Will Dick Finally Get Busted for His Leaks?

I am of the opinion Dick Cheney escaped any repercussions from ordering his Chief of Staff to leak a CIA NOC’s identity because Bush’s Pixie Dust gave Dick the right to insta-declassify classified material as if he were King President. I wonder, though, whether Bush has Pixie Dust somewhere that will permit Dick Cheney to ignore a gag order imposed by a Court? That’s what Colonel Morris Davis suggests Cheney may have done–leak a video purportedly showing Gitmo detainee Omar Khadr making a bomb to 60 Minutes (h/t TP).

Omar Khadr’s defense lawyers will try to find out whether U.S. Vice-President Dick Cheney’s office secretly leaked a video of the detained Canadian to an American media outlet – an allegation that, if proven, would be a clear violation of court orders and further proof that the process by which Mr. Khadr is being tried is a political, not legal one, his military lawyer says.

In an interview with The Globe and Mail Monday night, Lieutenant Commander Bill Kuebler said he is trying to find out how a highly secret video showing Mr. Khadr in Afghanistan was leaked to the U.S. news program 60 Minutes. The video appears to show Mr. Khadr building a bomb.

The news program aired the footage last November.

Lt.-Cmdr Kuebler, Mr. Khadr’s top U.S. military lawyer, said he met with Colonel Morris Davis, the previous top prosecutor of military commissions – the body that is expected to try Mr. Khadr in Guantanamo Bay later this year – last week.

At the meeting, Lt.-Cmdr. Kuebler asked the Colonel where he thought the leak may have come from. In response, Lt. Cmdr. Kuebler said, Col. Davis offered the opinion that the Vice-President’s office may have been involved.


Lt.-Cmdr. Kuebler said the prosecution had wanted to play the tape in court – in view of the media – late last year, but the request was denied by a judge. A few weeks later, 60 Minutes had the report.

Given that context, Lt.-Cmdr. Kuebler said he believes the tape was leaked, and he tends to agree with Col. Davis, who told him it was unlikely a junior officer would be the one to leak it.

Of course, we still don’t know why William "we can’t have acquittals" Haynes resigned suddenly last week, so maybe Haynes is preparing to serve as Cheney’s firewall. For this particular illegal leak. After all, it seems like Cheney’s always got a journalist or a loyal firewall to cover up his illegal leaking for him.

I’ll say this though–Colonel Davis is looking more and more like he’s going to be an interesting defense witness for Gitmo detainee Hamdan.

[Here’s a question, now that I think of this–was this a military or a civil court? If it was the former, I can well imagine Dick found the Pixie Dust he needed to justify ignoring court orders.]

94 replies
  1. bobschacht says:

    In Lord of the Flies, we get to see what happens when kids are turned loose with no supervision, and it is not a pretty picture.

    We are presently living through a Lord of the Flies moment– for the past seven years we have seen what happens when the White House is turned loose with little or no supervision by the Congress or the Courts (our Balance of Powers equivalent to “supervision.”) And the results, again, are not a pretty picture.

    What depresses me is that Cheney & Bush have, again and again, crossed lines that I had thought must never be crossed or surely Congress would do something– but they don’t. Taking impeachment off the table is looking more and more to me like the crime of the century. Historians will recognize these last five years as a pivotal moment in American History, and so far, Congress is flunking the course, big time.

    Bob in HI

    • phred says:

      Congress is flunking the course, big time

      Well said Bob. As much as I consider BushCo a criminal enterprise, it is the Congress that I find utterly contemptible. The framers anticipated an executive inclined to over-reach, that’s why they built in checks and balances. They never anticipated a Congress that would fail to guard their own prerogatives. They imagined that if members of Congress failed to represent their constituents’ wishes they would lose their seats. The framers did not imagine a two-party system so corrupt with campaigns so expensive that removing either (or both) corrupt parties from power would present an insurmountable hurdle to the public.

      From what I can tell from Congress and the Courts, the answer to EW’s question is a resounding No. It makes me sick.

    • earlofhuntingdon says:

      I think that’s testimony to Cheney’s deep cynicism, and his loathing for “democracy” and most likely, himself. He’s so secure in his own skin that his new home is 2000′ from the CIA’s headquarters in Langley, VA. No doubt, the electric cart in the tunnel will make it seem even closer.

  2. JimWhite says:

    So how about a follow-up ad to the healthcare ad (If he were anyone else, he’d be dead) that says “If he were anyone else, he’d be in prison”.

  3. oldtree says:

    the stanford prison experiment is another apt analogy, put a normal person in a bad situation. What happens when you put a sociopath in such a position?

    • JohnForde says:

      Actually Oldtree, The Stanford (Milgram) experiment pre screened for character flaws. These were normal boys in an intoxicating environment of authority.

      Waterboarding George and Shooter are in the intoxicating environment of authority, but they are sociopaths to start with.

  4. bobschacht says:

    Oops– I meant to offer an answer to your headline, EW: I sure hope so!

    But what gives you hope that Cheney will get busted? You give us more evidence of the kind that should have been enough to sink the ship, but like all previous torpedos, what makes this one any more compelling to a fearful, spineless Congress, than any other? Are you expressing the faith that the Courts will do what the Congress has failed to do?

    If so, I hope you’re right!

    Bob in HI

  5. skdadl says:

    [Here’s a question, now that I think of this–was this a military or a civil court? If it was the former, I can well imagine Dick found the Pixie Dust he needed to justify ignoring court orders.]

    It was a military tribunal — scroll down to 3.12, November 8, 2007.

  6. Mary says:

    This piece indicates that Davis’ beliefs are based in part on discussions he had with the producers of the 60 Minutes segment.

    There have been protective orders in both civilian courts and by the military tribunals and while the article in the post refers to courts, my guess would be the ruling was by a military tribunal.

    Which means that Cheney, who pulled the strings and made the tribunals dance to his tune on Hicks, probably was just doing what comes naturally.

    They should have started impeachment with Bradbury months back and should be moving on, now, to the planting of covert domestic propaganda in violation of the NSAct and other crimes vis a vis Cheney.

    But it’s not going to happen. Really, after the bombshell Fitzgerald dropped in the Libby case about the direct violations by both the President and Vice President of domestic propaganda provisions of the NSAct, all to a yawn, what will this do? Not a thing.

  7. Mary says:

    7 – my guess would be, then, that even if it comes out clean and clear, the tribunal authority would say he has no jurisdiction over decisions by the civilian Executive branch to make information available to the public.

    And he probably doesn’t.

    A large part of the problems with GITMO are the same as the problems with using Fitzgerald for the Libby case. There are too many interferences on too many fronts and too many limitations.

    • skdadl says:

      Well, except: can someone explain to me why 60 Minutes is not now in the same situation that the journalists subpoenaed by Fitzgerald were? (Apart from the fact that there’s no Fitzgerald?)

      The tribunal authority cannot be the highest authority — can it? I could be wrong, but I don’t think Khadr’s case has ever been out of that system, although others have been, and interestingly.

    • phred says:

      Thanks for the link rosalind. That shout-out is well deserved and I am delighted to see bmaz’ argument showing up on DKos’ front page. I made it very clear in my latest bunch of emails sent to Congresscritters this morning that retroactive immunity is all about Bush and Cheney and not at all about the telcos. I hope lots and lots of folks make that point in their calls and emails…

  8. Ishmael says:

    OT, but depressingly familiar. Prime Minister Harper denies that his chief of staff leaked the NAFTAgate memo:

    “On the day of the critical Ohio primary, Harper said his government is trying to find the person who leaked a memo that has embarrassed Obama and raised questions about his sincerity.

    But Harper denied U.S. reports that his chief of staff Ian Brodie was the person who transmitted details of a private meeting between Obama’s economic adviser and a Canadian diplomat.
    He issued the denial as Obama’s poll numbers sputtered amid suggestions he’s engaging in double-speak on NAFTA.
    “The leak of this particular document is not only regrettable . . . it’s completely unacceptable to this government. And we will do our best to find out who did it,” Harper told the House of Commons on Tuesday.

    “It is not my chief of staff.”

    Uh huh…..

    • skdadl says:

      Uh huh … Gosh. Harper has a lot of denying to do lately, doesn’t he?

      Oh, I’m trying to be patient. The Cons need to shoot themselves in the feet a few more times before enough of the electorate notice. But the mistakes are starting to tumble out, and Harper is showing signs of temper. He will make more mistakes. We must be patient.

      • Ishmael says:

        I find it amazing that he ever became Prime Minister in the first place, from his perch at the National Citizens’ Coalition. It would be like the head of the Heritage Foundation becoming President. I would love for some of more enterprising investigative reporters here in Canada to look into the relationship between the Conservative Party and the Republicans (Frank Luntz works for both).

      • MrWhy says:

        EW – please don’t do a post on Stephen Harper and campaign interference. He’s litigious when rankled. (Channeling my inner Rex Murphy / Stephen Lewis.)

          • bmaz says:

            If this is the incident I think it is, Harper has all but admitted to some interference. And he would have a very hard time making any headway against EW on any kind of lawsuit. He is the epitome of a “public person” under the libel and slander laws and EW is meticulous sourcing her work.

            • skdadl says:

              And to Ishmael, MrWhy, and dipper as well: I can’t see any reason to feel chilled; much of the country is speculating openly about this and other possible scandals as well (Cadman, AECL and the firing of Linda Keen, etc), and Dion and Dryden, at least, have stepped out of the Commons to repeat their questions about financial offers to Cadman, an open dare to Harper to sue. There is troubling evidence in all those cases; how can Harper forbid people to talk or even to publish?

              Interesting background here on Austan Goolsbee, the Obama economic adviser who apparently got chatty with a Canadian consular official in Chicago. Gung-ho University of Chicago free trader, he is, with all the predictable neo-lib baggage that that entails.

              Obviously, Harper isn’t going to have any more of a problem with that program than George Will does, so this whole kerfuffle can’t be explained, I don’t think, by bluff and bluster about NAFTA. Obama would bother our Conservative leadership for other reasons. Ishmael’s question @ 17 is still the interesting one: is it possible that quiet contacts between Republicans and Harper Conservatives have come close to spilling over into … Well, I won’t finish that sentence. MrWhy has me chilled now.

              We know that there were two leaks, one verbal, one the memo that has just surfaced, and Harper is committed only to investigating the memo. It’s the politics that’s the problem, not the economics. All the power players in both major parties here, as in the U.S., run on an establishment consensus about trade issues, and that’s not going to change soon no matter who we elect.

  9. earlofhuntingdon says:

    On a related theme, having just gutted the remit of the President’s Intelligence [sic] Advisory Board, GWB has appointed Fran Townsend as its newest member. Thus, assuring that whatever authority he hasn’t already taken away from the board will not be used to investigate him or the excesses he has elicited from his “intelligence” agencies.

    (h/t Think Progress)

    That mirrors the “perfect paradox” promoted by Mukasey’s DOJ. To wit: The president can do no wrong if his lawyers tell him he’s doing right; his lawyers can do no wrong if the president tells them they’re doing right.

    (h/t unkonwn)

    The work of the Bush administration resembles nothing else so much as Auric Goldfinger. As James Bond discovered in the nick of time, Goldfinger didn’t want to steal all the gold in Ft. Knox, he wanted to make it so radioactive it would be worthless.

    • JohnJ says:

      Goldfinger didn’t want to steal all the gold in Ft. Knox, he wanted to make it so radioactive it would be worthless.

      Wow exchange oil for gold and I think you are on to something. Goldfinger wanted to increase the market value of his gold. Interesting that radioactive comes up when the Big Dick wants to nuke Iran. That’s so close it’s scary.

      But who’s Oddjob and who is Pussygalore?

      • earlofhuntingdon says:

        The profitability for big oil has certainly worked out for them the way Goldfinger hoped taking out Ft. Knox would work out for him, in trebling the value of the gold he already owned.

        As for central casting, Goldfinger is easily Dick Cheney. Who replaces the catlicous Honor Blackman? I think you’ve got to rewrite the ending first: she doesn’t succumb to the pheromones of Jimmy Bond and remains Goldfinger’s pet. There, hands down, the casting is Shrub. Though Condi would look the part in stiletto heels and black leather collar with bell.

  10. Mary says:

    applause for bmaz!

    12 – this isn’t going to be super easy to answer, but here’s how it goes. The Tribunal has to have jurisdiction over the people involved to be able to issue an order that can affect them. The military tribunal pretty much has that jurisdiction over the JAG prosecutors and DOJ assists who are working on the tribunals, bc they have appeared before them. THey also pretty much have that jurisdiction over the JAG defense counsel and civilian defense counsel working on the matter.

    However, does a military tribunal in GITMO, have any authority over what a civilian television station in the US plays? Probably no – and thank God for that. Would it have authority if the information was deemed classified by the military? Again, probably no (and thank God again) unless you buy too closely into the Ex Parte Quirin reasoning – which even Scalia doesn’t. If the info was classified and played, then you would have to look to the DOJ as to whether or not it chooses to pursue the leak of the classified information (a tribunal can block the release of info for reasons other than an Exec Branch determination of classification).

    The military tribunal would only have the ability to take action, IMO, if the leak originated from someone (like DOJ counsel working on the GITMO cases or JAG counsel) who was within the tribunal’s jurisdiction and subject to its order. Davis seems to be expressly saying that the leaking party wasn’t JAG or DOJ, but rather OVP.

    So then the issue becomes would a military tribunal even attempt to say that it could override the decisions of the civilian government as to what information the civilian government chooses to release for national security reasons and make the civilian government subject to the tribunal’s decision on what information the American public can and can not hear? I don’t think so. Now, if Haynes was involved, that gets a bit more interesting, but if it was all OVP, then I don’t think the tribunal can do anything to Dick.

    Cut back to the US civilian courts. If the information was classified, then what? Well, that gets to EW’s “instadeclassification” approaches and can the VP covertly declassify to leak? IMO, no, he can’t and that’s illegally planting domestic propaganda in violation of the National Security Act. It can also be, after the Ellis AIPAC ruling, viewed as a violation of the Espionage Act by CBS for it to have even received the info if it wasn’t “instadeclassified.” But all that relies upon a DOJ that would a) investigate, and b) dispute the VP’s covert planting of domestic propaganda for political pruposes as being a “declassificiation”

    Not gonna happen.

    We already had a shot at that happening in the Libby case and even have the confessed leaks in the public record and it didn’t happen.

  11. JohnJ says:

    bmaz is being discussed, by product not name in the latest comments over at TPMM as well. They are just catching on to this!

    DFH bloggers are actually leading the discussion for once?

    As I opined earier, once the source has been cleaned up (no DFH bloggers involved) this may actually hit the corporate media soon!

  12. prostratedragon says:

    Taking impeachment off the table is looking more and more to me like the crime of the century.

    The Congress of this era might wind up with the worst reputation of all the parts of this debacle among historians, not only because of their failure to use their authority for what was intended under the Constitution, but for how they have repeatedly used duplicitous means and otherwise gone out of their way to abet the Bushies in most of their worst schemes.

    In an OT note, I’d like to remark in passsing that at least one person in government today has performed a redeeming act by saying something necessary if overdue. I speak of Fed Chairman Ben Bernanke, who addressed the mortgage crisis before a bankers’ convention today. He told them basically that there is no miracle that will save us from a pretty big disaster, but waiting around for one and not beginning loss-mitigating actions now will guarantee that the disaster is much bigger than it needs to be.

    The really big news is that he suggests that banks get on with reducing the principal value of mortgage loans where this makes better long-run sense than foreclosing (and is feasible for other technical reasons). I’m quite sure that this is as far off the reservation as anyone who has not yet resigned from a Bush appointment has dare gone in public, short of maybe Patrick Fitzgerald. And though the caterwalling has hardly even begun, I happen to think he’s abosolutely right.

    Proud of you today, sir.

    • earlofhuntingdon says:

      Excellent observation about “reducing the principal value of mortgages”. That would be taking the little Dutch boy’s finger out of the dike, while inverting the moral value of doing so. The enormity of the problem would become clear, and sweep away hundreds of billions. But it would plant the economic costs squarely on the shoulders of those most to blame for this crisis, and the crises its ripple effects are causing.

      Such obvious and effective steps, which would also include revisions to the onerous bankruptcy code, pit the interests of average Americans against Big Finance. That’s treason by Gooper standards. But the Dems can’t even make a few billionaire hedge fund managers pay the same rate of tax as your neighbor living on Social Security.

      It will take heavy wins by real Dems (eg, Donna Edwards) and comparable losses by Goopers and Bush Dogs, to upend the big business bent in Congress. Let’s see what we can do.

      • prostratedragon says:

        The enormity of the problem would become clear, and sweep away hundreds of billions. But it would plant the economic costs squarely on the shoulders of those most to blame for this crisis, and the crises its ripple effects are causing.

        Exactly! Those losses exist and at some point are going to be evident to all, but much of the temporizing has been because of the search by those among the lenders whose shoddy lending practices have done the most to fuel the bubble for some way to make any and everyone else bear those losses.

        Congress should indeed fix the bankruptcy procedures that, in this case, were broken in 1978 before the last lending crisis. The cramdown provision that the Dems have sought would allow judges to do what Ben has suggested for individual loans where the borrower has sought Ch13 rescheduling. His suggestion is more radical in several ways, as it would apply to 1) groups of loans 2) where single borrowers might not yet have sought aid (but where there’s a distinct, actuarially estimatable probability that they will do so); but so far, at least, it is also voluntary on the part of the lender. So there’s still room for Congress to act and try to shove something past the chowderhead. They might also look at some of the rent-to-own schemes, e.g. Dean Baker’s, and partnerships with some of the measures that localities are starting to consider.

        Believe it or not, the magnitude of this problem is still not fully evident, but I don’t think we want to wait until it is.

        JohnJ: The totalitarian rethrugs are slipping:

        Yep. Pretty near everywhere.

  13. bobschacht says:

    Here’s to the bloggers who actually care about our Democracy, and whose passion motivates them to sniff around in the weeds and turn over rocks that everyone else takes for granite (h/t punaise?)

    Here’s to the commenters who read the bloggers who care enough to do the work of democracy that the Fourth Estate was meant to do, and who stand up to cheer and w00t!, giving emotional aid and comfort to the bloggers, and often for adding important new insights and information (h/t to Mary and others)!

    Here’s to the blogosphere, for taking up the mantle that the traditional Fourth Estate, in their bloated pride and self-conceit, have cast aside for the comfort of becoming the trained poodles of the rich and powerful!

    Here’s to the blogosphere, for conducting the investigations that the House Judiciary Committee ought to be doing, but who are rendered powerless by a corrupt Democratic “Leadership” that acts mainly to keep the lid on the massive crimes against Democracy that are being committed!

    May bmaz inspire dozens– nay, hundreds, even thousands of imitators!

    Friends, fellow patriots, rise up and seize your keyboards! You have only your day jobs to lose!

    Uh-oh, gotta go back to work….

    Bob in HI

    • phred says:

      Friends, fellow patriots, rise up and seize your keyboards! You have only your day jobs to lose!

      LOL! Thanks for that : )

      • earlofhuntingdon says:

        Assuming it’s not already out the door to Beijing.

        Congrats, again to bmaz for well deserved recognition. And to everyone else who’s thorough research and understanding of what’s at stake for average Americans makes Congress look like a Putin publicist describing how hard he’s working to save democracy.

  14. maryo2 says:

    Regarding bmaz: Given how a few Democratic Senators (Nancy Pelosi, Jane Harman and Jay Rockefeller) as well as AG Ashcroft propagated torture, shouldn’t we assume that they were also briefed on the indemnity for telecoms; thus Congress was notified for the amount in excess of 25 million dollars.

    The shoe will drop and it will be the same tired players. And we will get to hear more “there’s no difference between the two parties” excretions.

  15. JohnJ says:

    This may be history folks. If bmaz’s line of reasoning gets traction as it looks like it is; we may be seeing the first light of blogs becoming mainstream (and may I dream of REPLACING or discrediting the Corporate Media).

    The CM has worked very hard to make the title “blogger” to be as much of a dirty word as “liberal” has become. Anyone with a brain could see citizen reporting as a threat to the established media. I would suspect that has a lot to do with the career “reporters” increasing air of superiority. They know it’s coming.

    They can’t cover up the origin of this thought to make it their own. It’s already out there.

    Think of it; newspapers, radio, and TV are all ONE WAY communication. The only real feedback they have to worry about is sales or viewership. The newspapers can’t tell (and don’t care) that their sales are high because everyone likes the Sunday comics, not because of the quality of their editorials. Obviously not the blogs. As we see every day, you better get it right on the blog, or your readers will tar and feather you within an hour.

    Is it that the 800 pound gorilla just farted (try and ignore THAT)?

  16. GeorgeSimian says:

    Why wouldn’t Cheney keep leaking stuff? He never got punished for doing it before. He does what he wants. Bush has blatantly said to Congress, impeach me or fuck you, and Congress just keeps giving him more power.

  17. MadDog says:

    OT – From EFF:

    Government Admits Wiretap Issue Is Not With Foreign Telephone Calls

    In a story in today’s Washington Post, Assistant Attorney General for National Security Kenneth Wainstein candidly admitted that the problems with FISA (the asserted impetus to the need for new surveillance legislation) are not with foreign-to-foreign telephone calls.

    At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

    But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

    • JohnJ says:

      The totalitarian rethrugs are slipping:

      – If that is the real problem, then why hold up the process extorting immunity for the telecoms?

      It is amazing how many different “most important issues” they are spinning without addressing that simple question. In normal times they would be just digging their own graves deeper.

      I’ll bet they really miss turdblossom right about now.

    • emptywheel says:

      Kris has been saying that for a little while.

      Though his public statement here does allow us to really start hammering on the CCIA opposition to immunity. If the big ISSUE was email, then why are the email carriers (hotmail, GMail, and yahoo) OPPOSED to immunity?!?!?!?!

  18. Mary says:

    Mad Dog – he pretty much had to do that since he and James Baker both said just the same thing in an ABA panel yesterday – Baker just flat asserted it and said anyone who said anything to the contrary was incorrect (may have used a word other than incorrect, but a polite word) I was listening to a replay of that radio broadcast today and put some of the info from it in a thread below.

    • MadDog says:

      Assistant Attorney General for National Security Kenneth Wainstein was also acting the “Artful Dodger” when he said:

      The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

      The facts are that you can never know in advance where the email will be received or sent!

      Web-based email like Gmail, like Comcast’s email, like many others, does not have a predetermined geographic genesis.

      Today I may be sending and getting my email from my home in St. Paul, tomorrow I may be sending and getting it in Tokyo.

      Hence, if one were to read between the lines of Kenneth Wainstein’s dodgering, one would come to the suspicion that the Administration wants all email regardless of origination or destination.

      Can’t let nothin’ slip through the cracks because of geography ’cause in this day and age, geography is quaint!

  19. bobschacht says:

    Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

    Ah! Finally the truth comes out. And it is a valid problem– and the perfect cover for “we want ALL of your e-mails!!!!”

    To me, this greatly enhances the importance of minimization procedures, which have not been discussed much, compared with immunity issues.

    Note here a convergence of the “War on Terror” with the war on spam– in both cases, the sender seeks to hide the true origin of the message, in order to avoid accountability. Furthermore, one can see a convergence of interests between spammers and terrorists on the email communications front. Aye, aye, aye, I see a BIG problem here.

    Bob in HI

  20. kspena says:

    As bush was preparing to take over after the 2000 ‘election’, I read several times that he was advised that he needed a little war somewhere so he could claim ‘war powers’. That would subdue the congress and populace and allow him to get his agenda implemented. The advisers pointed to that reasoning behind Reagan’s ‘war’ with Granada and bush 41 ‘war’ in Panama. It seems a truism. bush keeps harping that, ‘We are a nation at war’ with reason. The congress and the people bow obligingly.

    My blood ran a bit cold yesterday when Hillary responded to a question with the words, “May I remind you that we are a nation at war!” Ooops…

    • MadDog says:

      Kris has been saying that for a little while.

      Though his public statement here does allow us to really start hammering on the CCIA opposition to immunity. If the big ISSUE was email, then why are the email carriers (hotmail, GMail, and yahoo) OPPOSED to immunity?!?!?!?!

      I agree on Kris. With him showing up in the MSM via WaPo, that’s an improvement over the fact-free impoverished folks in the blogosphere like at Salon. *g*

      On the email question wrt to CCIA opposition to immunity, I’d like to know that too.

      I am unaware of folks like Microsoft (Hotmail), Google (Gmail), etc. having become legal targets by folks like EFF wrt to participation in Junya and Deadeye’s warrantless surveillance programs.

      And yet, I have no doubt many have and are participating. So the immunity position of CCIA is most interesting.

      • MadDog says:

        Correction on my 45:

        Twas meant as a reply to EW at 42 and not to kspena at 43. Clicked on the wrong reply thingee. My apologies.

        Secondly, after going through more of the EFF documents, Comcast is indeed listed as one of the parties being sued for the Administration’s warrantless surveillance programs.

  21. ANOther says:

    This subject was identified on your post about Cheney visiting Michigan last night (#47). bmaz responded by saying:

    “No worries mate. That power is authorized by the Unitary Fourth Branch Doctrine. Insta-declassification and leaking. Did you get a gander at that whiff of pixie dust? Poof!”

    But that was before he became famous!!!

  22. bmaz says:

    Hi folks! Been pretty wrapped up all day with a bit of paying work (and a very testy judge I might add). At any rate, thanks much for all the good words. I will have to say, however, that calling my little piece the breakthrough in new journalism is just a bit over the top though. Heh heh; I would be happy just to have the questions on indemnification agreements be asked and answered before we are sold down the river of immunity.

    • MadDog says:

      So look who finally deigns to show up…wearing a lime green ascot, white bucks, a great tan, and driving a Maserati with a blonde under each arm.

      We all bow before the great bmaz! Speech, speech, speech!


      Howdy podner!

      • bmaz says:

        And by the way MadDog, as I am sure is the case at Phred’s, here at Casa de bmaz the cheesehead is at half mast and a state of mourning prevails. Football just won’t be the same without Brett Favre.

        • phred says:

          And by the way MadDog, as I am sure is the case at Phred’s, here at Casa de bmaz the cheesehead is at half mast and a state of mourning prevails. Football just won’t be the same without Brett Favre.

          It is indeed. It took all my willpower and restraint yesterday not to go hopelessly off topic in a fit of wailing and gnashing of teeth… I’m looking forward to seeing what Aaron Rodgers can do, but I will miss Brett all the same…

    • JohnJ says:

      Yeah, the nexus may not be exactly here, but it has been thrilling to watch non-propaganda expand and travel. The argument you make is so hard to dismiss or talk around that it could really have an impact if it is heard. The great thing is the argument didn’t come from within the politically privileged class.

  23. JohnLopresti says:

    I am too busy to search much re carriers tonite, maybe tomorrow, but, MadDog, the way I remember Googles copa brief it named hotmail’s parent corporation in Redmond as providing pretty much what Yahoo did.
    My erratum @54, make that bassist Josh Bolten, not the former UN “recess” appointed representative.

    • MadDog says:

      I’ve been searching to see if I could find Microsoft’s name (Hotmail’s parent) in any of the warrantless surveilance lawsuits or even in the online news/blogs, but no such luck thusfar.

      I don’t doubt your finding, I’m just trying to find it myself. *g*

      • bmaz says:

        This may be a completely stupid thought (a real safe bet when I chime in on the tech stuff), but in my discussions with the attorneys for the plaintiffs in the lawsuits that are pending, and from the Mark Klein affidavit and other pleadings, it appears that the big thrust of the Bush/Cheney program was to suck up all the information from the critical main nodes. The one in the AT&T Folsom Street facility in San Francisco is well known thanks to Klein, but there is also indication that the same massive sucking equipment was similarly installed in San Diego, Los Angeles, San Jose, Seattle and Atlanta as well (and probably in at least two to three other locations on the east coast). Could it be that the Administration didn’t deal with the email companies on the level you are looking for because they didn’t need to; they already were getting all the email off of the trunk lines?

        • watercarrier4diogenes says:

          Exactly the case. The data packets self-identify, so sorting out a segment of a web-page being sent to/from a browser from a segment of text from an email is part and parcel to TCP/IP.

        • MadDog says:

          In response to both you bmaz and watercarrier4diogenes, I’ve had the same thought, but…*g*

          If the Administration doesn’t have every, single one of the 5ESS switches covered, then they likely are not getting all of their desired email.

          I’m guessing they are covering all of their bases, so it would seem logical that the email providers are giving it up just like the Telcos.

          I can’t imagine these folks giving the email providers a free pass.

          And with just a wee bit of techie stuff here, email packets are broken up and sent every which way. They are reassembled at the receiving end.

          Monitoring/capturing packets at the Telco switch level means a massive reassembly process that may be even beyond the power of all the NSA computers.

          Twould be far easier and again, logical, to monitor/capture at the email provider nexus.

          In any event, as I said, Junya and crew are probably doing both.

          • BillE says:

            DPI – Deep packet inspection is a nice google topic. I don’t think google objects because of constitutional concerns, they just don’t want to share. They are all about building marketing tailored to individuals. Irresistible for spooks everywhere.

          • JohnJ says:

            Monitoring/capturing packets at the Telco switch level means a massive reassembly process that may be even beyond the power of all the NSA computers.

            This is my whole take on the data mining operation. My understanding is that the whole net works that way (I’m a hardware guy). I think it’s funny as hell because it looks like someone had the grandiose idea of monitoring (and eventually controlling, which is even more ridiculous) everything without actually understanding what was involved. You can’t just tap the net at a few places and catch everything. If the packet happens to get to the intended receiver first, it is removed from circulation. The paths are not fixed like a voice line would be. I have suspected from the start these taps were a boondoggle. It sounds like a good idea to someone who doesn’t understand the technology. I suspect the Telecoms were laughing all the way to the bank, selling the gov these taps.

            The service provider is the node that actually receives and removes the packets from the “cloud” that belong to the intended recipient. THAT is why the Telecoms are still the main point, and why the Big Dick needs all THEIR data to mine.

      • JohnLopresti says:

        Still catching up to the thread today, md, it may have been a press release from Google at the time it cut the deal for only 1,000,000 search strings. Forgive the delay, my computer upgrade last week jumbled a lot of filefolders to no locations, and stripped all the pdf summaries where I keep link addresses; but the way I recalled after the last post was the comment was in the anciallary announcement from G accompanying their rapid negotiation shifts,

  24. pdaly says:

    Since the Blogs have documented, in real time, all the reasons why granting retroactive immunity, etc. are wrong moves under our rule of law
    is there a way of proving malfeasance/malpractice if and when any Congressperson nonetheless votes for retroactive immunity?

    Is there any way of directing the pointy ends of the shattered laws back at the lawbreakers? In this era of unitary executive theory, I believe we could invent a converse theory of the Congressperson. The single representative in Congress can be thought of as a Superhuman: made up of any and all his or her constituents who by right of the Converse Theory of the Congressperson can take to the floor of the Senate or House of Representatives because that is the natural extension of the logic.
    Mukasey will understand…

  25. Sedgequill says:

    ISP web mail would be a rich trove, especially with accompanying account data. And non-ISP email accounts for which an ISP email address is used in registration would be nice pickings not absolutely requiring pesky IP address to user correlation—some of us actually turn the broadband modem off fairly often and aren’t wed to one IP address.

  26. BayStateLibrul says:

    Jeebus, we’ve got a pony race…

    That fucking low-talking McCain… don’t call me “my friends”
    He will be knighted at the WH today, oh my?
    If the Dems can’t beat McCain, we probably don’t deserve to lead.

  27. Neil says:

    BayStateLibrul – BC Law students and grads object to Mukasey as their May commencement speaker most notably because of his “controversial refusal to declare that an interrogation technique known as waterboarding constitutes torture” and Mukasey’s “position on waterboarding conflicts with the university’s Jesuit mission.” Readers here may have a few more concerns about Mukasey.

    “I cannot imagine a better role model for the class of 2008,” said John Garvey, law school dean, in a statement in January, when the law school announced that Mukasey accepted their invitation.

    David C. Weinstein, chairman of the BC Law School Board of Overseers, wrote Monday in a letter to other board members that Mukasey’s presence at commencement “advances BC’s diversity and strengthens our school.”

    That’s a interesting use of the word diversity. You think Mukasey will be talking about his position on waterboarding? No, I don’t either.

    “It is a mark of prestige among elite schools to attract a speaker who operates at the epicenter of American legal issues, regardless of whether the speaker’s political views are liberal, moderate, or conservative,” he wrote.

    Weinstein puts Mukasey’s conservative bona fides as an overriding justification for his speakership above the specific objections about Mukasey without addressing those objections. It is clear the deans are out of touch with their law school students and graduates.

    Too bad the Globe did not press the BC Law School Dean Garvey or Board of Overseers Chair Weinstein to respond to that objection.

  28. bmaz says:

    Doesn’t sound like the Golden Iggles have done very much to me, Mukas is still going to be lording over their ceremony. I would either not go to the ceremony, go in an orange jumpsuit and a bag on my head or get up and walk out when he spoke. Lets see if they ca do something more than not giving him some medal that they are now not going to give to any speaker. Big freaking whoopee on that one….

  29. Neil says:

    Choate Rosemary Hall prep decided to invite Rove to a speak at another opportunity instead of graduation based on students’ objections that Rove’s method of operation (specifically in the leak of Plame’s covert identity among other specific objections) is not consistent with the values taught at Choate. Rove spoke, no press was allowed to enter. Dunno who’s coming for graduation but I doubt it’ll be Scooter Libby.

    Seems like a reasonable way out for a head of school, dean, or Board Chair unless of course, they see no merit in the objections.

    I agree “Doesn’t sound like the Golden Iggles have done very much to me…” The law iggles gain nothing by denying Mukasey and all subsequent speakers the iggle medal of honor. If you wanted to make hay out of it, you could press the question: Why invite a speaker to whom we would not be willing to bestow such an honor? What is it about his stature or even, ethics that we find less than exalted, indeed objectionable?

  30. JohnJ says:

    I should mention that there is a tap in Crystal City, Va. (where the Pentagon is).

    When I first installed my firewall I did a trace on a bunch of the hacking attempts (pings looking for open ports). Every single one of them went through Crystal City, even if they entered through the west coast.

    There may be a technological reason for this, but I doubt it.

  31. JohnJ says:

    IIRC Poindexter was in the basement of the Pentagon setting up the TIA before Chimpies congress actually balked and refused to fund it (that was weird). Is it surprising that another Iran/Contra operative’s name pops up?

  32. BillE says:

    Isn’t there a difference at the switch level for QOS vs. Routed Packets for things like VOIP?

  33. JohnJ says:

    OT but I love it! From TPMM (quoting USA today):

    The towns of Brattleboro and Marlboro, Vermont have passed articles of indictment against President Bush and Vice President Cheney for their violations of the U.S. Constitution.

    It also mentions that Vermont is the only state that Chimpy hasn’t visited!

    And here we thought their only jeopardy was traveling in Europe! If we can get more of this, we can force these creeps to run directly to Texas and stay there! Direct flights to Dubai only.

  34. JimWhite says:

    Question for EW and bmaz:

    I’ve been thinking further on the indemnification issue. Wouldn’t standard indemnification language only apply to “good faith” on the part of the telecoms? That is, wouldn’t they still be liable for prosecution if they knowingly broke the law?

    Now look at how the situation is playing out. We have Kitty Bond and M&M McConnell’s repeating “good faith” until they are blue in the face, while the telecoms sit quietly on the sidelines while the rest of us fight it out. We also have the judge in the EFF case stating that no lawyer could believe that the actions taken by AT&T were legal.

    That leads to this idea: Is it possible that the government wrote a “super-duper” indemnification agreement that purports to protect the telecoms even when they knowingly break the law? I think that would explain everyone’s actions here pretty well.

    I apologize if someone has floated this idea before and I missed it.

    • bmaz says:

      Is it possible that the government wrote a “super-duper” indemnification agreement that purports to protect the telecoms even when they knowingly break the law?

      I think that under the statutes (see 50 USC 1341 et seq.) it may be possible. But my guess is that that was not necessary. What I think occurred is that the telcos were given signed certifications, maybe by the AG, maybe by Bush himself, but it would have to be somebody of that level of authority, avowing to the fact that the government considered the activity requested to be both legal and necessary to defend the national security. Thing is that none of that is being shown to Judge Walker because it is being hidden by the states secrets assertion. If what I think is really there is shown to the court, I think that inclination you describe falls away; at least as to whether an indemnification provision would be enforceable against the government. There was no “perfect” protection for the telcos, I think they got the best they could, which is what I have suggested as to indemnification, and rolled with it. Keep in mind that the pressure from the Administration would have been immense; saying that it was mandatory to “prevent another 9/11″ and all their other fear cards, not to mention that the telcos all surely wanted to make the money off the work. But they would not play ball if they thought it might tank the whole company, that is why they would have demanded the indemnification.

      • JohnJ says:

        Keep in mind that the pressure from the Administration would have been immense; saying that it was mandatory to “prevent another 9/11″ and all their other fear cards,

        Add to that that the Telecos are still (laughably) a public utility subject to rules by made by the Bu$hco owned FCC.

        • bmaz says:

          I’ll toss another piece of incendiary kindling on this fire. If I were a telco lawyer arguing the reasonableness, I would trot in some testimony about how the United States Senate, the world’s foremost respected deliberative body, by almost a 2 to 1 vote (66 I think) determined it to have been reasonable and necessary. It is all enough to make one sick eh?

  35. JohnLopresti says:

    MD, The best newspaper to follow the Google portion of that story throughout was the metro’s closest to the ‘old’ part of silicon valley, the merc, a McClatchy outfit that has gone thru a lot of industry standard belt-tightening in the past two years; try this January 2006 link; Ballmer’s outfit is named in the 6th paragraph with AOL; but this is all copa stuff, not explicitly the other area which probably has to do more with nsl’s, and the like, some of which are more pedestrian sorts of mandates burdening internet providers longterm outside the venn for copa.

  36. maryo2 says:

    Cheney interview with Lehrer February 7, 2006 –
    CHENEY:That clearly is not in the national interest, and the concern in the past when we had had discussions with those members of Congress that had been briefed into the program about the possible amendment, if you will, or additional legislation on this issue, there was a consensus that, in fact, proceeding to do that would disclose the program in ways that would potentially be damaging to it.

    If indemnity of more than $25 million must be reported to Congress and if the needed “amendment” is to allow data mining of all domestic emails (just in case the recipient is a foreign terrorist).

    Then is Cheney saying that some members of Congress were briefed and agreed to not pursue FISA changes (ask for permission to data mine all domestic email) on the grounds methodology would be revealed (fear-mongering)?

    • bmaz says:

      The statute (50 USC 1431) requires notification of the House and Senate Armed Services Committees only; not even the “Gang of Eight”. But it gets better than that (not really, that is a term of speech meant as a joke). As I pondered in the indemnity post, the Administration may well have circumvented that apparent need to disclose to the Armed Services Committees by taking the stance that, since there was no way to know what the value of an indemnification agreement was, that it had no value and was thus not required to be disclosed. That is a very possible way around the requirement to report if in excess of 25 million dollars; it is theoretically possible they used such an interpretation to avoid any disclosure at all.

      • earlofhuntingdon says:

        That line, “Unable to predict the cost or consequences of …” is pretty well known in the private sector. Its variants often come up in determining what to disclose to auditors, in preparing board summaries, and in contemplating SEC “disclosures”.

        As aggressive as Addington is in corkscrewing interpretations of laws Cheney doesn’t want to comply with, it wouldn’t surprise me if it was used to avoid Congressional disclosures.

        • bmaz says:

          Right. And this is exactly why I (and Mary too) have been saying that there must be some type of certification or testimony, from someone high enough up for it to be valid, that full and complete disclosure of all the things behind the TSP etc. have, in fact, been disclosed. Anything less than that and you can bet the farm that Congress is being hoodwinked again.

  37. maryo2 says:

    Cheney goes on to list those who were briefed and assuming “top elected leadership of the Congress of both parties” = Majority and Minority Leaders, and not Armed Services Committees chairman and ranking minority member, then indeed the House and Senate Armed Services Committees are not on the list.

    Based on your saying “it is theoretically possible they used such an interpretation to avoid any disclosure at all” then what is interesting is that Cheney implies that the people on the list decided as a group that the value was less than $25 million and thus did not have to disclose to the Armed Services Committee. I wish we could see documents showing their calculations. Surely the ASCs want to see them now (hint hint Rep. Skelton and Sen. Levin)

    Cheney: “inspector general of the National Security Agency … top elected leadership of the Congress of both parties, the chairman and ranking member of the Intelligence Committees of both Houses briefed into this program since the very beginning; when you’ve got the attorney general of the United States and the Office of Legal Counsel, there’s a lot of work that’s gone into this.”

    Assuming “top elected leadership of the Congress of both parties” = Majority and Monority Leaders of House and Senate, and not Armed Services Committees

  38. maryo2 says:

    Sen. Pat Roberts = Chairman Senate Intelligence Committee (2003-2007)
    Rep. Pete Hoekstra = Chairman of House Intelligence Committee (2004-2007)

    Sen. John Rockefeller = ranking minority member
    Rep. Jane Harman = ranking minority member

  39. maryo2 says:

    I can’t find a position called “inspector general of the National Security Agency.” There is a Lt General of the NSA. There is an Inspector General of the DOJ. But there is no IG of the NSA – is there??

    more VICE PRESIDENT DICK CHENEY: None of them [Senator DeWine, Senator Graham, Senator Specter and Senator Brownback] have been briefed into the program.

    But Senator Graham was Chairman of Senate Intelligence Committee 2001–2003. When did the illegal wiretapping start? I thought February 2001. So who was briefed from 2001 through 2003?

  40. oldtree says:

    I have a new prediction; Shooter will abdicate to a middle eastern country upon indictment. McStrayCoque will be anointed vice president. King George will tell everyone that there is a new “terra organization with ties to saddam”, name of Al Queso that is ready to attack with great terror at our border with Mexico. There will be a further action at Canadian borders declaring that Al Berta is a known terrorist group with leanings to both Pakistan and Iran, and clearly harboring designs on our northern borders. Hawaii will be given to the Chinese as repayment for the loan.
    Martial Law is declared and John McStray becomes president because that is how it is done in the new amerika.

  41. maryo2 says:

    I have not seen speculation on why Cheney did this leak.

    What was Cheney doing in November 2007? He was spiking the NIE.

    Why did he leak the video to 60 Minutes? He was playing the fear card to blunt the impact of the NIE. Any other ideas as to why?

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