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A Diverse America Votes to Uphold the Constitution; A Largely Male White America Votes to Abrogate It

The House Judiciary Committee just voted to send two articles of impeachment against Donald Trump to the full House.

The entire vote took just minutes. But it said so much about the state of America today.

It will forever be portrayed as a party line vote, with 23 Democrats in favor, and 17 Republicans against. But it was also a tribute to the degree to which polarization in America today pivots on issues of diversity.

The Democrats who voted in favor included 11 women, and 13 Latinx and people of color (Ted Lieu missed the vote recovering from a heart procedure). Three (plus Lieu) are immigrants. One is gay. These Democrats voted to uphold the Constitution a bunch of white men, several of them owners of African-American slaves, wrote hundreds of years ago.

The Republicans who voted against were all white. Just two were women.  These Republicans voted to permit a racist white male President to cheat to get reelected in violation of the rule of law.

This is about a clash between the rising America and the past. And it’s unclear who will win this battle for America. But the stakes are clear.

 

Section 215 Order Reveals Secrecy Only Serves to Prevent Court Challenge

Last March, when Hank Johnson asked him a poorly worded question about what NSA was doing with its data center in Utah, NSA head Keith Alexander kept saying the NSA had no power to collect in the US.

Johnson: “NSA’s signals intercepts include eavesdropping on domestic phone calls and inspection of domestic emails.” Is that true?

Alexander: No, not in that context. I think what he’s trying to raise is are we gathering all the information on the United States? No, that is not correct.

Johnson: What judicial consent is required for NSA to intercept communications and information involving American citizens?

Alexander: Within the United States, that would be the FBI lead.  If it was foreign actor in the United States the FBI would still have the lead and could work that with the NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order and a court would have to authorize it. We’re not authorized to do it nor do we do it.

As I noted at the time, Alexander didn’t actually deny it happens. He just said the FBI would have that authority in the US.

Alexander never denies that such capabilities exist. Rather, he says that FBI would intercept communications–with a court order–and FBI would search for certain content–with a warrant.

I even pointed to the great deal of circumstantial evidence that the FBI uses Section 215 to do bulk collection.

We know several things about the government’s collection in the US. First, the telecoms own the equipment–they’re the ones that do the intercepts, not FBI or NSA. Second, the FBI can and does get bulk data information from telecoms and other businesses using Section 215 of the PATRIOT Act.

I will have more to say about this later–until then, read this post and this post as background.

There is a great deal of circumstantial information to suggest that after the 2004 hospital confrontation–which was in part a response to Congress prohibiting any DOD use of data mining on Americans–chunks of the illegal wiretap program came to be authorized under Section 215 of the PATRIOT Act, which authorizes FBI data collection.

There’s nothing General Alexander said in this non-denial denial that would conflict with the notion that FBI collects data the telecoms intercept using Section 215 of the PATRIOT Act.

The Guardian’s publication of a 215 Order collecting metadata from all of Verizon Network Business Services customers proves that I was correct. It proves that Alexander’s obviously false non-denial was just that: a dodge of the truth.

Indeed, the order also shows that FBI’s role is simply to provide legal cover by submitting the 215 request, but NSA gets the data.

The (anonymous, of course) Administration response to last night’s disclosure is to claim it is no big deal.

An administration official called the phone data a “critical tool in protecting the nation from terrorist threats to the United States.”

“It allows counter terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States,” the official added.

[snip]

“The order reprinted in the article does not allow the Government to listen in on anyone’s telephone calls, said the administration official Thursday defending the decision. “The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.”

Note: congratulations to The Hill’s Meghashyam Mali, who actually repeated this anonymous person’s claim that 1) the program allows the government to ID terrorists but 2) the 215 Order does not return the ID of any subscriber, as if doing so constituted journalism. (Note: Marc Ambinder just posts the talking points, without noting how internally contradictory they are–I’ll return to them shortly.)

Here’s the question, though: if this program is no big deal, as the Administration and some members of Congress are already claiming in damage control, then why has the Administration been making thin non-denial denials about it for years? If it is so uncontroversial, why is it secret?

Is there anything about the order that tips people off to whom, precisely, is being targeted? Does it explain how good (or bad) NSA’s data analysis tools are?

No. The collection is so broad, it could never provide hints of who is being investigated.

The WaPo suggests this order is just regular, routine collection, that quarterly 215 order sent to Verizon NBS. But even if, as I wondered last night, it’s triggered to a specific investigation, is there anything in there that tells people what or who is being investigated?

No.

There is nothing operational about this Section 215 order that needs to be secret. Nothing. A TS/SCI classification for zero operational reason.

The secrecy has been entirely about preventing American citizens from knowing how their privacy had been violated. It serves the same purpose as Alexander’s obviously dishonest answer.

And the most important reason to keep this secret comes from this claim, from the Administration’s LOL talking points.

As we have publicly stated before, all three branches of government are involved in reviewing and authorizing intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorizes such collection.

The Administration wants you to believe that “all three branches” of government have signed off on this program (never mind that last year FISC did find part of this 215 collection illegal — that’s secret too).

But our court system is set up to be an antagonistic one, with both sides represented before a judge. The government has managed to avoid such antagonistic scrutiny of its data collection and mining programs — even in the al-Haramain case, where the charity had proof they had been the target of illegal, unwarranted surveillance — by ensuring no one could ever get standing to challenge the program in court. Most recently in Clapper v. Amnesty, SCOTUS held that the plaintiffs were just speculating when they argued they had changed their habits out of the assumption that they had been wiretapped.

This order might just provide someone standing. Any of Verizon’s business customers can now prove that their call data is, as we speak, being collected and turned over to the NSA. (Though I expect lots of bogus language about the difference between “collection” and “analysis.”)

That is what all the secrecy has been about. Undercutting separation of powers to ensure that the constitutionality of this program can never be challenged by American citizens.

It’s no big deal, says the Administration. But it’s sufficiently big of a deal that they have to short-circuit the most basic principle of our Constitution.

NSA Director Keith Alexander: The FBI Does the Domestic Collection

Congressman Hank Johnson asked NSA Director Keith Alexander about James Bamford’s Wired article describing the data storage and analysis center in UT. Unfortunately, rather than ask Alexander about these activities–storage and analysis–Johnson asked Alexander about data collection. Here are excerpts of the exchange:

Johnson: Does NSA have the ability to identify Cheney bashers based on the content of their emails?

Alexander: No. Can I explain? NSA does not have the ability to do that in the United States. In the United States we would have to go through an FBI process–a warrant–to serve it to somebody to actually get it.

Johnson: But you do have the capability to do it?

Alexander: Not in the United States. We’re not authorized to collect nor do we have the equipment in the United States.

Johnson: “NSA’s signals intercepts include eavesdropping on domestic phone calls and inspection of domestic emails.” Is that true?

Alexander: No, not in that context. I think what he’s trying to raise is are we gathering all the information on the United States? No, that is not correct.

Johnson: What judicial consent is required for NSA to intercept communications and information involving American citizens?

Alexander: Within the United States, that would be the FBI lead.  If it was foreign actor in the United States the FBI would still have the lead and could work that with the NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order and a court would have to authorize it. We’re not authorized to do it nor do we do it.

Note that Alexander never denies that such capabilities exist. Rather, he says that FBI would intercept communications–with a court order–and FBI would search for certain content–with a warrant.

Also note, all of Alexander’s responses were in the present tense: he doesn’t say the NSA hasn’t done these things. Only that the NSA is not now authorized to do them and does not do them.

We know several things about the government’s collection in the US. First, the telecoms own the equipment–they’re the ones that do the intercepts, not FBI or NSA. Second, the FBI can and does get bulk data information from telecoms and other businesses using Section 215 of the PATRIOT Act.

I will have more to say about this later–until then, read this post and this post as background.

There is a great deal of circumstantial information to suggest that after the 2004 hospital confrontation–which was in part a response to Congress prohibiting any DOD use of data mining on Americans–chunks of the illegal wiretap program came to be authorized under Section 215 of the PATRIOT Act, which authorizes FBI data collection.

There’s nothing General Alexander said in this non-denial denial that would conflict with the notion that FBI collects data the telecoms intercept using Section 215 of the PATRIOT Act.

Why Won’t Jeh Johnson Answer Hank Johnson’s Question about Forced Nudity?

The House Armed Services Committee is having a hearing on Law of War Detention. Much of it has focused on Jeh Johnson affirming that military commissions line up with American values. (In other words, it is fairly depressing.)

But an interesting exchange happened when Hank Johnson had his turn. He set up his question by talking about a recent trip to Gitmo. He described the good treatment he saw the detainees being subject to. Jeh Johnson said that we’re following the Geneva Conventions.

Then he said (working from memory), so why is Bradley Manning being subject to worse treatment.

Frankly, Hank Johnson got a few details incorrect (for example, he said that Manning had to wear shackles in his cell). But he went through Manning’s treatment reasonably well.

In response, Jeh Johnson reverted immediately to the importance of pretrial detention. He used the same old lie about Manning being able to talk to others in his cell block. Here’s a rough liveblog:

not in solitary confinement. Public misinformation. It is public that he is currently in classification status called Maximum security. Someone in Max occupies same type of cell that a medium security pretrial detainee. Same time of cell. You could have Max security and medium confinee in the same row of cells and they could converse with one another.

(That would be true if anyone was in a cell close enough to him to be able to talk to, but there isn’t.)

But perhaps most tellingly, Jeh Johnson didn’t address Hank Johnson’s question about the forced nudity Manning is being subject to.

Ultimately, Buck McKeon cut off Hank Johnson, saying that Jeh Johnson could answer him “off the record.” (?) I hope he meant for the record; we shall see.)

But for now, at least, it appears that Jeh Johnson really doesn’t want to talk about why Manning is being subject to a policy implemented–and then rejected–at Gitmo.

Progressives Demand House GOP Committee Chairs Investigate Hunton & Williams

When I first posted on Hank Johnson’s letter demanding an investigation into Hunton & Williams’ appropriation of counterterrorist techniques to attack citizen speech, I was a bit skeptical. Without a way to get some coverage of the demand, such a letter risks being yet one more angry letter into the void.

But I will say the letter is well-constructed.

That’s because it’s addressed to the Chairmen of the Oversight, Judiciary, Intelligence, and Armed Services Committees: Darrell Issa, Lamar Smith, Mike Rogers, and Buck McKeon. So in addition to someone, like Smith, who can address the legal issues involved–notably, why DOJ was recommending H&W to Bank of America–Johnson and others have included Rogers and McKeon, who presumably know a good deal about how DOD has funded campaigns like the one H&W was going to launch against citizens.

Which brings us to the DOD tie-in:

The techniques may have been developed at U.S. government expense to target terrorists and other security threats. The emails indicated that these defense contractors planned to mine social network sites for information on Chamber critics; planned to plant “false documents” and “fake insider personas” that would be used to discredit the groups; and discussed the use of malicious and intrusive software (“malware”) to steal private information from the groups and disrupt their internal electronic communications.

[snip]

It is deeply troubling to think that tactics developed for use against terrorists may have been unleashed against American citizens.

[snip]

Possible proof the defense and security contractors may have traded on their government work is inferred by a November 3, 2010, sales proposal from Team Themis to Hunton & Williams: “Who better to develop a corporate information reconnaissance capability than companies that have been market leaders within the [Defense Department] and Intelligence Community?

The focus, in other words, is not just on how such a campaign violates the law, but also how it represents the application of DOD-developed programs to private citizens exercising their First Amendment rights.

Sure, the GOP Chairs will ignore this.

But it’ll make them complicit in protecting the Chamber’s and H&W’s misappropriation of DOD technology.

“Tactics Developed for Use against Terrorists May Have Been Unleashed against American Citizens”

Hmmm. “Tactics developed for use on terrorists may have been unleashed against citizens.” That sounds like something I would have written about the HB Gary scandal. Twice.

It’s nice to see some members of Congress understand what the entire problem with this scandal is about.

In a letter to be released Tuesday, Rep. Hank Johnson (D-Ga.) and more than a dozen other lawmakers wrote that the e-mails appear “to reveal a conspiracy to use subversive techniques to target Chamber critics,” including “possible illegal actions against citizens engaged in free speech.”

The lawmakers say it is “deeply troubling” that “tactics developed for use against terrorists may have been unleashed against American citizens.”

[snip]

The companies proposed forming a “corporate information reconnaissance cell” and discussed tactics such as creating online personas to infiltrate activist Web sites; planting false information to embarrass U.S. Chamber Watch and other groups; and trolling for personal information using powerful computer software.

You almost wonder whether this is why Aaron Barr resigned? To try to stave off attention to how common it is for corporations to treat citizen speech as terrorism?

Scott McClellan Testimony: Rove Is a Liar and Cheney an Oil-Hungry War-Monger

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I confess to being underwhelmed with the work HJC did with Scott McClellan’s appearance before the committee today. I’ll do a post later (once I’ve recovered from a terrible day for Democracy) on what I think was missed. But I’ll start with the positive–what I consider the highlights of the hearing.

Conyers started the hearing right, IMO, by introducing the meat-grinder note, showing that as Cheney was pressuring Bush to have Libby exonerated, Cheney was thinking of Bush’s order that Libby "put his neck in the meat-grinder." Conyers also made the case–which I made here–that Mukasey should turn over the reports from the Bush and Cheney interviews (doing anything else is really cooperating the ongoing attempts to cover-up the Libby case). Of course, HJC could have made a more compelling case that it needs the reports had they don’t a better job of explaining why the reports would be the only way to answer urgent questions about the leaks. But, aside from Chairman Conyers, no one on the committee made a concerted effort to present the abundant evidence that Cheney and Bush were involved in the leak of Plame’s identity. For example, when Jerrold Nadler asked McClellan whether Bush and Cheney had any knowledge of Libby’s involvement in the leak, he didn’t introduce that evidence that Cheney, at least, did, and Bush may have as well.

NADLER: Do you know when the president gave instruction to cover Libby’s rear end, did he know about Libby’s involvement? Scott didn’t know that.

Perhaps the best use of the hearing time came from (unsurprisingly–he usually excels in hearings) Artur Davis. Davis, who is from Don Siegelman’s state, got McClellan to admit that Rove not only would–but has–lied to protect himself from legal jeopardy and political embarrassment.

Artur Davis Let me circle around a person, Rove. You stated Rove encouraged you to repeat a lie. Indicated you’ve known him for some time. Committee extended invitation to Rove. I’m willing to talk, only if no oath, no cameras, no notes. Based on what you know does it surprise you that Rove wants limitations on circumstances.

SM An effort to stonewall the whole process.

Davis Would you trust Rove to tell the truth if not under oath.

SM Can’t say I would

Davis Not under oath.

SM I would hope he would. I’d have concerns about that.

Davis Did testify before GJ under oath. You don’t believe he told the complete truth to the GJ.

SM I don’t know.

Davis Karl only concerned about protecting himself from possible legal action. Do you believe he is capable of lying to protect himself from legal jeopardy.

SM He certainly lied to me.

Davis Do you believe he is capable of lying to protect himself from political embarrassment.

SM he did in my situation, so the answer is yes. [my emphasis]

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