The Uncounted Wiretaps

McJoan has an important post on BushCo’s coordination with the telecoms to push Congress into passing an immunity bill. There’s a Guinness with my name on it in the pub downstairs, so I’ll just tell you go read McJoan (and, of course, bmaz’ earlier post from today). But I wanted to make one point about this paragraph from the Isikoff article she links:

The debate over a new surveillance authorization is likely to be complicated by figures showing sharp increases in the government’s electronic eavesdropping on U.S. citizens. One report filed with the office of the administrator of the U.S. Courts shows that standard wiretaps approved by federal and state courts jumped 20 percent last year, from 1,839 in 2006 to 2,208 in 2007. Later this week another report is expected to also show increases in secret wiretaps and break-ins approved by the Foreign Intelligence Surveillance Court (FISC) in terror and espionage cases. But even these secret wiretaps and break-ins—estimated to be about 2,300—tell only part of the story. They don’t include other secret methods the government uses to collect personal information on U.S. citizens.

Newsweek cites a big bump in numbers for 2007–a bump which, Hosenball and Isikoff claim–reflect a real increase in actual surveillance.

But we don’t know that.

After all, for 11 and a half months of 2007, the formerly illegal, uncounted warrantless wiretapping was put under review by the FISA Court. So we should expect the numbers to go up significantly, because they will reflect the Administration counting wiretaps that, because they had previously escaped all review, had previously not been counted. We may or may not be seeing an increase in wiretaps. Rather, we may simply be seeing an increase in the number of wiretaps that get counted.

One more point, and then it’s beer thirty.

Remember that part of the hysterics the Administration used to push through PAA in August was to claim that they had lost the ability to wiretap. McConnell told Congress they had lost significant capabilities because FISC was actually reviewing these wiretaps.

If that’s true, then why are the numbers so high? 

Jello Jay And Hoyer Slither Back Into The FISA Limelight

Crikey, this is getting old. You may have seen by now that rumors of a new push on passage of FISA, and, of course, full retroactive immunity, are bubbling to the surface in the last 24 hours. Here is Jane. Here is Digby. Here is McJoan. From Jane at FDL:

According to the ACLU, there is rumor of a backroom deal being brokered by Jay Rockefeller on FISA that will include retroactive immunity. I’ve heard from several sources that Steny Hoyer is doing the dirty work on the House side, and some say it will be attached to the new supplemental.

A few more facts and circumstances are available now than were in the earlier stories. For one, we apparently see the "urgency lever" being pressed this time around (there always seems to be one in these plays, it’s a feature). From Alexander Bolton at The Hill:

The topic has reached a critical point because surveillance orders granted by the director of national intelligence and the attorney general under the authority of the Protect America Act begin to expire in August.

If Congress does not approve an overhaul of the Foreign Intelligence Surveillance Act (FISA) by Memorial Day, intelligence community officials will have to prepare dozens of individual surveillance warrants, a cumbersome alternative to the broader wiretapping authority granted by the Protect America Act, say congressional officials familiar with the issue.

Maybe, but if so, then the situation is intentionally so from a designated plan by the Administration to have some of their programs start running out while they are still in office and can use the "urgency" to fuel their desperate push for immunity. The reason, if you will recall, is the little provision placed in the Protect America Act (PAA) allowing any surveillance order (i.e entire general program, not just individual warrants) existing at the sunset of the PAA, which occurred on February 17, 2008, to continue until expiration, which means that there was NO necessity that any program that the government wished to pursue expire anytime during the current Administration. I have reminded folks of this repeatedly, but here is a wonderful synopsis from Cindy Cohn of EFF:

The PAA provides that any currently ongoing surveillance continues until the "date of expiration of such order," even if PAA expires. "Orders" are what the PAA calls the demand for surveillance by the Attorney General or Director of National Intelligence (there’s no court involved). These surveillance orders can be Read more

Article I v. State Secrets

Well, if nothing else, this al-Haramain case in CA looks like it’ll focus the issue of States Secrets just as the Senate attempts to curb it.

An Islamic charity group is challenging the Bush administration’s record use of the so-called state secrets privilege, dubbed a "killer bullet" to the group’s case over warrantless wiretapping.

Lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation on Wednesday urged a federal judge to toss out the government’s use of the privilege and let their lawsuit proceed.

The SF Chronicle captures the government argument in all its Kafkaesque glory.

A Bush administration lawyer resisted a San Francisco federal judge’s attempts Wednesday to get him to say whether Congress can limit the president’s wiretap authority in terrorism and espionage cases, calling the question simplistic.

"You can’t possibly make that judgment on the public record" without knowing the still-secret details of the electronic surveillance program that President Bush approved in 2001, Justice Department attorney Anthony Coppolino said at a crucial hearing in a wiretapping lawsuit.


But Walker, in an extensive exchange with Coppolino, said Congress had spoken clearly in a 1978 law that required the government to obtain a warrant from a secret court before it could conduct electronic surveillance of suspected foreign terrorists or spies.

"The president is obliged to follow what Congress has mandated," Walker said.

Coppolino replied that Congress has also authorized the president to protect the nation and its military secrets.


Walker pressed him on a more basic issue: whether Congress acted constitutionally when it required court approval for such wiretaps in the 1978 Foreign Intelligence Surveillance Act.

"I think it’s a bit of a simplistic question," Coppolino said.

"One might call it a fundamental question," the judge replied.

The government lawyer said that Congress "sought to intrude on the president’s authority to authorize surveillance" when it enacted the law, and that Bush, acting under his constitutional powers, had determined that its provisions were not sufficient to allow law enforcement authorities to thwart terrorists’ attack plans.

But Coppolino said the constitutionality of the law, and the related question of whether it is binding on the president, can’t be resolved without delving into operational details whose exposure would damage national security.

It looks like Coppolino’s argument will be worth reviewing in detail–to either laugh … or cry. Read more

Conyers to Mukasey: So You Did Spin Shamelessly, Didn’t You?

(Updated with selise’s YouTube showing Leahy confronting Mukasey on his misrepresentation.) 

I really really like this letter Conyers, Nadler, and Scott sent to Attorney General Mukasey on his claim that they could have prevented 9/11 if only FISA hadn’t been preventing them. In it, they basically nail DOJ on its non-responsive response to their earlier letter asking about Mukasey’s claim. If you recall, the prior letter basically gave Mukasey a few choices: either Mukasey completely misunderstands FISA, the Administration withheld information from the 9/11 Commission, or the Administration screwed up.

These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11,

The underlying truth that DOJ won’t admit, of course, is that Mukasey misrepresented the incident in an attempt to make a case for FISA that doesn’t actually hold up.

In an apparent attempt to avoid admitting Mukasey has been spinning wildly, DOJ wrote a non-responsive response back–it turned the question into a general question about FISA legislation, rather than specific question about whether Mukasey misrepresented the facts.

We are writing about the April 10, 2008, letter from Brian Benczkowski in response to our letter of April 3, 2008, concerning disturbing recent revelations about apparent pre-9/11 failures and subsequent abuses of civil liberties by the Administration. While we appreciate the promptness of the April 10 letter, we are extremely concerned about its failure to address several of our specific inquiries.


In addition, however, the April 10 letter does not respond to several of our requests. Our letter did not, as you characterize it, generally inquire “why FISA’s emergency provisions were not an adequate substitute for the authorities the Government has obtained under the Protect America Act.” Rather, our inquiry concerned the specific phone call about which you spoke. We asked whether the then-existing emergency provisions would have allowed interception of the specific call at issue, if indeed the foreign portion of the call was a known terrorist location. To the extent that your response set forth an argument for the PAA or the Administration’s preferred version of FISA reform, it was non-responsive to our request for information. Read more

Mark Schauer Condemns Bush’s and Walberg’s Fear-Mongering

Crazy wingnut Tim Walberg doesn’t yet realize what even the White House has realized–the fear mongering isn’t working any more. Here’s the op-ed Walberg wrote condemning Democrats because they insist on protecting Americans’ civil liberties and privacy.

House leadership will not support current FISA legislation because the bill would prevent trial lawyers from suing American telecommunications companies who cooperate with American intelligence agencies’ monitoring of foreign terrorist communications.

Recent news reports revealed that almost 40 lawsuits are pending against the very telecommunications companies who helped our country in a time of crisis. Gathering intelligence to defend America’s national security has never been and should never be a political issue.

It is shameful that some in Washington place the ability of trial lawyers to sue over national security. When American companies assist American intelligence agencies with monitoring foreign terrorist threats, they should be thanked, not sued.

We need the foreign intelligence surveillance law passed so America’s intelligence community can monitor al-Qaida and other terrorist networks without getting permission to listen to foreign terrorists plotting on foreign lands.

I guess Tim Walberg doesn’t even know that our intelligence community already has–and has always had–the ability "to monitor … al Qaeda without getting permission to listen to foreign terrorists plotting on foreign lands." If he doesn’t even know that most basic fact about FISA, then he surely doesn’t know that the reason the telecoms want immunity is because they agreed to spy on Americans based solely on the legal authorization of the White House Counsel–the President’s own lawyer!

Blue America is supporting Walberg’s challenger, Mark Schauer. Here’s what Mark has to say about FISA:

I’m Mark Schauer. Personally I’m tired of Tim Walberg and George W. Bush using fear about our national security to score cheap political points. Congress has passed legislation to ensure that tools are in place to protect our country’s safety, but Walberg and Bush seem more interested in protecting big corporations that have helped them listen to our phone calls, read our emails, violate our privacy, then they are about protecting law-abiding citizens. I believe our Constitution, and our rights, including our right to privacy, are worth fighting for. If our government or big corporations break the rules, they should be held accountable.

Support the guy who supports the Constitution, not more fear-mongering.

Warrantless Wiretap Memos Timeline

I laid out the OLC opinions described in the Steven Bradbury declaration to the ACLU. In this post, I’ll add in the other significant documents he describes. Note, Bradbury names four documents–OLC 56, 57, and 58, and OIPR 138–which are documents created by the President or his immediate staff, and so are not agency documents; he provides no description of these documents. There are, of course, a great number of documents withheld, which therefore have no description or date.

Materials not included in Bradbury’s memos are not bold.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists.

October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.

October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.

November 2, 2001, from DAAG OLC to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities.

Read more

Was the October 23, 2001 OLC Opinion the Basis for the Illegal Wiretap Program?

By now, you’ve noted the footnote in the Torture Memo referencing a different OLC opinion declaring the 4th Amendment invalid.

[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).

Scribe and I have been in a bit of a dispute whether or not that October 23, 2001 document was written to justify the illegal wiretapping program. I’m going to try to lay out what we know about it here.

The Case for Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

The basis for arguing that the opinion is the rationale for the illegal wiretapping program is simple. First, the timing is right. As the AP notes, the opinion was written just two days before Dick briefed the Gang of Four on the program.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.

Then there’s the argument that DOJ included the document in a list of materials withheld in response to an ACLU FOIA.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.

The document they’re referring to is this Steven Bradbury declaration. In the declaration, Bradbury writes,

OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity OLC 146 is withheld under FOIA Exemption Five.

I’m going to add an update below, showing the other OLC documents Bradbury withheld in this declaration. But note that this one does not specifically address communications (some of the others do).

The last reason it would make sense is the content. By all appearances, the warrantless wiretap program is a clear violation of the Fourth Amendment’s prohibition against unreasonable searches. Thus, it would be logical that the Administration simply invalidated the Fourth Amendment in an OLC opinion to make its illegeal wiretap program legal.

Update: Here’s part of scribe’s logic for arguing the opinion relates to domestic spying (click through to the comment for his complete argument).

The NSA is part of the military .

The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”

But the proposition for which that memo is cited* in footnote 10 of the memo is:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

So, what does this mean? Depends on how you define “domestic military operations”, don’t it?

I argue the 10/23/01 memo was the lawyerly justification for:

(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).

All of those things are military operations. 

The Case against Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

But there are several reasons to believe the opinion has nothing to do with the warrantless wiretap program. Least credibly, there’s Tony Fratto’s insistence that it doesn’t.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

Read more

The Joint Inquiry and Mukasey’s Call

Alright. Glenn has me intrigued by Michael Mukasey’s story about an intercept that–if it had been disseminated–might have prevented 9/11. So I’m going to flog it for a couple more posts. As a reminder, here’s the story that Mukasey has apparently heard, Zelikow doesn’t recognize, and Conyers has not heard.

And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went.

As I pointed out in this comment, Mukasey tells a similar (thought not exactly the same) story in his and Mike McConnell’s letter to Harry Reid listing which FISA amendments would have incurred a veto threat (I think this story was also actually used in the debate in the Senate, though that’s going to have to wait for a later post).

The Joint Inquiry has learned that one of the future hijackers communicated with a known terrorist facility in the Middle East while he was living the United States. The Intelligence Community did not identify the domestic origin of those communications prior to September 11, 2001, so that additional FBI inevstigative efforts could be coordinated.

Before moving on, note the key difference here: Mukasey’s weepy story has the person in the US receiving a call from an Afghan safe house. The Joint Inquiry was told the US person called the known terrorist facility. That may have import as we move forward–but for now, just keep in mind that little discrepancy.

Also note the reference is somewhat vague. When did this intercept come in? Which hijacker did it involve? Did the Joint Inquiry see the intercept itself, or did they just "learn" about it, as the passage implies?

To see if I could clarify those issues, I decided to look at the Joint Inquiry to see precisely what it said about this intercept that could have prevented 9/11 (see page 36 of the PDF). From the context, it is clear the members and staffers from both intelligence committees–who conducted this inquiry–believed that the NSA had all the legal authority it needed to collect this intercept.

Read more

Jane Harman v. Jello Jay: Compare and Contrast

Jane Harman explained her response to the warrantless wiretap program over at TPMCafe. I’m interested in it not so much to determine whether Eric Licthblau or she is right about whether she "switched her view" on the program (I think Harman is actually too sensitive to the charge; as she tells it, she did drastically change her view, but not because of the publicity of Lichtblau’s reporting, but because of the new information she learned from it; though after writing this post, I’m a little sympathetic to Lichtblau’s claim). Rather, I’m interested in the contrast Harman’s narrative presents with what we know of Jello Jay’s evolving views toward the illgeal wiretapping program. After all, Harman and Jello Jay apparently learned of the program in the same briefing (Harman had just replaced Pelosi as Ranking Member on HPSCI; Jello Jay had replaced Graham as the top Democrat on SSCI). But the two have apparently taken dramatically different trajectories in their positions on the program, and the comparison offers an instructive view on oversight.

The First Harman/Jello Jay Briefing: January 29, 2003

Harman provides this description of the January 29, 2003 she and Jello Jay received (along with Pat Roberts, then SSCI Chair, and Porter Goss, then HPSCI Chair):

When I became Ranking Member of the House Intelligence Committee in 2003, I was included for the first time in highly classified briefings on the operational details of an NSA effort to track al Qaeda communications using unique access points inside the US telecommunications infrastructure. The so-called “Gang of Eight” (selected on the basis of our committee or leadership positions) was told that if the terrorists found out about our capability, they would stop using those communications channels and valuable intelligence would dry up (which had happened before).

This program was so highly classified that I could discuss it with no one, not even my colleagues on the Intelligence Committee or the committee’s professional staff. (See p. 169 of the Lichtblau book.) And I was assured that it complied with the law and that the senior-most officials in the Justice Department conducted a full legal review every 45-60 days.

At that point, then, she and Jello Jay appear to have learned that:

  • The US was tracking Al Qaeda communication via US-based access points
  • The program was legal and was reviewed regularly by top Justice Department officials

If Harman’s description is accurate, it suggests the Administration gave a very distorted view of the program. Read more

It Turns Out There Was No Wolf

Even as Mike McConnell is making ham-handed attempts to prove his good faith with Democrats, the White House is facing up to the fact that its fear-mongering no longer works.

The White House, seeking to break a months-long standoff, has signaled to Democratic lawmakers it is open to negotiation over a proposal to expand government spy powers, according to officials familiar with the conversations.


Over the two-week spring recess, administration officials contacted Democratic leaders to suggest they were open to compromise on updating the Foreign Intelligence Surveillance Act. "We definitely want to get it done," said White House spokesman Tony Fratto. "We’ve had some initial conversations with Congress about the need to get FISA reform done quickly." He added that Mr. Bush still prefers the Senate measure, which the White House negotiated with Senate Democrats.


The White House’s more conciliatory posture reflects a recognition that the Bush administration’s leverage on national-security matters has slipped since this past summer, a top Republican congressional aide said. "There’s a recognition that if they’re actually going to get a product they can support, there’s going to have to be some new level of engagement," the aide said.

For months, the White House has tried to replicate its performance last August, when Republicans outmaneuvered Democrats and forced passage of a temporary expansion of domestic spy powers. Republicans then tried to use the temporary law’s expiration date to force Democrats to accept a permanent expansion. But since the law expired Feb. 16, House Democrats have stood firm.

Democrats see the White House’s new tack as acknowledgment that their strategy failed. "Once they saw we had the votes in the House for something other than the Senate bill, they saw the writing on the wall," said one Democratic aide. "They’re more willing to reach out and begin those conversations." [my emphasis]

We’re not there yet on a reasonable FISA bill. After all, Mukasey and McConnell are still plying dishonest claims. The Gorman article points to Steny Hoyer as the key player in the House, which seems logical–which means we’re still trying to persuade a moderate to stand firm.

But this is a good sign. If for no other thing, it suggests that Republicans are facing an election season, with a Presidential candidate who believes he should be elected solely because his Daddy was a big Admiral, finally recognizing the bankruptcy of its fear-mongering strategy.