Yoo Misleads You

The most breathtaking moment in John Yoo’s op-ed today in the LAT comes when he seamlessly moves from claiming British "advantages" over our civil liberties protections don’t go far enough to throwing out probable cause as equally old fashioned.

But increasing detention time or making warrants easier to come by merely extends an old-fashioned approach to catching terrorists. These tools require individualized suspicion and "probable cause"; police must have evidence of criminal activity in hand. Such methods did not prevent 9/11, and stopping terrorists, who may have no criminal record, requires something more.

Yoo never mentions probable cause again in his op-ed. But he’s already done it–declared probable cause old-fashioned, "quaint" in the same way the Geneva Conventions are.

A Guide to Domestic Surveillance

Jane Harman is confused. In her statement responding to yesterday’s court decision, she said (looking for a link, not up on her site yet):

Today, a federal court in Detroitstruck down as unconstitutional the President’s NSA Program.  Thedecision is significant in that it represents the first judicialdetermination that the President’s program violates the law and theConstitution.

The terrorists who are plotting against us would like nothing more thanto see us erode our Constitution.  We cannot hand them the victory theyseek.  For that reason, it is essential that all electronicsurveillance of Americans comply with the Foreign IntelligenceSurveillance Act and the Constitution.

By failing to create a legislative framework for this program, theAdministration and Congress have punted this matter to the courts. Nobody should be surprised that the ensuing litigation has createdinconsistent results in different courts and will only contribute tothe "fog of law" that has surrounded this program.

She refers to inconsistent results–which is misleading. You see, the two main cases on the warrantless wiretapping program have not yet shown inconsistent results. Harman appears to be conflating the underlying data collection program (which is probably illegal) with the eavesdropping program (which is definitely illegal).

Of course, Harman is not alone. Bloggers and reporters are also conflating the two programs (though to be fair, unlike Harman, the bloggers and reporters haven’t been briefed on these programs repeatedly). So, as a service to readers, I’m going to post my understanding of the different aspects of what Bush’s NSA is doing to Americans. Of course, this is my understanding–please provide corrections where you’ve got them.

GOP Domestic Spying and "Trepidation"

Amidst the hoopla about threats to America yesterday, a Walter Pincus story about a different kind of threat to America kind of fell through the cracks. Pincusreported that the top two officials of the Counterintelligence Field Activity, CIFA, abruptly announced their resignation (effective the end of the month). Justin Rood at TPMM managed to get a copy of the resignation email, which basically described how two guys decided to resign at precisely the same time.

For the past four years, I have been privileged to serve as your Director and be part of the CIFA family. It has been an honor to serve in that capacity. I am especially proud of all of you and what you have accomplished for the CI Community, for the overall CI mission, and for your co-workers here at CIFA.

Today, I want to share with you my decision to resign as Director and retire from government service. My last day in the office will be August 31.I did not make this decision without trepidation, but the time is right to move on to the next phase of my career.

Mr. Hefferon has also decided to retire, after over 31 years of federal service.[my emphasis]

So were Burtt and Hefferon ousted, or are they getting out before the Democrats get subpoena power before the Cunningham scandal exposes some new abuse on privacy while the getting is good?

CIFA’s Directorates

Before you answer that question, it’s probably worth reviewing the story of CIFA more closely. First, here’s a description of CIFA’s activities, from an earlierPincus story.

Its Directorate of Field Activities (DX) “assists in preserving the most critical defense assets, disrupting adversaries and helping control the intelligence domain,” the fact sheet said. Those roles can range from running roving patrols around military bases and facilities to surveillance of potentially threatening people or organizations inside the United States. The DX also provides “on-site, real time . . . support in hostile areas worldwide to protect both U.S. and host nation personnel from a variety of threats,” the fact sheet said.

[snip]

Another CIFA directorate, the Counterintelligence and Law Enforcement Center, “identifies and assesses threats” to Defense personnel, operations and infrastructure from “insider threats, foreign intelligence services, terrorists, and other clandestine or covert entities,” according to the Pentagon.

CIFA manages the Pentagon database that includes Talon reports, consisting of raw, unverified information picked up by the military services on suspicious activities that could involve terrorist threats. The Pentagon acknowledged last week that the Talon database contained reports on peaceful civilian protests and demonstrations that should have been purged long ago under Defense Department regulations.

A third CIFA directorate, Behavioral Sciences, “has 20 psychologists and a multimillion-dollar budget,” and supports both “offensive and defensive counterintelligence efforts,” according to a government biography of its director, S. Scott Shumate. Shumate was the chief operational psychologist for the CIA’s counterterrorism center until 2003. His group has also provided a “team of renowned forensic psychologists [who] are engaged in risk assessments of the Guantanamo Bay detainees,” according to his biography.

CIFA’s Chronology

And here are some relevant dates of which Pincus reminds us in yesterday’s article and elsewhere:

  • September 2002, then Deputy Secretary of Defense for Counter-Intelligence Burtt (the guy who resigned yesterday) establishes CIFA to oversee counterintelligence units of the armed services; consulting on the new agency was James King, recently retired director of National Imagery and Mapping Agency and MZM vice president
  • Late 2002, Cunningham got Mitchell Wade a data storage contract worth $6 million, of which $5.4 was profit
  • January 2004, Cunningham added $16.5 million to defense authorization for a “collaboration center” that appears to include business for Wade’s company
  • December 2005, Pincus reveals a CIFA database contains raw intelligence data on peace activists (and, presumably, Jesus’ General)
  • March 2006, prosecutors in the Cunningham case announce they’re reviewing CIFA contracts to MZM
  • March 2006, Stephen Cambone announces an investigation of CIFA’s contracting–the investigation is (like the investigation into Dougie Feith) “ongoing”
  • May 2006, Porter Goss resigns under allegations of ties to the Wilkes/Wade bribery ring
  • May 2006, House Intelligence Committee (Peter Hoekstra‘s Committee) first moves to exercise oversight on CIFA
  • August 2006, CIFA director and deputy director resign

The GOP Scheme

Now I’ve been pointing out for months what all this seems to suggest.

Back when Nixon was spying on his enemies, he used the agencies of the US government. He was using civil servants subject to congressional oversight to do his dirty work. But the newfangled Republican party learned in Iran-Contra that, if you outsource the dirty work far enough, you’re more likely to avoid the oversight that will lead to discovery.

[snip]

So let me connect the dots here. Republican legislators have set up this nifty scheme, whereby their buddies ply them with golf trips, swank real estate deals, and prostitutes. In exchange for that booty, they give their buddies contracts at Defense or Homeland Security or CIA. Spying contracts. Under those spying contracts, the buddies spy on American citizens, even funny bloggers and peaceniks. And although it is known that these buddies are a little sloppy with the way they spy on American citizens, they continue to get more work.

The core of the Cunningham scandal is a scheme whereby a big GOP donor and Bush pioneer helps the Pentagon set up a domestic spy agency. The apparently willful  inaction of the committee that should exercise oversight over the agency (and remember, Goss headed the Committee when MZM got the big CIFA contracts) permits CIFA to expand greatly, awarding contracts with huge profit margins and staffing an agency with 70% contractors. And, it turns out, this domestic spy agency is spying on people–Quakers and liberal satiric bloggers–whom the GOP would consider their enemies.

They get to spy on us and make a huge profit.

The Gig Is Up?

All of this may shed some light on another of yesterday’s forgotten stories, about the Dems on the House Intelligence Committee pushing to release the results of an investigation into their committee’s role in the Cunningham scandal.

An internal congressional investigation has found that “major breakdowns” in legislative controls enabled former Republican Rep. Randy “Duke” Cunningham to use his position on the House Intelligence Committee to steer classified government contracts to political cronies, according to a memo distributed this week to Democrats on the panel.

The memo accuses Republicans of backing out of an agreement to subpoena Cunningham, and calls for the public release of a 20-page unclassified report documenting the findings of the investigation.

[snip]

But the internal House probe has found a similar pattern of abuses in contracts involving U.S. intelligence agencies — and includes language describing cases in which the disgraced congressman pressured committee aides to set aside secret funds for his associates, according to congressional sources familiar with the investigation.

The committee’s report, which has not been released publicly, “provides important details about how the committee’s processes were abused to accomplish Cunningham’s illicit aims,” Harman wrote in the memo, a copy of which was obtained by the Los Angeles Times.

The panel’s report also “highlights some major breakdowns in the ability of our committee to prevent the damage even after numerous ‘red flags’ were raised.”

[snip]

Republicans and Democrats are divided over how much of the investigation’s findings should be released. Senior aides say Stern has completed a classified report that is nearly 50 pages long, as well as a 20-page unclassified version.

In her memo, Harman said Democrats should push to have the full unclassified text released to the public.

“There is no reason that our committee should be able to ‘bury’ any unclassified facts about our committee’s business, however unpleasant or embarrassing,” Harman said.

It remains to be seen whether Harman’s pressure will be successful. I’m not holding my breath. But I would bet that, if the report is released, it will reveal that both Peter Hoekstra and Porter Goss allowed Cunningham’s schemes to succeed.

I don’t know why Director Burtt and Deputy Director Hefferon decided to retire suddenly. Were they pushed? Or can they simply read the tea-leaves?

Suffice it to say, the Republicans will probably add Jane Harman to the list of those Congressional Representatives whom GOP voters should fear ascending as Committee Chairs.

Dot Dot Dot, Dash Dash Dash, Dot Dot Dot

Oh man. I can think of no greater, pathetic, fitting, hysterical, sad symbol for the state of our country than the news that the NSA is running out of power.

The demand for electricity to operate its expanding intelligencesystems has left the high-tech eavesdropping agency on the verge ofexceeding its power supply, the lifeblood of its sprawling 350-acreFort Meade headquarters, according to current and former intelligenceofficials.

Agency officials anticipated the problem nearly a decade ago as theylooked ahead at the technology needs of the agency, sources said, butit was never made a priority, and now the agency’s ability to keep itsoperations going is threatened. The NSA is already unable to installsome costly and sophisticated new equipment, including two newsupercomputers, for fear of blowing out the electrical infrastructure,they said.

At minimum, the problem could produce disruptions leading tooutages and power surges at the Fort Meade headquarters, hampering thework of intelligence analysts and damaging equipment, they said. Atworst, it could force a virtual shutdown of the agency, paralyzing theintelligence operation, erasing crucial intelligence data and causingirreparable damage to computer systems — all detrimental to the fightagainst terrorism.

Where to start with this? So we’re the most powerful country in the world. But we can’t seem to manage our infrastructure–neither civilian, nor military–to ensure we retain access to one of our society’s most basic inputs, electricity.

Why Tice?

It has taken me a day or so to report that Russell Tice has been subpoenaed, mostly because I’m still puzzling through it. I’m wondering why Tice. Why not other people almost certainly involved with the leaks to Risen and Lichtblau. I mean, I’d bet my hat that James Comey was a source for Eric Lichtblau, but I haven’t heard about Comey getting subpoenaed. Why not the former technology manager who seems to be a key source for both Risen and Lichtblau and Harris and Naftali?

A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.

“All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.

He or she must have had clearance and must be senior enough to track down fairly easily. Another real doozy of a witnesses would be Mark Klein, who gave explicit details on the AT&T program to Wired News, which then published those details.

Of course, that’s the thing. We don’t know whether Tice is the only supposed Risen-Lichtblau source getting subpoenaed, or whether he’s simply the only one going public about the fact.

Sibel Edmonds’ National Security Whistleblowers Coalition suggests the Tice subpoena relates specifically to the cases against AT&T currently working their wayor not–through the courts.

In addition, the timing of the subpoena appears to be more than a little suspect. On July 25, 2006, Judge Matthew Kennelly upheld the government’s assertion of the state secrets privilege in Terkel v. AT&T. The crucial issue in the case was whether or not the government’s program of surveillance had been publicly acknowledged, and Kennelly wrote “the focus should be on information that bears persuasive indication of reliability.” If there were reliable public reports of the program then the fact of the program’s existence could not be a state secret. Kennelly found that there were no reliable sources of public information about the contested program’s existence sufficient to thwart the government’s need for secrecy. In other words, the existence of the program had not been conclusively established, and the government therefore had a right to prevent probing into the matter. This stops a case that represented a serious threat to the Bush administration.

Professor William Weaver, NSWBC Senior Advisor, stated: “Russ Tice is the only publicly identified NSA employee connected to the New York Times in its December 2005 story publicizing warrantless Bush-ordered surveillance. Tice is also publicly perceived as someone who could authoritatively establish the existence of the program at issue in Terkel; Tice could remedy the defect in the plaintiff’s case cited by Kennelly that allowed the government’s assertion of the state secrets privilege to be successful. Later, on the same day Kennelly’s opinion was filed, the Department of Justice sent out Tice’s subpoena. The date on the subpoena is July 20th, before Kennelly’s decision was filed, but the issue in the Terkel case was so pregnant that it would be easy for the government to anticipate the ruling and only issue the subpoena to Tice if necessary. It has now become necessary, and the government seems to be moving to put pressure on Tice not to reveal information that would confirm the electronic surveillance program at issue in Terkel by threatening him with investigation and possible indictment.”

Though I’d suggest an equally relevant court case and date might be the Hepting v. AT&T case; on July 20th, the same day as Tice’s subpoena got written, Judge Walker allowed the Hepting (the Electronic Freedom Federation) case to go forward.

But I’m not entirely convinced. Mostly, I’m not convinced because I don’t think Tice is the source for the specific details about tapping into the phone switches. For example, in this Reason interview, Tice talks in well-informed but hypothetical terms about a program resembling what we understand to be the AT&T program.

If you wanted to, you could suck in an awful lot of information. The biggest constraint you’re going to have is the computing power you need to do it. You need to have some huge computers to crunch that kind of stuff. More than likely you’re talking about picking it up in a digital format and analyzing it depending on how the program is written depending on whether it’s audio or digital recognition you’re talking about, the computing power is phenomenal for that sort of thing. Especially if you’re talking about mass volumes, if you’re talking about hundreds of thousands of, say, telephone communications or something like that, calls of people just like you and me, like we’re talking now.

Then you have things like, and this is where language specialists come in, linguists who specialize in things like accents and inflections and speech patterns and all those things that come into play. Or looking for key phrases or combinations of key words within a block of speech. It becomes, when you add in all the variables, astronomical. [my emphasis]

He then later says he’s talking about a program no one knows anything about.

REASON: You’re referring to what James Risen calls “The Program,” the NSA wiretaps that have been reported on?

Tice: No, I’m referring to what I need to tell Congress that no one knows yet, which is only tertiarily connected to what you know about now.

By the time this interview was published, both the Risen and Lichtblau article providing more details on the large-scale collection of data and the Harris and Naftali article had already appeared. They provide pretty specific details of intercepting switches, so it’s unlikely that Tice’s secret has to do with the AT&T intercept program.

In the same interview, Tice twice says he doesn’t think the details of the program he’s talking about should become public.

First of all, I don’t want this stuff to leak out. I’m not going to tell you or anyone in the press anything that’s classified, especially about these programs.

[snip]

In my case, there’s no way the programs I want to talk to Congress about should be public ever, unless maybe in 200 years they want to declassify them. You should never learn about it; no one at the Times should ever learn about these things.

Which suggests that Tice’s comments on any hypothetical telecom intercept case do not relate to the program he’s concerned about, and that his comments are not classified. Tice may be telling reporters there’s something big there they still haven’t found; he may be providing guidance to understand the programs they’ve already discovered. Indeed, if you look at how the ABC News story reports he was a source for Risen and Lichtblau,

But Tice disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.

It appears likely he may have just been one of the people telling Risen and Lichtblau the NSA programs were bigger than they initially reported.

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

(Though admittedly, if Tice is one of these sources, it suggests he may have given Risen and Lichtblau the general idea of direct intercept from the switches. Though it still seems that that’s not the program he’s whisteblowing.)

So why Tice, then? FWIW, Tice says he was subpoenaed to cow others into silence.

This latest action by the government is designed only for one purpose: to ensure that people who witness criminal action being committed by the government are intimidated into remaining silent.

Which might mean this is just harrassment–that Tice hasn’t broken any laws, but the government will go after him nevertheless because it will prevent others from coming forward. They’ll tar him as a paranoid former employee fired for cause. They’ll suggest that anyone questioning the domestic spying programs is just equally crazy.

But I also wonder whether the government isn’t trying to scare him from leaking details of the program he says he doesn’t want to leak. Or whether it isn’t trying to scare other whistleblowers and journalists from reporting on the as-yet unreported programs, the ones that seem to be bubbling just beneath the surface.

The AT&T cases are important because, as class action suits targeting the vacuuming of data, they involve everyone. They defy excuses that, “you only need to worry if you’ve been doing something you shouldn’t be,” because the programs target all data going through selected switches. And by targeting publicly traded corporations, they threaten to bring real financial consequences, if not legal ones. (Though TNH’s resident realist Kagro X predicts all of them will still get dismissed on State Secrets grounds, whether at the appellate level or somewhere else.)

But I’ve got a nagging feeling that we’re getting close–close to either the details that prove the known programs have been abused, or to the programs that entail a surveillance so oppressive that even Joe Sixpack will get up in arms over it.

Purge of the Gosslings

Rove Quotes Christy: Ongoing "Case"

Hoekstra’s Threat

I had a feeling there was something more–a lot more–to the Lichtblau-Shane story reporting a surveillance program that Peter Hoekstra hadn’t been briefed on. Only I wasn’t sharp enough to do what texas dem did–look for the letter referenced in the article. Thanks to texas dem, we can see clearly that Hoekstra’s complaints about undisclosed surveillance programs are nothing more than a threat leveled in response to the Administration’s departure from previous efforts to gut the intelligence agencies.

The letter is a primarily a complaint about the nomination of General Hayden to be head of the CIA and–more important still–Hayden’s determination to name Steven Kappes as Deputy Director of the CIA. Hoekstra describes Hayden’s commitment to Kappes as a fundamental departure from previous collaboration between the White House and the House.

Regrettably, the appointment of Mr. Kappes sends a clear signal that the days of collaborative reform between the White House and this committee may be over. I am concerned that the strong objections – not just about this personal selection – are being dismissed completely, perhaps sending us back to the past, less cooperative relationship, at a time when so much more needs to be done. Individuals both within and outside the Administration have let me and others know of their strong opposition to the choice for Deputy Director. Yet, in my conversation with General Hayden it is clear that the decision on Mr. Kappes is final. Collaboration is what got us successful intelligence reform. Why would we want to eschew such a relationship and process that proved so successful? [my emphasis]

Note the reference to "individuals both within and outside of the Administration." Did Dick or Rummy put Hoekstra up to this complaint?

Hoekstra's Threat

I had a feeling there was something more–a lot more–to the Lichtblau-Shane story reporting a surveillance program that Peter Hoekstra hadn’t been briefed on. Only I wasn’t sharp enough to do what texas dem did–look for the letter referenced in the article. Thanks to texas dem, we can see clearly that Hoekstra’s complaints about undisclosed surveillance programs are nothing more than a threat leveled in response to the Administration’s departure from previous efforts to gut the intelligence agencies.

The letter is a primarily a complaint about the nomination of General Hayden to be head of the CIA and–more important still–Hayden’s determination to name Steven Kappes as Deputy Director of the CIA. Hoekstra describes Hayden’s commitment to Kappes as a fundamental departure from previous collaboration between the White House and the House.

Regrettably, the appointment of Mr. Kappes sends a clear signal that the days of collaborative reform between the White House and this committee may be over. I am concerned that the strong objections – not just about this personal selection – are being dismissed completely, perhaps sending us back to the past, less cooperative relationship, at a time when so much more needs to be done. Individuals both within and outside the Administration have let me and others know of their strong opposition to the choice for Deputy Director. Yet, in my conversation with General Hayden it is clear that the decision on Mr. Kappes is final. Collaboration is what got us successful intelligence reform. Why would we want to eschew such a relationship and process that proved so successful? [my emphasis]

Note the reference to "individuals both within and outside of the Administration." Did Dick or Rummy put Hoekstra up to this complaint?

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