Breaking Stellar Wind

Newsweek tells us why Justice Department lawyers famously rebelled against a Bush surveillance program in early 2004:

Two knowledgeable sources tell NEWSWEEK that the clash erupted over a part of Bush's espionage program that had nothing to do with the wiretapping of individual suspects. Rather, Comey and others threatened to resign because of the vast and indiscriminate collection of communications data. These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's classified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)

That must be the call records program described by Leslie Cauley of USA Today back in May 2006.

Orin Kerr is intrigued but hardly surprised:

Back in 2005 to 2006, the press reported on two major warrantless surveillance programs. The first became known as the Terrorist Surveillance Program, and involved real-time wiretapping of the contents of telephone and Internet communications that happened to be routed through the U.S. even though at least one of the participants (and most often, both) were actually located outside the U.S. The second program was sometimes referred to as the NSA Call Records program, and it involved the disclosure of non-content "metadata" about calls and e-mails from U.S. service providers to the NSA.

...Back when we were assuming that the TSP was the real issue, my best guess was that Goldsmith had rejected the Article II theory for the TSP and instead was only willing to allow a narrower program under the rationale that the AUMF justified the program in narrower form. But if the Call Records program was the real issue, then it may be time to revise that a bit. 

Kevin Drum has heard it all before:

The metadata sweep has been part of this story almost since the beginning (see here and here, for example), and the New York Times reported last year that it was data mining of some sort that probably sparked the rebellion at DoJ and the showdown in John Ashcroft's hospital room. So this report isn't entirely new.

So it's over to Obama, who wooed the Nutroots by supporting the compromised Senator Dodd's quest to prevent the telecoms from gaining immunity under new FISA legislation before tacking back to the Fascist center on the final bill.

Comments

[Thomas Collins]

So, let me get this straight. The Federales, health care providers, banks and other businesses already have tons of data about Americans. But some folks are squeamish about mining data for patterns that could aid in preventing a nuclear or radiological bomb attack against the US. This is a joke, right? Please tell me Comey is putting us all on.

[Thomas Collins]

Continuing on my morning rant, the Federales cannot "meta-mine" data to attempt to prevent a terrorist attack, but they seem quite able to get warrants for no knock drug raids that all too often seem to target innocent folks, or to target folks whose narcotics activities are hardly the threat that Jihadistan is.

[section9]

No, it's not a joke. However, things have changed:

Zero is in power. Therefore, warrantless wiretapping and data suckage is good.

Never underestimate the ability of liberals to change their opinions of what is in front of their lying eyes once they have power.

[E. Nigma]

Isn't that politics?

No, that's statesmanship!

[Pofarmer]

Well, considering the whole data mining thing started under Clintoon.........

[bad]

Here's an idea that breaks wind, via Jim Geraghty.

During Meet the Press, there was a commercial for the NBC Nightly News with Brian Williams, promoting a report that will ask the question: "Should First Ladies Be Paid?"

I don't recall this question coming up in regard to Laura Bush.

[bgates]

Bad, let me rephrase: "How much is it worth to you to not have to listen to Michelle bitching about how tight money is for the next four years?" Besides, according to current Democratic thought, "to each according to their need", and Democrats need a lot.

[Cecil Turner]

Good grief. I know Newsweek isn't in the straight news business, but you'd think Klaidman would be embarassed to pin his name to such a baldfaced piece of leftist propaganda. The bottom line is ridiculous (i.e., "they stopped the President, but their hearts aren't pure"). The whiny tone and buzzword-laden prose (e.g., "darkly iconic" "ultraconservative" "stalwart Republican" "Orwellian invasion") is arguably worse. And the legal analysis was apparently too tough . . . so he just left that part out.

From a policy standpoint, there is a fairly obvious problem: government lawyers pursuing pet legal theories can effectively torpedo sensitive national defense programs . . . simply by threatening to reveal them. (And, similarly, bureaucrats with access can render them ineffective by leaking to the NY Times.) Dunno what the answer is, but being a "civil libertarian" appears to be inconsistent with protecting classified information. (Though maybe they can try to pin this one on the OVP as well.)

[kim]

What disturbs me is the timing of this revisionism. Who doubts that Obama will continue surveillance, and use it against domestic enemies?
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[Mike]

I'm afraid to click that 'fascist center' link. The URL has the words 'salon', 'olbermann', and 'greenwald' in it.

[sbwaters]

I'm afraid to click that 'fascist center' link. The URL has the words 'salon', 'olbermann', and 'greenwald' in it.

Er, Mike? [scribble] Speak into the flower on my lapel. ... How do you spell your name?

[clarice]

Doesn't it strike you as odd that the NYT' crack reporters Risen and Lichtblau never caught on (or at least never reported) their source didn't know WTF he was talking about.
Patteriso thinks Tamm (brave whistleblower or creepy partisan your choose) won't be prosecuted because DoJ is leaving the decision to the incoming administraton. Maybe we can change O's mind my running ads saying we're open to leaks and never worry about being charged with them..

[Rob Crawford]

"it involved the disclosure of non-content "metadata" about calls and e-mails from U.S. service providers to the NSA"

The equivalent of reading the envelope on a piece of mail. What's the scandal?

[Shannon Love]

The point of "Stellar Wind" was not to spy but rather to analyze the broad patterns in packet-based communications so that they could determine whether what constituted a suspicious pattern.

As a commenter above noted, this is the equivalent to reading addresses on envelopes as they pass through the post office sorter. People who claim that this constitutes "spying" on millions of Americans are flat out lying.

Obama and other Democrats are going to support this type of programs because they understand this programs are technical necessities for fighting wars in the internet age. Their previous opposition arose purely from cynical political self-interest.

[Annoying Old Guy]

Can someone explain to me how this is any different than ECHELON? Talk about being the third term of Clinton ...

[Richard Aubrey]

Since O will be doing the same thing, it would be prudent to prosecute Tamm. To provide an example.

[PapayaSF]

Echelon actually looked for keywords in message contents. By "non-content metadata" it sounds like they mean traffic analysis: e.g. US phone number X is getting calls from Afghanistan and making calls to Pakistan. And yes, that is like reading the address on the envelope without opening it.

[MayBee]

The Federales, health care providers, banks and other businesses already have tons of data about Americans.

And don't forget that Change.gov captures your IP data (and I'm sure, gives you cookies).
Obama's campaign put identifiers on their important emails that they sent out. Marc Ambinder posted one and when people at Ambinder's site clicked the links, the Obama team knew who it was that had distributed their missive.
And don't forget all the citizen's cel phone numbers they've captures.

That was all ground breaking and new for the campaign. Apparently it is only bad when information is captured to fight terrorism.

[Pofarmer]

People who claim that this constitutes "spying" on millions of Americans are flat out lying.

Hold on there. Liberals? Lying? Man, there's a new twist.

[Daddy]

Bad,

"During Meet the Press there was a commercial for NBC News with Brian Williams, promoting a report that will ask the question: "Should First Ladies Be Paid?"

Far as I'm concerned, some of them already are.

I've spent a decent amount of time in Dubai over the last 15 years. In the local newspaper for the Emirates paper (I forget the name) it always suprised me to find a regular column appearing in the paper authored by Hillary Clinton; innocuous, anti-conservative, "It Takes a Village" sort of stuff. I would have loved to have known how much she was paid for that gig, especially with revelations of Bill's later payoffs from those guys. I will keep my eyes peeled to see if Michelle Hussain Obama now steps in to fill the journalistic void left by Ms Hillary.

[JM Hanes]

Begging JOM's indulgence for not jumpstarting my own blog, it looks like the race for time on the Bush legacy front has commenced! By way of introduction, Jon Meacham leads off Newsweek's full court press with Michael Isikoff:

Those looking for a triumphant narrative of one man's crusade against the dark arts of the war on terror will, I think, be surprised by the complexities and ambiguities of the Tamm saga.

Oh, please. Isikoff's Tribute to Thomas Tamm came as close as you can get to hagiography when you're working with an anti-hero, Deep Throat wannabe without portfolio.

Dan Klaidman assists, per TM's link, with an Ode to Comey, in which Newsweek's Managing Editor "reveals the truth about the fabled 2004 Justice Department revolt against the White House" from Camera Angle #2. The fabulous legal eagles were revolted by "a massive domestic-spying program":

Because, Dan has learned, the lawyers were concerned about a little-understood element of the program that was mining the records of calls and e-mails of tens of millions of Americans between September 2001 and March 2004.

Apparently, Dan wasn't paying attention till he assigned himself this story. He doesn't mind tooting his own horn as he arrives four years late to the party, though:

This updated version of events helps explain exactly what motivated stalwart Republican lawyers like Comey to defy their Republican president.

I'm still waiting for an update that doesn't ignore the fact that Comey and Mueller "stood over Ashcroft's bed" doing exactly what Card and stalwart Republican lawyer Gonzales were doing. The nominal heroes of Klaidman's saga were trying to "coax their drugged and bleary colleague...sick and pain-racked from a rare pancretic disease" to rise up, "gathering what little strength he had" and do the guerillas' freedom fighters' bidding. Entire books have been written:

But a mystery remains: What did the Justice Department rebels object to, and what concessions did Bush make to appease them? What, precisely, was canceled?

In the revised Gospel according to Newsweek, they objected to "ultraconservative" John Yoo's opinion "on a mind-numbingly complex area of federal law" -- which legal layman Klaidman bravely translates as: "They just weren't willing to break the law." As for canceling the "massive data-collection program" in question:

It's unclear whether the administration has since found new legal justification to return to at least some of these activities.

It doesn't occur to Detective Dan that this might undercut the "legal justification" for revolt. Apparently, the applicable law remains "mind-numbingly complex." So do the recurring attempts to beatify the folks who really accomplished almost nothing they set out to do, at what one might characterize as massive cost to the body politic.

What's really most striking here is the nature of the descriptive, emotionally charged, language all three authors use in setting up these little morality plays, starting with Meacham's own ominously worded disclaimer. If they didn't have a tin ears for irony, they'd be embarassed by their own flagrant shaping of a narrative that is, in fact, simplicity itself.

Editor Meacham ends his Christmas message on a lighter note. Notwithstanding a Newsweek issue devoted to revisiting the past:

By any measure, the country is ready to turn the page on the last eight years, but at least we'll always have "Battlestar Galactica."

This is Battlestar's last season. Hopefully, Newsweek's too.

[JM Hanes]

In other words, what Cecil said.

[clarice]

The next person who tries to turn that prick Comey into a hero gets it between the eyes with my pistola.

Ask him fer Chrissakes, why he waited to the very day the program was set to expire and Ashcroft was hospitalized to voice his dainty objection?

[JM Hanes]

The only thing Klaidman got indisputably right was "a mystery remains."

[kim]

Years ago, Douglas Kmiec wrote a nice little article with the administration's point of view of this little scene. Wish I could find it again.
=============================

[JM Hanes]

kim:

I know a bleg when I see one!
Kmiec on Comey

[kim]

Much gracious.
==========

[andycanuck]

So, in other words, doing the same thing that every ISP in the country does without your consent other than when you signed the contract with them that said they'd do this in Paragraph 35 in 7-point type.

And it also doesn't mention that all of the MSM at the time gave the false impression that every single email sent by every single American was being read by the government.

[rob]

Spew the usual slop about liberals-this liberals-that, but you miss the point: did the Fed via the DoJ break the law? "Department of Justice" should mean something. If the laws suck, rewrite them, but don't just blatantly disregard them. No one with an understanding of the subject of data mining would cry about the NSA trying to catch terrorists. But hell, do it legally--and don't call anyone who opposes the Fed breaking the law an unpatriotic sympathizer. You should WANT your government to obey the law, regardless of how righteous you think their cause.

I suspect that most people who work for large organizations understand this, and also how convenient it is to side-step the red tape. Though in the case of prosecutions against our enemies, things like, oh I don't know--the Fed obtaining information illegally takes the teeth out of the rest of the process which is legitimate.

Grow up Republibots. I get tired of hearing your short-sighted whining.

[clarice]

I think the Kmiec article is right on point. Again, though, I;d add that Comey waited until the expiration date and Ashcroft's hospitalization to protest and if Gonzales was wrong to try to get Ashcroft to override Comey while Ashcroft was on leave because of illness, Comey was as wrong in fighting for his view in the same venue under the same circumstances.
Hystrionic prick.

[sophy]

I do not know how to use the flyff gold ; my friend tells me how to use.