I was just getting ready to go to it to look for the two Brinkema orders, although I fear they may be sealed under CIPA protocols. As I was discussing with Mary on another thread, these detainees and the tape evidence, was under the control of the US irrespective of where they were. Using the fact that the US illegally was holding them in illegal black sites etc. doesn’t do shit for me as an excuse.

          • PetePierce says:

            I use Pacer but find it stupidly laid out compared to most search engines. The Ninth Circuit IMHO has one of the best laid out sites. Some of the district courts are just simply horrendous–posting no memorandum opinions or significant legal information at all except for the desultory local crap. Many of them can’;t even post the local rules correctly.

            I noticed the illustrious Brigadeer General Thomas Hart Mann, legal advisor to Gitmo, lol Gitmos Chief “Of Counsel testifying before either House or Senate Intelligence today who asserted exactly the goofy defense I predicted the gov would use–that torture on foreign soil by U.S. agents would not be subject to U.S. laws on the military books and part of the Geneva conventions.

            These people are taking their cues from Addington/Cheney/and Shrub and another lawyer who is keeping a low profile–Harvard Law’s own Ed Gillespe who took Rove’s place more or less.

            General Mann’s statements today, and General Hartman’s statements to SJC yesterday should be getting a helluva lot more coverage and show casing than it has because it goes right to the heart of BushCo’s strategy that they aren’t accountable to any law for any flimsy reason they grab.

  39. Leen says:

    Just read all comments. Thanks folks, your insights, understanding and opinions help me understand.

    [email protected]
    William Ockham @8
    TheraP…plenty of sheep driving to the malls with their pedals to the metal to buy shit from China. The 4 million Iraqi refugees say Happy Holidays to the Americans.

    [email protected]
    Selise @18
    [email protected]
    [email protected]
    [email protected]
    Old Hippie chick @57
    [email protected]
    [email protected]
    [email protected]
    [email protected]
    John [email protected]

    On and on. Thanks

  40. freepatriot says:

    all of your data ARE belong to us

    I hate it when they fuck up george’s malaprops

    even you ew …

    you’re still my muse though

  41. radiofreewill says:

    I’m with bmaz. It seems the ‘harsh interrogation’ program was directly controlled from the White House – to the Conference Room next door to the Interrogation Room – such that each ‘intent shake’, ‘open-handed belly slap’ and ‘Waterboarding’ session was discussed, authorized and performed – all captured on audio and video tape.

    To establish the direct connection between the actions and the authorizers in such a manner would likely make the ‘location’ element moot.

    Torture is on Bush like fly-paper.

    • TheraP says:

      It seems the ‘harsh interrogation’ program was directly controlled from the White House – to the Conference Room next door to the Interrogation Room – such that each ‘intent shake’, ‘open-handed belly slap’ and ‘Waterboarding’ session was discussed, authorized and performed – all captured on audio and video tape.

      As I read that, I was having the thought of those websites where people pay to see “what they want.” They order up a “belly slap.” Order up a “waterboard.” Etc. That’s exactly what happened here!

      I wish someone could do u-tube of that…. showing bush and cheney “ordering up” the torture… like you’d order up a pizza. That would bring home the awful situation we’ve arrived at… where “leaders” are doing for real, with helpless prisoners, a kind of “porn and torture” reality show.

  42. bmaz says:

    Yeah, I should have pointed out the 9th, since that, along with Arizona District, is the one I use the most. I thought the DC Court wasn’t bad either. As to the rest of your thoughts – Agreed.

    • PetePierce says:

      Agreed.

      Look at all the Dems who are conspicuously absent from this letter–wonder if it’s an omen of bad tidings to come?

      Senators Lobby Reid to Keep Telecom Immunity out of Surveillance Bill

      Dear Majority Leader Reid:

      We understand that the Senate will shortly be considering amendments to the Foreign Intelligence Surveillance Act. As you know, the Senate Select Committee on Intelligence and the Senate Judiciary Committee have reported very different versions of the FISA Amendments Act, S. 2248, and it is up to you, as Majority Leader, to decide how the Senate considers this legislation.

      We urge you to make the version of S. 2248 reported by the Senate Judiciary Committee the base bill to be considered by the full Senate. While the structure of Title I of both bills is the same, and both make improvements over the Protect America Act, the reasonable changes to Title I made in the Judiciary Committee ensure that the FISA Court will be able to conduct much-needed oversight of the implementation of these broad new surveillance authorities, and help to better protect the rights of innocent Americans. While we appreciate the hard work that the Intelligence Committee has done on this legislation, the process by which the Judiciary Committee considered, drafted, amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the results of this open process should be accorded great weight, especially in light of the Judiciary Committee’s unique role and expertise in protecting those rights.

      We also believe that the Judiciary Committee bill is preferable because it does not provide immunity for telecom companies that allegedly cooperated with the administration’s warrantless wiretapping program. As this is such a controversial issue, we feel it would be appropriate to require the proponents of immunity to make their case on the floor.

      Thank you for your consideration.

      Sincerely,

      Russell D. Feingold (D-WI)

      Christopher J. Dodd (D-CT)

      Barack Obama (D-IL)

      Bernard Sanders (I-VT)

      Robert Menendez (D-NJ)

      Joseph R. Biden, Jr. (D-DE)

      Sherrod Brown (D-OH)

      Tom Harkin (D-IA)

      Benjamin L. Cardin (D-MD)

      Hillary Rodham Clinton (D-NY)

  43. radiofreewill says:

    Eavesdropping and Waterboarding

    Are all you need to:

    Identify Ideological ‘Enemies’ and Pancake their Minds.

    That way, everyone is sure to Act Right and Think Right, or they won’t be around to threaten those that do.

    The slippery slope is not a playground slide, but a precipitous fall into Bush’s Living Hell.

    More than Our Country is being stolen, America!