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?

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. After all, Mark Filip will remain the Acting AG for the next week, at least, and he’s likely to follow the same obstructionist approach as Mukasey has.  But perhaps with some focus from Senator Whitehouse, we might raise the costs for their efforts. Particularly given the Tice revelations last night, we ought to be able to generate new focus on Bush’s efforts to wiretap every American.

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 might just hold these fuckers accountable yet.

I’ve said in the last two threads on the FISCR opinion that the plaintiff is an email provider. Here’s why I believe that to be true.

On February 29, 2008, the Computer & Communications Industry Association wrote the Members of the House (which was then considering its own amendments to FISA, distinct from those that had been already passed in the Senate), lobbying against retroactive immunity. CCIA, recall, is the trade group for a bunch of tech companies, including email providers Yahoo, Microsoft, and Google. That letter reads:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact. !!

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well. [my emphasis]

On February 29, 2008, at a time when the plaintiff in this case was almost certainly actively pursuing the case (I’ll do a review of timing in a later post), the trade association for the country’s biggest free email providers was lobbying:

• Against retroactive immunity for those companies participated in violations of federal law, suggesting that the trade organization believed earlier cooperation was clearly illegal
• For prospective immunity, which had been included in PAA and was included in every FISA amendment ever contemplated, suggesting that association members intended to cooperate going forward
• For "bright lines" describing the requirements for cooperation with the government, suggesting that association members cared first and foremost about the clarity of the law and believed the law, in the past, had not been clear

If that doesn’t, by itself, convince you that a member of the CCIA was the company objecting to the government’s byzantine assault on the Fourth Amendment, in discussions I had about this letter with a number of people, I learned that there were hints of an email provider fighting orders in the FISA courts.

I believe this suit is the rumored suit.

In other words, when you read the opinion and see the concerns about particularity, understand that we’re almost certainly talking about email servers, and not phone calls among individuals. 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yesterday, I showed that the government claims it doesn’t have a database of incidentally collected data from non-targeted US persons; and then I showed why that claim is not credible. Today, I’ll point to another big loophole in the government’s wiretapping program revealed by the FISCR opinion: the use of three or more different methods of getting around Fourth Amendment requirements of probable cause and particularity.

The opinion describes what it seems to present as abundant protections involved in the wiretapping at issue–noting that these protections are included not just in Protect America Act, but also Executive Order 12333 and certain classified procedures.

Beginning in [redacted] 2007, the government issued directives to the petitioner commanding it to assist in warrantless surveillance [redacted, redacted footnote]. These directives were issued pursuant to certifications that purported to contain all the information required by PAA.

The certifications require certain protections above and beyond those specified by the PAA. For example, they require the AG and the National Security Agency (NSA) to follow the procedures set out under Executive Order 12333 2.5 …, before any surveillance is undertaken. Moreover, affidavits supporting the certifications spell out additional safeguards to be employed in effecting the acquisitions. This last set of classified procedures has not been included in the information transmitted to the petitioner. In essence, as implemented, the certifications permit surveillance conducted to obtain foreign intelligence for national security purposes when those surveillances are directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. [my emphasis]

Much later, when the Court is testing the government’s claim that certifications in question qualify as “reasonable,” it again lists these several “safeguards.”

The government rejoins that the PAA, as applied here, constitutes reasonable government action. It emphasizes both the protections spelled out in PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of a surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 2.5, and [redacted] procedures [redacted] outlined in an affidavit supporting the certifications. [my emphasis]

Understand–this opinion is not about whether PAA (or, more generally, a Congressionally-sanctioned wiretap program) by itself authorizes under the Fourth Amendment the actions the government required the plaintiff to take. It is about whether PAA + EO 12333 (the Reagan Executive Order laying out our intelligence program, plus the amendments to that EO) + redacted procedures submitted in conjuction with, but not mandated by, PAA fulfill Fourth Amendment requirements. PAA, by itself, does not fulfill Fourth Amendment requirements.

FISCR uses EO 12333 to fulfill probable cause

Now consider why this is important. The opinion describes the role of EO 12333 in authorizing the wiretaps, using it to dismiss the plaintiff’s probable cause concerns.

The procedures incorporated through section 2.5 of Executive Order 12333, made applicable to the surveillances through the certifications and directives, serve to allay the probable cause concern. That section states in relevant part:

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.

[citation omitted, emphasis original, link to EO added]. Thus, in order for the government to act upon the certifications, the AG first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power.

(Click through to read the further description on page 23 of what the AG gets from NSA to make this determination.) This strikes me as critically important. The FISCR is not relying on the following language–the language from PAA–to get to probable cause:

Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that–

1. there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;
2. the acquisition does not constitute electronic surveillance;
3. the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;
4. a significant purpose of the acquisition is to obtain foreign intelligence information; and
5. the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made. [my emphasis]

It is relying on this language, from EO 12333.

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.

In other words, probable cause here is not tied to the “reasonable belief” that the surveillance is directed at persons believed to be outside the US. It is not tied to the procedures used to come to that reasonable belief. Rather, probable cause requires solely that the technique is directed against an agent of a foreign power, and probable cause is specifically tied to techniques used within the US or against a US person. The probable cause, here, is tied specifically to actions and persons within the US.

And we know that the AG certification that the surveillance “concerns” people outside the US (mandated by PAA) and the AG determination of “probable cause” (mandated by EO 12333) are different things, because the former remains good for one year, whereas the latter is based on an NSA statement limiting the surveillance to a shorter period of 90 days.

[The AG determination is based on DOD regulations that] also required a statement of the period–not to exceed 90 days–during which the surveillance was thought to be required. [my emphasis]

So, one year for the certification tied to persons located outside the US, 90 days for the determination of probable cause related to agents of a foreign power that may or may not be located inside the US. (I’ll explain why this 90 day limit is important in a later post, but for the moment remember that this opinion, which authorized ongoing wiretaps, was written on August 22, 2008, more than 90 days after PAA expired on February 16, 2008.)

And conveniently, PAA specifically allows for its use with other laws.

FISCR uses redacted procedures to fulfill particularity

But that’s not all. Now we come to the matter of the redacted procedures, which is what the Court uses to dismiss concerns about particularity.

The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.

The [redacted] procedures [redacted] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted] Although the PAA itself does not mandate a showing of particularity, see 50 USC 1805b(b), this pre-surveillance procedure strikes us as analogous to and in conformity with the particularity showing contemplated by Sealed Case. [my emphasis]

And if all those redactions in this argument dismissing the need for particularity don’t make you nervous, note there’s an entire paragraph redacted following these two.

Review closely what this passage says. FISCR admits that it has, in Sealed Case, mandated something “analogous to and in conformity with” particularity. It acknowledges here that PAA does not itself mandate particularity at all. Only when PAA is applied in a certain way–with EO 12333 and with these redacted procedures–does the action the government is compelling the plaintiff to do overcome Fourth Amendment prohibitions on unreasonable search and seizure.

It’s worth recalling, at this point, something Mary has pointed out: the FISCR is not here ruling on all activities conducted under PAA. It is only ruling on this particular order. That’s because it can’t rule that PAA itself is constitutional because–by itself–it is admittedly not. The determination of the constitutionality of the actions mandated under PAA can only be made in conjunction with a review of these redacted procedures.

And oh, by the way, the plaintiff doesn’t get to see those procedures, at least not beyond the “greater generality” with which they’re described in the government’s brief.

This last set of classified procedures has not been included in the information transmitted to the petitioner

And if the plaintiff got to see those redacted procedures, it would make all the difference. As Russ Feingold noted,

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access. The court upheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process. The court concluded that “[t]he record supports the government. Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case.” However, the company did not have access to all relevant information, including problems related to the implementation of the PAA. Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act (“FAA”), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

Now, Russ Feingold has read and been briefed on the unredacted opinion and has some idea what’s included in those redacted procedures. And he says that if the plaintiff were given access to those redacted procedures so it could address the sufficiency (or not) of them with regards to particularity, then the Court would have ruled the government’s order unconstitutional.

It’s a neat parlor trick the Bush Administration–with the full complicity of Congress–has pulled off. The FISCR all but admits that PAA, by itself, was unconstitutional. But it has allowed the government to use PAA to compel cooperation from telecoms, and then use AG determination (including, potentially, with regards to Americans claimed to be agents of a foreign power) and these redacted procedures (procedures which the telecom, which is virtually the only entity with standing to object to the orders, may not see, and procedures which are apparently not guided by any law) to get around the probable cause and particularity required by the Fourth Amendment.

The Fourth Amendment still exists, the FISCR maintains, but it exists somewhere you–and even the telecoms now required to spy on you–can’t see.

I’m going to try to do a series of posts on the FISA Appeals Court ruling before football starts tomorrow. In this post, I just want to point to a passage that deserves more scrutiny:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

To translate, if the government collects information from a US citizen (here or abroad), a legal permanent US resident, a predominantly US organization, or a US corporation in the course of collecting information on someone it is specifically targeting, it it claims it does not keep that in a database (I’ll come back and parse this in a second). In other words, if the government has a tap on your local falafel joint because suspected terrorists live off their falafels, and you happen to call in a take out order, it does not that have in a database.

There are reasons to doubt this claim. First of all, because we know of huge new data storage facilities, and they’ve got to be filling those facilities with something. Of course, they might just store US person communications on servers, but not in a formal database, and thereby be able to claim they’ve not got your falafel order in a database proper.

But we also know that when Russ Feingold proposed several measures to protect this kind of incidental data during last year’s FISA debate, Mike McConnell and Michael Mukasey started issuing veto threats. For example, when Feingold proposed adding this amendment to the new FISA changes,

At such time as the Government can reasonably determine that a communication acquired under this title (including a communication acquired under subsection (a)(2)) is to or from a person reasonably believed to be located in the United States, such communication shall be segregated or specifically designated and no person shall access such a communication, except in accordance with title I or this section.

Mukasey and McConnell threw out a bunch of vague alarmist objections.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.

They made similar objections when Feingold attempted to prohibit reverse targeting and prevent the use of improperly collected information. All of these objections indicate that they cannot–or refuse to–add protections for this incidental information.

Which frankly leaves me wondering whether the government isn’t massively parsing that claim.

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons,

Did the court ask only about a database consisting entirely of incidentally collected information? Did they ask whether the government keeps incidentally collected information in its existing databases (that is, it doesn’t have a database devoted solely to incidental data, but neither does it pull the incidental data out of its existing database)? Or, as bmaz reminds me below but that I originally omitted, is the government having one or more contractors maintain such a database? Or is the government, rather, using an expansive definition of targeting, suggesting that anyone who buys falafels from the same place that suspected terrorist does then, in turn, becomes targeted?

McConnell and Mukasey’s objections to Feingold’s amendments make sense only in a situation in which all this information gets dumped into a database that is exposed to data mining. So it’s hard to resolve their objections with this claim–as described by the FISA Appeals Court. Unless, of course, they’re parsing wildly with the Court to get a favorable ruling.

I’ll get to these later. But if you want to start reading them, be my guest.

Opinion

Order

One thing I note is that they’ve redacted the number of requests this telecom provider got (page 4). They’ve also redacted a description of their term "certain customers."

Also, the Court premised what it was saying on the fact that "The PAA was a stopgap measure."

Another point: there may have been a problem with the original certifications on these surveillance requests.

The original certifications were amended, and we refer throughout to the amended certifications and the directives issued in pursuance thereof.

Christy linked to HJC’s report on the Imperial Presidency earlier.

I’ll have a lot more to say about it. But for the moment I wanted to point to details it includes on the October 23, 2001 OLC opinion eliminating the 4th Amendment we’ve been looking for (this is the memo cited in Yoo’s Torture Memo). 

On page 74 it describes the memo:

On October 23, 2001, Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty in the Department of Justice’s Office of Legal Counsel (OLC) prepared a memorandum entitled: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”291 This unclassified memorandum suggests broad power of the president as Commander in Chief to use military force inside the United States, contemplating even seizure and detention of United States citizens (or lawfully admitted aliens) in some circumstances. As such, the memorandum – though it does not squarely address detention policy — is consistent with the September 25, 2001, War Powers Memorandum which claimed for the president domestic war powers, anticipates the assertions of presidential power in the domestic detention context just a few months later, and anticipates the November 2001 conclusion that the president has the power to subject United States citizens to military commissions.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. This memorandum was referenced in a subsequent OLC memorandum for the legal conclusion “that the Fourth Amendment had no application to domestic military operations.”293 [my emphasis]

Then another description appears in footnote 1577:

Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense ("DOD"), from John C. Yoo, Deputy Assistant Attorney General, OLC, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23,2001). – Committee staff have reviewed this unclassified memorandum, which contains extraordinary assertions of executive power and appears deeply flawed in its legal analysis. The memo relies on odd precedents, such as a 1933 decision of the New Mexico supreme court, while unhelpful precedents of seemingly greater weight – such as those discussing legal principles developed during the Civil War era involving non-battlefield actions – are dismissed in footnotes. The memo focuses on a startling hypothetical example involving a U.S. military commander seizing an apartment building in a major American city and detaining and interrogating every person found inside. The Department has claimed that this memo does not reflect current OLC thinking, but it is not clear if it has been formally withdrawn or revised. There is no excuse, moreover, for the Administration’s refusal to make this memorandum public.[my emphasis]

I think the emphasis on physical search here is a bit of a red herring.  Check out how that hypothetical scenario reads when you replace "apartment building" with "email server."

The memorandum also contains extended discussion of a hypothetical example which posits that the NSA military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden messages inside an email server and which may possess information about weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the circuits, collect all the emails found inside, and then read them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement.

We know, after all, that this opinion was included in those Stephen Bradbury said had formed the basis for the warrantless wiretap program, so we know BushCo used this logic when designing its warrantless wiretap program.

Call me crazy, but I’m betting money that this little exercise in abolishing the Fourth Amendment is precisely the logic the Administration used for collecting and reading all the telecom signals in this country. It "justifies" unwarranted searches without probable cause, the detention of everyone residing in a particular space whether or not they have a demonstrated tie to the alleged terrorist, and it claims you can use information gathered from this warrantless search for criminal prosecution. That is–it "justifies" everything that is unjustifiable in the warrantless wiretap program.

I’m betting equal money that this is the stuff that made Jim Comey’s head pop off when he learned about it in 2003 and 2004.

Before you read this post, go read this post and this post for background about Judge Vaughn Walker’s order yesterday that the government must give him a document accidentally given to al-Haramain years ago that the Muslim charity claims proves they were wiretapped using the illegal wiretap program. Those posts explain that Walker will finally assess the warrantless wiretap program itself to determine whether it violated FISA. The second post goes on to suggest that this decision will likely impact Walker’s pending decision on whether or not the retroactive immunity passed by Congress is legal.

In this post I’m going to wallow in some delightful weeds, because they show that al-Haramain is going after Bush personally.

Recall that, back in July, Walker told al-Haramain that, before he would review the document itself to determine whether or not the program was illegal, they would have to use unclassified material to prove they are aggreived persons–that they had been wiretapped. A central part of their response to that direction was a description of a series of phone calls which they assert the government used to classify al-Haramain as a super-duper terrorist group, one with direct ties to Al Qaeda. Walker cites those calls in his opinion.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.)

In the telephone conversations between Belew and al-Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. In the telephone conversations between Ghafoor and al-Buthi, the parties also discussed logistical issues relating to payment of Ghafoor’s legal fees as defense counsel in the lawsuit.

Remember, these lawyers have seen the document indicating they were tapped–which was probably a summary of taps and contents of those taps.

I’m guessing, then, it is not a mistake that the lawyers are honing in on these dates. That is, I’m guessing that these specific conversations were among those described in the document that al-Haramain once had in hand. Which means that when Walker reviews the document, it’ll be affirmation of precisely the argument al-Haramain makes here.

It’s easier writing these things, I guess, when you’ve seen the answers to the test.

But that’s not the really delectable part of the description of these calls. Look at this sentence.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004.[my emphasis]

Hahahahahahaha!!!

On March 11, 2004, remember, the warrantless wiretap program was operating without the approval of the Acting Attorney General. After Jim Comey refused to recertify the program on March 9, after Andy Card and Alberto Gonzales tried to get John Ashcroft to overrule Comey from his ICU bed on March 10, Bush reauthorized the program using only the legal sanction of then-White House Counsel Alberto Gonzales on March 11. 

Thus, even if the rest of the program were somehow deemed legal (which it wouldn’t be, because it violated FISA, which is the question at hand), it would be not be deemed legal on March 11, 2004, because the program didn’t have sanction from the Attorney General.

Al-Haramain has reason to believe, you see, that one of the conversations wiretappped was tapped on the day they know the program was illegal under any interpretation of the law.  And, if I’m guessing correctly on why they honed in on these conversations, Judge Walker will have proof to that fact in two weeks time.

Threat Level is reporting that Judge Walker–who is overseeing several of the FISA suits against the telecoms and the government–will review the log of warrantless wiretapping of lawyers representing the Muslim charity al-Haramain to determine whether or not the lawyers were spied on illegally.

U.S. District Judge Vaughn Walker said the lawyers’ amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation’s spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful.

[snip]

Walker’s decision Monday came six months after he ruled that he could look at the Top Secret document in private to see if the surveillance was illegal, but only if the lawyers could first find independent evidence they were allegedly spied on in violation of how the Foreign Intelligence Surveillance Act was written at the time.

On Monday, Walker ruled: "To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."

This will finally put Bush’s behavior in ordering illegal wiretapping under scrutiny by a judge. It’s a far cry, yet, from putting Bush in the pokey for his illegal acts. But at least it is judicial review.