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

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

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

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

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

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

[snip]

In addition, however, the April 10 letter does not respond to several of our requests. Our letter did not, as you characterize it, generally inquire “why FISA’s emergency provisions were not an adequate substitute for the authorities the Government has obtained under the Protect America Act.” Rather, our inquiry concerned the specific phone call about which you spoke. We asked whether the then-existing emergency provisions would have allowed interception of the specific call at issue, if indeed the foreign portion of the call was a known terrorist location. To the extent that your response set forth an argument for the PAA or the Administration’s preferred version of FISA reform, it was non-responsive to our request for information. Based on the clarifications in the April 10 letter, we understand that the answer to our actual question was that, in fact, then-existing FISA provisions would have allowed the interception and dissemination of the phone call, but that it was NSA’s then-existing narrow interpretation of Executive Order 12333 that was the problem. Please explain promptly if that is not the case.

The Conyers response, then, effectively demands that DOJ specifically answer the question: is it not true that Mukasey misrepresented the facts about this incident to make a case for FISA that does not hold up?

What I particularly like about the letter, aside from the fact that it demands DOJ admit that Mukasey was spinning wildly, is the way it then uses Mukasey’s spinning to implicate negotiations on FISA.

Finally, our letter did not, as the April 10 letter suggests, “question the very premise for the joint congressional and executive branch effort over the past year to modernize FISA.” To the contrary, we have been deeply involved in that effort, conducting numerous hearings and passing two separate bills in the past six months.

[snip]

The Administration’s refusal to engage in meaningful discussions with House Democrats on FISA reform has become untenable. The time has come for meaningful negotiations on this important subject. We remain willing and able to have such discussions, and we urge that you and others in the Administration agree to do so promptly.

It’s a subtle move, I guess. But as we get more reports that the Republicans are giving up the FISA fight, we’ll be in a position to actually negotiate a real bill. Having gotten both DOJ and DNI to acknowledge that the fear-mongering they used to justify the more expansive FISA in the Senate would put Democrats in a stronger position to negotiate, because it’ll pressure Mukasey and McConnell to actually limit their calls to the information they need, rather than the information that David Addington’s over-heated authoritarian imagination dreamed up a need for.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 9, 2002, from DAAG OLC to Ashcroft: OLC 115 is a two-page memorandum for the Attorney General from a Deputy Assistant Attorney General, OLC, dated January 9, 2002, which relates to the Attorney General’s review of the legality of the President’s order authorizing the TSP in the course of considering that program’s reauthorization, which was done approximately every 45 days

February 8, 2002, from DAAG OLC to General Counsel of another agency: OLC 62, which consists of two copies, one with highlighting and marginalia by an OLC attorney, of a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.

May 17, 2002: FISC revises DOJ’s proposed information sharing procedures.

October 11, 2002, from DAAG OLC to John Ashcroft: OLC 129, which consists of two copies, one with handwritten comments and marginalia, of a nine-page memorandum, dated October 11, 2002, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request for OLC’s views concerning the legality of certain communications intelligence activities.

February 25, 2003, from DAAG OLC to John Ashcroft: OLC 16, which consists of four copies, one with handwritten marginalia, of a 12-page memorandum, dated February 25, 2003, for the Attorney General from a Deputy Assistant Attorney General for OLC, prepared in response to a request from the Attorney General for legal advice concerning the potential use of certain information collected in the course of classified foreign intelligence activities.

March 13, 2003: Jay Bybee approved to Ninth Court. Addington and Gonzales try to appoint Yoo as his replacement, but Ashcroft refuses. Ed Whelan Acting AAG.

May 30, 2003, DAAG OLC to GC of another agency: ODAG 42 is a 19-page memorandum, dated May 30, 2003, from a Deputy Assistant Attorney General in OLC to the General Counsel of another Executive Branch agency.

June 2003: John Yoo leaves his position at OLC.

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

December 11, 2003: Comey appointed Deputy AG.

March 3 or 4, 2004: Ashcroft and Comey agree they cannot recertify the NSA domestic spying program.

March 4, 2004: Ashcroft hospitalized with pancreatitis.

March 10 2004: The hospital confrontation between Comey and Gonzales and Card.

March 11, 2004: Bush reauthorizes the NSA domestic spying program without DOJ’s certification of legality.

March 11, 2004, from Goldsmith to Gonzales: OIPR 140 is a one-page letter dated March 11, 2004, from the Assistant Attorney General for OLC, to the White House Counsel seeking clarification regarding advice that OLC had been requested to provide concerning classified foreign intelligence activities.

March 12, 2004, from Goldsmith to Comey: OIPR 139 is a one-page memorandum dated March 12, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which provides legal advice concerning certain decisions relating to classified foreign intelligence activities.

March 14, 2004: OLC 125 is an undated two-page document entitled "Presentation: Where DOJ is on [REDACTED CLASSIFIED CODENAME]." OLC 126 consists of two copies of a five-page document, dated March 14, 2004, which consists of bullet points related to OLC 125. OLC 125 and OLC 126 were prepared for purposes of providing legal assistance and advice to other Executive Branch officials concerning DOJ’s views about foreign intelligence activities

March 15, 2004, from Goldsmith to Comey: OLC 64 [the same as FBI 5] consists of four copies of a three-page memorandum dated March 15, 2004, for the Deputy Attorney General from the Assistant Attorney General for OLC, plus an electronic file, which outlines preliminary OLC views with respect to certain legal issues concerning classified foreign intelligence activities. The memorandum specifically notes that OLC’s views have "not yet reached final conclusions" and that OLC is "not yet prepared to issue a final opinion."

March 16, 2004, from Comey to Gonzales, cc’ed to Card: OLC 63 [the same as FBI 4] is a two-page memorandum (and related electronic file) dated March 16, 2004, from the Acting Attorney General to the Counsel to the President, copied to the President’s Chief of Staff, containing legal recommendations regarding classified foreign intelligence activities.

March 22, 2004. from Goldsmith to Comey: OLC 114 consists of two copies of a three-page memorandum dated March 22, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which confirms oral advice provided by OLC on a particular matter concerning classified foreign intelligence activities.

March 30, 2004, briefing from Comey to Ashcroft: OLC 65 is a five-page document (plus an electronic file), dated March 30, 2004, entitled "Briefing for AG." This outline for a briefing to be provided to the Attorney General by the Deputy Attorney General prepared by Department staff includes a summary of preliminary OLC conclusions concerning the TSP and other intelligence activities; a discussion of issues for decision concerning these intelligence activities; a description of advice provided by OLC to other Executive Branch agencies and components concerning these activities; and an identification of legal issues requiring further discussion.

May 6, 2004, from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities.

June 17, 2004: Jack Goldsmith announces his resignation.

July 16, 2004, from Jack Goldsmith for Ashcroft: OLC 85, which is a nine-page memorandum, with highlighting, dated July 16, 2004, from the Assistant Attorney General in OLC to the Attorney General, evaluating the implications of a recent Supreme Court decision for certain foreign intelligence activities.

Late July 2004?: Goldsmith leaves, Daniel Levin Acting AAG OLC.

August 9, 2004, to Comey: OLC 51 is a one-page memorandum, dated August 9, 2004, from the Acting Assistant Attorney General for OLC to the Deputy Attorney General entitled "Proposed Memorandum," which contains OLC’s advice concerning a decision to be made by the Deputy Attorney General regarding an intelligence collection activity.

Late October 2004: Top Administration officials convince NYT to spike the NSA domestic spying story.

November 17, 2004, memorandum "for the file": OLC 59, which consists of four copies Of an 18-page memorandum for the file, dated November 17, 2004, from the Acting Assistant Attorney General in OLC, plus an electronic file, prepared in response to a request for OLC views regarding the applicability of certain statutory requirements.

February 14, 2005: Gonzales sworn in.

June 23, 2005: Steven Bradbury nominated AAG OLC, becomes Acting AAG.

August 15, 2005: Comey’s Farewell Address.

December 16, 2005: Risen and Lichtblau’s first story on the NSA domestic spy program.

December 18, 2005: OLC 81 consists of 11 copies, some drafts and some with handwritten marginalia and notes, of four pages of briefing notes, dated December 18, 2005, which describe the TSP and other foreign intelligence activities and summarize various OLC legal opinions related to foreign intelligence collection activities. OLC 81 was created so that I could brief Department officials regarding foreign intelligence activities and OLC views following the publication of the article in The New York Times which divulged without authorization classified information concerning the TSP.

January 1, 2006, Lichtblau and Risen tell the story of the hospital visit.

January 6, 2006: OLC 82 consists of 20 copies, some drafts and some with handwritten edits and marginalia, plus eight related electronic files of a briefing outline, dated January 6, 2006, summarizing various topics related to foreign intelligence activities. OLC 82 was created as an outline for my use in the course of briefing members of the FISC.

February 17, 2006: WH refuses to allow Ashcroft, Comey, and Goldsmith to testify before SJC.

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

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

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

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

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

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

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

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

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

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

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

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

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

The NSA is part of the military .

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

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

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

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

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

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

All of those things are military operations. 

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

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

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

"TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

More credibly, there’s Eric Lichtblau’s reporting, which I’ve examined here.

Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”

Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.

At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.

The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.

The opinion itself remains classified and has not been made public. It was apparently written in late 2001 or early 2002, but it was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers.

In other words, Lichtblau says the program had the following authorization:

October 2001: No OLC review

Late 2001 to Early 2002: John Yoo opinion

[Likely March to April] 2004: Revised OLC opinion

Finally, when DOJ wrote a White Paper explaining its legal justification in January 2006, it relied almost exclusively on the President’s Article II power and on the Authorization to Use Military Force. Of note, the White Paper dismissed concerns about the Fourth Amendment by stating that this surveillance pertained to foreign intelligence (an argument that seems to be the precise opposite of the "domestic military operations" argument in the October 23, 2001 opinion), and that it was reasonable.

In United States v. United States District Court, 407 U.S. 297 (1972) (the “Keith” case), the Supreme Court concluded that the Fourth Amendment’s warrant requirement applies to investigations of wholly domestic threats to security—such as domestic political violence and other crimes. But the Court in the Keith case made clear that it was not addressing the President’s authority to conduct foreign intelligence surveillance without a warrant and that it was expressly reserving that question: “[T]he instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

[snip]

After Keith, each of the three courts of appeals that have squarely considered the question have concluded—expressly taking the Supreme Court’s decision into account—that the President has inherent authority to conduct warrantless surveillance in the foreign intelligence context.

[snip]

In sum, the NSA activities are consistent with the Fourth Amendment because the warrant requirement does not apply in these circumstances, which involve both “special needs” beyond the need for ordinary law enforcement and the inherent authority of the President to conduct warrantless electronic surveillance to obtain foreign intelligence to protect our Nation from foreign armed attack. The touchstone of the Fourth Amendment is reasonableness, and the NSA activities are certainly reasonable, particularly taking into account the nature of the threat the Nation faces.

Of course, that doesn’t rule out the possibility that DOJ has simply changed its rationale for the program; we know, for example, that it has alternately used and not used the AUMF as part of its justification, so it’s possible that its evolving justifications have dismissed the Fourth Amendment differently over time.

But there’s one more clue that the October 23, 2001 opinion is not among those the Administration currently claims to have used in justifying the illegal wiretap program over time. In his letter demanding the October 23, 2001 opinion, John Conyers–who has already seen the documents turned over as the basis for the illegal wiretap program–said:

On two prior occasions – in letters of February 12 and February 20, 2008, – Chairman Conyers requested that the Administration publicly release the October 23, 2001, memorandum. The memorandum has not been received despite these specific requests.

Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States.

This is curious. Conyers made the two prior requests in February of this year–right around a Mukasey visit to HJC. That leaves open the possibility that this does pertain in some way to the illegal wiretap program. Except that by the time he wrote this yesterday, Conyers was supposed to have seen all the documents justifying the program. Except for Lichtblau’s reporting, I would think those documents would be among those Conyers refers to when he mentions "the contents of similar memoranda issued at roughly the same time."

Update:

Here are the OLC opinions Bradbury describes in his declaration:

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

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

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

February 8, 2002, to General Counsel of "another agency": OLC 62, which consists of two copies, one with highlighting and marginalia by an OLC attorney, of a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.

October 11, 2002, to John Ashcroft: OLC 129, which consists of two copies, one with handwritten comments and marginalia, of a nine-page memorandum, dated October 11, 2002, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request for OLC’s views concerning the legality of certain communications intelligence activities.

February 25, 2003, for John Ashcroft: OLC 16, which consists of four copies, one with handwritten marginalia, of a 12-page memorandum, dated February 25, 2003, for the Attorney General from a Deputy Assistant Attorney General for OLC, prepared in response to a request from the Attorney General for legal advice concerning the potential use of certain information collected in the course of classified foreign intelligence activities.

May 6, 2004, from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities.

July 16, 2004, from Jack Goldsmith for the Attorney General: OLC 85, which is a nine-page memorandum, with highlighting, dated July 16, 2004, from the Assistant Attorney General in OLC to the Attorney General, evaluating the implications of a recent Supreme Court decision for certain foreign intelligence activities.

November 17, 2004, memorandum "for the file": OLC 59, which consists of four copies Of an 18-page memorandum for the file, dated November 17, 2004, from the Acting Assistant Attorney General in OLC, plus an electronic file, prepared in response to a request for OLC views regarding the applicability of certain statutory requirements.

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

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

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

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

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

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

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

[There were also gaps between NSA’s coverage of foreign communications and the FBI’s coverage of domestic communications that suggest a lack of sufficient attention to the domestic threat. Prior to September 11, neither agency focused on the importance of identifying and then ensuring coverage of communications between the United States and suspected terrorist-associated facilities abroad [half line redaction]. Consistent with its focus on communications abroad, NSA adopted a policy that avoided intercepting the communications between individuals in the United States and foreign countries].

NSA adopted this policy even though the collection of such communications is within its mission and it would have been possible for NSA to obtain FISA Court authorization for such collection. NSA Director Hayden testified to the Joint Inquiry that NSA did not want to be perceived as targeting individuals in the United States and believed that the FBI was instead responsible for conducting such surveillance. NSA did not, however, develop a plan with the FBI to collect and to ensure the dissemination of any relevant foreign intelligence to appropriate domestic agencies. This further evidences the slow response of the Intelligence Community to the developing transnational threat.

[The Joint Inquiry has learned that one of the future hijackers communicated with a known terrorist facility in the Middle East while he was living in the United States. The Intelligence Community did not identify the domestic origin of those communications prior to September 11, 2001 so that additional FBI investigative efforts could be coordinated. Despite this country’s substantial advantages, there was insufficient focus on what many would have thought was among the most critically important kinds of terrorist-related communications, at least in terms of protecting the Homeland]. [my emphasis]

In other words, the Joint Inquiry, working with whatever information they had about this intercept, believed that the NSA simply chose not to pursue this intercept, not that it didn’t have the legal authority to do so. Which, if it’s true, is a pretty shoddy excuse, given that we know John Bolton was able to get plenty of information on US persons from the NSA. I guess whatever purpose Bolton had for getting those names was more important than counter-terrorism.

So if the Joint Inquiry had a complete understanding of this intercept, then it’s clear that Mukasey is (as Bush officials have done at least twice in the past) conflated intercepts that could or were legally collected under FISA with those that would have been prevented by FISA.

But I’m not sure whether the Joint Inquiry had a full understanding of this intercept. First of all, I can’t find any more detailed description of what this call was–even in the Mihdhar discussions, which Zelikow raised as the closest thing to what Mukasey described (and the 9/11 report describes the communication of Nawaf al-Hazmi, who had been in San Diego with Mihdahr, at length). The closest thing is this description:

In addition, the FBI acquired toll records that five or six hijackers communicated extensively abroad after they arrived in the United States. The Intelligence Community had no information prior to September 11, 2001 regarding these communications, and, as a result, does not know what clues they may have contained].

If this is a reference to the call, it means that as of December 2002, when the Joint Inquiry finished its report, the Intelligence Community had not yet (if it has, ever) analyzed the content of these calls. It suggests that these calls–as opposed to what Mukasey appears to be talking about–came from phone bills, as opposed to intercepts. And if it got those phone bills, presumably the were US based phone bills, meaning once they got those bills, the IC knew precisely where the phone call went.

That doesn’t rule out that these communications included the call Mukasey was talking about. The context of the the passage in the letter to Reid–in which Mukasey used it to object to Feingold’s "significant purpose" amendment designed to prevent reverse targeting–suggests the problem with the intercept was more than just a content-based analysis, since it wouldn’t make sense to object to Feingold’s amendment if you weren’t trying to get other data about contacts in the US with suspect targets overseas, otherwise you could simply pass the amendment.

So it’s possible that Mukasey’s complaint refers more specifically to pen data than to content of the calls. It’s possible he’s really arguing that if the FBI had just been able to match the US-based call data with the phone number for the known Afghan safe house, it would have served as a red flag for investigators, regardless of the content of the call.

Though there’s one more reason to believe the Joint Inquiry may not have gotten all the details regarding this call. In the section listing complaints about cooperation, the report lists the difficulties the Inquiry had with getting data from NSA.

CIA and NSA Documents: CIA took the position that so-called “operational cables” from the field and certain other documents it deemed to be sensitive could be subject to Joint Inquiry review at CIA Headquarters, but that no copies could be brought to the
Joint Inquiry’s office. NSA adopted a similar position concerning its transcripts and disseminated intelligence reports and, ultimately, almost all other materials. This prevented the incorporation of the original documents in the Inquiry’s central records where they could be drawn upon effectively for research and reference purposes. Both agencies did, however, allow verbatim notes to be made and removed to Inquiry offices. This consumed many hours and slowed the Inquiry’s progress. Both agencies then agreed to allow copies to be removed from their premises if the Joint Inquiry agreed to allow them to be stored by the agencies at the end of the Inquiry, and even provided a draft of an agreement that would recognize this. When the Inquiry later agreed in principle and responded with a revised draft, however, the agencies decided that such an agreement was no longer desirable and returned to their original positions. [my emphasis]

The Joint Inquiry got almost all materials from NSA, but not all. Now, just before this section, the report complains about reluctance to turn over operational details. That reluctance might relate to the fact that, in 2002, NSA was engaged in spying activities that only four people on the two committees knew anything about, and none of the staffers. (Which is likely a problem with all the extensive NSA discussions in the Joint Inquiry report–while the NSA was briefing the Joint Inquiry about its capabilities, it was keeping a significant change in its capabilities secret.)

In any case, it’s ultimately not clear whether the Joint Inquiry–and therefore both intelligence committees in Congress–learned any significant detail about the call Mukasey describes, at least not before 2002. If they did, though, they clearly have a dramatically different understanding of why NSA didn’t fully access that call than Mukasey currently does. And if the Joint Inquiry was told all the details about that call, then Mukasey is, once again, claiming FISA prevented NSA from doing something that it in fact did not prevent.

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

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

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

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

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

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

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

If Harman’s description is accurate, it suggests the Administration gave a very distorted view of the program. Yes, they were accessing Al Qaeda communication via US access points. But to do so, they gained access to all of US telecom traffic. And, yes, they were accessing Al Qaeda communications. But the means by which they determined that these were Al Qaeda communications–and not just a bunch of people ordering falafels from the same place–was grossly inadequate.

Similarly, yes, the senior-most official at DOJ (John Ashcroft) signed off on the program every 45-60 days. And Robert Mueller was telling people that Bush–not Ashcroft–had signed off on the program. But the only real review of the program by that point had been a typically shoddy John Yoo rubber stamp. Ashcroft hadn’t even been able to share details of the program with his aides to obtain their legal opinion with which to conduct a meaningful legal review. As Lichtblau reports,

Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”

And the Administration wouldn’t even read Larry Thompson, then Deputy Attorney General, into the program. So the claim that senior-most officials (plural) had reviewed the program was an out-and-out lie.

One more note about this initial briefing (and all others up until the March 10, 2004 briefing). Harman claims the "Gang of Eight" was informed. At least according to the record provided by then-DNI John Negroponte, this is incorrect. Nancy Pelosi, while still Ranking Member of HPSCI, got briefed on the program. But the Administration did not brief the full Gang of Eight. And besides, as Mary points out, the Administration should have been briefing the full intelligence committees, not just the Gang of Eight.

So even though the Administration was deliberately misleading the Intelligence Committee leadership, there were still warning signs that the Administration was not complying with the law (though they pretty consistently briefed only Intelligence Committee leadership on their law-breaking).

The Second Harman/Jello Jay Briefing: July 17, 2003

We don’t, yet, have Jello Jay’s account of that first briefing, but we do know what he thought after receiving the second one he and Harman received, on July 17, 2003. The timing of that second briefing was rather important. As I’ve shown, the Senate was in the middle of a successful effort (save for Bush’s signing statement) to strip all funding from data mining programs targeting American citizens; the day after the briefing, the Senate voted unanimously to block TIA funding. So in addition to being troubled by some of the same things Harman expressed difficulty with–particularly the inability to consult with any aides on the program–Jello Jay noted that the program seemed to violate the intent of the law the Senate was in the process of passing. Here’s the letter Jello Jay wrote, after this second briefing, to memorialize his concerns.

July 17, 2003
Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

Without more information and the ability to draw on any independent legal or techical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication. [my emphasis]

While the wording is a little–shall we say–wobbly, the intent is still clear. Jello Jay was withholding his approval of the program, not just because he could not, fairly, approve it, but because it seemed disturbingly similar to the data mining program that Congress was in the process of making illegal.

Now, Harman records none of these concerns in her account–not even the concern, or the awareness, that the Administration was engaging in data mining. Which leads me to add one thing to the sound list of suggestions Marty Lederman offered to make Congressional intelligence oversight more meaningful–given the severe restrictions on information sharing the Administration imposed, don’t you think leaders of the Committees could at least talk to each other?!?!?! Jello Jay had some pretty clear concerns about the program at the time–concerns that rise to the level of defying the will of Congress. But Harman appears to have had (or at least claims to have had) none of that awareness.

The Third Harman/Jello Jay Briefing: March 10, 2004

As I’ve described before, the Administration then skipped a briefing that should have occurred given its regular pattern of brieing–even according to its own limited briefing approach, it should have briefed the Congressional leaders in January 2004, after the Administration had ignored Congress’ demands not to continue data mining. Instead, the next briefing did not occur until March 10, 2004, on the day of the famous hospital confrontation. The was the first time full Gang of Eight received a briefing, and they got one specifically because the Administration wanted legislative approval to continue the wiretap program in the absence of approval from John Ashcroft or Jim Comey; barring legislative approval, they wanted permission to go forward without it.

Mr. Gonzales, in an acrimonious hearing before the Senate Judiciary Committee, said that hours before the hospital confrontation, the White House had summoned Congressional leaders to an emergency meeting to discuss ways to head off a revolt at the Justice Department against the security agency program.

Mr. Gonzales said that he and Andrew H. Card Jr., then White House chief of staff, had tried to obtain Mr. Ashcroft’s approval as a last resort, after the lawmakers rejected emergency legislation but recommended that the program should continue despite the Justice Department’s opposition.

Now, the record on how Harman and Jello Jay responded to these requests is not entirely clear. Jello Jay accused Gonzales of lying about what happened in the meeting.

Senator John D. Rockefeller IV, who attended the 2004 meeting as the top Democrat on the Senate Intelligence Committee, called Mr. Gonzales’s account “untruthful.” Mr. Rockefeller said he believed Mr. Gonzales was deliberately misleading Congress about the showdown over the N.S.A. program inside the Bush administration.

And Pelosi made it clear that she did not support the program going forward over Comey’s objections.

Speaker Nancy Pelosi of California, who attended the 2004 White House meeting as House Democratic minority leader, said through a spokesman that she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting, said the spokesman, Brendan Daly.

If Pelosi agrees "a majority" of the eight people who attended the briefing approved its going forward, and Jello Jay claims he made his objections clear, it suggests that Harman approved of continuing the program, even though, by all appearances, she had learned of Comey’s objections. Now, I don’t know that for a fact–and unlike her colleagues, Harman has neither confirmed nor denied whether she approved that the program go ahead. But I am puzzled by her insistence that no one in the Gang of Eight was informed that the Administration was bypassing FISA.

The Gang of Eight was not told – nor did it occur to me – that the Administration was violating FISA, despite Congress’ clear legislative intent when FISA was passed that it was the “exclusive means” for monitoring the communications of Americans connected to foreign intelligence.

If, as Pelosi suggests, the March 10 briefing included some reference to Comey’s objections, wouldn’t you at least begin to wonder about whether the Administration was breaking the law?

The Fourth and Fifth Harman/Jello Jay Briefings: February 3, 2005 and September 14, 2005

There is no record of either of the fourth or fifth briefings Harman and Jello Jay attended, both of them in 2005. Though once again, I wonder whether they noticed that there was a break in the normal briefing pattern–there should have been a briefing in September or October 2004. This, of course, is right during the time when the Administration likely first learned that Risen and Lichtblau might write a story on the illegal wiretap program.

The Sixth Harman/Jello Jay Briefings: January 11 and January 20, 2006

Up until the program became public in December 2005, it appears that Jello Jay took a more active oversight role than Harman, objecting in writing on at least one occasion, and recognizing that the program probably violated the intent of Congress.

But all that appears to have changed after Risen and Lichtblau published their story on December 16, 2005. As Harman describes, she immediately started calling for more oversight–only to be stymied by Dick Cheney.

The New York Times story ran on December 16, 2005. The next day, President Bush publicly confirmed the program’s existence in his weekend radio address. That day, a Saturday, I did two things: I tried to get our full Committee briefed and I consulted experts on the law.

I tracked down NSA Director Michael Hayden, who was shopping for holiday presents in Annapolis, and asked him to brief the full Intelligence Committee later that day. He said yes, provided the White House signed off. Bush Chief of Staff Andy Card at first agreed, but called me back an hour later saying the briefing was off. (It was months before the White House briefed additional Members of the Intelligence Committees. I even spoke with Vice-President Cheney about the need for a full Committee briefing, but he turned me down flat. Finally, on the eve of Gen. Hayden’s confirmation hearing to be Deputy Director of National Intelligence, the Administration agreed to brief all committee Members.)

Additionally, as the President had disclosed the program, I was finally free to consult constitutional experts on the legal issues it raised. My call to a former CIA general counsel that Saturday provided the first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of “inherent” executive power. To this day, I have not been shown the memoranda produced by the Office of Legal Counsel to support the basis for the program! [my emphasis; incidentally, I wonder if that "former CIA general counsel" was Scott Muller, who would have known of the program, and who also opposed destroying the torture tapes]

Jello Jay has given no public account of his response to the revelation of the program. But where he once opposed the program as potentially violating Congressional intent, he has become a champion of the Administration’s cause, going so far recently as to publicly boast of "victory" in the Senate.

"I think we will prevail," Rockefeller said on Wednesday, adding that he hoped the Senate will finish the bill by next week. The FISA legislation expires in February, and both President Bush and GOP congressional leaders have demanded that new legislation be in place by that time.

"It’s a pretty bad idea to appear cocky," Rockefeller noted. "I am not pessimistic."

Which makes me all the more curious about the two briefings the Administration gave in January 2006, after the program (and the real urgency of the hospital confrontation) became public. The Administration held two sets of briefings after the program became public. One, including the Republican members of the Gang of Eight (then Denny Hastert, Bill Frist, Crazy Pete Hoekstra, and Pat Roberts) plus Jello Jay on January 11, 2006. And one, with the remaining three members of the Gang of Eight (then Pelosi, Reid, and Harman), along with Roberts again. Why have Roberts attend both briefings if the content of the two was the same? Is it possible that the Administration held two different briefings, one with those it found reliable (the Republicans and Jello Jay) and one with those it found unreliable (the Democrats, babysat by Pat Roberts)? Did Dick Cheney, miffed that the up to then reliably-complacent Harman was demanding committee-wide briefings, insist that she get the same briefing as those who had already objected to the program? Did the Administration continue to keep secrets from the Democrats who opposed the program?

Obviously, I don’t know, though Harman’s account of her 180 degree turn, once she realized the program was illegal, certainly raises interesting questions about those two briefings.

And curiously, at least through May 2006 (Harman would continue as Ranking Member of HPSCI for another seven months after Negroponte’s briefing list ends), Jane Harman and Jello Jay never received a briefing on the illegal wiretap program together again.

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

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

[snip]

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

[snip]

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

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

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

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

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

The LAT has an article on the acrimony between Mike McConnell and Democrats over FISA. In it, McConnell’s backers insist in his good faith in his negotiations with Democrats.

A spokesman for McConnell said that the director’s dealings with Congress were "always in good faith."

"He values the relationship with Congress," said the spokesman, Michael Birmingham. "He works at it, and he invites and welcomes the oversight they provide."

[snip]

"I think the fact that it was open and argumentative at times was very positive," said Rep. C.A. Dutch Ruppersberger (D-Md.). "I think he improved his relations [with the committee] just by communicating."

[snip]

"I feel he’s an honorable person," Ruppersberger said. "Some of my peers feel he’s compromised. I would say that on the majority side, we were not happy with some of the positions he took."

But the article also lists the many attacks McConnell has made against Democrats. Apparently, in a secret meeting leading up to the House vote, Democrats aired those complaints. And McConnell responded by attacking HPSCI members for being insufficient cheerleaders for the Intelligence Community (I really do hope he attacked both parties equally, since Crazy Pete Hoekstra is one of the loudest critics of the Intelligence Community).

Democrats accused McConnell of making exaggerated claims and of doing the bidding of the Bush administration, according to officials who attended the event. McConnell bristled at the Democrats’ charges, and chastised members of the committee for failing to defend the intelligence community amid a barrage of bad press. [my emphasis]

Incidentally, can someone point out where in the Constitution it requires Congress to defend Executive Branch incompetence in the press? That McConnell would even make such a complaint reveals his rather stunted understanding of the role of Congress.

Given McConnell’s apparent attempt to make nice with Congress, though, I’m utterly mystified by the comments he made in a speech at his alma mater, Furman University in South Carolina, last Friday, about the negotiations with the Senate.

We had a bill go into the Senate. It was debated vigorously. There were some who said we shouldn’t have an Intelligence Community. Some have that point of view. Some say the President of the United States violated the process, spied on Americans, should be impeached and should go to jail. I mean, this is democracy, you can say anything you want to say. That was the argument made.

First of all, did McConnell really miss that even the biggest hippie in the Senate–Chris Dodd and Russ Feingold–started every floor speech by supporting not only the IC, but the importance of spying on terrorists? Who, who, Mike McConnell, "has that point of view" that doesn’t want an IC?

More importantly, until McConnell gets the fact that when Presidents break laws, they usually (unless Congress abdicates its responsibilities) should be held accountable for breaking those laws (McConnell used the Constitution as a prop throughout his speech, but apparently missed the whole point about rule of law). The President didn’t just violate the process–he violated the law, all under a veil of secrecy in which not even his top DOJ officials approving the program knew what he was doing. Until McConnell realizes the gravity of that, he’s simply not going to understand the Democrats’ position.

To be fair, elsewhere in the speech, McConnell gave a remarkably candid of the threats facing the US, noting that the fight for energy is our biggest challenge, and noting that Tim McVeigh is a dangerous terrorist every bit as much as Osama bin Laden.

let me just talk about threats. One of the – and you maybe haven’t thought about it this way – one of the biggest challenges that we have as a nation is access to energy. You think about that. Now, we’re all sitting here enjoying the comforts of this campus and room and there is an air conditioner and there is an elevator. And we all have credit cards and we all buy gas. All that runs off energy. Well, you think about where does energy come from? Predominantly, it comes from areas that are pretty unstable.

So until we invent an alternative to fossil fuel – and we will some day – we’re going to figure out hydrogen someday, but the estimates are 30 to 50 years – so I would say in the interim, in the meantime, a more stable Middle East, access to energy are one of the things that’s going to be most important to us as a nation – and not only us in the United States, but the people of the markets we engage with: Europe and China and India. And it’s one global economy. If one thing I can leave you with is a thought is that when I grew up, we had great saltwater moats and friendly neighbors north and south. Today, it’s one globe and I can have somebody get sick in Hong Kong and have an epidemic breakout in New York City 10, 12 hours later. So it’s the global – it’s the connectedness of the world.

Now, terrorism is a terrible thing. There are radical elements in every society, every society. We have our own Timothy McVeigh. We’ve had, you know, those kinds of issues. With a global network, what al Qaeda’s been able to do is to connect the radical elements and maintain a dialogue and to show what they do and to talk about what they do and train.

Still. It’s one thing to be able to admit the amazingly banal truth that our security efforts largely pivot on oil, and yet another to make a good faith effort to work with Congress in our security efforts.

And it seems that Mike McConnell simply doesn’t have it in him to deal with people who want both security and the rule of law.

I do hope that Eric Lichtblau’s book gets enough coverage this week to further stall Jello Jay’s attempts to ram through telecom immunity. The excerpt in the NYT today reveals that when the illegal wiretap program started in 2001, it had no specific legal authorization–not even from the compliant John Yoo!

Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”

Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.

At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.

The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.

The opinion itself remains classified and has not been made public. It was apparently written in late 2001 or early 2002, but it was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers.

So they started the program–purportedly–in October 2001. They bullied John Ashcroft into "approving" the program. But it took them several months before they went to John "organ failure" Yoo to get him to craft an opinion justifying the program. And that opinion–perhaps typically, for John Yoo–was "shoddy" enough that Comey and Goldsmith and Philbin had to rewrite it in 2004–after staging their hospital confrontation.

This passage also reveals how precarious Ashcroft’s position was, having approved the original program with no legal backing, and then learning in 2004 that he had had no business doing so. It makes his support of Comey and Goldsmith in the hospital confrontation much more akin to stories of how Comey convinced Ashcroft to recuse himself in the CIA Leak investigation–because it badly tainted his own authority–rather than a heroic stand from his ICU ward. Lucky for Ashcroft, then, that he’s getting rich at the DOJ teat. No wonder Ashcroft complained at that point that his staffers hadn’t had the authority to review the program. That was his defense for approving the program. Ignorance.

Which is, of course, what we still have operating–ignorance. And on that basis–on the same faulty basis Ashcroft used–Jello Jay and his Republican allies want to sign away our right to know.

The Bush Administration and their never say die FISA/Immunity push are like cockroaches. You can’t kill em, and they never go away. Well, they’re back again. Attorney General Michael Mukasey has graduated from DC water carrier to full fledged traveling snake oil salesman for the Cheney/Bush Administration and their sordid attempts to cover their own criminal wrongdoing via retroactive immunity for telcos.

Last night, Mukasey spoke at the Commonwealth Club in San Francisco and got so emotional in his desperate plea for retroactive immunity and unlimited snooping that he he welled up with tears in the process.

… Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. … We’ve got three thousand people who went to work that day and didn’t come home to show for that," he said, struggling to maintain his composure.

Isn’t that special? Who from this Administration of criminals, fools and incompetents will cry for the Constitution that has been shredded? Who will lament the privacy of ordinary American citizens that has been lost? Who will shed a tear for the souls that have been tortured, beaten, extinguished and/or disappeared? That would be left to us I guess. There is no justice; just us.

Here, from the San Francisco Chronicle, are a few more highlights from Mukasey’s traveling minstrel show:

Attorney General Michael Mukasey defended the Bush administration’s wiretapping program Thursday to a San Francisco audience and suggested the Sept. 11 terrorist attacks could have been prevented if the government had been able to monitor an overseas phone call to the United States.
The government "shouldn’t need a warrant when somebody picks up a phone in Iraq and calls the United States," Mukasey said in a question-and-answer session after a speech to the Commonwealth Club
…
Mukasey also defended President Bush’s insistence on retroactive immunity for telecommunications companies that have cooperated with the administration’s surveillance program, in which phone calls and e-mails between U.S. citizens and foreign terrorist suspects were intercepted without warrants.
…
"They have cooperated," Mukasey said of the companies, without naming them. "It just ain’t fair to ask somebody to cooperate with the government" and face a lawsuit for substantial damages, he said.
If Congress denies the companies retroactive immunity, he said, the firms will withdraw their voluntary participation and the government will have to seek court orders, losing time and potentially valuable intelligence and risking exposure of secret information.
"We face the prospect of disclosure in open court of what they (the companies) did, which is to say the means and methods with which we collect foreign intelligence against foreign targets," Mukasey said.

Madness! Madness! Madness! Crikey, it does not matter one iota how much this stuff is completely debunked, they just trot it out with impunity again and again.

The reason I am posting this, other than as general informational courtesy, is that EW is not the only one that has been on vacation; so too has been the Congress and, as to the FISA/Immunity fight, all of us. The Cheney/Bush surrogates have, undoubtedly, not been on vacation and have been plying their wishes and snake oil to the blue dogs and others to set up their next legislative push. When you see Mukasey working the room in San Francisco, the home of EFF, the AT&T Folsom Facility, Pelosi, DiFi and the conservative perceived heart of the liberal base, you know the game is on. We need to saddle up and get ready as well; because next week is time to get back to work on slaying the twin headed FISA/Immunity beast.

ERRATA: I really struggled with the video clip selection here. I must be growing up or something because I put up the one that actually showed Mukasey at the Commonwealth Club in Frisco. However, the last 3/4 of this video is what I really wanted to put up instead. Seeing, feeling, touching and listening to you; thats what the Bushies want to do.