Archive for category: emptywheel

looseheadprop has a post at FDL that deserves more attention. Particularly this paragraph:

In 2005, in response to a petition dated March 10, 2004 by the DOJ and FBI, [Ed. note, if you only have time to click on one link—this is it!] the FCCissued a report and Order that said that CALEA applied tofacilities-based broadband Internet access providers and providers ofinterconnected (with the PSTN, Public Switched Telephone Network)Voice-over-Internet-Protocol (VOIP) services. There’s a great wiki here.   BTW, the hospital room confrontation between Comey and Ashcroft happened on March 10, 2005. [sic, MarkC is right, this should read 2004]

She makes a really interesting catch: DOJ, FBI, (whose heads on that date, were James Comey and Robert Mueller, then in the thick of a squabble with the Administration over "the Program") and DEA asked the FCC to issue a report stating that CALEA applied to things like cable providers, in addition to telecommunications companies. They submitted that request on the very same day as the hospital confrontation–when DOJ was fighting with the Administration over the legality of its illegal wiretap program. The FCC obliged DOJ’s request for a ruling the following year, thereby legally expanding the universe of communications providers who could be compelled to let the Feds into their networks. The coincidence of timing suggests that one legal issue that Comey may Read more →

Cannonfire is right. People have gotten way too excited over this Scottie McC "revelation." I’d advise you all to look closely at what John Dean had to say about the flap on Olbermann:

Dean: Well, there’s very little that’s specific in this. I actuallythought about calling the publisher today. He’s a very ablepublisher–Peter Osnos, Public Affairs, good journalist. He knowsexactly what he’s doing. But if he says there’s not much more, andthat’s the indication, I think that’s maybe why they put this out as agood tease, to get bookstores interested in the book. [my emphasis]

Scottie McC’s publisher has pulled off quite the coup–taken a detail that was, largely, already known, and used it to cause a stir about a book that will not yet be published for another 6 months. Already, Dodd is calling for an investigation, folks are calling for HJC or Waxman to hold a hearing. What the left has done is read one publishing blurb designed to generate this kind of buzz, and played right into the plan. Congratulations. You’re all making Scottie McC rich.

What Scottie Said

That said, I guess it would pay to look more closely at what we know, so that everyone can calm down and stop putting dollars into Scottie McC’s pockets. Let’s look again at what Scottie says (and has said before, and his spokespeople have said since).

The most powerful leader in the world hadcalled upon me to speak on his behalf and help restore credibility helost amid the failure to find weapons of mass destruction in Iraq. So Istood at the White house briefing room podium in front of the glare ofthe klieg lights for the better part of two weeks and publiclyexonerated two of the senior-most aides in the White House: Karl Roveand Scooter Libby.

There was one problem.  It was not true.

I had unknowingly passed along false information. And five of thehighest ranking officials in the administration were involved in mydoing so: Rove, Libby, the vice President, the President’s chief ofstaff, and the president himself. -from What Happened

Or, to translate:

• It was not true that Rove and Libby had nothing to do with the leak of Valerie Wilson’s identity.

We’ve know this detail–that Rove and Libby were involved in leaking Valerie Wilson’s identity since Fall 2005 and earlier.

• Scottie unknowingly passed on false information.

Scottie has been saying this for years, as well, ever since his tiny credibility took a hit when it became clear his public exonerations were false. In other words, Scottie still maintains that he, at least, had no idea the public exoneration was false.

• Rove, Libby, the Vice President, Andy Card, and the President "were involved" in having Scottie "unknowingly pass on false information."

Please note (again, as Cannonfire points out), Scottie says nothing about the President being "knowingly" involved. He doesn’t even detail how the President was involved. Given the way this Administration builds in plausible deniability, and given the degree to which the leak of Valerie Wilson’s name included a "secret mission" (as Libby lawyer Bill Jeffress called it) involving just Bush, Cheney, and Libby, I’m not sure that Scottie McC would know even if Bush were the mastermind of this leak and cover-up.

And he certainly doesn’t say so in this excerpt.

Read more →

As I pointed out in this post, the Senate Intelligence Committee used a remarkable argument to justify giving the telecoms immunity in their FISA bill. Basically, it argued the telecoms could neither prove or disprove whether they were entitled to immunity according to existing statutes, because the mean old Bush Administration had invoked State Secrets. And therefore, the invocation of State Secrets put them in an unfair position as they tried to defend themselves against lawsuits.

To the extent that any existing immunity provisions are applicable,however, providers have not been able to benefit from the provisions inthe civil cases that are currently pending. Because the Government hasclaimed the state secrets privilege over the question of whether anyparticular provider furnished assistance to the Government, anelectronic communication service provider who cooperated with theGovernment pursuant to a valid court order or certification cannotprove it is entitled to immunity under section 2511(2)(a)(ii) withoutdisclosing the information deemed privileged by the Executive branch.

[snip]

Providers who did not assist the Government are similarly unable toextract themselves from ongoing litigation, because the assertion ofthe state secrets privilege makes it impossible for them to demonstratetheir lack of involvement.

So the logic, in general, is that it is unfair for a defendant in a civil suit to be prevented from defending itself because the government has invoked State Secrets and thereby prevented the defendant from introducing the evidence that would prove its innocence or its immunity.

Of course, the Senate Intelligence Committee is only making that argument in the context of its desire to convince telecoms to cooperate with the government, regardless of the laws that are supposed to guide that cooperation. I’d bet you that, if a defendant were unable to defend itself from lawsuits because the government invoked State Secrets, and if that defendant had not cooperated with the government in illegal wiretapping, no one would bat an eye at the injustice.

Well, we’re going to get to see just that in the civil suit against Joseph Nacchio and other former Qwest officials. Because there, the government is invoking State Secrets in a case against individuals who refused to cooperate because–at least Nacchio claims–they believed cooperation would have been against the law.

I think it’s great that Rachel Paulose has resigned (h/t JF)

Rachel Paulose, the embattled U.S. attorney for Minnesota, will beleaving the post to take a position at the Justice Department inWashington, according to a Bush administration official and acongressional aide.

According to a news release sent by thedepartment of justice, Paulose has accepted a position as Counselor tothe Assistant Attorney General for Legal Policy at the Department ofJustice in Washington, D.C. Ms. Paulose will resign from her currentposition and assume her new role effective in early January 2008.

But why in god’s name are we keeping her on the taxpayer’s dime?

I can only imagine that her claims that she’s being targeted because she’s a Federalist Society member would make her hard for someone to fire…

The McCarthyite hysteria that permits the anonymous smearing of anypublic servant who is now, or ever may have been, a member of theFederalist Society; a person of faith; and/or a conservative(especially a young, conservative woman of color) is truly a disserviceto our country.

…particularly someone who had to be vetted by the Federalist Society to get his job. But c’mon folks!

As you’ve no doubt heard, yesterday Pat Leahy pulled some superb parliamentary maneuvers to ensure that the SJC version of the FISA amendment came out of committee without immunity for telecoms. He basically just severed the part which permits the wiretapping from the part that gives immunity. Voila!

Unfortunately, it still seems likely that Harry Reid will let the SSCI bill–the one we don’t like–come to the floor of the Senate. Pat Leahy pulled some nice maneuvers, but Reid has a few more aces in his hand. And in any case, it may be utterly moot.

When Arlen "Scottish Haggis" Specter has discussed his "compromise" on immunity in the FISA amendment, he has said he thought the cases in CA would be thrown out on State Secrets grounds anyway; his compromise (in true haggis fashion) is really designed to save the telecoms money while they’re waiting for the courts to throw out the cases.

Turns out they might not have to wait that long–and immunity may be moot anyway. That’s because the 9th Circuit, in a unanimous decision, threw most of the most Kafkaesque illegal wiretap case out.

A federal appeals court dealt a near-fatal blow Friday to an Islamiccharity’s lawsuit alleging federal investigators illegally wiretappedit, saying a key piece of evidence the charity planned to use is aprotected state secret.

A top secret call log that the Treasury Department accidentallyturned over to the now-defunct U.S. arm of the Al-Haramain IslamicFoundation’s lawyers can’t be used as evidence, the 9th U.S. CircuitCourt of Appeals ruled.

[snip]

The charity’s lawyers voluntarily turned over the document to FBIagents after it was given to them. A lower court ruled that the lawyerscouldn’t use the actual document to support their lawsuit but could usetheir memories of its contents to go forward.

[snip]

"Such an approach countenances a back door around the privilege andwould eviscerate the state secret itself," Judge M. Margaret McKeownwrote for the unanimous three-judge panel.

So basically, these guys have proof they were spied on, they’ve seen it, but the government is requiring that they legally wash their minds of any memory of that proof, so as to preserve State Secrets.

The Appeals Court decision on the Hepting case is pending–it relies on some other kinds of evidence–but it’s a really amazing concept, this State Secret thing. The government, of its own accord, gave out the secret. But it expects individuals to be bound by it. Further, it expects defendants to forgo attorney-client privilege, apparently, because there’s going to be no way of proving the government deliberately violated privilege.

Swell.

Time to think of some novel ways to force the government to stop spying illegally. And it’s probably time to write some restrictions on spying on attorney-client privilege, too. Because the available options don’t appear like they’re going to work.