Scottish Haggis Lives Up to the Name, Backs Holder

/in , /by

Say, are you the least bit surprised that Arlen "Scottish Haggis" Specter has lived up to his name? As in "offal" and "sheep"? Once again? (h/t BSL)

 After making a huge fuss questioning the independence of Eric Holder, Specter just caved and said he’ll support the attorney general nominee.

"I can say with some confidence that there won’t be a successful filibuster," Specter told reporters at a press conference gathered to share his thoughts on Holder in advance of tomorrow’s Judiciary panel vote on the nominee.

Specter added that the strong recommendations Holder received from former FBI director Louis Freeh and former DoJ No. 2 James Comey were influential in swaying his vote.

"At no time did I challenge Mr. Holder’s integrity," the Pennsylvania senator concluded. (But he sure came close, according to Holder himself.) "It was a question of judgment."

Speaking of judgment, Holder also has resolved — to Specter’s satisfaction, at least — the GOP demand that he promise not to prosecute Bush administration intelligence officials who engaged in brutal interrogations at Guantanamo Bay and elsewhere.

"The gist of" Holder’s stance on the issue, Specter told me, "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."]

So the kabuki is off, as of tomorrow.

Well, that was nice. NOW can we get back to the business of governing again, little GOP boys?

FISA: Grill the Executives

/in /by

Threat Level has posted an intriguing interview with Russell Tice from 2006. Tice provides a better idea of how some of the sorting might have happened.

Tice: Say you’re pretty sure you’re looking for terrorists, and you’re pretty sure that the percentage of women terrorists as opposed to men is pretty [small]. So you just filter out all female voices. And there’s a way to determine whether the signature of the voice is male or female. So, boom, you get rid of 50 percent of your information just by filtering there. Then from your intelligence work you realize that most terrorists never talk more than two minutes. So any conversation more than two minutes, you immediately filter that out. You start winnowing down what you’re looking for.

Q: Without really knowing what it is you’re looking for?

Tice: Right. And if you can develop a machine to look for the needle in the haystack and what you come out with from having the machine sift through the haystack is a box of straw, where maybe the needle’s in there and maybe a few bonus needles, then that’s a whole lot better than having humans try to sift through a haystack.

Sounds like a pretty easy system for determined terrorists to game.

The main point of the Threat Level post, though, is that 1) this involved more than just telecom (and email) providers. It also included our banks and whatnot, and 2) since former participants in this sytem will always invoke executive privilege (and state secrets) the only way to figure out what happened would be to subpoena the CEOs of the companies to testify.

I spoke with Tice extensively in the spring of 2006. With Bush still in power, the whistleblower was considerably more taciturn than on television last week. But looking back through the transcript of my interviews now, in the context of his new revelations, it seems clear that Tice was saying that credit card companies and banks gave the same kind of cooperation to the government that phone companies did.

"To get at what’s really going on here, the CEOs of these telecom companies, and also of the banking and credit card companies, and any other company where you have big databases, those are the people you have to haul in to Congress and tell them you better tell the truth," he said at the time. "Because anyone Read more →

Alberto Gonzales Tells the Tale We've Been Waiting For

/in /by

Alberto Gonzales did a long interview with NPR’s Michel Martin on his tenure as Bush’s Fredo. As part of it, he gave a long discussion of his actions on March 10, 2004 and thereafter, starting with his insistence that he was not trying to take advantage of Ashcroft when he was in ICU (my transcript–apologies in advance for any errors). 

AGAG: Neither and or I, and obviously, I can’t really speak for Andy, but I’m comfortable saying that neither Andy or I would have gone there to take advantage of someone who was sick. Um, Andy and I both, in fact, talked about the importance of satisfying ourselves as we talked with General Ashcroft that he was in fact competent. We talked about it over at the White House and talked about it in the sedan over to the hospital. We were concerned about that. We were sent there on behalf of the President of the United States. We had just left a very important meeting with the Congressional leadership about a very important intelligence program that the Congressional leadership agreed with the President should continue because it was a particularly heightened period of threats against the United States and against our allies. And I might remind your listeners that the very next morning, you had the Madrid train bombings. It was a very serious period of time, we had a very important program, and everyone–the Congressional branch leadership and the Executive branch leadership seemed to feel that this was something that should continue.

MM: Are you saying the President told you to go?

AGAG: What I’m saying is I was sent there on behalf of the President of the United States. The Chief of Staff, the Counsel to the President, we went to the hospital on behalf of the President to make sure that General Ashcroft had this information. That’s why we went to the hospital.

MM: You mean had information about the Madrid bombing or had information that this was of importance to the President and the Congressional leadership?

AGAG: The Madrid bombing had not happened yet. That would happen then the next morning. We went to the hospital to make sure that the Attorney General had information about the approval of the Congressional leadership. We felt that as a former Member of Congress that that would make a difference for him and as someone who had been involved in the reauthorization of the program for three years we felt that that would make a difference. Read more →

What Jane Mayer Tells Us about Warrantless Wiretapping

/in , , /by

Jane Mayer’s excellent piece on Obama’s Executive Orders banning torture is about just that–the end of the torture regime. (Incidentally, kudos to Greg Craig, whom I beat up yesterday, for giving his first interview to Mayer.) But it offers some useful insight on a debate we’ve been having over the last couple of days–whether or not Obama could have intervened in the al-Haramain trial (and other pending litigation on warrantless wiretapping) in the same way he intervened in the pending habeas petitions.

First, off, Mayer confirms a point I made–that Obama was not about to take on the most politically charged legal decisions in his first day in office.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the president before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping. The EOs Obama signed last week don’t commit him to an approach on that score. Furthermore, he seems inclined to insulate himself from such decisions by putting them in the hands of Eric Holder, to make it a prosecutorial decision. Though Holder has intimated he’d hold both the architects of our torture regime and of our warrantless wiretapping responsible (lucky for him, he could do it all in a giant 2-for-1 deal), I’m not holding my breath on that score. But we won’t know what he’ll do until he becomes Attorney General.

That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture.  She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month. Mayer specifically describes the role of retired Marine General Chuck Krulak who promised to "fly cover" for the Obama Administration after they pushed this through.

Who, might I ask, is doing similar lobbying to restore civil liberties for Americans?

Oh, I know there has been similar lobbying–on the part of civil liberties groups, high profile individuals, and DFH bloggers like you and me. Read more →

Jay Rockefeller Told Us What Russell Tice Just Confirmed, Years Ago

/in , /by

On KO the other night, Russell Tice expanded on the details of the warrantless wiretapping program, revealing that, the government has been data mining both our telecom communications and our credit card transactions.

As far as the wiretap information that made it to NSA, there was also data mining that was involved. At some point information from credit cards and financial transactions was married in with that information. So of the lucky US citizens, tens of thousands of whom, that are now on digital databases at NSA who have no idea of this also have that sort of information that has been included on those digital files that have been warehoused.

[snip]

This is garnered from algorithms that have been put together to try to just dream up scenarios that might be information that is associated with how a terrorist could operate. Like I mentioned last night, the one to two minute pizza delivery call, things of that nature, of which an innocent citizen could be easily tied into these things. And once that information gets to the NSA, and they start to put it through the filters there, where they have langauge interpreters and stuff and they start looking for word-recognition, if someone just talked about the daily news and mentioned, you know, something about the Middle East they could easily be brought to the forefront of having that little flag put by their name that says "potential terrorist" and of course this US citizen wouldn’t have a clue.

[snip]

I have a guess where it was developed. I think it was probably developed out of the Department of Defense; this is probably the remnants of the Total Information Awareness that came out of DARPA. That’s my guess.

Again, this should surprise no one who has followed our detailed discussions over the last four years about the kind of data mining they were probably doing.

In fact, we learned as much from someone briefed on the program in the days following the first revelations about the program in December 2005. That’s when Jello Jay Rockefeller released the letter he had sent to Cheney about the program. That letter described the program in precisely those terms–the old TIA program that Iran-Contra retread John Poindexter had developed.

As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, Read more →

al-Haramain: the Dead-Enders Misrepresent Their Appeal to Dismiss the Need to Wait for Obama

/in , /by

al-Haramain’s lawyer, like me, has some doubt whether or not the motion for appeal submitted on Monday and reaffirmed under Obama’s name on Thursday reflects the thinking of the Obama Administration.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither [Anthony] Coppolino nor [Vaughn] Walker responded to that point.

And I’m guessing since Coppolino, who is purportedly speaking for the Obama Administration, didn’t immediately answer that question, he has some doubt, too. 

I suspect Walker has some doubt, too, as he has asked for more briefing, which will have the effect of delaying his response until such time as Eric Holder and Dawn Johnsen and David Kris have had time to fully review the documents behind the case and actually be read into this program.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

And well he should demand more briefing. Because the dead-enders make a claim in the only document with Obama’s name on it–the case management statement initially submitted with Bush’s name on it and then re-submitted with Obama’s name on it–that completely misrepresents the scope and nature of their appeal.

The Dead-Enders Argue They’re Not Making a Unitary Executive Argument

In its own case statement, al-Haramain cites Eric Holder’s call for "a reckoning" for Bush having illegally authorized warrantless wiretap, and then cites Dawn Johnsen arguing that the "unitary executive" theory threatens "balance of powers and individual rights." Then, al-Haramain argues that these statements suggest the Obama Administration will adopt a different course with this case.

It would be a remarkable turnabout for the new Department of Justice, under the guidance of Mr. Holder and Ms. Johnsen, to refuse any declassification here and continue the effort to resist a decision on plaintiff’s standing and this Court’s ajudication of the Bush administration’s "unitary executive" and Commander-in-Chief" theiries.

Read more →

The "Obama" Support for Stay Pending Appeal in al-Haramain

/in /by

A number of you have emailed to ask about this report–that Obama has supported Bush’s request for a stay pending appeal in the al-Haramain case.

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor. With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.

Thursday’s filing by the Obama administration marked the first time it officially lodged a court document in the lawsuit asking the courts to rule on the constitutionality of the Bush administration’s warrantless-eavesdropping program. The former president approved the wiretaps in the aftermath of the Sept. 11, 2001, terror attacks.

"The Government’s position remains that this case should be stayed," the Obama administration wrote (.pdf) in a filing that for the first time made clear the new president was on board with the Bush administration’s reasoning in this case.

On its face, this looks like really horrible news–a spineless attempt on Obama’s part to play along with Bush’s efforts to run out the clock on Bush’s alleged crimes in wiretapping al-Haramain and other Americans. And frankly, this should not be surprising news; Eric Holder said in his confirmation hearing that–unless he finds anything unexpected–he would continue the Bush Administration’s support for retroactive immunity, a case that is also before Judge Vaughn Walker. So it would be unsurprising that the Obama Administration would be cautious in this case as well.

That said, there is some confusion about the whole decision. Here’s the timeline:

January 16: Bush files appeal

January 19: Bush motions for stay pending appeal, informs Walker and al-Haramain of what it is doing

January 20: al Haramain responds, Obama becomes President

January 21: Specter places his one-week hold on Holder’s nomination

January 22:  The "Obama Administration" submits support of Bush motion 

January 23, 10:30 AM PST: Hearing scheduled

As al-Haramain complains in its response, the Bush Administration appears to have deliberately held their appeal until "64 minutes before midnight on the last day of the Bush presidency." Read more →

How to Prove Intentionality of Domestic Surveillance?

/in /by

Given Russell Tice’s recent confirmations of many of our suspicions about Bush’s warrantless wiretapping programs, I wanted to point a footnote from the recently declassified FISCR ruling. In a paragraph addressing the incidental collection of Americans’ communications and dismissing the possibility (based on BushCo’s assurances) that the Bush Administration kept a database of incidentally collected information from non-targeted US person, this footnote appears.

The petitioner has not charged that the Executive Branch is surveilling overseas persons in order intentionally to surveil persons in the United States. Because the issue is not before us, we do not pass on the legitimacy vel non of such a practice. (26)

I find the footnote interesting for a couple of reasons. It suggests that the collection–whether intentionally or not–is sweeping up communications from US persons (even while the ruling elsewhere suggests that there is much more leeway for targeting US persons in this than claimed). That is, it seems to admit the possibility that there might be a suit arguing that the wiretap programs intentionally target Americans, in which case the foreign intelligence exception it describes may be limited. 

But at the same time, it suggests how high the bar to prove that this entire program is just an attempt to evade the Fourth Amendment and wiretap Americans. Jeebus. If it accepts the Bush Administration’s assurances that there is no incidental database (which reads like a highly-parsed statement anyway), then how would we ever prove we were intentionally tapped?

Emptywheel to Senator Whitehouse: We Only Have 7 Weeks to Indict Bush

/in , /by

Two and a half weeks ago, bmaz predicted that the Bush Administration would appeal Judge Vaughn Walker’s ruling requiring the Bush Administration to turn over a document that likely proves they violated FISA by wiretapping American citizens. Sure enough, on Friday and Monday, they did so.

In a parting shot, the Bush administration’s Justice Department shrugged off a San Francisco federal judge’s order to make a classified document available to lawyers for an Islamic group challenging the legality of the outgoing president’s secret wiretapping program.

[snip]

Chief U.S. District Judge Vaughn Walker ruled Jan. 5 that Al-Haramain could proceed with its case, saying government statements showed that the group had probably been wiretapped.

Walker said he would examine the classified document to see whether it showed that federal agents intercepted the calls without a warrant, a ruling that would allow him to decide the legality of the surveillance program. He ordered the Justice Department to let the group’s lawyers see the document, after they obtain security clearances, so they can argue their case while keeping the contents secret.

In Monday night’s filing, Justice Department lawyers asked Walker to suspend his ruling while they appeal, and said the National Security Agency has decided the Islamic group’s lawyers have no need for the document.

"Under normal clearance procedures, the NSA would decide – not the court – whether the plaintiffs’ counsel should receive access to any classified information," department lawyers wrote.

Between that appeal and Arlen "Scottish Haggis" Specter’s highly unusual one-week hold on Eric Holder’s nomination yesterday, it sure does look like my theory–that Republicans are trying to delay the time when a Democrat takes over DOJ and starts reviewing Bush Administration actions and considering prosecutions.

In particular, I believe, they are delaying Holder’s nomination to shorten the time between the day Holder takes over and the day the statute of limitations on violations of FISA Bush committed on March 11, 2004 start to expire–that is, March 11, 2009, just seven weeks away.

At yesterday’s Progressive Media Summit, I had an opportunity to remind Senator Sheldon Whitehouse of that timeline. I reminded him, too, that Bush seems intent on delaying the time when an Article III judge assesses the evidence in the al-Haramain document, which probably proves Bush broke the law.  

I don’t know whether Senate Dems can do anything to short-circuit Republican efforts to run out the clock. Read more →

Russell Tice Confirms Everything We've Surmised About Bush's Illegal Wiretap Program

/in /by

 

Teddy linked to the stunning Russell Tice appearance on Keith O tonight. I wanted to add a few points.

First, Tice’s description of the program confirms everything we have surmised about the program. The program:

  • Established the means to collect all American communications
  • Analyzed meta-data to select a smaller subset of communications to tap further
  • Conducted human analysis of those messages

That is, the Bush administration used meta-data (things like length of phone call that have nothing to do with terrorism) to pick which communications to actually open and read, and then they opened and read them.

And of course, everyone’s communications–everyone’s–were included in the totality of communications that might be tapped.

Including–especially–journalists. We knew that both Christiane Amanpour and Lawrence Wright’s communications were tapped. Well, apparently so were every other journalists’.

Tice figured out that they were getting journalists’ communications when he realized that they were separating out all the journalists’ communications–but then ensuring that those communications were still collected 24/7.

I guess I was right to doubt the government’s claim–made to the FISCR–that it does not have a database of the communications of incidentally collected non-targeted persons, seeing as how this separate collection of journalists’ communications would be just that kind of database. (Unless, of course, the Bush thugs want to admit they deliberately targeted journalists as suspected terrorists.)

Tice also explained how BushCo evaded oversight by claiming some of this program was an intelligence program, and some was a military program. (Presumably, though, my smart Senator Carl Levin might notice something like that…) That strategy seems remarkably similar to the means by which BushCo legally justify the PAA (and presumably the program operating without Congressional sanction before it)–by using hybrid means of approving the program so as to eviscerate the Fouth Amendment. Nothing was too cute for these folks in their efforts to gut the Constitution, I guess.

Now that Tice has confirmed that all those journalists who have been poo-pooing the blogosphere for its concerns about the program in the last three years were being wiretapped, we may finally get some large scale press attention on this. Russ Feingold is going to look pretty damn smart for insisting that this is precisely what was going on. And perhaps, finally, we’ll have some accountability on these issues.

As I’ve been hinting, I did my small part in the hopes of accountability today; hopefully I’ll have the video done to explain tomorrow.

I’m beginning to believe we Read more →

image_print