One lingering suspicion that they’re just moving this off the books:

After several requests from the Homeland Security Committee callingfor a moratorium on the controversial use of spy satellite imagery fordomestic purposes, the Department has heeded the call and delayed itsplanned October 1st launch of its new National Applications Office(NAO). The Department has cited the need to address unanswered privacyand civil liberties questions from Congress – as addressed in theCommittee’s September 6th hearing on the matter and also in lettersfrom August 22nd and September 6th from Committee Members.

Rep.Bennie G. Thompson (D-MS), Chairman of the Committee on HomelandSecurity, released the following statement regarding the decision:

“Whilewe are pleased by the Department’s decision to go back to the drawingboard and get it right, we are troubled by its silence on the secondpart of our request: that Congress also be provided ‘a full opportunityto review the NAO’s written legal framework, offer comments, and helpshape appropriate procedures and protocols.’

Even putting aside my suspicion this is just another head fake to move surveillance beyond the grasp of Congress, Thompson’s point remains. The Administration thus far refuses to allow Congress some input into what appropriate use of satellite surveillance of civilians would be.

Well, at least for the moment Chertoff says he’s not going to use satellites to peek into my bedroom. That’s one victory, anyway.

Bill Leonard is resigning at the end of the year.

It is with deeply mixed emotions that I inform you I have decided to leave government service at the end of the calendar year.

[snip]

I will miss all the great public servants at the National Archives as I move on to the next phase of my professional life. Nonetheless, I look forward to new opportunities to serve this great nation and the American people.

Leonard, of course, is the guy who took on Dick Cheney’s creative theories about classification and declassification. As Secrecy News notes,

In pursuit of that integrity earlier this year, Mr. Leonard famously challenged the Office of the Vice President, which decided in 2003 that it would no longer submit to longstanding classification oversight procedures.

After the Federation of American Scientists filed a formal complaintconcerning the OVP’s non-compliance, Mr. Leonard urged Cheney aideDavid Addington to reconsider its position. When Addington ignored therequest, Mr. Leonard exercised his authority to raise the issue withthe Attorney General, who is obliged by the executive order onclassification to render an interpretation of the order’s requirements.

Althoughno response from the Attorney General was forthcoming, the episodeturned the Vice President and his unchecked secrecy into an object ofpublic ridicule. (See "Vice President Makes Secrecy Policy a Joke (Literally)," Secrecy News, June 26, 2007).

Mr.Leonard’s unexpected resignation naturally invites speculation that thefriction between him and the Office of Vice President was a factor inhis departure. However, his associates say there is no specificevidence of that.

Perhaps we ought to make a concerted effort to get a ruling on whether Dick is a Fourth Branch before Leonard leaves?

The Democrats on the House Homeland Security Committee are trying to force the Administration to implement procedures for protecting the privacy of Americans before it will approve funding that will fund the Administration’s domestic satellite surveillance program. In their letter to the Democrats who oversee this appropriation, they put a price tag on all the surveillance programs the Administration has had to scrap because they didn’t first implement procedures to protect Americans’ privacy. That number? $290 million dollars.

In the last three years, at least four programs — including the $140million Secure Flight Program; the $100 million Computer AssistedPassenger Prescreening System II (CAPPS II) program; the $42 millionAnalysis, Dissemination, Visualization, Insight and SemanticEnhancement (ADVISE) program; and the $8 million MultistateAnti-Terrorism Information Exchange Pilot Project (MATRIX) — have beeneither cancelled or suspended by the Department as a result of itsfailure to adhere to applicable privacy rules and regulations. Weappreciate that Democrats on the House Homeland Security AppropriationsSubcommittee played a critical role in bringing to light thevulnerabilities of these programs. Each of these programs, ifimplemented, would have compromised the privacy rights of hundreds ofthousands, if not millions, of Americans. We do not want the Departmentto repeat the same mistakes with this program.

Given the couple of weeks we’ve been having with our elected representatives in Congress, I’m not holding my breath that they will succeed in holding up the funding of this program until adequate safeguards are in place. And in any case, Kagro X will surely point out that defunding isn’t necessarily going to prevent this Administration from doing what it wants to. It’s all about the Unitary Big Brother, you know.

But I do think it’d be effective if Democrats began to talk about all the money wasted because BushCo simply can’t implement programs with adequate oversight.

Larry Craig’s not gonna go, he says. At least not yet.

That’s not that big a surprise–he had been threatening to un-resign since early in September. Though his decisions to resign and then un-resign correlate curiously with his receipt of a subpoena in the Brent Wilkes trial.

August 13: Subpoenas issued (to House members)
August 27: Roll Call busts Craig’s bust
August 28: "I am not gay and I have never been gay."
September 1: Craig resigns, effective September 30
September 4: Craig says he may un-resign
September 5: Subpoenas served (to House members)
September 26: Craig says he’s staying put, for now
October 2: Scheduled subpoena date for all House members subpoenaed (and probably Craig too)

Now, Craig was still in Idaho the first week of the month, so I assume he was officially served his subpoena after the House members. Though word of the Wilkes subpoenas may have surfaced by the time Craig did his resignation headfake.

Craig called himself an old friend of Duke Cunningham and claims that he was ignorant to Duke’s bribing ways. But Wilkes Craig also appears to have been a clear recipient of a quid pro quo–where he supported an earmark for Wilkes in exchange for at least $43,500 in donations from Wilkes’ employees. So Craig may well have some insight into "the Congressional appropriations process and how it works" that he’d rather not share under oath.

And frankly, I suspect Craig’s colleagues probably don’t want him to share it under oath, either. From the House Counsel’s response to the subpoena, it appears that a Congressman has a good deal of immunity from subpoena (though I’m not sure if the Senate, too, has a rule that prohibits him from testifying). But it’s not clear that that immunity extends to disgraced former Senators.

By prolonging his resignation, Craig may well be outlasting his Wilkes subpoena, until such a time as it gets quashed because Senator Larry Craig enjoys immunity for such things. This week, at least.

Airport Update: Paul Kiel says that the Senators haven’t gotten their subpoenas yet.

Note that Kiel misses one key detail about why Inouye and Rockefeller (as well as Craig) would be subpoenaed. All three appear on a list of people whose re-election Mitch Wade believed would help MZM. So the ties between Inouye and Rockefeller and this bribery ring may well pre-date their chairmanship of Defense Appropriations and SSCI respectively.

The House response to the Brent Wilkes subpoena is now online–it’s 81 pages long. I’ll comment more on the rationale for quashing the subpoenas in an update (I’ve got a talk to go give shortly, but the short version is speech and debate). But some initial details:

• The subpoena to Ike Skelton has been withdrawn
• Wilkes also subpoenaed: Carl Levin and Jay Rockefeller (no doubt in their role as Armed Services and SSCI Chair), Larry Craig, Daniel Inouye (both recipients of Wilkes largesse; here’s a question–is Craig sticking around the Senate to retain immunity? And will the Senate let him?), and Josh Bolten, Robert Gates and Gordon Craig

After some back and forth, the General Counsel of the House was able to get Geragos to explain that he was interested in information "concerning the congressional appropriations process and how it works." No, really?

There’s more detail on the subpoenas to Hunter and Lewis (big surprise) and Murtha and Reyes, as follows.

In what might be the best testament to the wisdom of mounting primary challenges, Jane Harman has turned into a bulldog debunking this Administration’s lies to drum up support for expanded surveillance. On Olbermann yesterday, she revealed that the terror threat the Administration used to scare up support for the FISA amendment came from a source deemed to be unreliable.

Well the chatter was up all summer at the level of pre-9/11 chatter–that means the conversations that our intelligence community learns about but I had been told by a  member of Congress that there was a specific piece of intelligence about a threat to the Capitol. I found it. It took some work to find it. It’s classified, so I’m not going to tell you specifically what it said but on the face of the document it said that the intelligence community did not deem the source to be reliable. [my transcription]

This is bad enough–that some fan of Big Brother circulated this rumor even though it was, on its face, not a credible threat.

But I wanted to recall the nature of the unreliable sources behind the case for war against Iraq. There were at least three INC-sponsored defectors who had been coached to mislead the American intelligence community. Those defectors told the intelligence community precisely what they needed to hear to justify an invasion of Iraq. And that intelligence was used in spite of clear warning that it was unreliable.

Is this happening again? Does the AEI have another defector factory, supplying false intelligence about Al Qaeda threats to DC? It’d be awfully convenient if they could drum up a threat any time they needed to shred our civil liberties.

Paul Kiel notes the most curious of the three recent filings from the Wilkes/Michael case, in which prosecutors attempt to prevent Wilkes from citing duress as his defense against the bribery charges. I think the target of this filing is not–or not just–Duke Cunningham. Rather, I think prosecutors filed this to stave off Wilkes’ Congressional testimony ploy. I say this, first, because they’re only addressing Wilkes here, not Michael, and Wilkes is the one who subpoenaed 13 members of Congress. Further, prosecutors are rather sketchy about why they’re filing this motion.

Further, Wilkes has proffered no facts that would support a necessity defense, and in his post-indictment statements, vehemently denied that Cunningham demanded any bribes, or that he (Wilkes) had provided any. Thus, there may not be a dispute on this matter, but in an abundance of caution, the Government moves to preclude defendant Wilkes from presenting irrelevant argument or evidence about duress or necessity, including economic coercion or extortion.

So it seems like they’re trying to anticipate some unexpected move on Geragos’ part.

Finally, an extortion claim would explain one reason for Wilkes to subpoena those 13 Congressmen (or, at least the ones with a healthy earmark addiction). Imagine if Wilkes brought them in and asked them whether it was possible to get these DOD and intelligence contracts. He’d basically be arguing that Congressmen routinely hit up contractors for bribes–you know, things like antique furniture and not so antique prostitutes.

After all, the prosecutors show that Wilkes had a 9-year history of bribing Cunningham. To explain that away, he’s going to have to establish that those bribes were the cost of doing business. And that, I suspect, is why he’s subpoenaed the earmark patrol.

There’s something that Director of National Intelligence Mike McConnell has suggested in the past, but which he has made crystal clear in his testimony today. The Administration has compartmentalized him out of the warrantless wiretapping program as it existed before he became DNI earlier this year. Senator Leahy made this clear–but then dropped the obvious follow-up. Here’s my rough transcript of the exchange:

Leahy: Obviously, you’ve seen the historical justification for these programs.

McConnell: I have not

Leahy: You’re lobbying to have us wipe out these cases retroactively by legislation. Isn’t this kind of asking us to buy a pig in a poke.

McConnell: I object to the word lobbying.

Leahy: I’m going back to July and August. You were advocating for.

McConnell: I’m advocating for what we need to do.

The follow-up Leahy missed, of course, was the question, "How the fuck can you lobby for immunity when you have no fucking clue what the telecomm companies were doing?" (I don’t think Leahy uses that language, but I can guarantee you he has heard it.)

Regardless, the implication is clear: the Administration has sent McConnell out to be their spokesperson for the reasonableness of the Administration’s wiretapping programs. And all the while they have ensured that he doesn’t know just how unreasonable they have been.

This shouldn’t surprise us. After all, we’ve known for some time that the Administration only pulled off its illegal program in the past by compartmentalizing information so that John Ashcroft and Jay Rockefeller could not really assess–or even understand–the program. But given the illegal uses to which deliberate  compartmentalization has been put in the past, don’t you think we ought to insist that it end going forward?

I joked earlier that the Administration had requested FISA be expanded so that Monica Goodling could make FISA certifications.

I’ll come back to his summary of the extra goodies the Administrationis requesting (the short version: they want to make it impossible forany case relating to wiretapping to go through normal courts, and theywant to expand the universe of people who can make FISA certificationsto include Monica Goodling non-Senate approved people the President designates).

That was based on this language from Wainstein’s testimony.

Section 404 also would increase the number of individuals who can make FISA certifications. Currently, FISA requires that such certifications be made only by senior Executive Branch national security officials who have been confirmed by the Senate. The new provision would allow certifications to be made by individuals specifically designated by the President and would remove the restriction that such individuals be Senate-confirmed. As this committee is aware, many intelligence agencies have an exceedingly small number of Senate confirmed officials (sometimes only one, or even none), and the Administration’s proposal would allow intelligence agencies to more expeditiously obtain certifications.

I thought I was being pretty funny. Until I read this, from Spencer Ackerman.

The most interesting thing about the Dan Rather complaint, IMO, is the description it gave of CBS and Administration attempts to spike the Abu Ghraib story.

In late April 2004, Mr. Rather, as Correspondant, and Mary Mapes, a veteran producer, broke a news story of national importance on 60 Minutes II–the abuse by American military personnel of Iraqi prisoners in the Abu Ghraib prison. The story, which included photographs of the abusive treatment of prisoners, consumer American news media for many months.

Despite the story’s importance, and because of the obvious negative impact the story would have on the Bush administration with which Viacom and CBS wished to curry favor, CBS management attempted to bury it. As a general rule, senior executives of CBS News do not take a hands-on role in the editing and vetting of a story. However, CBS News President Andrew Heyward and Senior Vice President Betsy West were involved intimately in the editing and vetting process of the Abu Ghraib story. However, for weeks, they refused to grant permission to air the story, continuously insisting that it lacked sufficient substantiation. As Mr. Rather and Ms. Mapes provided each requested verification, Mr. Heyward and Ms. West continued to "raise the goalposts," insisting on additional substantiation.

Even after obtaining nearly a dozen, now notorious, photographs, which made it impossible to deny the accuracy of the story, Mr. Heyward and Ms. West continued to delay the story for an additional three weeks. This delay was, in part, occasioned by acceding to pressures brought to bear by government officials urging CBS to drop the story or at least delay it. As a part of that pressure, Mr. Rather received a personal telephone call from General Richard B. Myers, Chairman of the Joint Chiefs of Staff, urging him to delay the story.

Only after it became apparent that, due to the delay, sources were talking to other news organizations and that CBS would be "scooped," Mr. Heyward and Ms. West approved the airing of the story for April 28, 2004. Even then, CBS imposed the unusual restrictions that the story would be aired only once, that it would not be preceded by on-air promotion, and that it would not be reference on the CBS Evening News.

By my count, we’ve got: