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August 05, 2007

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PeterUK

SG,Boris,
There have been scams whereby free international phone calls can be made,no guesses where to.

Rick Ballard

"How long before they start turning on one another?"

It depends on what kind of heat the Dem intelligence committee staffers receive. The memo is out in the open - there is no mistaking motive. My bet is that Rockefeller has already been coughed up like a hairball - he's been far too quiet for too long. Durbin is an obvious pick but I'm going to have to go over the rest of the committee in detail before hazarding further guesses.

The stink ought to stick to every Dem on the committee - plus the Dem House members on the joint committee. Which is precisely as it should be. If you choose to lie down with Copperheads, don't ask me for sympathy when they start biting each you.

cboldt

Cases that construe 798.a.3 or similar ...

NYT v. US doesn't, directly, but one can infer that whatever the Pentagon Papers contained didn't support an indictment on that statute. In the Pentagon Papers case, Justice White comments are focused on disclosures of our code-breaking capability.

A few FOIA cases (Gilmore v. NSA; EPIC v. DOJ on the TSP) are on the same point, where the NSA refuses to give up math/cryptography treatises, or to admit or deny having intercepted the communications of a specific plaintiff.

A "negative" example of what "is" methods and procedures apepars in the Jabara case. The government admitted that the NSA had intercepted Jabara's communication without a warrant, and that information was ruled admissible at trial. The Court (in 1982) disclosed that the NSA was acquiring the contents of domestic communications without a warrant. One can infer that disclosing the fact of interception, and in this case, a summary of the intercepted communications (presumably not encoded), does not constitute disclosure of a method or procedure.

The case that spawned the act, where Chicago Trib published Jap ship orders, thereby giving away that the US has cracked Jap code, is an example of a story that would constitute disclosure of classified method or procedure.

1975 Hearings before the Senate Select Committee suggest other types of information to be in the nature of methods, that being "watchlists," or "keyword lists." But the general capability of being able to snoop is acknowledged. The debate here was over policy, not capability.

Payne v. NSA is another case where plaintiff seeks cyrptological information, information that would disclose whether his communications were acquired, and he also sought Iranian and Libyan messages. Duh!

AT&T Michigan (Lisa Bruno) filed a motion relating to a decision of the Public Utilities Commission, so it's not "law," to appeal a decision to let a case continue on the issue of giving (selling is more accurate) call records to the NSA. In this case, the government (and AT&T) is arguing that the very existence of the program cannot be admitted or denied, because to do so would disclose a method (common carrier providing full subscriber data to the government). This case asserts that AT&T is misleading customers when it asserts privacy protection.

Similar results (successful application of "state secrets" to data-mining operation) were obtained by Judge Walker in the Hepting case (Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal.)) and Judge Kennelly in the Terkel (Terkel & ACLU of Illinois v. AT&T Corp. 441 F. Supp. 2d 899 (N.D. Ill. 2006)) cases (I have not read those - just taking citations from Lisa Bruno's AT&T motion in the Michigan PUC case). See also ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006)

But note, in the context of the al Masri case (E.D. Va. 3:06-cv-00672-VRW), this statement ...

Plaintiff's argument that government officials' public affirmation of the existence of a rendition program undercuts the claim of privilege misses the critical distinction between a general admission that a rendition program exists, and the admission or denial of the specific facts at issue in this case. A general admission provides no details as to the means and methods ...

In these dismissed cases, plaintiff is seeking a SPECIFIC admission or disclosure, not a general one.

In US v. ANNE MILGRAM (Acting AG of NJ) (Dist. NJ -Civil Action No. 06-2683 (FLW)), Ms. Milgram argues that 798(a) doesn't apply to call lists, because a call list doesn't constitute interception of communications. I note that this argument can be completely undercut by an assertion of state secret.

DOD Information Security Program at "Security Controls on the Dissemination of Intelligence Information" (about 3/4th of the way through) includes some material that differentiates between "information" and "sources and methods" See, in particular, the discussion about above and below the tear line.

Maybe more later .. I want to post this before this browser crashes.

cboldt

Disclosing the contents of a specific communication may very well disclose the technical aspects behind capturing that specific communication, that's what a.4 is about. See the Chicago Trib publication of Jap ship movements, signaling the cracking of code.

Or a case not involving cryptography, where what is intercepted may be of people who thought they were talking in private, e.g., foreign diplomats in an embassy building.

I'm not going to argue with you over whether or not the NYT publication is covered by 793.a.3. I think it's not, and I've explained why I think it's not. You are free to come to the opposite conclusion by whatever means suit you.

RichatUF

SlimGuy-

In fact Deep Modem had such detailed disclosure that the Kos Kids set up a whole "action team" to work on validation of the clues provided by the poster

I took a peek at the link you provided. The lay out is somewhat confusing. So there is an individual or group that the "action team" has dubbed "deep modem" and one of the revelations is that the government could create (or has created) a database that vacuums up all data. I liked the comparison to a DHS version of "Google". This program is centered in the NSC (not the NSA) and that it would collect data on all Americans.

I didn't dig too deeply into the links because the table that was linked only seemed to link back to other diaries and I didn't want to scrub for the few interesting comments. However their datamining efforts could end up exposing the individual or group especially since they have all the posts this guy did in a central location and are talking of making this into a wiki- (don't how useful that would be in this case anyway, too much opportunity to inject noise at too many data points).[is that irony...datamining on a datamining program- have we reached strange days yet or are we slouching towards Minority Report]

This in a lot of ways has an "Able Danger" story feel to it (or LIWA)...A great idea but then you end up with thousands of names organized in charts 4ft*20ft covered with links and names in 8 point. It also has the feel that Echelon and Carnivore [Clinton era programs] had when they started making the rounds.

Anyway I was looking up Thomas Tamm and "Able Danger" and any other derivations I can think of and will post what I find.

RichatUF

Cecil-

...such, the hypertechnical stuff wouldn't do them as much good, because they have no ability to alter the actual code...

If the noise is about a datamining program it is probably the alograthims the computers are using to filter. Take the current leaks: the telephone survailence and SWIFT tracking-I can think of a few more datapoints but those two would probably be suffcient to crack a hawalader network. Cracking that network would have probably bagged the location of some intermediate and higher level al Qeada operators.

Think of the alograthim as a transfer function...you know the inputs (telephone calls and wire transfers) and the outputs indictments of fundraisers and captures of mid-to-high level operators...tracking down where the leaks (in the targeted network) would be pretty simple at that point.

All let everyone get back to the legal discussion...

Cecil Turner

I'm not going to argue with you over whether or not the NYT publication is covered by 793.a.3. I think it's not, and I've explained why I think it's not.

I think the case is likely unprovable for a different reason, so the disagreement is academic. The specific point of whether the government must prove "procedures and methods" were leaked, however, also goes to the prosecution of the leaker, which I think quite feasible. I think your reasoning is flawed, and find your proposed defense unpersuasive. Argue the point or don't, as you wish.

Harry MacD

Thanks, cboldt.

Rick Ballard

OT

Beauchamp Recants

Sometimes just a brief chat with a kind and understanding First Sergeant is all that is required for a trooper to straighten right up.

I wonder when the Top will get his boot back?

RichatUF

Haven't found anything linking Thomas Tamm and Able Danger but I've got a pack o'links for Able Danger...(have a degree of seperation)

sorry for the data dump

Able Providence

Abale Danger Hearings

Able Danger wiki-

Able Danger write up

Captain's Quarters search Able Danger OIPR

Able Danger blog

RichatUF

Tamm seems to have been in the Capital Case Unit of the Criminal Division (great place to put someone that wanted to eliminate the death penalty) in the relevant time frame of Able Danger...

Pofarmer

Who knew CREW was so concerned about Leaks?

In a July 31, 2007 interview with Fox News anchor Neil Cavuto, Rep. Boehner disclosed an aspect of a Federal Intelligence Surveillance Act (FISA) court’s decision regarding warrantless wiretapping, stating:

There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States.

By telling a reporter that a FISA court has restricted the U.S. intelligence community's surveillance of suspected terrorists overseas, Rep. Boehner appears to have transmitted information relating to the national defense in violation of 18 U.S.C. § 793(d).

Apparently the Libs didn't like having their underhandedness revealed.

RichatUF

All I needed to do was peek over at AJ's site. Anyway I am coming up empty on any direct link but my degrees of seperation are as follows:

Able Danger->Mark Garlasco->HRW->Equal Justice USA->Thomas Mann

Thomas Mann->OIPR->TSP->NYT leak

Neo

Gee, CREW thinks Rep. Boehner violated 18 U.S.C. § 793(d).

With logic like this the New York Times is toast.

RichatUF

CREW sprung on that pretty quickly, about a week, dropped the same day as this Newsweek piece...I question the timing

Flopping Aces Able Danger archive

The Minority Report

Neo

RichatUF: take a chill pill dude

I took a look at that "Deep Modem" stuff. It looks like the work of Ted Kazynski, the Unabomber.

We've been through the "Sealed vs. Sealed" crap from Jason Leopold, so I'm of the mind that let the Koz Kids figure out if there is any there there. I've seen enough bizaro logic from the leftosphere to know that they often dwell in a swamp of their own making.

RichatUF

Neo-

I have had way too much coffee this evening.

SlimGuy

RichatUF

Check the TPM link at my 5:28 post. Search for the poster in the comments with no name.

They are long and detailed and easy to spot.

All the Kos kid stuff is reporting and working on those posts data.

I guess the premise they are trying to put together is a massive program (similiar to TIA Total Information Awarness) may be out there compartmentalized up rather than one big piece.

The idea being is that contractors are taking raw data from the intercepts and mining the info to try to fill the dot connection gaps for usage in tactical ways, not court cases.

They are trying to prove it's all outside the realm of DOJ and maybe via the NSC.

TSP may have been just one piece of the consolidated pie.

Neo

in a July 31, 2007 interview with Fox News anchor Neil Cavuto, Rep. Boehner disclosed ...

Funny I recall reading about the FISA court stuff about a week earlier, at NRO I think.

I even commented on 29 July, two days before Rep. Boehner, on a number of blogs that ...
Currently, there are some FISA judges that consider any call that is routed through the US to be a "domestic" phone call, even if it is between two al Qeada members in the UK and Indonesia. So long as it passes through phone equipment in territorial USA, they consider it "domestic" and under the supervision of FISA.

Even AP seems to be spilling the beans on 30 July ...
The new plan, offered late last week by Director of National Intelligence Mike McConnell, would change the Foreign Intelligence Surveillance Act to allow surveillance without a warrant of terror suspects who are overseas. The Bush administration believes the FISA court now must approve such spying because many conversations and contacts taking place overseas are routed through U.S.-based communication carriers, satellites or Internet providers.

CREW, as usual, forgot to take their partisan hat off.

kubob

As to Tamm being Deep Modem, if the posts on Daily Khaos stop, then bingo we have a winner (FBI has PCs and probably knows every IP he can come out of). More interesting will be the links to Tamm (just as Wilson's links to McCarthy and the Francophile types). We need to know who he worked with in all stages of his career, who he went to college and law school with, who he associated with socially and politically. I'll bet some interesting names come out of that mix (Rockefeller?, Schumer?, Comey?, maybe Fitz?) This guy was the center of the DOJ leak machine, no wonder the Dems want Gonzales out of the way to scuttle this.

SlimGuy

Another thing the Kos Kids are trying to do is use the info provided to try to link together the AG Rove and somehow via 3rd party providers try to recover data via FOIA and whatever that we be beyond closely held stuff protectable under executive privilege.

SlimGuy

The posts were mainly at TPM.

The Kos kids only commented on them and are putting a team together to try to leverage the data provided there.

cboldt

Here's a fun reference .. A Scientology case from 1979.

Scientology v. NSA

Not only does the Boardman [NSA] statement fail to indicate even in the slightest How agency functions might be unveiled, but it also lacks so much as guarded specificity as to the "certain functions and activities" [FN65] that might be revealed.

FN65. See text Supra at note 59. In contrast, an affidavit supplied by the Central Intelligence Agency in Goland v. CIA, supra note 54, indicated that the substantive content of withheld information pertained to protected matters, and was sufficiently detailed to support their nondisclosure pursuant to Exemption 3:
(T)he deleted portions of the (requested document) contain detailed descriptions of (1) "intelligence collection and operational devices . . . still utilized"; (2) "methods of procurement and supply . . . unique to the Intelligence Community" which "are currently utilized"; (3) "basic concepts of intelligence methodology" of which "the essential elements remain viable"; (4) specific clandestine intelligence operations," including the "names (of) the foreign countries involved"; and (5) "certain intelligence methodologies of a friendly foreign government."

Here's a different one. NSA stuff starts on page 36. The DCI material preceding that may provide a parallel, but it's on a slightly different method of gathering intelligence.

Larson">https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc%3F2002cv1937-41+%22Communication+intelligence%22+procedures+methods&hl=en&ct=clnk&cd=223&gl=us&ie=UTF-8">Larson et al v. Department of State et al (Case No. 02-01937-PLF - DDC)

narciso

Mark Garlasco, is someone who surfaced as an ex DIA man connected to the strike against Saddam Hussein at Dora Farms. It
turns out the tip from DB/Rockstars the
Baathist agents contacted by the CIA were
bogus. He uses his DIA experience as street
cred for Human Rights Watch's more extravagant claims; re Israel during the
Lebanon War last year; re interrogation programs at Camp Numa, secret sites both
featured in Esquire/G.Q. profile of Capt. Fishback and the' mutiny on torture'. He
speculates on E. European, N. African
'ghost sites' No doubt run by Dep Dir, Noah
Vosen. Garlasco & others including Lt, Cmdr Swift, Maj. Mori,the Wallabie Wahhabi
David Hick's attorney et al have misread Geneva & statutory law again; in their missive on "American Patriots take on Gitmo" in this month Esquire, barely referencing exparte Milligan, Merryman, Qurin, Eisentrager, et al. AS AJ has pointed out; Tamm was head of the DOJ's Capital Division yet he took up the abolitionist creed with Equal justice. His part in revealing the TSP's many facets match the end of the aftermath of the investigation into Dhiren Bhirot's Kashmiri
based "Operation Crevice; prompted by a leak from Pakistani intelligence which appeared in the NY Times, right before the
Republican convention. one of those members; Mohammed Khan, would go on to bomb
the London Underground in July 2005; other
elements are tied to the Glasgow and London
plots in June, and maybe be part of another
cell active now in the States.

cboldt

How politics has gutted the terrorist surveillance program WSJ Opinion Journal: July 27, 2007

The piece discusses the judges, and the immunity issue.

RichatUF

Slimguy-

The Kos kids only commented on them and are putting a team together to try to leverage the data provided there.

I looked at the TPM thread and a few points. Neo has it right-that stuff reads from the Paranoid Style pretty well (sorry I was so charged up earlier, but some of those posts really have a NWO edge to them). Second comment would be: those posts seem to be clips from a converted document (especially with the misplaced underscores and funky puncuations). Third, that thread seemed too mechanical-like everyone in the thread was in on it (someone worked from a document and others were fed the leading questions earlier).

This is starting to have a "Downing Street Memo" or "TANG memos" feel to it, but I'll take a look at the comments carefully

Neo
I took a look at that "Deep Modem" stuff. It looks like the work of Ted Kazynski, the Unabomber.

Actually, Ted Kazynski, unlike "Deep Modem", was able to spell.

SlimGuy

All I was trying to bring attention to with it is that Kos and Co are running with the ball and unless they prove it bogus it could flare up.

Even commentors on Kos are saying it might be a setup to get them wacked by jumping in.

But still there are some interesting points made in Deep Modem's comments.

RichatUF

SlimGuy-

I think we might be seeing in the near future another Niger Forgery Operation. Lots of stuff in those comments at TPM look like appetizers for one hell of a show.

PeterUK

"but those two would probably be suffcient to crack a hawalader network."

If this refers to hawala/hundi money transfers,this is precisely where we are getting it wrong.The hundi works much in the same way as letters of credit,A is given a letter of credit by B,A presents this to C in another country and receives money.The actual transfers of money are totally separate from A and can be completely legitimate.
The system predates technology by centuries,it depends on trust,family and tribal loyalties,it should be noted that A is simply a customer,thus a hundi is the ideal cutout.

anduril

Andy McCarthy has some excellent reflections on FISA this morning--and when you get down to it, that's what this is all about. Here's the link and a few excerpts:

FISA: Don’t Mend It, End It

We should be horrified by this crisis because of what caused it: FISA and judges.

We should be equally affronted by the hypocrisy of congressional Democrats and the leftwing commentariat. It’s not national security or the “rule of law” they care about. It’s politics — plain, simple, and brass-knuckled...

...FISA ... purports in certain instances to require the chief executive — the only elected official in the United States responsible for protecting our nation from foreign threats — to seek permission from a federal judge before monitoring international enemy communications into or out of the United States.

But the president, at least, had ... a trump card. We call it the American Constitution. It empowers the chief executive to conduct warrantless surveillance of foreign threats. Even the FISA Court of Review, the highest, most specialized judicial tribunal ever to consider FISA, has acknowledged this. ...

The president’s constitutional authority is inviolable — it cannot be reduced by mere legislation. When Congress passes a statute, like FISA, that purports to reduce the president’s constitutional authority, it is Congress, not the president, that is trampling the rule of law. A
president who ignores such a statute is not a law-breaker; he is a defender of the highest law. He is executing the responsibility vested in his office by the Framers who, as Alexander Hamilton observed in The Federalist No. 73, worried deeply about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.”

cboldt

Quoting McCarthy ...

But let's leave that aside for a moment. Whether you agree or disagree with what I just argued, it is incontestable that, under our Constitution, the president has a role -- a plenary role, according to the Supreme Court -- in the gathering of intelligence against foreign entities for national-security purposes.

The courts, to the contrary, have no such role.

FISA is a relatively new statute. Before FISA, there was Court activity drawing lines between evidence gathered within the president's "plenary authority," and evidence that was gathered in violation of the fourth amendment. I'm not saying one will agree with the Court's decisions, but it's beyond argument that the Court was engaged in line drawing in this area.

The Keith case is a prime example. Some evidence was admitted, some evidence was precluded.

I'm not against repeal of FISA, but there are some rarely discussed tradeoffs in doing so.

The people who argue FISA tracks the exact boundary of constitutional authority are wrong, and I reject the argument that surveillance outside of FISA represents an unconstitutional exercise of presidential power. In the FISA context, it's lazy and wrong to reach "illegal" and conclude the president has exceeded his constitutional authority.

Summary of Keith case with link to summary of Truong case.

clarice

Anduril, It has been something to watch, hasn't it? Anyone who claims with a straight face that the Dems can be trusted with national defense is a better actor than I.

cboldt

Carrying the thought in the other direction, the fact that a statute authorizes a (government) activity does not mean that government activity will be found constitutional.

See the presently pending DC gun law case, for example.

See also, for overreaching of presidential authority, Steel Seizure and ex parte Merryman.

The general proposition being that checks and balances necessarily implies participation by more than one branch of government - and absence of FISA does not mean absence of second guessing of presidential action.

Cecil Turner

I'm not saying one will agree with the Court's decisions, but it's beyond argument that the Court was engaged in line drawing in this area.

I'm not sure that contradicts McCarthy's point. Seems to me that line-drawing was an attempt to delineate what was admissible in court . . . and indirectly the boundaries of the President's (and Congressional) authority in foreign intelligence. That's distinct from a role in the actual surveillance itself (e.g., warrants), which appears to be an entirely FISA-created monster.

anduril

cboldt, I'm not entirely sure of your intended meaning in your last two posts--which is to say, I'm not entirely sure as to your entire intended meaning. I believe I'm in agreement with your "general proposition":

...checks and balances necessarily implies participation by more than one branch of government - and absence of FISA does not mean absence of second guessing of presidential action.

The legislative branch always has its legitimate oversight role, but a fine line comes up when purported oversight masks an attempt to tie the executive's hands with regard to constitutionally mandated responsibilities--or as McCarthy seems to argue, "to absorb some of the powers" of other branches. Collusion between two or even three of the constitutional branches wouldn't change the irregularity of the situation. That, I think, is the nub of the anti-FISA arguments.

When you write:

The people who argue FISA tracks the exact boundary of constitutional authority are wrong, and I reject the argument that surveillance outside of FISA represents an unconstitutional exercise of presidential power. In the FISA context, it's lazy and wrong to reach "illegal" and conclude the president has exceeded his constitutional authority.

I believe I'm again in general agreement with your position. However, there is the difficulty of exactly what "illegal" means in the situation you refer to, in which the executive is exercising a mandated constitutional responsibility. For example, in the exercise of its legitimate oversight duties the legislative branch might pass a law that requires that certain records or documentation be maintained with regard to all wiretaps. That statutory requirement certainly impacts the executive's constitutional responsibilities, yet doesn't appear to "absorb" the executive's powers. One can then spend endless hours arguing just how far the legislative branch can go in this regard and what the executive's responsibilities are with regard to such laws.

The anti-FISA contention appears to me to maintain that the legislative branch has, if not "absorbed" the executive's powers, at least infringed upon the executive's powers (or rendered them less than "plenary") by requiring that the executive obtain the approval of a third branch (judicial) prior to the exercise of his powers: this arguably goes well beyond oversight. (I won't attempt to address the actual constitutional status of the FISC; more than one commentator has questioned whether the FISC is actually a Article III court as envisioned by the Constitution. If that is the case, the situation becomes even more complicated, although no less irregular.) So the question of "illegality" takes on a rather different complexion in this instance, than in the first.

I give full credit to the Keith court for farsightedness as to the possible complications that they envisioned. However, there is also a fuzziness to the court's language:

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. ...

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents. 20 Nor does our decision rest on the language of 2511 (3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security.

The obvious complication, which may not have been as clear back then as it certainly is today (although Congress clearly does not want anyone thinking along these lines), is: what happens when the "agents" of the foreign power (which may include both governments as well as terrorist organizations) are US Persons and/or US citizens. The distinction between the purely "domestic aspects of national security" and "activities of foreign powers or their agents" loses much of its "bright line" quality in current conditions.

And then we get into concepts like expectations of privacy, and so forth. Yikes. Or rather: Yikes!

clarice

I agree, Cecil. I heard a report last week that when we had three of our soldiers captured in Iraq , we picked up traffic apparently about them but because it had been routed thru the US, the rules were we could not share that with the military on the ground because we had no warrant to eavesdrop. If so, that's preposterous.

In WWII the Pres maintained that the executive had the power to (and did) read any correspondence to the US from abroad. I think that is not a bad idea..what can be used in Court, I acknowledge , is a different thing, but not the interception of the communication.

cathyf

I kind of curious about something... Back in 1862, I'm pretty sure that a Union spy could sneak behind Confederate lines, into a Confederate camp, and skulk around under cover of darkness eavesdropping next to a Confederate general's tent -- all without any sort of warrant. Even though that war was fought entirely on land which the US claimed as domestic territory.

If a state or group of states were to secede from the Union tomorrow and started a civil war, would it be illegal to spy on the secessionists without FISA warrants?

cboldt

-- there is the difficulty of exactly what "illegal" means in the situation you refer to --

I'm trying to point to actions that are outside of FISA (and used "illegal" in scare quotes to represent that) yet are properly, and as you say, perhaps a DUTY of the executive to undertake. I don't take "illegal" to be the equivalent of "forbidden" or "unconstitutional," but as a technical conclusion as "outside of the statutory framework." E.g., Clinton's "illegal" warrantless physical search of Ames' house.

I agree with your hint that "foreign intelligence information" doesn't necessarily mean "emanating or involving activity on foreign soil." I've long held that purely domestic surveillance is required in order to prevent terrorist attacks in this country.

Getting away from the plenary power of the executive to obtain foreign intelligence information (wherever he finds it), the reasonable expectation of privacy is not something any person has control over anyway. The reasonable expectation is not the subjective sense of the target of surveillance - it's what the government (combination of court, executive and legislature) decides is reasonable considering the fact pattern.

cboldt

-- I'm not sure that contradicts McCarthy's point. --

It wasn't meant to. McCarthy was talking about the president's plenary role in gathering foreign intelligence information. I was just pointing out that "that" isn't the end of it, and putting a tiny bit of example to what follows the gathering.

cboldt

But one might wonder (I do), if this power is plenary and does not depend on a statute in order to be enabled, how is that the FISA modification went from being an unimportant issue in December 2005 (unimportant in that the president is acting within his rightful power, even if that is outside of FISA), to HOT in April/June 2007?

Submission of the program to the FISA Court in January this year was conditional on FISA being responsive, etc. If the conditions cease to obtain, then pull out of the arrangement, on the grounds that it hampers a legitimate executive function.

There's good reason not to, and it's the same general reason that made the FISA statute a reasonable prospect in the first place. Government action is more predictable, and is legitimized when multiple branches sing in harmony.

cboldt

-- In WWII the Pres maintained that the executive had the power to (and did) read any correspondence to the US from abroad. --

And from the US to abroad. The US mail censorship program of WWII was publicly announced.

Ranger

Well, anyone interested in understanding why the administration has tried to avoid the FISA court should read this case: http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf>In re: Sealed Case No. 02-001

The FISA court of review essentially found that the FISA court had taken it upon themselves to fill the roles of the legislative and executive branches as well as the judiciary in regards to national security investigations. This included

a) creating ad hoc levels of judicial review that were prohibited by FISA

b) ignoring changes to FISA enacted by congress which the FISA court found objectionable

c) engaged in judicual management of clearly executive branch activities

The judges also clearly warned that if anyone attempted to impliment the criminal sections of FISA against people operating with presidential authority for their actions, FISA would have to be considered unconstitutional.

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

I wouldn't trust the FISA court either given their track record in this area.

anduril

-- I don't take "illegal" to be the equivalent of "forbidden" or "unconstitutional," but as a technical conclusion as "outside of the statutory framework." --

When a statute has criminal provisions I take that as "forbidden." For the rest, I find your most recent post to be unrealistic as to the possibility, let alone the likelihood, of 1) inter branch harmony, and 2) timely and reasonable legislation (or repeal/amendment of legislation) that applies to and even empowers another branch. "Enabling legislation" for constitutional powers? I suppose so, in the sense that Congress could refuse to appropriate funds for the national defense--leaving us, in practical effect, without the constitutionally mandated office of commander in chief! That enabling concept is one you want to be careful with.

clarice and cathyf, your comments illustrate, I think, the real problems of applying fourth amendment jurisprudence (as it has historically developed) to national security. While there have been periodic national security crises which have involved pretty extreme measures (imprisonment and loss of property for ethnic Japanese citizens in California, but not for those on the front lines in Hawaii), it seems to me that fourth amendment jurisprudence has developed largely in a national security vacuum.

boris

multiple branches sing in harmony

Kumbaya milord Kumbaya

Sorta defeats the constituional intent that the executive be relatively unencumbered in defense of the nation.

As it works out congress can be leveraged into writing a constitutional power into law but the damage is that law ages badly in this area. As written FISA already constrained exec surveillance far more than the original intended. What may (unlikely IMO) have been constitutional in the 70s has become unconstitutional through technology and by interpretation.

Giving the other branches a rubber stamp and instructing them to apply it except in emergency, invites busybody oversight that considers just about anything they don't like an emergency. Hence any understanding that meets the needs of the branches today becomes a weapon in the hands of unaccountable "idealist" dissenters tomorrow.

cboldt

-- When a statute has criminal provisions I take that as "forbidden." --

Pardon me for using the wrong word while expounding on the gap between FISA and constitutional action.

In fact, pardon me for expounding.

boris

fourth amendment jurisprudence has developed largely in a national security vacuum

Emanations and Penumbras are just easier to perceive without the distractions that fighting wars tend to provide.

boris

In fact, pardon me for expounding

Gladly. In fact your expoundifications are most welcome.

anduril

cboldt, no one needs pardon in this discussion. your comments regarding the desirability and even necessity of inter branch cooperation were well taken. my problem is that when one branch uses a statute to criminalize the constitutional behavior of another branch, that sets the stage for endless wrangling to the detriment of both the public weal as well as the constitutional order. it was, humanly speaking, inevitable that FISA would evolve (and i'm trying to be very charitable here) from a measure to restrain the intelligence agencies to a politically motivated guillotine for use on presidents of the opposite party to the majority in congress.

as for the "wrong word," i thought my example did justice to your intended distinction--it's clear by now that congress's oversight responsibilities (including legislative responsibilities) extend to national security matters. it's just that FISA is a rather different ball of wax than almost anything else we've seen.

Neo

interesting piece on federal “shield-law” legislation.

Will the MSM opt-out ?

cboldt

From my point of view, FISA has done "okay" over the years, and the recent exchanges between the FISA Court, the president and Congress resemble more "harmony" than "disharmony," particularly if one holds that the president is the one who should set the tune. At this point, he's the one who is demanding the legislation, and he's getting what he's demanded.

If national security legislation or part of it is intolerable, Presidents have been known to, and should thumb their nose at it. Legislation that hampers executive function is per se an unconstitutional infringement.

As I said, "I'm not against repeal of FISA, but there are some rarely discussed tradeoffs in doing so."

anduril

I certainly agree that there are trade offs--one of which is of a president "going it alone." Feel free to discuss others. However, the criminal provisions were unwise--other laws for real damages would have sufficed.

Having had first hand experience in this field, I don't view FISA as a success or even "okay," even in a strictly pragmatic sense. The perception that it's an acceptable solution is, IMO, the result of the sausage making being hidden from view.

Cecil Turner

At this point, he's the one who is demanding the legislation, and he's getting what he's demanded.

"This point," if reports are correct, being after the FISA court made a perfectly stupid ruling that domestic switches triggered the FISA warrant requirement for overseas phone calls:

WASHINGTON — A special court that has routinely approved eavesdropping operations has put new restrictions on the ability of U.S. spy agencies to intercept e-mails and telephone calls of suspected terrorists overseas, U.S. officials said Wednesday. [. . .]
But other officials said the ruling's reach was broader, affecting cases "where one end is foreign and you don't know where the other is" — meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.
This is utterly ridiculous, and obviously not what an Executive fighting a war would like to see. Perhaps the process is working out to an eventual set of rules the Executive can live with, but obviously it'd be far more effective in the current conflict to return to a secret program with consultations instead of public debate that blew its cover.

If national security legislation or part of it is intolerable, Presidents have been known to, and should thumb their nose at it.

The problem with doing that in a program that requires secrecy is that it inspires leak wars. As has been the case in this instance.

cboldt

-- I certainly agree that there are trade offs--one of which is of a president "going it alone." --

I was thinking of process and case outcome trade-offs when comparing "president going it alone" vs. "president not going it alone."

I don't use the phrases "case outcome" or "process" as necessarily involving engagement a court.

In addition to trade offs that affect a given case, I sense additional trade offs relating to public perception and maybe a political (vote) decisions at the margins.

The time before FISA is a gauge of "president going it alone." That worked "okay" too.

You raise an interesting point about the criminal penalties. I wonder why President Bush doesn't push to have that part repealed. Or even to repeal the thing lock stock and barrel, if it is an unacceptable solution.

cboldt

-- The problem with doing that in a program that requires secrecy is that it inspires leak wars. --

Even absent a statute, there will be some smart ass who's read the Constitution and fourth amendment jurisprudence. I'm sure there were "leak wars" before FISA came about.

cboldt

-- if reports are correct, being after the FISA court made a perfectly stupid ruling that domestic switches triggered the FISA warrant requirement --

If other reports are correct, that (or another) FISA judge said section 1801(f)(2) of the statute was stupid, and recommended it be changed.

Neo

Currently, there are some FISA judges that consider any call that is routed through the US to be a "domestic" phone call, even if it is between two al Qeada members in the UK and Indonesia. So long as it passes through phone equipment in territorial USA, they consider it "domestic" and under the supervision of FISA.

Important to note that that this is some FISA judges, but of course this makes the draw of the judge, the determining factors with regard to legality.

boris

Even some judges apparently get that judges are not the proper judge of national security judgements. From a 1948 Chicago & Southern Air Lines decision ...

The very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry

Even though I have posted virtually the same point on several occasions, it just seems to carry more wieght coming from a judge. Actually I think that's part of the problem here.

boris

I'm sure there were "leak wars" before FISA came about

FISA acts like a license to leak for those so inclined. Like posted rules for tattle talers.

Ranger

That elements of FISA are useful to the executive branch can be seen in http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf>In re: Sealed Case No. 02-001 where the administration argued that the warrant provisions were constitutionally sufficient (the ACLU argued that FISA was unconstitutional because the warrant provisions fell well short of fourth ammendment requirments).

If the administration had wanted to kill FISA they could have joined in the ACLU's arguments and tried to have the statute invalidated. They chose not to because FISA gives the executive branch a way to take information gathered in Foreign Inteligence investigations in criminal prosecutions.

Where FISA fails constitutional muster is where it claims to be the "exclusive means" of engaging in FIS. Congress simply does not have the constitutional authority to establish "exclusive means" for the presidents to exersice their constitutional powers.

anduril

You're certainly correct, Ranger, that the executive is playing politics with FISA, too. I would say, however, that his motives are to get the national security job done--Congress's motives are not so clearly positive. A far less honorable example of Bush playing politics with constitutional issues was McCain - Feingold.

cathyf

Thinking further about my Civil War espionage question... Twenty years after the Founders wrote the Constitution, the US was invaded by England. Most of the Founders were still alive when the British burned Washington, besieged Baltimore, etc. Would any of those founders have believed that it was Constitutionally allowable for Congress to force President Madison to get a warrant from a judge each time the army or navy wanted to spy on the British troops who were waging war on the US in US territory?

Am I missing something, or is it really the case that Congress simply assumes that the US cannot be invaded, and that when the US fights a war, it is always in some other country's sovereign territory?

cboldt

-- FISA gives the executive branch a way to take information gathered in Foreign Inteligence investigations in criminal prosecutions. --

That existed before FISA. See Keith and Truong cases.

FISA was, in a way, an attempt to codify court decisions. And ironically, many of the provisions in court cases that came back to "hamstring" the executive were taken directly from arguments made by the executive. I'm thinking particularly of the "primary purpose" phrase. That was the argument of the administration at the time.

boris

The administration isn't doint what I would call "playing politics" with FISA. The judge in the Sealed Case set out an interpretation and advice how FISA should be used. FISA was not constraint on national security surveillance (because that would not be constitutional) but provided a constitutional mechanism to acquire intelligence that could be used as admissable evidence for criminal prosecution.

A trade off IOW. Follow FISA if executive wishes to take advantage of the criminal justice system and employ its capablilties in the service of national defense. But to bypass FISA simply gives up that assured cooperation.

Tha administration followed that "advice" pretty much to the letter and was justified in doing so IMO.

Cecil Turner

Important to note that that this is some FISA judges, but of course this makes the draw of the judge, the determining factors with regard to legality.

Of course, if you repeat the procedure often enough, the view of the most restrictive judge will govern. Again, this process is clearly inimical to warfighting, (as is the recent practice ~shudder~ of deploying lawyers to make targeting decisions). And I don't really care whether you want to blame the stupid law, the judge who doesn't apply common sense on intent, or the President for acquiescing on the process it in the first place. If we were serious about winning, we wouldn't be doing it this way.

FISA was, in a way, an attempt to codify court decisions.

Yes, and the evidentiary issues are not the real problem. The main problem is that it was a peacetime approach to a wartime issue . . . and it's failing the first wartime test.

(The secondary problem is that it didn't foresee the technological changes--especially having packets routed through US switches--which invalidated the domestic vs overseas intercept rules.)

Ranger

Cboldt,

This is true, but the lack of a formal FIS warrant system made getting evidence admitted problematic. The FIS warrants make it much easier to get FIS materials into court. The problem with FISA is not that it created such proceedurs, but that it claims those proceedurs are the exclusive means by which FIS can be conducted within the US.

boris

[FISA] provided a constitutional mechanism to acquire intelligence that could be used as admissable evidence for criminal prosecution ...

[Meant to add] ... aside from and in addition to the regular criminal justice mechanisms for doing so.

anduril

Ranger, once again I agree with you: there's more than one way to skin a cat. FISA picked a particularly bad way to skin that cat.

Cecil and cboldt, I very much disagree with the idea that FISA was an attempt to codify court decisions--the reality is far different. FISA was the product of the Church Committee hearings that essentially sought to portray the intelligence community as a sinister, out of control enemy of average citizens--with a possibly totalitarian agenda to advance. The purpose of FISA was to shackle intelligence gathering agencies, to attempt to minimize the use of advanced and highly reliable techniques. As far as I'm concerned, you can lay 9/11 right at the FISA doorstep. A big problem perception wise is that the problems that FISA causes come to public view only in the case of spectacular failures--and are quickly covered up, as with the 9/11 commission.

Extraneus

Am I missing something, or is it really the case that Congress simply assumes that the US cannot be invaded, and that when the US fights a war, it is always in some other country's sovereign territory?

Ok, that's the second time cathyf has recently illustrated the absurdity of this bds-inspired discussion. Taking her points further, if the U.S. were invaded by a foreign power, the President would have the authority -- and responsibility -- to incinerate homes or entire communities with whatever weapons he decided were necessary, killing however many citizens were killed in the process, in order to protect the rest of us. Yet we're arguing about whether he could listen to the phone-calls which might be routed through the U.S., even those originating from those houses? It's just bizarre and silly. If we don't want a certain President to have this power, then we shouldn't elect him or her.

Extraneus

(No offense to the other posters here, by the way. I appreciate the learned comments of cbolt, anduril, clarice, Cecil and others. It just strikes me as nuts to even think of limiting the executive power in the way that's intended by one side of this debate.)

anduril

cathyf, I would up your ante somewhat and suggest that Congress also assumes that anyone who comes to the US is ipso facto in love with the American way--or, if they're not totally enthralled with it their problems can be solved by a bit of pandering. I suspect that there really are those who see no reason whatsoever for domestic security, let alone national security--the supposed need for national security arising only from the foreign policy mistakes of Republicans who want to squeeze every last available dollar out of starving third worlders.

Neo

DOJ thoughts on prosecuting reporters and federal “shield-law” legislation

Neo

one lawsuit, one lawyer

With all due respect, our role is to protect the judicial process, not to subvert it

JM Hanes

SlimGuy/RichatUF et al

I puttered around over at TPM checking out the Mystery Pollster, whose posts do seem oddly structured for conversational purposes on the web. Regardless of the posters specific identity, I suspect that it's someone either at CREW or associated with it in some fashion.

Although he/she (originally?) posted early on in response to TPM's DoJ Responds to Senate Subpoena, a much later thread (after he apparently started to become a cause célèbre) contains what may be an inadvertantly revealing three message exchange, starting at July 30, 2007 10:49 PM. He certainly appears to acknowledge having posted, in similarly anonymous fashion, on a CREW blog thread, in June.

I was struck by the (unusual) initial disclaimer, contained within the body of the comment there. In contrast, all the anonymous comments on this recent thread are posted without preface. It's the kind of disclaimer you'd typically find when folks from a sponsoring organization post opinions as individuals in their own venues. Some such relationship -- or association -- might easily be a compelling reason for anonymity elsewhere as well.

I tend to think Mystery Poster is probably working with, rather than for, CREW, because he/she linked to a cached version of the CREW page with a tiny-style URL, apparently assuming that the original page had been "removed/truncated" when, in fact, it hadn't.

On the Mystery Poster's fan page at TPM, I also thought this comment from the Groupie in Charge was intriguing. Is "Deep Modem" playing Scout Master, or has he found a place to store his own extended Notes to Self -- at an off site location which is still easily accessible, though conceivably difficult to dig up with the usual finding tools?

OTOH, it could always just be a fellow obsessive, and at this point, I must admit that I'm mostly left wondering where the rest of my day went...

JM Hanes

Shoot, forgot to paste in the Crew blog thread URL.

JM Hanes

Oh crap. Left out the URL for DoJ Responds to Senate Subpoena too. I now know why the day just disappeared, though.

Cecil Turner

DOJ thoughts on prosecuting reporters and federal “shield-law” legislation

That first link was interesting, and made many of the same points as above. I liked this bit, which shows some common sense remains at DOJ:

It bears emphasis that the Attorney General has made clear that the Justice Department's primary focus has been and will continue to be investigating and prosecuting leakers, not members of the press. The Department strongly believes that the best approach is to work cooperatively with journalists to persuade them not to publish classified information that can damage national security.

RichatUF

JM Hanes-

I got obsessive about "Able Danger" and Neo whacked me for...I looked at the clock at 3:00AM and wondered where the evening went. I posted my thoughts at 12:44, the thread looked like it was cliped from a converted PDF doc and the leading questions were curious. It was a good catch by Slimguy, because we might be seeing the groundwork for another fake document dump. What is it called astroturfing or viral marketing?)

and to be on topic...

-- if reports are correct, being after the FISA court made a perfectly stupid ruling that domestic switches triggered the FISA warrant requirement --

The telephone switching aspect is interesting, but another problem is the Public Root Servers, which would pose a problem with email and websites.

Another thing to look at would be the surveillance the FBI put in place on PLO assets and Abu Nidal assets in the 1980's. [I know that doesn't get to the heart of leaking classified information, but it might give a guide to what Mr. Tramm's problem might to be].

clarice

Don't miss Cecil's excellent article on FISA today.

http://www.americanthinker.com/2007/08/fisa_follies.html

Rick Ballard

Cecil's article is a very concise takedown of the dangerous basic idiocy of recent FISA court rulings while Clarice's article is a lengthy vivisection of Justice Breyer (including his clown act with Senator Specter). I was left wondering if Breyer actually wears size 19 shoes under thoses robes. Does he carry a big red ball nose in a hidden pocket and wear it during breaks?

Both pieces are worth the time - expecially if one considers the possibility that five idiot justices could uphold the decision of one idiot judge to block life saving surveillance.

clarice

Thanks, Rick. I suspect Breyer will not repeat this and anticipate a big chill in chambers when the Court resumes operations.

Jane

Cecil,

Great article - easy to read and understand! Kudos!

(And the same to Clarice, as always)

clarice

Thanks, Jane.

anduril

If you go to RCP you'll find a link to a fine article by Rivkin/Casey at the Latimes on FISA, and OpinionJournal has the WSJ editorial today on FISA. Both of these items explicitly discuss (briefly) the constitutional problem I was referring to yesterday with regard to Article III courts--just what kind of animal is the FISC, and does it really fit anywhere under the Constitution?

BTW, a close reading of FISA 1801(f) and (h) (particularly with regard to the distinction between wire and radio communications and the significance of minimization procedures) suggests to me that the ruling by one FISC judge that triggered the current crisis was, as some commentators have maintained, simply erroneous--which is, of course, part of the absurdity of the entire FISA regime: that in time of war our intelligence collection could slowly grind to a halt because of one judge's inability to understand the FISA.

boris

I imagine crime investigators would be very upset if some judge ruled that a warrant was needed for both ends of every domestic wiretap.

Invoking that kind of idiocy on national security can only be explained as BDS.

hit and run

OT, but Jane, how many debates are you planning on skipping? What're we at, 3 in a row now?

I'm not bitter. I've got a fever. And the only prescription is more Jane live-blogging cowbell.

Then again, even Geraghty didn't live-blog it. Claiming technical issues.

Reading between the lines...what Geraghty meant to say..."technically, who gives a [bleep]."

clarice

Camile Paglia whines "
By what national curse must we suffer another year of this? "calling this a "corrida by boredom".

Hey, I said it first albeit not so well.

RichatUF

Rick-
Both pieces are worth the time - expecially if one considers the possibility that five idiot justices could uphold the decision of one idiot judge to block life saving surveillance.

Here, here...I'm part of the Cecil and Clarice fan club. Both the articles are great

kim

The bull, in an agonal moment, is shitting.
==========================

Jane

H&R,

I swear I didn't even know about the last two. Sheesh - when is the next one? I'm dying to get back into the game!

Cecil Turner

Thanks, all.

. . . suggests to me that the ruling by one FISC judge that triggered the current crisis was, as some commentators have maintained, simply erroneous . . .

That's an interesting point . . . lacking any definitive information on the ruling, it's hard to tell, but that's certainly one aspect of the changing technology (and the definitions in FISA that don't map well). I think cboldt's point on that is also germane: the judge is constrained to apply the law, and they are on record as saying it's deficient. On a related note, I found this bit from the WSJ article interesting:

The judiciary also has power under the Fourth Amendment, which gives courts the ability to issue warrants. But nowhere does the Constitution empower our nation's judges to serve as foreign policy advisers or reviewers of intelligence policy. Judges have no particular expertise on intelligence, and in any case they are unaccountable to voters if their decisions are faulty. Recent news reports have suggested that several current FISA judges are uncomfortable with making such intelligence decisions, and rightly so.
I think that argument (basically the same as McCarthy's above), both from a Constitutional and practical standpoint, has some merit. Certainly if it were left in the hands of military authorities, they'd be inclined to work the defense problem first, and then cross the t's and dot the i's on the legal matters afterward. Obviously there is a tradeoff in civil liberties there, but I'd submit it's not compelling in the face of a clear danger to our citizens.

If there was any indication of using the process for nefarious or political purposes, that'd change. But since even the clearly-disaffected leakers have thus far not even alleged such misconduct . . .

RichatUF

anduril-

the ruling by one FISC judge that triggered the current crisis was, as some commentators have maintained, simply erroneous--which is, of course, part of the absurdity of the entire FISA regime: that in time of war our intelligence collection could slowly grind to a halt because of one judge's inability to understand the FISA

I was looking for an old editorial that discussed the founders take on war fighting power and gathering intelligence. I haven't yet found it, but I think I have an the nub of an idea some where. The FISA court is a relic of the Cold War and more importantly, the "strategic crime" thesis of the Clinton era War on Terror. This idea-that terrorism was a crime-and could be controlled and contained using courts and warrants is a major part of the problem still.

I have wondered if FISA was the major stumbling block in the 1998 East Africa Embassy bomings (because the surveillance was on a US citizen abroad, and when he retured to the US the surveillance of the EA cell was dropped)and if it (among the well known political factors) was also what eventually scotched the HAMAS/PIJ/al Qeada fund raising rings that were discovered and active in the late 1990's.

I am curious as to where this is all heading. A political paralysis in the face of crisis in which the only survivors are those who will to power. I can't believe that a judge sitting in an air conditioned office in Washington DC really believes that he (or she) is competent to make national security decisions on whom (or what type) of surveillance is necessary against specific targets, especially when these targets are in constant motion, cross national boundries, and use active denial methods. But then again, here we are.

RichatUF

Cecil-

If there was any indication of using the process for nefarious or political purposes, that'd change. But since even the clearly-disaffected leakers have thus far not even alleged such misconduct...

This is why I think the thread over at TPM that SlimGuy pointed out is so interesting, and what I think the next disinformation attack might come from. The tangled web would start with Delay using DHS assests to trackdown the Texas Democrats as they took off to Oklahoma and get turfed from there...I wouldn't be surprised if some doctored email begins showing up with various code words trying to show Rove et al were engaged in some nefarious conspiracy using NSC/NSA assets. I also wouldn't be surprised if some fake documents end up as "evidence" in the different state cases (mentioned in the TPM thread) that are before the courts (or they might already be in evidence).

All wild speculation on my part, but I've got a creeping doom feeling that things are going to get really bad, really fast.

clarice

Richard, I hope you're wrong, but if yousee any real signs of this let me know --It's a job for LieBlasters,Inc.

Since we've spent so much time on climate warming, posters might find interesting this piece on how organic farming contributes to global warming.

http://www.tcsdaily.com/article.aspx?id=071807J

Neo

This is rich. Larry Flynt's "morals investigator" claims that ..

"I have it on very, very good authority that major opposition research has already been conducted on Bill Clinton, and it's going to be a massive smear campaign against him," he says. A group of former intelligence officers, he says, is "going to try to cripple Hillary through Bill.".

This couldn't possibly be "crazy Larry" and his VIPS buddies .. no way.

Ranger

This couldn't possibly be "crazy Larry" and his VIPS buddies .. no way.

Posted by: Neo | August 08, 2007 at 02:15 PM

Why not? They are anti-war and Hillary voted for the war. It will be fun to see how the Clintonisti react when they are hit with a well co-ordinated Wilson type assault.

Extraneus

Couldn't the needs for intelligence and civil liberties be balanced by some sort of after-the-fact review of Executive branch activities, say by a political branch like Congress? Then, if the NSA is really spying on the President's domestic political enemies instead of on al-Quada & Co. [cough, cough], the President and associated offenders could be made to pay the price, as deserved.

cathyf

Extraneous, I have maintained all along that the problem with special prosecutors is but one aspect of a whole problem where Congress has repeatedly shirked their oversight responsibilities. So you name a special prosecutor (or more precisely, you arm-twist the AG to name one) -- and then you can't have a congressional investigation because it interferes with the special prosecutor's investigation. Or you have totally unserious oversight hearings, where you do things like accuse a cabinet officer of perjury because some bogus meaning that you project on the officer's words can't be proven true without revealing classified information.

Removing the special prosecutor excuse certainly helps, but it only allows, it does not require congress to carry out its oversight obligations with any seriousness or competence. This current crowd believes that it's hunky dory a-ok no problem to do anything at all that gets them political advantage, up to and including treason. I have no idea how we can restore congress to a state where they act with some sense of shame; some sense that there is anything at all which is beyond the pale.

Extraneus

No, they don't seem to be interested in actual oversight. Based on statements about briefings prior to the NSA dust-up, they were apparently already doing just what I suggested above without a peep of objection until the NYT article, after which they decided they'd get some political mileage by making believe there was some concern.

"3) Prepare to launch an independent investigation when it becomes clear we have exhausted the opportunity to usefully collaborate with the majority. We can pull the trigger on an independent investigation of the administration's use of intelligence at any time. But we can only do so once."

-- the Rockefeller memo

Anyway, I maintain my position that the President should have considered the American left an arm of al-Qaeda from day one.

anduril

Rich, your point is one which a number of people have been playing around with here--the effort to treat all problems in the life of the nation as amenable to legal solutions, criminal or civil. Yep, the founding fathers knew better and wrote a commander in chief into the constitution.

Your idea about the Embassy bombings is interesting, and makes my point from yesterday: we'll probably know the truth of it--absent a sensational leak. Despite the left's best efforts, 9/11 won't be forgotten, but how many people remember the Embassy bombings except professionals in the field? Absent a hue and cry, which isn't about to happen at this point, the details will remain hidden. Sadly, your surmise is entirely possible. It would be typical of the type of failures that FISA can cause but that never rise to public view. And, while your surmise can't be proven, it is a perfect illustration of the kinds of questions that most people don't even think to ask.

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