Don’t Cry For The Telcos – Bush & Cheney Are The Only Ones That Are Dying For Immunity

/80 Comments/in , , , , , /by

The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both Read more →

FISA and the Warrantless Wiretap Briefings

/76 Comments/in , /by

As we await certain doom because the NSA has to rely on FISA to authorize any new warrantless wiretaps (though it can continue all the programs currently in place), I wanted to correct what appears to be a common mistake about the earlier warrantless wiretap program. I’ve seen a lot of people claim that all of Congress knew of the program, that the Gang of Eight got regular briefings about it, that Congress wants the telecoms to get immunity because leaders in Congress want immunity.

The reality–at least according to the published record of those briefed on Bush’s warrantless wiretap program–is much more narrow. And as this fight moves into the House, it’d pay to have a clear understanding of who got briefed and how they claimed to have responded.

The Gang of Eight was not briefed regularly on the program

Kit Bond likes to claim that the Gang of Eight–the majority and minority leaders of both houses of Congress and the majority and minority leaders of both intelligence committees–were briefed on the program. That’s a lie. In general, the Administration briefed the intelligence committee heads, but not the Majority and Minority leaders. The first time the entire Gang of Eight was briefed on the program was when, on March 10, 2004, the Administration tried to get them to authorize continuing the program even though Jim Comey said it was illegal. At the time, the following were members of the Gang of Eight:

  • Denny Hastert
  • Bill Frist
  • Tom Daschle
  • Nancy Pelosi
  • Porter Goss
  • Jane Harman
  • Pat Roberts
  • Jello Jay Rockefeller

After Harry Reid became Minority Leader of the Senate in 2005, he received a briefing on February 3, 2005–by himself, as did Crazy Pete Hoekstra when he became HPSCI Chair in September 2004. There was not any other briefing where the entire Gang of Eight got the same briefing. Though after Risen and Lichtblau exposed the program, Jello Jay received a briefing with the Republican half of the Gang of Eight, and then Reid, Pelosi, and Harman received a briefing (which Roberts also attended).

As Arlen “Scottish Haggis” Specter has pointed out, the Administration was in violation of the National Security Act when, with the exception of March 10, 2004, it limited its briefings to just the intelligence committee heads.

Read more →

Technical Glitches and Minimization

/44 Comments/in , , /by

A number of you sent me this Eric Lichtblau story describing how, because of a "technical glitch," the FBI accidentally got all the emails going to one domain, rather than just the emails to and from their particular target.

A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

F.B.I. officials blamed an “apparent miscommunication” with the unnamed Internet provider, which mistakenly turned over all the e-mail from a small e-mail domain for which it served as host. The records were ultimately destroyed, officials said.

Bureau officials noticed a “surge” in the e-mail activity they were monitoring and realized that the provider had mistakenly set its filtering equipment to trap far more data than a judge had actually authorized.

The episode is an unusual example of what has become a regular if little-noticed occurrence, as American officials have expanded their technological tools: government officials, or the private companies they rely on for surveillance operations, sometimes foul up their instructions about what they can and cannot collect.

The problem has received no discussion as part of the fierce debate in Congress about whether to expand the government’s wiretapping authorities and give legal immunity to private telecommunications companies that have helped in those operations.

But an intelligence official, who spoke on condition of anonymity because surveillance operations are classified, said: “It’s inevitable that these things will happen. It’s not weekly, but it’s common.”

My response to this is sort of similar to Kagro X’s (and given all my posts about minimization, I would certainly take issue with Lichtblau’s assertion that "the problem has received no discussion"). This story illustrates why minimization is every bit as important in the FISA discussion as immunity.

Hmm. Minimization. That rings a bell. What was it?

Oh yeah! The FISA fight in the Senate! Minimization was a concern because the Senate bill pretty much gave the government a free hand to suck up every phone call, e-mail, text message, etc. there is, and — amazingly enough — had to be amended on the floor in order to even approach a proper handling of minimization concerns. Read more →

A $40 Million “Comedic Gold” Pissing Contest with the Chinese

/39 Comments/in , /by

Yesterday, Danger Room reported that the Administration’s rationale for shooting down the rogue spy satellite is laughingly bogus.

The Pentagon says it has to shoot down a malfunctioning spy satellite because of the threat of a toxic gas cloud. Space security experts are calling the rationale highly unlikely. "Having the US government spend millions of dollars to destroy a billion-dollar failure to save zero lives is comedic gold," one tells DANGER ROOM.

[snip]

So what could that other reason be?

Our veteran space security specialist believes there are several. To him, the satellite shot is a chance for the military to try out its missile defense capabilities; a way to keep secret material out of the wrong hands; and a warning to the Chinese, after they destroyed a satellite about a year ago. He shared some educated guesses:

My first thought is that MDA [Missile Defense Agency] is always looking for ways to pimp their systems and provide further justification that they work. The upcoming change in Administration is almost guaranteed to result in missile defense losing the top-level advocacy that it has enjoyed for the last several years. Any additional missions and justifications that the missile defense community can provide would increase the likelihood of their systems (and budgetary power) surviving.

An additional reason could be that destroying the satellite would prevent any chance of another nation getting access to any of the potentially sensitive technology on board. However, I have heard from other sources that supposedly the NRO [National Reconnaissance Office – the country’s spy satellite shop] is actually against the "shootdown" (and I hate that term – the satellite is not flying and is coming down regardless of whether or not it gets hit by a missile). Their absence at the press briefing could lend some weight to this rumor, although it could also be explained by the nature of the satellite and its still classified link to the NRO.

My real concern is that this is simply a knee-jerk reaction made by the Administration in response to the purported threat by the Chinese. Since the April 2007 ASAT [anti-satellite] test, there have been rumors and whispers going around that the Administration and like-minded individuals are looking for more sticks (instead of carrots) to use against China. Read more →

AJ Rossmiller: Why Bloggers Are Better Informed than Condi Rice

/13 Comments/in /by

still-broken.jpgAJ Rossmiller (of AmericaBlog fame) nailed the results of the 2005 Iraqi election. You might recall that as the election where, after it had long become clear Ahmad Chalabi had little base of support in Iraq, some anonymous sources in the Administration nevertheless had great hopes that somehow Chalabi might end up as Prime Minister.

Though he lacks any mass appeal, some U.S. diplomats even cite the secular Shi’ite as a possible compromise candidate for prime minister in a coalition government.

But Chalabi won just .5% of the vote. Iyad Allawi, in whom the Administration also invested their hopes, won just 8% of the vote. And the Shiite coalition dominated by SCIRI and the Sadrists got 41% of the votes. In his book, Still Broken, AJ describes that he saw this coming.

After Iraq’s winter elections, the results validated the predictions contained in the paper I’d written in the fall. It created something of a stir because the paper turned out to be remarkably accurate, far more so than the forecasts of other agencies and departments. Before the election occurred, a high-ranking official requested a follow-up evaluation of our assessments, and I wrote a memo that described our precision. The memo made its way up through the chain, and a few days later the office got a note from Stephen Cambone, the Undersecretary of Defense for Intelligence, praising both the prediction and the self-evaluation.

Unfortunately, the bulk of the last half of AJ’s book describes how such accurate predictions are generally weeded out by higher-ranking analysts worried that their office’s work product might piss off the Administration. For example, AJ describes some of the conversations leading up to the election (edited to take out classified information), where people argued against his analysis because it didn’t accord with that of other intelligence agencies.

"You’re being too pessimistic. [The secularists] are gaining strength."

"There’s no way Iraqis will vote for [those in power] again. We can’t pass this up the chain."

"[Other agencies] are predicting something totally different and we need to make sure we’re not too far off message with this."

Read more →

More Charges for Dusty Foggo?

/41 Comments/in /by

The government has agreed to move the Dusty Foggo trial–the last remaining indictment from the Duke Cunningham scandal–to Eastern District of VA to make it easier for the CIA and its friends to testify in the trial (h/t chrisc). But the really interesting part of the news is the indication that prosecutors have found more potential charges against Foggo at precisely the same time as they announce they’re dropping charges against Brent Wilkes in the same case.

Federal prosecutors agreed Thursday to move the corruption case of former Central Intelligence Agency official Kyle “Dusty” Foggo to Virginia and hinted he will face more charges in the future.

In addition, prosecutors said they will drop charges in that case against Foggo’s lifelong friend and co-defendant, former Poway defense contractor Brent Wilkes.

[snip]

For the past several months, Foggo’s Washington, D.C.-based lawyers have asked Burns to transfer the case out of California. They said it made sense because 90 percent of the actions alleged in the complaint took place in that area and not in Southern California, and virtually all the witnesses and documents are based there.

While Burns agreed the case should be moved, both prosecutors and Wilkes balked. But on Feb. 1, Wilkes dropped his objections to the move.

The government followed suit Thursday. In a brief court filing they said that “the government has recently uncovered evidence to support additional charges” against Foggo.

Call me crazy, but it sure looks like–faced with the possibility of a 60 year jail sentence–Brent Wilkes all of a sudden remembered some evidence against Foggo that he had previously forgotten.

Duke Cunningham. The gift that keeps on giving.

Update: I’m wrong–it doesn’t look like Wilkes flipped. Perhaps Michael did, but not Wilkes.

What’s happening is a big game over venue. Foggo originally asked for venue in ED VA. The court never finally ruled on that. But then Foggo switched his request, asking that it be moved to DC. Here’s why:

Defendants Kyle Dustin Foggo and Brent Roger Wilkes have jointly moved for transfer of venue in this case to the District of Columbia, on the basis of convenience to the parties pursuant to Fed. R. Crim. P. 21(b). Defendant Wilkes has also moved for transfer pursuant to Fed. R. P. 21(a). Defendant Foggo previously filed a motion to transfer the case to the Eastern District of Virginia (“EDVA”), which was denied without prejudice, and then renewed that motion, Read more →

Will The House Honor Their Oath To Office, Or Follow The Senate’s Lead And Cave To Fear?

/40 Comments/in , , , , , /by

Some of us, okay, I am referring to myself, thought that FISA was cooked yesterday (really, I have thought this from the second they announced the unanimous consent agreement and bi-partisan extension baloney) and that the fork might as well be stuck in. As I said in the last thread,

…the House is putting on what appears to be a better showing than the Senate, but I have no doubt that it is all kabuki and the deal is done. I am pretty much positive that Pelosi, Hoyer and Boehner have their skids all greased and did so in conjunction with Hanoi Harry and the Senate Stumblebums. It is good to keep in mind that ALL of the representatives are up for election (only a third, give or take a few, of the Senate), so they have a vested interest in putting on a show. When the curtain closes, the final act will have been the same though.
…
Remember, we thought there was at least a fighting chance in the Senate, and then all those eloquent and moving words by Chris Dodd, all followed by a whopping 29 Senators having the one ethical bone in their bodies to protect the constitution. Depressing. There is no way the House is going to squelch this after the Senate did that.

I still believe that analysis, but I will have to say that the House has put on a better show today than I expected, even after seeing the John Conyers letter issued evidencing that a little fight might be left in the old boys after all.

Cboldt had this to say last Saturday about the interplay between the Senate and House:

This latest push by the progressives, plus the fact that they have another extension ready, give me a little hope; but not much

The number of signatories, and their general “place” in the hierarchy of power, inclines me to think they are being “humored.” Their objection and voice can’t be blocked, and while it’s good to let them express their point of view, I’m not sure there is enough weight of objection in the House as a whole.

Yes, the right things are being said. But not by many.

The procedural details are in accord with the substantive material (e.g., contents of amendments, UC agreement) and a vote breakdown that heavily favors capitulation to the DNI demands. I wouldn’t be shocked if there was another extension, as a token political concession to the objectors, but I don’t expect Congress to send another extension to the WH.

I Read more →

FISA Liveblog And Trash Talk Thread Monday 2/11/08

/121 Comments/in , , /by

RevDeb and Selise ask for a forum for discussion of the FISA debate currently on CSPAN-2; who am I to say no? Discuss away my fine friendlies…….

Arlen “Scottish Haggis” Specter Enumerates Bush’s Law-Breaking

/15 Comments/in , , /by

(Thanks to Selise for the YouTube)

Yesterday, Scottish Haggis went even further than he did the other day the other day in asserting that Bush broke the law when he instituted his illegal wiretapping program. He asserted flatly that Bush had violated two statutes (FISA and the National Security Act).

I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance.

But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President.

I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority.

But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure–really to get the confirmation of General Hayden as CIA Director–before the executive branch finally complied with the statute to notify the full Intelligence Committees.

Read more →

Feingold Slaps Down Bond’s, Mukasey’s, and McConnell’s “Tired Accusations”

/50 Comments/in , /by

Senator Feingold noticed the same thing I noticed today: Republican opponents of his amendments are mischaracterizing his amendments.

[Bond] referred to our concerns that somehow the rights and privacy could be affected by this bill as "tired accusations." I object to that characterization. I think that this is clearly the kind of thing we should be worried about and debating, but I’ll tell you what is a "tired accusation"–the notion that somehow our amendment would affect the ability of the government to listen in on Osama bin Laden–that is a tired and false accusation. The Senator from Missouri said that if Osama bin Laden or his number three man–whoever that is today, after the last number three man in al Qaeda was just wiped out–calls somebody in the United States, we can’t listen in on that communication unless we have an independent means of verifying that it has some impact on threats to our security from a terrorist threat. That’s what he claims. That’s what he claims, that we wouldn’t be able to listen in on that kind of conversation. That is absolutely false.

Read more →

image_print