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.

Glenn picked up on Cheney’s recent reiteration of a claim that Alberto Gonzales has made (and may be in trouble for lying to Congress for): that he briefed Congressional leaders on the illegal warrantless wiretap program and they all agreed it should go forward without Congressional approval.  Glenn calls on those Congressional leaders who were at the briefing to respond to Cheney’s claims. But I’m more interested in the way Cheney’s willingness to repeat Gonzales’ story puts the notes Gonzales made to (presumably) back his side of the story back in play.

As I emailed Glenn and Barton Gellman explains to Rachel Maddow (at 6:30 and following), the meeting in question is the March 10, 2004 meeting at which Cheney tried to go around Jim Comey so as to get legal cover for their warrantless wiretap program.

Gellman: He’s talking about a meeting on March 10 of 2004. He’s never previously talked about it in public. And he’s backing up the official story which is that eight members of Congress–four Republicans and four Democrats–came in and were told "The Justice Department thinks this program is illegal, should we go ahead with it anyway, despite there’s no law in Congress authorizing it?"And that four Republicans and four Democrats said "Yes, go right ahead. Do the illegal thing." Now, I talked to four people who were in that meeting and not all of them were Democrats and all of them dispute that that’s the way it happened.

Maddow: Isn’t there some way that could be checked? Doesn’t somebody write down what happens at those things?

Gellman: Yeah, and it was Top Secret code word classified and remains so. 

First, let me correct Gellman. Cheney’s making a somewhat different claim–one apparently disproven by the facts. He’s claiming he briefed all nine Congressional leaders: that is, the Gang of Eight, plus Tom DeLay.

CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until – this was – be from late ’01 up until ’04 when there was additional controversy concerning the program.

At that point, we brought in what I describe as the big nine – not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.

I presided over the meeting. We briefed them on the program, and what we’d achieved, and how it worked, and asked them, "Should we continue the program?" They were unanimous, Republican and Democrat alike. All agreed – absolutely essential to continue the program.

I then said, "Do we need to come to the Congress and get additional legislative authorization to continue what we’re doing?" They said, "Absolutely not. Don’t do it, because it will reveal to the enemy how it is we’re reading their mail." [my empahsis]

This, by itself, discredits Cheney’s story, since Bush’s own Director of National Intelligence has explained that Tom DeLay–as House Majority Leader, the ninth Congressional leader–received his briefing on March 11. Perhaps Cheney is conflating his briefing on March 10–at which not all participants supported his illegal power grab–with his briefing on March 11–at which Tom DeLay presumably sanctioned whatever law-breaking his fellow Texans wanted to do. He presents this as one meeting, but it was two.

I’d like to return to Gellman’s second point: that there is a transcript of the meeting that would reveal whose version of the story is correct. I’ve actually seen conflicting version of that–whether or not the Bush Administration made any record of these briefings (they didn’t make any record, for example, of some of their torture briefings, though we do know briefing documents were handed out at the meeting). 

But there is one known written "record" of that meeting–one I’m increasingly convinced was tailored to support just the story that Gonzales and Cheney are telling.

In one of the several DOJ Inspector’s General investigations into Alberto Gonzales’ conduct, we learned that, on Bush’s instructions, Gonzales made notes of this meeting.

Gonzales told the OIG that President Bush directed him to memorialize the March 10, 2004, meeting.

And, significantly, Gonzales claims he drafted the notes "a few days" after March 10.

Gonzales stated that he drafted notes about the meeting in a spiral notebook in his White House Counsel’s Office within a few days of the meeting, probably on the weekend immediately following the meeting. Gonzales stated that he wrote the notes in a single sitting except for one line, which he told us he wrote within the next day.

This would mean Gonzales drafted the notes only after after Jim Comey and Robert Mueller had already told Bush on March 12 they–and a number of other DOJ lawyers–were going to resign in protest that Bush had reauthorized the program over their objections. In other words, Bush appears to have instructed Gonzales to memorialize the events of March 10 only after he realized they might be in trouble for it.

There are several more details that make me believe this document was crafted to support a false narrative of what happened on March 10. Gonzales explained to DOJ’s IG that he took the notes to memorialize Congressional reactions–which is precisely the issue that is being contested.

Gonzales said that his intent in drafting the notes was to record the reactions of the congressional leaders during the meeting, as opposed to recording any operational details about the program that were discussed. 

And Gonzales treated the notes as his personal security blanket, taking them with him after he left the White House and storing them in his potentially unlocked briefcase somewhere at his house. He took them home rather than storing them in a safe available at DOJ because he did not feel "comfortable" leaving them at DOJ (where, presumably, they might be accessible to others).

We also asked Gonzales why on that first evening he did not leave the notes in the Justice Command Center, a facility available to him for storage of TS/SCI materials. Gonzales responded that he did not recall thinking about it, and that he might not have “felt comfortable” leaving the notes there at that time.

[snip]

Gonzales said his decision to take the notes with him when he left the White House was “instinctive,” and that he wanted to “protect” the notes. He also stated that his decision to take the notes was in part based on the fact that he was remaining with the federal government and would continue to be involved with the NSA surveillance program as Attorney General.

This sure makes it sound like, so long as Gonzales was going to be involved in the illegal wiretap program, he intended to keep those notes in his personal possession.

Finally, we know that Gonzales retrieved the notes in response to Jim Comey’s testimony revealing some of Gonzales’ actions on March 10.

Gonzales said his decision to take the notes with him when he left the White House was “instinctive,” and that he wanted to “protect” the notes. He also stated that his decision to take the notes was in part based on the fact that he was remaining with the federal government and would continue to be involved with the NSA surveillance program as Attorney General.

And that he then used those notes to prepare for his July 24 testimony–the testimony at which he first publicly alleged that Congressional leaders supported the continuation of the program in spite of DOJ concerns about its legality.

Gonzales told us he also used the notes in connection with his preparation to testify before a congressional committee in July 2007. According to Steven Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, Gonzales produced the notes to Bradbury and other Department officials on July 19, 2007, as they helped prepare Gonzales for his appearance before the Senate Judiciary Committee on July 24, 2007.

In other words, Gonzales took the notes after it became clear he might get in trouble for his actions; he treated them as personal CYA rather than official record; and his testimony based on the notes alleged that Congressional leaders assented to the decision to continue the program.

And now Cheney is spouting the same line.

This may end up being a he said-she said, with Gonzales’ retroactive CYA notes being pitted against the memories of others who attended the meeting. But with Cheney repeating this same line as part of his effort to whitewash the Bush Administration’s illegal program, I’m guessing those notes may one day be public (or, at least, reviewed in an inquiry into this program). With Gellman’s representation that at least one Republican disputes the Cheney-Gonzales version, though, we may well demonstrate that Gonzales’ retroactive version doesn’t match the memories of those at the meeting.

I suggested last week that the Republicans have suddenly decided to challenge Eric Holder’s nomination in an attempt to postpone the time when AG Holder (if he is approved) would review the OLC opinions supporting warrantless wiretapping and torture.

It turns out that Patrick Leahy is also worried that BushCo are sitting on OLC opinions it has promised to the Senate Judiciary Committee (h/t Secrecy News).

Even in the final days of the Bush administration, the Department of Justice continues to stonewall congressional subpoenas for documents from the Office of Legal Counsel (OLC), according to the chairman of the Senate Judiciary Committee. Sen. Patrick Leahy (D-Vt.) on Friday underscored the Department’s continued obstruction and hit the Department on going back on its word to provide the Committee with copies of six documents related to a subpoena issued in October for OLC documents.

In a letter dated November 14, Justice Department officials said the Department was "prepared to make available for Committee staff review at the Department" two national security-related OLC opinions subpoenaed on October 21. The Department also wrote that it was "prepared to provide the Committee with copies of additional OLC memoranda on November 17, 2008." Upon receipt of the letter, followed by a verbal assurance on November 17 that the documents were being delivered to the Committee, Leahy postponed the return date of the subpoena, which was scheduled for November 18. To date, the Department has provided the Committee with copies of just two documents, one of which was not listed in the October 21 subpoena and was already widely available in the public domain. The remaining six documents have been made available at the Department only for staff review.

Here’s a list of the OLC opinions the Administration has been playing games with:

A. Memorandum for Alberto R. Gonzales, Counsel to the President, Re "Protected Persons" in Occupied Iraq (March 18,2004).

B. Any final OLC memorandum or written legal advice concerning applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49, including any March 19, 2004 memorandum, Re: Applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49.

C. 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 (October, 2001).

D. Memorandum for Daniel Bryant, Assistant Attorney General, Office of Legislative Affairs, from John Yoo, Deputy Assistant Attorney General, OLC, Re: Applicability of 18 Us.e. §4001 (a) to Military Detention of United States Citizens (June 27, 2002).

E. Memorandum for William J. Haynes II, General Counsel, DaD, from Jay S. Bybee, Assistant Attorney General, OLC, Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (March 13, 2002).

F. Any finalized memorandum from the Department of Justice, Re: Liability of interrogators under the Convention Against Torture and the Anti-Torture Act when a prisoner is not in U.S. custody.

G. Memorandum for John Yoo, Deputy Assistant Attorney General, OLC, from James C. Ho, Attorney-Advisor, OLC, Re: Possible Interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1,2002), or any other finalized memoranda or opinions provided by the OLC regarding the interpretation of Common Article 3 of the 1949 Geneva Convention relating to the treatment of prisoners of war.

H. Memorandum for Alberto Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, OLC, Re: Legality of the use of military commissions to try terrorists (Nov. 6,2001).

The administration has provided the last opinion, and one document the Committee didn’t ask for. But it won’t hand over documents A through G (I’m assuming they just claim there is nothing responsive to F), though it’ll let representatives of the committee look at them.

I haven’t read the Philbin opinion they turned over, but it’s clear why OLC hack John Elwood said, "The conclusions of the memorandum have been affected by subsequent case law, most particularly the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)," as it must form the basis for a lot of the logic that created Gitmo.

We believe that if a particular use of military commissions to try offenses against the laws of war is constitutionally permissible within the United States, it follows a fortiori that such a use is permissible to deal with enemy belligerents overseas, where many constitutional protections would not apply in any event. 

[snip]

We believe that, properly understood, the constitutional analysis in Quirin demonstrates that any person properly charged with a violation of the laws of·war, regardless of citizenship or membership in the armed forces (of this country or another power), may be tried by military commission. The critical point for constitutional analysis is that a person properly charged with an offense against the laws of war has no right to an indictment or trial by jury unoer Article III the Fifth and Sixth Amendments.

[snip]

We note that the Supreme Court’s decision in Quirin also demonstrates that, at least if those charged before a military commission are being held within the territorial United States, they would be able to file a petition for habeas corpus to have an Article III court test whether their cases fell within the jurisdiction of a military commission – that is, whether the offenses charged properly "sets forth a violation of the law of war."

[snip]

But cf Johnson v.Eisentrager, 339 U.S. 763, 787-90 (1950) (holding that the writ of habeas corpus is not available to aliens held outside United States territory)

I’m particularly fond of this logic: Congress has the right to declare war, therefore the President must be able to make the decision about war.

Part of the reason it is difficult to articulate any broadly applicable "test" for determining whether a war exists is that the courts have quite properly concluded that that question (and thus the triggering of the laws of war) is one for the political branches. Early in the Nation’s history the Supreme Court recognized that Congress has authority to acknowledge a state of war, and that its decision to do so, whether formally and fully or partially and by degrees, is not subject to judicial question.

[snip]

We conclude that, even without any action by Congress to acknowledge a state of war, the President, in his constitutional role as Commander in Chief, and through his broad authority in the realm of foreign affairs, see, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), also has full authority to determine when the Nation has been thrust into a conflict that must be recognized as a war and treated under the laws of war.

[snip]

By making the President Commander in Chief of the armed forces, the Constitution must be understood to grant him the full authorities required for him to effectively defend the Nation in the event of an armed attack. Necessarily included among those powers must be the ability to determine whether persons responsible for an attack should be subject to punishment under the laws of war.

Someday, long after this Administration is gone, we might want to think about returning the power to declare war to Congress again. But I suppose that would take Congress asserting that right.

I wonder. Is OLC refusing to turn these over to stall until the time when SCOTUS overrides each and every one of them?

As Mike Isikoff has related in Newsweek, Tom Tamm was the critical tipping point behind Eric Lichtblau and Jim Risen’s New York Times expose the Bush Administration domestic surveillance program.

Marcy pointed out yesterday, the FBI/Justice Department has now been upending Mr. Tamm’s life for years now and, it appears, has been stringing out the matter seeking to get past Vaughn Walker’s consideration of the Constitutionality of the retroactive Congressional immunity grant in the consolidated cases in the Northern District of California (and, presumably, get past the five year statute of limitations on many of the Administration’s actions):

Delaying the decision until the Obama administration takes office would do more than dump the problem into Obama’s lap (just like the Gitmo detainees, of course). It would also delay the time when Tamm testified publicly about what he knows of the domestic surveillance program until after Vaughn Walker issues a ruling on immunity for the telecoms.

By coming forward now, Tamm has told Walker something–in no uncertain terms–that the government won’t tell him.

DOJ recognized that this program was illegal.

The bottom line is that Tom Tamm blowing the whistle is probably the linchpin behind us knowing what we do about the egregious unconstitutional and illegal actions of the Bushies. Tamm coming forward at this time may also prove to be critical in forming Judge Walker’s mind on his review of the immunity assertion.

A lot of readers have asked about how to donate to Tamm’s legal defense fund. In that regard, I contacted Mr. Tamm’s attorney, Paul Kemp and obtained the information; here is the response:

Hi [bmaz]. Thanks for your inquiry. The address of the defense fund
is:

Thomas Tamm Legal Defense Fund
Bank of Georgetown
5236 44th Street
Washington, DC 20015.

Tom appreciates your support and that of your readers. [Some
unrelated chit chat on another matter redacted]

Paul F. Kemp

Irrespective of his precise personal motivations, Tom Tamm has done the Constitution, the Fourth Amendment, the rule of law and all of us a favor by exposing the rank lawlessness of the elected leaders of this country. If you see fit, send him a few bucks to lighten the load he has taken on.

I don’t know about you, but if the wingnuts can pony up hundreds of thousands for the traitor Scooter Libby, I am sure as heck going to ante up a little to thank Tom Tamm for doing the right thing.