Data-Mining Two
Marty Lederman’s post on data-mining says what I’ve been trying to say for two years about the NSA program. Contrary to what the NYT and others suggest, we don’t have to look beyond data-mining to find something so horrible that a good conservative like James Comey would object. We just need to get to the point where the US is using data-mining of dubious connections to replace the idea of probable cause in a surveillance program.
Here’s the theory, roughly:
There wassome sort of data mining program going on. Probably not of content,almost certainly not content reviewed by humans. That is to say, itinvolved computers searching through "meta-data" related to calls ande-mails, looking for certain patterns that might suggest connections toAl Qaeda or to suspicious activitiy that might be terrorism-related. (Ihave my theories as to what the programs might have been looking for,but don’t want to get into such speculation in this forum. And in anycase, my theories are probably way off.)
This data-miningindicated that it might be valuable to do more targeted searches ofparticular communications "pipelines" (John Yoo’s phrase), looking formore specific information. But that’s where FISA came in. In order totarget a particular U.S. person, or to wiretap a particular "facility,"FISA requires that the NSA demonstrate to the FISA court probable causeto believe (i) that the target of the electronic surveillance is aforeign power or an agent of a foreign power, and (ii) that each of thefacilities or places at which the electronic surveillance is directedis being used, or is about to be used, by a foreign power or an agentof a foreign power. 50 U.S.C. 1805(a)(3).
Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious "channels" or "pipelines," "because we would have no specific al Qaeda suspects, and thus no probable cause."Â [Lederman’s bold, my italics]
And again, we can be sure that this is one of the things that was going on, because when Bush "confirmed" a program in December 2005–clearly aiming to confirm just that part of the program of undisputed legality–he stressed that the targets for wiretapping were people with clear ties to Al Qaeda. The problem was that the Administration was using data mining (already of dubious legality for reasons I’ll get into a second) as their basis for choosing targets to wiretap. They were therefore tapping people whose communication patterns–rather than their actions–suggested they might have terrorist ties.
A quick admonition as one reads the cases and commentary – the prhase â€probable cause†is used in two very different ways, and one needs to be careful not to comingle the two meanings. The majority of commentators fail to make the distinction (Lederman is more clear on this than most), and in so doing, are prone to reach erroneous conclusions or make completely false contentions.
Under criminal law, â€probable cause†is a measure of finding evidence pertinent to finding a criminal act
Under FISA, â€probable cause†is a measure of finding the inforamtion to be a matter of foreign intelligence (no need for ANY crime to be implicated)
Thanks for that, cboldt
That was my understanding–and intent–when I suggested that anyone in Zubaydah’s palm pilot likely surpasses the intelligence bar of probable cause, whereas the people who shop at the same falafel joint do not.
CSPAN is re-airing Gonzalez testimony and I just listened to Sen. Whitehouse ask Gonzo what document he had when he went to see Ashcroft in the hospital. Gonzo said he had a document to reauthorize â€the programâ€. Whitehouse asked him where that document is and Gonzo said it would be â€at the White House; it was a White House documentâ€. Sen. Whitehouse asked if it would be covered under â€Presidential Records†and Gonzo was very careful not to directly answer that question. He simply reiterated that it was a â€White House documentâ€.
Looks to me that Cheney was the force behind all this, as Gonzo also was clear to parse that he was sent at the behest of â€the White Houseâ€, but has never directly said that he was sent by the President.
Hopefully, SJC will request the document Gonzalez wanted Aschroft to sign. It shouldn’t be covered by executive privilege if it was a document from Cheney.
Your post seems to understand the two different applications of the phrase â€probable cause.†My comment aimed to firmly plant the difference in other readers’ minds, as they go out and read other stuff on FISA and the general issue of warrantless surveillance.
CSPAN is re-airing Gonzalez testimony and I just listened to Sen. Whitehouse ask Gonzo what document he had when he went to see Ashcroft in the hospital. Gonzo said he had a document to reauthorize â€the programâ€. Whitehouse asked him where that document is and Gonzo said it would be â€at the White House; it was a White House documentâ€. Sen. Whitehouse asked if it would be covered under â€Presidential Records†and Gonzo was very careful not to directly answer that question. He simply reiterated that it was a â€White House documentâ€.
Looks to me that Cheney was the force behind all this, as Gonzo also was clear to parse that he was sent at the behest of â€the White Houseâ€, but has never directly said that he was sent by the President.
Hopefully, SJC will request the document Gonzalez wanted Aschroft to sign. It shouldn’t be covered by executive privilege if it was a document from Cheney.
Sorry for the double post. Internet Explorer a bit dodgy this morning.
The NYTimes lead editorial today appears to confirm that Dick Cheney was the person who sent Gonzales and Card to Ashcroft’s bedside.
http://www.nytimes.com/2007/07…..9sun1.html
â€Both men say that in March 2004 — when Mr. Gonzales was still the White House counsel — the Justice Department refused to endorse a continuation of the wiretapping program because it was illegal. (Mr. Comey was running the department temporarily because Attorney General John Ashcroft had emergency surgery.) Unwilling to accept that conclusion, Vice President Dick Cheney sent Mr. Gonzales and another official to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.â€
As I commented in a previous thread, that was my understanding of Gonzo’s â€at the behest of the President†locution. Cheney acts under some sort of verbal delegation agreement with Bush, and so acts â€at the behest†of the Prez when he acts in his stead. So Gonzo did mean that Cheney was the authorizer here.
EW and cboldt – There is indeed a tension between the two â€definitions†of probable cause between FISA and a traditional Constitutional analysis. At some point, even pesky lawyers have to be pragmatic, and that is why, as I stated below in response to cboldt, my real consternation as it related to my actual practice was in terms of the confrontation clause (and I will admit that I came out on the short end of the stick when I posed that argument in a case, but I still maintain it is correct). Going further than cboldt’s succinct explanation of the arguably two different definitions of probable cause really doesn’t behoove us for the purposes at hand. I will raise a corollary thought though, and that is what is the threshold basis for determining that a target is â€al Qaidaâ€? Probable cause? Reasonable suspicion? Mere conjecture? Whole cloth fabrication? Now I know cboldt, or someone else, is going to come back at me with statutory language purporting to cover this question, but I think the track record of this administration may lend itself more to, at best, the â€mere conjecture†explanation.
I think you’re probably right that data mining was part of the apparatus used in the program Comey, Ashcroft and Mueller objected to. But what Cheney and his Orcs were doing had to have gone much further than simply wiretapping people without probable cause. Comey, Ashcroft and Mueller are not shrinking violets. The FBI and local cops violate the Fourth Amendment restriction on search and seizure all the time and these guys just applaud.
There had to be political dynamite going on, perhaps the kinds of profiles that were used, such that the phones of peace activists, liberal professors, Democratic congressmen, members of the media elite, etc. were being tapped. Or Cheney’s creeps were clearly lying to the FISA judges or violating a clear (but secret) court order.
No way would Comey, Mueller and Ashcroft threaten to resign en masse over a simple wiretapping program that had lots of false positives when they tapped the phones of non-citizens.
I think you’re probably right that data mining was part of the apparatus used in the program Comey, Ashcroft and Mueller objected to. But what Cheney and his Orcs were doing had to have gone much further than simply wiretapping people without probable cause. Comey, Ashcroft and Mueller are not shrinking violets. The FBI and local cops violate the Fourth Amendment restriction on search and seizure all the time and these guys just applaud.
There had to be political dynamite going on, perhaps the kinds of profiles that were used, such that the phones of peace activists, liberal professors, Democratic congressmen, members of the media elite, etc. were being tapped. Or Cheney’s creeps were clearly lying to the FISA judges or violating a clear (but secret) court order.
No way would Comey, Mueller and Ashcroft threaten to resign en masse over a simple wiretapping program that had lots of false positives when they tapped the phones of non-citizens.
Bmaz: It’s the One Percent Doctrine. If someone might be dangerous, we treat him/her as if their dangerousness were a certainty. It’s been Cheney’s policy since 9/11. Call it the paranoid’s paradox, because they lose any ability to control what might be controlable by trying to control everything.
I agree with Kaleidoscope, and said so yesterday. I think they were getting into tapping political enemies, or potential enemies.
Blast from the past:
and Abu from same:
Woohoo – the conservatives have finally decided penumbra isn’t a dirty word!
Agree with kaleidscope — to an â€administration†prepared to defend torture and suspension of habeas, widespread data mining and illegal taps are small potatoes, and unlikely to cause them enough political or legal damage to be so urgently protective about them. Look how readily they’re riding out the FBI’s illegal use of NSLs. I’m willing to bet that the NYT’s revelations about data mining will not cause a firestorm any more bothersome than that did.
No, the information that will greatly harm Bushco is WHO they ended up tapping and HOW they used the information gathered. When we find out about a J. Edgar Hoover level of political blackmail against people who are considered â€respectable†— politicians, journalists — unlike the expendable Muslim immigrants and peace activists, then we will get the firestorm. And the irony is, some of the prominent people protecting Bushco right now are probably the victims of this enterprise.
And I wonder how the data mining played into the arrest and torture of innocent people?? My guess is that this is how they â€caught†several of the poor tortured souls who were later exonerated. Giving up this information would lay the ground work for huge law suits, and would put a nail in the coffin in regard to the discussion. How the good out weighs the bad.
Maybe it’s bigger than this but this is the only reason I can think of that would cause them to forsake the discussion, completely. They are good at spinning and could have surely spun the action in such at way to recieve very little blow back from the American people. But if they arrested multiple innocents folks AND THEN TORTURED THEM??? Well, it all ties together. It not only screws them, but it screws the idea of data mining altogether.
Kaleidoscope and Mimikatz – That is the problem isn’t it? Once the government possesses the ultimate database, it is a given that someone in the government will access and use it for nefarious purposes. Malfeasants care not whether the fruit comes from a poisonous tree or not; if it will give them temporary sustenance for their evil crusade, they will consume it.
&1, I wonder if the Times got this information during the investigation for the initial report, and published it today on purpose or by mistake. It’s huge that the Tin Man sent Fredo and Dandy Card on the mission to the hospital.
– I will raise a corollary thought though, and that is what is the threshold basis for determining that a target is â€al Qaidaâ€? Probable cause? Reasonable suspicion? Mere conjecture? Whole cloth fabrication? Now I know cboldt, or someone else, is going to come back at me with statutory language purporting to cover this question –
Heheheh. Well, I don’t know of any statutory language that covers the threshold basis for looking in the first place. Of course, there isn’t an â€al Qaeda only†limitation on gathering of foreign intelligence.
I’ve speculated that the investigators are attempting to bootstrap a finding that a communications is in the nature of foreign intelligence, AFTER reviewing at least part of the communications with NO CAUSE whatsoever. Similar to a speed trap, everybody gets radar gunned, some speeders are ticketed. In communications surveillance, unlike driving, people reasonably assert some expectation of privacy.
Here’s an old comment where I speculate such bootstrapping, and (not that it affects the occurrence of bootstrapping) you’ll notice I used the â€criminal event†meaning of â€probable cause,†when, under FISA, the â€probable cause†is related to finding foreign intelligence, even if the foreign intelligence has zero criminal content. The bootstrapping problem can arise under either meaning.
Just wanted to point to an article a friend wrote in Dec ’05 theorizing on what types of datamining might have been going on. http://arstechnica.com/news.ar…..5808.html.
Alot of what you wrote in your post above reminded me of stuff that Jon was talking about a while ago.
How did preventing the exposure of politically dangerous data mining programs – so legally suspect that the thirty top lawyers at a highly conservative DOJ threatened to resign – affect KKKarl’s math and the 2004 election?
Well it certainly seems like things will be heating up and at the very least get more interesting for Bushco. Laura Rozen at War and Piece found this interesting piece of information about Mr. Goldsmith, who wrote the OLC opinion that Mr. Comey used to justify his own concerns for not re-authorizing â€the programâ€. Most likely the swiftboating of Mr. Goldsmith will begin shortly especially since he also has written a book. As everyone knows writing and selling a book that may not take too kindly to the Bush-Cheney administration’s lawlessness immediately and totally invalidates any reasoned and insider fact-based opinion you may have on the issue.
Glenn Greenwald has an interesting analysis of the motivations behind this leak — he thinks it’s Bushco’s way to paper over Gonzalez’ perjury. Apparently a number of corporate media flacks are picking up this meme.
– But if they arrested multiple innocents folks AND THEN TORTURED THEM? –
I think the Khaled El-Masri case fits this template. However, I don’t think there is a contention or evidence that he was identified through a domestic warrantless search, or anything associated with FISA/NSA activities.
– If someone might be dangerous, we treat him/her as if their dangerousness were a certainty. –
There is another principle at work, in the same vein, that being a presumption of dangerous. It’s why 100% of people are screened at airports, we are all presumed to be dangerous, until inspection proves otherwise.
In other words, as a practical matter, there is no â€if†in your â€If someone might be dangerous.†The government’s attitude is that everyone (every commoner) might be dangerous.
big brother
A forensic expert might help tighten up the connection?
(1) Data-mining is not the same as warrantless wiretapping. It is established that both occurred. If not more.
(2) The NYT and Post articles are clearly being leaked by Administration sources for exculpatory purposes. Some fancy timing, huh? To tell us stuff we mostly already know?
Greenwald: The leak designed to save Alberto Gonzales
AL: Data Mining
JMM: Data Mining
(3) Thirty members of DoJ — most of them conservatives and all of whom, including the all-but-sainted James Comey, had no problem with other serial abuses of privacy, etc. and even extra-legal acts — did not all jointly threaten to resign over indiscriminate data-mining.
(4) I don’t have the slightest doubt that Mimikatz and kaleidoscope are correct. For many, many reasons. Here’s an old one: we know that Bush himself personally met with Sulzberger and Keller in an effort to stop the story. Just think about that for a second.
One thing for kaleidoscope: all that stuff about the FBI and peace activists, which is the one kind of surveillance we ever do seem to hear about (e.g. from Risen/Lichtblau themselves), is a distraction. As EW has suggested before.
(5) Note what Lederman highlights in the NYT story: â€[The officials] would not say whether the differences were over how the databases were searched or how the resulting information was used.†If I were to guess, I’d say that to the extent that the data-mining was important to the White House, it was insofar as it provided a means to â€legitimately†latch onto targets already chosen in advance.
cbolt,
you nailed it @14:32
Its all the wrong way around. Speed Trap anaology is great.
Poindexter is very much involved in this.
Sorry, meant 13:52 cbolt.
Cboldt–agree, but eventually isn’t either the enterprise or those behind it going to come unravelled because reality is way too complex and uncontrollable?
I’m reading Tim Weiner’s history of the CIA â€Legacy of Ashes†and it also reminds me of the absolutely insane things that the CIA did in the post-war period as they scrambled to try to understand the Soviets’ system and intentions. The Bay of Pigs was about the hundredth or more iteration of the same failed emigre plot–they had done it over and over and lost thousands of agents (mostly foreigners) and they never learned from their mistakes because there was no accountability until the 1970’s, and even then it was inadequate.
â€â€¦just like bees under mason jars, trapped by an oppressive palm…â€
That would be all kinds of bees – â€conservativeâ€, â€progressive†and â€liberalâ€, too.
The issue is: Are we gonna roll over – piecemeal – for Totalitarian Control, or Stand Up – together – for Due Process.
The Rule of Law – it’s for everyone!
Think about it. It’s Domestic Surveillance and Dick Cheney is intimately involved. Does anyone really feel safe?
How many BushCo storylines would come into focus with the revelation of Politicized Domestic eavesdropping?
Oh, and I forgot Jeralyn:
Ashcroft and Data Mining
After Gonzo testified that he was sent to the hospital at the behest of the WH, why wasn`t he asked again who specifically sent him.
We are clearly into Nixon territory here. Do 30 people now or once at DOJ really know what was the program of great concern? That’s a great many people, really. More and more is going to come out, particualrly if it is Cheney leaking again.
Time to decide which side of history they want to be on–do they want to be John Dean or John Mitchell?
Looks like Jack Goldsmith at least has made his choice.
If I recall correctly, Goldsmith actually made a few pretty telling subtle comments not long after he left the administration.
I will repeat.
Data mining only collects names or other information to be scrutinized further in more traditional ways. If anyone is â€picked up†it is usually only after that scrutinization.
Consider that there is a murder at the mall. The video tapes in the mall and in the mall parking lot are reviewed to see if there are people that could have seen or done something. This is a form of data mining.
The tapes collect pictures 24×7. Humans decide on the time periods to review further and study the pictures for â€person of interest.â€
In the case of the latest bombings in England, tapes were reviewed to see if information could be gained by locating pictures of the cars used in the bombing and then following the leads generated by those pictures.
The main point here is that data is collected and then only used if there is a reason. No one has the resources to just review it all unless there is an important reason and/or specific filters that allow a large part of it to be discarded.
It is Sunday and time to think of Freepatriot and his ailing mother. In their honor, I have got to say that, like Bush, Jodi and her useless analogies are getting further and further removed from reality.
Ah, our troll is advocating more-of-the-same for the illegal surveillance and the warrantlees wiretaps. Also more trust in the same people who’ve demonstrated, repeatedly, that they can’t be trusted.
I wonder how people can stand being on the wrong side of the isuue so often.
Well, I suppose I should bring up TNH’s Favorite Form of Data Mining.
E-MAILS, MORE AND MORE E-MAILS!
When is Data Mining OK? When it is the Administration’s E-MAILs!!
In all fairness, Jodi is right that there is a difference between â€driftnetting,†in Hayden’s felicitous phrase, and â€datamining,†which means running the gleaned data through filters etc to pick out people with defined conections.
Unlike Jodi, however, I have no doubt the Bush/Cheney regime has cast a very wide net, and that they also have a pretty wide seive, so that they get lots of people. But I also firmly believe that they were also using the data for political purposes (whether electoral or blackmail) before the 2004 election. There also appears to have been some disruption after 2005, and some of this may have to do with Rove’s math proving faulty in 2006. But 2008 is the big prize.
And it is the criminality that is important here, the big criminality of spying on American citizens, some of which may have been perceived enemies of the regime.
I believe that Cheney is the one who sent Card and Gonzales to the hospital, but I’m not sure I buy he was the one who called Mrs. Ashcroft and got her to relent. I don’t see him being persuasive on a personal level in that sort of situation. I’m still guessing it may have been Bush who called the hospital, or maybe Rove or someone else who had a personal history with the Ashcrofts.
As should be clear to all but the most dense, there is nothing at all illegal about datamining, but there are numerous ways to use datamining in ways that break the law so egregiously that even Comey and Goldsmith would object. The key to the â€TSP†as described in Dec. 2005 and early 2006 was that the NSA was identifying and tapping international calls without getting a warrant. Everybody in the Bush administration convinced themselves that they could do this despite the clear prohibition in FISA. It is pretty obvious that the NSA developed some sort of pattern recognition application designed to allow NSA â€shift supervisors†to start a wiretap without enough information to justify a warrant. You have to ask yourself what could be so bad that people who were ok with that threatened to resign over.
Remember the anecdote about the FBI complaining about getting leads to pizza joints. Remember the type of equipment that was installed at the ATT switch. The best explanation for the facts at hand is a program to identify potential â€terrorists†based on the most tenuous connections to real terrorists and those connections involved the identification of telephone numbers that had never been involved in international calls.
Well, if Cheney sent Abu G and Card to get the semi-conscious Ashcroft to authorize the program, then Abu G inadvertently spoke the truth when he said that he went to the hospital â€on behalf of the President of the United States.â€
So there is no doubt and because I thought it was a point worth remembering, as litagatormom mentioned last night the constitutional violation occurs at the level of the interception and not the use. So what Jodi advocates with respect to domestic surveillance, whether driftnetting or datamining, for the sake of security are practices that clearly violate the 4th Amendment. I suppose there are people who favor unconstitutionl dictatorships, all done up like faery kingdoms, but at least we should see where folks are coming from.
Another factor of Constitutional analysis that seems germane to the consideration of any domestic intelligence activity, and setting aside for the moment the other arguments raised in the post of illegality, especially appertaining to the formulation of algorithms is the equal protection concern akin to the concern that emerges in racial profiling cases. And this pertains too to the presumptions of guilt cboltd refers to and the obvious subtext of EW’s post.
Finally cboltd I read your posts from today in response to last night dialogue and look forward to spending some time with the cases you cite later on this week. But I do have one final comment with regard to your characterization of impeachment as being political, and this occurred to me before I read you comments about the artfulness in the crafting of FISA by inolving all three branches. In point of fact isn’t impeachment designed to overcome the merely political by involving the Chief Justice and the Vice President in the process and requiring the overriding majority in the Senate? It is a uniquely constitutional proceeding but I wonder whether the characterization of the process as being merely â€political†is ultimately correct. I know that this formualtion has a certain ring of the conventional. The standards employed are legal standards â€high crimes and misdemeanorsâ€, and in the Senate as mentioned there is invovlement from representatives of other branches. And conviction requires numbers beyond the mere majority standards, notwithstanding cloture, required of legislation, the very foundation of transformative process (I am tempted to say â€alchemicalâ€) whereby political agendas are enacted into law.
My overriding point is that before we go sailing off into the sunset of a dictatorship (I and think it is clear from your comments today cboltd that you are not advocating this) or otherwise ignore the indicated Constitutional remedies, at the very least we can provide, and advocate the provision of the deliberation pertaining to process that these matters merit. And I appreciate that understanding that â€process†can be used to suggest a rationalization whereby the ends justify the means, but also process can provide a map of standards and timing that are commonly understood and acknowledged. Perhaps it is an â€ethos†but it seems like something greater than an â€ethos.†To the extent that this exists as a foundation I suspect that there is something beneficial in its preservation.
â€and I†even
W.O.: The vigor of the coverup seems to suggest something even bigger, no?
– In point of fact isn’t impeachment designed to overcome the merely political by involving the Chief Justice and the Vice President in the process and requiring the overriding majority in the Senate? It is a uniquely constitutional proceeding but I wonder whether the characterization of the process as being merely â€political†is ultimately correct. –
I cast impeachment as a political process because the requirements for impeachment and conviction are not driven by a need to find a statutory violation, but are driven by whatever justification the legislative body finds adequate to initiate the process. Impeachment is certainly not a â€criminal†process. Also, the remedy accorded to impeachment is limited to being removed from office and, if the trying body chooses, being barred from holding office in the future. Even the remedy is of a political nature, that being â€out of office†and, in an â€extreme†case, being barred from holding a position of trust in the future. No jail, no fine, no felon, no misdemeanor conviction.
Yes, impeachment is uniquely constitutional. And, as you note by the presence of CJ and VP, it is meant to be a solemn and serious undertaking.
I don’t recall prefixing the word â€merely†to the characterization of impeachment being â€a political process,†not that it matters. I hope the above clarifies why I am comfortable attaching the label â€political†to the initiation of impeachment proceedings.
Mimikatz,
your quote: â€W.O.: The vigor of the coverup seems to suggest something even bigger, no?â€
Who knows maybe you will catch another Libby lying to the FBI?
NOT!
~not sure,~ ~well maybe, maybe not,~ ~uncertain~ and my favorite of all time from Hilary ~I don’t recall~
One of my new favorites from this past week with one of the Gonzales hearings, ~well maybe he was technically correct, but he lied by saying it~
The comment that prompted me to note impeachment as a political process (noted in this thread) was this:
– Our Constitution provides for a remedy for the criminal behaviour of the executive. –
If the behavior is literally criminal, then one remedy is the same as for anybody – indictment, trial, and if found guilty, sentencing, etc. Hypothesize murder, armed robbery, and so forth.
Conviction on Articles of Impeachment, OTOH, doesn’t require a finding of criminal conduct, and in fact, the trier of impeachment is not competent to find criminal conduct. A finding of criminal conduct can only attach via a court. And, interestingly, a finding of criminal conduct does NOT result in ineligibility to hold office.
In short, the threshold for â€impeachment†is different from the threshold for â€indictment,†there is more than one trier (the Senate for impeachment; the Courts for violation of criminal statute), and the remedies available to the two triers are mutually exclusive.
Of course the attempted criminal prosecution of sitting president is likely to be meaningless; hence impeachment is the Constitutional remedy for the criminal behaviour of the executive while in office. Not to quibble. It is not as if the Constitution is devoid of a reference to criminal concepts in defining impeachment. Nevertheless you distinction is useful in understanding the criminal immunity of the executive you otherwise neglect to mention while in office. And while the the â€initiation†is certainly â€political†my point is that impeachment itself is of another category. The OLC DOJ concluded as follows in October 2000:
â€In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.1 We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.
â€The Department’s consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel (â€OLCâ€) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) (â€OLC Memoâ€). The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. See Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) (â€SG Briefâ€). In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.
â€In this memorandum, we conclude that the determinations made by the Department in 1973, both in the OLC memorandum and in the Solicitor General’s brief, remain sound and that subsequent developments in the law validate both the analytical framework applied and the conclusions reached at that time. In Part I, we describe in some detail the Department’s 1973 analysis and conclusions. In Part II, we examine more recent Supreme Court case law and conclude that it comports with the Department’s 1973 conclusions.â€
OLC Opinion Regarding Criminal Prosecution of a Sitting Executive
Mimikatz-
During 2004, I worked with an influencial, national bipartisan group politically that was in support of Sen. Kerry. My location was Franklin County, Ohio which was considered ground zero during the election. To make a long story short, I relayed to my group during a conference call strategy session that I had a series of odd events happen in relation to my phone and internet service. I suspected I was a target of electronic surveillance then due to some evidence I gathered on the matter. In light of current events, I now have no question that I was a target. So, I am not one to ask if I â€think†or â€suspect†the program became politicized because my â€personal experience†answer would be, â€YES!†Then again, maybe I would be a good person to ask…
A leading Republican (well published and not a Bush supporter) in this group responded, â€That would not surprise me, that’s their method, their style of business.â€
But I will concede there is a technical soundness to your point as far as it goes, notwithstanding the blight of having a sitting executive subject to impeachment as the result of criminal behaviour.
The memo is pretty clear however:
â€The Impeachment Judgment Clause provides:
â€Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
â€U.S. Const. art. I, § 3, cl. 7. The textual argument that the criminal prosecution of a person subject to removal by impeachment may not precede conviction by the Senate arises from the reference to the â€Party convicted†being liable for â€Indictment, Trial, Judgment and Punishment.†This textual argument draws support from Alexander Hamilton’s discussion of this Clause in The Federalist Nos. 65, 69, and 77, in which he explained that an offender would still be liable to criminal prosecution in the ordinary course of the law after removal by way of impeachment. OLC Memo at 2.4
â€The OLC memorandum explained, however, that the use of the term â€nevertheless†cast doubt on the argument that the Impeachment Judgment Clause constitutes a bar to the prosecution of a person subject to impeachment prior to the termination of impeachment proceedings. Id. at 3. â€Nevertheless†indicates that the Framers intended the Clause to signify only that prior conviction in the Senate would not constitute a bar to subsequent prosecution, not that prosecution of a person subject to impeachment could occur only after conviction in the Senate. Id. â€The purpose of this clause thus is to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argument.â€â€
Ibid.
– Nevertheless you distinction is useful in understanding the criminal immunity of the executive you otherwise neglect to mention while in office. –
The OLC opinion simply means that, should a president be seriously suspected of a criminal act that should be met with a federal indictment, seeing as how the DOJ wouldn’t indict while the president is in office (I wonder if a state prosecutor might, if the crime isn’t a federal offense?) the procedural steps would involve first removing him from office. The courts can’t do that, but Congress can.
I don’t recall if the â€Clinton must testify†part of the Clinton v. Jones case (this is the part that went all the way to SCOTUS) talked about amenability of a sitting president to criminal process.
I don’t think the (immunity) distinction has any practical effect, but it is an interesting academic question.
The TSA watch list is a good place to start. Ift has a historical record (in particular, its evolving content). All names on the list (and in some cases subsequently removed from the list) came from somewhere. At each of those â€somewheres†there was a process of production.
The watch list had real consequence to the people on the list.
– notwithstanding the blight of having a sitting executive subject to impeachment as the result of criminal behaviour. –
I see, on glancing through the 2000 revisit to the 1973 OLC opinion, references to Federalist papers that indicate removal from office will precede action before a court.
As for finding grounds for impeachment, I don’t take the narrow view, that being requiring the possibility of a criminal trial at law in order to justify bringing articles of impeachment. I subscribe to the broader view, that grounds for impeachment can be other than allegations of criminal wrongdoing. See the impeachment of judge Pickering, for example. Chase’s too.
I think political considerations and a desire to not openly turn the country into a banana republic prevent drawing articles of impeachment for purely partisan reasons.
Mimikatz,
Actually I think there are two things that drive the coverup. First, the equipment that was installed at the telco switches was capable of recording the content of the data and voice communications. That’s the bit I believe they hid from Ashcroft, et. al. Second, they realize that Cheney’s plan to establish a dictatorship (I think we should call it what it is) is in real trouble. They need to stall, cover up, and litigate as long as they can to run out the clock.
I would tend to think that most banana republics emerge of executive excesses as opposed to legislative action against an executive who has ignored statutory prescriptions. But that’s just my banana republic. And of course you win if you bait me into a distracting partisan argument around the true nature of a tropical fruit-funded dictatorship.
Or more importantly to this discussion violations of the 4th Amendment.
I’m not sure if this sheds any light on anything, but I’ve been digging around for more information on Goldsmith and I came up with a Newsweek article from February 6, 2006, titled Palace Revolt concerning among other things the roll that Godsmith and Comey played in staunching the worst abuses of the Bush Administration. In particular it addresses the conflict between Addington (Cheney’s hatchetman) and Comey — with Goldsmith definately in the Comey camp.
The whole thing is fascinating, but here’s the part concerning the NSA wiretapping. Remember that this was only one month after the program was devulged, and I’m not sure if there is a previous public disclosure of the hospital visit (it’s on page 4):
â€Addington’s problems with Goldsmith were just beginning. In the jittery aftermath of 9/11, the Bush administration had pushed the top-secret National Security Agency to do a better and more expansive job of electronically eavesdropping on Al Qaeda’s global communications. Under existing law—the Foreign Intelligence Surveillance Act, or FISA, adopted in 1978 as a post-Watergate reform—the NSA needed (in the opinion of most legal experts) to get a warrant to eavesdrop on communications coming into or going out of the United States. Reasoning that there was no time to obtain warrants from a secret court set up under FISA (a sometimes cumbersome process), the Bush administration justified going around the law by invoking a post-9/11 congressional resolution authorizing use of force against global terror. The eavesdropping program was very closely held, with cryptic briefings for only a few congressional leaders. Once again, Addington and his allies made sure that possible dissenters were cut out of the loop.
â€There was one catch: the secret program had to be reapproved by the attorney general every 45 days. It was Goldsmith’s job to advise the A.G. on the legality of the program. In March 2004, John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, Comey, Ashcroft’s No. 2, was acting as attorney general. The grandson of an Irish cop and a former U.S. attorney from Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his friend—the equally straitlaced and dogged Patrick Fitzgerald—to be the special prosecutor in the Valerie Plame leak-investigation case.) Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey backed them up. The White House was told: no reauthorization.
â€The angry reaction bubbled up all the way to the Oval Office. President Bush, with his penchant for put-down nicknames, had begun referring to Comey as â€Cuomey†or â€Cuomo,†apparently after former New York governor Mario Cuomo, who was notorious for his Hamlet-like indecision over whether to seek the Democratic presidential nomination in the 1980s. A high-level delegation—White House Counsel Gonzales and chief of staff Andy Card—visited Ashcroft in the hospital to appeal Comey’s refusal. In pain and on medication, Ashcroft stood by his No. 2.
â€A compromise was finally worked out. The NSA was not compelled to go to the secret FISA court to get warrants, but Justice imposed tougher legal standards before permitting eavesdropping on communications into the United States. It was a victory for the Justice lawyers, and it drove Addington to new levels of vexation with Goldsmith.â€
I think that this at least suggests that Addington/Cheney were behind the trip. It also suggests that the program at issue was not curtailed, but a â€compromise was reached.â€
Finally, PERHAPS it leaves the impression that rather that responding to any specific super awful violation, Goldsmith took the opportunity with Ascroft sick and Comey in charge to stop the reauthorization simply on the broader grounds that it went around FISA, and Comey agreed, leading to hospital showdown. Perhaps the changes that they subsequently made to continue the program involved the more eggregious data mining aspects, which is what Gonzales is trying to hang his hat on now.
Clearly, this is a speculation based on a possibly ill-informed Newsweek article. Never-the-less the contemporaneous nature of the article to the disclosure of the program and the degree of detail available here is intriguing.
– I would tend to think that most banana republics emerge of executive excesses as opposed to legislative action against an executive who has ignored statutory prescriptions. –
I agree with that. I can’t imagine a banana republic where the seat of power lies in the legislative branch. I was just thinking in a broader context, mindful that judges are amenable to impeachment too, and imagining a sham legislative body (friends of the executive) impeaching judges who don’t hand out favors per the wishes of the banana republic’s boss(es).
I raised the â€banana republic / partisan†example because I think some people might find â€political process†as equivalent to â€decisions made on a purely partisan basis,†and I don’t want readers to take MY use of â€impeachment is a political remedy†as meaning that I hold â€impeachment is a partisan tool.â€
– more importantly to this discussion violations of the 4th Amendment –
The usual remedy for a violation of the 4th amendment is preclusion of use of that evidence in a criminal trial.
IOW, violation of the 4th amendment isn’t, without more, a criminal act.
– Clearly, this is a speculation based on a possibly ill-informed Newsweek article. –
The article doesn’t describe much of the technical detail about the dispute, so even if it’s well informed, we’re still stuck with speculation on the technical details.
I happen to think the adjustment related to documentation of, and substance of, what is referred to as â€minimization procedures.†The DOJ is interested in preserving evidence to facilitate criminal prosecution, and minimization serves that objective.
President Bush and VP Cheney may feel that the war on terror transcends criminal prosecution (there is quite a volume of evidence to support that conclusion), and therefore, preservation of a right to use the evidence in a criminal trial has less importance than …. [and here is where I draw a blank as to â€what exactly is the planned follow up action upon obtaining (possibly inadmissible) evidence?â€]
Rendition? Gitmo? Vapor? Courts; we don’t need no stinkin courts, we got â€strict constructionistsâ€?
Violations of the 4th are certainly tortious. I would hazard to guess with significant irrefutable evidence of willful breaches absent demonstrable good faith that a case could be made and sustained for violations of the 4th as reaching the high crimes and misdemeanors standard.
J. Thomason – I don’t think there is any question about that.
President Bush and VP Cheney may feel that the war on terror transcends criminal prosecution (there is quite a volume of evidence to support that conclusion), and therefore, preservation of a right to use the evidence in a criminal trial has less importance than ….
preventing an attack and saving lives….but enjoy pontificating on the legal aspects as 9/11 recedes from memory
you’ll be reminded soon enough what this is really about
It took considerable digging to find … yesterday I asked if anybody had seen the proposed revisions to FISA. I’ll answer my own question, and hereby cough up some background and detail links. What little substantive analysis I did find is linked here, as is the proposed statutory text as of April this year.
Bush asks Congress to alter 1978 eavesdropping law
Reuters – Fri Apr 13, 2007 3:53PM EDT – By David Morgan
FAS:
Pending Intelligence Legislation
Friday, April 13, 2007
Volokh:
Administration Seeks More Surveilance Authority
Saturday, April 14, 2007
ScotusBlog:
Narrower role for Court on electronic spying?
Saturday, April 14, 2007
April 14, 2007 Draft FISA Legislation
Bush FISA Bill Gives Gonzales Power He Doesn’t Merit, Whitehouse Says
Congressional Record – Friday, May 11, 2007
President’s Radio Address – July 28, 2007
– preventing an attack and saving lives….but enjoy pontificating on the legal aspects as 9/11 recedes from memory –
What? Now wondering out loud and in public amounts to pontificating?
All you did was assert the ultimate conclusion, â€protection via preventing an attack.†I simply wonder how that protection is being effected, after the surveillance has uncovered a threat or potential threat. Do we make the people disappear?
– you’ll be reminded soon enough what this is really about –
That’s cliche. I have an appreciation for the stakes. I don’t think it’s imprudent to question the aggregation of power to one branch of the government. I picture a President Obama, Gore, Kerry, or Richardson with these powers, and it tends to sober my opinion of putting unchecked power in the office of the president..
Italics begone!
I, too, was thinking, as I read through the comments that perhaps it’s not the what of the surveillance but who was making use of the data. As Senator Whitehouse has pointed out twice, access to information about cases and investigations in the department of justice has gone from seven people under Clinton to over 400 under bush. Why? for what purposes? One assumes it’s part of Rove’s game of Republican domination of government. The use of information from data-mining could be a useful part of the larger pattern of trying to insure republican dominance. These players don’t seem to have any regard for the law and/or morality. Why would they be deterred by this being a
’terrorist’ program? All levers of power are fair game. The CYA now could be as much about the misuse of data as is the collecting process itself.
kspena – I am not contradicting you; in fact, I gravitate to our thoughts often as a hypothesis (I don’t, however, have nearly enough evidence to make any firm conclusion). What should be kept in mind, however, is that the surveillance/wiretapping/datamining program is run under the NSA jurisdiction, not the Department of Justice; so the inbreeding of access between the political White House/Executive Branch and the DOJ that has mushroomed under the Bush Administration shouldn’t, at least in theory, account for access to the spying data.
Thanks for your comment, bmaz. I agree the idea is spectulation based on patterns of practice. Who would have thought an administration would out one of its own covert agents for political gain?
Agreed. And I am not for a second saying that such may not be the case with nefarious creatures like Cheney, Rove, Mehlman etc., just that it is not necessarily a function of the expanded expressway of interaction between the WH and DOJ. Or maybe it is, who the hell knows with these guys.
bad faith commentator jodi sounded a bit shrill in the above posts …. wonder why ?
oh btw, bad faith jodi, think seriously about stfu, k ?
buh bye.
The leak designed to save Alberto Gonzales
For multiple and obvious reasons, the story leaked to the NYT and the WaPo does not exonerate Gonzales from perjury accusations.
http://www.salon.com/opinion/g…..index.html
The NSA scandal is not now and never has been about perjury. It is about highly illegal spying activities by our government on American citizens.
The scandal arose because the Bush administration spied on Americans illegally for many years and concealed its criminality. It did so (a) by eavesdropping on the telephone calls of Americans without warrants even though FISA makes it a felony to do that, and (b) by engaging in the even-worse though still unknown spying activities which caused Ashcroft, Comey, Mueller et al. to threaten to quit if it did not cease.
hat was the administration doing prior to 2004 that was so illegal that the entire top level of the DOJ threatened to quit over it? It’s nice that the Senate Judiciary Committee wants a criminal investigation concerning Gonzales’ perjury.
But the real criminal investigation that is needed here – and that has been needed for quite some time – is an investigation over the underlying surveillance crimes – both warrantless eavesdropping and whatever else it was that they were doing that caused the DOJ mutiny on the ground that it was against the law.
Thanks Glenn. Read your whole post on this before finding your post here. Excellent! TNH readers, head on over and read Glenn’s full post. He did a great write-up.
At the very least, we need assurances – from independent, verifying sources – that our Constitutional protections are being enforced no matter what the specifics are of the operational program(s).
Let’s corral this surveillance business – sensibly – within the bounds of checks and balances so that our information isn’t used for partisan political purposes again – ever.
Our biggest problem, at the moment, is that Bush was/is operating a domestic surveillance program beyond legislative oversight and judicial review – and nobody trusts him to have done/do the right thing.
Way back, we’ll all said that ’if Bush were spying on his political enemies, the Press and the Stock Market,’ then that was definitely going too far and impeachable.
Well, the storyline has just crossed into verifying the domestic surveillance part of that concern.
Now, it’s only a question of the targeting that was/is done…
…and nobody trusts Bush.
Will the general populace keep slumbering on? Oblivious to the sleight of hand concealing secret activities behind signing statements on the front end, and exoneration clauses for those same (determined-to-be-not-legal) activities on the back end, once they’ve been caught?
The People continue to be fleeced right before their very eyes…
In the â€I bet he wishes he hadn’t said that†department, April 12, 2000 statement by NSA Director Lt. Gen. Hayden to the House Permanent Select Committee on Intelligence:
Hayden’s complete statement of April 2000 is worth a read, to obtain general background.
I think FISA needs to be adjusted, in particular to bring suspicion of being a foreign terrorist into the â€no warrant†regime, but I’m not buying the â€we need to change the law because technology has advanced†selling point.
The April 2007 changes proposed by the administration are sweeping and radical. There has been surprisingly little discussion on this go around, compared with the amount of activity last year. I foresee an attempt at a bum’s rush to get FISA revision in front of Congress in the next week or so.
Just for comparison, and to illustrate the range of possible revision, read:
109th Congress Surveillance-related bills
S.2453 – National Security Surveillance Act of 2006 [Specter]
S.2455 – Terrorist Surveillance Act of 2006 [DeWine, Graham]
S.3001 – Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006[Specter, Feinstein]
S.3877 – Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006[Specter, Feinstein]
S.3886 – Terrorist Tracking, Identification, and Prosecution Act of 2006 [Frist, McConnell]
H.R.5825 – The Electronic Surveillance Modernization Act [Wilson]
S.3931 – Terrorist Surveillance Act of 2006 [McConnell, Frist]
CRS-RL33669 – Terrorist Surveillance Act of 2006: S. 3931
Windansea: Biggest. Coward. Ever.
Sickening cowardice in the face of a threat, willing to toss the Bill of Rights out the window for an illusion of safety. Pathetic.
EW, waiting for your post on NYT’s edititorial fingering of Cheney (mentioned above) as the one who sent Abu G and Card to Ashcroft’s bedside.
The other issue on probable cause is that it is inherently a judicial determination. Reasonableness (remember when Hayden assserted, unblinkingly, that all NSA had to do was be reasonable?) is a police powers determination, but that is only 1/2 of the search/seizue equation – the police powers(exec) determination of reasonableness (that the search is being undertaken in a reasonable manner AND for a matter reasonably related to the a legitmate Exec function) is checked by and is a check on the judiciary’s correlative determination that there is probable cause to believe that the search truly is reasonable and truly is related to a legitimate exec function)
Excellen post, but I think that this part â€and it only requires one target of the tap to be a non-US citizen†may not be the case. Did they really say this was a limiter? US citizens overseas do not have the same protections as at home and I don’t recall them saying that one part of the call had to be a non-citizen and I don’t think they could say that truthfully was a limiter in any event, bc I’m not sure they could determine the citizenship identity of participants to the calls that quickly – but maybe they could? Out of my field.
I do always like it when someone brings up, as Glenn Greenwald did, Hayden’s assertions that there was no data mining going on.
I didn’t finish reading the comments before posting. Ditto the above re: Greenwald’s article, it is very good.
cboldt – there are various aspects of violation of the 4th. Suppression of the evidence is only one. A Bivens action(Fed – simlar stat actions) is a recourse for damages for the violation and the violation is a crime if you can get a prosecutor to prosecute. Of course,
katie ’My guess is that this is how they â€caught†several of the poor tortured souls who were later exonerated. Giving up this information would lay the ground work for huge law suits, and would put a nail in the coffin in regard to the discussion.’
The Dec/Jan before this happened, Maher Arar had filed his lawsuit, making toture victims act claims. The following Jan, James Comey filed to have Arar’s lawsuit against Ashcroft and Larry Thompson (who directly signed off on Arar’s shipment for torture) tossed for state secrets and international diplomacy reasons. This has happened with el-Masri too. All the military torture deaths are getting wrist slaps – if that. For the actual torture deaths – to heck with the underlying intelligence. Despite the revelations, the long lines of victims and the deceased, the players at the top levels in DOJ for the last 7 years have so thoroughly corrupted what was once the law that the only nails in coffins are those of the victims. The victims of crimes that were commenced after solicitation by the pretty shiney olc memos.
Greenwald is good; but I am not so sure that the commenter appearing on this thread is actually Glenn himself…
– cboldt – there are various aspects of violation of the 4th –
Yes, I know. There is a range of offense and remedy. Findlaw has a decent summary of the remedies and triggers, upon a finding of 4th amendment violation.
J. Thomason
balderdash!