The FISA Dance in the Wake of 9/11

Looseheadprop asks some good questions about the September 25, 2001 opinion on FISA David Kris requested from OLC.

Now that the Obama Administration has released this opinion (as well as others–see more FDL coverage from Christy and emptywheel), the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?

The question Kris asked, 

You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act. . . so a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, FISA requires that "the purpose" of the search be the collection of foreign intelligence.

… presents a ready answer for the timing. After all, Congress made almost precisely this change when it amended FISA as part of the PATRIOT Act, which got rushed through Congress from October 23 to October 26, 2001 ("the purpose" became "a significant purpose").

Change in certification requirement for electronic surveillance and physical searches under FISA from “the purpose” being gathering of foreign intelligence information to “a significant purpose” being gathering of foreign intelligence information.

Under Section 218, Sec. 104(a)(7)(B) and Sec. 303(a)(7)(B) of FISA, 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) respectively, are amended to strike “the purpose” and to replace it with “a significant purpose.” As amended, under Sec. 104(a)(7)(B), in an application for a FISA court order authorizing electronic surveillance, a national security official must certify that “a significant purpose” of the surveillance is to gather foreign intelligence information. Similarly, in an application for an order authorizing a physical search under FISA, a national security official must certify, under the amended Sec. 303(a)(7)(B), that “a significant purpose” of the search is to gather foreign intelligence information. This has been interpreted to mean that the primary purpose of the electronic surveillance or physical search may be criminal investigation, as long as a significant purpose of the surveillance or search is to gather foreign intelligence information.

And the admission in the memo that "most courts have adopted the test that the ‘primary purpose’ of a FISA search is to gather foreign intelligence" may be the reason the PATRIOT Act ultimately included the modifer "significant" on "purpose." Thus, it seems that Kris was using this memo to prepare more general changes to FISA to make it easier to use intelligence information in criminal prosecutions (as LHP points out).

The FISA Dance Timing

But since LHP has raised the question of timing and Yoo’s larger project, consider this timing.

September 12, 2001: AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

September 18, 2001: Bush signs AUMF.

September 25, 2001: OLC provides memo to David Kris on "a purpose" language for FISA.

October 2, 2001: Predecessor bill to PATRIOT Act introduced into House.

October 3, 2001: 15-day exception in FISA after declaration of war expires.

October 4, 2001: Still-unreleased OLC memo for Alberto Gonzales on "what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists." Warrantless wiretapping program authorized. Predecessor bill to PATRIOT Act introduced into Senate.

October 6, 2001: Warrantless wiretapping begins.

~October 7, 2001:  Technicians discover the program; FBI worries that it violates the law.

October 21, 2001:  Ashcroft writes Mueller to reassure him that "certain intelligence collection activities are legal and have been appropriately authorized."

October 23, 2001: PATRIOT Act introduced into Congress by James Sensenbrenner.

October 23, 2001:  OLC provides memo Alberto Gonzales and Jim Haynes eviscerating the First and Fourth Amendments–partially to justify illegal wiretapping–even as PATRIOT moves to the House.

October 26, 2001: Bush signs PATRIOT Act.

November 2, 2001: Still-unreleased OLC memo for Ashcroft on "legality of communication intelligence activities."

Golly. It’s as if they simply didn’t get that First-and-Fourth-evisceration in time to submit to Congress, isn’t it? As if by magic…

And all the more troubling given the extensive attention Yoo pays in his October 23 memo–but not his September 25 one–to the Article II powers that vest in cases of exigencies. Even while Yoo was grabbing power for the President by arguing that there was an emergency that meant the President had to act on his own, Congress was rushing legislation through Congress that directly modified some of the same things Yoo wanted to do with this later memo, thereby proving that the President didn’t have to act on his own.

And consider how the memos work together. The Kris memo–written to a top DOJ official–basically argues that:

  1. The standard for "reasonable search" under the Fourth Amendment is probably lower because of 9/11.
  2. In any case, Courts have allowed some leeway for how much the purpose of surveillance may be criminal in nature under FISA.
  3. After admitting that "the courts have been exceedingly deferential to the government" on FISA warrants, the memo then goes on to argue that since the FISA court is a "neutral magistrate" that "still remains an Article III court," so long as the FISA Court said an application of FISA was permissible, that was enough.

It certainly exploits all the leeway in the FISA system, but still fundamentally defends the value of the judicial review for warrants for wiretapping in the United States.

The Tom Daschle Problem

But that leaves the problem of how you expand the application of wiretapping that evades FISA to the United States.

Which is one of the things October 23, 2001 memo does. It solves the Tom Daschle problem.

You’ll recall that the Bush Administration had changing rationales for how the President could ignore FISA. First it was AUMF, then inherent powers that exempted him from FISA, and after the program was exposed, it was AUMF again. 

Shortly after the Bush Administration reverted to the AUMF again in 2005, Tom Daschle wrote an op-ed making it clear that Congress specifically refused a last minute attempt to gain war powers within the US.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

We didn’t know it at the time, but in 2001, Bush asked for broad powers to use the military in the US. But the Bush Administration knew it. They knew that the legislative intent of the AUMF specifically stopped short of letting them use military power in the US. And that prevented them from doing some things they wanted to do.

So they wrote this memo. This memo–among other things–eliminates the Tom Daschle problem (that is, the legislative intent that refused them this power). It does so by:

  1. Giving the War Powers Resolution–with its clause naming "a national emergency created by attack upon the United States"–precedence over the AUMF.
  2. Pretending the language "protect United States citizens both at home and abroad" did what Congress refused to do, give the President power to operate in the US.
  3. Citing the Posse Comitatus Act’s exception in circumstances "expressly authorized by … an Act of Congress."
  4. Arguing that Posse Comitatus only prohibits the use of the military for law enforcement purposes, but not the use of the military for military purposes.

Warrantless wiretapping under NSA, of course, is part of DOD and as such military. And the memo to Kris–which ostensibly only authorized the sharing of intelligence with law enforcement and vice versa–had the effect of blurring the lines between law enforcement and intelligence. So with this memo–sent to Alberto Gonzales and Jim Haynes but probably compartmented from people in DOJ whose eyes would pop at this reasoning–takes the blurred lines created in the Kris memo and blurred them much, much further.

And Yoo even cites the earlier memo to defend this blurring of the lines.

We have recently reviewed and proposed amendments to [FISA].

[snip]

Distinguishing between "law enforcement" and "foreign intelligence" seems, if anything, more difficult than distinguishing between "law enforcement" and "military" functions. Yet the FISA courts seem to have found little difficulty in applying the statute’s "purpose" test. This, we believe, reflects the care and circumspection with which the executive branch itself reviews and prepares FISA applications, and the courts’ justified confidence in the executive branch’s self-monitoring. Likewise here, we believe that the courts will defer to teh executive branch’s representations that the deployment of the Armed Forces furthers military purposes, if the executive insitutes and follows careful controls.

After Affirming Neutral Magistrates, Now Eliminating Them

Which is where we come full circle. The memo to Kris has claimed the 4th Amendment could be limited under the circumstances, but even while it did that, it pointed to the role of the FISA Court in measuring how to interpret "reasonable" under the given circumstances. But having argued the military could operate on US soil, Yoo now calls judges a big hindrance.

In our view, however well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy.

[snip]

It also seems clear that the Fourth Amendment would not restrict military operations within the United States against an invasion or rebellion. Were the mainland of the United States invaded by foreign military forces, for example, our armed forces must repel them. Allowing the Fourth Amendment, in general, to constrain their efforts would interfere with the Government’s higher constitutional duty of preserving the nation and defending its citizens. Our forces must be free to "seize" enemy personnel or "search" enemy quarters, papers and messages without having to show "probable cause" before a neutral magistrate, and even without having to demonstrate that their actions were constitutionally "reasonable."

Note the scare quotes around "seize," "search," "probable cause," and "reasonable." I can’t decide whether Yoo has done that because he knows this language will be appropriated for more than physical searches–that is, it’ll be used to cover things like the search of email servers. Or whether he has done it because, fundamentally, he (or Addington, whose work this feels like) simply disdains the Fourth Amendment altogether.

Nevertheless, in the span of a month, Yoo has gone full circule. First blurring the lines between intelligence and law enforcement. Then, blurring the lines between military and law enforcement. But ultimately, in doing so, going from endorsing the importance of a judge in one opinion to–just weeks later and after the response of Congress proves the relaxation of the exigency that Yoo used to rationalize the later opinion–arguing that the review of judges is simply a hindrance to the Executive’s execution of its duties.

Note: the last section of this was changed after the post was first posted. And I’ve since made additions to the timeline and other parts of this post for clarity.

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82 replies
  1. WilliamOckham says:

    A question and a comment.

    Where did you get the Oct. 6 date for the start of the warrantless wiretapping?

    I would include in this discussion the FBI discovery of the wiretapping (sometime around the middle of October) and the subsequent letter from Ashcroft to Mueller saying that the wiretapping was legal (Oct. 21). It seems to have added some pressure to the effort to come up with covering memos.

    • earlofhuntingdon says:

      It would be interesting to explore just what “wiretapping” these key players knew about and thought was legal. I suspect Addington and Haynes, for example, knew more than Gonzales, who knew more than Yoo, who knew more than Ashcroft. Ashcroft blithely assumed in his post-9/11 fervor that he’d been told what he needed to know. He put his name to certifications when the facts might well have been different than he’d been led to believe. (Either because he assumed and didn’t ask, or because Yoo went round him, or because he wrongly omitted material facts.)

      Before Ashcroft got fat and happy on Wingnut work, like overseeing outsourced oversight of federal hand-slaps in lieu of criminal penalties for corporate wrongdoing (apparently very lucrative, a golden gag), he was more vocal about suggesting he hadn’t been kept in the loop. Comey-at-the-hospital-bed was an exception, not the rule for Bush’s gelded DOJ.

    • Hmmm says:

      Where did you get the Oct. 6 date for the start of the warrantless wiretapping?

      FWIW Qwest was approached about getting this started significantly earlier, as in Feb/March 2001.

    • emptywheel says:

      That’s from Gellman, which he cites to Hayden testimony (I suspect it was his confirmation hearing, btu I wasn’t able to find a link quickly last night).

      Do you have links for those?

      • WilliamOckham says:

        I had them at one point. I’ll see if I can dig them up. The story of the FBI finding the wiretaps was in the NYT, I think. I sure wish I had searchable electronic copies of Gellman’s Angler, Mayer’s The Dark Side, and a couple of other books….

        • Nell says:

          sure wish I had searchable electronic copies of Gellman’s Angler, Mayer’s The Dark Side…

          OT but is that a feature of books on Kindle?

          • WilliamOckham says:

            You are correct. And, what’s even better, they just released an iPhone/iPod Touch app for Kindle books. I just sent a sample chapter of Gellman’s book to my iPod Touch. I’ll report back on how well it works….

          • WilliamOckham says:

            The iPhone Kindle app has bookmarks, but no search. Anybody own a Kindle? Does it have search?

  2. foxman says:

    Marcy,
    Brilliant thinking here though I don’t understand all of the implications.
    What strikes me (after reading this post) is that this info is being released in a very purposeful manner by people that DO understand the whole story. Sort of like “Deep Throat” pointing the way to unearthing the Nixon crimes.
    Not giving away the whole story, but pointing out the milestones. Instead of “follow the money” it is “follow the [Yoo & Co] opinions.”
    Thanks for your work on this (LHP and Christy too.)
    Maybe sometime soon we’ll have the whole story (or at least some smoking guns.)
    “All the President’s Men” redux.

    • emptywheel says:

      No, nobody understands this all yet.

      These were released together bc of Bradbury’s declaration. They didn’t release the October 4 memo, which would be critical to thi. And the folks in COngress’ intell committees, at least, are still absorbing this just as we are.

  3. veforvendetta says:

    I thought you were going to follow your initial line of logic and scrutinize the timeline. Many of us who do not believe the government’s account of 9/11 point out that it took the [inept] Bush Cabal just a few (6) weeks to draft the voluminous Patriot Act. It was as though much of the document was already envisioned by the criminal Administration. To lay the foundation for the civil liberties they intended to violate, the sympathetic OLC was tasked to provide legal cover for the crimes.

    • robspierre says:

      Actually, I think that the way things unfolded after 9/11 confirms that 9/11 was unexpected as far as the Bush junta was concerned. Much of the stuff in the various timelines suggests rushed improvisation as events outran the plan. That Bushistas were in the process of preparing the rationale for their coup seems beyond doubt at this point. But I think 9/11 came too soon, forced their hand, and forced them to move faster than planned.

      Notice the hurried, inconsistent, constantly changing feel of these opinions–I’m a literary critic and writer, not a lawyer, and the stuff has all the marks of stuff written late at night in an attempt to get back on schedule.

      Also, notice the crudeness of the supposed linkages between 9/11 and Iraq that the Bushistas trotted out. Even they could have done better, given time. Like most people, I suspect that Iraq’s supposed WMD was the planned casus belli for the War on Terror and the subsequent Beelzebublican coup. But I imagine that plotters planned to build up to things with a media campaign like that for Gulf War I (remember the imaginary Kuwaiti preemies dying on cold floors?). 9/11 happened before they were ready and they were forced to use it or lose the opportunity altogether. The fact that the attack came from a quarter that they didn’t expect and found deeply embarrassing–their Saudi friends and old CIA playmates–was something that they just couldn’t finesse when working out the PR for the coup. But having two provocations from totally different directions was too much to claim. So 9/11 and Iraq were roughly conflated.

      I likewise have to believe that the aims of the OLC memos would have been pursued more publicly, more plausibly, and with more Madison-Ave/K-Street finesse had there been time.

      Who knows? 9/11 may have saved our democracy.

  4. earlofhuntingdon says:

    Yoo chose to blur the lines as a political act. He couldn’t rewrite the laws: the Constitution, PCA, the requirements for declaring martial law, etc. So he jumbled definitions, ignored binding precedent, made the world a war zone and all circumstances exigent. He bootstrapped one error or omission to justify a further one, and so on.

    He knew better, he chose a method to achieve an end: to be able to tell Haynes, Gonzales, Addington and Cheney that the “law” allowed them to do what they wanted, in part because he knew or suspected they were already doing it. That was part of the exigent circumstances that applied personally to Yoo.

    It’s what good aparatchiks do. It wasn’t lawyering, but then, he knew that. And so does everyone else now, too. One reason he’s enjoying California’s Orange County instead of the northern California chill hovering over the hills of Berkeley. It’s full of DFH’s anyway.

    • emptywheel says:

      Right.

      And one thing I’d add.

      Though Bradbury has claimed the Kris memo wasn’t support for the later warrantless wiretap program (which it couldn’t be bc it affirmed the role of a neutral magistrate), that one was probably a less close hold than the other one.

      So he says one thing to Kris, and another to Gonzales and Haynes, and compartmentalizes access to the latter so no one can challenge it or cop on.

  5. GregOPauls says:

    you will never know who was apprehended and or stopped by these wire taps. You are safer because that had the ability to locate these bad people and put a stop to their behavior. Of course the date mentioned for illegal wire taps is made up, but what the heck only a blog.

    • R.H. Green says:

      “The dates for the wiretap is made up”
      Now how would you know that? Indeed if it were not made up, but simply incorrect, how would you know that as well?

  6. plunger says:

    “How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?”

    Again, questions like these answer themselves, when one allows his or her logical mind to overcome the brainwashing.

    To be clear – these are the facts:

    A. The warrantless wiretapping commenced months prior to 9/11.

    B. The September 25, 2001 memo was all researched well in advance of 9/11.

    C. The Patriot Act was written before 9/11.

    D. The Anthrax attacks against political opponents and media heads was planned/scripted prior to 9/11.

    E. ALL of the legal strategies and arguments/justifications made by Yoo were strategized and crafted before 9/11, complete with a script that advised Addington when and how to request opinions of Yoo, and advised Yoo when and how to respond.

    F. The oil fields of Iraq were being offered up by Cheney to the various oil executives in secret meetings before 9/11.

    G. US and British troops were positioned to invade Afghanistan before 9/11.

    9/11 was scripted prior to Bush ever taking office. That’s why the CFR/NWO had to steal the election. Ken Lay and GHW Bush were in on it from the outset, as was Raytheon, Israel, the CFR/Rockefeller, etc. When Bush referred to Turdblossom as “The Architect,” he was referring to the 9/11 narrative and all of the brainwashing (including fake terror scares) that has followed.

    As for the Daschle Problem:

    The Bush administration requested, and Congress rejected, war-making authority “in the United States” in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today’s Washington Post.

    Daschle’s disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency’s warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.

    And then…a few weeks later…

    W A S H I N G T O N, Nov. 1
    A group of military scientists is feverishly examining the microscopic spores of anthrax sent to Sen. Tom Daschle for clues to a mystery that could have profound implications for the United States and its ongoing war on terror: Who made it?

    The anthrax lead RIGHT BACK to the same place the 9/11 funding eventually lead back to: the bowels of the US government. It was PROVEN by the FBI that the anthrax originated from a secret army lab in Fort Dietrich Maryland. Funny how the White House was put on Cipro on 9/10 by the same guy (Jerry Hauer) who sent FBI agent John O’neil to die in the towers.

    That’s the same Jerome Hauer who just happened to be available to explain the government’s 9/11 narrative to Dan Rather on live television just a couple hours after the planes struck,

    Conspiracy Flashback to the Ford Administration – and look who is running the ANTHRAX coverup…

    http://www.frankolsonproject.o…..choke.html

    If you’re ready to connect ALL of the thousands of dots and discuss the facts – with a completely open mind – without attacking the messenger, start here.

    • i4u2bi says:

      There were no traitors in the Bush Administration and they are all completely innocent of any conspiracy to circumvent democracy. Just ask Christy. Be careful not to choose violent sounding words..like rope.

  7. plunger says:

    3 years prior to 9/11, the would-be head of the 9/11 Commission, Philip Zelikow, foretells the future:

    http://www.informationclearing…..e17078.htm

    Attack On The Golden Mosque; truth or psy-ops?

    The Bush administration is very serious about controlling information. That’s why they launched the Pentagon’s Dept of Strategic Information. The military is now deeply engaged in “full spectrum dominance” of all information technologies.

    Consequently, “controlling the narrative” is more important than one might think. Propaganda is the cheapest and most effective way to control public behavior. The growth in public relations illustrates the importance that political leaders put on managing perception in a way that compels the masses to conform to an elite agenda. That’s why the administration has spent zillions on PR campaigns and inserted themselves into every area of human communication. They are forever looking for the right combination of patriotic and religious imagery that will get the public to march along in harmony.

    The Bush administration has made some notable contributions to the traditional propaganda-paradigm. In fact, former Counselor at the State Dept, Philip Zelikow, (who was also executive director of the 9-11 Commission and author of the National Security Strategy NSS) is an expert in “the creation and maintenance of ‘public myths’ or ‘public presumptions’, which he defines as beliefs thought to be true although not necessarily known to be true with certainty, shared in common with the relevant political community (sounds like Rumsfeld)….He has taken a special interest in ‘searing’ or ‘molding’ events that take on ‘transcendent’ importance and, therefore, retain there power even as the experiencing generation passes from the scene”. (“Thinking about Political History” Miller Center report; winter 1999)

    “Searing’ or ‘molding’ events that take on ‘transcendent’ importance”?!? Like 9-11, for example?

    In the Nov-Dec 1998 issue of Foreign Affairs he co-authored an article called ‘Catastrophic Terrorism’ in which he speculated that if the 1993 bombing of the World Trade center had succeeded:

    ‘the resulting horror and chaos would have exceeded our ability to describe it. Such an act of catastrophic terrorism would be a watershed event in American history. ‘It could involve loss of life and property unprecedented in peacetime and undermine America’s fundamental sense of security, as did the Soviet bomb test in 1949. The US might respond with draconian measures scaling back civil liberties, allowing wider surveillance of citizens, detention of suspects and use of deadly force. More violence could follow, either future terrorist attacks or US counterattacks. Belatedly, Americans would judge their leaders negligent for not addressing terrorism more urgently”. (Wikipedia)

    The previous paragraph is certainly worth rereading 2 or 3 times KEEPING IN MIND THAT ZELIKOW’S ARTICLE WAS WRITTEN IN 1998!?! 3 YEARS BEFORE 9-11!

    Where, one might ask, did Zelikow get his crystal ball?

    Zelikow correctly assumed that if a “catastrophic” event were to take place in America, it would trigger a massive revaluation of all our ideological commitments; “civil liberties, surveillance of citizens, detention of suspects and use of deadly force”.

    History would be divided into “pre 9-11 and post 9-11.” And, all the restrictions on presidential power, inalienable rights, and aggressive war could be swept away in an instant.

    Isn’t this the exact blueprint for what is taking place right now? What part of Zelikow’s dark-vision has not been actualized?

  8. JimWhite says:

    I agree with plunger that Daschle’s refusal to grant the language change certainly added to his being targeted in the anthrax attack.

  9. emptywheel says:

    I totally tweaked the ending of this, to add this, which I was too tired to add last night:

    After Affirming Neutral Magistrates, Now Eliminating Them

    Which is where we come full circle. The memo to Kris has claimed the 4th Amendment could be limited under the circumstances, but even while it did that, it pointed to the role of the FISA Court in measuring how to interpret “reasonable” under the given circumstances. But having argued the military could operate on US soil, Yoo now calls judges a big hindrance.

    In our view, however well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy.

    [snip]

    It also seems clear that the Fourth Amendment would not restrict military operations within the United States against an invasion or rebellion. Were the mainland of the United States invaded by foreign military forces, for example, our armed forces must repel them. Allowing the Fourth Amendment, in general, to constrain their efforts would interfere with the Government’s higher constitutional duty of preserving the nation and defending its citizens. Our forces must be free to “seize” enemy personnel or “search” enemy quarters, papers and messages without having to show “probable cause” before a neutral magistrate, and even without having to demonstrate that their actions were constitutionally “reasonable.”

    Note the scare quotes around “seize,” “search,” “probable cause,” and “reasonable.” I can’t decide whether Yoo has done that because he knows this language will be appropriated for more than physical searches–that is, it’ll be used to cover things like the search of email servers. Or whether he has done it because, fundamentally, he (or Addington, whose work this feels like) simply disdains the Fourth Amendment altogether.

    Nevertheless, in the span of a month, Yoo has gone full circule. First blurring the lines between intelligence and law enforcement. Then, blurring the lines between military and law enforcement. But ultimately, in doing so, going from endorsing the importance of a judge in one opinion to–just weeks later and after the response of Congress proves the relaxation of the exigency that Yoo used to rationalize the later opinion–arguing that the review of judges is simply a hindrance to the Executive’s execution of its duties.

  10. Loo Hoo. says:

    Good for Daschle. Really good. I wonder why they wanted to be able to use the military within the US. I wonder if the military would have complied.

  11. emptywheel says:

    Loo Hoo

    The whole point is that they HAVE been using the military in the US.

    Remember, NSA is part of DOD. So all the discussion above about the necessity for the military to do searches that otherwise would need a warrant? That’s the justification for the warrantless wiretap program.

    • Loo Hoo. says:

      Okay. Duh. I’m just here to ask stupid questions. (Wish some of the lurkers would join me in my quest.)

      I guess I was thinking of soldiers on the streets of NYC.

      • emptywheel says:

        Not a stupid question at all. I went back and tried to make this more clear in the post.

        That’s why–for example–they may have scare quoted those search and seizure terms. I’m sure they did envision using the military in teh US to do more than wiretap. Obviously, the shootdown scenario was one Cheney had already broken the law on on 9/11–and this opinion may have partly been written to retroactively make what he did legal.

        But a very significant part of this was to give them carte blanche to use NSA in fairly unlimited form, including, I suspect, searching the contents of entire email servers to see what the terrorist needles in that haystack were doing.

        And that’s also why the blurring of military/law enforcement/intelligence is so insidious, bc NSA really is at that blurred line, and as they went forward, they seemed to use whatever definition they wanted as served their purpose at any particular time.

  12. Nell says:

    That timeline for the PATRIOT Act isn’t quite right, I don’t think. The bill that was actually passed was introduced that closely to passage and signing, but the first version had hearings, at which Conyers succeeded at attaching sunset provisions.

    I remember writing an angry letter to an AP congressional reporter who characterized Congress’ treatment as “foot-dragging” when it was, if anything, a railroad. However, it wasn’t a three-day railroad. Congress was in the middle of considering the PATRIOT Act when the anthrax attacks cleared the Senate building, etc. I believe the first appearance of the bill was during the last full week of September, Sept. 25 or 26.

    • emptywheel says:

      Ah, there you are–that makes even more sense.

      They introduced the first bill on October 2.

      THen did an memo to justify wiretapping on October 4, and started wiretapping on October 6.

      But when Yoo released teh October 23 memo, the bill had not yet passed, so he could still claim exigency (of course he woudl have anyway).

  13. Nell says:

    This supports my memory. EFF and the ACLU and others were frantically doing analysis on draft legislation. In the event, there was a lot of underhandedness: switching the contents of bills, so that the one voted on by the House wasn’t the same one that had been sent out by Conyers’ and Sensenbrenner’s committee, cutting off media coverage of hearings, etc.

    But the process began (drafts put out that civil liberties groups were analyzing) only a little more than a week after the attacks, Sept. 18 or 19.

  14. KiwiJackson says:

    Off your topic. I still read several newspapers online from when our family was following the United States attorney firings scandal so closely, and this jumped out at me yesterday evening. The article includes a ten minute clip from the upcoming doc on the firings.

    In new film, ex-U.S. Attorney Iglesias says Alberto Gonzales lied under oath
    http://newmexicoindependent.co…..under-oath

  15. Mary says:

    Coupla things

    1. Notice with all the references to “enemy” the overweaning importance in all these opinions of the fact that, with respect to US citizens, Scalia’s dissent in Hamdi focused on the fact that a US citizen deserved his Bill of Rights protections to defend against the accusation of being an “enemey” i.e., that this was not something where the Executive branch made the final declaration, at least not while courts were open and operating.

    2. Something you might want to include on the timeline (or a timeline rather) is this:

    http://www.fas.org/irp/congres…..baker.html

    This is a prepared statement to the Senate Intel committee, given by James Baker (not THAT James Baker) about FISA and changes in the Patriot Act. It seems Sen. Dewine had an amendment he was proposing

    to change the standard required for FISA surveillance or search from “probable cause” to “reasonable suspicion.”

    To give the bigger context, even Dewine’s amendment to do away with probable cause only involved situations where the target was a “non-US person” So let’s look at what the lawyers in the Dept of Justice sent Baker to say to Congress (and remember how I keep going back to the things other than the basic crappiness of the opinions, things like actions in derogation of much more specific standards of professional conduct and obstruction, that should be hung around the necks of the lawyers involved)

    The Department of Justice has been studying Sen. DeWine’s proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

    The Department’s Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a “reasonable suspicion” standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a “reasonable suspicion” standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

    Look at what DOJ, with the full knowledge of all the lawyers involved in the unconstitutional program, did with that statement to Congress. In addition to affirmatively foregoing the ability to make at least a part of the program “legal” (in the context of having statutory support, if not in the context of being Constitutional) they misrepresented that they had not resolved whether or not to use the lower, “reasonable” standard; they misrepresented that this was an issue under investigation by OLC withour revealing that it had actually been the subject of memos and determinations by OLC; and they misled by the implications that they had not really decided they could use such a lower standard for non-US persons (even) much less for US persons.

    Anyone at OLC or DOJ who knew that they were already using the reasonable standard for warrantless searches and knew of this testimony and allowed it to go uncorrected should be having some explaining to do.

    • emptywheel says:

      Btw, Mary, did you read the October 23 opinion? That is the one where Milligan shows up in a footnote (32), though it does appear once in the text (first full paragraph on page 34).

      Of course out of the whole Milligan footnote, he concludes, “the scope of the President’s power to order the military to arrest and detain citizens in places where armed conflict was occurring was likely to occur was not decided in these cases.”

      Also, his way around Milligan SEEMS to be the focus on suspending the 4th Amendment out of self-defense, which then leads him to focus on other cases and minimize Milligan, after which point he circles around and expands the conclusion that comes from self-defense to the 4th Amendment more genearallly.

      If you haven’t already done so, you might read pages 26 through 34. Then again, you might not, because it’ll drive you nuts.

    • TheraP says:

      I’m running. But wow! When I posted you and EW were already deep into this! I’m no more than a water-carrier. But carry water I will!

  16. TheraP says:

    Seems to me all of this only underscores Mary’s suggestion from yesterday – that there be hearings on the OLC documents. How important it is get the background on all those OLC memos, whatever lies behind each of them, their drafting history and so on.

    If you did not see Mary’s suggestion, it is comment #136 on this thread. And she’s promised (me) to write up a better proposal, so consider this her first brilliant sketch:

    http://emptywheel.firedoglake……-liveblog/

    So much of what happened hinges on these early moves. And EW, as usual, is right on the money!

    I’ve offered to do a blog on whatever Mary comes up with, linking to wherever Mary puts it. Not to steal anybody’s thunder, but simply to add to a call for greater transparency here.

  17. WilliamOckham says:

    Here we go. From the NYT (adapted from Lichtblau’s book):

    Inside the Federal Bureau of Investigation, meanwhile, technicians stumbled onto the N.S.A.’s program accidentally within 12 hours of its inception, setting off what officials described as a brief firestorm of anxiety among senior officials. Some who had not been told about the program were concerned that the agency was violating laws that required a court order for the singling out of Americans in wiretaps, and they immediately alerted higher-ups to what they had discovered. “What’s going on here? Is this legal?” one F.B.I. official asked after learning of the N.S.A. operation on American soil.

    Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

      • WilliamOckham says:

        That’s exactly what I was thinking. I also think that we need to start thinking again about the various programs involved. I’m starting to think ‘the programs’ were rolled out like this:

        Initial planning began late in the Clinton administration, but there was no implementation due to legal concerns (remember that transition document?). In early 2001, the NSA got the go ahead to request domestic billing records from the phone companies (see the stuff from the Nacchio’s trial). There was clearly some planning going on to use datamining of domestic call information to help target overseas wiretapping. On Sept. 13, Hayden opened the flood gates on their overseas operations and presented a plan to used the FBI’s Carnivore hardware (the DCS series) to tap into the main Internet switches. This appears to have started in early October. Then shortly after that, they tapped into the main voice switches. In 2002, they improved on their coverage by installing the Narus hardware at AT&T and other telcos.

        • emptywheel says:

          Agree, I think we need to think of this as evolving gradually.

          Why do you think the Nacchio stuff was datamining actively? The bid that Clinton put out in summer 2000 was simply to access the toobz directly (to collect all the signals that would make the later data mining of them possible). But there’s enough that sort of suggests what they were doing in early 2001 was just collection–not data mining yet–that I’m not convicned they were doing it yet.

          I rather imagine they went first to their 6 degrees of Osama bin Laden (tapping those who had tertiary ties to al Qaeda figures, which is why I thnk al-Haramain was probably tapped from October 2001 on)and then moved into tapping targets identified through data mining and tapping those–lawyers and journalists–who had previously been protected.

          • WilliamOckham says:

            Before the magical Yoo memos, it was well-established law that the NSA couldn’t collect any real-time domestic data without a warrant. That’s what FISA was all about. But the whole point of datamining is that you take data you’ve collected about the past and analyze it to inform your strategy going forward. As long as you could get the telcos to cooperate voluntarily, the thinking was that it was ok for the NSA to collect information after the fact and use that to make targeting decisions.

            The Nacchio stuff also included the tapping of overseas equipment installed by our telcos. That activity could have been easily replicated inside the U.S., as it was in 2002 when they started installing stuff like the equipment room in AT&T’s West Coast location.

            • robspierre says:

              >>But the whole point of datamining is that you take data you’ve collected about the past and analyze it to inform your strategy going forward.

              My limited experience with datamining in industry is that the above is only the expressed point of datamining. The real point is different.

              Datamining is hunting for specific types of information in data structures that weren’t designed to store them or make them available. It is a needle-in-a-haystack exercise, where results never justify the effort/cost, except by accident.

              So in real life datamining is more often used to obscure the origins of information and thus make it easier to bend it to a purpose. If you have a dubious claim–you want to say that your adoption of Six Sigma improved the reliability of X by Y%, thus justifying a big bonus for you, or you want to hide how you came upon credit-card records documenting a governor’s compulsive floozy rentals–you can say that the claim that you wanted to make all along orginated independently, almost inevitably, in “all that stuff we datamined.” It is given the appearance of a casual fact, when it is really a preordained conclusion.

              In this instance, I suspect that data-mining is the camouflage for targeted wiretapping without warrant or cause. You can’t wiretap a Democratic governor or a nosey blogger just because you want to. Doing so leaves grubby fingerprints behind, no matter how carefully you do it. Worse, if you get lucky, you can’t use the material readily. But if you have already established the propriety of listening to EVERYONE and “just” datamining the results for “suspicious” patterns, you can hide illegal surveillance of individuals in plain sight. You can even use any good material by claiming to have just stumbled on it in the course of your other work.

              This is why what happened to the former governor of New York strikes my imagination, even after the convincing explanation of prosecutorial tactics that was presented on Oxdown yesterday. What happened to him is exactly what I would do to an enemy, given the cover offered by datamining and the ethics of a blackmailer.

              Mary speaks of loose, vague, touchy-feely legal language above. Datamining is the technical equivalent. It is there to hide truth, give deniability, and blur the line between legal and illegal actions.

    • emptywheel says:

      Sorry to be a pest. But do you have a source on the date for the Ashcroft to Mueller letter? Given the date on the first OLC opinion to Ashcroft–11/2–I’d like to nail that down.

      • WilliamOckham says:

        You are my source:

        http://emptywheel.firedoglake……-timeline/

        October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.

        • emptywheel says:

          Which of course means Ashcroft may have reassured the FBI without first reviewing any OLC opinion? I wonder if even he saw the October 23 memo.

          If he didn’t I can imagine why he’d sit up in his hospital bed and yell at Gonzales (and Card, but especially Gonzales) for not allowing him to deliberate with people smart enough to suss this out.

  18. FlakeyFoont says:

    You legal eagles ought to hie yourselves over to Christy’s place at some point and make yourselves heard on her request for questions for Rove and Meirs. Most of the heavyweights seem to be over here this morning. Just sayin’

  19. Mary says:

    29 – Thanks EW – I did read it, it did drive me nuts, but it’s been driving me nuts for a long time, so the impact was dulled. They’ve been tossing out the arguments since they ended up in the courts a long time back and have clung to them even after Scalia’s smackdown in Hamdi.

    This is why the al-Haramain case has them unhappy – if US lawyers were surveilled without warrant, well, let’s just say that they would have been much happier to have the warrantless program go up in a case where the party surveilled in the US was not a US citizen. That it includes US lawyers in client communication on top of that, and that it involves a criminal case that arose from the warrantless surveillance, and might even involve fraud on the FISA court in the issuance of warrants for surveillance, and the gap period on authorizations – – it would be hard to hand pick a worse case for them to go up (maybe one involving their warrantless surveillance of the Justices and tossing Scalia’s office while he was on his Cheney hunting trip *g*)

    What Gov has been careful with to date is manuevering their “best case” scenarios to the fore of Sup Ct review. They have deliberately made sure that a case like Padilla did not make it through. This is a case that got taken out of their hands.

    • emptywheel says:

      That, and this is the equivalent of torturing Abu Zubaydah and al-Qahtani so badly you can’t try them. They at least SAY they believe al-Haramain, teh global entity, if not the Oregon chapter, funds terrorism. So by fucking up this case, they’ve proved that their little gimmicks have prevented them from efficacy on teh GWOT.

      FWIW, I suspect we’ll find they started wiretapping al-Haramain in October 2001, maybe just after this OLC opinion. ANd I suspect we’ll find they did that, rather than get teh FISA warrant they could have gotten even at that point, as much because of the different methods they wanted to use (this opinion references more sophisticated wiretap techniques, for example) as for the ability to bypass FISC. And, too, it may be that the wiretapping lawyers was part of it.

      FWIW, I find the First Amendment stuff in this really curious. THey don’t directly address suspending the First Amendment for Assembly and address printing press more than average citizen speech. But I can see how that morphed into preventing charities from distributing Korans and so on. Also, I wonder whether they used that as their justification for wiretapping journalists, which is not per se prohibited by the First AMendment, but which in practice had been.

  20. Mary says:

    30 – see what I mean about how much that can legitimately get them into? Even without revealing a lot of classified info on what was in memos, if they can show that there were existing memos that authorized activities on a topic Congress was considering legislation to cover, and that Congress was misinformed about the absence of such memos and lack of resolution on the issue to prevent it from enacting legislation – that all walks right back to the lawyers involved and doesn’t rely on trying to prove whether or not the opinions were such bad work that they are indicative of intent to subvert. Instead, you have some clear actions that tie around their necks and can’t be escaped. And all without dragging in any NSA techs and all in a context of Congressional review of needs for legislation; needs to investigage information submitted to it; needs for oversight of OLC and to investigate DOJ lawyers professional conduct and standards of behaviour vis a vis Congress to set a baseline for reliance on information provided in connection with legislation and also to determine legislation that might be necessary or proper to apply to the OLC, OPR, OIPR, DOJ or any or all of them.

    I’d love to see Rivkin say that investigating that kind of stuff – information provided to Congress, needs for legislation, needs to investigate Professional conduct and set standards — is supplanting the Exec’s criminal prosecutions authority. OTOH, it will pretty much lay bare not only violations of professional conduct, but crimes and avenues of information framing probable cause for other criminal action.

  21. Mary says:

    39 – some of the quicksands of amorphous “material support” issues. If you have countries where government is either so dysfunctional, or so corrupt, or both, that humanitarian care is only provided by an entity such as Hamas (an entity also given status as a political party) then what?

    And if providing material support to terrorists is a crime, what about having the US military train, arm and equip Iraqis who are also covert members of something like al-Qaeda in Iraq – especially when the military knows of that problem?

    All this touchy feely, language as smoke as language, stuff just isn’t well suited to a functioning legal system. IMO,FWIW

    • emptywheel says:

      Oh, and Chiquita can do whatever it wants.

      As to the touchy feely language–I can imagine what you mean but it sure makes my Lit degree useful.

  22. Mary says:

    42 – Maybe just at Quaker meetings as opposed to streets of NYC

    http://www.msnbc.msn.com/id/10…..mode/1098/

    A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn’t know was that their meeting had come to the attention of the U.S. military.

    A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period.

    “This peaceful, educationally oriented group being a threat is incredible,” says Evy Grachow, a member of the Florida group called The Truth Project.

    “This is incredible,” adds group member Rich Hersh. “It’s an example of paranoia by our government,” he says. “We’re not doing anything illegal.”

    The Defense Department document is the first inside look at how the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups.

    That’s from a report in Dec of 05. There really should be some kind of litigation stemming from this but if there is, I’m not aware of it. Maybe my google of “Al-Quaker v. United States” has a typo.

    • klynn says:

      I actually knew a member of the group. Yes there is litigation. I’ll find it. My friend has since died. At one point I linked to the litigation on one of Marcy’s post a few years ago.

  23. Mary says:

    I’m all in favor of touchy feely in literature and I’m guessing it’s indispensible to Utah’s porn industry as well. Taking a look at many members of Congress and the Judicial branch, I have to say that touchy feely isn’t something I thik they need more of.

  24. Mary says:

    52 – Addington may have had an EO up and ready to go before they figured out how they were going to play Weakest Link at OLC.

  25. pdaly says:

    Maybe anthrax in DC was equivalent to worries of sarin in Manhattan. A reason to sign a posse comitatus waiver.

    IANAL so when I read Richard Clarke had in his desk drawer a fill-in-the-blank form (unsigned) for waiving posse comitatus I was surprised, especially since he mentions this in an off-hand manner. See page 157 of Against All Enemies. He’s discussing the Aum Shinrikyo sarin gas attack in Tokyo, Japan in 1995. He is gathered in the White House Situation Room in a CSG meeting that included John O’Neill from the FBI. At Clarke’s request, an incredulous O’Neill tasks an agent in NYC to see if Aum have a presence in Manhattan. O’Neill’s response a while later, “Fuck. They’re in the phone book, on East 48th Street at Fifth.”

    Clarke continues:

    Everyone in that CSG meeting had the same thought at the same moment: sarin in the New York City subway. O’Neill called for backup. “We need some chemical weapons deonc guys up there quick. Some guys who can detect and diagnose chemicals. The Army.”

    The Pentagon representatives at the meeting were not keen on the idea of olive green Army trucks rumbling through Midtown, disogorging troops in space suits while the lunch crowd at Rockfeler Center watched in growing panic. [snip]

    …The Pentagon guys also raised the same mantra in Latin that the Defense Department representatives chanted whenever asked to do something in the United States, posse comitatus.
    [snip]
    The law contains a clause allowin the President to waive it in an emergency. I had drafted a fill-in-the-blanks waiver in my desk drawer, unsigned.”

    • emptywheel says:

      One thing I didn’t say about this memo is that it references (at least twice) that Al Qaeda may have been trained by states–presumably meaning Iraq, not Afghanistan. SO this was built to apply to an Iraq war, even though there was no connection.

  26. orionATL says:

    there are many tragedies in this work by cheney and his merry gang.

    but the greatest imo is that, from now until there no longer is a united states, there will exist a set of precedents which any president so inclined can cite and deploy to justify becoming an american dictator – eight years in the future, eighty years in the future, 160 years in the future.

    the vengeful, devious, power-loving vice-president cheney abetted by libby, addington, yoo, et al.

    vs

    madison, jefferson, adams, paine, et al.

    and the midgets won in the near-term.

    i sure hope that obama, the congress, and the judiciary meet cheney’s frontal attack on the constitution with laws and constitutional amendments specifically and unambiguously rejecting this time bomb cheney has left his county.

  27. pdaly says:

    To add to the story, here’s how the Situation Room handled the issue that day:

    Clarke page 57 Against All Enemies:

    I did not have to deploy the posse comitatus waiver. O’Neill persuaded the Pentagon to stage the unit to a National Guard armory in Manhattan, while the U. S. Attorney tried to develop enough of a story to get a search warrant. In the meantime, a “fire marshall” conducted a surprise inspection of the building. He found that the Aum were moving out, carrying boxes into a rntal van. An FBI surveillance car followed the truck in Midtown traffic.

    The truck was eventually inspected with a warrant and contained only books. The office on 48th street was serached and was clean of biopweapons.

    btw, CSG in prior comment stands for “Counterterrorism Security Group”

  28. klynn says:

    Hey EW,

    Here are some dates that might be worth adding:

    The first version of the Patriot Act was introduced into the House on October 2, 2001 as the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, and was later passed by the House as the Uniting and Strengthening America (USA) Act (H.R. 2975) on October 12.

    From the heading, Birth of the Patriot Act.

    • emptywheel says:

      Thanks. I had put the October 2 in there. I’nm trying to see if and when they played with the language re: FISA purpose.

      Feingold (bless him!!) was pushing some amendments in the Senate–which were all tabled, of course. But not pertaining to purpose.

      • klynn says:

        Sorry, I missed that you had the date. And yes, Feingold (dito on the blessing) was incredibly busy legislatively on all of this at that time.

  29. anwaya says:

    Berkeleians, please get Yoo fired. What the rest of us need to do is get him thrown in jail. What’s the charge? Treason? Or do we have to go for something like tax evasion?

  30. Rayne says:

    Of course none of this happened in a vacuum.

    Anthrax letters were sent out on dates 18-SEP and 09-OCT, according to their postmarks.

    What an amazing set of coincidences.

  31. perris says:

    . . . Congress made almost precisely this change when it amended FISA as part of the PATRIOT Act, which got rushed through Congress

    I remember when “the patriot” act was being rushed through congress and I remmeber when we were discussion how anti patriotic this act was

    I kept asking how on earth the bush administration could possibly have such a ready act pre-written, how it could possibly be written so well and inclusive

    that was before I found out it was almost entirely plageurized from hitler’s enabling act

    we had naomi klein on one day who told us the similarities are “legion” and too coincidental

    so we have bush, his grandfather and strong supporter of hitler and fascism, the patriot act too similar to hitlers enabling act

  32. JohnLopresti says:

    Maybe the @11 hearing reference for Hayden that would help, that is day one of (two); my records show there were executive sessions not published also around that time. Link is WaPo feed from CQ.

    Lichtblau, Risen, Shane: rambling discursive @43 depiction of Bedminster and Denver switch Calea negotiations early 2001.

    I continue to like books’ tanbigility, @55, however, would like to hear that predicted products from both Appl and MSft would do what the theorized Kindl might do to provide access for Ocr purposes to otherwise hard copy. Virtual machine code forms part of my concept of how those renderings might occur, something that would put the September 25 2001 JCY memo in searchable format.

    I suppose it is the din of years of reading the dynamics of how these defenses mounted that has diffused their definitions in my view. I thought the linked memo a crude production generated with surprising alacrity, though redolent of a sensibility which was over-hasty to blur civil rights as a first reaction to the stateless guerilla asymmetry aspect of the perceived contest joined.

  33. direlogfake says:

    are we connecting the dots yet?

    you who think “it can’t happen here” would be well advised to study the history of false flag terrorism.

    to ignore the obvious connections between the anthrax attacks, 9/11, and the imperialist agenda items of the former administration is nothing short of naive.

    confront the facts. acknowledge the contradictions. do some research. people have been telling you for years that the official narrative of 9/11 is impossible… wake up america.

  34. Mary says:

    64 – I’m waiting for Congress to spit this one out:

    Forget the
    Intelligence
    Review of
    Executive
    Unilateral
    Spying — act.

    • klynn says:

      Mary,

      You are cracking me up today. I was in a fit of laughter over at the Simpson post because of you!

      By the way, I meant to write to EW in that comment @ 64 that if we find out who came up with the US PATRIOT Act acronym, we would be able to answer her question.

  35. orionATL says:

    robespierre –

    yours is the most convincing – because it explains “why bother expending resources on vague and general outcomes?” – explanation of the cheney-rumsfeld-bush authorized data mining that i have yet seen – anywhere.

    thanks.

  36. Leen says:

    Sure makes you wonder just who they were wiretapping in the states?

    Could there be legitimate reasons for trumping FISA? I mean if you have folks who are U.S. citizens and either have been or are a serious threat to the safety of the U.S. AND If these U.S. citizens that have been determined to be a serious threat were to be alerted about being wiretapped by the Bush administration by following legal procedures (FISA). Can anyone imagine a serious enough threat to the U.S. that FISA procedures could not be followed (say if these U.S. citizens had the whole system all ready wired?) and had the ability to listen in to all legal procedures taking place

    I’m just saying.

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