Thomas Tamm to Vaughn Walker: They Knew It Was Illegal

I’ll have a lot more to say about Isikoff’s excellent story on Thomas Tamm, the guy who tipped Eric Lichtblau off to the domestic surveillance program.

But for the moment, I’d like to elaborate on yesterday’s comments about timing. Tamm’s lawyer reveals that DOJ just recently told him that they were delaying a decision on whether or not to charge Tamm.

Paul Kemp, one of Tamm’s lawyers, says he was recently told by the Justice Department prosecutor in charge of Tamm’s case that there will be no decision about whether to prosecute until next year—after the Obama administration takes office.

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. 

Tamm provides the names of several people whom Walker might want to consult before he rules on the immunity law. There’s Lisa Farabee, who told Tamm that,

"Don’t even go there," and then added, "I assume what they are doing is illegal."

And there’s Mark Bradley, who told Tamm,

"This may be [a time] the attorney general gets indicted,"

If these two lawyers in the Office of Intelligence Policy and Review–the office that provides legal review of wiretaps on a logistical level–believed that this program was illegal, then how can Michael Mukasey now represent to Walker that it wasn’t?

And just for good measure, Tamm also reveals the code name for the program–Stellar Wind–which will help the Electronic Frontier Foundation and others argue that the existence of this program is publicly known.

I’m guessing that Vaughn Walker is reading this article very closely this morning.

One more point about timing: I don’t think Tamm coming forward now is due exclusively to noble motives. Consider how it might affect any potential trial. If Tamm can force two lawyers (plus the FISA judges who balked at the program) to go on the record that they, too, believed this was an illegal program, then it’s going to make it easier for him to argue that he came forward solely to expose illegal activities. Read more

Good Question

The Bush Administration is in Vaughn Walker’s courtroom today, trying to convince him to just give the telecoms immunity with no further scrutiny.

But given the questions Judge Walker has posed to the Administration, it looks like it won’t be that easy. For example, there’s this question, which highlights just how nutty this retroactive immunity is:

What exactly has Congress created with § 802 (in Pub L No 110-261, 122 Stat 2467, tit II, § 201 (2008))? It does not appear to be an affirmative defense but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision? 

He goes from there to ask several more questions getting at that pesky separation of powers thing. You know–separation of powers, which says that the courts have the ajudicatory function?

In making the certification called for by section 802(a)(5), is the Attorney General performing an adjudicatory function? That is, is he not making a determination that only a court can make?

They are all good questions. And they suggest that Walker is not going to simply roll over and abdicate his Article III function. Which probably means this will be appealed beyond the time when the Bush Administration leaves office.

Which I guess means we ought to be preparing some questions for Eric Holder about FISA at his confirmation hearing.

Well, This Should Make the President-Elect More Anxious to Overturn Domestic Spying

Getting snooped on by Verizon employees…

Some Verizon Wireless employees accessed billing records from a cell phone President-elect Barack Obama had used, the Obama transition and Verizon Wireless said Thursday.

[snip]

Verizon Wireless CEO Lowell McAdam issued a statement apologizing to Obama. He also said that whether they were authorized or not, the employees who breached the president-elect’s account face possible disciplinary action and were immediately put on leave without pay. [my emphasis]

I’m sorry, Mr. McAdam. Are you suggesting these Verizon employees may have been authorized to access Obama’s records? By whom?

I’m preparing my Book Salon review for James Bamford’s Shadow Factory right now. (Bamford will be at FDL Sunday at 5PM ET.) And his story of Verizon’s Israeli-connected spooky side is way more troubling than the already troubling AT&T Israeli-connected spooky side.

Update: The CNN story on this makes it sound like the authorized v. unauthorized question pertains more to whether people had any business with Obama’s call records. Also note it says those involved were suspended with pay.

Verizon Wireless, meanwhile, has launched an internal probe to determine whether Obama’s information was simply shared among employees or whether "the information of our customer had in any way been compromised outside our company, and this investigation continues," McAdam said in an internal company e-mail obtained by CNN.

"Employees with legitimate business needs for access will be returned to their positions, while employees who have accessed the account improperly and without legitimate business justification will face appropriate disciplinary action," McAdam said, "up to and including termination." [my emphasis]

Eyes On The Spies: What Obama Can Do About Illegal Surveillance

With all the commotion and hubbub surrounding the personalities and gossip of Obama’s cabinet formation, and expression of everyone’s opinion on how that should proceed, little has been said about the actual policies and actions (other than Iraq) that should be implemented right out of the gate. One area that has been neglected is that of the illegal wiretapping and surveillance policies and practices that were instituted in the country’s name by the Cheney/Bush regime.

Our friends at the Electronic Frontier Foundation (EFF) have some ideas for the incoming Obama Administration in this regard, and they are pretty good.

President Obama can end the immunity process. Consistent with his previous opposition to immunity — then-Senator Obama voted in favor of Senator Dodd’s amendment to strip the immunity provisions out of the FAA altogether — Obama could instruct his new Attorney General to withdraw the government’s motion to dismiss the lawsuits based on the immunity statute. Or,

President Obama can temporarily freeze the immunity process until he has learned all the details about the NSA program. Read more

Greg Craig as White House Counsel

You might remember Greg Craig–the guy Obama just named his White House Counsel–from the FISA fight. Craig, who I guarantee you gets paid a lot more for his lawyering than I get paid to do whatever it is I do here, and who I’m certain has a lot more training and experience in the law than me, explained Obama’s cave on FISA this way.

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.” [my emphasis]

As I pointed out at the time, 

FISA is not expiring anytime soon. Last I checked, FISA’s been on the books for 30 years, and I have every expectation it will remain on the books for the next 30 years, regardless of how Obama votes on July 8.

Either Craig or Obama is making the common–but ignorant–mistake of conflating the Protect America Act with FISA. The former does expire in early August. The latter does not.

I might be accused of pedantry by maintaining this distinction. But it[‘]s useful to maintain the distinction because it focuses on the differences between FISA and PAA. FISA provides a way for the government to wiretap individuals legally, while providing real protections for American citizens. Whereas PAA provides the government the ability to get basket warrants based on the say so of the Attorney General, dramatically eroding the protections for American citizens.

When someone erroneously claims that FISA is going to expire shortly, it’s a good bet that that person is thinking about retaining the basket warrant provisions of the PAA and not–as the spin suggests–simply "modernizing" FISA so the government can wiretap foreigners via telecom circuits in the United States. 

It’d be useful if someone asked the Obama campaign which of these authorities Obama is really intent on maintaining. 

Granted, that was just one teeny tiny little issue–you know, our Fourth Amendment rights, and the willful abuse of the law by the Bush Administration?

Read more

No One Could Have Imagined an IG Report on Warrantless Wiretapping Would Suck

In an article claiming, inaccurately, that few people noticed the debates over the requirement for an Inspector General’s report on the illegal warrantless wiretap program…

The little-noticed provision for a public inspectors-general report was crucial to gaining the support of some liberal Democrats—including Sen. Barack Obama—for last summer’s bill, which allowed a modified version of the program to continue.

…and along with the news that the CIA Inspector General John Helgerson–who will be managing this investigation–did not submit an unclassified report that was not required by the law…

But when the inspectors general recently submitted their first "interim" report to Congress under the measure, it wasn’t made public. Instead, the brief document, written by CIA inspector general John Helgerson, was marked classified—a move that has drawn a stiff protest from House Intelligence Committee Chairman Silvestre Reyes.

Isikoff and Hosenball reveal what I argued some time ago–there are functional problems having an IG conduct this investigation instead of (as the House originally demanded) an independent commission with subpoena power. Most importantly, while Inspectors General of the relevant agencies can inspect their own agencies, they’ve got no jurisdiction to investigate the White House.

Reyes’s letter also included a request that the inspectors general issue a "preservation order" preventing White House or intelligence community officials from removing or destroying documents relating to the warrantless-surveillance program. With barely three months left in the administration, Reyes wanted to make sure that "they don’t destroy anything before they walk out the door," Littig says.

[snip]

As for the demands for a preservation order, the official said: "Directives have been issued to preserve records relating to this surveillance program. But, as Congress is aware, intelligence community inspectors general have clearly defined authorities. Those authorities don’t, as a rule, extend to giving orders to the White House." [my emphasis]

And as we know–from Barton Gellman’s Angler among other sources–most of this stuff is safely in Cheney’s man-sized safe in the White House. And as we saw with Glenn Fine’s investigation into the US Attorney firings, the White House can blow off the Inspectors General with glee. 

Golly. Who would have imagined that an IG report on warrantless wiretapping wouldn’t accomplish what it was promised to accomplish???

The Illegal Wiretappers in John McCain’s Backyard

The WaPo reports on yet another example of how John McCain has abused his position on the Commerce Committee and his stable full of telecom lobbyists to make sure he got cell phone coverage in the desert.

Early in 2007, just as her husband launched his presidential bid, Cindy McCain decided to resolve an old problem — the lack of cellular telephone coverage on her remote 15-acre ranch near Sedona, nestled deep in a tree-lined canyon called Hidden Valley.

By the time Sen. John McCain’s presidential bid was in full swing this summer, the ranch had wireless coverage from the two cellular companies most often used by campaign staff — Verizon Wireless and AT&T.

Verizon delivered a portable tower know as a "cell site on wheels" — free of charge — to Cindy McCain’s property in June in response to an online request from Cindy McCain’s staff early last year. Such devices are usually reserved for restoring service when cell coverage is knocked out during emergencies, such as hurricanes.

In July, AT&T followed suit, wheeling in a portable tower for free to match Verizon’s offer. "This is an unusual situation," said AT&T spokeswoman Claudia B. Jones. "You can’t have a presidential nominee in an area where there is not cell coverage."

Over the course of the past year, Cindy McCain had offered land for a permanent cell tower and Verizon embarked on an expensive process to meet her needs, hiring contractors and seeking county land-use permits even though few people other than the McCains would benefit from the tower.

Ethics lawyers said Cindy McCain’s dealings with the wireless companies stand out because Sen. John McCain is a senior member of the Senate Commerce Committee, which oversees the Federal Communications Commission and the telecommunications industry. He has been a leading advocate for industry-backed legislation, fighting regulations and taxes on telecommunications services.

Now, I wouldn’t be surprised if McCain’s people were evenly split between AT&T and Verizon. I’m not surprised that the McCains were looking for coverage on these two networks.

But at the same time, I can’t help but remember that AT&T and Verizon are the two companies who–according to reports–collaborated most enthusiastically on Cheney’s illegal warrantless wiretap program. Sure, Jello Jay and even Barack Obama have given those telecom companies immunity. Still, I can imagine there are reasons–aside from just wanting to schmooze up a Senator on the Commerce Committee–to stay on the good side Read more

Rationalizing the Hospital Visit

As promised, I wanted to say a few more things about Murray Waas’ articles from yesterday. Murray reports two new details that weren’t in the IG report on Gonzales’ notes or in Barton Gellman’s reporting on the events of March 10, 2004. His first story adds to Gellman’s earlier report that George Bush was the one who called John Ashcroft’s hospital room to alert Mrs. Ashcroft that Gonzales and Andy Card were coming; Murray notes that Gonzales "recently" told federal investigators that Bush was the one who sent him to the hospital. Murray’s second story reveals that DOJ investigators are trying to determine whether, on Bush’s orders, Gonzales created a false record of the March 10, 2004 briefing of the Gang of Eight to justify Bush’s reauthorization of the warrantless wiretap program after Comey and Ashcroft refused to reauthorize it.

The Justice Department is investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program, according to sources close to the investigation.

[snip]

In reauthorizing the surveillance program over the objections of his own Justice Department, President Bush later claimed to have relied on notes made by Gonzales about a meeting that had taken place the day before (March 10), in which Gonzales and Vice President Cheney had met with eight congressional leaders—also known as the “Gang of Eight”—who receive briefings about covert intelligence programs. According to Gonzales’s notes, the congressional leaders had said in the meeting that they wanted the surveillance program to continue despite the attorney general’s refusal to certify that it was legal.

But four of the congressional leaders present at the meeting say that’s not true; they never encouraged the White House to sidestep the objections of the attorney general and continue the program without his approval.

I have no doubt that Gonzales fictionalized his notes so as to invent a rationale for reauthorizing the program in spite of Comey’s disapproval. But I think something else is going on, as well–a desire to invent a rationale for Gonzales and Card’s March 10 hospital visit itself. Read more

The March 10, 2004 Hospital Confrontation, A Timeline

I’ve had this timeline mostly done sitting in my drafts. Given Murray Waas’ two latest articles, I thought I’d put it out.

One reason I’m posting this today: if Gonzales’ claim that he probably wrote his notes during the weekend immediately after the Hospital confrontation is correct, it suggests he didn’t take his notes until after Bush learned Comey and Mueller might resign. Also, he wrote his notes of the Gang of Eight meeting after Mueller had already first saved his notes on the confrontation.

This timeline is a combination of this timeline of Robert Mueller’s notes (which is, IMVHO, one of my better timelines, so click through and read it for more analysis), this timeline of the OLC opinions pertaining to the program from the time period, details from Comey’s testimony before SJC, as well as other known events. I will add details from Barton Gellman’s book in the next week.

October 3, 2003: Jack Goldsmith confirmed as head of OLC.

Mid-November 2003: Goldsmith writes draft memo for Ashcroft: Review of Legality of the [NSA] Program

December 11, 2003: Comey confirmed Deputy AG.

Monday, March 1, 2004: Mueller meets with Comey in his office.

Thursday, March 3 or 4: Comey and Ashcroft decide not to reauthorize the warrantless wiretap program.

Thursday, March 4: Ashcroft hospitalized with pancreatitis. Comey becomes Acting AG.

Tuesday, March 9

10:00AM: Mueller meets with top FBI officials–several with counter-terrorism focus, Fedarcyk, Pistole, Caproni (and perhaps Wainstein and Gebhardt).

12:00PM: Meeting at Card’s office, VP, CIA Deputy Director John McLaughlin, NSA Director Michael Hayden, Robert Mueller, Alberto Gonzales and others present. (Note, Mueller does not record that Comey was at this meeting.)

4:00PM: Meeting at Card’s office with Mueller, Comey, attorneys from OLC, VP, Card, Gonzales, Hayden and others. (Note, this meeting is basically an extension of the earlier meeting, this time with the lawyers from DOJ present.)

Time unknown: Comey refuses to reauthorize the program.

Wednesday, March 10

Time unknown: Briefing for the Gang of Eight (Denny Hastert, Bill Frist, Porter Goss, Pat Roberts, Nancy Pelosi, Tom Daschle, Jane Harman, and Jello Jay). According to Gonzales, at the briefing "the lawmakers rejected emergency legislation but recommended that the program should continue despite the Justice Department’s opposition." Jello Jay disputes Gonzales’ account; it is unclear how he and Jane Harman responded.. Nancy Pelosi opposed the continuation of the program.

7:15PM? (Comey says around 8:00, but before the call to Mueller at 7:20): Ashcroft Chief of Staff David Ayres calls Comey as he is on his way home. He says Mrs. Ashcroft has received a call–possibly from the President–and "as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft."

Read more

Rick Davis and AT&T Shacking Up

Boy, I thought it’d be hard to imagine an administration cozier with AT&T than George Bush’s–particularly since Bush replaced both Karl Rove and Dan Bartlett with AT&T lobbyist Ed Gillespie. But apparently, Rick Davis’ lobbying firm has been shacking up with AT&T:

So just how close are the ties between the McCain camp and AT&T? Well, AT&T shares a luxury skybox with Davis, Manafort Inc. at Nationals Stadium, which opened earlier this year and is home to the city’s baseball team. I say it “appears” because two sources, including one person who has been in the skybox, told me about the AT&T/Davis, Manafort luxury suite, but none of the relevant parties will comment on the matter. AT&T’s Washington lobbying office has not returned phone calls about the suite, nor has Davis, Manafort. Repeated attempts to seek comment from the McCain campaign have also been unsuccessful. Chartese Burnett, a spokeswoman for the Nationals, said the team does not disclose the holders of the luxury suites because of “privacy concerns.” But she did tell me that there are 66 suites at the stadium, which rent for between $160,000 and $400,000 per year.

There’d be nothing illegal about a shared arrangement. It would simply reflect the seamless web that exists between McCain and the lobbyists and special interests groups that he likes to criticize while out on the trail campaigning as a “maverick” and “change agent.” I just hope they get better iPhone service than I do.

 Now, for the record, Rick Davis thinks it’s "chasing ghosts" to go after the McCain team’s intimacy with big lobbyists.

WALLACE: Well, as a matter of personal privilege, I’m going to give you the opportunity to respond to David Axelrod, who said, you know, for all this talk about wait till we come in and shake the lobbyists, but the campaign team of McCain is filled with lobbyists or, in your case, former lobbyists. How do you respond?

DAVIS: Oh, I think that, you know, it’s just more of the same from David Axelrod. I mean, they’ve been running against ghosts of the past all along. And I think it just shows that they don’t really have anything to talk about.

If they want to run against Rick Davis or our campaign staff, let them. I think it’s hilarious. I think it’s a wonderful distraction from the real issues that we’re trying to debate.

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