About that Data-Mining…

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Actually, my biggest complaint about this letter, from John Conyers, Jerrold Nadler, and Robert Scott, is that they don’t use the word "Data-Mining."

We read with interest the disclosures in yesterday’s New York Times and Washington Postthat a 2004 dispute over the NSA’s secret surveillance program whichled to threatened resignations by Department officials involved a“massive electronic database” program.

We have two potential concerns with the disclosure. First, at a timewhen the Administration is seeking to make changes to the ForeignIntelligence Surveillance Act, it is imperative that all members of theHouse Judiciary Committee be fully apprised of these controversial, andpossibly unlawful, programs, and any related programs. It is difficultto craft appropriate legislative responses unless we have all of therelevant facts concerning these programs.

We have previously requested background information on the so-called“warrantless wiretapping,” “Terrorist Surveillance Program,” or theirpredecessors, as set forth in letters to you dated January 19, February1, and May 17, 2007, and have also sought from you the same informationbeing sought by the Senate Judiciary Committee related to theseprograms and we would reiterate those requests here. We now requestcopies of all opinions, memoranda, and background materials, as well asany dissenting views, materials, and opinions regarding the same,concerning the data Read more →

Data-Mining Three

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This is just a quick post to register two disagreements with Glenn Greenwald’s post claiming the NYT’s data-mining story is a shiny object. First, Glenn claims that the stories were floated by "anonymous sources seeking to protect Alberto Gonzales" and "anonymous pro-Bush sources." But then he goes on to point out that the NYT story (unlike the WaPo story) includes a detail–which I pointed out in my post on the story–that doesn’t help Gonzales.

A half-dozen officials and former officials interviewed for thisarticle would speak only on the condition of anonymity, in part becauseunauthorized disclosures about the classified program are already thesubject of a criminal investigation. Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. [Glenn’s emphasis]

In other words, the story relies on six sources, but at least two of those sources are actually pointing out the same thing that the blogosphere is pointing out: the problem was data-mining, plus other issues. At least two of the sources for the story are not "pro-Bush sources … seeking to protect Alberto Gonzales."

Now, I’m not going to bet any money that the NYT, if two of its sources stated, "well, yeah, data-mining was a problem, but the real problem …" would faithfully render that point of emphasis. But at least as reported, these at-least-two sources who are not helping Bush still confirm that data-mining is part of the problem.

TIA and TSP Timing

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Commenter joejoejoe sent me a superb timeline to show the chronology of Congress’ building opposition to the Total Information Awareness program as it relates to the NSA’s domestic wiretap program (how cool is that? I, the chronology weenie, am getting timelines out of the blue! Better than Christmas!!), which appears at the bottom of this post.

I’d like to pull out just a few salient dates and add four (in bold italics) to what joejoejoe did. I think the time line lends support for the argument that one of the problems–a big problem–with the domestic wiretap program is that it violated clear instructions from Congress.

2/20/03- President Bush signed reconciled House Senate version of above lawwith provision that terminates funding to TIA in 90 days and requires aCongressional update.(Consolidated Appropriations Resolution, 2003,No.1087, Division M, §111(b) [signed Feb. 20, 2003])

5/20/03 -90 days later, Pentagon changes name of TIA from Total InformationAwareness to Terrorist Information Awareness and calls it new program.Problem solved!

7/17/03 – Briefing for Intelligence Committee leadership (Pat Roberts, Jay Rockefeller, Porter Goss, and Jane Harman) on domestic wiretap program. This would be the last briefing before the crisis March 10 meeting.

7/17/03 – After his SECOND briefing on the program, Jay Rockefeller writes his CYA memo to Cheney, which states (thanks to Ann for the reminder on the date):

I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA,Chairman Roberts and our House Intelligence counterparts.

[snip]

As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

[snip]

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

7/18/03 – Senate votes unanimously to blockfunding for the Total Information Awareness program. According to theDefense Department appropriations, no funding "may be obligated orexpended on research and development on the Terrorism InformationAwareness program." – – over Bush admin. objections. Department ofDefense Appropriations Act, 2004, Pub. L. No. 10887, § 8131, 117 Stat. 1054, 1102 (2003)

9/26/03 – Congress eliminates funding for TIA save some military and foreign surveillance exceptions – see Sec. 8131 (see signing statement below)

9/30-10/1/03 – Bush signs ’04 Defense budget with signing statement,

1/04 – Given the pattern established in the prior three years twenty-seven months, there should have been a briefing of Congress in January 2004, but it did not occur.

2/11/04 – Senate Intelligence Committe hearing:"one of TIA’s strongest critics questioned whether intelligenceofficials knew that some of its programs had been moved to otheragencies. Sen. Ron Wyden, D-Ore., asked Director of NationalIntelligence John Negroponte and FBI Director Robert Mueller whether itwas "correct that when [TIA] was closed, that several … projects weremoved to various intelligence agencies…. I and others on this panelled the effort to close [TIA]; we want to know if Mr. Poindexter’sprograms 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 answerin closed session." Asked for comment, Wyden’s spokeswoman referred tohis hearing statements." (via the National Journal, 2/23/04)

3/04/04 (est.) – Comey and Ashcroft agree, "We had concerns as to our ability to certify its legality, which wasour obligation for the program to be renewed." Ashrcroft taken ill.(see Marty Lederman on Comey’s testimony at Balkanization)

3/10/04 – Congressional briefing on domestic wiretap program

3/10/04 – Gonzales hospital visit.

2/3/05 – First briefing of Intelligence Committee leadership after the hospital confrontation, eleven months earlier

Data-Mining Two

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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."  [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.

Data-Mining

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I’ve been arguing for two years that the secret that Bush was hiding about the illegal domestic wiretap program is that they were using crappy data mining programs to pick their targets for wiretaps. In tomorrow’s NYT, they’re almost done filling out that picture.

A 2004 dispute over the National Security Agency’ssecret surveillance program that led top Justice Department officialsto threaten resignation involved computer searches through massiveelectronic databases, according to current and former officials briefedon the program.

Though Shane and Johnston don’t seem to have a sense of how using data-mining to pick targets might introduce problems into the entire concept of probable cause.

It is not known precisely why searching thedatabases, or data mining, raised such a furious legal debate. But suchdatabases contain records of the phone calls and e-mail messages ofmillions of Americans, and their examination by the government wouldraise privacy issues.

Presidential Parsing

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Anonymous Liberal has a really important post that shows that–wait for it–Alberto Gonzales is a lying sack of shit. AL shows that, in the same Senate appearance where Gonzales tried to parse the Administration out of trouble for illegally spying on American citizens by claiming the program wasn’t the program, Gonzales also admitted that the program was the program. Orwell would be proud.

But AL also points back to the radio address where President Bush famously confirmed the program that both was and wasn’t the program, and I see that Gonzales’ precarious parsing was built on top of Bush’s own precarious parsing. Bush’s confirmation consists of confirming certain details about certain activities that have occurred since fall 2001.

In the weeks following the terrorist attacks on our nation, I authorizedthe National Security Agency, consistent with U.S. law and theConstitution, to intercept the international communications of people withknown links to al Qaeda and related terrorist organizations.  Before weintercept these communications, the government must have information thatestablishes a clear link to these terrorist networks.

Those details include intercepting international communications of people with known links to Al Qaeda. Bush repeats, before such wiretapping occurs, "the government must have information that establishes a clear link to these terrorist networks."

Bush’s admission here carefully avoids conceding two details that the program has been reported to include: the tapping of of domestic communications, and the tapping of people whose link to any terrorist networks have only been established through legally-suspect data-mining. In other words, Bush is not admitting to the two aspects of the program that most clearly violate FISA: the tapping of domestic communications, and tapping people for whom probable cause has not been established. These, I’m certain, are the same parsing distinctions that Gonzales has in mind when he refers to the program that is/is not the program.

Following this paragraph of distinctions, Bush makes the only reference to "a program" that appears in the whole address.

Ix-Nay on the Onstitution-Cay

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This is ripe. Apparently, the conservative blogosphere realized there wasn’t a good defense for Harriet’s claim of immunity from being subpoenaed, so they called the White House and begged for talking points. And then they published those talking points. Which, first of all, exposes to all the world that conservative bloggers are willing to gobble any kind of shite thrown at them.

If Congress pursues criminal contempt and the DoJ refuses to prosecute,how do they move forward? — No one really knows. There isn’t anyprecedent on this point.

[Ed. both the White House and Ed Morrissey are pretending they’ve never heard of inherent contempt. Snip]

What about the call for a special counsel on Alberto Gonzales? — Thelaw no longer exists for an independent prosecutor, and the "specialcounsel" is accountable to … Alberto Gonzales.

[Ed. Someone better tell Patrick Fitzgerald, Alberto Gonzales, and Paul Clement–because they would all beg to differ, both about Gonzales’ recusal on this matter or the ability to recuse authority over a special counsel more generally.]

It also demonstrates that neither the "senior official" (is this Fred Fielding, giving transparently erroneous legal advice off the record again?) nor a bevy of conservative bloggers have read the Constitution. At least that’s the Read more →

The USA Purge, to Date

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This is my general review of the interim report on the USA Purge. If you haven’t already done so, make sure you read the post on the Iglesias cover-up, which I believe to be the most important aspect of the report.

The report on the findings to date in the USA purge lists the following crimes and violations that may have been committed in the course of the USA firings:

  • Obstruction of justice, attempted obstruction of justice [18 USC 1503, 1505, 1512(c)(2)]
  • Criminal Hatch Act violations [18 USC 606]
  • Presidential failure to ensure that laws are faithfully executed [Constitution, Article II, Section 3]
  • Civil Hatch Act violations [5 USC 7323(a)(1)]
  • Federal Civil Rights laws [18 USC 242]
  • Conspiracy [18 USC 2, 371]
  • Perjury [18 USC 1621]
  • False Statements [18 USC 1001]

For a number of these potential crimes (particularly obstruction and criminal Hatch Act violations), the report cites multiple possible violations. This is a list that bloggers on this topic need to keep ready at hand, because it puts in concrete terms what this whole investigation is about. This report, for the first time, makes clear that Congress is investigating real criminal violations, that evidence suggests a crime was committed, and that by invoking executive privilege, the White House is obstructing the investigation into potential crimes.

The David Iglesias Cover-Up

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Amid the excitement of contempt charges and more lies from Gonzales and Mueller’s exposure of those lies, the House Judiciary Committee released a report detailing what the USA Purge investigation has found to date. I’ll do a more comprehensive review of what’s in it and what’s not. The most incendiary thing in there (although it’s not presented as such, yet) is the implication that DOJ conducted a seemingly coordinated cover-up of the reasons for David Iglesias’ firing.

You’ll recall that the first reasons given for his firing was that he was an "absentee landlord," because his reserve service and other duties took him away from the office so much that his First Assistant USA was doing his job. Later, stories of complaints from New Mexico Republicans came out–but those complaints were usually placed early in the process–in 2005. Slowly, the news of calls from Heather Wilson and Senator Domenici came out. But most of the document dumps–particularly as they pertained contacts with Alberto Gonzales–focused on those earlier contacts.

The report suggests that this focus on earlier calls may have been deliberate deception.

Other statements of concern [with regards to inaccuracy] by the Attorney General include his testimony regarding calls received from Senator Domenici in late 2005 and early 2006. The Attorney General testified that, in those calls, the Senator criticized the performance of David Iglesias, which was useful testimony for hte Administration because it suggested that Senator Domenici had concerns about Mr. Iglesias well before the controversy surrounding the 2006 election. But Department documents and testimony of other witnesses strongly indicate that the calls actually concerned the Senator’s request that more resources be provided to Mr. Iglesias’ district. Principal Associate Deputy Attorney General Will Moschella, for example, was present during each of these calls and testified that he understood them all to be focused on the Senator’s concern that more resources be provided to Mr. Iglesias. Mr. Moschella further testified that the Attorney General never relayed to him that the calls were critical of Mr. Iglesias. Supporting Mr. Moschella’s recollections of the calls, the email scheduling of one of these calls states, "Senator Domenici would like to talk to the AG regarding his concerns about staffing shortages in the U.S. Attorney’s office (District of NM). And in fact, in response to the Senator’s concern, new prosecutorial resources were provided to Mr. Iglesias in July 2006. (14)

The Rove Subpoena

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I guess it’s my day to be underwhelmed.

I find it really hard to get excited over SJC issuing Rove a subpoena today. That’s partly for tactical reasons. Until we get the Sergeant at Arms to arrest Harriet and hold her in contempt, after all, it doesn’t make sense to subpoena Rove because we don’t have the tactically proven tools to enforce such a subpoena.

But it’s also a question of focus. We’ve got a well-supported claim against Alberto Gonzales moving foward right now. And we should have the same on Cheney–there is the same richness of evidence to go after Cheney. Whereas with Rove (with the exception of Presidential Records violations on the RNC emails and, eventually, Abramoff) we don’t have that evidence. And without tactical tools to force him to turn over the evidence …never mind, I’m going in circles.

So without that evidence, we’re forced to make claims that, I suspect, aren’t entirely well-founded. For example, Leahy states the following in his statement on the subpoenas.

What the White House stonewalling is preventing is conclusive evidence of who made the decisions to fire these federal prosecutors.  We know from the testimony that it was not the President.  Everyone who has testified said has said that he was not involved.  None of the senior officials at the Department of Justice could testify how people were added to the list or the real reasons that people were included among the federal prosecutors to be replaced.  Indeed, the evidence we have been able to collect points to Karl Rove and the political operatives at the White House.

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