Balkinization  

Thursday, May 17, 2007

What Was "The Program" Before Goldsmith and Comey?

Marty Lederman

"We're doing what?"

That's a quotation from the original Risen & Lichtblau New York Times article that broke the unlawful wiretapping story., attributed to "a senior government official [who] recalled that he was taken aback when he first learned of the operation."

What, indeed, was the nature of the "program" before Goldsmith, Comey and Ashcroft -- those notorious civil libertarian extremists -- called a halt to it, and threatened to resign if the President continued to break the law? And what was the nature and breadth of its legal justification? I am hardly alone in realizing that these are the most important questions arising from the recent Comey testimony. It's the question of the night, all over the Web. (When will the mainstream press catch on? And more importantly, as I asked in my last post -- When will the Congress insist on comprehensive and public hearings, both on this and on the legal support for the Administration's torture practices?)

Was it a full-bore data-mining program of some sort, akin to the TIA program that Congress had de-funded? (John Yoo suggests as much in his new book.) Something involving the FBI as well as the NSA (hence the central role of the FBI Director in the Comey narrative)? A program in which once a U.S. person was suspected of receiving a call from a suspected Al Qaeda individual, that U.S. person's calls were all monitored thereafter? These are among the theories receiving a good deal of speculation this evening. There's a lot of great stuff to read -- this is just the tip of the iceberg:

Glenn Greenwald.

Laura Rozen.

Orin Kerr.

Hilzoy.

Shayana Kadidal.

Paul Kiel, doing so much fine work over at the now-indispensible TPM Muckraker, including the publication of one reader's speculation.

Anonymous Liberal.

In that last post, A.L. wisely goes back to the Risen & Lichtblau story that started it all, which contains some important potential clues. Important excerpts from that December 2005 article:

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

* * * *

The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said. In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain.
As A.L. astutely notes, it is fair to assume that "there was no real guidance as to how far out to expand this 'chain.' As a result, a number of people were likely ensnared in this web who had nothing to do with al Qaeda and nothing even approaching reasonable grounds to be searched."

Comments:

Here are two theories:

1) Mueller is involved because the FBI gave national security letters (NSLs) to the phone companies demanding ALL of their records. This caused Comey and Ashcroft concern because it was like a "general warrant" (not for an individual but rather for all customers).

2) Comey and Ashcroft had problems with the phone companies giving the NSA access to all communications via splitters (see Mark Klein testimony in EFF case / Frontline documentary).

In "State of Denial" Bob Woodward says George Tenet approached the CEOs of the phone companies to make the deals. Is this the result of better communication among intelligence agencies. Were the NSA, FBI, and CIA ALL part of this?
 

[Prof. Lederman, from the post]: A program in which once a U.S. person was suspected of receiving a call from a suspected Al Qaeda individual, that U.S. person's calls were all monitored thereafter?

That's the differene between what FISA does not cover (the "target" is not a U.S. person, in which case anything goes), and what FISA covers (U.S. persons as targets, regardless of who they're calling or called by), for which a FISA court order is required by law.

Normal wiretap equipment required a "target specifier", a phone number or identifier (RADIUS username/login) to identify what's to be snooped and what is not. Without target specifiers, you'd get everything (illegal as well as nigh impossible to do physically).

The defenders of Dubya's spying keep saying; "Don't you want to us to listen in when al Qaeda calls?" The disingenuousness here is that when you're targeting foreign al Qaeda, you can tap away to your heart's content. It's only when you ask for all calls made from or to a U.S. person that FISA kicks in.

If what the maladministration was doing is targeting U.S. persons without a FISA court order, they wer breaking the law.

Cheers,
 

i have some more on this,
over at indictdickcheney,
as well. . . great stuff,
here!

"it seems great minds. . ."
and all that rot. . . he he!

just click my name to
access my collected speculation
on it all. . .

kind regards,
 

. . .If what the maladministration was doing is targeting U.S. persons without a FISA court order, they wer[e] breaking the law. . .

-- arne langsetmo


that is EXACTLY the conclusion
i just reached over at my blog,
too. . . excellent.
 

. . .If what the maladministration was doing is targeting U.S. persons without a FISA court order, they wer[e] breaking the law. . .


Think about this scenario. You dial a wrong number and it turns out the person on the other end really is a terrorist. You hang up and now all your calls are tapped. Illegal!
 

Armin Tamzarian:

Think about this scenario. You really are a terrorist who gets an order to initiate the next big 9/11 attack with the code phrase disguised to sound like a "wrong number" call. Better safe than sorry, I say.
 

After what we've learned these bozos were willing to do with the Justice Department -- poison the entire Federal Court system with political prosecutors and political trials, in order TO WIN ELECTION(s) - and kill the Cunningham and who-knows-what-other-Bushie-crony investigations -- I wouldn't doubt that (Rove) they desperately needed to continue (renew) the secret-wiretaps because they would need it during the lead-up to the 2004 ELECTION...
[Why not?]
 

Charles: Better to strip away liberties ourselves now than wait for the on-the-run losing terrorists to execute a Fall Weiss, take over our country, and take away the freedoms they hate so very much.

Edited for accuracy. Yet more "I-want-to-surrender-early" logic from the right wing.
 

PMS_Chicago:

You really think terrorists are calling random numbers in the U.S. as part of some grand, master plan? LOL
 

Professor Lederman:

Thank you for all of your work on this post in response to my previous argument that the NSA program does not appear to have substantially changed after the confrontation between Justice and the White House. I believe this quotation from the NYT summarizes what Justice gained in this confrontation:

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

It appears that Justice simply refined a preexisting checklist to make a determination of probable cause to conduct surveillance. As I posted before, the TSP - the continuous warrantless surveillance of captured al Qaeda telephone numbers with a data mining program which you believe to be illegal - appears to remain unchanged.

Under these circumstances, the "probable cause" required under this Justice checklist is probably a shell of that normally required by the 4th Amendment. There does not appear to be evidence that the user of a surveilled number has committed any particular crime. Rather, the simple fact that the number was in possession of al Qaeda appears to be enough. This would normally qualify as a reasonable suspicion and not rise to traditional probable cause.

There was some speculation that the NSA might have been extending their surveillance to additional numbers which had been in contact with the captured al Qeada numbers, but there was no evidence whether or not such extended surveillance actually took place before the Justice confrontation, was a matter in dispute during that confrontation or continued after the confrontation.

Yesterday, I also speculated in an earlier thread on this subject that Justice's motivation in seeking these changes may have been to assist Justice's negotiations with the FISC which eventually led to the recently reported deal whereby the FISC is reportedly issuing blanket warrants for the entire or substantial parts of the TSP.

While the Truong line of cases holds the 4th Amendment allows warrantless surveillance for intelligence gathering, it generally bars evidence gained for intelligence gathering to be admitted into criminal court. If Justice wants to use the evidence gained under the TSP in court, it needed to get the FISC to issue warrants.

The NYT report appears to reinforce my speculation. The only reason to refine the probable cause rules under which the TSP operates would be to gain warrants.
 

This comment has been removed by the author.
 

Arne Langsetmo said...

The defenders of Dubya's spying keep saying; "Don't you want to us to listen in when al Qaeda calls?" The disingenuousness here is that when you're targeting foreign al Qaeda, you can tap away to your heart's content. It's only when you ask for all calls made from or to a U.S. person that FISA kicks in.

In other words, you can gather intelligence at will against al Qaeda when they are overseas, but you cannot do so after they invade the United States?

Insanity.
 

Bart's "speculation" (a/k/a blowing smoke, making stuff up) does not remotely fit the known facts.

Gonzales has testified that the confrontation with Comey did not even involve the NSA program later disclosed by the administration and named the "Terrorist Surveillance Program," but rather other undisclosed "operational capabilities."

And the outcome of the confrontation -- the revised program that Gonzales and Bush announced in December 2005 -- did not provide for FISA warrants at all! The new warrant procedure, which Gonzales says now supersedes the TSP, was not announced until January 2007, almost three years after the incidents Comey described.

It is not surprising that Prof. Lederman has not responded to this troll's specious disinformation.
 

PMS_Chicago:

You really think terrorists are calling random numbers in the U.S. as part of some grand, master plan? LOL


Did I say that?

My question for you: do you think the terrorists ultimately can win?

If you don't think they can win, they aren't worth sacrificing our rights and principles for.

If you DO think they can win, well, I would say you underestimate the fine men and women on the front lines of this struggle.

Enduring an attack or two shouldn't bring democracy to a halt. Remember the immediate post 9/11 rhetoric: we win by showing them that nothing has changed. Of course, somehow that's evolved into "the world has changed since 9/11"--possibly the worst trope to infest political debate since the liberal-conservative division.
 

It is interesting to me that all of the articles Marty links to link back to his article (at least some of them cite JaO's argument as well), especially in light of this...

http://buchanan.blogs.nytimes.com/2007/04/30/were-not-as-disagreeable-as-we-seem/#more-8
 

"Bart" DePalma:

[Arne Langsetmo]: The defenders of Dubya's spying keep saying; "Don't you want to us to listen in when al Qaeda calls?" The disingenuousness here is that when you're targeting foreign al Qaeda, you can tap away to your heart's content. It's only when you ask for all calls made from or to a U.S. person that FISA kicks in.

In other words, you can gather intelligence at will against al Qaeda when they are overseas, but you cannot do so after they invade the United States?


No. Nor did I say that. What I said was that FISA was silent WRT taps "targeting" foreign persons (excepting the other clause for wiretaps physically instituted on U.S. soil; perhaps something that does need re-evaluation in light of today's modern telephony). FISA does not bar such wiretaps. FISA also doesn't bar wiretaps of U.S. persons or wiretaps performed on U.S. soil. It just says that if you want to do that, you need a freakin' warrant (or more accurately, the similar FISA court order).

That's just what the law says, "Bart". It's hard to argue about that; it's there for all to read.

Cheers,
 

PMS_Chicago:

Of course, the terrorists can ultimately win, both on the battlefield and here. One nuke exploded over Baghdad would wipe out most of our forces there. It would probably take more than one here. Are you waiting for the smoking gun to be that mushroom cloud?
 

I think that it's fairly obvious what "the program" was before the confrontation. It was completely open wiretapping within the United States, of any person, without warrants; and, more to the point, it was the elimination of barriers which would prevent the information from being used for political purposes. I can't imagine that in 2004 the Bush Administration was really afraid of the resignation of Ashcroft et al, or of what they might say, so long as they could be painted as "soft on terror" by the people who remained in power; but if there was a chance that they would start saying things which would lead to public awareness that the intelligence and justice systems were once again being used for partisan political gain by a Republican President, that would have been a different story.

Additionally, I speculate that we will ultimately find out that it was not the President who sent Card and Gonzales to Ashcroft's ICU bed, but Karl Rove.
 

A couple of years back I got word that postal inspectors were complaining about a massive number of orders to hold all mail for certain people to be delivered to federal authorities. That mail was then returned to the post office a day or few later for final delivery to the subject.

Those are all the details I have. The source is trusted by me. I don't know if this was done with or without warrants. But if it wasn't, perhaps this is another piece of the warrantless surveillance program.
 

Charles: Think about this scenario. You really are a terrorist who gets an order to initiate the next big 9/11 attack with the code phrase disguised to sound like a "wrong number" call. Better safe than sorry, I say.

hahahaha.

HAHAHAHAHA. HaHaHaHaHa.

How can one even respond to such a puerile statement? Charles, are you an agente provocateur?

Let's see, what if the trigger is someone posting a stupid right wing troll comment on a legal blog? What If! What If! What If!

What if the trigger is a you-tube movie of two-girls singing inane songs about growing up in Hialeah? What If!

What if the trigger is someone calling into Rush Limbaugh and fawning obsequiously over him, with the nickname CharlesDebarge? What if! What If!

What if the trigger is someone moving three blocks over from an operative, and putting up two american flags? What If! What If!

Do you want the first evidence to be a mushroom cloud? Huhh, Huhh? We must immediately begin full surveillance of every individual in the US, and world wide, by implanting a recording device in their buttocks!
 

Charles: Of course, the terrorists can ultimately win, both on the battlefield and here. One nuke exploded over Baghdad would wipe out most of our forces there. It would probably take more than one here. Are you waiting for the smoking gun to be that mushroom cloud?

Are you going to surrender? What army is going to occupy us? Do you think Americans are more cowardly than Iraqis?

Are you even an American, Charles - you sure don't sound like one.... Hmmmm, maybe you need to be on that Narus watch-list...
 

Early last year I recall accounts in the New York Times andWashington Post describing a broad datamining program much more extensive than just wiretapping calls from numbers captured from Al-Qaeda.

The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, "wash out" most of the leads within days or weeks.


This was the program that swamped the FBI with so many false leads they started calling them "more calls to Pizza Hut."

Could this be what the Justice Department was objecting to? It would certainly explain why the FBI was so interested; they were tired of being asked to investigate "calls to Pizza Hut."
 

RandonSequence:

If you'd rather not answer my question, that's fine with me.

I am not an agente provocateur. I am an American citizen, born and raised here. So, I don't think Americans are cowardly, and I am not going to surrender, especially since I don't think any current army can occupy us. That being said, however, it wouldn't take that many nukes to destroy the United States.
 

You guys are all looking in the wrong places

Alberto Gonzales forced the resignations of Debra Yang and Lawrence Friedman (Director of US Trustee's in Washington DC)

Lawrence Friedman is only 2 steps down from Gonzales and Lawrence Friedman Removed Roberta DeAngelis as Region 3 Trustee.

Then Lawrence Friedman Resigned and Gonzales promoted Roberta DeAngelis as General Counsel in Washington DC who is now in charge of investigating her own failure to perform!

From: Laser Steven Haas (Collateral Logistics Inc)(CLI)


RE: In re: eToys 01-706 (Delaware Bankruptcy 2001) Conflict of Interest Fee
Disgorgement, Fraud upon the Court, failure to pay disgorgement fee’s.


Following up on the phone conversation between the Former Chairman of the Official Creditors Committee of eToys we give you the short version of the situation in the bankruptcy matter of eToys.
1. The case is In re: eToys 01-706 Wilmington Delaware Bankruptcy
2. Traub Bonacquist & Fox “admitted” to placing in his paid associate as “wind-down coordinator” then CEO/President and finally Plan Administrator without seeking Court approval. (Transcript D.I. 2228)
3. The Asst United States Trustee made a Motion to Disgorge on February 15, 2005 stating that the actions were “deliberate –rather than inadvertent”. (Disgorge Motion )(D.I. 2195)
4. The Asst UST also stated that the actions were “materially adverse”, that the line between “Creditor v Debtor” had been destroyed and that “fraud upon the Court” had occurred because the UST had specifically had conversations with the parties instructing them “not” to engage in such behavior with replacing “key personnel” of the Debtor. (D.I. 2195 p 19 & p 35).
5. The “non-disclosure” of “conflicts of interest” was discovered by Laser Steven Haas where his company Collateral Logistics’ Inc. (CLI) was Court approved as the Liquidation agent of the Debtor. Who refused a gratuity and “blew the whistle”.
6. There are 140 statutory violations with a great majority of them admitted, including the fact that Traub Bonacquist & Fox paid their associate Barry Gold 4 separate payments of $30,000 each, both pre and post petition filing before placing Barry Gold in as “wind-down coordinator” of the Debtor without seeking Court approval by a hidden hiring letter that permitted Barry Gold to choose, whether or not, to apply per 327(a).
7. The parties that participated in the subterfuge have received over $14 million in fee’s and every attempt to examine books & records to verify disgorgement has occurred “properly” has been ignored.
8. The Court issued an Opinion on October 4 2005 that approved an Order that contained the Clause (D.I.2319)
a. WHEREAS the United States Trustee shall not seek to compel any additional disclosures from Traub Bonacquist & Fox.
9. We simply ask that you read the U S Trustee Disgorge Motion Docket
Item 2195 which only addressed 4 of the “non disclosures” out of 140.
Including selling the assets to their connected parties “undisclosed”!
Please contact me at laserhaas@msn.com or 626 736 9291 if any ?
 

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