DBJ at DKos, relating Karl Rove’s speech about "Citizen 2.0" in DC yesterday, makes a good point. When a man who has used the cover of being an anonymous source to leak a CIA operative’s identity–not to mention untold other smears–complains that commenters online can be anonymous pseudonymous, it pretty much discredits that complaint once and for all.

Then it got surreal. 

Karl Rove is angry that the internet is a place where people canpost anonymously.  He feels it hurts our democracy to have people saythings but not put their names to them.  The anonymity gives people away to say things but not take responsibility for them.

Yes.  Mr. Out-the-CIA-Agent-To-Douchebag-Of-Liberty-Novakula is upset because the internet allows for anonymity. 

After all, most people who comment anonymously pseudonymously online do so in an effort to protect their job and their family from people like Karl Rove. Karl Rove, on the other hand, uses anonymity to cowardly
hide his central involvement in nasty smears.

I’m going to have plenty to say on Shane Harris’ story revealing that the NSA used hackers and foreign cyberhacks as their excuse for illegally accessing customer data prior to 9/11. First, though, I’d like to remind readers of this earlier Shane Harris story (with Tim Naftali)–to my mind the best reporting on this topic outside of the Risen-Lichtblau early scoop.

A former telecom executive told us that efforts to obtain call detailsgo back to early 2001, predating the 9/11 attacks and the president’snow celebrated secret executive order. The source, who asked not to beidentified so as not to out his former company, reports that the NSAapproached U.S. carriers and asked for their cooperation in a"data-mining" operation, which might eventually cull "millions" ofindividual calls and e-mails.

In other words, nearly two years ago, Harris (with Naftali) quoted a telecom executive saying that something had gone on earlier than 9/11. And now, he’s providing details about Qwest’s refusal to cooperate.

The Rationale

So, returning to this story after Nacchio’s appeal has raised a lot of questions about the earlier request, Harris reveals the rationale the Administration offered for its earlier data mining.

However, in February 2001, the NSA’s primary purpose in seeking accessto Qwest’s network apparently was not to search for terrorists but towatch for computer hackers and foreign-government forces trying topenetrate and compromise U.S. government information systems,particularly within the Defense Department, sources said. Governmentofficials have long feared a "digital Pearl Harbor" if intruders wereto seize control of these systems or other key U.S. infrastructuresthrough the Internet.

[snip]

[former NSA Director] Minihan singled out Russia and China; the latter, he said, had alreadyincorporated cyber-warfare into its military training. He also pointedto the emergence of "transnational security challenges," includingterrorism, drug trafficking, and international organized crime. "Theseopportunists, enabled by the explosion of technology and theavailability of inexpensive, secure means of communication, pose asignificant threat to the interests of the United States and itsallies," Minihan said.

Harris also gives a general sense of how the program was justified as legal.

A former senior NSA official said that the agency also worried thatbecause these groups understood privacy laws so well, they knew how toavoid detection and could predict what the NSA would, and wouldn’t, doto track them. "There was such a nuanced understanding of how to tie usin knots and use American law against us, that there were certainlypockets of people saying, ‘We’ve got to be assertive; we’ve got to bemore aggressive on this,’ " the former official said.

Hayden, who ran the NSA from 1999 to 2005, was well known forhis willingness to push operations to the legal edge. "We’re prettyaggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I’m troubled if I’m not using the full authority allowed by law."

Hayden has repeated that refrain since the attacks. But formerintelligence officials doubted that he would have authorized anyrequest to Qwest, or other companies, that he believed violated thelaw. They noted, however, that many in the agency had long thought thatmonitoring "metadata," such as a phone number, the length of a call, ora series of calls placed from a particular phone, didn’t implicateprivacy because such information didn’t constitute the "content" of amessage — its written or spoken words. [my emphasis]

This excuse sounds precisely like public denials about the program Hayden made after the NYT revealed the problem with the program involved data mining (this quote is a riff on a Glenn Greenwald quote).

In January, 2006, Gen. Michael Hayden — the NSA Director during theimplementation of the "TSP" and the current CIA Director — gave apress briefing at the National Press Club in which he emphatically denied that the NSA had been engaging in the type of "data mining" which this morning’s articles describe. During his opening remarks, Hayden said:

Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbingconversations that we then sort out by these alleged keyword searchesor data-mining tools or other devices that so-called experts keeptalking about.

This is targeted and focused. This is not about interceptingconversations between people in the United States. This is hot pursuitof communications entering or leaving America involving someone webelieve is associated with al Qaeda.

Hethen made clear that the NSA could not and would not engage in suchdata mining because of the "ethical" and "practical" considerationsinvolved:QUESTION: Are you spying on or intercepting ourcommunications, e-mails and telephone conversations of those of us whoare organizing The World Can’t Wait to Drive Out the Bush Regime?

GEN. HAYDEN: You know, I tried to make this as clear as I couldin prepared remarks. I said this isn’t a drift net, all right? I said we’re not there sucking up coms and then using some of these magically alleged keyword searches — "Did he say ‘jihad’?

[bold Glenn’s; italics mine]

In other words, faced with the anonymous description that the problem with the warrantless wiretap program had to do with data mining, Hayden neatly parsed that it couldn’t be data mining because they didn’t "[suck] up coms and then [use] some of those magically alleged keyword searches." Hayden denied that they had mined content, but he stopped well short of saying that they hadn’t mined metadata.

Which strongly suggests that Michael Hayden was well aware that the NSA was mining metadata, long before 9/11.

On December 19. 2005, just days after Risen and Lichtblau revealed the illegal domestic wiretap program, I wrote the following:

I’m proposing it’s not an indirect link to Al Qaeda, that the NYT isusing this language to shield the technical details (if these peoplewere really linked to Al Qaeda, the FISA warrant would be a cinch). I’mproposing that it’s a link of similarity. They find the communicationpatterns of a known Al Qaeda operative, and they start monitoringeveryone who has similar communication patterns.

[snip]

Is it possible the dubious ties are as little as a fondness for a take-out joint favored by suspected Al Qaeda operatives?

Later, I envisioned the most ridiculous kind of food-based surveillance: falafel.

I’ve long suggested that they may have wrapped up folks who shopped thesame falafel joints as genuine Al Qaeda targets (ut oh–Bill O’Reillymay be in trouble).

As you’ve no doubt heard, I was not being as clever as I thought I was being.

Like Hansel and Gretel hoping to followtheir bread crumbs out of the forest, the FBI sifted through customerdata collected by San Francisco-area grocery stores in 2005 and 2006,hoping that sales records of Middle Eastern food would lead to Iranianterrorists.

The idea was that a spike in, say, falafelsales, combined with other data, would lead to Iranian secret agents inthe south San Francisco-San Jose area.

One more relevant detail may be in order. In the NYT’s earliest reporting on the warrantless wiretapping program, they described just one person suspected of being surveilled because of these crappy methods:

But they said most people targeted for N.S.A. monitoring have neverbeen charged with a crime, including an Iranian-American doctor in theSouth who came under suspicion because of what one official describedas dubious ties to Osama bin Laden.

Understand, the FBI program is surely different than the warrantless wiretap program. And when they say they’re looking for "Iranian secret agents," it’s as likely they’re looking for Lebanese Hezbollah members as they are looking for Iranian doctors. But this does raise the questions about whether other surveillance programs are using such ludicrous bases for surveillance.

Telecom lobbyist John Ashcroft is back on the influence circuit again, trying to admonish us that refusing the telecoms immunity will kill people. Only he usually doesn’t refer to telecom immunity as such. Instead, he calls on Congress to "terminate" the lawsuits against the telecom companies.

There are many complex and difficult issues associated with thesedebates, but whether to terminate the huge lawsuits that have beenfiled against the nation’s major telecommunications carriers accused ofcooperating with classified counterterrorism programs is not one ofthem.

Who knew that John Ashcroft was such a good sophist?

Not surprisingly, Ashcroft dodges several key issues. He suggests that there are only two circumstances where immunity would be granted.

The Senate bill would confer immunity in only two limitedcircumstances: if the carrier did not do what the plaintiffs claim; orif the carrier did do what the plaintiffs claim but based on explicitassurances from the highest levels of the government that theactivities in question were authorized by the president and determinedto be lawful.

But that’s one of the tricks with this surveillance–the telecoms did something, and it’s not entirely clear we’ve described what they did properly. Moreover, there’s the presence of telecoms that recognized the form of the requests was illegal–for some reason, Qwest recognized the assurances that the activity was authorized to be dubious.

And of course, Ashcroft makes no mention of the period when the program was not authorized by the AG, but was instead authorized by the White House Counsel. Such authorization is not legal, not under the law as written. While the telecoms may not be in the position to assess the honesty of the Bush Administration representations, they surely knew in March 2004 that Alberto Gonzales was not the AG, and that any authorization given by him was not worth the paper it was written on.

And finally, there’s that issue of whether or not the telecoms do have enough to assess the intent of the government. If the government can ask for data and use it in any fashion they want (or ask the telecoms to use it in any fashion), what does that say about the creeping surveillance? It demonstrates precisely the problem with surveillance that takes place independent of any review: the government can do anything and just claim it’s legal. Even if it violates clear laws like FISA.

Seth Hettena notes that one of Mark Geragos’ most effective lines in the Brent Wilkes trial was the insinuation that the government backed off calling Duke Cunningham as a witness.

During his closing argument to jurors, defense attorney Mark Geragosasked jurors to keep one question in mind. If the governmentprosecutors believed Brent Wilkes had plied Congressman Randy “Duke”Cunningham with more than $600,00 in bribes, why didn’t they put theex-honorable gentleman on the witness stand?

It’s a good question. As the jury enters its third full day ofdeliberations, they may be wondering the same thing, and it remains tobe seen whether keeping Cunningham off the stand will hurt thegovernment’s case.

In his closing argument, Geragos told jurors the government didn’tcall Duke because he would never, ever admit that Brent Wilkes’contracting work was bad for the country. Prosecutor Jason Forgecountered that in rebuttal by saying that he didn’t want to call themost corrupt congressman in history and ask jurors to rely on histestimony.

So why didn’t Geragos call Cunningham ? Geragos said the governmenthad the burden of proof. When I reminded him that he had told jurors hewould call Duke, Geragos replied that Wilkes was a better witness. It’snot too hard to believe that he was worried that Duke would admit thatWilkes had bribed him. And that would be something no amount of brutalcross-examination could undo. You might as well send the jury out rightthen.

The statements from both sides leave a bit to be desired;something’s missing here. We’ll find out someday, but for now, it’sclear that both prosecutors and the defense felt there was more harmthan good in calling the Duke to testify.

So why didn’t the government call Duke to testify? In addition to Hettena’s suggestions: that Cunningham would be all-around unreliable, that Cunningham isn’t the brighest bulb ever to grace the Congressional chandelier, I’ve got another suggestion.

Perhaps the government was afraid that Cunningham would open the avenue for testimony from someone else. After all, Geragos did subpoena a whole slew of Congressmen, though he backed off after the judge warned him he needed a better developed reason to call them. Could Geragos have elicited something from Cunningham that would allow him to subpoena Jerry Lewis? That doesn’t seem too far-fetched. Perhaps just as importantly, Wilkes’ former co-defendant John Michael is due to have his day in court (his trial was postponed because he got viral menengitis). Cunningham has already revealed quite a bit about Tommy K that the government didn’t want revealed. Was the government afraid he’d do it again on the stand?

I haven’t seen any bears. I found a few beers, though.

Here’s a quick hits list of things I may return to on Wednesday, when I resume normal blogging.

• The Pats beat the Colts … ugly.
• Shane Harris reveals that the rationale for asking Qwest to break the law before 9/11 was hackers. Hackers, terrorists … same difference I guess. Though given the Administration’s troubled history with cyber-security czars, I’d like to consider the implications that their early excuses for violating our privacy pertain to cyber-security. John Conyers has finally asked for more details on the Qwest allegations.
• Our consumer product safety czar has been doing some swank traveling, courtesy of those we are paying her to protect us from.
• Orange County’s Republican Sheriff has been indicted. He has featured in some stories we’ve tracked earlier in this blog. And one wonders whether he was protected in the past by Bush’s USAs?
• The judge in the AIPAC case has approved the defense scheme to call Condi et al to testify about how they leak information through lobbyists. I’m actually more optimistic than most that something might come of this. Not to mention, I’m rather interested by the complete list of those who have been called to testify.
• Two minutes of blog hate goes permanent. The weirdest thing about this venture is that it is largely funded by International Studies entities, but every other post appears to deal with US political blogs. Which suggests 1) an ignorance about the whole range of blogging, and 2) a really bad investment for the International Studies set. Unless the serious foreign policy set is doing this because Atrios and Glenn Greenwald were mean to them. As is predictable, they don’t like pseudonymity anonymity and don’t know the difference between the two.
• In a move that will only surprise Matt Bai and Governor Mark Warner, Pervez Musharraf suspended Pakistan’s Constitution. Don’t worry–I’m sure this won’t distract Dick from his Iran fetish in the least.
• Both Merrill Lynch and Citibank are in some deep doo-doo for their investments in crappy mortgage loans.
• DiFi and Schumer, as expected, will support Mukasey to be AG. I guess Schumer’s ego really is more important to him than the Constitution and the rule of law. Meanwhile, the Administration purged a former Acting Assistant AG when he opposed their waterboarding fetish. No wonder Mukasey won’t say he’s opposed to it. I think these details on the Levin purge fill in an important hole in the timeline  of the politicization of DOJ.
• The US was the lone country, of 172, voting against a UN resolution calling for peace in space. Even our stalwart Israel felt obliged to at least abstain rather than vote against this no-brainer resolution.
• Whistleblowers continue to be treated like crap in this country. But the press will tell you that it’s more important to have a journalist shield law than to fix our whistleblower protections. You know–because free speech is best when it has to go through a gatekeeper.
• Bandar Bush bin Sultan has now made his second claim that Saudi Arabia had the goods on the terrorists aiming to strike at the US and UK. I thought he made the claim about the UK terrorist plot to discredit Gordon Brown–perhaps as a favor to the Tories. But that doesn’t make sense, if he’s saying the same thing about the 9/11 terrorists. What’s he doing?

The WiFi gods are bound to be really mad at me for the Pats win, so I may not check back in until Wednesday.

Here’s a response from Mukasey that frankly stumps me. It comes in response to a Joe Biden question on extraordinary renditions.

If the purpose [of renditions] is to gather intelligence, why would the United States trust interrogations carried out by Egyptian or Syrian intelligence agencies–agencies that the United States has long acknowledged and criticized for engaging in torture and abuse?

ANSWER: I am not aware of the facts and circumstances concerning any rendition. It is my understanding that both United States law and policy prohibit the transfer of anyone in the custody of the United States to another country where it is "more likely than not" that the person would be tortured, and should I be confirmed as Attorney General, I would ensure that the Department of Justice provides legal advice consistent with that standard. That said, I understand that there are other departments, such as the Department of Defense or the Department of State, with more direct responsibility for carrying out our policies in this area.

The answer is carefully crafted to punt. First, as everyone else in the Administration does, Mukasey simply repeats the claimed standard–no rendition to countries that torture–without guaranteeing that the country as a whole fulfills this standard.

Then Mukasey makes an interesting move. He effectively says, "renditions are not done by DOJ, so I can’t be responsible for them." Which is true, as far as I know–the FBI does not carry out renditions. It’s as if Mukasey asserts he can’t guarantee the country doesn’t engage in renditions because he’s not in charge of that area. Fair enough–and likely a sound legal strategy, to avoid any liability for the renditions that are going on.

But then Mukasey lists those departments that–in his understanding–are in charge of renditions. DOD and State.

What flummoxes me here is the inclusion of State, and the exclusion of CIA, on this list. We’ve had direct reporting of CIA involvement in renditions (such as with al-Libi). And they’re the one with the funny airlines that have no owners and no apparent flight plans. Perhaps those renditions are being done by some intelligence branch of DOD now (which might explain why the numbers for renditions carried out by CIA always seem much lower than the known cases of renditions).

So why State? Perhaps it’s as simple as State negotiating with countries before we steal their citizens (did Colin Powell’s State negotiate with Berlusconi’s government in the case of Abu Omar?). But I wonder. Is the State Department–and it’s beefy Blackwater contracts–currently involved in renditions in a way we don’t know about?

Here’s the letter from Ashcroft, Comey, Goldsmith, and Philbin that came up so often in today’s SJC hearing. The key graf is this one, in which four top lawyers say, "to hell with the Courts, we’ve got two branches plus Cheney, who needs a third?"

Finally, we note that we are familiar with the legal analysis conducted within the Executive Branch of intelligence activities allegedly connected to the lawsuits against telecommunications carriers and with debates within the Executive Branch about that analysis. Given our experiences, we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities. We firmly believe, however, that the best place for that examination and debate is not in a public lawsuit against private companies that were asked to assist their Nation, but within the Executive branch, where intelligence-gathering decisions are made, and in joint efforts between the Executive Branch·and Congress to ensure appropriate oversight.

The paragraph pretty much says it all. It comes as close as they ever do to saying, "you’ve got to listen to use because we’re the four people who objected to the illegalities of this program in the first place." Elsewhere, they don’t acknowledge why a letter from these four people might carry such weight.

But then, in their solution, they say, "to hell with the Courts. We’ve got the Executive branch and Congress"–which thus far have proved unable to "probe the legal bases for such intelligence activities" much less something they don’t mention, "hold those accountable who broke the law."

Which seems to me, at least, as a really nice way of saying, no, trust us, we started this, we assure you it’ll get taken care of.

Update: See Stoller for Ashcroft’s financial conflicts of interest in writing this letter, and Big Tent Dem for the conflict of interest of the bigwigs who wrote the WSJ article cited so commonly in today’s hearing.

Hey bigwig lawyer types: when you’re being paid to say something, it makes what you say a whole lot less credible.

Jane Harman sent a response to this post via a staffer.

What rubbish!  For those like me whoinsist that the President’s domestic surveillance program must complyfully with the Constitution and the 4th Amendment, the only way forCongress to get there is with a veto-proof majority.  That’s why I’mworking with Republicans.  Got a better idea?

I opposed the FISA-gutting ProtectAmerica Act last August and supported the much-improved H.R. 3773,which did not include retroactive immunity for telecommunicationscompanies.  I call on the White House to do more than share selecteddocuments with a handful of Senators – how do we know what the WhiteHouse is not providing?  In my view, the question of retroactiveimmunity cannot even be considered until Congress is fully informedabout what happened and under what authority.

It’s the same response she posted to drational’s diary at DKos, which responds to the same WaPo passage I used, but takes a different approach than I did in discussing it.

Given that Harman is sending the same response to both drational and I, it’s unclear what she means with her response. What, precisely, is rubbish? I can think of several things she might be labeling rubbish, but it’s unclear which possibility she intended.

• The report from the WaPo, that Harman is "quietly exploring avenues of compromise with Pete Hoekstra"?
• That, as the WaPo implied, Harman is among those centrist Dems who "hope those talks can dovetail with the Senate intelligencecommittee’s own bipartisan measure on surveillance of suspectedterrorists"–which of course includes immunity for the telecoms?
• That her negotiations include the provision of immunity for the telecoms, something both drational and I implied–which I, at least, took to be a clear implication from the WaPo coverage, since it listed the SSCI bill as the basis for compromise?
• That she is bypassing HPSCI and HJC, which have been tasked by party leadership to come up with a revision to FISA, an assertion made by me but not by drational?
• That it is appropriate to consider primary challenges for someone who effectively turns us back into a minority party by working with Republicans on her own compromise rather than working to build support for the bills supported by the party?
• That Harman, "appears to have been one of the only Democrats (if not the only Democrat) to have approved uncritically" of the domestic wiretap program, an assertion made by me but not by drational?
• That Harman, with Jello Jay and Pelosi, are "willing to compromise on every surveillance concession demanded by the White House," an assertion made by drational but not by me?
• That Harman and Jello Jay and Pelosi are seeking immunity for themselves, also an assertion made by drational and not by me?

Like I said, given her comments it’s not clear what she’s thinking. If she is saying it’s rubbish that she was one of the only Dems to have approved uncritically of the program, I’d love to hear it, because every other Dem who was briefed on the program has either said they expressed criticism during the process or that the Administration allegations about "majority approval" don’t include them.

And if Harman is trying to say that she is not, in fact, considering immunity in back channel discussions with Hoekstra–or even that those back channel discussions aren’t going on–I’d love to know that, too.

But I will say this. Telecom immunity is an issue about which Democrats might be able to withstand Administration demands. If its caucus goes along. Therefore I still object to back channel discussions–if they’re taking place–if they put telecom immunity on the table.

In an email to Laura Rozen and Jeff Lomonaco this morning, I predicted Henry Waxman would be mightily interested in the news that the Blackwater guards involved in the September 16 shooting had been granted immunity.

In any case, I suspect Condi will regret that she didn’t mention thiswhen visiting Congress last week. I assume we’ll have a letter fromWaxman at about 1:00 PM today.

Sure enough, at 1:23, the Committee sent out the letter.

Apparently, Waxman wrote it before CNN started reporting yet more anonymous sources saying the whole thing is a big joke, that the guards didn’t get immunity. Or rather, they try to dodge the issue by pretending the claim pertained to blanket immunity (which it never did).

No blanket immunity deal was offered to Blackwater guards for theirstatements regarding a shootout in Iraq last month that left 17 Iraqicivilians dead, two senior State Department officials told CNN Tuesday.

However, some kind of limited immunity was apparently offered by StateDepartment investigators when they questioned the Blackwater personnelapparently involved in the shootings, the officials said.

In any case, Waxman (as you’d expect) asks the money question:

5. When did you, Deputy Secretary of State John Negroponte, former Assistant Secretary of
State Richard Griffin, Ambassador David Satterfield, and Ambassador Ryan Crocker
leam of the grant of immunity?

Given that the whole theme of Condi’s testimony before Waxman’s committee had to do with cover-ups, I imagine Waxman is very interested in learning whether Condi or Griffin or Satterfield neglected to tell the committee this little detail when they testified.