Some Clues to What “Inaccurate” Information Bush Provided in al-Haramain
As I reported earlier, Obama’s DOJ just confessed that the information Judge Vaughn Walker has received in the al-Haramain suit was "inaccurate."
The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.
This post will make some wildarsed guesses about what "inaccurate" information DOJ provided to Vaughn Walker. As I explain below, I think the new declarations admit to new aspects of the warrantless wiretap program in general (most likely the way the government used datamining to select surveillance targets) and/or they admit that warrantless wiretapping was used to get warrants otherwise presented as legal.
How al-Haramain Got Declared a Terrorist Organization
Before I explain why I believe that to be the case (and it is speculation, mind you), let me go back and explain two chronologies: how al-Haramain got designated a terrorist organization, and where the evolving description of the warrantless wiretapping program used in this suit came from.
The Office of Foreign Asset Control declaration included in this brief and this related al-Haramain complaint describes a little bit about how al-Haramain was declared a terrorist organization. (OFAC is the entity that manages financial sanctions, including freezing the assets of terrorist groups. It is a named defendant on this suit.)
On February 18, 2004, citing an evidentiary brief included in the declaration (but never shown to al-Haramain), OFAC preliminarily froze al-Haramain’s assets. That same day, federal agents searched al-Haramain’s Oregon office.
From March through September, an Oregon law firm representing al-Haramain worked with OFAC to respond to the initial freezing of assets. OFAC provided these attorneys with unclassified materials purporting to explain the designation on April 23, 2004, July 23, 2004 and August 20, 2004. The two main pieces of evidence–culled from news articles and internet commentary often not even directly relating to the Oregon al-Haramin–pertained to allegedly inflammatory language included in Korans distributed by al-Haramain and charitable donations al-Haramain had made to Chechnya.
In addition to the unclassified information turned over, OFAC referenced–but never turned over–"classified documents that are not authorized for public disclosure."
The surveillance log at issue in this case was included (accidentally, the government says) in the batch of information handed over on August 20, 2004. In their original complaint, al-Haramain described the document as the "Control logs" from warrantless electronic surveillance of March and April 2004 conversations between directors of al-Haramain and al-Haramain’s lawyers, Wendell Belew and Asim Ghafoor. NSA turned the log over to OFAC in May 2004 and (as stated) OFAC turned it over to al-Haramain in August 2004.
On September 8, 2004, based on the evidentiary brief included with the declaration (but never shown to al-Haramain), OFAC designated al-Haramain a Specially Designated Global Terrorist (basically a super duper terrorist group with ties to al Qaeda).
All of this raises the question of what was in those two evidentiary briefs and the other classified materials not turned over to al-Haramain.
In al-Haramain’s arguments that they are an aggrieved party under FISA, they have focused on information gathered after the raid on February 18, 2004. They argued that the only thing thing that differentiates OFAC’s knowledge in February 2004, when they raided the Oregon office, and September 2004, when they designated al-Haramain a SDGT, was information collected in those illegal wiretaps. So they’re saying that the key evidence came from wiretaps collected after February 18, 2004. (They may be saying this for a very good tactical reason, which is that the wiretap log they received started in March 2004, which means they want to tailor their description to the information they know exists.)
As far as I know, they’ve never seen any of the classified information OFAC referred to in summer 2004, nor the basis for the search in February 2004. So while they’ve got a description for why they were designated as a terrorist in September 2004, they haven’t offered one for why they were raided in February 2004.
FBI Deputy Director John Pistole offered this explanation to the American Bankers Association (al-Haramain used this speech as part of its proof that it is an aggrieved person).
Some of you may have heard of the Al Haramain Islamic Foundation. It was a charity based in Saudi Arabia, with branches all over the world. Its U.S. branch was established in Oregon in 1997 and in 1999, it registered as a 501(c)(3) charity.
In 2000, the FBI discovered possible connections between Al Haramain and al Qaeda and began an investigation. We started where we often start—by following the money. And we uncovered criminal tax and money laundering violations.
Al Haramain claimed that money was intended to purchase a house of prayer in Missouri—but in reality, the money was sent to Chechnya to support al Qaeda fighters.
In 2004, the Treasury Department announced the designation of the U.S. branch of Al Haramain, as well as two of its leaders, and several other branch offices. In 2005, a federal grand jury indicted Al Haramain and two of its officers on charges of conspiring to defraud the U.S. government.
We relied on BSA information and cooperation with financial institutions for both the predication and fulfillment of the investigation. Because of reporting requirements carried out by banks, we were able to pursue leads and find rock-solid evidence.
Yes, we used other investigative tools—like records checks, surveillance, and interviews of various subjects. But it was the financial evidence that provided justification for the initial designation and then the criminal charges.
So as Pistole explains it, the FBI moved from a money laundering investigated based in Saudi Arabia and eventually used surveillance to develop the evidence to declare al-Haramain in Oregon a terrorist group (and, incidentally, indict them–note Pistole says nothing about convictions or dismissed indictments).
The Descriptions of the Warrantless Wiretap Program Provided to Judges
Now, couple open questions about how al-Haramain was declared a terrorist group with the time and manner in which the government has explained to judges what the wiretap program is.
On December 16, 2005, the NYT broke the story of the warrantless wiretap program. In response, various Administration figures admitted to limited aspects of the program, describing the program as targeted at people with ties to Al Qaeda overseas with strong minimization of any material collected from Americans. In response to those disclosures, on February 28 2006, al-Haramain sued Bush and others for illegal warrantless wiretapping.
The first description of the illegal surveillance in this suit came from a copy of the log al-Haramain retained. They mentioned it in their February 28, 2006 complaint. And then, after getting approval from the Court, they submitted it under seal. DOJ submitted some kind of statement as well. On April 10, 2004, this material was moved to an SCI Facility in Seattle.
On May 12, 2006, in response to the judge’s skepticism that the document and a subsequent government filing needed to be handled ex parte, DOJ submitted superseding ex parte in camera material, and filed a motion opposing efforts to unseal these documents.
Significantly (and I’ll return to this), three of the four people who submitted new declarations on Friday night contributed to the May 12, 2006 filing: Anthony Coppolino (who was and still is the lead defense attorney in this case), Andrea Gacki (then working as a DOJ trial attorney focused on security issues and now serves as some sort of counsel for the OFAC), and John Hackett (who was and still is DNI’s Director of Information Management Office, meaning he’s in charge of keeping ODNI’s secrets). Given that these three people have submitted new declarations (along with a new declaration from NSA), it suggests something about either the superseding materials or the unclassified declaration was inaccurate.
The unclassified material in the May 12, 2006 filing did several things. First, using an FBI declaration, it rebutted the impression that the FBI had not started investigating how al-Haramain got the wiretap log for several months after it had received it; it did this to undermine the plaintiff’s assertion that–since it took FBI two months to contact them to get their purportedly classified document back, it couldn’t be all that classified.
Next, this filing attempted to provide a more detailed description of the document and underlying program in terms that will not compromise security. To do so, John Hackett reviewed both the wiretap log submitted by al-Haramain and the new classified superseding declaration (which is how we know the superseding declaration describes the program). He explains:
I have reviewed both the document that was filed with the Court under seal by Plaintiffs in this case as well as a second classified declaration regarding this document, which I understand will be contemporaneously lodged ex parte and in camera with the Court and which I understand will supersede the previous classified declaration lodged ex parte and in camera, which I have not read. I further understand that the Court has instructed Defendants to make a public declaration with respect to the document at issue, if possible. Based upon my review of the document filed under seal with the Court, it is not possible to describe the document in a meaningful manner without revealing classified information, including classified sources and methods of intelligence. Therefore, in addition to this public declaration and the public declaration of the FBI and the Department of Treasury, a second declaration has been submitted for an in camera ex parte review that sets forth the nature of the document in a classified format.
In other words, Hackett is certifying that the document can’t be described in unclassified form, and that the declaration submitted on May 12, 2006, with his declaration describes what the document is and how it fits in the larger program.
Using the FBI declaration and Hackett’s, Gacki argued that the documents in question could not be released publicly.
On June 21, 2006, the Administration invoked state secrets, supported by classified and unclassified declarations from John Negroponte and Keith Alexander. In his declaration, Negroponte basically endorsed what Hackett had said in his May 12 declaration. At the same time as the government invoked state secrets, they fought discovery (including a bunch of questions targeted to finding out whether Bush had classified information to prevent discovery of a crime and a deposition of Barbara Hammerle, who had submitted OFAC’s first description of the process by which al-Haramain was designated a terrorist group). The following day, everything got put on hold, pretty much for three years (until the case got moved to Vaughn Walker’s court and the Appeals Court weighed in on state secrets).
On June 27, 2006, the government tried to get the suit consolidated with other state secrets cases in DC–and as part of that, they tried to have the original wiretap log transferred to DC.
Plaintiffs have advised the court that they intend to rely on the sealed document and the sealed Declaration of Thomas Nelson filed in this case in their responses to defendants’ Motion to Transfer to the Joint Panel on Multidistrict Litigation ("JPML"). In the Motion to Transfer, defendants seek to have this case transferred to the U.S. District Court for the District of Columbia for consolidation with other cases in which defendants are asserting the state secrets privilege. Plaintiffs have requested that the sealed document and sealed Declaration be made available to the JPML. Defendants are hereby ordered to make copies, using secure means, of both the sealed document and sealed Declaration which are currently held in the SCIF in Portland, to retain the originals in the Portland SCIF, and to transfer the copies by secure means to the appropriate security officer in the U.S. District Court for the District of Columbia for placement in a SCIF to which that court has access. Defendants have represented that the copies can thereafter be transferred securely to a SCIF accessible by the JPML within 24 hours of the JPML’s request for the documents in advance of the scheduled argument in Chicago.
Instead, Judge ordered them to make copies.
On August 3, 2006, in preparation for finally deciding what to do with the wiretap log, Judge King ordered it to be delivered to Portland. On August 14, Gacki announced that the case had been moved to Vaughn Walker’s court on August 9. (In other words, in August 2006, Judge King got very close to reviewing the document, but then technical and tactical issues put off that review for another two and a half years.) The parties spent the next several months squabbling, but finally, in December 2006, the case was moved to Vaughn Walker’s Court and at the same time appealed. That all landed in Vaughn Walker’s Court on January 9, 2007.
On March 18, 2008 Bush’s DOJ entered additional classified filings. But aside from those filings, there is no record (that I see) of any additional classified submissions in the case.
As laid out yesterday, on January 5, 2009, Judge Walker ruled that he will (finally) review the classified documents to see whether al-Haramain was illegally wiretapped. He ordered the government to get him the documents by January 19, 2009 (that is, before Bush left office). And on January 19, Bush’s Dead-Enders confirmed that "the Sealed Document at issue in this case has been lodged previously in this action with the appropriate court security officers."
All of this is a really elaborate way of saying that on May 12, 2006, the government made a representation to Judge Garr King about the nature of the surveillance of al-Haramain. On January 19, 2009, Bush’s Dead-Enders made a representation to Vaughn Walker that that same representation was basically the classified information in question.
And then, on Friday night, after it became clear that a Judge would finally look at the documents and assess whether the wiretap log (and the classified declarations describing it) constitute illegal wiretapping, the government admitted that that (presumably) May 12, 2006 set of declarations is inaccurate.
The New Declarations
Now, to review, the government submitted four declarations on Friday (after submitting a filing saying, "we really really really really don’t want you to share this with plaintiffs"). They came from:
- Anthony J. Coppolino of the Department of Justice
- Joseph J. Brand of the National Security Agency
- John F. Hackett of the Office of the Director of National Intelligence
- Andrea M. Gacki of the Department of the Treasury, Office of Foreign Assets Control (note, Gacki had previously served as a DOJ defense attorney on this case, representing FBI)
Anthony Coppolino is the lead defense attorney on this suit. He’s obviously got to submit a declaration, since any "inaccurate" information is ultimately his responsibility.
Joseph Brand at least was (and I assume still is) Associate Director of NSA. It makes sense to have a declaration from him, since we’ve always been led to believe that this program was primarily an NSA program. Though note: the Director of National Intelligence is not a defendant in this suit.
John Hackett is DNI’s Director of Information Management Office–the guy tasked with keep ODNI’s information and programs secret. As described above, he submitted a declaration on May 12, 2006 regarding the classified status of the wiretap log. He also asserted he had not read the first classified filing submitted by the government.
Finally, Andrea Gacki was a DOJ trial attorney who was very active during the first discussions about the classified status of the wiretap document and appears to have been the author of the May 12, 2006 filing. Just as significantly, though, she has since moved (presumably in a counsel role) to the Office of Foreign Asset Control at Treasury. At one level, it is unsurprising that she–now apparently a OFAC employee and no longer a defense attorney in this case–is submitting a declaration, as OFAC is one the agencies named as defendants in this suit. But (particularly given the absence of a declaration specifically from FBI), it does suggest this new information pertains either especially to OFAC or to the things Gacki did while more actively involved in the case in 2006.
One very important note about these new declarations. As bmaz pointed out via email, the declarations were submitted not just in the al-Haramain suit, but also in the consolidated case (in which Judge Walker is deciding whether retroactive immunity is constitutional). That means these declarations either amend earlier declarations in the consolidated suit or have bearing on it. This probably means that the declarations relate to the program in general, and not to any specific details about the al-Haramain suit (probably ruling out, for example, that the "inaccuracy" pertains to whether or not Hackett read the government’s first brief, or whether the document was really turned over accidentally, which would otherwise be possibilities).
Al-Haramain and Thomas Tamm’s Description of the Warrantless Wiretap Program
As I said above, when al-Haramin filed this suit in early 2006, the revelations about the program (and, importantly, the official statements on it) focused more on the wiretapping of Americans with ties to al Qaeda. There was little talk (none official) of datamining and little talk (none official) of the laundering of information gathered using illegal wiretaps to then get legal warrants and admissible evidence.
And there’s a hint that the government tried–then backed off plans–to use improperly collected evidence with al-Haramain. On February 17, 2005 (just days after Alberto Gonzales was confirmed as Attorney General), it indicted al-Haramain and two of its officers. It then dismissed those charges on August 4, 2005 (just days before Jim Comey’s last day). In fact, this seems to be precisely the "criminal tax and money laundering violations" Pistole pointed to as their "success" with al-Haramain.
Given that fact, and given the questions about why al-Haramain was declared a terrorist organization, consider one of the most detailed recent descriptions of the warrantless wiretap program, from Thomas Tamm.
In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that "the program" (as it was commonly called within the office) was "probably illegal."
[snip]
But after arriving at OIPR, Tamm learned about an unusual arrangement by which some wiretap requests were handled under special procedures. These requests, which could be signed only by the attorney general, went directly to the chief judge and none other. It was unclear to Tamm what was being hidden from the other 10 judges on the court (as well as the deputy attorney general, who could sign all other FISA warrants). All that Tamm knew was that the "A.G.-only" wiretap requests involved intelligence gleaned from something that was obliquely referred to within OIPR as "the program."
[snip]
The NSA identified domestic targets based on leads that were often derived from the seizure of Qaeda computers and cell phones overseas. If, for example, a Qaeda cell phone seized in Pakistan had dialed a phone number in the United States, the NSA would target the U.S. phone number—which would then lead agents to look at other numbers in the United States and abroad called by the targeted phone. Other parts of the program were far more sweeping. The NSA, with the secret cooperation of U.S. telecommunications companies, had begun collecting vast amounts of information about the phone and e-mail records of American citizens. Separately, the NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of "suspicious-activity reports," or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer’s use of prostitutes.) These records were fed into NSA supercomputers for the purpose of "data mining"—looking for links or patterns that might (or might not) suggest terrorist activity.
Tamm–and others–have revealed that the NSA was mining financial data to identify potential terrorist targets. And then using such targets to get special wiretap requests that bypassed normal approval methods.
And then, Tamm describes, the government would disguise that information and use it–as if it were legally gathered information–to conduct further investigation.
But all this created a huge legal quandary. Intelligence gathered by the extralegal phone eavesdropping could never be used in a criminal court. So after the NSA would identify potential targets inside the United States, counterterrorism officials would in some instances try to figure out ways to use that information to get legitimate FISA warrants—giving the cases a judicial stamp of approval.
It’s unclear to what extent Tamm’s office was aware of the origins of some of the information it was getting. But Tamm was puzzled by the unusual procedures—which sidestepped the normal FISA process—for requesting wiretaps on cases that involved program intelligence. He began pushing his supervisors to explain what was going on. Tamm says he found the whole thing especially curious since there was nothing in the special "program" wiretap requests that seemed any different from all the others. They looked and read the same. It seemed to Tamm there was a reason for this: the intelligence that came from the program was being disguised. He didn’t understand why. But whenever Tamm would ask questions about this within OIPR, "nobody wanted to talk about it."
We know they were using financial data in their warrantless wiretap program. And we know they were trying to launder information they had collected illegally so they could use it in prosecutions.
What we don’t know–aside from John Pistole’s statement that they used financial data–is what drew the government to freeze al-Haramain’s assets on February 18, 2004. Al-Haramain has good reason to believe they were illegally wiretapped in March and April, 2004. But that doesn’t mean they weren’t illegally wiretapped before then. And that doesn’t mean the government didn’t use the fruits of those wiretaps as the basis for their raid of al-Haramain’s office on February 18, 2004.
Which is what I suspect (wildarsed guess, of course) was the nature of the "inaccurate" information provided back in May 2006. I’m guessing that Obama’s DOJ has finally admitted that the warrantless wiretapping was not just wiretapping Osama bin Laden’s friends in the US, that they were datamining financial data to identify targets, and then laundering the information gotten out of such eavesdropping to try to get legally admissible evidence.
thanks EW … reading and parsing … scrutinizin’ ….
Whew. What a maze! Thanks, EW, for this detailed analysis!
Was it Gonzales who first made public reference to “the program”? And even in doing so, was he spilling State Secrets?
Bob in HI
No. Bush first–teh day after the NYT story. Then AGAG, then Hayden in teh speech I linked somewhere in that maze.
Sorry to go OT, but this is very important.
The chairman of the JC’s, Admiral Mike Mullen, being a good GOP warbot, is dissing Obama for his numbers about how much we will save by getting out of Iraq.
http://www.huffingtonpost.com/…..70848.html
Not content with toting that piece of warpimp hod, he’s now cranking up the same old fear machine about Iran’s nuclear program:
http://apnews.myway.com//artic…..G4AG0.html
Mullen has no business propagandizing like this. He’s not a Senator, and he’s not in the State Department. He’s in the military. And the recip of this is that the Chairman of the JC’s would say that Iraq was a clusterfuck and we needed to get the hell out. Which would have gotten him canned by Bush in a tolerably short time period.
As they say in some parts of East L.A.: “It is ON mo-fo!”
I had thought they would wait a bit before beginning the monkey-wrenching, but with Obama making headway via the bully pulpit, and taking his case to the people, with some success, I guess they figure they can’t let him open up a lead.
Worth noting is Hillary Clinton’s silence on this. She’s left it to Richard Woods, a State Department “spokesman” to point out that Mullen has no solid evidence for his agitprop about Iran. Needless to say, Hillary has, as SecDef, a bit more throw-weight that Richard Woods. She would be the right choice to rebut Mullens’ recycling of this stale GOP crap.
I aint holding my breath.
When she left on her maiden junket, I was glad to see that Iraq was not on her agenda, figuring that that meant that Obama had her on a short leash, and that he knew that the last thing he needed was Hillary swapping media spit with Petraeus and Odierno. but she keeps getting closer to Iraq, with now, an unscheduled side-trip to Egypt. I hope that’s it, but at this point, with Obama’s economic program gaining some steam, the asshats are sure to be looking at the twin shitmires as potential weak points for him.
Let’s see if Clinton is going to lend them some quality cred, by schmoozing with Petraeus and Odierno.
hillary is now sec-def ?? what happened to gates ??? ..
Thanks, as always, for the lucid analysis!
And now for a somewhat naive, or perhaps underinformed, question: when Comey, Mueller et al threatened their resignation, were they trying to forestall the general expansion of a program that had been tested (and found useful) in the Al-Haramain case? And has that expansion gone forward after all? Are my bank statements being read by the NSA? Should I go through the motions of creating two or three other (and absolutely separate) identities to keep them happily occupied?
Oh, one more REALLY basic point that I forgot to mention in the thousands of words above.
If they had a real case for raiding the charity on 2/18/04, then why would tehy have wiretapped illegally afterwards? If they had a real case, they clearly have enough to meet the terms of probable cause for FISA. But for some reason, they didn’t got FISA.
My “totally bogus-probably suspicion” (before you wrote this piece) was something like the government defendants had slipped a little lie into their original declarations.
Something on the order of “Yeppers, we sure did get approval from the FISA Court”.
Then when Judge Vaugn Walker asked to see that original FISA Court warrant, the government defendants were in a quandary:
“Do we continue to lie to the Judge, but tell him it’s classified and he can’t see it or do we admit the truth that we’ve got no FISA Court warrant, but instead this little
hall passWhite House Counsel Fredo-signed “permission” slip with an attached John Yoo-Hoo OLC “opinion” about the CinC Preznitwitnot needing to obey the 4th Amendment here in the US because “He da Man!”"Of course, now having read your post, my totally bogus-probably suspicion is probably a bogus suspicion. Totally! *g*
“If they had a real case for raiding the charity on 2/18/04, then why would tehy have wiretapped illegally afterwards? If they had a real case, they clearly have enough to meet the terms of probable cause for FISA. But for some reason, they didn’t got FISA.”
Is it possible that they were using warrantless surveillance to get FISA Chief judge approval for Warrantless Surveillance? Maybe Tamm’s Ultra-secret AG only-Chief FISA judge-only “program” is a precursor to full court FISA warrants.
What if they did go to FISA long before Feb 2004 and got approval as part of Tamm’s Ultra-secret AG only-Chief FISA judge-only “program” and they just don’t want to acknowledge it; After Feb 2004 they got a full court FISA warrant for wiretapping that was based on the raid and other illegally obtained data.
Thus it is possible that the control log was purposefully sent for discovery, knowingly backed by a legitimate FISA warrant. But because of the history of unwarranted taps pre February, 2004, the Government decided to pull back data that might lead to opportunities for questioning.
If so, then I wonder whether the erroneous declaration was aimed at covering up the secret system for wiretapping later exposed by Tamm. The court filing might have said that the log represented all wiretapping of plaintiffs or that all wiretapping was approved by the full FISA court.
I’m not sure I understand your comment, but I thikn you’re asking, what if there’s pre-2/18 wiretapping that was illegal, and post-2/18 wiretapping that was not?
Sure. That’s not much different from my insinuation that there was pre-2/18 and post-2/18 illegal wiretapping.
I don’t think the phone log can be considered “discovery” in any sense though. It was slipped into a bunch of internet excerpts. If it were provided along with any real discovery (such as evidence of the alleged money laundering to the Chechnyan rebels) then I might buy that.
I was thinking about the question of how might the log not have been sent accidentally (@85 et al), as well as trying to figure out what they might have said in court statements in light of a probable separate set of wiretaps not disclosed on the sent log.
I suppose we will have a lot more information tomorrow. But I was (not so coherently) also wondering whether Tamm’s “program” of AG to chief FISA justice requests resulted in real warrants or some sort of para-legal approval. Possibly as some sort of “oversight” algorhythm engineered by Addington to give cover to executive illegality without involving the full FISA court. You noted in 6 that they did not go to FISA, and I am speculating that maybe they did… and maybe the way(s) they did is what they are trying hard to cover up.
Right. I’m saying the “ways they got to FISA” is what this is all about. Like I said I still doubt the log was turned over as discovery for a ton of reasons, and that the wireptapping was not under FISA. But the whole point is that non-FISA wiretapping somehow resulted in a search on 2/18 that no one seems to contend was illegal. So this almost certianly went from non-FISA to “legal” warrant.
As to my comment about the log being claimed to have been turned over accidentally, I can’t help but notice that Judy Miller’s source, who tipped her off to the impending raids of two Islamic charities, was in Treasury. IIRC, there was information “accidentally” turned over in the later Holy Land case too.
All I’m saying is that the govt has an incentive–in a case where they’re trying to claim this is top secret–to disavow any moles or whatnot in Treasury.
OK I am on board now.
No one gets so upset about monitoring banking transactions. I wonder if the banking stories were used as cover to apply for FISA warrants even when there was an ongoing secret wiretapping going on which actually collected the most damning evidence.
And maybe the banking based stories were what was fed to justice to get the FISA warrants- holding out the NSA wiretap info that might be later used-
The March 10, 2004 heroes were afraid of perjury charges when they certified NSA had not already been wiretapping everyone and his sister.
Yeah, that may be the case. The whole speech from Pistole (who was also among the rebels on Hospital scene day) is weird.
He’s basically describing activities that are undoubtedly connected to a previously illegal part of FISA (they were operating under PAA when he made the speech, so presumably by this point it was “legal”). and it’s as if he’s using barely disguised code saying, “thanks for breaking the law, we’ll get you your immunity.” And, even in the midst of a huge legal case challenging the content of the al-Haramain case, he’s pointing to it as a success.
And, as you suggest, he’s probably also using it as an attempt to claim that they got the wiretaps legally, using other wise legal money laundering techniques, as a way to establish a public disavowal that the surveillance came first.
“using other wise legal money laundering techniques”
You’re referring to this as among Pistole’s CLAIMS, right?
Because otherwise it conflicts with [what I think is your correct read in] your immediately subsequent post on the Bush Cheney admin’s promise to the banks [& wire transfer services as well, I would think] to ensure they were immunized from legal consequences.
That is: as mentioned in a post up a few inches from this, what the BC admin appears to have done very shortly after 9/11, was enlist US & foreign banks & wire transfer companies active in the US in a PROFILING campaign, under which the funds & means by which further funds might be transferred were confiscated & co-opted, on the basis of either the barest possible suspicion of money-laundering, or the expectation that it would not be difficult to build a case of at least suspicion of such, or both.
I don’t mean to appear picky, because you [you & bmaz] have made one mighty post here. But the impression I’ve had, as I’ve stated before: since no later than reading Suskind’s 1% Solution & Wright’s Looming Tower, is that the earliest actions were purely based on PROFILING, with an expectation [more an ignorant hope, really] that over time & in time, the dots to connect would emerge with more digging. But that, as with the invasion of Iraq to quell WMDs, for the most part, they didn’t emerge, because they were’nt available in the first place.
So then what do you do? Well, what do Republicans always do when the facts don’t fit the assumptions — when reality doesn’t fit mythology?
They make shit up.
Sorry–see my comments elsewhere about the crappy coffee I had this morning.
I think Pistole is speaking in coded language to bankers saying, “we’ll get you your immunity, now please keep helping us out.”
And, at the same time, was speaking in language designed to appear to say, “we first got to al-Haramain through legal investigation techniques”–at a time when the 9th Circuit was deliberating on the al-Haramain state secrets appeal.
Given my suspicions as voiced in this post, I think Pistole may have been trying to pre-empt any questions which are very obviously raised when you start asking about what the underlying evidence for the Feburary 18 raid was.
[1] Pistole’s message — I think I get this: you’re agreeing you were characterizing Pistole’s message, not yourself suggesting the original invasions of privacy were themselves legal or performed through legal means.
[2] Crappy coffee — I certainly get this. Might I suggest a brief review of the wonders at coffeegeek.com?
I’ve gotten pretty stuck on this local roaster. And I fully intended to go out yesterday and replenish the supply.
Problem is that I was buried in this post all day and forgot to shop. So you’re all paying today in my crappy coffee brain for this post you got yesterday.
Luckily, I still have time to go out and fix the problem before tomorrow.
I’m all for local roasterism; I meant to refer to the grinder.
There’s another date that may – or may not – be relevant. On Feb. 6, 2004 my colleagues and I met with Treasury officials (Juan Zarate, Daniel Glazer) and others. I think Pistole was at the meeting but am not certain. I was representing an association of Islamic charities of which Al Haramain was then a member. Our purpose was to engage with USG officials to clear up issues that had been raised about our members. We offered to provide them with access to records and charity employees and to waive certain legal rights in order to expedite a joint investigation of the issues.
Zarate and the others were incredulous but receptive. A few days after the meeting we went to Saudi Arabia, conducted days of due diligence and came back with hundreds of pages of financial and other records. On the ride back from the airport I got a call from Glenn Simpson of the WSJ asking for comments on the Feb 18 raid.
A colleague called Danny Glazer to follow up on our offer of cooperation and information sharing. We were told that the USG was no longer interested. The 911 Commission reported that later in 2004 a “non-paper” on Al Haramain was presented by the US to the Saudis in support of designation of AHLF.
Not sure what all this means, but it may be relevant.
Wendell
Firstly, thank you so much for being here and answering questions. What a privilege.
Secondly, @179.
Thanks. So either there is no warrant or no warrant they want to rely upon publicly.
@182:
it means they have impeccable timing.
either that or you were being surveilled before 2/18/04, as is the contention of the post.
I am sorry this discussion is toward the end of the life of this thread. I wonder if EW would host you and your colleagues for a Q&A here or at FDL, or otherwise provide a forum for expressing public info you have that may be dispersed elsewhere.
Goodness knows there are a lot of people interested who would be around….
That is interesting–I remember that reference from the 9/11 Commission.
One more question. What was the warrant they used for the 2/18/04 search? Was that just a regular old search warrant? Or did they need only the Treasury designation for a warrant? And would a judge have read the evidentiary brief on the freeze order before handing over the warrant?
Plain old search warrant. This article from Salon talks about the raid a bit. I believe that there was an affidavit from an IRS agent in support of the search.
http://www.facebook.com/ext/sh…..38;u=3nJf5
Thanks.
So, emptywheel, one thing does not make sense in your explanation. If I were doing the data mining and filtering the phone calls, I would use the call filtering and link analysis to point to a party I wanted a “clean warrant” on, knowing my data is unclean and if it comes from me (NSA in this example) it is suspicious at the FISC. So why would I data mine the financial data with my data, corrupting a set of already clean probable causes for warrants?
The right data mine to do is for the financial people, or IRS, to data mine the list of SARs against my list of suspects. The DOJ can now use the SAR as probable cause against the person flagged by my illegal taps, and everybody is clean according to the court order. If that isn’t sufficient in and of itself, when a lawyer representing a group of Islamic charities offers financial data to clarify things, now I go tell the judge we know this SAR is worth investigating, the lawyer for this group is in Saudi Arabia this very minute poring over their financial data to get them clear of us.
Just another theory, but why corrupt a list of “millions” of clean warrant applications by looking for suspects in it. Clean room it with illegal data and get your suspects there, then bring the SAR into court clean as a warrant winning lottery ticket.
Sorry for being disconnected. One more point. When I get successful warrants granted (”plain old warrants”), or unsuccessful warrants denied, I put the now used and no longer relevant SAR information, and the success of the warrant application into my filter at the NSA, and train my system to create successful end runs around the courts. And, as in the Abu Zubaydah case, when I get a list of data from a genuine al Qaeda member (even a crazy one like him), I also train on valid al Qaeda suspects. As my success record grows, I train the courts (essentially), that my “hunches” on the SARs are generally accurate and lead to al Qaeda people, to make them less nervous about whether or not my reasoning really represents probable cause.
The one thing that can screw me up is when someone finds out that the search criterion for picking out which SARs to investigate comes from me.
Heh, even calling it profiling may be too generous LD; they just flat out went for suspect classes/groups. Profiling would suggest they were particularly selective; other than not going after their own friends I doubt they exercised any selectivity at all. I guess profiling is a decent word though. Profiling and bootstrapping baby. It ain’t yer J. Edgar Hoover’s FBI anymore. Actually it still is.
You’re accusing me to trying to put the lipstick of “profiling” on the pig of a convenient strawman. Let’s see now: this was the Bush Cheney admin, right? Okay: I plead guilty as charged.
somewhat related, yesterday’s latimes article “L.A. area Muslims say FBI surveillance has a chilling effect”.
(bold mine)
Yup. Beautifully done, EW.
The government’s procedure described herein seems about the way I’d go about doing it, if I’d determined the government was going to spy on people (to try to find terrists or any other designated set of anonymous or as-yet-unidentified targets) and then find a way to go after the targets while concealing the methodology used to discern them. In other words, it’s rational, it’s organized, it’s defined, it’s compartmented (so one lackey cannot know what he’s doing – that might be of dubious but arguable legality in isolation on its own – is part of a bigger crime that is not arguable), and it’s pretty professionalized. This is not some one-off aberration.
That it violates the Constitution and laws is, viewed from the government’s POV, irrelevant.
I suspect they were looking at al-Haramin (and any other organization with a Muslim-sounding name) for quite a while prior to March 2004, and that that looking included warrantless wiretapping. In other words, in “Step One” they started from the prospect of a prosecutor looking at a particular target/prospective defendant and saying “what can I get this guy on?” Then, in “Step Two” they went to a full-court press – they went out to gather information so they could know everything there was to know about the target, regardless of how they got it. Then, to make the case and bring it to the point of indictment, in Step Three they proceeded to launder the information they got in Step Two so as to make it look like they had gotten it through legitimate means.
Step One is, and has been since time immemorial, both unethical conduct for a prosecutor and illegal. Prosecutors do not – are not allowed to – look at a prospective defendant and then try to find a crime to charge him with. But, seeing the Don Seligman precedent, the Rethugs ran through that
barrier a long time ago.
Step Two is likewise patently illegal, as is Step Three. Step Two would encompass violations as varied as this warrantless wiretapping, relying on torture-derived information as evidence to support a criminal charge, as in the Padilla case and the so-called Military Commissions at Gitmo, and on information exchange between intelligence agencies where one would do work the other (for legal reasons) could not and then provide the fruits no questions asked or answered.
I suspect in Step Three, in addition to what we’ve already read about, we would also see backdating, altered records, and reconfigured rules to support laundering information through the system to make it seem clean.
Now, let’s all hope Walker rules – soon – and in plaintiff’s favor.
Wow, what a great comment for THIS post.
—————-
Just looking at the larger economic and financial events within which the events of this post occurred — as a non-lawyer, non-law enforcement person, it’s just hard to buy the argument that this data mining kept the nation safe, particularly if it can’t locate rampant Ponzi schemes, and can’t ferret out a guy moving billions on behalf of drug cartels.
Must go off to polish up my TinFoilHat and re-view “Blade Runner” because it’s sure feeling like Surveillance Culture is being used for purposes OTHER THAN keeping me and mine safe, to say nothing of solvent.
Brilliant.
Question: When does the statute of limitations on this run out again? Isn’t Walker against a target that comes up THIS week…?
—-
I read this with a very skewed lens, and here are some of the sources of my ‘reading astigmatism’, in case anyone reading here has similar experiences or cares to comment:
1. IF this data mining stuff is so wonderful, then why was Madoff never caught by all these damn billions in so-called state-of-the-art data mining…?!
2. ‘Sir’ Stanford, also a scam artist, evidently laundered billions for drug cartels in South America still working on the search queries, and maybe the words ‘Antigua’ and ‘Carribean’ don’t pull up results for ’suspicious financial activity’…
3. I have a recollection of Sen Ron Wyden (Dem – OR) during the Senate hearings for ? Michael Hayden’s nomination prefacing a question to the nominee with a statement along the lines of, “Will you keep Congress informed? Because I have actually read things on the front page of the NYT that I did not know about — and I’m a member of the Sen Intel Committee.” (At which point, I’m pretty certain, Hayden bowed and scraped and did the HubbaHubbaOfCourseWePlayByYourRules mantra.) Pretty interesting that the Senators had already lost sight of the horse that was supposed to be in the barn…
4. Weren’t planeloads of hundred dollar bills flying to Iraq back in 2004, supposedly to pay Iraqi’s because they had no banking system. Accounted for…? Any suspicious ‘financial transactions’ noted by the US government…? Just askin’.
5. From the summer of 2008, when oil prices appear to have been jacked up by the London Spec Market (unregulated), to about Sept 2008 when — according to at least one House member — on a weekday morning something like $500 b-b-b-billion was siphoned out of the US in an ‘electronic run on the markets’, we have zero evidence that the US government is actually able to get a handle on the ’suspicious financial activity’ that led up to THAT heist.
6. The SEC was defanged under Bush and Cheney. How that fits with being super-interested in ’suspicious financial activity’ is a mystery to me.
7. Evidently, all these billions in data mining, and the US government couldn’t figure out that billions of Credit Default Swaps might prove to be a ‘national security threat’? Wow. I’m speechless.
To recap:
The government can’t keep us safe from Identity Theft, nor can it spot Ponzi schemes like Madoff’s, nor cartel money laundering like Stanford’s. The people in the government who are supposed to spot these problems don’t tell other parts of government, nor do they tell the US Senate. (The same US Senate that under GOP rule allowed CDOs and also moved them outside of regulatory supervision.)
Their names were originally thought “Muslimy” but further illegal wiretapping found them to be “Americany” because they talked Englishy with Americany accents.
Oh, gawd.
And I’d thought my sense of humor irretrievably lost.
Thank you.
EW, just a phenomenal post.
Wow.
And bmaz, if Walker is 1/4 as insulted as I am, these people better come into court wearing heavy ponchos for the storm they outta encounter. But I’m sure he’s far too professional to hurl down thunderbolts. Unfortunately…
*g*
It’s more like Bin Laden wasn’t investing with Madoff. He’s a capitalist pig, don’t you know.
You only find what you’re looking for. They weren’t looking for Ponzi schemes among investors.
The problem here is with your verb “can.” Yes, it probably can– if that is what you’re looking for.
But they didn’t need The Program to catch Medoff. All they needed was a willingness to pay attention to the warning signs that they were being fed by outsiders.
Bob in HI
Thank you for that moment of sanity.
So you’re telling me they were using the wrong search criteria, I suppose. (sigh.)
Or that the data mining criteria did not include the attributes ‘ponzi’, nor ‘cartel’.
On a more upbeat note, I did find DNI Blair’s points before the Sen Intel Committee a genuine reason for optimism. He included ‘economic instability’ as a ‘national security threat’.
So maybe there’s hope that ‘cartel’ and ‘ponzi’ and ‘offshore accounts’ will be added to the query criteria soon…?
Wyden is a particularly interesting case.
In addition to being a member of SSCI–one who, in 2003 was leading the effort to defund anything that looked like TIA–he is also from Oregon. Obviously this case started in Oregon, as did the clusterfuck Brandon Mayfield case. In other words, one case that was clearly a clusterfuck and one which MIGHT be based on real reason for suspicion but that was totally fucked up bc of illegal wiretaps. Oregon is ground zero for fuckups on this stuff.
That said, mcjoan got a statement from Wyden after Tice’s appearance on MSNBC. I thought that–sicne Wyden pushed so hard to make TIA illegal, he might care that Tice was saying “the program” really was TIA.
He seemed really nonplussed.
I associate Oregon with beef growers, sugar beet growers, watermelon growers, filbert growers, and sheep ranchers (often descended from tough, rugged Basque Catholics that no sane person outta mess with).
Therefore, when I heard Sen Wyden tell Michael Hayden that he – a member of the SSCI (!) – had to learn about ‘top secret’ programs by reading the NYT, it was really shocking. I figured if Congress didn’t know WTF was going on, the rest of us had no flippin’ prayer against the CheneyBots. And I say that as someone whose family drove out to Oregon and Washington for ‘opportunity’ and ended up logging huge forests, building dams, and building educational institutions. Wyden does not represent weenies, that’s for damn sure. A number of my Oregon cousins are US military vets, and they sure as hell didn’t fight for the right to be spied on.
————————-
Apologies, and not meaning rudeness, but no clue who the estimable Mr. Nelson is… (yeah, lotta gaps in my knowledge base).
You can see my comment at 21 (or lennonist’s comment on two thread ago. Looks like we both rediscovered the Alternet article independently today).
Mr Thomas Nelson is one of al-Haramain’s attorneys.
Check out the list of attorneys on this document.
His name appears on the top of page 3.
Thanks. I needed that.
Welcome, Mr. Nelson. I hope you find your time here well spent.
Bob in HI
And don’t forget the hundreds of thousands of transactions necessary to illegally transfer the billions of dollars to UBS and Credit Suisse in the “off-shore” tax dodges. The Swiss of shore banking system held $2.1 trillion in assets in 2001. That went down slightly in the first half of 2002, but increased steadily to $5.7 trillion held in accounts by foreign nationals by 2007. We know that about 62,000 US residents made the minimal $100K to UBS alone through methods used to violate the reporting methods. That doesn’t include Credit Suisse or the other two major off shore banks. Nor does it deal with accounts in the Caymans, or any of the other 26 offshore “national” or financially designated “states”.
Yet we are to believe these trillions dance around without detection? Or were they “approved”? In fact, in 2002 the Swiss banks asserted that they met with the Bush Administration and got approval to not identify account holders and the size of their accounts and transfers if the account holders signed a document stating they had paid taxes on the amounts.
I never cease to be amazed at the info provided by commenters here — to say nothing of EW and bmaz’s analyses!
I have nothing like your level of detailed knowledge, cinnamonape; however, it’s my blurry, fuzzy sense that magnitudes of transactions could surely be mined for patterns that would expose $50 billion Ponzi schemes and accounts that link to (ahem) ‘Antigua’ and ‘Caymans’. But then, IIRC, those were set up under Bush41, or Reagan, so perhaps certain search terms were regarded as too ‘outre’ to be included in the data mining.
(Not intending to insult any honorable law enforcement people, but your comment well expresses my own sense of derision, and… head-shaking wonder.)
—————————–
pdaly@82, thanks so much for that helpful explanation.
Last night, “60 Minutes” had on Mr. Markopoulous, the analyst-whistleblower who told the SEC Madoff was a fraud.
It came out that he told the SEC something like 7 times over the course of 1999-2007, and that the SEC ignored him.
His analysis of the SEC was about as sharp as his analysis of Madoff’s scheme. To paraphrase:
In so many words, they are like the donut-eating cops everyone makes fun of by noting they do a great job of nailing parking violators because they can’t hit a moving target.
As to another reason – why no one turned Madoff in (paraphrasing):
If ever there was a reason to repeal the limitations on private securities lawsuits (enacted as part of Gingrich’s “tort reform” about 1995), Madoff is Exhibit A. When you have people whose financial incentive is to find fraud because they benefit only when they find it, they’ll find it and kill it for their own table. The end result of that is (a) the frauds never get too big because some plaintiff’s lawyer will find them and sue before they do and (b) fraudsters will refrain from engaging in fraud (usually on the advice of their lawyers) because they know there is someone out there with a financial interest in taking them apart.
But this makes entirely too much sense.
If you all found your eyes a little glazed over by the time you got to the end, reread the last two paragraphs as they contain the the heart of the matter. There is the strong appearance that not only was al-Haramain and their attorneys illegally wiretapped when we thought they were, but that that illegal wiretapping was likely based on, well, illegal wiretapping and datamining. Oh and it is a fair bet that the warrants the government did have for their initial raids on and seizures from al-Haramain were based on affidavits founded upon bootstrapped illegally obtained information. (see EW @6 above)
Oh, and they misrepresented the above to the Federal courts involved in this series of cases, including, notably, Vaughn Walker, have let that stand all this time while they tried to hide the ball, and are just now getting around to fessing up to it. Somehow, I don’t think this is going to move Walker in their direction; in fact, quite the opposite.
At this point, I think that’s the least of their worries.
This strikes me more as a move to keep the lawyers’ law licenses from being yanked and to keep someone (whoever is responsible for the earlier “inaccuracies”) from landing in jail for obstruction of justice.
Don’t I recall from the whole “Rove-testifies-four-times” part of the Libby trial, that a witness may correct their testimony without it being perjury, unless it is imminently to be revealed that their testimony is incorrect?
And if so, in this case isn’t it too late to save anyone’s licenses?
One can certainly hope so. Fervently.
Yep, I started reading, but couldn’t continue after a while. I skipped down to the end.
Sometimes I wish they made Cliff Notes for EW.
Who gets in trouble for “Misrepresenting information to the courts?”, and what kind of trouble do they get into.
Heh, let me tell you, I been plowing thought this with her, and the post could easily have been two or three, maybe more, times longer. There is a lot going on here that interrelates across several cases and spectrums. This was actually marginally bare boned for all the interesting “holy shit” stuff we found.
Gee, when will you & EW spill the beans on all that other stuff? (He said, eagerly) *g*
Bob in HI
The problem with a seemingly sound House of Cards, legal or otherwise, is that if you remove a single card, or the wrong stick in Jenga and other games, the whole edifice tumbles down. It’s like drawing back the curtains and letting the sun shine on that large box and its contents grandfather sent from Transylvania. Thanks for this little ray of sunshine.
If a president launched a surprise “preemptive” biological weapons attack against an alleged enemy community in, say, San Francisco – premised on the accused having foreign ties to Mexico (where drug cartels are known to reside), without any declaration of war* or without any genuine substantive discussion whatsoever with Congress, and was sued by survivors in Sausalito, would the president be able to prevent the suit – and all discovery of what all actually transpired in the attack – due to the “need” to “protect” the “state secrets” which detail the bio weapons particulars?
Is there any fundamental legal difference between that scenario and the Al-Haramain case?
*i.e “war on drugs”
In the abstract, if you follow the reasoning they have put forth, no it is no different.
This is the dying, rotting, smelly carcass of our government. Remember 20-30 years ago when criminal defense lawyers started screaming about the slippery slope on the Fourth Amendment? Remember how people laughed and made fun of us? Well, here you go. I rest my case.
Thanks for the confirmation. Given the staggering implications of the legal principle in the abstract, might there be any useful purpose served by al-Haramain attorneys raising the spectre of such monumentally frightening possibilities? Seems to me – given that legal reasoning in the abstract – the scenario I described, which was purposefully conceived to be extreme in terms of outrageous governmental activity, is in fact the bottom line point to the whole argument against the defendants. If the government were to win this case, it could in future equally get away with mass homicide of American citizens, or any other atrocity, by simply hiding behind a self-serving not-independently verifiable claim of alleged “state secrets.”
I guess I think that a certain “shrillness” may be useful in the circumstance – because it ain’t just hyperbole; it’s the government’s basic legal premise which is so hideously appalling.
I can’t begin to comprehend Obama’s rationale.
Yes. There’s no statute of limitations on murder of U.S. citizens.
Thanks for the note. I am aware that there is no statute of limitations in the case of murder. But if no case can be brought anyway, because a claim of alleged “state secrets” can be used as a shield against prosecution, whether a statute of limitations exists or not would then be totally irrelevant.
Hairball to beat all others. Thanks for putting it in English, EW.
Another amazing tour de force of string-pulling by EW. Thank you!!
Adding my thanks to those above.
While we’re on the topic of illegal searches, what about information obtained by black job physical searches, too?
Here’s an Alternet article that relates to al-Haramain because it deals with break ins and attempted break ins of Attorney Nelson’s office and home. He’s one of the lawyers defending al-Haramain (and helping the case of Mayfield the lawyer mistakenly accused (based on FBI fingerprint mismatch) of being a terrorist.
Sounds like the security people were tongue tied with Patriot Act secrecy orders, or whatever the legal term is for forcing witnesses to government eavesdropping without warrant.
should read:
or whatever the legal term is for forcing silence upon witnesses to government eavesdropping without warrant.
But if this was true, why would Obama sully himself with it? Crimes and corruption all over it! It’s a totally polluted swamp.
Maybe Obama thinks that if they pull this loose thread then the whole thing falls apart and suddenly everyone who was illegally wiretapped sues the government. Then suddenly even Joe the Plummer gets pissed off at Bush, and Obama has to deal with a national loss of faith in Everything We Believed at the same time as the economic collapse.
And enough important Democrats were in on it too.
God knows. I feel like taking a shower.
To deal with the complexity, Obama should just do the right thing as in “protect the constitution”. But then his life might be on the line. But he put his hand up for president.
Also replying to bzick @26
IIRC, a commenter a few days back suggested that perhaps Obama has learned since moving into 1600 that some of the cats in this bag would blow back abroad to the detriment of our interests big time. Or it could also be pressure from Pelosi, Rockefeller, Harman, and other present and former Dem members of the Gangs of Four and Eight who could be damaged. Then, too, the tapping and trolling might have unearthed something on Obama himself and someone who knows what it is playing J. Edgar Hoover.
PS: Mine was the 28th Digg.
When is Walker going to look at whether retroactive immunity for the telecoms is constitutional? Busy guy. If the republicans were still in power would they retroactivly immunize war crimes?
On Tuesday.
First he has to rule on this case.
*g*
BTW, Jonathan Norling, mentioned in the quote above, is originally from Delaware–home state of Biden.
His friend, also from Delaware, once worked for Sen. Biden’s office in the 1990s.
Jonathan may have as well when he lived in DC. They were both, Jonathan and his Delaware friend, at one time my housemates when I was at Georgetown.
This has become fruit of the rotten orchard.
It’ll be interesting seeing the “national security” defense to requests for sanctions and suspension or disbarment.
Dugg
DUGG and I just added the following comment there. How about some more comments at the DIGG? Those comments inspire others who are not pups to come to the Lake and read.
That doesn’t do March & bmaz justice, but I tried.
pup34
Tying up Pistole’s speech, Tamm’s disclosures and the Al Haramain pleadings nicely in one gripping tale of corruption. There are unimaginable inferential powers at work here…but I guess that really isn’t news.
One night of catching up on Kiffin’s recruiting triumphs may have been worth it seeing what Sunday’s mail has brought.
anybody want to make a bet that before we get to the bottom of this [i thart evah happens] .. that we will find out bushco/rove et al were also targeting “domestic political foes” as well …
i smells me a big rat lurking ….
They got Spitzer, remember.
They only spied on the ones that palled around with the terrists.
Wonderful, wonderful work, Marcy.
I’m not holding my breath for when the NYT & WaPoo plagiarize your work and provide front page stories about this sorry mess. ABC, NBC and CBS as well.
Insert maniacal laugh here.
Jkat, I meant, of course, SecState.
Okay folks.
Favor to ask. Marcy has been pounding on this stuff really hard. This is important. Very important. And we are light years ahead of anybody else out there, whether blog based or MSM. Please ring up the Digg counter, we need some attention on this going into tomorrow morning when Judge Walker returns to his court to take action.
Thanks.
Digged… AND Spotlighted.
Go, team, go!
Bob in HI
How are the coffers looking? Time to ante up?
Great reminder, LooHoo! My check for $100 is going out in today’s mail (I don’t do PayPal).
That amount won’t even get me in the door of a lawyer’s office! Look what we got in Marcy and bmaz!
Hey, it’s first of the month and pay-day, so let’s each allot what we can to show our appreciation, o.k.?
Re:
Sometimes I simply choose to give some cash.
Here’s some headed your way.
Cheers !
bmaz, may I add that we each should go to lots of online sites (Alternet, Glenn Greenwald, go O/T in comments at McClachey, WAPO, NY Times, all places, and recommend Marcy’s diary, perhaps quoting those vital last 2 paragraphs. Also, get on e-mail express and send link to each and all literate persons we know. Somebody with clout, call Rachel and KO for a Marcy and bmaz interview. How about Amy Goodman on DemocracyNow?
Someone with a decent congresscritter (all 3 of mine are Bush clones) send e-mail, call, fax Marcy’s diary. Sen. Leahy? Rep Conyers? Kucinich? Rep Paul?
Let’s let ‘em all know that we are not the sheeple they take us for!
Does this part stand out to anyone else?
This looks to me like conspiracy at the very top.
JohnJ, thx yet again.
My brain was swirling so fast the first time I read it that even though that hit with a th-th-th-th-thump!!, your reminder was exceedingly useful.
bmaz, Digg = trouble for my browser setup. Any other ideas…?
You know, I’m not sure how aware Obama is, personally, of this issue. This article in yesterday’s WaPo http://www.washingtonpost.com/…..01808.html belies its headline “Obama, Reaching Outside the Bubble.” There are severe restrictions on his time and the issues in which he is personally involved. As someone working in the Washington politics/policy arena, my perception is that Obama and the key people at the White House are involved almost exclusively in the global economic disaster and certain national security matters (Iraq, Afghanistan). Otherwise, they’re letting the Departments – including “career” people and holdovers – run things on their own.
The problem is that there are too many vacancies at the agencies and the White House and too many crises happening at the same time. The current practice seems to be not to distract the President with anything outside the core group of issues.
This does not excuse Holder or Greg Craig, nor does it explain why the department didn’t simply ask for more time to review the matter. After all, they are conducting a review of state secret cases. Why take an extreme position on Al Haramain while the review is ongoing and before you have AAGs for national security and OLC.
The lethargic members of the WH press corps need to raise issues such as this in press conferences (or even in Robert Gibbs daily availabilities) rather than focusing exclusively on a few issues (the same ones, plus politics, that Obama and the key WH staff are, rightly, obsessed with).
As someone this a strong interest in this case, I am dismayed by the positions DoJ continues to take. I am astonished that the Hill does not seem to notice the implication that Congress has no authority to limit the Executive if it invokes the state secret doctrine.
Finally, thanks to EW – and others on this site – for the work you are doing to examine this case.
Totally OT – I was perusing Scotusblog’s post on the Al-Marri case before the Supreme Court and would appreciate any thoughts from our resident Legal Eagles as to why the Obama Administration’s Acting Solicitor General (dead-ender?) would submit a brief requesting the Supremes’ “permission” to transfer Al-Marri from the Charleston S.C. brig to the custody of the Attorney General, and further, why the Acting SG even finds it necessary to ask the Supremes this:
Is this merely an attempt by the Obama Administration’s Acting Solicitor General to suss out the Supremes’ opinion on the government’s “Mootness” brief to dismiss?
Any insight would be appreciated!
Who do the American People and the Nation run to for protection against these conspiring forces? We held hopes that Obama would clean up the mess or at least try. Picking Holder as AG made me somewhat skeptical initially, now we have this obvious desire to protect the illegal activities of Bush and Company. Now, I’m assuming Obama does realize what is at stake here, and is updated by the DOJ. Does he believe he can administer Bush’s dirty tricks and bypass the Constitution with a more righteous hand, again in the name of National Security? Anyway if this case explodes in the government’s hands as it should, the obvious question among others will be to what extent did the illegal wiretapping program go to. Who do we turn to for answers and or an investigation, the FBI, Congress, or the DOJ? Recent history and events indicate there is nowhere left because it is all corrupt. Thank You EW for keeping our heads above water.
Where’s the spotlight link?
Look at the end of the main text of the diary/blog/top post, just above the comments section, or click here.
Two important things to remember:
1. Write your own short paragraph to the members of the press telling them why this diary is important for them to pay attention to. This is really important– its your sales pitch to get them to pay attention, rather than just hitting the “Delete” button. You might want to write this when you have the diary itself to consult, and copy it to your clipboard before clicking on the Spotlight link. So far as I can tell, text only, no fancy formatting allowed.
2. They limit you to 10 members of the press (including TV and/or Radio, if you check those boxes) that you choose from a list they provide. You can look for your favorite press critters, or you can do what I do, and look for relevant specialty areas, such as “Justice correspondent” or “Legal affairs editor” following the press critter’s name. I try to scatter mine around– coast to coast, one person per news bureau, but you can make other choices, too.
This is your opportunity to whisper into your favorite journalist ears.
Bob in HI
Right after the article and before the comments.
Good job, Bob!
What happens to the old government certifications by DOJ once the news ones are placed in the safe?
Does Judge Walker keep them until the end of the case ? … maybe for use by any bar review panel? or does DOJ legally get to grab the old submissions and take them back to the DOJ or nearest shredder/acid pit?
Man, you folks are perceptive!
Tom Nelson, Attorney at Law
Welches, Oregon
Wow!
Good to know you are reading this site.
Marcy Wheeler (aka ‘emptywheel’) and all the above contributors would certainly be happy you stopped by.
I assume you are limited in what you can say in a public forum but we’d be happy to hear anything you can add.
Thanks. The posts here have been exceedingly perceptive, putting the pieces of the puzzle together in a comprehensible fashion. This afternoon’s post simply knocked my socks off, and I’ve circulated it widely (including the comments) to other attorneys involved in these cases (last count, about 15).
What’s really pernicious in the present system is that the Government attorneys and parties can file anything they want in secret and keep the opposition from seeing it under the guise of “national security.” That the AHIF attorneys are on the verge of access to those prior secret filings is probably the reason why the Government only now is ‘fessing up.
This practice you mention was bad enough during the Bush Administration. Maddening that it continues under Obama.
Has Jonathan been able to approach Biden?
Thanks for the work you are doing to return us to a republic.
oh, and let me second Minnesotachuck’s comment @64 that emptywheel (not a lawyer but she might as well be) is the powerhouse here with extremely strong assists by bmaz (a lawyer). The talent runs deep, however. Many contributers here provide extremely useful info. Several names come to mind but the list continues:
Mary (a lawyer), looseheadprop (a lawyer), MadDog, earlofhuntingdon, readerofTeaLeaves among many more.
And where has Sara been? Hope she’s well.
Yes. Sara, scribe and WO (above). Minnesotachuck was smart to stop after listing two names.
WO, it certainly wouldn’t be a stretch–considering many Gitmo prisoners were/are innoncent victims.
Still baffles me that Obama would persist this illegal charade–more so if your theory is true.
We are all looking forward to the “good faith deception” arguments expected to be forthcoming in the qualified immunity pitches.
Welcome, Tom!! Thank you for your work on behalf of the Constitution and the rule of law. As for the kudos, most of them go to the awesome Marcy Wheeler (aka Emptywheel) the owner of the house, and much of the rest go to bmaz who rooms in from time to time and house-sits when she’s absent. But some are definitely deserved by many of the regular commenters. I’d start naming names but my aging memory would undoubtedly forget to cough up a few of them and so as to not offend anyone I’ll leave it at that.
late to the party . ….
Awesome, EW! It brings tears to my eyes to realize that we have you, a platinum class treasure — and in the midst of the MSM quackers. All I can say is Wow and Thank you so much!
Welcome, thnelson! Glad you’ve become one of the pups here at FDL! Look in often. Aren’t Marcy and bmaz the greatest? This Lake is the best investigative journalism to be found, and it sticks to the facts and clearly identifies personal conclusions drawn from the facts and evidence. No hidden agendas here.
I just had a truly frightening thought. After reading the al-Haramain brief recounting the events of Feb – Oct 2004, I’m really wondering if the final designation of al-Haramain as terrorist organization was due to the accidental release of the call log. If look at the timeline, it goes like this:
Feb 18, 2004 – Assets seized, investigation announced. We still don’t know what triggered this action, but the government was going after many different (and mostly unrelated) al-Haramain charities overseas.
Early March 2004 – al-Haramain lawyers illegally wiretapped talking to overseas contacts.
March 10, 2004 – Bernabei and Katz apply for license to represent al-Haramain. You have to get one of these because otherwise you would be supporting a terrorist. (NSA continues to wiretap the old lawyers)
From March to May 2004, OFAC and al-Haramain do a Kafkaesque dance wherein OFAC sends a bunch of newspaper clippings and Internet articles about terrorism that have nothing to do with al-Haramain or articles about al-Haramain that nothing to do with terrorism. OFAC always gives al-Haramain very little time to respond, but gives them a brief extension when they ask.
July 23, 2004 – OFAC mails a bunch of new material, none of it particularly relevant. They give al-Haramain until July 30, 2004 to respond.
July 26, 2004 – al-Haramain receives the new material and asks for an extension until Aug. 13. OFAC gives them until Aug. 4.
Aug 4, 2004 – al-Haramain responds and asks for more time.
Aug 20, 2004 – At 3:30pm on a Friday, OFAC delivers more stuff and gives al-Haramain until 9am Monday morning to respond. This batch has the call log in it.
About Aug 31, 2004, OFAC realizes it sent the call log out.
[Think about the environment. A very close Presidential election is about to really heat up, Labor day is just around the corner. I’m willing to bet the first thought that went through their minds is that this might be a Kerry campaign ‘October surprise’. Once they decide it was just a mistake, they have to figure out how to do damage control. If there was ever any chance of al-Haramain not being designated as a terrorist organization, it just flew out the window. No way they can walk it back if it turns out that al-Haramain isn’t the most evil terrorists in the world.]
Sept 16, 2004, OFAC officially declares al-Haramain a terrorist organization.
Isn’t Patrick Fitzgerald getting busy about this time, too, having been appointed on New Year’s Eve ‘03? Cheney would be the first to think himself a victim of democracy and process-leaning bureaucrats. At this time, he still held de facto sway over the inJustice Dept.
Yeah WO that crossed my mind earlier this morning
I have read so many of your comments the past few years, and I have no recollection of your logic ever containing an error.
That’s quite a deduction.
This may be old news, but I wonder if the government followed its first mistake- sending out the logs- with a second one- failing to retrieve all the copies? Note the contrast between these articles:
(1) WaPo: “In November 2004, FBI agents approached Belew, and soon thereafter Ottaway, saying that the government had mistakenly released the document. They demanded all copies back and warned that anyone who revealed its contents could be prosecuted.“
http://www.washingtonpost.com/…..01852.html
(2) Alternet: “Ghafoor and Belew initially assumed that the document was obtained through FISA… But they grew suspicious when the FBI requested the return of that document. The lawyers immediately complied, but the FBI failed to contact both Al-Buthi and Seda, both now living overseas, to get their copies back.
http://www.alternet.org/rights/35807/
So, did the FBI “demand all copies” or “fail to contact” Al Buthi and Seda? It’s hard to tell as “Nelson and other lawyers were able to retrieve one of the remaining copies of the document, most likely from Saudi Arabia, and turned it over to the court as part of their lawsuit.”
http://www.historycommons.org/…..s_nelson_1
It’s interesting to ask whether it was it bureaucratic incompetence or simply a lawyer who complied with my dad’s rule to “never send anything out without saving a copy” that brought us here. But it’s truly scary to consider that but for one of these two things- and for Risen’s article that revealed the logs’ importance- the lawyers would never have known their larger meaning and Walker wouldn’t be ruling on them.
For want a couple “nails,” will the scope of the “war” be lost, or finally found?
maybe not accidental???
“maybe not accidental???
Marcy kinda sorta implies that the log maybe wasn’t accidental
“The surveillance log at issue in this case was included (accidentally, the government says) in the batch of information handed over on August 20, 2004. In their original complaint, al-Haramain described the document as the “Control logs” from warrantless electronic surveillance of March and April 2004 conversations between directors of al-Haramain and al-Haramain’s lawyers, Wendell Belew and Asim Ghafoor. NSA turned the log over to OFAC in May 2004 and (as stated) OFAC turned it over to al-Haramain in August 2004.”
Could you explain what possible advantage there would be to intentionally disclosing this log?
Maybe a whistleblower “accidentally” let it slip?
stranger things have happened.
Great work on this material.
Three reasons occurred to me when I received this material. I have to be careful what I say, but I have speculated in this way previously to the media.
1) Incompetence (this is always my first choice);
2) A whistleblower inside the administration;
3) An attempt to scare off the lawyers.
Wendell Belew
Mr. Belew — thanks so much for stopping by (geez, both you and Mr. Nelson in the same thread — how lucky can we get!). I particularly appreciate your comment on why the log may have been turned over, the first two had occurred to me (and been much discussed here), but the third option had not.
As others have done previously, I would like thank you both you and Mr. Nelson for the work you are doing on behalf of all of us. I truly believe that if the Presidents’ assertion of absolute control over state secrets is allowed to stand, we will have lost our democracy in that moment. We all owe you a tremendous debt. Thank you so much. And good luck!
I wondered about that, remembering a story about how a lot of tobacco docs were taken out by one paralegal at a defense firm who happened to be built a little like Rush. The guy had a PhD and was always carrying a bag of chips, at least when he went through security. The security guards likely thought he was just a “harmless fat guy” and missed the sound of the papers ruffling that he’d stuffed down his pants over the crunch of the chips, the clownish image causing them to let their guards down and he to walk out undetected. He had the last laugh I guess.
Maybe there is another Matt Diaz behind this disclosure.
Is it possible that we will ever find out what the inaccuracy in the initial declaration actually was?
Mr. Nelson-
A lot of lawyers would have backed off and given up once their offices and homes were invaded, but the fact that you persisted despite (or was it because of?) this is why we’re able to be here discussing this case. It’s an honor.
Along these lines, it’s helpful to remember what you and Brandon Mayfield, and your families went through as I’m sure it wasn’t easy being up against such powerful forces. As I said in a comment yesterday, “Mayfield’s child stays home sick from school and hides, terrified, in the attic as intruders roam the house, unaware that they’re FBI agents. Later, one of his children figures out the time the agents entered the home on another occasion as they cut the power but left the alarm clock blinking, showing how much time passed since it was turned back on. The family later finds a muddy boot print in the house and discovers that their toothbrushes were taken and returned after DNA samples were taken.”
I’m sure there’s more we don’t know about too. Thanks for not giving up, and getting us here.
Question for the legal brains. Since the cast of characters doing the last minute filings appear to be the same over the lifetime of this case, and that they are all career gov’t lawyers make you beleive that this is an attempt at personal cya or is it actual the Obama DOJ telling them what to argue?
I want to hear from Sibel Edmunds. Lift the gag order. Her allegations hint at high govt officials were involved in drug running.
Of course the databases were not seeking to catch monied interests with ties to govt. officials.
Wiretapping was to get oppo research and indict Dems of course.
So if their going to release Spitzer’s wiretaplogs
http://online.wsj.com/article/…..=wsjcrmain
If dogs run free
Thanks for working on this one. The clearer we understand what happened in this case, the better. I would like to pose the following though…
Suppose there was a secret opinion from the Chief Justice permitting the FISA court’s chief justice to sign warrants without informing the whole court? Is that legal under the FISA at the time of the alleged violations of that act?
What is more interesting to me is how the timeline with the Comey showdown at the hospital gibes with this case here. It seems to me that Comey’s refusal to recertify a state of legal emergency surrounding this or related wire-tapping and data aggregation in March 2004 is tied in with this case in some way. And that makes the appearance of the classified document in the brief handed over to al_Haramain also possibly intentional…from perhaps some folks who were willing to resign over the continuing of blatantly un-Constitutional government actions? (Also, recall Kerry’s “flub” calling the Bushie’s criminals when he thought he was off mic during the 2004 campaign? Yeah, maybe there are other players involved here…)
OT?
This ought to be of interest to a few folks here:
Bob in HI
Bob, please think about doing a diary on that basement in Chattanooga, TN where the votes were flipped by that ‘middle-man computer’ in the 2004 and probably the 2000 election(s). That ingenious devise was created by Michael Connell, who was killed in that plane crash 2 days before he was due in court to testify. He was Rove’s computer guru.
So, is Chattanooga, TN the seat of the secret RNC?
Ditto.
Thanks for the thought, but I don’t know any more than is in the article. IMHO, A decent diary needs to do more than spotlight one source. If anyone else wants to follow the Chattanooga source, and link it to some of the prior threads at the Wheel house on the White House email system, please feel free to do so.
Bob in HI
Sure sounds probable. I knew I could count on you or bmaz or one of the intrepid regulars here to come up with something on this. Excellent work!
Datamining financial data. Could this be how they got Spitzer?
Maybe, maybe not.
From what I’m told (and as with all stuff one “is told”, there’s a chance of it containing some or a lot of bullcrap, but it seems plausible), it’s not that hard to find a prostitute in NYC. I’m told all one has to do is look in the classified ads of the various free papers, magazines, or whatever for ads for “escort services” and the like. And that, I’m told, does not encompass the business cards that get left, guerilla marketing style, in mens’ rooms and who knows where else.
Remember, Spitzer got his friendship from an “escort service”.
I would think it reasonable to assume that (a) the cops have a database of all the information on which entities are “escort services”, even the low-profile ones, and (b) probably have an “attaboy” program for cops and admin personnel who report new ones.
By way of an “attaboy” program, I remember from my time in the military stationed in Germany that you were supposed to report all instances when and where you saw a “SMLM” vehicle. “SMLM” (pronunced “smell-em”) was the Soviet Military Liason Mission to USAREUR – a holdover from WWII and Occupation. They were a bunch of Soviet intelligence officers whose official job was to liase – be in contact with, so as to reduce tensions or misunderstandings – with the US forces in Germany through a headquarters in Frankfurt. Their unofficial, real job was to spy on us and report all they could about what we were doing. The US had a similar mission in East Germany, USMLM. Someone I once knew had enlisted and wound up in a job with USMLM as a driver – I was told that before he was sent over they sent him to the most extensive, intensive course at the Bob Bondurant School of High-performance Driving, at government expense.
The SMLM cars had special, distinctive license plates. One of the first things you got when arriving in-country was a wallet card with a color copy of their plates and instructions on what to do if you saw one, including a 24/7/365 phone number to call and what to report.
All you would get, if you made a call in and reported a SMLM sighting, was a preprinted form postcard thanking you and telling you how important it was that you’d done that. It would go first to your CO, and then to you. That routing was for a reason – recognition.
Those frickin’ cards were, invariably, displayed in places of honor in wall lockers and over desks. They were both coveted and objects afforded a bundle of respect by others.
So, that’s how an attaboy program probably works for the feds tracking NYC hookers, too.
What the readers have to understand, from this disgression, is that an organization can engender a huge, enthusiastic effort to find and collect information for very little cost (How much did those SMLM postcards cost? Printed in bulk – maybe a penny each?) merely by making the reward for finding the information (and, FWIW, it didn’t have to be good information) something desired and respected. So, too, for money-moving activites associated with, say, NYC hookers.
Now, for a prosecutor, the power of that store of information (who’s paying for hookers, or whatever) is not in the actual prosecutions. The real power in that is in the threat of prosecutions. I don’t know how many of your schools made you read stuff like Jonathan Edwards and some of the fire-and-brimstone Puritan preachers of 17th century America. Mine did; part of our American history course, actually. This was before – well before – the so-called No Child Left Behind act made math and reading the only subjects of relevance (so you could pass Neil Bush’s testing company’s tests) and eliminated civics and history as required courses. Hell, I had three years of Latin and three of German, all but one of those six required. In a public school.
But, Edwards and his ilk were fond of that whole “sinner hanging by a thread” theme. It worked admirably to keep the passions and actions of their flock inside the bounds they set and under their thumbs – impose fear of divine retribution later, and they will conform now to whatever you want them to. The same thing works for prosecutors.
Remember, the madam of the organization that supplied Spitzer with his companionship recently concluded her criminal case and, as a part of her cooperation with the government, turned over her books and client list. She kept it on a computer. (Smart. Real f’g smart….) Not just names, dates, and amounts, but also preferences, predilictions, and personal characteristics. 3,500 (that’s three thousand five hundred) or so different clients in NYC and environs who could afford to pay $1,000 to $10,000 (or whatever their going rate was – it wasn’t cheap) for an evening of “services”.
Every one of those clients knows quite well who Eliot Spitzer was, and now is. Some might even have known Spitzer personally or professionally. Some might have even recommended that particular service to Spitzer. Who knows? But, they all know quite well that there are two other things going on.
First, Spitzer got blown up for having the temerity to warn about the impending catastrophe that was (and still is) AIG and its CDOs, CSOs and whatever other financial chicanery they were pulling off. It Did Not Suit The Powers That Be that that catastrophe be exposed, at least not until they got their money out. He was not blown up for hiring a hooker. In Morgenthau’s DA office, johns rarely if ever were prosecuted unless the hookers were underage, and the hookers took only a slightly larger risk. It was pretty much his office’s practice to go after the madams and pimps. When they went after anyone. But this was not Morgenthau – this was the feds.
The feds also usually limit their counter-prostitution activity to cases involving kids. There was just a big bust in the news the other week about the feds taking down child prostitution and human trafficking on an interstate basis. That was the mill run of a federal sex offense case. Likewise, as to money-laundering cases, they will pick up small-time cases (and the amount of money here was, in the scheme of things, small-time) only when the case falls into their lap, when the defendant is really obnoxious (to the feds’, i.e., it’s personal) or when the charge is an easy way to make a case. When they go after an escort service that does not employ kids (and the one in Spitzer’s case did not), they are not going after it for any obvious reason other than “it’s personal”. Because they could go after every escort service in NY on the same basis as they went after this one. And they don’t.
So, these 3,500 clients “know” Spitzer got blown up in a very selective way.
Second, these 3,500 clients also saw that only Spitzer got calumny and professional ruin for hiring a hooker. They saw that one of the other clients (remember, Spitzer was “Client #9″) was identified as some British duke who had a lot of interests in the financial community. And they saw that not only did the effort to identify the other clients cease pretty darn quickly, but also that all mentions of that British duke got quickly scrubbed from the press articles. Apologies were issued in private, and the matter was buried.
But, Ashley whatever-her-stage/trade-name-is keeps popping up in the press (Unarrested, I might add) and is identified as the Spitzer hooker. Time and again.
So, the only logical conclusion as to why they hit Spitzer was to get him out of the way, and to keep the others in line. Because every one of those 3,500 clients knows that the feds know who he is, when he got friendship, how much he paid, how, and what happens when they cross TPTB.
As to data-mining financials to find Spitzer? No. They didn’t have to. Once they got the tip that Spitzer was seeing hookers (allegedly from Rethug operative Roger Stone), they watched Spitzer and his transactions. (Not that they weren’t watching Spitzer before, for a trip-up. Remember, he was seen by many as presidential timber in ‘12 or ‘16 before this happened.) The problem for the feds making a money laundering case against Spitzer is that it apparently was his own “clean” money that he was using to buy those services – and that is not money laundering. The money laundering was by the service, trying to clean up the way they got the money.
Great points. But (forgive me if this has been covered) how do you square your belief that “As to data-mining financials to find Spitzer? No. They didn’t have to” with Newsweek’s report that:
“The NSA, with the secret cooperation of U.S. telecommunications companies, had begun collecting vast amounts of information about the phone and e-mail records of American citizens. Separately, the NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of “suspicious-activity reports,” or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer’s use of prostitutes.) These records were fed into NSA supercomputers for the purpose of “data mining”—looking for links or patterns that might (or might not) suggest terrorist activity.”
http://www.newsweek.com/id/174601/page/3
This seems to imply that it was one of the “bank forms” EW describes in the new post, and not Stone, that led to Spitzer’s downfall. But perhaps you’re right and it was simply less damaging to frame the tip as coming from financial data than from someone who founded “Citizens United Not Timid,” against Hillary.
Look at it this way.
There’s a mountain of SARs filed for every conceivable reason. We know that.
The feds simply are not going to go through every one of them. Too much work, and too much like work, and most if not almost all of the activity is innocent.
Along comes Roger Stone who, as he admitted in an interview somewhere (I can’t find it now, but I think it was in the New Yorker) that he heard about Spitzer using hookers from someone he met in a swingers’ club (Stone is pretty well known for an … um … interesting personal life). As I recall it, it was thought odd that Spitzer kept his socks on, so he stood out in the run of people one encounters. Stone passes the rumor along to a friend in the feds, figuring it’s good for future use to protect himself in the event he needs it.
Now the feds (whose loquacity about the investigation, including leaking grand jury material was extraordinary, and extraordinarily bad) know to look in that huge pile of SARs for the ones relating to Spitzer. Recall that, as a governor he’s already subject to some surveillance if only because he has to have a security clearance to enable him to be kept current by DHS (remember when Blago’s clearance was revoked and that added to the impeachment train’s momentum?). So, now the feds have something to hang an investigation on – a potential security threat.
And they go after Spitzer “investigating” along those lines.
Had Spitzer kept his mouth shut about AIG, likely nothing ever would have been said. After all, Dusty Foggo got to be Executive Director of CIA and his sentencing documents revealed (publicly, last week) that counterintelligence knew he was sharing a girlfriend with a Soviet agent and protested he was a security risk before his appointment, to no avail.
But, Spitzer took that whole “responsibility” thing seriously and testified responsibly about the dangers AIG’s practices posed.
So, he had to go.
You know, in a very creepy, spooky way if you look at this from a certain angle, it really puts a much tighter twist in what JohnJ wrote @45. “Conspiracy at the very top.”
Okay, gotta give my TinFoilHat a brief respite…
One of the things REpublicans have done going back at LEAST to the Lewinsky investigation (in which they used a go-between to officially deliver the Lewinsky allegations, even though it really came from Republican witchhunt) is to find a crime they want to go after then find a way to present it as if legally clean to DOJ. I suspect they did that in the Siegelman prosecution, the Feiger prosecution, and a number of others. So it would be normal for them to do the same with Spitzer.
Catching up (off and on) through Monday, so I may be too late — but scribe, please consider putting this as an Oxdown Gazette. I’ll keep an eye out over there to recommend it. IMHO, this deserves wider readership at FDL.
Especially this, which you’ve synopsized:
readerOfTeaLeaves, on the AIG topic, this morning’s news reports that AIG is asking (or has been granted ?) $30 more BILLION of the TARP money. Brings their total to around $165 billion. We can’t save these beached money whales, folks!
EW,
Completely OT but maybe not.
Back in December of 2003 through January 2004 I had it out with the president of our bank. I was being hounded to sign a new signature card. I asked why? I was not given a sufficient answer. I was told they did not have a current signature card on me. I told them they were full of it and that they got two new signature cards from my husband and myself when we got married and turned my account into a jointly held account and that they also required a new signature card at that time because of my name change. Additionally, I signed a new signature card when we took out a loan. Crickets from the bank when I noted this information. Then more hounding came from the bank. I was then told they had lost my signature card. I said that was bull. They had no response. By now I thought this process was tied to 911 and the Patriot Act. Eventually, I was sent a personal letter from the bank president telling me that my account could be frozen due to the Patriot Act if I did not comply. I set up a meeting with the bank president and had a chat. Mr. Klynn complied and supplied a new signature card. I did not and challenged them to close the account and that I was prepared to take this to court because this was really about an invasion of privacy. I read the new wording on the signature card. I think I was being asked to sign my privacy away. The bank president then pleaded with me to sign the card because federal auditors were coming in to look at their accounts and that they needed “current” signature cards on all account holders. I pushed what “current” meant and I received dodges and no eye contact form the president.
I then asked what could happen to the bank if they did not have a “current” signature card on me? The bank president looked ashen. I asked if their FDIC was tied to this audit. He did not answer me. I suggested to him that this was about government data mining and my signing my rights away. Suddenly, our meeting was done.
I held my ground and later learned that “something” changed sometime in March of that year. The hounding stopped.
klynn, Go Girl!!! It’s a mell of a hess when we have to always be alert to the shennanigans of the Dark Side who would rob us of our civil rights and freedoms.
The wide gap exists not only between the rich and the ‘getting poorer’, but also between the informed and the uninformed regarding who and what is in control of our government.
By the way, I was here yesterday lurking. Forgive me for not commenting and telling you this is one of your best posts ever. Thank you so much.
You are a national treasure and true patriot.
I stand in awe of the greatness here. I wish I had something to add, but I got nothin’. We await Walker’s next missive…
More OT on banking, FISA and the Patriot Act…
And this made it so clear for me what was going on:
klynn
Will you go put that in my next thread, where it is completely on topic? Thanks.
Mornin’ Emptywheel and commenters –
EW- forgive me, yet more o/t – thought of you immediately.
WASHINGTON — AP — BREAKING — New documents show the CIA destroyed nearly 100 tapes of terror interrogations.
Raw Story
have been mostly away for a while, you probably covered this in past posts
Note the similarity between Klynn’s comment above and the Alternet article about Thomas Nelson:
Klynn said, “The bank president then pleaded with me to sign the card because federal auditors were coming in… and that they needed “current” signature cards on all account holders. I pushed what “current” meant and I received dodges and no eye contact from the president. I then asked what could happen to the bank if they did not have a “current” signature card on me? The bank president looked ashen. I asked if their FDIC was tied to this audit. He did not answer me. I suggested to him that this was about government data mining and my signing my rights away. Suddenly, our meeting was done.”
And Nelson said, “Though Nelson approached the security people at the building, [to ask why a fake cleaning crew member tried to enter his office] they wouldn’t talk to him. “They were very blunt,” he told AlterNet in a phone interview. He then took his concerns to the building manager. “It was all very disconcerting and inconclusive,” says Nelson. “There was no direct denial. At the end, I said, ‘You probably couldn’t tell me if something was going on anyway.’ He said, ‘That’s probably right.’”
That’s what’s so commendable about what Nelson did after his home and office were searched. He didn’t “cooperate” even after the FBI “approached (his client) Belew… warn[ing] that anyone who revealed its contents could be prosecuted.”
That’s why it’s so important for this case’s issue to be framed not as ‘whether the govt can eavesdrop on Saudi charities without a warrant’ but as ‘whether the govt can put the screws to your banker or your landlord to send a fake custodian into your lawyer’s office to retrieve evidence revealing that it ignored the Fourth Amendment’s warrant requirement.’
The difference is like that between the “Terrorist Surveillance Programs” and the “Warrantless Wiretap Scandal.” Same program, different frame. Somehow we have to tie this case to a narrative that resonates with the public through legitimate fear of their government’s overreaching rather than letting it be spun as “daddy keeping us safe.”
(Can you tell I’m reading Lakoff?)
O/T: When the going gets tough . . .
http://news.yahoo.com/s/ap/200…..blackwater
WOW!!! Marcy and bmaz, at finding and following dots, ya’ll can’t be beat!
This work is amazing! Keep pushing the envelope (aka wildarss guessing).
And sharpen your peripheral vision, always alert to others in your surroundings. (Naw, I ain’t paranoid…hee,hee).
46 – the Sup Ct had taken jurisdiction over this case, as it was then postured, with the defendant at the So. Car brig and in the custody of the pentagon. Since the court assumed jurisdiction, any effort to transfer al-Marri to different branches of gov and/or to different physical locations can or does have an affect on the jurisdiction of the court over the party, so they technically should ask for that before they change the jurisdictional components of a party before the court. More pragmatically – they are issuing a soft elbow to the ribs and whispering “Padilla”
Beating on my not-yet-dead horse, I’m going to say I think the dates and info in this story are important missing pieces of the timeline/info, at least with respect to the actual delcarations if perhaps not the overall context being discussed in the comments.
What we learn from that article is that a) the FISC Chief Judges were briefed on the program and both of them issued orders for firewalls to keep any applications for FISA warrants concerning entities who had been illegally surveilled funnelled only to the Chief Judges and to insure that none of the illegal program information was used in those applications; b) DOJ promptly began violating the firewalls (as Tamm also provides further info about); and c) at about the same time as the “hospital showdown” DOJ was confessing to Kollar-Kotelly that there had been a breach and she was chewing the AG’s butt out and making court-consequences noises.
Re: c
Unless you want to buy that the reporter is wrong or that the program actually closed down twice in 2004, once for the FISC Judge issues and once for Comey/Goldsmith issues – you have to kind of believe that the two circumstances were intertwined. Add in that the court was also advised in 2005 about yet another violation (which might offer some insight on the dropped charges)
I’ve speculated before that a case like al-Haramain might have been the trigger to the meltdowns and FISCt getting ready to go for blood (that they discovered there were what seemed to be some deliberate efforts to get around their firewalls). So let’s put that in context of what could (conjecture) be going on in the declarations (and why gov is worried that the court would find out about their lies on its own, which seems to be the only reason they ante up).
A) In the description of the program, they may have described internal, non-FISA minimization parameters that were not actually applied.
B) In the descritpion of the program, they may have described procedures that resulted from the FISCt firewalls, with the implication that they were followed despite actual evidence they were not.
C) Surveillance conducted under a FISCt order might also be the subject of classified declarations in addition to the illegal program surveillance and there may have been information about classified surveillance conducted under FISA and — that information may have failed to mention that the orders were obtained in violation of firewall orders
etc.
What I find interesting about C) is that it is something that might tend to jump out – if it was clear after review that al-Haramain was the subject of the illegal, unconstitutional program, then even something like the signature by a FISA Judge other than the Chief Judge might almost be self-proving on the issue of whether information was collected in VIOLATION of FISCt orders – the firewall orders.
So – what you might have is not “just” the original illegal surveillance as illegal surveillance, but to the extent that there were later FISCt orders issued but those were applied for and issued in violation of standing court orders – – then, the “legally” obtained, FISCt ordered surveillance, also becomes a real issue. This is the laundering element that EW raises.
So this is what you may have – FISCt orders that require firewalls and, because of exploitation in a few instances and/or incompetence and/or a deliberate component of “teh program” devised to circumvent the firewalls, one-some-many FISCt orders issued in violation of those firewall orders. Especially with all the Patriot Act loosening of what can be done with info gathered pursuant to FISCt orders (traipse it into court at will basically) – that might give rise to any number of cases being implicated if things were really straightened out.
But in the cases where the declarations were filed in particular, the inaccurate information might go to program descriptions indicating that informatino from the unconstituional program was kept out of FISA applications, or that the NSA complied with FISCt firewalls when it did not, etc. and it is even more likely that the lies are going to be some that would be easily exposed (like the signature of a FISCt Judge other than the Chief Judge on an application involving a FISA order.
Another option, D), might go to the description of the program as to what happened to surveillance once there was an overseas contact with a US number – iow, if the program indicated it was limited to only surveilling where there was an overseas component, yet the log shows them pinging on to other US to US calls involing the lawyers – and/or that any such US to US pinging is destroyed (when the log shows it wasn’t) etc.
I really tend to think that, with all the Muslim charity investigations going on and the degree of likely involvement of the FISCt in many aspects – it’s very likely that something like al-Haramain is what got Kollar-Kotelly upset. And I’ve always thought it was somethign like her jumping on Ashcroft, telling him that he and his peeps were going to have to certify correctness of the firewall info and face perjury charges if got it wrong, that was really the reason for the hospital showdown and that the only “changes” to the program that Goldsmith and Comey generated were DOJ-CYA changes so that they would be safe from perjury charges if they made the requisite certifications.
I kind of wonder about what was in the contact with Rumsfeld, if the AG was threatened with perjury.
Thanks for the comment and the link, Mary.
While I agree, to some extent, with your point about not being shut down twice in 2004, we don’t think it WAS shut down in March 2004 (indeed, if al-Haramain was tapped on both March 11 and March 25, it was not shut down at all).
But I also wonder whether it’s possible that when the FBI started investigating the leak of the wiretap log to al-Haramain that August, they spent the two months before they contacted al-Haramain shoring up their firewall system.
109 – the AG to Chief Judge was part of the firewall devised by the court itself, after the Chief Judge(s) were briefed on the program.
Anyone who was surveilled by the illegal, unconstitutional program was supposed to be tagged, so that if there were ever requests for actual FISCt orders on those persons, those requests went only to the Chief Judges and the AG had to make the application and they had to certify that the info they were using for the FISCt application did not include anything from the illegal program.
So – to the extent the applications to the Chief Judge’s DID contain info from the illegal program OR to the extent applications were snuck over to other Judges who were not advised of the illegal program and so were not getting certifications on info not coming from the illegal program; you do have big problems with the FISCt orders that were issued in addition to the warrantless surveillance. Those orders of surveillance may be void.
This is something I feel like I’ve beat my head on the wall over for a long time, trying to point out how important this part could be.
Thanks Mary. That article you referenced above in 114 should be required reading on this topic. I agree that this tagging system may be central to the al-Haramain case. And also the hospital showdown…. James A. Baker, the OIPR guy tagged with being liaison to The FISC, is one of the guys who threatened to resign with Comey.
The mutineers (Comey, Mueller, Philbin, Baker) may have been pissed when they found out they were drafting untagged FISA warrant applications for people already being wiretapped (all of them?).
Maybe in the al-Haramain case they they based a FISA warrant app for the post february 2004 wiretaps on “banking violations” but in fact they were wiretapped since Sept 12, 2001 for being Muslim.
In other words, Mary, maybe the mutineers were not objecting to the “illegality of the wiretapping program” per se. But rather, they were pissed at being compartmented out of the knowledge- and thus at risk for unknowingly submitting untagged warrant Applications to the FISA court.
They were trying to avoid perjury charges.
Which would also explain the submission of these new declarations in the consolidated suit.
If the AG has certified these cases based on the assertion, made to the telecoms, that the program was illegal, and he knew that they weren’t abiding by the firewall procedures set up by FISC, then while it might not affect the legal questions on immunity for the telecom, it sure affects the status of that representation from the AG.
They got some real problems there with dishonesty to the court no matter how you look at it. Bad. And they have willfully let it stand in that false posture for pretty much three years just blithely assuming it wouldn’t matter because either state secrets or retro immunity dismissal would bail their sorry asses out of the fire. The deception to the court is not just unethical here, it is fucking criminal.
Mary thanks for your comment, but I’m still puzzled by what exactly the “firewall” is doing…
So, if someone is being tapped illegally and the AG decides they need a legal tap, they are supposed to just go to the Chief Judge? Why not allow the whole FISCt review both the legal and illegal bits to decide whether or not the AG is full of sh*t? What is the firewall between the Chief Judge and the rest of the court supposed to accomplish?
It seems to me that it could be used to hide bad behavior if the CJ was in cahoots with the AG. What am I missing here?
I think you are right about complicity….
From the article, it sounds like the administration did the same thing with the chief judges as it did with the “Gang of Eight”- it told them about what they were doing and why they were required to fall in line.
And the Judges basically said they did not know whether the illegal surveillance programs were illegal, but as long as no program info was the basis for a warrant application, then go ahead and do your illegal program.
And if any of your illegally surveilled targets do need a legitimate warrant come to me and only me and show me only the evidence you gathered outside the illegal program, wink wink.
To protect the “integrity of the FISA court”, the deal was that the DOJ was to never present a warrant application for a person who had been illegally surveilled to the other judges, “under penalty of perjury”.
But oopsie, the NSA was not always telling the DOJ the truth about who they had surveilled. So the DOJ guys had a little revolt because they were expected to submit FISA warrant applications but were not allowed to ask whether the secret NSA program had been used before they swore that it had not.
Thanks drational, that helps a bit. But I’m still puzzled… Where did this language come from:
Was that in the USAPATRIOT Act or somewhere else? At this point, FISCt is looking pretty short on integrity to me, if the illegal stuff was humming along with a wink and a nod from the Chief Judge.
From that WaPo article (that I have read for the first time today) it looks like a deal worked out between Ashcroft and Kollar-Kelly.
I presume it had something to do with this:
but we could ask Jello Jay and Jane Harman what they got for going along with the program…..
Being on FISC is no big perk, as far as I understand. I remember when people thought that Reggie got put on the Court as payoff for the Libby case (didn’t work out that way for Libby). But I think it’s just a different kind of commitment.
And, I’ll note, at some point after Reggie got put on the court, the court handed down some big setbacks for Bush’s efforts to do the program without any legal cover, still. Probably, they were still trying to maintain a firewall and it just didn’t work.
What I meant at 144 was that Kollar-Kotelly probably played along because she was a conservative Rehnquist appointee who believed the Government to be good and to have a legitimate need to do what they said they needed to do, and that if she told them not to bring their dirty data into the court, they wouldn’t.
The JJ/Harman part was snark.
So what was the firewall supposed to do? I know drational pointed out the integrity bit, but if all the FISCt judges are cleared, what is the harm in letting the full court review both the legal and ill-gotten info to see if the Executive had crossed the line? I fail to see how this firewall does anything whatsoever to prevent widespread abuse of government powers to snoop. And it appears, that in fact, it didn’t.
The firewall was to do exactly what Comey et al tried to do:
Keep the illegality off their resume without actually addressing or stopping the illegality.
It was CYA. The Government could do what it wanted to do as long as the traces of illegality did not taint their court. And when it did, she got pissed and shut it down, apparently until she got the promises she needed.
No one seemed to care about or want to address the core issue of whether “the program” was legal.
Ah, so this was all just window dressing for the Chief Judge. Is it me, or is there a lot of misplaced umbrage on the part of FISCt? Why on earth bother having such a court if they have no intention of paying attention to criminal behavoir hidden behind the convenient veneer of state secrets?
See: Townsend, Franny Frag.
Thanks for your comments. I should clarify the timing of my thoughts on the document. We first received it as part of a large batch of material. At the time we were unaware of the warrantless wiretap program so we assumed that the document was the product of lawful activity. For reasons I can’t go into, we also assumed that the transmission of the document was intentional. That left us scratching our heads as to why this was being sent to us. One possible answer was that we were being sent a message.
The notion of a whistleblower occurred to us after the “program” became public. The government itself raised the possibility of its own incompetence.
Thanks again! I don’t know if you can say, so feel free to not answer, but is there one of the three choices that you consider most likely, given the subsequent intrusions on Mr. Nelson (and possibly yourself as well)?
Thanks you for posting here. You may not be able to answer this, but if there were a FISA court warrant signed to allow the activity publicly reported to be in the log you received, would it be available to al-Haramain and its counsel, or could this be kept secret?
It’s hard to say. I usually bet on incompetence. I have been working in Washington for 30 years. The Bush administration (and especially the Treasury Department, which dealt with the document exchange) combined incompetence and arrogance at levels that no other administration could approach.
However, the “program” came to light as did rendition and other abuses – because good people did what needed to be done despite personal risk. So the whistleblower theory has some merit. The problem with this theory is that at the time of the disclosure, the public did not know of the illegal wiretaps.
The document itself was not clear evidence of an illegal program. Maybe we were not sharp enough to read between the lines and figure this out, but neither was the Washington Post.
That leaves intimidation. The Bush administration has used that tactic. They did it with respect to pro-bono counsel for Guantanamo detainees. They did it with me by calling me a “terrorist lawyer” in pleadings and banning me (for a very short period of time) from meetings with Treasury Department officials. As I said, my first reaction to the document was that it was a threat, but that implies a level of competence and intelligence that was in short supply the past few years.
at the time of the disclosure, the public did not know of the illegal wiretaps.
Yet another consequence of the gutlessness of the NY Times editors: Had they published in October 2004, you’d have had that context in which to view the logs within months, rather than a year and a half, of receiving them.
My head exploded when I read this.
But in a good way.
*g*
“my first reaction to the document was that it was a threat, but that implies a level of competence and intelligence that was in short supply the past few years.”
I was curious about your thoughts when you read the NYT article and knew the significance of the logs. Your situation had to be similar to the one Barbara Olshansky found herself in she received the Valentine’s Day card from Matt Diaz at Gitmo. I don’t know her thoughts but the fact that she turned them letter over to the judge assigned to her case seeking the release of the detainees (which she now held) tells me she must have thought she was being set up, perhaps as a threat to other lawyers with a fake list.
Thank you for pressing on despite thinking this might be a threat.
Maybe we were not sharp enough to read between the lines and figure this out, but neither was the Washington Post.
There was no way you could have known the logs’ significance prior to the NYT disclosure, was there? That’s why the delay was such a tragedy, as described above. It says a lot about our times, doesn’t it, when the NYT sits on a story like this for years (and only publishes after a reporter threatens to go forward with a book) and the legitimate thought of lawyers who receive “smoking gun” documents is that this is either a threat or a setup?
Here’s what I can say about that: if there had been a FISA warrant, the wiretap probably would have been legal. If that were the case, I can think of no reason why the defendants would not have submitted the warrant, perhaps under seal, to the judge when we filed suit. If, given all the acrobatics of this lawsuit, there turns out to be a warrant after all, you will have one pissed off group of judges.
Thanks for this. The idea of a whistleblower fits as an attractive option.
But also, what about the alternative of “the behavior of the guilty mind”, ie ‘whatever you say, don’t utter the word “green”, or else that risks giving it all away’?
Or what about the alternative of bureaucratic snafu, with the record being in the same room on the same desk with a lot of other stuff they felt they should or had to disclose to you, & due in part to its innocuous look, was just missed from being noticed for removal?
And of all the alternatives, what about the alternative suggested earlier in the responses here, that it might have been deliberately included to bootstrap the process of shutting down any meaningful pursuit of your remedies on the excuse of the case being bound up in state secrets?
I note you’ve warned us, probably quite reasonably [possibly based on things you’ve learned from the lawsuit’s discovery process, on which it would be unfair for us to try to press you], that you feel you must be circumspect on some fronts. But are you able to discuss which among these alternatives, or any others that might occur, appear more reasonable?
What astounds me, though, is the claim that they were taking newspaper printouts into an SCIF to assemble a packet of information for al-Haramain.
I’m not so much surprised that the document got OUT. I’m surprised (and skeptical) that all the crap they were sending al-Haramain to explain the freezing of its assets got into the SCIF for some schlup to send meaningless information out.
When I first came to work on Capitol Hill, one of my many mentors told me a story that contains much wisdom.
My friend was a brilliant and senior lawyer with the Office of Legislative Counsel. He was tasked with drafting the Medicare legislation. Late in conference between the House (led by Wilber Mills) and Senate (led by Russell Long) he realized that the bill had created an entity, the Supplemental Health Insurance Trust Fund, that would be known in perpetuity as the SHIT Fund. The conferees quickly renamed it the Supplemental Medical Insurance Trust Fund.
Some time later, my friend came across an article in a political science journal that documented the triumph of the AMA over other interests by changing the objectives of Medicare by renaming the fund.
I have become skeptical of conspiracy theories as a result of this story and personal experience. But the past administration, with its abundance of conspiracies, has diminished my skepticism to some degree. Even paranoids have enemies.
123 – that’s what I’ve believed for a long time now (and hopefully that will help you know where I’m coming from as to why I don’t see things as heroically as Isikoff et al reported them)
FWIW – here’s a kos diary I put up back in 07, when Comey was due to testify before Conyer’s committee on the USAtty firings and I was hoping that they would try to get into this issue – of the wiretaps – with him then. They didn’t – but it wasn’t much later that he and Schumer turned his Senate committee appearance into the wiretap issue instead of the USAtty firings that I think everyone thought he was there for.
I try to highlight the importance of that article and the FISA judges and their role in that diary and I’ve tried to push it since, and I think with Tamm’s information it looks more likely. Still, it’s all spec right now.
In any
Jeez Louise, your kos diary nailed it back in 2007. Had I read your diary and the WaPo article, I am certain I would not have argued so stridently with you over these past 2 years.
My default is to project lofty ideals onto public servants that “do good”, but alas, the world is not always such a pretty place. At any rate, I completely understand where you are coming from now, as I seem to have finally arrived there myself.
I still like Obama, though, so your job is still not done….
Thanks for linking to your old kos diary Mary. I also re-read more carefully the WaPo article you linked to earlier. I follow your longstanding argument on the self-serving conduct of the DoJ lawyers in the Palace Revolt/Baker-induced-panic. What I still get stuck on is the following (from the WaPo article):
Wasn’t this EXACTLY why the FISA court was created? to prevent government abuse of wiretapping American citizens willy nilly on a Presidential whim? Why did Lamberth and Kollar-Ketelly come to the conclusion that they couldn’t rule on the legality of the wiretapping? This puzzles me no end.
“Wasn’t this EXACTLY why the FISA court was created? to prevent government abuse of wiretapping American citizens willy nilly on a Presidential whim?”
Why … yes, that’s exactly right.
And the fact that the Bush Cheney administration just steamrolled right over the FISC & the DOJ would qualify for consideration as one of the most disingenuously-motivated government clusterf**ks in the history of the nation —
except for the fact that now it’s looking pretty clear that it’s forced the successor administration into scrambling desperately to prevent further crisis with Middle East governments protesting the unwarranted confiscation of their citizen’s property; with the further exposure to US banks & wire transfer companies, already effectively bankrupt from the collapse of the financial system; from lawsuits filed on behalf of such foreign nationals for recovery of the proceeds of confiscation & for consequential & punitive damages; from class action lawsuits filed on behalf of US citizens who might be motivated & enabled pursue damages by the product of this al Haramain case; from the said financial collapse; from the systematic indefinite imprisonment without sufficient cause, criminal rendition & torture of thousands of foreign nationals; from a falsely-pretexted invasion & occupation of a sovereign nation bringing about the deaths of hundreds of thousands & displacement & deprivation of millions, at a cost of several trillions to US citizens & death to several thousands of them; & from allowing pirates to roam free over Wall Street, devastating the entire financial system.
Considered in that context, this falls into a range from par-for-the-course to small potatos.
Thanks, Bush & Cheney!
I could not disagree with you more. If you review the entire thread you will find others who have argued convincingly that if the President retains the exclusive right to determine what is and isn’t a state secret without meaningful review by the courts or Congress, then we will have utterly lost our system of checks and balances and be left with tyrannical power invested in the Presidency. That Obama is currently the President is entirely beside the point. The President will have attained Nixon’s dearest hope that if the President does it, it is not illegal, by the simple act of classifying any information that would reveal the illegality.
Whoa.
Walk back ten steps, cause you’re scaring the sh*t outta me.
Think about it: by 2004, the ‘government’ was a clusterf*ck of c-o-n-t-r-a-c-t-o-r-s.
How many people implementing the NSA stuff were civil servants? What proportion were civil servants…?
I don’t mean to descend into TinFoilHat territory permanently, and I’m not advocating storming anyone’s gates. But let me point out that in an era of contractors, unstable employment patterns, and the birth of the Internet (which as near as I can tell damn few in Congress really grasp from a purely technical perspective), what are the odds that someone(s) implemented it for their own purposes.
Look at the financial meltdown.
And if JohnJ is correct — and I’ve yet to see him be wrong — then wouldn’t it be a very tempting option for someone(s) whose primary alliance was not to the US Constitution to grab that infrastructure, then narrow the scope of the FISCt to **one** fooled judge in order to sign off on approval, and get whatever data they wanted?
Or, OTOH, maybe it was simply a case of new technology + new architecture + too many demands on people’s time + innocent misunderstandings leading to a clusterf*ck. If you look at the tasks involved, this is a viable argument: people get bad information and then make errors. However, in a constitutional framework the ‘feedback’ is supposed to identify and correct errors.
This appears to have been designed in order to ’streamline’ tasks, but in the process oversight, error tracking, and accountability went straight to hell.
Okay, I’m in EPU territory and don’t mean to abuse the privilege, but wow this whole thing just seems to get weirder…
127 – “we don’t think it WAS shut down in March 2004 (indeed, if al-Haramain was tapped on both March 11 and March 25, it was not shut down at all”
I think that since Leonig’s story was so early, she and Isikoff in his Palace Revolt story basically did the same thing, they both referred to the program being shut down, one by the Judge, one by Goldsmith/Comey – – but what we know now is that it was shut down only in the sense that it was no longer operated off of an AG signature and DOJ input.
They continued the surveillance while Comey et al worked on a way to make it “comply” with their concerns (which IMO were adequate tagging/tracking to keep them off perjury hooks with the FISCt, not additional protections for US citizens on US soil). This is why I wondered in an old thread’s comments, when you mentioned Gonzales signing off as WHCounsel, whether or not we knew he actually signed the doc (as opposed to someone like Hayden)
I thought I had heard that the interim went forward only on military signatures with the President’s but I can’t find that now and I may be wrong. IMO, if Gonzales did physically sign off, despite knowing that the program was going to be non-compliant with a Federal Court’s orders (the FISCt), then that may be a big part of why the OPR investigation was shut down. It’s one thing to argue about bad advice or how bad the advice was, but to have a lawyer with knowledge of a Court Order directing govt agencies to engage in activities that will violate that order – – that’s a pretty clear issue for OPR to deal with.
I tag that on to the later issue of whatever the emergency wiretapping was that Gonzales eventually authorized, after DOJ was supposedly spinning around and Clement and McNulty had both ducked out – and I wonder there if he authorized as emergency surveillance something that was the subject of a clear prohibition by the court in other proceedings. That would have been well after the OPR investigation was shut down, but IMO it might explain why Gonzales suddenly stepped down. That court has been tough and I have to wonder if the court took action against him for that authorization or threatened to if he was not replaced. Alghough that’s all going further afield I guess.
This also would be consistent with an inability to assure prospective employers & partnerships that one is not facing a threat to one’s practice status.
SSCI said very clearly that the authorization for this period was signed by WHCO AGAG. That’s also what Gellman reports. No reason to believe it was emergency, from teh descriptions.
Which means your follow-on thoughts are right on.
I was catching up on this thread later in the day and hit this.
Then it occurred to me that GWBush fired Rove **at church**. Wasn’t there some chat about Bush firing Rove in a church pew?
It’s not a clear recollection, and it’s not important enough to me to go look it up, but if anyone recalls… I remember at the time thinking something along the lines of, ‘Jeebuz, are they mimicking movieLife? Because if it were a thriller and you didn’t want anyone to overhear, you’d tell them in a location where they were unlikely to be…(I suppose ’surveilled’, or ‘listened in on’ is the correct term)?
Then I wondered how close together Rove and Gonzo left the WH, because I couldn’t recall.
Looks like Rove left around 14 Aug 2007: http://www.iht.com/articles/20…..assess.php
Looks like Gonzo left two weeks later, 27 Aug 2007: http://www.nytimes.com/2007/08…..zales.html
Now, IIRC, our hostess once commented that Gonzo had been to Texas the weekend before he resigned. And no clue where Gonzo and GWBush had their tete-a-tete over Gonzo leaving.
I don’t know that any of this info is relevant, and it doesn’t tie in to the timeline given here.
But what I **do** find intriguing is TheLongReachOfRichardCheney that is a potential factor. I got no inside info, and maybe I only watch shitty movies and read crappy books.
But I still remember thinking it was just weird that GWBush gave Rover his ‘marching orders’ in a church pew, partly because the irony was so rich. But WHAT IF GWBush was getting flipped out about being overheard? WHAT IF he had things to say that he didn’t want anyone to hear? But he thought that his safest means of talking was a church pew?
… okay, clearly I need to strive for higher standards in my entertainment consumption.
I don’t want to go OT.
And I don’t want to excuse GWBush for a microsecond.
But that timing is just weird.
And then about… a week or two later, that bizarre plane thing happened in Syria, which we still know nothing about. But after that incident, I do have a recollection of seeing GWBush at the podium talking to the press and Bush looked positively ill, his rhythms were strange, and he looked downright scared.
Hmmmmmm…
Wonder whether John Bolton, or Eliot Abrams, or Michael Chertoff were the ones limiting the FISA hearings to just ONE bought-off [or fooled] judge? We always blame Cheney, but he had plenty of minions who wouldn’t have turned a hair at the thought of ‘narrowing the scope’ of the FISA judges required for approval.
How much, really, did Bush know?
What scared him?
Why would a president fire his long-time right-hand-thug from a church pew?
Maybe I’m way off base, but this is all very, very weird.
Sorry to go OT if has has nought to do with the thread topic, but it’s ETU turf, so I’m taking liberties.
As for Gonzo, he was down in Texas acting very strangely and hanging out in rich neighborhoods. I’ve always thought it possible he might have been meeting with a member of the Texas mafia down there, and was given some hard choices, but I don’t know.
Keep in mind, though, that Gonzo was booted not long after Fred Fielding and/or someone at DOJ reported him for classification violations for sneaking his CYA after-report of the Congressional meeting and storing it in his briefcase. There’s always been teh sense that he was blackmailed out in some way, or hung out to dry, but I’m not sure by whom and with whose approval/disapproval.
The other thing abotu this, it always seemed like Bush was differently emotional between the two. He was acting like an asshole with Rove–like he did believe he had to go–but he also got all weepy. Whereas with Gonzo, he seemed genuinely frustrated that he had to go–like the Gonzo thing hadn’t been his choice. If any of that makes sense.
Yes, actually. It makes sense.
How Treasury fit into this mess I have no clue. But just to ‘make your day’, here’s a bit from Wikipedia on Snow**
So during the time of the illegal surveillance, John Snow was Sec of Treasury.
He left there to go to a hedge fund, Cerberus.
It then got into big trouble by overleveraging, but by fall 2008, Cerberus was able to access TARP money via its ‘ownership’ stake in Chrysler, despite the refusal of Cerberus to put up money to fix the auto company. (Forgive me, but this all puts me in mind of those vile, disgusting guinea worms; Cerberus resembles a parasite that then eats its host, and given the severe rattling of the US markets at present, that’s not a wild speculation.)
It’s interesting that hedge funds make their profits based on insider info. And surveillance would certainly provide it. (Just to be clear, I am NOT making any accusations, just brainstorming.)
Such a process would be easier with only one judge giving approval, rather than having to go through several.
Perplexing.
** Note: It’s Wikipedia, so take at face value.
135 – the firewall was to try to protect the FISCt and the FISCt orders that were being issued against the kind of problem that we have now.
Both Chief Judges, upon being briefed on “the program” thought that even under the fullest breadth the the President’s CIC powers, it was unconstitutional (a verdict echoed by the other judge to actually reveiw documents on the program, Judge Diggs-Taylor)
Especially with FISCt orders now being used for surveillance that the Patriot Act WAS going to allow to be used in criminal proceedings, here’s what the court was faced with – there was a program gathering information domestically that the court knew about and believed to be unconstiuttional. However, the court a) did not have a case in front of it; b) did not have an advocacy set up such that the issue could be addressed to briefing, argument and decision, and c) had no way of monitoring what was being done with the illegal, unconstitutional information.
But the court did know that it was already a court constructed of thin ice – and the Judges were sensitive to that problem. So while it could not order x,y & z with respect to the program, it could try to prevent FISCt orders from being issued based on unconstitutionally collected information, especially where the fruits of those orders were likely to be used for criminal prosecutions under the Patriot Act amendmetns.
But the court can issue orders binding on the lawyers appearing before it as to what is or is not allowed into the court and the manner it is allowed, substantive and procedural orders. So the firewall was the procedures the court put into place to prevent information from the unconstitutional program from going before a Judge who did not know about the program (that was the tagging issue, and requiring that for any entity surveilled under the unconstitutuional program, a FISCt application had to go to only the Chief Judge and had to be signed by the AG).
This put them in a position where they could, in the classified setting, exercise more due diligence (and shore up the firewall) by further requiring that the AG certify that no information in the FISCt application (for an entity that had been surveilled under the unconstitutional program) involved information from that illegal program.
If the FISCt issues orders of surveillance in reliance on information that was gathered unconstitutionally and where the DOJ suppressed the unconstitutional sourcing of the information, the orders should be void as authorizations. And the fruits of those orders …
Put all that in a setting where the court issuing the orders is a non-advocate based court and the defense, even though the legislation says the information from the orders can be used in criminal cases, NEVER has an opportunity to review the orders or challenge the constitutionality and legality and you put the whole court, already shakey, into a real star chambers setting.
Thanks for that clarification Mary, that helps a lot.
So it appears we once again find ourselves staring into the black hole of classified information that gives the Executive a lot of leeway to hide illegal conduct in plain view of members of Congress (Jello Jay’s letter in his safe) and the Courts (in this case) without any procedures in place to do anything to put a stop to the criminal behavior. We are in dire need of a thorough review of our system of classification and state secrets so that when such behavior comes to anyone’s attention, they have a way to immediately put a stop to it.
162 – you read my mind on the employment issues he’s having. Even for a dweeb, they shouldn’t be as significant as what he seems to be facing.
Mary, I watched a long video of a Sept/2008 conference in Andover, The Robert H Jackson Conference (torture and other crimes of BushCo). One of the panelists was Phillipe Sands. He stated that neither Gonzalez nor Jim Haynes had been able to secure employment. I hope every application they submit is stamped TERRORIST by the recipient.
Haynes was hired by Chevron as their General Counsel or Assistant General Counsel, so he is not having employment issues. Gonzo is another story.
164 – SMOOCH *g*
I like Obama fine, but I don’t trust him to do the right thing on this, so I am in push mode. I defend him (and Michelle’s arms) all the time on things that I think are defensible, even where I’m not 100% sold myself.
I tend to lose track of what I’ve rambled about and where, and sway back and forth between not wanting to keep harping shrilly on the same thing and detracting, and yet sometimes just assuming when I shouldn’t that someone knows what I am more cryptically talking about.
171 – do they also say Hayden? Or just Gonzales? In any event, that’s something that OPR could have fried him on, signing off on the program despite knowing it would proceed in violation of the FISA Ct orders or that anyone making a FISA Ct application during the period he was signing off was in danger of commiting perjury to the court.
No reason to believe it was an emergency
yep, but just so I am making myself clear, I did also drift on to a discussion of what happened when AG was AGAG, and the soldiers were kidnapped, and there was the “emergency” that supposedly stymied DOJ, and somehow McNulty and Clement couldn’t/wouldn’t be reached to sign off on an emergency 72 hour surveillance and they had to track Gonzales down …
I’ve always kind of believed that there was a good reason no one would sign off on that, either and that when Gonzales did sign off, he was doing so with full knowledge that his emergency authorization was in violation of existing court rulings or orders on surveillance. I kind of think the duo, the OPR shut out on investigating Gonzales (I always did think there had to be more than just bad opinions involved for them to shut it down so thoroughly) and then Gonzales signing off on something that the court believed he knew he couldn’t sign off on in good faith, may have prompted the FISCt to draw a line in the sand and that’s really the only thing I can think of that would account for him walking out when he did, since he had more pressure at other times and never lost thePresident’s support.
If the FISCt was going to refuse to take applications from the AG – that would have been big.
Nope. No Hayden. Just WHCOAG.
As to the emergency, I think it’s drational who has pointed out that happened on the day that Comey testified to SJC. Which explains a lot about the real source of the emergency.
165 – unfortunately no, that isn’t why the court was created. You’ve heard me mention crappy drafting on legislation more than once, and while the old FISA legislation is head and shoulders above what we have now, it still had some craptastic areas and this is one of them.
A legislatively created court, like the FISCt, can only do what legislation allows it to do. And most courts, including the Sup Ct, can only rule on actual “cases in controversey” that are within the court’s jurisdiction and ripe.
Here, the FISCt is not a court of general jurisdiction and authority. It can rule on whether or not to give out surveillance orders, and it can impose minimization requirements, but it have very little supervisory and enforcement powers in general and unlike Executive branch whistleblowers, there is not even an avenue for reports and communications with Congress, absent subpeona (and Congress seems to have been very reluctant to subpoena info from the court for its investigations)
So when Gov briefed the FISCt Chief Judge on the program (and I think there was reluctance to do this initially) there was nothing “filed” in court. There was no party before the court (Gov was not likely giving specific, by person, examples) and there would not be another interest before the court except for the application for a FISCt order of surveillance.
That’s why the court had to limit itself to that area of influence – it had no authority as a legislatively created special purpose court to act outside its parameters. And there is no one who is there to act on behalf of those being spied on who could have ripened this all into a case in controversey for a particular application.
All of which wouldn’t be as excessively bad if the FISCt orders were being limited, as per the original legislation’s intent, to ONLY be used in instances where the issue was SOLELY foreign intel and there was to be NO issue of using the info for domestic criminal actions, especially vis a vis US citizens on US soil.
This is where the infamous “wall” came into play and I have a hard time being as critical of the concept of “the wall” as most – I think the concept was dead on and the FISCt was correct in the “In re Sealed Case” where they ruled to basically uphold the concept of the wall and the appellate panel shot it down in an almost incoherent opinion.
The application of the wall might have been bad, but the concept was, imo, absolutely necessary to the FISCt having any constiutitonal validity. SO the Patriot Act changes, which now make gathering criminal evidence a major use of the FISCt orders, even where there is NO probable cause whatsoever, as long as they can bootstrap any ridiculous claim of intel gathering, I think should crater the court if there were ever a way to get a judicial reveiw and should make Congress ashamed. Very ashamed. Not just poor Russ Feingold out there actually reading the legislation.
So to ramble back to your question, no, the FISCt isn’t there to protect American interests and has very little power on that front. It is there to give an indicia of authority for intelligence based surveillance so that telecoms etc have a court order to rely upon (and of course, we now konw that it is not needed for that purpose, as neither the telecoms nor congress care if there are court orders for Exec branch surveillance or not) It has minimal power to prevent some of the worst abuses in cases actually before it. It has no general or inherent power to go handing out national security orders that are binding on gov absent applications to the court (that’s why the firewall was tied to applications to the court).
And now, with the revisions to allow for criminal evidentiary use, but still not advocacy optios in the court – it is just hard to believe it could be deemed a constitutional vehicle any longer.
Thanks again Mary.
So if I understand you correctly, we would all be well served to do away with the FISCt altogether.
Would we then want better legislation to craft a better version of FISCt, or would you prefer all cases involving classified information to work their way through the regular court system, taking advantage of in camera and ex parte procedures? Presumably in that way, a review could be done on a case-by-case and each-piece-of-evidence basis on whether proper warrants were obtained prior to any surveillance/gathering of evidence.
What would you suggest as the best remedy?
This is the most insightful discussion of the FISCt I have read in twenty years, the big picture that has gotten lost in the recent years’ need to cling to FISA because the alternative is vast lawlessness.
174 – Just Mr. Lonesome eh? That’s nice.
Yes indeedy. Secret courts are inherently problematic.
Rejecting the idea of secret courts makes one a real radical in this field of discussion, since they’ve been in place for so long.
One of the spooky things about so-called datamining is that most of it is probably hocum. In datamining, you are trying to treat an unstructured dataset that was created for some unrelated purpose as if it were a database created for your specific needs. You aren’t helped (or constrained) by the knowledge of the data set that governs more reliable database queries–its scope, record design etc. So any pattern is possible and, in practice, any pattern can be found and any assumption confirmed. It’s basically wish-fulfillment.
The well-known computer science maxim “Garbage in, garbage out” describes this situation. To get valuable output from data processing, you have to know a fair bit about your data and its quality. Data mining efforts are generally predicated on the idea you can get valid results from data you know nothing about, as long as you have enough. But “landfill in” does not alter the equation any. You just get a lot more garbage out.
The no-fly list is a prime example of wht happens when you go in for naive, dragnet approaches to data processing. If you assume that the appearance of a name in a data set indicates that a particular person is referenced in that data set AND that the same person may be referenced in other data sets, the no-fly list seems to be a great idea. You mine your records of terrorist activities for names, mine the airlines reservations databases for names, and cross-reference them. Bingo! You know if, where, and when a terrorist gets on a plane. Except that one of the names on your terrorist list is “Robert Johnson”, one of the most common male names in the US. All sorts of men, of all ages and appearances, get stopped everytime they get on a plane. The “pattern” that shows Robert Johnson flying all over the country in pursuit of his devious ends is completely imaginary. Meanwhile, Robert Johnson’s get groped andprodded and delayed every time they change planes.
Even more sophisticated pattern searches than the no-fly list are prone to such failures when the data set is large and not constrained by some already known, common features. Database admins know this. But the vendors that sell the systems to agencies and the managers that look at the output usually aren’t sophisticated enough or honest enough to recognize the dangers.
Moreover, most large, long-standing databases that I’ve actually seen are so riddled with inaccuracies, so prone to improperly crossing records that appear to have features in common (such as names), and so poorly designed that it is amazing that they remain useful for ordinary database work.
So I actually think that the whole illegal effort has probably left the scurity types even more ignorant than they were before.
Uff.
But I think it’s worse than that: I think the security types THINK that they know more, when in fact what they probably have is greater landfills of lower quality info.
But if that’s what they have, and they are being supervised, promoted, and rewarded on that basis… it gets scarier still.
I tend to be negative and skeptical about the capacities of the BushCheney crowd to interpret large amounts of data all that well, given the rising rates of cancers, their stupifying misuse (i.e., ignoring, miscounting, bad statistical analyses) of natural resources data, which over several phases and jumps ends up translating into public health information.
I don’t see how they could find a needle in a haystack. (Perhaps because Rummy insisted it was spelled ‘neidel’, and Cheney insisted on ‘kneedle’?)
Here’s hoping Obama knows how to use a great big powerful magnet to locate a needle in a haystack.
Well, that, and I suspect they worked backwards from Abu Zubaydah’s laptop, with an N of a couple thousand, to mine for patterns that they then claimed to be the patterns of terrorists. Which is how they started (per Russell Tice) targeting people who made their shorter than 2 minute calls to a pizza joint to order pizza.
177
This is all so sad and infuriating. You’re tougher than I would ever have been.
180 – I don’t think I have the depth to answer that, but I do think that a) there is an Executive power to conduct true foreign power surveillance and it not only should not be subject to a court order, but it involves lots of situations where a court probably has no jurisdiction to enter orders (which is why even old FISA carved out the warrantless exception re: foreign power to foreign power communications based on AG certifications and not FISCt warrants)
and
b)even for those situations, there needs to be some kind of oversight, bc having any surveillance that has no oversight means things that shouldn’t be done under those auspices will get funneled and hidden there
and
c) for surveillance involving US citizens on US soil, even if it is for solely intel purposes, I don’t have experience with anything better than court review for constitutional protections, but the courts really need broad powers and at least some kind of advocacy process and appellate process
and
d) where the surveillance has a criminal litigation component, it needs to be handled like a criminal warrant imo.
All of which isn’t very specific or helpful, but I do think there are lots of people out there smart enough to do this right – unfortunately the only legislation efforts we are hearing about involve going even more extreme and setting up secret courts to actually allow people to be disappeared for indefinite periods of time, to places were they can be abused at will and the fruits of that abuse used to continue their detentions.
So the conversation isn’t even out there for fixing the problems with FISCt that should be apparent from the fact that the Chief Judges could do nothing about the illegal program – instead, it’s about making sure the Maher Arars can stay holed away without there ever being any accountability. Without some control on the direction of the conversation, the solution isn’t going to be a good one.
186 – that very kind – it’s not all mine though, it’s been grafted from things I’ve read over time and unfortunately because of how its evolved, I can’t necessarily even give credit where it is due, but thank you on behalf of those who formed the thoughts first.
I may have missed it, but not a word about this important news on NBC, ABC, or PBS (Jim Leher) on today’s evening news.
Guess they don’t consider the rescue of our constitutional rights worthy of notice.
In light of the outstanding research & commentary provided thus far, I submit that all of the actions affiliated with the al-Haramain case have been taken to squelch / cover up / secure information that would otherwise prove too damaging to control. The Al-Haramain case brings together multiple elements of criminal associations that in one fell swoop provide for “smoking gun” evidence regarding the manipulations and masterful control of world finance and governance. This one case combines the definitive information needed to unite factual data regarding global terrorist finance arrangements and the incitement of global war, hidden money laundering, 9/11 mechinations, black market nuclear materials, and much, much more. The complete lock down of information attached to this case fulfills a requirement of protecting data links for global power brokerage that the PTB’s find much more compelling to protect than any constitutional rights or concerns the American public may have. Containment is paramount here, and a close look reveals a cover up strategy that makes Watergate look “bushleague” (pun intended).
Please review the attached link as regards the following concepts:
http://ftrsummary.blogspot.com…..chive.html
“Not only has the administration run interference for powerful Saudi interests (with which the Bush family and much of the rest of the GOP have important business and political alliances), but it has done so in such a manner as to utterly neutralize intelligence efforts at interdicting Al Qaeda operations. Furthermore, the administration and elements closely allied with it are deeply implicated in the active frustration of investigations into Saudi complicity in the financing of terrorism.”
And,
http://www.salon.com/news/feat…..index.html
“But the dilemma, for the Bush Administration, extends far beyond issues of history. Many prominent politicians—not least among them the Bushes—have for years maintained close political, business, and personal dealings with the Saudi royal family and, more generally, Saudi interests.
Among the reasons for the blunting of the Green Quest inquiries is the fact that the funding conduits that nourished Al Qaeda had their genesis during the Reagan administrations and the first Bush administration. Those Islamic charities and businesses that lent financial support to Bin Laden’s cadre had earlier served to fund the Afghan mujahadeen fighting the Soviets in the 1980’s. “Part of the Bush Administration’s reluctance to confront the Saudis over terrorist financing may have less to do with embarrassing a key ally in the Middle East than with embarrassing the United States itself. Cracking down on IIRO and MWL, for example, would threaten to expose not only Saudi support of terrorism but also America’s own role in helping to create what would eventually become part of Al Qaeda’s funding network. During the 1980’s, the United States actively promoted the use of these and other Islamic charities as part of a joint U.S.-Saudi effort to fund the Afghan mujahedeen in their fight against the Soviet Union.” ~~~EDITED HERE FOR LENGTH~~~ (Ibid.; p. 82.)
And,(same link)
“In the days after 9/11, Bush signed an executive order giving the Treasury Department the power to blacklist individuals and organizations believed to be supporters of or “associated with” terrorists. The order specifically gave Treasury the power to blacklist and freeze the assets of people in the United States entitled to rights under the Constitution — even before those people are accused of any crime. The dangers of the process were noted in 2004 by the National Commission on Terrorist Attacks Upon the United States, better known as the 9/11 Commission. Using the 1977 law against domestic organizations, the commission warned in a 2004 report on terrorist financing, “raises significant civil liberty concerns because it allows the government to shut down an organization on the basis of classified evidence, subject only to a deferential after-the-fact judicial review.” That proved to be a prescient concern.”
Also, bipartisan cooperation to make this all go away under the guise of national security secrecy because so many powerful persons are involved…
http://www.commongroundcommons…..96334.html
“Well, there’s no question in my mind that there is an obvious level of collusion here. We now know that Democratic leadership knew about the illegal surveillance program almost from its inception. Even when they were campaigning about fighting for civil liberties, they were aware of an unlawful surveillance program as well as a torture program. And ever since that came out, the Democrats have been silently trying to kill any effort to hold anyone accountable because that list could very well include some of their own members.”
Finally, and maybe most importantly…
http://www.counterpunch.org/feingold07092008.html
“In other words, when a President argues that he has the power to violate a specific law, he is on shaky ground. That’s not just my opinion – it’s what the Supreme Court has made clear. No less an authority than the current Chief Justice of the United States, John Roberts, repeatedly recognized in his confirmation hearings that Justice Jackson’s three-part test is the appropriate framework for analyzing questions of executive power. In early 2006, a distinguished group of law professors and former executive branch officials wrote a letter pointing out that “every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute.”
The Senate reports issued when FISA was enacted confirm the understanding that FISA overrode any pre-existing inherent authority of the President. The 1978 Senate Judiciary Committee report stated that FISA “recognizes no inherent power of the president in this area.” And “Congress has declared that this statute, not any claimed presidential power, controls.”
If Congress short-circuits these lawsuits, we will have lost a prime opportunity to finally achieve accountability for these years of law-breaking. That’s why the administration has been fighting so hard for this immunity. It knows that the cases that have been brought directly against the government face much more difficult procedural barriers, and are unlikely to result in rulings on the merits.”
~~~ModNote: In order for FDL to remain within FairUse copyright guidelines, excerpts must be about 200 words (the edited excerpt above was nearly 400). Please keep them shorter, and they will be perfectly fine. Thank you.~~~
A possible solution….
EWs post and having Mrs. Belew and Nelson comment helped crystalize my thinking, as did Mary’s link to the WaPo article.
The mysteries to me are:
1. Why would they continue wiretapping on 3/11 and 3/25/04 when “the program” was “shut down” by Comey’s palace revolt?
2. Why did the al-Haramain lawyers get sent the log?
3. Why the fight to keep quiet, even from Judges King and Walker?
The helpful evidence:
1. A FISA warrant would not have necessarily been disclosed to plaintiff at this point (comment @179).
2. The al-Haramain lawyers were initially convinced the log was sent purposefully, based on other data Mr. Belew cannot discuss (comment @ 139; I suspect that the other data is listing the log on a facepage or appendix as is common for legal attachments, suggesting that more than one person knew of its inclusion in the mailing rather than being slipped in by one whistleblower).
3. The existence of parallel track FISA warrant processes.
Putting things together:
1. “The Program” was applied to al-Haramain before February, 2004. warrantless wiretapping was used to gather evidence that led to the February raid.
2. Because “The Program” was used, the FISA application should have been Firewalled (tagged) to the Chief FISA judges, so that the illegally obtained data not serve as the basis for the FISA warrant for the raid and subsequent WARRANTED wiretapping.
3. But the FISA application did not get appropriately tagged, and as such later review would reveal that it was a fatally flawed warrant and perhaps was even “withdrawn” or otherwise invalidated by the FISA court:
4. Before the flaw was discovered, warrant-based wiretapping continued.
This is why they kept wiretapping on March 11 and 25, 2004 while “The Program” was shut down. They had a FISA warrant.
This is also why treasury sent the log. Firstly, the log contained only post-raid wiretaps (post warrant), but we surmise from this post and thread that they were likely tapped before the raid as part of The Program. Treasury thought the log documented warranted and perfectly legal wiretapping. Treasury had been compartmentalized out of the knowledge that al-Haramain had previously been illegally wiretapped.
5. Now why the Government delayed getting the log back:
They required the wiretapping to reveal that the log had been sent. The FBI found out by eavesdropping and reported back to whomever was controlling the case.
6. Significance:
The warrant that allowed the raid/wiretapping is bogus and was either revoked in the time between the wiretaps and lawsuit, or cannot be relied upon by the government because it was produced using illegal data.
As such, discovery of the warrant problems in this case would severely damage the FISA COURT ITSELF. If the Firewall failed in this case and illegal information was used to warrant the wiretapping outlined in the al-Haramain log, then how many of the thousands of FISA warrants written during the Bush Administration could have similar problems.
That the FISA court could have been manipulated so grossly really undermines Law and Order.
I understand why there has been and is so much effort to squash this case:
Criminal Prosecutions of Terror Suspects could be devastated by exposing the games that were played in obtaining FISA warrants.
Here’s another strange thing. During a visit to staff of the Senate Banking Committee we presented them with a package of support material that contained the document. Remember, at this point we believed that it was not classified and that it was – for reasons I cannot go into – supportive of our client’s position. One of the staff members reacted strongly to the document, stating that he had heard about its release and that the release was a screw-up. I find this odd for a number of reasons. I worked on Capitol Hill for a number of years (chief counsel to a House committee) and it was unheard of for that sort of gossip to reach Hill staff, even senior staff. Admittedly, things had gotten pretty sloppy by the Bush years. One of the staff members at this meeting had just gotten back from Iraq. (Bush was recruiting Hill staff with the proper ideological credentials to go to Iraq for a few months to ensure that the country did not do things such as adopt a progressive income tax. Stuff like this led to the disaster the Rajiv Chandrasekaran described in Imperial Life in the Emerald City.) There was a coziness between the Bush administration and Republicans on the Hill that was not typical of relations between the While House and Congress even during periods of same party control.
There are several possibilities:
1) I misunderstood what he was saying. Wouldn’t be the first time. The most likely explanation.
2) The staffer had been told about the release – maybe as part of infighting at the Treasury, with one bureaucrat pointing to another’s mistake.
3) The staffer was making it up. Also a plausible explanation. He was clearly hostile to our position and may have wanted to engage in a bit of ad hominem.
I passed this along to Patrick Keefe for his piece in the New Yorker. The staffer denied that he had ever met with us.
Was that meeting with Senate banking committee staff in the fall of 2004, or after the 2004 elections (in 2005)?
I would have to look up the exact date, but it would have been before the elections and before we were asked to give the documents back.