Remember this photo? This particular version is from Stephen Crowley of the New York Times–it’s part of a slideshow they’ve got up to commemorate the demise of Turdblossom. Go look through the slideshow and tell me whether you think they’re emphasizing the centrality of scandal to Rove’s tenure (there’s a hot picture of Rove and Luskin in there, for example, walking out of Prettyman).

In addition to Crowley’s, there are a number of other versions of this photo. I’ve always wondered whether the photo (all versions of it) wasn’t intended as a key to the secrets of the Administration, one the insider journalists all know the meaning of but won’t share it with us.

Indulge me, for the moment, and pretend that it is such a key. Let’s review the status of the people involved:

Scottie McClellan: Will go down in history as the least credible shill since Ron Zeigler,  Scottie had the unenviable role of telling the press that he had talked to Rove and Libby and they had assured Scottie they had nothing to do with the Plame leak. Scottie left the White House in April 20, at the same time Rove lost his policy portfolio, and just days before Karl Rove’s last appearance before the grand jury. For the record, Scottie’s departure was weepy, though not so weepy as Turdblossom’s was today.

Turdblossom: Say … did you hear that Turdblossom will be leaving the White House at the end of the month?

Scooter Libby: Libby, of course, was the first person in this picture to leave, back in October 2005 before he got his get-out-of-jail-free card. He’s now a convicted felon. Notably, Libby is the one person in this picture who’s not a member of the Texas Mafia (assuming they gave Cheney membership in his first paypacket while CEO of Halliburton).

Dan Bartlett: Remember Bartlett? He was the last member of Bush’s inner circle to step down unexpectedly, in his case at the beginning of June (not long after Rove’s right-hand chick Sara Taylor departed, it should be said). Just for kicks, look how closely Bartlett’s comments, upon stepping down, resemble Rove’s: the "spend more time with family" excuse, the focus on his long-standing ties to Bush, the denial he’ll work in any 2008 campaign. Though Bartlett, unlike Rove, isn’t going to write a book. When Bartlett left, they brought in Ed Gillespie, who has gotten the White House out of certain legal jams in the past.

Harriet Miers (she’s hiding behind Bartlett): Miers went from being glorified secretary to White House Counsel to SCOTUS nominee, but things went downhill from there. (Say, did you know Miers withdrew her name from consideration for SCOTUS just one day before Libby was indicted?) At the beginning of the year she resigned (effective the end of January), and after some time, she ended up back at the same firm she worked at before going to the White House. Like Rove, she was intimately involved in firing 9 or more US Attorneys, and also like Rove, when she was subpoenaed to appear before Congress, she refused.

Which leaves one person, in this entire photo, still employed by the White House: Dick Cheney. Now, have no idea what this photo means even if it is some kind of key to the Administration. But I find it awfully curious that Dick alone remains in this Administration.

Yup, still mono-focused on FISA, but mr. emptywheel is clamoring for dinner, so maybe once I step away from the computer, I’ll remember all the other things I’ve been meaning to write on.

I want to object to the way Kevin Drum is referring to the new details of FISA:

Originally, FISA allowed warrantless wiretapping of anycommunication between two foreigners. It also allowed warrantlesssurveillance of "foreign powers" (including those on U.S. soil) as longas there was no substantial likelihood that the surveillance wouldinclude conversations with U.S. persons. "Foreign powers" did notinclude terrorist groups.

Democrats and Republicans were both willing to amend FISA to allowlimited surveillance of terrorist groups, and both were willing toamend FISA to overcome technical problems that had made it difficult tomonitor certains kinds of foreign-to-foreign communications. So whatwas the disagreement? Originally I thought it was mainly about how tofix one of the technical problems: namely, given modern communicationsnetwork architecture, what procedures do you need to put in place toensure a high likelihood that U.S. persons won’t be surveilled while atthe same time allowing NSA the widest possible latitude to monitorgenuine foreign-to-foreign communications?

However, that appears not to be the case.  Rather, NSA (and the White House) were specifically looking for newauthority to monitor communications that included U.S. persons. And notjust communications related to terrorism. They wanted a free hand forwarrantless surveillance of any communication between foreigners andAmericans that was related to foreign intelligence in any way.

It’s not that Drum is, strictly speaking, wrong (though see AL’s cautions in the comments). But he’s setting a false, two-part comparison: Pre-Amendment FISA and Post-Amendment FISA, with the only thing that intervened as the Administration’s wishes to "modernize" FISA.

This comes, I think, out of the Administration’s head-fake, which consisted of naming a small part of the warrantless wireless program the "Terrorist Surveillance Program," which (when we entered into this most recent debate) the Administration claimed it wanted to legalize. Bush affirmed, on repeated occasions, that the "TSP" only consisted of taps that the Administration could ensure were targeted to those with ties to Al Qaeda. And it only consisted of taps for which one of the parties was outside of the country.

But we know the whole "TSP" thing was just a head-fake. While that is all Bush admitted to, we know there are several other aspects the warrantless wiretap program included. These are, at a minimum:

1. The tapping of communication that the Administration can’t guarantee involves one party outside of the United States
2. The tapping of communication for which the Al Qaeda tie is tenuous at best
3. The use of data-mining to select the targets of interest
4. The collection of the PEN data from a huge chunk of the communications passing through our country’s telecom networks

Drum suggests that the Administration wasn’t asking for 1 and 2–that those things just got thrown into the pot at the last minute. Well, perhaps not in so many words. But that is, in fact, the program the Administration was trying to make legal, so the mistake or confusion arises solely because we treated this debate as one strictly about modernization. Had we treated this debate as one about legalizing the Administration’s illegal program, including those aspects that Bush never admitted but we knew were included anyway, those two items would clearly have figured prominently on the list. (Though it’s unclear whether the Administration’s broad use of "Foreign Intelligence" to describe the target of the taps is designed solely to authorize tapping people whose ties to Al Qaeda are tenuous, or, more likely, whether they want to include intelligence of all stripes, presumably including international industrial intelligence.)

As to the last two, those are the elements that I suggest we really scrutinize this law for. AL suggests, in the comment linked above, that they may have, in fact, thrown in a thin legalization of the data-mining by treating that as surveillance that "concerns" foreign intelligence. Perhaps.

The point is, though, not to let Bush’s Orwellian TSP head-fake continue its power. It was never just about tapping Al Qaeda. Treating it as such simply buys the BushCo line about "TSP."

I’m still working through AGAG’s answers to a bunch of questions the Senate Judiciary Committee asked him last year (he only answered early this year). There’s an exchange involving Russ Feingold that is, I think, very instructive for understanding the recent FISA amendment.

You indicated at the hearing that the Administration has agreed to “submit” the program to the FISA court to rule on it if Congress passes the bill the Administration agreed to. If the FISA court were to review the program, would it do so in secret, and with only the government participating? Who would argue the case on the other side?

The Government is the only party to the ex parte proceedings for electronic surveillance orders under FISA (as is the case with respect to wiretap orders in criminal investigations under Title III and generally in proceedings to secure search warrants). Proceedings before the FISA Court are held in secret because of the nature and sensitivity of the information presented to the Court.

Feingold is talking about a different bill (Specter’s proposed bill from last year), but I think the answer is instructive. Not because it tells us anything we don’t know–yes, FISC’s proceedings are secret, yes, in a review before FISC, there will be no antagonist to the government arguing in favor of civil liberties.

But I think Feingold gets to the heart of issues that are also true for the amended FISA program. The review we’re talking about is inadequate because it doesn’t allow the public, or even another lawyer, to challenge the government’s program.

I’m working on a massive post on how the Administration has gamed the system to sustain their wireless wiretapping program. For the moment, though, I’d like to make a discrete point about the aborted Office of Professional Responsibility (OPR) inevstigation into the program.

When Senator Spector asked Alberto Gonzales last year why BushCo refused to give OPR the clearance to investigate the wireless wiretapping program because OPR included many career employees, this is how he responded (note–he didn’t actually respond to these questions until some time after January 17 of this year).

Did the Department treat reject OPR’s request for clearances because OPR has only career appointees?

No. The request of the Office of Professional Responsibility (OPR) for access to classified information about the Terrorist Surveillance Program (TSP) was not treated differently than similar requests for access by other Department components. Nor was OPR’s request denied because OPR has only career appointees.

Indeed, the Department of Justice’s Office of the Inspector General, which – other than the Inspector General, who was appointed by President Clinton – is made up entirely of career appointees, has been granted access to classified information about TSP. Similarly, many of the Department employees in other components who have been granted access to classified information about TSP are career, not political, employees.

Moreover, as the Attorney General mentioned in his opening statement before the Senate Judiciary Committee’s hearing on February 6, 2006, career lawyers at the National Security Agency’s Office of General Counsel and Office of the Inspector General have been intimately involved in the oversight of the program.

Gonzales answers the specific question–whether the Administration was afraid of career employees–but he doesn’t answer the underlying question–why the Administration refused the clearance. He does, however, offer a really lame explanation for that general question to a later follow-up question:

Both the WaPo and the NYT have stories today explaining how the crisis in the warrantless wiretap program got so bad that Congress got punked into passing a shitty bill. The story is simple, on its face. The FISC rejected a government subpoena in March, another in May, and those two rulings resulted in the government losing the ability to wiretap a great deal of foreign communication. Voila! The President gets to tell Congress it can’t take vacation.

But something’s missing from this process: the appeals process.

Like most legal decisions, FISA allows for a review process. If the FISC rejects a subpoena, the government can appeal that decision to the Foreign Intelligence Surveillance Review Court (FISRC). And if they uphold the rejection, the government can appeal to SCOTUS. Here’s how it works:

If [FISC] judge so designated denies an application for an orderauthorizing electronic surveillance under this chapter, such judgeshall provide immediately for the record a written statement of eachreason of his decision and, on motion of the United States, the recordshall be transmitted, under seal, to the court of review established insubsection (b) of this section.

[snip]

If [FISCR] determines that the application was properly denied, thecourt shall immediately provide for the record a written statement ofeach reason for its decision and, on petition of the United States fora writ of certiorari, the record shall be transmitted under seal to theSupreme Court, which shall have jurisdiction to review such decision.

But we get no details of such an appeal in today’s stories. So what happened? Did the Administration appeal these rejections on up to Roberts and Scalia and Alito? And if so, did a very conservative SCOTUS rule that the Administration was–and has been–violating the law? Or did they choose not to appeal, and instead create the kind of crisis that results in shitty legislation?

In either case, they seem to have gamed the process of court review, for the future. Here’s how the amendment describes the review process if the courts decide the Administration hasn’t provided adequate safeguards for American citizens’ privacy:

Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.’’.

That is, if, in the future a court tells the Administration they’re not fulfilling the intent of the law, the Administration gets to keep up what they’ve been doing until Roberts and Scalia tell them to stop.

No wonder BushCo wanted oversight of FISA totally out of the hands of the FISC. If I’m reading this WaPo article correctly, there were actually two rulings that went against the Administration–one in March, and one in May.

But in a secret ruling in March, a judge on a special court empoweredto review the government’s electronic snooping challenged for the firsttime the government’s ability to collect data from such wires even whenthey came from foreign terrorist targets. In May, a judge on the samecourt went further, telling the administration flatly that the law’swording required the government to get a warrant whenever a fixed wireis involved.

Indeed, there’s a sense that a lot of the Administration response came out of frustration with the Court:

The judges were sympathetic but said they believed that the law wasclear. "They said, ‘We don’t make legislation, we interpret the law,’ "the senior administration official said.

The rulings — whichwere not disclosed publicly until the congressional debate this month– represented an unusual rift between the court and the U.S.intelligence community. They led top intelligence officials toconclude, a senior official said, that "you can’t tell what this courtis going to do" and helped provoke the White House to insist thatCongress essentially strip the court of any jurisdiction over U.S.surveillance of communications between foreigners.

That’s kind of predictable. As we’ve seen, when the law rules against Republicans, they tend to dismiss the law–and the Courts judging it.

You know how Thomas Friedman’s six months always seem to end up being indefinite forevers? Well, the reverse seems to be going on with Republican accusations that:

For months, congressional Democrats ignored warnings from Director ofNational Intelligence Michael McConnell that FISA’s antiquatedprovisions were tying the hands of U.S. intelligence agencies fromcollecting against terrorist communications.

In fact, it appears that Director of National Intelligence Mike McConnell actually sat on the information for months, from February or March until July, before leveling with Congress (if that’s what he did). The NYT reports:

At a closed-door briefing in mid-July, senior intelligence officialsstartled lawmakers with some troubling news. American eavesdropperswere collecting just 25 percent of the foreign-based communicationsthey had been receiving a few months earlier.

Congress needed to act quickly, intelligence officials said, to repair a dangerous situation.

That mid-July briefing came at least four months after a FISA Court judge denied (in February or March) a warrant on communications that the Administration could not verify took place outside of the United States. The Administration had first explained the problems to Congress in April, but held off describing the scope of the problem for three more months.

Intelligence Committee members acknowledged that they learned in Maythat the secret court ruling had caused some problems, but it was notuntil last month that the administration reported the gaps.

And those delays took place against more stonewalling–the Administration’s continual refusal to turn over documents about the original domestic wiretap program, so that Congress could assess what the  needs–for both extent and oversight–really were. And of course, all these delays resulted in the kind of timing that BushCo enjoys, ratcheting up terror fears right before a recess to get unpopular legislation passed.

Now, admittedly, it’s not entirely clear what the reason for the delay was–was it just a growing problem (and so it wasn’t until July that McConnell himself recognized the scope of the problem), or was it delayed  disclosure from the Administration. But all of it begs the question: why isn’t the DNI giving Congress enough information to appropriately legislate? And what else isn’t he telling us?

Steven Benen writes most of the post I was going to write (thanks Steve!) in response to the news that Pete Hoekstra is a big fat hypocrite about intelligence leaks. Steve links to Justin Rood’s coverage of Hoekstra leaking details about the supposedly secret intelligence budget; RawStory first noticed Hoekstra’s leak. And then Steve provides a chronology (how could I not love that?!?!?!) of Hoekstra’s wingnuttery:

Given Hoekstra’s hackish history, this week’s alleged disclosure ispar for the course. After all, Hoekstra has had a series of recentintelligence-related embarrassments.

• In November 2006, Hoekstra pushed the administration to publishonline a vast archive of Iraqi documents captured during the war. Theidea was to let far-right bloggers "prove" that Saddam had WMD, butHoekstra’s plan led to the accidental release of secret nuclear research, including a basic guide to building an atom bomb.
• In October 2006, Hoestra "stripped the credentials of a Democraticcommittee aide he believed may have leaked a then-classified documentto The New York Times. A month later, he quietly reinstated the aide’s access."
• In July 2006, Hoekstra called a humiliating press conferenceto announce, "We have found weapons of mass destruction in Iraq" –despite failing to find weapons of mass destruction in Iraq.
• In June 2006, Hoekstra and Rick Santorum wrote a Wall Street Journal op-ed, alleging that some officials in the intelligence community are attempting to destroy the Bush administration — and America itself.

I would add just one event to this chronology: In July 2006 Hoekstra wrote what was perceived as a critical letter–but was actually one solidly supporting some of the Cheney-Rummy moves to keep DOD in charge of certain areas of intelligence.

I raise that–and link to Steve’s post–because I think it important to understand Hoekstra as more than just an unmotivated hack. Rather, each step of his hackery can be understood largely as a move in a Neocon chess game over information, largely doing the bidding of Cheney.

Josh marvels at the (big surprise) latest galling corruption from a member of the Alaska delegation: Don Young snuck an earmark into a 2005 bill after it had been passed by both houses of Congress, but before Bush signed it.

The ‘Coconut Road’ earmark wasn’t in the bill passed by the Houseand Senate. I don’t mean it wasn’t in the original bills before theywent to conference (where the separate bills from the House and theSenate are reconciled into a single bill). It wasn’t in the final,reconciled piece of legislation passed by both houses of Congress after conference. 

But it is there now. 

So here’s what happened. Apparently Young added the text afterCongress had already passed it but before the president signed it. AsLaura McGann explainsin this post, this must have occurred during the process called "billenrollment" when revisions of grammar and technical but not substantivechanges are permitted to be made.

The president did sign the bill. But the portion apparentlyadded by Young, if I understand anything about our system ofgovernment, was never passed by Congress. So it means nothing.

He goes on to ask how common it is.

The details aren’t entirely clear from Laura McGann’s reporting on this. But the scheme may, in fact, be legal (or at least have legal precedent) based on a ruling issued by John Bates last year. At issue was a fiscal bill from the previous year, which passed in slightly different form in the House and the Senate. It included some politically controversial items (and passed only with typical Republican arm-twisting). So rather than pass the bill for real, BushCo just picked one and signed it into law.

Since I seem to be the only one interested in Lurita Doan now that Bush has apparently refused to fire her for clear Hatch Act violations, I thought I’d point out the interesting tidbit that shows up in a profile of Scott Bloch, the guy in charge of Office of Special Counsel, the office that carries out Hatch Act violations that Bush studiously ignores.

Meanwhile, the Doan matter is breeding some ironies. Before Blochofficially released his report, The Washington Post’s Web site obtaineda leaked copy in May. Rep. Thomas M. Davis III of Virginia, the topRepublican on the House Oversight and Government Reform Committee,contended the leak denied Doan any effective chance of answering heraccusers. Davis arranged to have Bloch brought before the committeelast month to ask if he authorized the leak, which Bloch denied doing.

Davis previously had been a Bloch defender and had praised the OSC fordramatically cutting back its backlog of personnel cases. But at thehearing, the congressman blew up at the witness, explaining that he’dobtained a personal e-mail by Bloch describing Davis as “acting likeDoan’s defense counsel” when she testified before the Oversightcommittee.

Davis then promised to wage what might be called a Blochian crusade: Heannounced his intention to corral all politically sensitive e-mailsBloch may have sent from his personal account that referred in anymanner to Doan or other federal lawmakers. Davis’ chief of staff, DavidMarin, says his boss will punish any failure to comply by urging thecommittee to pursue contempt-of-Congress charges. In other words, ScottBloch, the Bush administration’s in-house Hatch Act enforcer in theU.S. attorneys scandal, could wind up facing the same charges nowconfronting the high-profile noncompliant congressional witnesses inthe case, White House Chief of Staff Joshua B. Bolten and former WhiteHouse counsel Harriet Miers. [my emphasis]

A couple of points. Davis is almost certainly going to be running against Mark Warner to replace John Warner in the Senate. Can we get a little more serious about painting Davis as the Bush mouthpiece he is serving as in Government Reform? I mean, seriously, if not for the yeoman’s work Davis did in pretending Doan was the victim, it’d be a lot harder for Bush to now sit on the recommendation to fire her, as he is doing. Not to mention the way that Davis has leaked information about Susan Ralston’s testimony useful to Karl Rove.

Secondly, while the move to get "politically sensitive e-mails … that referred … to Doan or other federal lawmakers" is not that far beyond the pale of Waxman, consider the kinds of things Davis is likely to get: emails about Doan, certainly–though the irony here is that, at one point, Bloch spiked the more negative tone of the Doan report, so those emails might actually backfire on Davis. But in spite of what she might wish, Doan is not a lawmaker. So Davis is likely culling emails that include lawmakers plus political appointees. Does that plus include Karl Rove, the big target of Bloch’s current investigation? Is Davis also sneaking a peek into Bloch’s investigation into Turdblossom? As I pointed out, Davis seems to have leaked information useful to Rove in the past–is he planning on doing it again?

But you know who is a lawmaker, one of the few lawmakers involved in this Lurita Doan scandal? That’s right. Tom Davis.

John Bolton would be proud.