Working Thread on Illegal Wiretap Memo

As I noted in this post, DOJ has released two of the memos used to authorize the illegal wiretap program. I made some brief comments on the November 2, 2001 John Yoo memo here. This will be a working thread on the May 6, 2004 Jack Goldsmith memo.

P1: Note in the TOC (and in later references), DOJ has redacted the date when the program was modified. We know this date is some time after the March 10, 2004 hospital confrontation. Pretty much the only reason to redact that date is to make it harder to know how long the program operated solely with Bush’s authorization. And the biggest reason to do that is to hide the detail from al-Haramain’s lawyers, because it would add evidence that the phone calls intercepted in early March 2004 were intercepted at a time when the program didn’t have DOJ sanction.

P3: The first redaction on the page is interesting because it seems to qualify what they do after they intercept communications in the US; remember that one of the big conflicts at the hospital confrontation was the data mining they were doing (in defiance of Congress specifically defunding data mining of US citizens).

P3: Note the invocation of 18 USC 2510-2521 in addition to FISA. This makes it sort of explicit they were using other authorization processes for some of this. I’ll come back to this point. But it’s worth noting that the 2010 opinion cleaning up past exigent letter use used 18 USC 2511(2)(f) to do so.

P5-6: Note that footnote 2, which probably describes ongoing air patrol surveillance of the country is redacted. Note, too, that the entire paragraph is classified Secret. Goldsmith was basically using the black (heh) helicopters patrolling the skies–which we could literally hear and see–as basis to rationalize the claim that it was okay for the military to be operating in the US. And the government believes we shouldn’t know that. Moreover, there appears to have been ongoing patrols we weren’t supposed to know about in 2004.

P6: Note how Cap’n Jack asserts that 2001 AUMF is still active in May 2004:

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

He could have found any number of sources to support his claim that the 10,000 troops (ah, the good old days) in Afghanistan sustained the AUMF. Instead, he cited a story reporting Pat Tillman was “killed in combat”–itself a story that was the product of elaborate govt propaganda.

P6-7: Note the citation of the Mueller quote from testimony he gave to SSCI on February 24, 2004. That’s interesting timing, because at a February 11, 2004 hearing, Ron Wyden had asked whether Total Information Awareness, which had been explicitly defunded for that fiscal year, at which point Michael Hayden said he wanted to answer in closed session.

Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was “correct that when [TIA] was closed, that several … projects were moved to various intelligence agencies…. I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter’s programs are going on somewhere else.”

Negroponte and Mueller said they didn’t know. But Negroponte’s deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, “I’d like to answer in closed session.” Asked for comment, Wyden’s spokeswoman referred to his hearing statements.”

I wonder if the Mueller briefing Goldsmith cited was from the closed session where DIA and FBI gave their response?

P7: Note the reference to minimization. I believe that’s the first we’ve heard about minimization in the early days of the program. Also note that he directs DOD generally, not NSA specifically, to do the minimization. That’s downright odd. [Update: now, we’ve had discussion about minimization before. See this post.]

P8: Note the fourth redaction on this page, after the words, “without resort to judicial warrants.” It appears that warrants is followed by a period, but that doesn’t make sense as it appears there are a few more words to that sentence. Judicial warrants … “and oversight,” maybe? Any other guesses?

P8: Goldsmith notes that the Gang of Four were briefed on the program “in 2002 and 2003.” As I have noted before, there should have been a briefing in January 2004. Much of the rest of that footnote may well explain how they got out of that briefing.

P9: Note the second redaction, hiding who besides the DCI reviews the threat assessment that justifies the continuation of the program before it goes to OLC. That’s particularly interesting given that the Terrorist Threat Integration System was doing the treat assessment in May 2004, when Goldsmith wrote this opinion. And John Brennan, currently Obama’s Deputy National Security Advisor, was in charge of the TTIC at the time. In any case, it doesn’t seem justifiable to redact who, besides the DCI, does this review. Note that the IG Report also refers OGC attorneys reviewing the the threat assessment to fluff it up if it wasn’t sufficient to justify sustaining the program.

P9: Goldsmith writes:

As explained below, since the inception of [redacted name of program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to hae, multiple redundant plans for executing further attacks with the United States.

See how one illegal program serves to justify another illegal program?

P11: Goldsmith launches his discussion of the changes that took place in March 19 with a discussion of “how the NSA accomplishes the collection activity under [the program].” That might support the datamining aspect, but maybe not.

P15: Note there’s a word after the “Commander in Chief Clause” in the description of the basis Bush invoked to authorize the program on March 11. Wonder what that is?

P16: The modification took place on March 19. Note that it pertained to making it clear “there were reasonable grounds to believe that a communicant was an agent of an international terrorist group …” I’m betting the caveat after that doesn’t ultimately say what Goldsmith would, that the terrorist organization has to target the US.

P16: Note Goldsmith authorizes three activities. One is the authority to “intercept the content of international communications ‘for which … a party to such communication is a group engaged in international terrorism, or activities in preparations therefor, or any agent of such a group,’ as long as that group is al Qaeda, an affiliate of al Qaeda, or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile action within the United States.”

P17: Goldsmith lists the following opinions related to this program:

  • October 4, 2001
  • November 2, 2001, expressly authorizing a November 2, 2001 authorization
  • October 11, 2002: confirming the application of prior analysis

Note two things. First, this list doesn’t coincide with other lists (Goldsmith ignores the October 23, 2001 4th amendment eliminating one, as well as some “hypothetical ones” in between; the IG Report only talks about the November 4 one, and Bradbury talks about a few more.

Also note the space between the date, October 4, 2001, and the main clause of the sentence, “we evaluated.” One thing I’m increasingly convinced is that the program operated under FISA’s 15-day window until October 3, 2001. So I wonder if that acknowledges that fact?

P18: Note that Goldsmith starts w/12333. That’s the EO that Bush pixie dusted.

P20: The paragraphs that appear in part on this page appear to be misclassified. They both talk exclusively about published legislation. Neither mentions the name of the program. Yet both are classified TS.

P21: Note how Goldsmith introduces his claim that FISA is not exclusive: “We conclude that the Congressional Authorization is critical for [redacted name of program] in two respects.” That reveals how much he reverse his analysis, not looking at what the AUMF said, bu what he needed to justify the program.

P23: My discussion of the newly disclosed OLC opinion discussed in the footnote is here.

P30: The examples Goldsmith uses to show the continuity of SIGINT is terrible cherry picking. How is Jeb Stuart’s personal wiretapper, wiretapping commercially run cables, similar to wiretapping private phone calls? MOre damning still is his lack of any treatment of Vietnam era wiretapping, done under cover of war, but targeting speech.

Note too where Goldsmith highlights the phrase “control all other telecommunications traffic” when discussing WWII surveillance. Since that’s what we think they were doing here, I find the emphasis notable.

P31: Note that Goldsmith refers to the 15-day exemption under FISA; he says “as noted above,” meaning he has already treated this, in what must be a now-redacted section. Particularly given Goldsmith’s discussion of the legislative intent–to give Congress time to alter FISA in time of war–his non-discussion of PATRIOT here is nothing short of dishonest. (He does discuss it later, though.) This allows him to say, “The mere fact that the Authorization does not amend FISA is not material,” without at the same time acknowledging that Congress was at that moment amending FISA! It’s all the more important given the October 4 approval that would have marked the end of the 15-day exemption period.

P31: Note the footnote invoking the Padilla and Hamdi circuit court decisions. On his last day as AAG, Goldsmith wrote an opinion that reviews whether a recent court decision–almost certainly Rasul–affected his analysis. But we’re not being given that opinion.

P32: I wonder how Goldsmith responded to Tom Daschle’s op-ed making it clear that Congress specifically refused action in the US, given that he claims the “deter and prevent acts of international terrorism against the US” amounted to carte blanche to operate in the US.

P32: NOte the reference to the Iraq AUMF–and its invocation of terrorism. That’s relevant not least bc Goldsmith expands the terms of the Afghan AUMF beyond al Qaeda.

P34: Note that the paragraph of this page, discussing a PATRIOT change, is unclassified. The next, also discussing a PATRIOT change, is classified TS. The only plausible explanation I can think of for the the second is to hide from people outside of the compartment how full of shit that second paragraph is.

[Note: I lost a huge chunk of this post right in here–looking to see if I can reconstruct it]

P39: Check out this tautology Goldsmith uses to argue foreign intelligence doesn’t need a warrant:

In foreign intelligence investigations, the targets of surveillance are agents of foreign powers who may be specially trained in concealing their activities from our government and whose activities may be particularly difficult to detect.

Of course, the whole point of this program is to find people who might be agents of foreign powers; we don’t know that they are until the investigation finds them.

P40-41: This is a troubling assertion about Keith:

In addition, there is a further basis on which Keith is readily distinguished. As Keith made clear, one of the significant concerns driving the Court’s conclusion in the domestic security context was the inevitable connection between perceived threats to domestic security and political dissent. As the Court explained, “Fourth Amendment protections become the more necessary when teh targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute when the Government attempts to act under so vague a concept as the power to protect “domestic security.” Keith 407 US at 314.see also id at 120 (“Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.”) Surveillance of domestic groups necessarily raises a First Amendment concern that generally is not present when the subjects of the surveillance are the agents of foreign powers.

Aside from the obvious fact that the surveillance Goldsmith was justifying almost always had a religious component, a lot of the evidence picked up on alleged domestic Islamic terrorists amounts to speech. And often a disagreement about things like the Iraq war. It’s more of the tautological construction, if foreign then not First Amendment, when that is obviously not the case. Note, there’s a big redaction after the passage above which I suspect is nonsense.

P41: Goldsmith:

Second, it also bears noting that in the 1970s the Supreme Court had barely started to develop the “special needs” jurisprudence of warrantless searches under the Fourth Amendment.

I’m gonna have to either return to this or just hope bmaz hits it. It’s like every section of this opinion Goldsmith chooses to deal with a second, exclusive period of history.

P43: Note how Goldsmith pretends Congress passed FISA in 2001, not 1978.

To be more precise, analysis of [redacted–name of program] presents an even narrower question: namely, whether, in the context of an ongoing armed conflict, Congress may, through FISA, impose restrictions on the means by which the Commander in Chief may use the capabilities of the Department of Defense to gather intelligence about the enemy in order to thwart foreign attacks on the United States.

Putting aside the fact that this program identified who the enemy is, as much as collecting information from that enemy, Goldsmith here betrays his task. Not to see whether Bush acted properly in not asking for legislation to amend FISA, but to suggest that FISA is an addition to the already existing program. Which of course it was not.

This is made more clear a few lines later:

In almost every previous instance in which the country has been threatened by war or imminent foreign attack and the President has taken extraordinary measures to secure the national defense, Congress has acted to support the Executive through affirmative legislation granting the President broad wartime powers, or else the Executive has acted as exigent circumstances in the absence of any congressional action whatsoever.

In his book Goldsmith repeatedly says Bush’s (Cheney’s, Addington’s) mistake was in not consulting Congress. And that’s evident here, too: of course Congress made affirmative legislation. It’s called the PATRIOT Act. But for some reason the President refused to ask for these powers.

P46: Note that in his review of enumerated Congressional powers Goldsmith doesn’t consider the power to declare war?

P51: Note the reference to the President’s threat assessment on March 11, 2004. You’d think that’d mention the Madrid bombing that happened that day. But of course at that point Aznar was pretending that ETA caused the bombing, not an al Qaeda inspired–but not AQ direct–group.

P61: I presume Goldsmith didn’t have a straight face when he wrote the last full paragraph trying to distinguish Youngstown–bc Congress gave other alternatives to resolve labor disputes–from FISA, which Congress was actively changing per the Executive’s requests in 2001.

P70ff: Note how here Goldsmith argues not just that FISA can’t restrict POTUS bc of inherent power, but it can’t bc FISA is so onerous that “it ‘render[s] it impossible for the President to perform his constitutionally prescribed functions.’ [Redacted–curious what this cite is] Several factors combine to make the FISA process an insufficient mechanism for responding to the crisis the President has faced in the wake of the September 11 attacks.” It then has a totally redacted discussion about why FISA makes POTUS’ job impossible. This strikes me as the reason why Goldsmith’s innocuous discussion of the switch to 72-hour warrant requirement is classified TS. Because Congress was working to make it less onerous.

P102: Jack Goldsmith, bleeding heart defender of Wall Street:

The nation has already suffered one attack that disrupted the Nation’s financial center for days and that successfully struck at the command and control center for the Nation’s military.

Glad to see those 3000 people didn’t weigh in here. I’ll return to this logic in upcoming days. After all, if the risk of disruption on Wall Street gives the President super-human powers, then shouldn’t we be using them to reel in Wall Street now?

P105: Goldsmith’s stawmen:

Thus, a program of surveillance that operated by listening to the content of every telephone call in the United States in order to find those calls that might relate to terrorism would require us to consider a rather different balance here.

Right. They’re not taking “content” of every telephone call. They’re taking data.

  1. JohnLopresti says:

    Mostly off-topic, Vladeck 2008 research paper, American University Washington College of Law, history of martial law jurisprudence.

  2. MadDog says:

    …P8: Note the fourth redaction on this page, after the words, “without resort to judicial warrants.” It appears that warrants is followed by a period, but that doesn’t make sense as it appears there are a few more words to that sentence. Judicial warrants … “and oversight,” maybe? Any other guesses?…

    If you magnify that sentence, you’ll see that it is a comma and not a period. It has a little left-leaning tail on it.

    Your guess of “and oversight” is a good one. I’d throw out this one of “congressional notification”.

  3. Hmmm says:

    “To understand these changes, it is necessary to understand some background concerning how the NSA accomplishes the collection activity authorized under [redacted name of program].” … Is the answer to that “how” question just “data mining”?

    I wonder whether the redaction is a USC statute reference rather than a program name. Then the “how” might include a description of having a telco send a copy of domestically intercepted communications into a line that ends somewhere out of the US, creating a leg with one end outside of the US. Then the spooks could tap that line and perhaps have a halfway plausible argument that they’re technically conforming to statute, even though the information they’re getting by doing so is actually US-US communications. Just a loophole-threading idea, and I gladly admit it’s perhaps a far stretch.

  4. MadDog says:

    …P9: Note the second redaction, hiding who besides the DCI reviews the threat assessment that justifies the continuation of the program before it goes to OLC. That’s particularly interesting given that the Terrorist Threat Integration System was doing the treat assessment in May 2004, when Goldsmith wrote this opinion. And John Brennan, currently Obama’s Deputy National Security Advisor, was in charge of the TTIC at the time. Another possibility is that it refers to CIA OGC, which according to the IG Report on the Warrantless Wiretap program reviewed the threat assessment and fluffed it up if the current threat didn’t warrant the continuation of the program. Or maybe it refers to someone else entirely–someone like “the Vice President’s Counsel”–who wasn’t disclosed to the IGs when they did their report. In any case, it doesn’t seem justifiable to redact who, besides the DCI, does this review…

    Another likely possibility in addition to the DCI’s signature is that of the Attorney General.

    In fact, given what took place at the hospital, it seems highly likely that 2nd signature is that of the AG.

    As to why an admission that it’s the AG’s signature would be redacted, perhaps because it would be an incriminating admission that the AG broke the law.

    • emptywheel says:

      Remember, this opinion is written TO the AG, which makes that unlikely. There’s one point on a subsequent page where Goldsmith “reminds” Ashcroft what he had approved in the past.

      • MadDog says:

        Yeah, you’re probably right given that further in the paragraph, it talks about “the recommendation is then reviewed by this Office”.

  5. MadDog says:

    I also want to go back to my “light bulb” comment in the previous post.

    Though some may see this as a distinction without a difference, I beg to differ.

    It is one thing to hoover up communications and then sift through them for Al Qaeda international to domestic communications.

    One could imagine that both international and domestic communications were flowing on the same pipes, the NSA couldn’t easily segregate them, and that while the NSA would be capturing both, they were really only sifting for Al Qaeda international to domestic communications.

    It is something all together different if you are deliberately hoovering up domestic to domestic communications and sifting for possible terrorist communications.

    Looking for terrorist communications that were entirely US-based without any international contacts.

    In circa 2001-2004, a FISA warrant could be obtained in the first instance (though the Bush/Cheney regime wasn’t even doing that), but in the second instance, not even the FISA Court could authorize a warrant for domestic to domestic communications surveillance lacking any probable cause that identified a “foreign intelligence” connection.

    Again, I think there were at least 2 separate warrantless eavesdropping programs involved here.

    One to warrantlessly surveill international to domestic communctions for terrorist connections.

    And a second program to warrantlessly surveil domestic to domestic communications for terrorist connections.

    Over and over again in the Goldsmith May 6, 2004 OLC opinion there are statements and then redactions that imply this second program to warrantlessly surveil domestic to domestic communications for terrorist connections.

    • MadDog says:

      I wonder if this is how they set it up:

      The NSA warrantlessly hoovers and surveils international to domestic communications and sifts through that for terrorist contacts.

      The government turns to the communications providers and says “you folks warrantlessly hoover and surveil the domestic to domestic communications and we’ll give you the keywords/phrases to sift for terrorist contacts. If you find anything, let us know.”

      Perhaps this was the primary rationale for the retroactive immunity given to the communications providers. Not only were they acting without warrants from the government, they themselves were also complicit in doing the sifting dirty work.

      • emptywheel says:

        We already know they were doing the sifting. That’s because they were using sifting based on activities, frequency and type of communication, not on search terms. That’s something already w/in the telecom capability (they use it for billing purposes). So it was applying a function of theirs to this program.

        • MadDog says:

          Which makes my hypothesis of the telcos as active participants (rather than merely pipelines of traffic to the NSA) all the more reason for their retroactive immunity.

          As in: “We didn’t just drive them to the bank, we helped them rob it too!”

      • ackack says:

        And don’t forget, they’ve already established a tidy fee structure to the process to grease the skids for when they ask for ‘just a little more’ information or assistance.

        That’s the new M.O. The private sector doesn’t have as many restrictions on acquiring ‘information’ about you as the guvmint has. So when dutifully constricted by statute, the gman just buys it second-hand from contractors who are hoovering up everything they can about us.

  6. Mary says:

    The namby-pamby is reiterating (to make himself feel mo’legal) the probable cause standard, although they aren’t going to have judicial review.

    “Probable cause is to be determined according to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

    Actually, the everyday life part is important imo. It means a standard that isn’t based upon a panicked reaction of punching blind at “terror” in whatever dark corners a perverted mind might find it.

    I’m so out of the loop on everything these days I’m an unreliable source, and dates/names have never been my thing, but in May, 2004 when Cap’n Jack was talking about [torture] interrogation of al-Qaeda detainees as the wondrous source of all things safe, Abu Ghraib was out, right? The CIA IG investigation was going on or completed, right? With the criminal referrals – had they been made yet or not? Torture tapes were being reviewed by DOJ in ED of VA, right?

    What a guy, that Cap’n Jack. Peter King doesn’t really need anything more than himself, ex-Justice O’Connor and the Cap’n for his hearings on “radicalization.” Once the OLC signs off on torture as the basis for domestic wiretapping without warrants – and the domestic wiretapping without warrants becomes the basis (see, Padilla) for domestic disappearances of Americans into military torture detention, and Congress and the Judiciary imparting blessings on it all like beauty queens blowing kisses from the back of a convertible in a parade – you pretty much have radicalization wrapped up.

    Cap’n Jack could explain to King how the “interrogation” of this little girl’s father and the DOJ/Larry Thompson (now Pepsico Gen Counsel) directed disappearance into torture of this father and the DOJ/Congressional acquiesence in the hand off of al-Libi to Khadafy and cover up of lies that led to massive death and destruction in Iraq, and the current DOJ/State Dept supported Obama directed drone killings of little children and old men, interspersed with special forces assassinations of pregnant women who are carved up after killing and the planned assassinations of US citizens by the same former military, now turned into the kind of “elite” executive branch assassination squads that can be found in any dictatorship – – how all of those are legal and mundane, but that gosh darn “radicalized” reaction can’t be explained by anything other them “Muslimism”

    The freakshow wasn’t in CIA – it was in DOJ and Congress.

  7. emptywheel says:

    April 28 was the release of Abu Ghraib. Goldsmith claims he learned about it on the TV.

    The official release of the IG Report was May 7, so the day after this opinion, but he had been in negotiations with Scott Muller on a join statement–which never happened–for months. I’d need to check but I think he received his first copy in February.

    • Mary says:


      I thought it was when he would have been immersed beyond redemption in torture. I was kind of hoping that I was just being my now-permanently cynical, worst-thinking, self.

  8. Mary says:

    @15 @17

    How would you define voiceprint searching?

    Data mining?


    My non-techie spec has been that maybe the program involved somehow searching for voiceprints and using that by itself or with other data to justify contents looks. Bush is such a literalist and as non-techie as me, I can just see his *If al-Qaeda is calling…* to reference some program he thought he had where al-Qaeda “voices” (including voices of people active in the al-Harriman org for example) were hunted out (despite issues with technology and identifications) and those calls got an application of review.

    I’ve always kind of thought that meshed in well with both Bush being literal on “al-Qaeda calling” and with the references to the law not keeping up with technology (hey, we can use technology to figure out if the voice is a terrorist voice, without having to check content first”) but I don’t really know enough to know. I do remember seeing a reference to one of the British investigations/arrests involving voiceprint analysis awhile back. At least, I think I remember that. Damn I’m a bad source these days.

    • JohnLopresti says:

      One of the early technologies was voice print. Filters like court reporters use in a newer technology is called speech recognition; it recognizes words, phrases, regional dialect, even, once the speaker is recognized individually, that talker*s own unique enunciative characteristics.

      re hmmmm, try including uplinks to space platforms as non-territorial, although metadata like area code and country code are in the penregister bitstream; and maybe listening while the signal is airborne enroute to and from the space platform; just guesses.

      D Pearlstein and J Balkin have written separately recently concerning the status of the AUMF.

      • NMvoiceofreason says:

        Replaying to Mary @ 20 also

        First of all, it is perfectly legal for the NSA to record EVERYTHING you say on the phone or on your computer. Whether this actually happens or not is a matter of conjecture.

        In FISA, as in longstanding practice, nothing of any importance has occurred until the “intercept” is performed – the data is actually used. Note that phone numbers dialed, header info from e-mails is NOT an intercept – it corresponds to the “pen register trace” in 4th amendment search and seizure law.

        So only when the keyword search is done on it (or a translator listens to it) has an intercept occurred.

        This is the inherent problem with data mining under FISA. When you use the content, you must have a warrant for the content, unless you can show it does not involve US persons or territory.

        Of course such warrants can be applied for retroactively, within 72 hours.

        (Above section blogwhored from an old post of mine).

        Voice print or speech recognition on a recording does not qualify under FISA as an “intercept”. A human has to be involved (such was the technology when the law was written and later administrations have a vested interest in not telling congress the world has changed), so they get away with data mining.

        • Mary says:

          Way epu’d but fwiw

          First of all, it is perfectly legal for the NSA to record EVERYTHING you say on the phone or on your computer. Whether this actually happens or not is a matter of conjecture.

          That isn’t completely correct. Take another look at the minimization requirements of FISA with respect to purge requirements for us persons.

          Voice print or speech recognition on a recording does not qualify under FISA as an “intercept”.

          That’s my point, but you didn’t follow it out. My point was that I’ve always thought that a part of the “surveillance” program involved running voiceprint or speech recognition programs as the grounds for intercepts – – to get at content. A court would typically not authorize a warrant to get at content based on that kind of grounds, there are just too many issues with the technology and probable cause.

          But, if the nation is “at war” and the voice being searched for is a “foreign” agent, not only a foreign agent by an “illegal enemy combatant” then I could see the guys and gals in the FISA felons club making the argument that it would unduly restrict the powers of a CIC in wartime to not allow him to grab content of calls they “reasonably” believed to be from enemy agent. Even if those calls were to domestice locations. Bc, you know, during wartime, anyone domestically in contact with al-Qaeda (al-Qaeda calling on line 1) is in contact with “the enemy” and is subject to the President’s CIC powers, even if they are a US citizen on US soil (here they’d insert a cite to Quirin and smile smugly).

          Then, if they listen in and decide they grabbed calls that were innocent, well, ya know, they’re a trustworthy lot and only out to get the enemy (you remember the enemy – like Quakers who they infiltrated and tried to set up).

          I can also see them making the argument that Mikey Hayden says in secret that the voiceprint/speech recognition etc. capabilities are now much better than they were, but NSA shouldn’t be forced to go explain that to a FISA court to get basket warrants allowing it to access calls that it says are from “al-Qaeda voices” bc that would mean “the enemy” would now know how ubergood our speech recog technology is, so it is a state secret.

          IOW, the point isn’t using voice analysis/speech recognition etc. to troll through calls – my point was using that for the logical next step. That the President, as CIC, would authorize the interception of calls and content from “al-Qaeda voices” and that this is something the courts could not interfere with bc it was specifically targeted at those with whom we are “at war” and under the President’s war powers.

          So to the extent speech being subjected to some kind of recognition pattern by a computer is data mining (which has a specific definition and I’m not sure that voice recognition searches necessarily falls into that definition) then I’m saying data mining might have been used to get to content under a warpowers analysis.

          OTOH, I don’t really think IIRC the definitions NSA was using for datamining, that voice recognition types of program searches that aren’t pulling concrete data like servers and email addresses etc. out but are instead flagging an “al-Qaeda voice” on the line, would count as data mining.

          Which would, imo, tie to Bush talking only about “al-Qaeda calling” when he admitted the program; and would maybe tie in with Hayden doing his Elmer Fudd’s evil cousin blinking heavily impersonation as he said that the program that the President had admitted existed (which he always tried to isolate and separate from other program admissions) i.e., the “I hear al-Qaeda Voices” program, did not involve data mining.

          He may have been splitting hairs there that the search for the voices didn’t involve data mining under their technical definition of data mining, and that then they jumped straight to content under war powers enabling the President to access content of calls placed by illegal enemy combatants.


  9. NMvoiceofreason says:

    P19-21: Can anyone give me an even half-reasonable description of why the discussion on these pages–all classified TS–were classified as such? They’re all discussions of published law! There’s not even a mention of the program!! Or is it now Top Secret that an OLC head interpreted the “exclusive means” provision to mean what it says on its face?

    TS/SCI means that the program (as with most NSA programs) does not have ANY component – not assets, not personnel, not authorization – that isn’t classified. The program is black – that is opaque – to all who are not within its authorization list. Doesn’t make any difference if you have Top Secret clearance – or even a need to know – the Sensitive Compartmented Information designation means it doesn’t exist outside the list. TS/SCI documents are not like Secret documents. They have no parts or paragraphs that are (S) – secret, or (C) confidential, or (U) – unclassified. To reveal the (SCU) information is to reveal the EXISTENCE of the TS/SCI information (or program). That is forbidden by law.

        • emptywheel says:

          Have you even LOOKED at the document? You know, the code at every paragraph talking about what that paragraph is classified?

          No. You’re just wrong on this count. And wrong on the way classification works.

          • NMvoiceofreason says:

            The document you see is not the original document. You may notice the b1, b3, b5 codes for redactions corresponding to FOIA exemptions.NRO declassification guide, FOIA Exemptions The declassification process has reviewed each paragraph, and labeled it with the level of secrecy that information inherently possesses. Original classification markings will either be struck through, or redacted. There will also be Keywords for handling, COMINT (communications intelligence), NOFORN or NF (No Foreign nationals allowed to see), ORCON (Originator Controlled Distribution).

            Trust me when I tell you that the original document did not have security classification designations attached to each paragraph. The security designation is attached to the top and bottom of each page, TS/SI-[b1,b3 redaction]/COMINT/[b1,b3 redaction]/NOFORN. You will notice that it is the same for EVERY PAGE of the document.

          • NMvoiceofreason says:

            Looking again at pages 19 through 21, I see the problem more clearly now. You are looking at the analysis, and seeing that it does not have any classified information in it. But that is not what the classification reviewer saw in those same paragraphs. Over and over again, there are [b1,b3] redactions for the name of the program under consideration. Lets call it “The President’s Gamma Guppy Terrorist Surveillance Program” or TPGGTSP for short. Wherever TPGGTSP exists in the text, that paragraph inherently has a TS/SI-TPGGTSP/COMINT/ORCON_VP/NOFORN classification attached. Redacting TPGGTSP doesn’t make the paragraph unclassified, it only allows the redacted version to be declassified.

            • emptywheel says:

              This is a factually false statement. The paragraphs I was talking about are the two that appear, in part, on page 20. There is not a single redaction in either of them. Ergo we can see precisely what Goldsmith considered TS (you’re obviously incorrect that these paragraph marks weren’t on the original, otherwise why would they be struck through now?). And that is simply the analysis of what FISA requires. That’s all straight from a public statute. And Goldsmith does not once mention the program.

              You can keep trying to suggest 1) I don’t read documents like this all the time and 2) I don’t understand how classification works. But unfortunately for you, all your claims about the evidence (now that you finally looked at it) are false.

              • NMvoiceofreason says:

                First let me apologize for any slight, no matter how unintentional. I have relied upon your expert analysis of documents in volumes far beyond my ability to tolerate for many years now. I was trying to give exposition that would be helpful to others. I can neither confirm nor deny that I once was involved in the care and feeding of classified critters, nor that I was once even at the custodial level (yes, with broom and mop). Second, I no longer care whether I am right or wrong about this, so you win.

  10. NMvoiceofreason says:

    The question that I keep coming back to – is Why now? IS it because with Walker’s ruling in Al-haramain, they know it is going to come out sooner rather than later, and they want to control the terms (dumping it off on Friday, instead of a Monday ruling they have to fight all week)? Are they preparing to “come clean” and start arresting people? Have they discovered that fraudulent concealment of criminal acts under National Security “State Secrets” tolls the statute of limitations until the acts are publically revealed? Inquiring minds want to know….

  11. MadDog says:

    From page 11:

    …All subsequent reauthorizations until March 11, 2004 provided the [redacted b5 exemption] with authority using the same operative terms

    (My Bold)

    Am I reading this correctly? Is “operative terms” referring to the search terms used on the eavesdropped data?

    And does that redacted FOIA b5 exemption, defined here, refer to the Telcos?

  12. MadDog says:

    Another curious missing OLC opinion from page 21 Footnote 19:

    …See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002)…

    • MadDog says:

      Oh. Did I fail to mention why I find this missing OLC opinion “curious”?

      Could “Other Federal Officials” mean the Vice President?

      And does Scooter Libby ring any bells regarding “Jury and Title III Information Relating to National Security and Foreign Affairs”?

      I thought so. *g*

    • emptywheel says:

      Right–I mentioned that above. Wanna bet they have something to do with either the Padilla or Moussaoui cases?

      In any case, I checked and ACLU believes it’s new to them too.

      • MadDog says:

        Ooohhh! I hadn’t seen your reference to page 31 yet (and hadn’t arrived there in the Opinion myself either).

        I’m guessing Turdblossom wasn’t one of those “Other Federal Officials”, but one never knows, does one? *g*

        • MadDog says:

          Wait a sec! Your reference is to a Bradbury opinion dated July 16, 2004, and mine is to a Bradbury opinion dated July 22, 2002.

          Sounds like there’s 2 more missing OLC opinions.

          • emptywheel says:

            Nope, I was talking about the Bybee one:

            And his silence on this memo is all the more damning consider his mention–in footnote 19–of subsequent memos (such as a July 22, 2002 one) on sharing Title III info with the President.

          • emptywheel says:

            The July 16 one we at least knew about. It’s just that DOJ won’t give it to us. The July 22, 2002 one no one appears to have known about before this.

      • Mary says:

        I’d bet that too and if I had to pick one, I’d go with Padilla. I don’t know where it is in the vast maze of opinions, but there is one involving Bybee and Padilla that is really damning imo. It is basically an opinion where, instead of just outlining the legal standards for judicial and executive detentions, he basically comes down as an advocate and, IRRC, affirmatively recommends that Bush take Padilla out of judicial detention. Not just discusses the legalities, but, again IIRC, actually advocates for the result of taking him out of judicial detention.

  13. scribe says:

    Might be a silly question, but did they quote the AUMF correctly? On page 3 they say:

    providing the President authority “to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks” ….

    I recall the AUMF as being:

    “to use all necessary and appropriate force against those nations, organizations or persons he determines who planned, authorized, committed or aided the terrorist attacks” ….

    I could be wrong, but it’s a change of meaning if I’m not, and bad lawyering, too. But bad lawyering is nothing new out of OLC, post 1/20/01.

  14. MadDog says:

    After much scrutinizing of the Goldsmith May 6, 2004 OLC opinion, the thought occurs to me to ask in reference to Captain Jack’s blog entry, why is he so defensive?

    If as he states, “I continue to believe that the memorandum provides a sound analysis of a difficult set of legal issues encountered in a difficult context”, then why does it seem that he’s saying that “if you only knew what I knew, then you’d believe me”?

    Call me fuddled of mind and intellect, but it would seem to me that for someone who still purports to believe in his analysis, Captain Jack still seems to be doing a whole lot of “woe is me” hand-wringing.

  15. MadDog says:

    A typical, longstanding conservative misreading of the President’s oath of office on page 62:

    …Indeed, defense of the Nation is an aspect of the explicit oath of office that the Constitution prescribes for the President, what states that the President shall “to the best of [his] Ability, preserve, protect and defend the Constitution of the United States…”

    (My Bold)

    Nowhere in the Constitution does it state the claim that conservatives constantly make about “defense of the Nation”.

    If these idiots could only read and comprehend what they’ve read, they’d see that the Constitution’s Presidential oath of office states “defend the Constitution”.

    But that would conflict with conservatives’ alternate reality.

  16. Neil says:


    Wisconsin “Budget Repair Bill” Protest Pt 2 2/18-19 by the amazing Matt Wisniewski video

    “Feed the Rich, Starve the Worker: That’s Bullshit…” Sam Seder in Madison WI video
    “We are Wisconsin:OPTICAL DENSITY” video
    AP: Protesters Hauled From Wis. Capitol by State Police video
    “WISCONSIN” a short film Shot at State Street, The Capitol, Madison 2.21.11 video
    DC Corp. Lobbyists get an earful from #WIunion supporters at WI GOP fundraiser video

    MI Teabag Gov Rick Snyder booed at Ford Motor Celebration video
    MI Protests “We ARE The People” video
    MI Gov.Snyder seizes authority to nullify local democratically-elected government link
    Value for MI CEOs: Gov Snyder’s Budget video
    Steven King slams GOP govs. Walker, Scott, LePage at ‘Awake the State’ FL video

    Power Concedes Nothing Without Demand — We Must Say, “NO!” to Wall St., the Kochs, and Our Cowardly Political Class link
    AFL-CIO Pres. Trumka @ Rally to Keep The Promise video

    Mac D’Alessandro speaks at ‘Save The American Dream’ rally Boston video

    “I Have Sex” — students speak out against ideological attack on Planned Parenthood video

  17. bobschacht says:

    Thanks, EW, for another blockbuster series of posts!

    Has anyone else noticed yet that in the notes on P9, “threats” have become “treats”?

    I’m still trying to catch up with the recent top posts; next will dive into the comments. Looks like a busy day, what with family business in California and the Women’s collegiate BB tournament today.

    Bob in AZ but currently in CA

  18. Mary says:

    one of the significant concerns driving the Court’s conclusion in the domestic security context was the inevitable connection between perceived threats to domestic security and political dissent

    He pretty conveniently skips over the historic reality of the Mitchell/Nixon sales pitch that it was a time of war and these voices of “domestic” dissent were acting in support of foreign enemies and were in actual and active contact with foreign agents.

    • emptywheel says:

      Right. His history lesson on the use of Sigint barely touches civil war (which has some parallels), and really doesn’t deal w/anything from an era of mass communication. Moreover, as you note, he conveniently makes no mention of the Vietnam era, because everything he says would fall apart if he did.

  19. klynn says:

    This is a great series to read on the heels of reading about the Chamber of Commerce engaging a bunch of private spooks to spy on people like Brad Friedman.

  20. susiedow says:

    p19-21 – was it classified under an assumption of mosaic theory? If discussing FISA then ergo, there must be some interest in a surveillance program. Looking at it from a mosaic view, this sentence kind of jumps out – ‘these provisions make FISA…the exclusive lawful means for the Executive to engage in “electronic surveillance’….’ on page 20.