A fairly significant article just posted at Slate by Eric Lichtblau on the jaded history of the publication, and withholding of publication for well over a year, of his and Jim Risen’s seminal story on the criminal warrantless wiretapping by the Bush Administration. Some of it we knew, some of it we guessed and some of it is first impression. As a whole however, it is stunning to digest.

For 13 long months, we’d held off on publicizing one of the Bush administration’s biggest secrets. Finally, one afternoon in December 2005, as my editors and I waited anxiously in an elegantly appointed sitting room at the White House, we were again about to let President Bush’s top aides plead their case: why our newspaper shouldn’t let the public know that the president had authorized the National Security Agency, in apparent contravention of federal wiretapping law, to eavesdrop on Americans without court warrants.
…
As the door to the conference room opened, however, a slew of other White House VIPs strolled out to greet us, with Secretary of State Condoleezza Rice near the head of the receiving line and White House Counsel Harriet Miers at the back.
…
The risk to national security was incalculable, the White House VIPs said, their voices stern, their faces drawn. "The enemy," one official warned, "is inside the gates." The clichés did their work; the message was unmistakable: If the New York Times went ahead and published this story, we would share the blame for the next terrorist attack.
…
That shared skepticism would prove essential in the Times’ decision to run the story about Bush’s NSA wiretapping program. On that December afternoon in the White House, the gathered officials attacked on several fronts. There was never any serious legal debate within the administration about the legality of the program, Bush’s advisers insisted. The Justice Department had always signed off on its legality, as required by the president. The few lawmakers who were briefed on the program never voiced any concerns. From the beginning, there were tight controls in place to guard against abuse. The program would be rendered so ineffective if disclosed that it would have to be shut down immediately.

All these assertions, as my partner Jim Risen and I would learn in our reporting, turned out to be largely untrue.

Go read the entire article, it and you deserve nothing less. There was one great little aside that is absolutely priceless. What do you think the Secret Service was doing in the days and weeks before 9/11? Heh heh, well this:

… extraordinary diplomatic maneuverings the U.S. Secret Service had arranged with their Mexican counterparts to allow Jenna Bush, then 19, to make a barhopping trip south of the border. (She had just been charged with underage drinking in Texas.)

So, clearly, George Bush and his government was focused on what was important, at least to a blue blood, self centered, slacker chump. Just not so much on the well being of the United States and the safety of it’s citizens from terrorism.

In news that may have repercussions for Bush’s attempt to hide all details of his warrantless wiretapping program, Joseph Nacchio just won a new trial (h/t scribe). Mind you, the reason his trial was overturned does not relate directly to his claim that the Administration retaliated against him because he refused to illegally wiretap Americans. Rather, the Appeals Court overturned his case because he was not allowed to make a case for his expert witness.

A federal appeals court ordered a new trial Monday for former Qwest CEO Joe Nacchio, saying the trial judge wrongly excluded expert testimony important to Nacchio’s defense in his insider trading case.

[snip]

Attorneys for Nacchio told the 10th U.S. Circuit Court of Appeals in December the case against him didn’t meet standards set by previous court rulings.

Nacchio’s attorney, Maureen Mahoney, also told the court that U.S. District Court Judge Edward Nottingham wrongly prevented a defense witness from testifying and that Nottingham’s instructions to the jury were inadequate.

[snip]

At the appeals hearing, the judges repeatedly asked Oestreicher why Nottingham denied Daniel Fischel from testifying in Nacchio’s defense. Prosecutors say the defense didn’t establish the reliability of Fischel’s opinions or disclose how he arrived at them.

Nacchio’s attorneys say Fischel, an expert on corporate law and markets, was a core part of his defense and could have explained to jurors what must be publicly disclosed and that Nacchio’s stock sales were to diversify his portfolio. Mahoney said a reasonable jury hearing testimony from Fischel would have acquitted Nacchio.

So the Appeals Court has not specifically said Nacchio should be able to tell us about being strong-armed to wiretap Americans (that’s not why they accepted his appeal). But given another trial–not to mention the House’s recent confirmation that different carriers responded to government requests differently (that is, AT&Treason happily wiretapped us, while Qwest resisted)–Nacchio might have the opportunity to explain why he thinks he was retaliated against because he believes in the Fourth Amendment.

In addition to Leonard Boswell, the following Representatives who originally signed the Blue Dog letter to Nancy Pelosi in support of the SSCI bill voted for the House bill today:

• Rep. Leonard L. Boswell, D-Iowa — Phone: (202) 225-3806, Fax: (202) 225-5608
• Rep. Marion Berry, D-Ark. — Phone: (202) 225-4076, Fax: (202) 225-5602
• Rep. Mike Ross, D-Ark. — Phone: (202) 225-3772, Fax: (202) 225-1314
• Rep. Earl Pomeroy, D-N.D. — Phone: (202) 225-2611, Fax: (202) 226-0893
• Rep. Melissa Bean, D-Ill. — Phone: (202) 225-3711, Fax: (202) 225-7830
• Rep. John Barrow, D-Ga. — Phone: (202) 225-2823, Fax: (202) 225-3377
• Rep. Allen Boyd, D-Fla. — Phone: (202) 225-5235, Fax: (202) 225-5615
• Rep. Joe Baca, D-Calif. — Phone: (202) 225-6161, Fax: (202) 225-8671
• Rep. John Tanner, D-Tenn. — Phone: (202) 225-4714, Fax: (202) 225-1765
• Rep. Jim Matheson, D-Utah — Phone: (202) 225-3011, Fax: (202) 225-5638
• Rep. Brad Ellsworth, D-Ind. — Phone: (202) 225-4636, Fax: (202) 225-3284
• Rep. Charlie Melancon, D-La. — Phone: (202) 225-4031, Fax: (202) 226-3944
• Rep. Dennis Moore, D-Kan. — Phone: (202) 225-2865, Fax: (202) 225-2807
• Rep. Zack Space, D-Ohio — Phone: (202) 225-6265, Fax: (202) 225-3394

Altogether, 15 of those who originally signed the letter voted with their party today, plus Lincoln Davis, who voted present. They picked up Lampson, who voted against the bill. But in all, that’s a pretty profound turn.

Notably, Barrow, Boswell, Ellsworth, and Space were targeted by Blue America. I guess that leaves just Carney and Shuler as candidates to have an ad run against them for opposing civil liberties.

If any of these guys who changed their vote are your Representative, please call them and thank them for supporting their party on this important vote.

Update: Stole the list with phone numbers from McJoan. Also, as McJoan suggests, it’s also probably a good idea to thank the Freshmen for refusing to be cowed by the Republican fearmongering.

• Jason Altmire (PA-04), Phone: (202) 225-2565, Fax: (202) 226-2274
• Mike Arcuri (NY-24), Phone: (202) 225-3665, Fax: (202) 225-1891
• Nancy Boyda (KS-02), Phone: (202) 225-6601, Fax: (202) 225-7986
• Joe Courtney (CT-02), Phone: (202) 225-2076, Fax: (202) 225-4977
• Joe Donnelly (IN-02), Phone: (202) 225-3915, Fax: (202) 225-6798
• Gabrielle Giffords (AZ-08), Phone: (202) 225-2542, Fax: (202) 225-0378
• Kirsten Gillibrand (NY-20), Phone: (202) 225-5614, Fax: (202) 225-1168
• Paul Hodes (NH-02), Phone: (202) 225-5206, Fax: (202) 225-2946
• Steve Kagen (WI-08), Phone: (202) 225-5665, Fax: (202) 225-5729
• Ron Klein (FL-22), Phone: (202) 225-3026, Fax: (202) 225-8398
• Tim Mahoney (FL-16), Phone: (202) 225-5792, Fax: (202) 225-3132
• Jerry McNerney (CA-11), Phone: (202) 225-1947, Fax: (202) 225-4060
• Harry Mitchell (AZ-05), Phone: (202) 225-2190, Fax: (202) 225-3263
• Christopher Murphy (CT-05), Phone: (202) 225-4476, Fax: (202) 225-5933
• Carol Shea-Porter (NH-01), Phone: (202) 225-5456, Fax: (202) 225-5822
• Tim Walz (MN-01), Phone: (202) 225-2472, Fax: (202) 225-3433

Nancy Boyda, in particular, deserves special kudos for giving a kick ass speech on the floor.

Update: We win, 213-197-1, with the 10 Dem no votes a mix of Blue Dogs and Progressives. Good work, Congress!! 

Some time ago, 21 Blue Dog Democrats wrote a letter in support of the Senate bill on FISA. The Republicans (including Doc Hastings in today’s debate) have pointed to that letter in support of their argument for the Senate bill.

But the Blue Dogs–at least some of them–are starting to come home (perhaps because of the pressure that Blue America is preparing to put on them for voting against civil liberties). Today, Leonard Boswell spoke in favor of the vastly better House bill on FISA, calling for the others that signed the letter to support the Democratic bill as well.

So yes, I like 20 others, signed a letter of concern. By the way, it was not a Blue Dog letter, a Blue Dog position but individuals, some of whom were Blue Dogs. Over the course of past weeks, a credit to Chairman Reyes and Chairman Conyers and our super staff, an acceptable solution has been found. It makes FISA – supports FISA and gives protection to those who assist within the provisions of the law. For example, those who feel their civil rights have been violated can seek justice and telecoms who feel they have complied with the law, a judge can review the classified evidence and decide. This means to me that the Constitution and civil rights are protected and telecoms who are asked under pressure to assist in an emergency can know that classified evidence will be seen by a judge… The bill provides telecom companies a way to present their defense in secure proceedings in a district court without the administration using state secrets to block the defense. A company simply doing its duty following the law, this bill ensures they they will not be punished and I urge everyone who signed the letter with me to support this resolution.

Welcome home Congressman Boswell–I hope you’re back to stay.

Democrats just defeated (with 217 votes) an effort by Republicans to consider the Senate FISA bill before the House considers the House bill today.

While we’re watching lots of bloviating on FISA in the House, I thought I’d call attention to something Mary found yesterday.

The FBI twice disregarded a secret court’s constitutional objections and obtained private records for national-security probes, a U.S. inspector reported on Thursday.

The Justice Department’s Inspector General made the disclosure in reviews of the FBI’s powers to obtain information such as phone records or credit-card data in terrorism probes or other security investigations.

[snip]

The report took particular note of two occasions in which a secret court that oversees electronic surveillance rejected FBI requests to obtain records.

The court was concerned that doing so could interfere with rights protected by the First Amendment of the Constitution which guarantees freedom of speech, religion and association and the right to petition the government.

After the rejections, the FBI used separate authority to get the information without the court’s approval, relying on so-called National Security Letters — even though that authority also had First Amendment guidelines.

Unfortunately, this is a detail I’ve only seen highlighted in Reuters’ coverage of the IG report on PATRIOT Act provisions. It’s an example that really proves the necessity of the additional protections included in the House bill–without FISC reviewing what DOJ is doing, we’re going to see DOJ override Constitutional concerns more and more often.

Update: nolo has the passage from the OIG report on this here.

Conyers introducing the bill: [PAA] transferred power of independent review from courts to AG.

The Administration tells us they have nothing to hide. If that’s true, they should have no problem with the enactment of this Blue Ribbon Commission. We learned yesterday that FBI continuing to misuse PATRIOT Act provisions. We learned four days ago NSA using massive net.

Lamar Smith starts off by lying through his teeth, again claiming that wiretapping on the kidnappers in Iraq was held up because of FISA–rather than because Paul Clement had left work early.

Feeney makes up stuff about the bill.

Jim Marshall engages in colloquy with Conyers and Reyes clarifying how the FISA suits would go forward.

Nadler we have heard false and misleading statements from our colleagues. By solving the State Secrets problem, if they need it and if they obeyed the law.

Pence war war war unilateral disarmed fail fail war war.

Boswell (who was one of the Blue Dogs who wrote in support of the Senate bill but has flipped to suppor the Dems). So yes, I signed a letter. It was not a Blue Dog position. An acceptable solution has been found that makes FISA, supports FISA, and gives protection to those who assist within the law. Those who feel their Civil Rights have been violated and those who cooperated, a judge will decide. This means that Constitution is protected. I urge everyone who signed the letter with me to support this bill.

Conyers the reason we’re not taking up the Senate provision is that we’ve got a better idea. We’re coequal.

Bobby Scott anything the govt wants will be legal. The warrant procedure is a modest protection of civil liberties. This bill just provides oversight.

Gomert We’re an even more important branch bc we’re more accountable. The difference between this and the Senate bill, Senate Republicans got input. We can only point out problems. I’ve read the bill, we’re still not there. We haven’t heard input.

Anna Eshoo Two highest responsibilities: to preserve nation, but protect civil liberties.

Conyers wanted to let Gomert know that the reason we didn’t get the bipartisanship is because you boycotted our meetings. Now you’re complaining.

Blackburn trial lawyers trial lawyers trial lawyers liberal elite. $72 million thank you to trial lawyers. Earmark.

Speaker Pelosi hammering on the Administration’s refusal to accept exclusivity. Chairman Rockefeller agrees that many of the provisions improve his bill. The President knows that this provides the Administration the tools it needs. [Applause as she finishes]

[Pelosi ought to spend the next 6 months saying, "The President knows it" over and over] 

Lamar Smith (sounds like he’s getting worried about losing big here, reading from McConnell Mukasey letter again–which seems to have lost its power). 

Blunt we were told. 

At the request of the Republican leadership (who want to say something to the entire House that can’t be said publicly), the House is going to go into a secret session to debate FISA.

Here’s what John Conyers had to say about the secret session:

The more my colleagues know, the less they believe this Administration’s rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration’s actions in the area of warrantless surveillance, the more likely they are to reject the Administration’s scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration’s documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

Whether this is a worthwhile exercise or mere grandstanding depends on whether Republicans have groundbreaking new information that would affect the legislative process. There must be a very high bar to urge the House into a secret session for the first time in 25 years. I eagerly await their presentation to see if it clears this threshold. As someone who has seen and heard an enormous amount of information already, I have my doubts.

I’m frankly optimistic about this development. I think this gives the Democratic members of HJC and HPSCI an opportunity to explain to their colleagues what they saw in the justifications for the wiretap program and what they heard from the telecom executives who gave secret briefings in the last several weeks. For the immediate debate, the issue is winning over the Blue Dogs who–at least currently–appear to be channeling their Democratic past. And it seems like this argument is fairly easy to make.

At the very least, we know the telecoms continued to wiretap in the days after March 10, 2004, when White House Counsel Alberto Gonzales authorized the program rather than Acting AG Jim Comey. We know the telecoms didn’t follow the clear guidelines about when they can accept the Administration’s assurances that a program is legal.

That seems like an important part of the debate.

The Democrats on HJC have been doing their homework while the Republicans have been fear-mongering. They’ve read the documents related to the illegal wiretapping program, held secret hearings with the telecom companies, and called bull on several of the conclusions formed by SSCI. Not surprisingly, this letter justifies the FISA alternative which will come up for a vote later this afternoon.

The letter reveals the timing of the hearings with the telecom companies–but does not reveal whether the Republicans deigned to attend.

In recent weeks, Judiciary Committee members have received classified briefings from intelligence and Justice Department officials on the Administration’s warrantless surveillance program; we have been provided access to the same classified documents on the program that were provided months ago to the Senate Intelligence and Judiciary Committees (and, more recently, to the House Permanent Select Committee on Intelligence); and the Committee has conducted lengthy and extensive classified hearings on February 28 and March 5 to hear testimony from telecom and Administration officials. A key focus of that effort was the issue of retroactive immunity for phone companies that participated in the warrantless surveillance program. [my emphasis]

The hearings appear to have taken place during that period when the Republicans had taken their toys and gone home–so it’s likely, by refusing to let their staffers participate, the Republicans avoided learning the details that the Democrats learned [Update: I’ve been informed the Republicans attended the hearings]. And note–they still seem to be focused on phone companies, not the email carriers who are the center of the new programs.

The letter also confirms what we’ve already known–not all carriers acted the same in response to Administration requests.

The case for blanket retroactive immunity would be stronger if the various carriers had taken consistent actions in response to requests from the Administration. That is not what we found. Without revealing any specific details, we found a variety of actions at various times with differing justifications in response to Administration requests.

No word on whether anyone has contacted Nacchio’s judge–who is having his own Spitzer-like problems–to inform him that Nacchio had a point when he said he may have lost his NSA contracts out of spite.

The letter also repeats a point AT&T made in its letter to Dingell et al–that the activities the telecoms were engaged in were covered under a number of different laws.

If there were one simple, straightforward legal rule that applied to the conduct in question, it could perhaps be argued that it is a straightforward matter for the legislature to assess the lawfulness of the conduct in question. Without revealing any specific details, that is not what we found. It appears that a variety of legal rules and regimes may apply to the conduct of the carriers. We would note that one carrier has publicly stated that there are “numerous defenses and immunities reflected in existing statutory and case law” for companies that cooperate with legally authorized government surveillance requests. [my emphasis]

I was thinking when I read that letter that one thing AT&T was trying to do was describe the scope of the illegal program. I plan to go back and read those legal justifications more closely, but I recall the centrality of laws pertaining to pen registers among them, reinforcing the notion that the telecoms were also data mining. It sure sounds like they crafted together a mix of legal justifications to do what they did.

Most importantly, HJC makes a strong case to reject immunity (while allowing the telecoms to defend themselves–a stance that also responds to the sole reason SSCI felt it had to offer immunity), while calling for an independent committee to look into the illegal wiretapping.

Accordingly, we support a resolution that would, notwithstanding the state secrets doctrine, authorize relevant carriers to present fully in court their claims that they are immune from civil liability under current law, with appropriate security protections to carefully safeguard classified information. This solution would ensure that carriers can fully present their arguments that they are immune under current law, while also ensuring that Americans who believe their privacy rights were violated will have the issue considered by the courts based on the applicable facts and law, consistent with our traditional system of government and checks and balances.

Our review has also led us to support two other recommendations. First, there is arguably a gap in liability protections for carriers that complied with lawful surveillance requests covering the time period between the expiration of the Protect America Act and the future enactment of more lasting FISA reform legislation. As Speaker Pelosi and Senate Majority Leader Reid have proposed, legislation to fill that gap is justified and important. This provision is not included in the Senate FISA bill, and shoul dbe included in any final legislative product.

In addition, our review of classified information has reinforced serious concerns about the potential illegality of the Administration’s actions in authorizing and carrying out its warrantless surveillance program. We, therefore, recommend the creation of a bipartisan commission to conduct hearings and take other evidence to fully examine that program. Like the 9/11 Commission, it would make findings and recommendations in both classified and unclassified reports and thus inform and educate the American people on this troubling subject.

I like this approach: it undercuts the logic of SSCI’s insistence on immunity, shows a concern for the prospective legal position of the telecoms, while putting something on the table–a bipartisan commission–that we can negotiate with if we ever have to cede on immunity.

Let’s hope it’s not too little too late.

The ACLU says this about the House’s proposed compromise on FISA.

While we still have concerns about aspects of the new House FISA bill, the American Civil Liberties Union is encouraged by the new draft – particularly the language on state secrets, which would allow the cases to go forward while allowing the telecommunications companies to assert any defenses. We commend House leadership for keeping the courthouse door open.

I think this is what they’re referring to:

SEC. 802. PROCEDURES FOR COVERED CIVIL ACTIONS.
(a) INTERVENTION BY GOVERNMENT.— In any covered civil action, the court shall permit the Government to intervene. Whether or not the Government intervenes in the civil action, the Attorney General may submit any information in any form the Attorney General determines is appropriate and the court shall consider all such submissions.

(b) FACTUAL DETERMINATIONS.—In any covered civil action, the court shall review in accordance with the procedures set forth in section 106(f) any evidence or information with respect to which a privilege based on state secrets is asserted, whether that evidence or information is submitted by any party or the Government. The court may, on motion of the Attorney General, take any additional actions the court deems necessary to protect classified information. In order to ensure full argument of all legal issues, the court shall, to the extent practicable and consistent with national security, request that any party present briefs and arguments on any legal question the court determines is raised by such a submission even if that party does not have full access to such submission. The court shall consider whether the employment of a special master or an expert witness, or both, would facilitate proceedings under this section.

(c) LOCATION OF REVIEW.—The court may conduct the review in a location and facility specified by the Attorney General as necessary to ensure security.

(d) REMOVAL.—A covered civil action that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.

(e) SPECIAL RULE FOR CERTAIN CASES.—For any covered civil action alleging that a person provided assistance to an element of the intelligence community pursuant to a request or directive during the period from September 11, 2001 through January 17, 2007, the Attorney General shall provide to the court any request or directive related to the allegations under the procedures set forth in subsection (b).

(f) APPLICABILITY.—This section shall apply to a civil action pending on or filed after the date of the enactment of this Act.

I’m curious to see what the legal types around these parts think. But it seems that it challenges immunity advocates to put their money where their mouth is. For a long time, immunity advocates have argued that those poor little telecoms couldn’t defend themselves because the government invoked state secrets.

Well, says Congress, simply have the courts review the materials about which the government has invoked state secrets. Voila, problem solved.

I noticed something really funny in the AT&T response to Dingell and friends that MadDog linked to. In a passage describing why the telecoms should be granted immunity for abetting the Administration in its illegal wiretap program, AT&T cites 18 USC 2411(2)(a)(ii) to argue that it is immune from prosecution.

The same principle–that a telecommunications carrier who cooperates in good faith with the authorized law enforcement or intelligence activities considered lawful by the executive–underlies numerous defenses and immunities reflected in existing statutory and case law. For example, 18 U.S.C. 2511(2)(a)(ii) provides that "notwithstanding any other law," carriers are authorized to provide "assistance" and "information" to the government whenever the communications service provider receives a "certification" from the Attorney General or his designee "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. When the Attorney General furnishes an appropriate certification, Congress has decreed that "no cause of action shall lie in any court." It does not matter whether the Attorney General’s judgment reflected in the certification is ultimately determined to have been right or wrong: as long as the carrier acted pursuant to such a certification, national policy forbids a lawsuit. [emphasis AT&T’s]

Now compare their citation of 18 U.S.C. 2511(2)(a)(ii) with the actual statute.

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

Do you see the difference? AT&T has unilaterally rewritten "a person specified in section 2518(7) of this title or the Attorney General" to say "Attorney General or his designee." (And if you’re wondering, 2518(7) doesn’t say anything about "designees" either. Update: yes it does–though it specifies that they have to be investigative officers.)

Of course, we know why AT&T has unilaterally rewritten the law. That’s because, as SSCI kindly told us, AT&T conducted its illegal wiretap program based on the authorization of Alberto Gonzales, then White House Counsel.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

Of course, AT&T is not alone in rewriting the law to make it legal for the President’s lawyer to authorize illegal wiretapping on American citizens. The SSCI did so themselves.

Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain other officers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii). [my emphasis]

"Certain other officers" … "or his designee." Neither of those phrases appear in the law, of course.

AT&T and SSCI have all but admitted that AT&T broke the law, engaging in wiretapping Americans based on the certification of Bush’s lawyer.

And now Congress wants to retroactively make such wiretapping legal.

Babak Pasdar’s affidavit on Verizon’s Quantico Circuit reveals something about the government’s back-door access to all of Verizon’s data, one which might be familiar to you from the missing White House emails saga.

When the Steven McDevitt tried to reconstruct all OVP the emails from the period when Scooter Libby and Dick Cheney were coordinating their cover story, he discovered no logs from the emails of that period existed; thus, there’s no way to be sure that the 250 pages of email turned over to Patrick Fitzgerald constitute all the missing emails.

Golly. What a surprise, then, that the government didn’t want any logs taken of its back-door access to (presumably) Verizon’s data.

Pasder notes that (presumably) Verizon’s log collection system was very primitive.

I specifically remembered being shocked at the primitiveness and inadequacy of their log collection system. After all, this was a major carrier. After a cursory overview I was able to point out to C1 and C2 that their log collection system might not have been collecting all logs. This surprised C1 and C2. A subsequent test showed that the client’s log collection system was missing as many as 75% of the logs being generated, essentially rendering the whole system useless.

Mind you, that covered the whole system, not just the Quantico Circuit the government was using to access the system. But when Pasdar describes learning about the Circuit itself, he explains that there was no logging system for the Circuit. None.

This is a little narrative he tells about learning of the Circuit when testing the firewalls of the new system he was putting in.

At one point I overheard C1 and C2 talking about skipping a location. Not wanting to do a shoddy job I stopped and said "we should migrate all sites."

C1 told me this site is different.

I asked, "Who is it? Carrier owned or affiliate?"

C1 said, "This is the ‘Quantico Circuit.’"

Pasdar goes on to learn that this is a 45 mega bit per second circuit that supports data and voice communication. The consultants he was working with made it clear they weren’t supposed to put any access controls on it.

C1 said that this circuit should not have any access control. He actually said it should not be firewallled.

I suggested to migrate it and implement an "Any-Any" rule. ("Any-Any" is a nickname for a completely open policy that does not enforce any restrictions.) That meant we could log any activity making a record of the source, destination and type of communication. It would have also allowed easy implementation of access controls at a future date. "Everything at least SHOULD be logged," I emphasized.

C1 said, "I don’t think that is what they want."

As Pasdar continued to insist on securing the circuit, the consultants called in the Director of Security for (presumably) Verizon, the Director drove to the location to insist that Pasdar do nothing with the wide open circuit. After the Director left, Pasdar persisted.

I shifted the focus. "Forgetting about who [the circuit] is, don’t you think it is unusual for some third party to have completely open access to your systems like this? You guys are even firewalling your internal offices, and they are part of your own company!"

C1 said, "Dude, that’s what they want."

Finally, Pasdar asks whether there is any logging tied to the circuit.

"Does this thing have any logging or access list tied to it?", I asked C1.

He paused, shook his head in the negative and said, "I don’t think so."

For the balance of the evening and for some time to come I thought about all the systems to which this circuit had complete and possibly unfettered access. The circuit was tied to the organization’s core network. It had access to the billing system, text messaging, fraud detection, web site, and pretty much all the systems in the data center without apparent restrictions.

What really struck me was that it seemed no one was logging any of the activity across this circuit. And if they were, the logging system was so abysmal that they wouldn’t capture enough information to build any type of picture of what had transpired. Who knw what was being sent across the circuit and who was sending it? To my knowledge no historical logs of the communications traversing the "Quantico Circuit" exists. [my emphasis]

In other words, not only did they tap right into (presumably) Verizon’s circuits directly. But they refused to allow a record of what they were doing, once they got into the circuits, be made.

No wonder the Republicans refuse to allow segregation of US person data. No wonder they refuse to pull out information collected afterwards if it was later found to be an improper search. At the circuit level, at least, they’re not tracking that information.

And they didn’t want anyone to come afterwards and be able to track what they had done, either.