Did FBI First Request James Risen’s Phone Records Using the CAU Program?

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In Josh Gerstein’s report on DOJ’s collection of James Risen’s phone and business records, he quotes University of Minnesota law professor Jane Kirtley saying that the government doesn’t give reporters notice when it collects telephone or business records on them.

Kirtley also said journalists often aren’t notified when the government asks telecom companies, banks or other service providers for their records.

DOJ must inform reporters if their call records have been subpoenaed

That may be the case in practice. But DOJ policy actually requires that journalists receive notice if their phone records are subpoenaed.

(g) In requesting the Attorney General’s authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply: (1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General’s authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days.

(4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.

From that we should assume that DOJ got the phone records by subpoenaing Sterling’s records, not Risen’s. But if that’s the case, you’d think the government would have just told Risen that when his lawyer asked whether his records had been subpoenaed back in 2008.

Risen said the government never notified him that they were seeking his phone records. But he said he got an inkling in 2008 that investigators had collected some information about his calls.

“We heard from several people who had been forced to testify to the grand jury that prosecutors had shown them phone records between me and those people—not the content of calls but the records of calls,” he said. “As a result of what they told us, my lawyers filed a motion with the court as asking how the Justice Department got these phone records and whether or not they had gotten my phone records.”

“We wanted the court to help us decide whether they had abided by the attorney general’s guidelines,” Risen said. “We never got an answer from the court or the government.”

In other words, there may be no cause for suspicion, except for the suspicious funkiness on the government’s part.

DOJ has refused to inform at least one reporter his or her records were subpoenaed

Now, there is one case we know of where DOJ collected information on a reporter’s phone records and did not inform him or her. The DOJ Inspector General Report on Exigent Letters describes three cases in which reporters’ phone records were collected through the telecom’s onsite Communications Analysis Unit. Two of these were collected using exigent letters; in both, the editors (for stories published in both the NYT and WaPo) and the journalist (for an Ellen Nakashima story) were informed the reporters’ records had been collected.

In the third case, the records were collected with a grand jury subpoena. Here’s what we know about the collection:

  • The investigative team included two federal prosecutors who appear to belong to a counterintelligence group at DOJ, an AUSA from the jurisdiction in which the grand jury was seated who was rubberstamping records for the investigation, the FBI case agent, and intelligence analysts.
  • The FBI case agent asked the CAU agent about how to do a phone records subpoena for the leak investigation, and the CAU agent referred the case agent to the telecom analysts at CAU for help with the subpoena. Following a meeting with (I think) an AT&T analyst, the case agent asked that analyst for boilerplate language to make sure the subpoena was “as encompassing as possible.” It appears from the report (though this information is highly redacted) that the resultant subpoena may have asked for the community of interest of the suspected leaker’s numbers. That is, it appears the subpoena asked for a network analysis of all the people who had directly contacted the target.
  • One of the two prosecutors used that boilerplate language to write up attachments to the subpoena; the rubberstamp AUSA never saw the attachments. This was the first subpoena the rubberstamp AUSA signed in the case.
  • The prosecutor that generated the subpoena claims–with an undated document to back up that claim–that the case agent told him the subpoena would not collect phone records for the reporter that–they both knew at the time–had been in phone contact with the suspected leaker. The case agent, however, did not recall such a discussion and claims it was “very unlikely” such a conversation occurred. The implication of this seems to be that the case agent knew full well he’d be getting the reporter’s call data.
  • In talking to a counterintelligence Special Agent, the prosecutor who generated the subpoena learned that such a subpoena could produce the records of reporters; he also learned there was a way to write the subpoena to avoid that from happening. Once he realized that, he had conversations with other DOJ lawyers and supervisors about what to do; they all agreed to seal the records. Though they sealed the records of the case agent and deleted them from his computer, they didn’t ask what CAU had done with the records, much less ask the CAU analyst to delete the records.
  • When the IG learned about all this, they finally checked whether this information got loaded into the investigative database. The target’s records were entered into the FBI database; the IG did not find any reporters’ information uploaded, though much of the report’s discussion on this topic is redacted.
  • DOJ’s Criminal Division informed the Court overseeing the grand jury of the subpoenas and the “corrective actions” taken.

After learning all this, the IG asked DOJ whether it should have notified the reporter in question per the policy cited above. Here’s what happened:

The Criminal Division and the OIG asked the Department’s Office of Legal Counsel (OLC) to opine on the question when the notification provision in the regulation would be triggered. Read more →

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The Business Records and Classified (?) Emails of James Risen

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Jeffrey Sterling’s lawyers are throwing a number of interesting theories against the wall. In a filing demanding a bill of particulars (and presumably ultimately supporting a greymail defense),they demand to know which “defense information” is tied to each count of leaking or possessing such information, arguing that they need to know that to prevent double jeopardy. As part of that argument, though, they note that the 10 year statute of limitations on this crime exists only to make sure crafty Communists don’t evade the law.

In this case, the Government will surely claim that there is a ten year statute of limitations applicable to violations of 18 U.S.C. 793. See Internal Security Act, Ch. 1024, 64 Stat. 987, P.L. 831 (§19) (1950).

As set forth in the statute, this law was passed, by its terms, because of the then existing threat of global communism.

There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose is by treachery, deceit…espionage, sabotage, terrorism, and any other means necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a worldwide Communist organization. Id. at § 2 (1)

In this regard, the Court can see that when this law was passed in 1950, it appears that the Congress extended the statute of limitations applicable to 18 U.S.C. § 793 because the “agents of communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances in form and manner successfully evasive of existing law.” Id. at § 2 (11).

As such, the defense reserves the right to challenge the application of this McCarthy era law to the charges in this case which challenge would result in the application of the general five year statute applied to felonies. 18 U.S.C. § 3282.

Sterling is alleged to have leaked to James Risen in 2003; if a 5 year SOL applied, then it would have expired after the time when the Bush DOJ declined to charge Sterling. Charging him at this late date, he seems to suggest, is just McCarthyite.

But the other interesting aspect of this filing is the one Josh Gerstein points out: the details Sterling’s lawyers provide about what they’ve gotten in discovery.

In this case, for example, the United States has provided in unclassified discovery various telephone records showing calls made by the author James Risen. It has provided three credit reports – Equifax, TransUnion and Experian – for Mr. Risen. It has produced Mr. Risen’s credit card and bank records and certain records of his airline travel. The government has also provided a copy of the cover of the book State of War written by Mr. Risen and published in 2006. It has provided receipts and shipping records from Borders and Barnes and Noble indicating that State of War was sold in this District between November 1, 2005 and March 1, 2006.4 From this document production, it can be inferred that Mr. Risen is Author A and that the “national defense information” at issue can perhaps be found somewhere in State of War.

But State of War is a long book containing many chapters. Just pointing the defense to the book, or even a particular chapter in the book, is not legally sufficient to provide notice.

4 Count Eight is a mail fraud count under 18 U.S.C. §§1341 & 2, that seeks to hold Mr. Sterling criminally liable for the decision of Author A’s publisher to sell in the Eastern District of Virginia a book allegedly containing “national defense information” obtained from Mr. Sterling. Author A and his publisher are not charged with any crime.

Now, obviously this passage does several things. It sets up a future argument–one that might be modeled on the AIPAC case–that if they’re going to charge mail fraud they also need to charge Risen’s publishers. Also, it exploits the fact that the government has sent an entire book full of highly classified disclosures–including details of the warrantless wiretap program–to introduce selective prosecution. Why is the government choosing to prosecute the alleged leaker of MERLIN information, but not the leakers of the illegal surveillance program?

But it seems Sterling’s lawyers are just as interested in getting details about the government surveillance of Risen into the record.

Now, some of this is unsurprising. We knew the government had Risen’s phone records, because the indictment cites at least 46 phone calls between Risen and Sterling. The indictment also mentions a trip Risen made (presumably to Vienna), so it’s unsurprising they have his credit card and airline information.

But that leaves two other items.

The filing mentions Risen’s three credit reports and bank records. The only possible application of this information in the indictment is the repeated distinction between Risen’s office and his residence. Presumably the latter would show up on the credit report. But that information would also be available by public means (publicly available property records, for example). So why collect Risen’s credit reports and bank records?? Was the government trying to argue Risen was in some way induced to publish this?

Also, given that this would have qualified as a counterintelligence investigation, one wonders whether the government used the PATRIOT Act to collect these records.

More interesting, though, is what Sterling’s lawyers don’t mention in this passage: emails. We know they got emails, since they refer to at least 13 emails between Risen and Sterling (and point out that the emails went through a server conveniently located in the CIA’s home district!). But for some reason, Sterling’s lawyers don’t mention having received the emails in what they specify is “unclassified discovery.”

The probable explanation for that, of course, is that they have received those emails. It’s possible they can’t mention them, though, in an unclassified filing (one clearly targeted to the public), because they were turned over in classified discovery.

It’s troubling that the government collected Risen’s credit report and bank records to develop its case against Sterling. But the possibility that the government considers the email traffic between Risen and Sterling classified suggests some even more troubling possibilities.

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Political Giving and Willingness to Cave to Law Enforcement

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When Jason Leopold linked to a WSJ report titled, “Obama breaks bread with Silicon Valley execs,” I quipped, “otherwise known as, Obama breaks bread w/our partners in domestic surveillance.” After all, some of the companies represented–Google, Facebook, Yahoo–are among those that have been willingly sharing customer data with federal law enforcement officials.

Which is why I found this Sunlight report listing lobbying and political donations of the companies so interesting.

 Lobbying (2010) Contributions to Obama (2008)
Apple $1,610,000.00 $92,141.00
Google $5,160,000.00 $803,436.00
Facebook $351,390.00 $34,850.00
Yahoo $2,230,000.00 $164,051.00
Cisco Systems $2,010,000.00 $187,472.00
Twitter $0.00 $750.00
Oracle $4,850,000.00 $243,194.00
NetFlix $130,000.00 $19,485.00
Stanford University $370,000.00 $448,720.00
Genentech $4,922,368.00 $97,761.00
Westly Group $0.00 $0.00

Just one of the companies represented at the meeting, after all, has recently challenged the government’s order in its pursuit of WikiLeaks to turn over years of data on its users: Twitter. And the difference between Twitter’s giving and the others’ is stark.

Does Twitter have the independence to challenge the government WikiLeaks order because it hasn’t asked or owed anyone anything, politically?

Mind you, there’s probably an interim relationship in play here, as well. Those companies that invest a lot in politics also have issues–often regulatory, but sometimes even their own legal exposure–that they believe warrant big political investments. Which in turn gives the government some issue with which to bargain on.

Maybe this is all a coinkydink. And maybe having broken bread with Obama, Twitter will cave on further government orders.

But I do wonder whether there’s a correlation between those telecommunication companies that try to buy political favors and those that offer federal law enforcement favors in return.

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FBI Still Inventing New Ways to Surveil People with No Oversight

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Marisa Taylor has an important update on the OLC exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context.

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, then this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

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What State Wanted Withheld from WikiLeaks Publication

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There are now four versions of the cooperation between WikiLeaks and its journalistic “partners:” Vanity Fair, NYT, Guardian, and Spiegel. A comparison of them is more instructive than reading any in isolation.

For example, compare how the NYT and Spiegel describe the three things the State Department asked journalistic partners not to publish during the lead-up to publication of the diplomatic cables. The NYT says State asked them not to publish individual sources, “sensitive American programs,” and candid comments about foreign leaders.

The administration’s concerns generally fell into three categories. First was the importance of protecting individuals who had spoken candidly to American diplomats in oppressive countries. We almost always agreed on those and were grateful to the government for pointing out some we overlooked.

“We were all aware of dire stakes for some of the people named in the cables if we failed to obscure their identities,” Shane wrote to me later, recalling the nature of the meetings. Like many of us, Shane has worked in countries where dissent can mean prison or worse. “That sometimes meant not just removing the name but also references to institutions that might give a clue to an identity and sometimes even the dates of conversations, which might be compared with surveillance tapes of an American Embassy to reveal who was visiting the diplomats that day.”

The second category included sensitive American programs, usually related to intelligence. We agreed to withhold some of this information, like a cable describing an intelligence-sharing program that took years to arrange and might be lost if exposed. In other cases, we went away convinced that publication would cause some embarrassment but no real harm.

The third category consisted of cables that disclosed candid comments by and about foreign officials, including heads of state. The State Department feared publication would strain relations with those countries. We were mostly unconvinced.

Spiegel describes those three things slightly differently. It says State asked them to withhold government sources, cables with security implications, and “cables relating to counterterrorism.”

At first, less than a week before the upcoming publication of the leaked documents, Clinton’s diplomats wanted three things from the participating media organizations. First, they wanted the names of US government sources to be protected if leaks posed a danger to life and limb. This was a policy that all five media organizations involved already pursued. Second, they asked the journalists to exercise restraint when it came to cables with security implications. Third, they asked them to be aware that cables relating to counterterrorism are extremely sensitive.

Now the discrepancy may mean nothing. Both agree State had three categories of information they wanted withheld. Both agree State asked the newspapers to withhold both the names of sources and details on intelligence programs. But since the NYT notes the journalistic partners didn’t take the third category–candid comments–very seriously, perhaps Spiegel just misremembered what that third category was, or just remembered a particular focus on counterterrorism. Presumably, after all, the counterterrorism programs would be included in category two.

But whatever the cause of the discrepancy, I am intrigued that Spiegel emphasizes counterterrorism programs rather than candid comments about foreign officials, not least because the Spiegel article describes working with US Ambassador to Germany Philip Murphy directly. Consider the two most sensitive revelations pertaining to Germany and counterterrorism. First, there was the news of Philip Murphy personally bad-mouthing the Free Democratic Party’s opposition to US vacuuming up European data, particularly as it relates to the SWIFT database. Then there are negotiations about whether Germany would prosecute Americans involved in the rendition of Khalid El-Masri. As I showed, it appears that Condi was telling German Foreign Minister Frank-Walter Steinmeier one thing about a subpoena for those Americans, followed quickly by the American Deputy Chief of Mission “correcting” the US position on it.

That is, on both major disclosures about US counterterrorism cooperation with the Germans, the US has reason to be embarrassed about its two-faced dealing with German officials.

In other words, there may be no discrepancy. It is possible that the third category of information State wanted suppressed has to do not with the substance of our counterterrorism program (after all, both the details of SWIFT and of our rendition program have been widely publicized), but with the degree to which our private diplomacy belies all the public claims we make about counterterrorism.

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David Kris Resigns from DOJ

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The U.S. Department of Justice just announced that Assistant Attorney General David Kris just resigned, effective March 4.

“David Kris led the National Security Division (NSD) with great distinction through a period when the department confronted a number of threats to the nation’s security, and there is no doubt that his tireless work helped keep the American people safe,” said Attorney General Eric Holder. “I will miss his leadership.”

“I am grateful for my two years of service as Assistant Attorney General for National Security,” Kris said. “I started my legal career at the Department of Justice, and it has been a tremendous privilege to work with the department’s leadership and the dedicated professionals in the National Security Division.”

As Assistant Attorney General for National Security, Kris helped lead the department’s response to a number of serious threats to the nation, including the attempted bombing of Times Square, the al-Qaeda plot to bomb the New York subway system, the attempted detonation of a bomb onboard an airliner on Christmas Day 2009, and the arrest and prosecution of Mumbai plotter David Headley.

Under Kris’ leadership, the National Security Division also played a pivotal role in the investigation, arrest and swap of Russian illegal agents during the summer of 2010, and prosecuted a number of other significant espionage cases, including Kendall and Gwendolyn Myers, who were caught and prosecuted after decades of spying for the government of Cuba. The division also continued and expanded its enforcement in the areas of export control and counter-proliferation.

During Kris’ tenure, the National Security Division also strengthened its partnerships with the intelligence community and other national security elements, including the Department of Defense and the National Security Council, and advanced significantly in establishing the processes, policies, and procedures necessary to make NSD a highly effective and fully functioning division.

No reason for his departure was given, though Kris did mention his two year tenure; that might explain the March departure, two years after he was confirmed.

DOJ didn’t list it among Kris’ accomplishments, but two other things he is noted for are:

  • Making it clear that the Bush Admin justification for illegal wiretapping — which Holder’s DOJ has never withdrawn — didn’t make any sense
  • Testifying that we probably couldn’t charge material support for terrorism in military commissions

That is, he was willing to admit, on occasion, when DOJ was pushing the limits of its legal authority. Which means he will be missed.

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Colombia Refuses to “Look Forward”

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In Colombia, apparently, you get arrested when you oversee illegal domestic wiretapping.

Colombia’s Prosecutor General ordered the arrest of Jorge Noguera, a former director of Colombia’s state intelligence agency DAS, for the his alleged involvement in the illegal spying on government opponents.

Noguera, who was director of the DAS between 2002 and 2006, is suspected of having set up the illegal activities of the DAS that included wiretapping supreme court magistrates, journalists, human rights organizations and opposition politicians.

Imagine if Michael Hayden (who oversaw the NSA when Cheney set up his illegal wiretap program) or John Brennan (who was in charge of the departments that chose whom to target with the system) got arrested for their role in the program?

Hell, imagine if Cheney himself were arrested (President Alvaro Uribe’s Chief of Staff is reportedly one target of this investigation)?

Pretty crazy, isn’t it, imagining what it would be like to live in a country with a functioning rule of law … like Colombia?

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What the Government Might Be After with Its Twitter Subpoena

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After a member of Iceland’s Parliament and former Wikileaks volunteer, Birgitta Jónsdóttir, revealed on Twitter yesterday that Twitter has been subpoenaed for details on her Twitter account, Glenn got a copy of the subpoena. The subpoena was first submitted to Twitter on December 14, and asked for account information for six people as well as any account associated with Wikileaks, going back to November 1, 2009. Of particular note, they ask for:

records of user activity for any connections made to or from the Account, including the date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es).

non-content information associated with the contents of any communication or file stored by or for the account(s), such as the source and destination email addresses and IP addresses.

By getting the IP addresses, they might be able to tie a location to the Wikileaks activity (though I would imagine some of the subpoenaed people shield that kind of information).

Here’s what they might be after.

There’s a passage in the chat logs in which Manning describes how he confirmed he was communicating directly with Julian Assange. This passage comes on May 22, allegedly before Adrian Lamo was cooperating with investigators (but there are reasons to question that).

(2:05:58 PM) Manning: it took me four months to confirm that the person i was communicating was in fact assange

(2:10:01 PM) Lamo: how’d you do that?

(2:12:45 PM) Manning: I gathered more info when i questioned him whenever he was being tailed in Sweden by State Department officials… i was trying to figure out who was following him… and why… and he was telling me stories of other times he’s been followed… and they matched up with the ones he’s said publicly

(2:14:28 PM) Lamo: did that bear out? the surveillance?

(2:14:46 PM) Manning: based on the description he gave me, I assessed it was the Northern Europe Diplomatic Security Team… trying to figure out how he got the Reykjavik cable…

While Manning doesn’t say that these conversations took place on Twitter (I’ll come back to this), we know that Wikileaks, at least, was revealing details of the government’s surveillance of it on Twitter. A series of Tweets from late March describe heavy State Department surveillance. Several of the tweets reference the production of the Collateral Murder video. Now mind you, this was a month or more after Manning would have leaked the video itself. But this tweet makes me wonder whether Manning didn’t continue monitoring surveillance and response.

We know our possession of the decrypted airstrike video is now being discussed at the highest levels of US command.

In other words, this may be evidence on Twitter of the Wikileaks team learning information that Manning might have provided them.

As Glenn points out, three of the people covered by the subpoena were involved in the production of the video.

the three named producers of the “Collateral Murder” video — depicting and commenting on the U.S. Apache helicopter attack on journalists and civilians in Baghdad — were Assange, Jónsdóttir, and Gonggrijp (whose name is misspelled in the DOJ’s documents).  Since Gonggrijp has had no connection to WikiLeaks for several months and Jónsdóttir’s association has diminished substantially over time, it seems clear that they were selected due to their involvement in the release of that film.

One of the things the government may be trying to do is to pinpoint what IP was involved in the tweets revealing the surveillance, to try to tie any conversation about that surveillance to conversations with Manning, and in turn tie those conversations to their theory that the Wikileaks team conspired to leak this information.

Manning says he tracked this kind of surveillance to confirm that he was contacting Assange directly. The government may be trying to retrace his tracks in confirming Assange’s identity, too.

[This post was updated after it was first posted.]

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A Day After Reading Constitution, Republicans Abolish Civil Liberties, Civil Liberties Bits of It

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I sort of expected the Republicans to abolish labor–or at least its named inclusion among the business of Congressional committees. After all, the GOP really doesn’t like tough things like physical work or the people who do it.

But it wasn’t so long ago that the Republican Party–not to mention its newest activist branch, the Tea Party–claimed to give a damn about civil liberties. Hell, Louie Gohmert, who reassured me yesterday the Fourth Amendment is still on the books, is even a member of the Judiciary Committee.

But like labor, the Republicans have also apparently done away with civil liberties and civil rights.

From a Jerry Nadler press release:

Today, Congressman Jerrold Nadler (D-NY), who has served as the Chairman of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties since 2007, responded to news that the Republican-led Judiciary Committee will change the name of the Subcommittee to the “Constitution Subcommittee.”  He issued the following statement:

Once again, the new Republican majority has shown that it isn’t quite as committed to the Constitution as its recent lofty rhetoric would indicate.  Today, it has yet again shown its contempt for key portions of the document – the areas of civil rights and civil liberties – by banishing those words from the title of the Constitution Subcommittee.  In 1995, when Newt Gingrich became Speaker, one of the Republicans’ first acts was to change the name of that Subcommittee.  For anyone who thought the change was merely for rhetorical purposes, our experience over 12 years of Republican rule showed just how hostile they are to individual rights and liberties.  With this move, we can only assume that they are intent on more of the same.  It is going to be a long and difficult struggle to protect these cherished rights and liberties from assaults by the Republican majority.

Republicans have made a great deal of noise in recent days about standing up for the Constitution.  But, in less than 48 hours, they have already revealed their true intentions.  In addition to reading selectively from the Constitution on the House floor in a much-exalted ceremony on Thursday, Republicans also blatantly violated the Constitution by allowing two of their Members to vote without having been sworn-in, and introduced unconstitutional legislation aimed at bypassing the 14th Amendment’s citizenship clause.  And, with the Subcommittee name change, they are again telling Americans that only some parts of the Constitution matter.  Fundamental rights and liberties appear to have been dropped from the Constitution by far-right ideologues.

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Did John Brennan Have a Role in DOJ’s Decision to Prosecute Jeffrey Sterling?

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John Brennan apparently plays an interesting role in the events surrounding Jeffrey Sterling, whom DOJ indicted for allegedly leaking details of the MERLIN program to James Risen.

James Risen first wrote about Sterling–profiling his employment discrimination suit–in March 2002. In it, Risen quotes then CIA Deputy Executive Director John Brennan, denying that Sterling was dismissed because he is black.

John Brennan, the deputy executive director of the agency who met Mr. Sterling several times about his case, said there was no evidence that racial discrimination had caused his problems.

”It was an unfortunate situation,” Mr. Brennan said, ”because Jeffrey was a talented officer and had a lot of the skills we are looking for, and we wanted him to succeed.

”We were quite pleased with Jeffrey’s performance in a number of areas. Unfortunately, there were some areas of his work and development that needed some improvement.”

Now Brennan’s role in negotiating with Sterling on the discrimination claims already provides one reason why Brennan might have a personal interest in seeing DOJ renew its pursuit of Sterling.

But there’s another: to go after Risen personally.

After all, whatever role Brennan had in Sterling’s discrimination suit, there’s no reason to believe it put Brennan at legal risk.

But Risen’s other big scoop in State of War did.

As I have shown, for at least a year, John Brennan was in charge of the process that picked who Dick Cheney would wiretap in his illegal domestic surveillance program.

Brennan appears to have overseen the units that conducted the threat assessments that were a key part of the illegal program from May 2003 at least until August 2004, and possibly up until he left ODNI in December 2005, just days before the NYT broke this story.For at least a year and possibly two, John Brennan appears to have been the guy inventing “reasonable cause” to wiretap people in the United States. John Brennan was also likely the guy who put together the list of groups considered al Qaeda affiliates (including al-Haramain) that could be wiretapped.

Of particular note, Brennan was in charge of this process when, after March 11, 2004, it operated without DOJ sanction, the time when it had the least legal cover (and the time period for which al-Haramain has proof they were illegally wiretapped). John Brennan is an accessory (at least) to violating FISA and other laws prohibiting domestic surveillance (including the part of 2004’s DOD appropriation bill that prohibited data mining of Americans).

And Risen’s reporting is what has ultimately led to the (very limited) exposure of Brennan’s role in the illegal wiretapping of Americans.

Mind you, the Deputy National Security Advisor probably shouldn’t be telling DOJ whom to investigate or not–particularly not if he’s trying to retaliate for the exposure of his own illegal actions. But he seems to have been right in the mix on the White House’s involvement in DOJ’s decisions on torture.

So did DOJ pursue this case so intently–as opposed to, say, torture and illegal wiretapping–at the direction of the White House?

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