Balkinization  

Saturday, February 23, 2008

President Bush "Degrade[s]" Our Intlligence Capability -- All in the Name of Immunizing Telecoms for Past Unlawful Conduct

Marty Lederman

In a letter written yesterday to the Chair of the House Intelligence Committee, Attorney General Mukasey and Director of Intelligence McConnell alarmingly reveal that the expiration of the Protect America Act one week ago has caused us to "lose intelligence information this past week," has led some "partners" (i.e., telecom companies) to "delay[] or refuse[] compliance with our requests to initiate new surveillances of terrorists and other foreign intelligence targets under existing directives," and "has led directly to a degraded intelligence capability."

Now, this alarm is probably grossly exaggerated, for reasons thoroughly described by Chairman Reyes. After all, even apart from the preexisting, underlying FISA authorities, broad programs of surveillance that were approved under the PAA continue in effect for one year after their approval, as the first substantive paragraph of the Mukasey/McConnell letter implicitly acknowledges: The Administration has made requests under the continuing programs, and "most partners intend to cooperate for the time being." Some "partners" allegedly have expressed "deep misgivings" about the legality of these continuing authorities, but the Administration is "working to mitigate these problems and [is] hopeful that our efforts will be successful." Of course, the telecom "partners" fully understand that authorities issued under the PAA extend for a year. Thus, any "misgivings" presumably concern whether Administration requests are consistent with the PAA programs that were authorized. [UPDATE: This Washington Post story reports that mere hours after Mukasey and McConnell issued their letter, "administration officials told lawmakers that the final holdout among the companies had relented and agreed to fully participate in the surveillance program."]

But be that as it may, let's assume the letter is correct, and for some reason expiration of the PAA has indeed "led directly to a degraded intelligence capability."

That would truly be terrible -- indefensible, even. Yet whose fault is that? Not Congress. The House actually voted to extend the PAA. Why didn't that extension become law? Because President Bush said he would veto the House's PAA extension.

Why would the President veto an extension of legislation that is so critical, that is necessary to prevent a "degradation of our intelligence capability"? Well, OMB offered one and only one reason for the veto threat -- because the House bill did not "provid[e] retroactive liability protection."

That is to say: For President Bush, retroactive immunity for telecoms -- who would only be liable in the first instance if they knowingly cooperated with unlawful requests from the Administration -- is more important than preventing the degradation of our capabilities of surveilling terrorists. Well, at least he can say he stick to his convictions . . . .

There's another very interesting aspect of the Mukasey/McConnell letter, too, which Glenn Greenwald has highlighted. In his letter, Chairman Reyes wrote that "[i]n an emergency, NSA or the Federal Bureau of Investigation (FBI) may begin surveillance immediately, and a FISA Court order does not have to be obtained for three days. The former head of FISA operations for the Department of Justice has testified publicly that emergency authorization may be granted in a matter of minutes." In their response, Mukasey and McConnell argue that this is mistaken because before such surveillance begins the AG must determine that there is probable cause that the requirements of FISA would be satisfied -- a determination that takes time.

Most interestingly, however, they also state that to proceed as Chairman Reyes suggests -- that is to say, arguably outside of FISA's requirements -- "would be illegal."

Perhaps this was merely a slip. But what M&M are stating here is that to engage in electronic surveillance without satisfying FISA's requirements (or the requirements of the PAA) would be illegal. And yet that is exactly what the NSA did for more than five years under its so-called "Terrorist Surveillance Program." Mukasey and McConnell are absolutely right that such surveillance would be, and was, unlawful. But that hasn't been the Administration's view in the past. Recall that they have argued at length that such surveillance is authorized by (i) the September 18, 2001 Authorization to Use Military Force and (ii) the President's Article II powers.

Curious.

And it prompts this question: If, in fact, our intelligence capabilities are now being degraded, why doesn't the President simply reauthorize the TSP itself, pursuant to his alleged AUMF and Article II powers?

Answer: Because now the telecoms won't in a million years cooperate in such an extra-legal program. And that's a very good thing -- an underappreciated virtue of the controversy and litigation surrounding the TSP. Moreover, it further reveals the true reason the Bush Administration is willing to degrade our intelligence capabilities in the service of telecom immunity -- not because telecoms will be reluctant to accede to lawful orders (as statutes require them to do), but instead because the Administration does not want the telecoms ever again to hesitate when the Administration asks them to cooperate in surveillance that appears to be unlawful under FISA and other relevant laws.

Comments:

The House Dem leadership trying to pawn off their responsibility for their refusal to hold a vote on the FISA reform bill on the President is in equal parts pathetic and reprehensible. The facts are clear:

The FISA reform bill was passed by a heavy bipartisan majority of 68 to 29 in the Senate.

The House had ample time to vote on the bill before they took off on another vacation. The bill was assured to pass as 21 Blue Dog Dems signed a letter to the Speaker urging passage of the bill and over 40 Blue Dog Dems were expected to vote for it.

What did the House Dem leadership do? They refused to allow the bill to come to the floor for sure bipartisan passage and instead held a vote to hold two presidential advisors in contempt.

It is not up to the President to agree to yet another extension of the FISA reform which is only supported by the leftist minority of the House in lieu of holding a vote.

However, I do fault the President for failing to act in one respect. President Bush should use the Mukasey/McConnell letter to announce at a press conference that he is withdrawing the TSP from FISA again in order to maintain the nation's defenses until a vote is allowed on the Senate bill.

While the incredibly irresponsible actions of the House Dem leadership provide an enormous political cudgel for the President and Senator McCain in this election year, that is no excuse to allow a minority of the House to place the nation's security in danger. He can still slam the Dems by withdrawing the TSP from FISA.
 

Bart, I don't know if you're actually the credulous naif your comments would indicate--or a "true believer" in less charitable terms--or if you're actually more knowing than you appear, yet you choose to act as an apologist for this administration, even in the absence of any substantiation for their claims that "lions, tigers, and bears, Oh MY!" are slavering at our doors, barely contained due to the perfidious acts of the Dems.

This President and his administration have permanently discredited themselves; they have told so many lies, foisted so many deceptions on us, that nothing they say can be considered as credible...until and unless they show actual documentation to support their assertions. They can't do this, of course, because everything's "secret" and "national security" will be jeopardized if we expect them to back up anything--anything--they say. So, for now, a rational person must assume, as has been so often true of this administration, that every claim they make is a lie.

You may choose to continue to be a willing mark for this murder of conmen, but most Americans do not. Even many who supported Li'l Butch have now seen the light, as they realize they've been had.

It's regrettable and pathetic that so many Dems are still so willing to lay down for these low-rent Sopranos in the White House, but I applaud the House for walking away for two weeks in lieu of voting on Li'l Butch's bill. I only hope they can maintain the trace of spine they seem to have found and continue to frustrate the attempt to shield the telecoms from legal repercussions for their collusion in criminal acts.
 

There are so many ways to lie.

This Administration has perfected the lie by partial omission.

That this might end in Nov......please.....
 

Hee hee! To all the conservatives out there, I strongly recommend you urge the President to do precisely as BD recommends!!
"But Rich," they'll argue "You're a lib!! It's your fondest wish to see us still further discredited!!"
To which I'd respond "What's your point?"
 

-- The House actually voted to extend the PAA. Why didn't that extension become law? --
.

The House voted on whether or not to pass a 21 day extension. The House rejected the bill that would provide a 21 day extension. Even if the House had passed it, the Senate would have posed another obstacle.

.

President Bush has published two veto threats relating to PAA extensions. First, to a 30 day extension, then, week before last, to a 21 day extension.

.

The issue of retroactive immunity was tough to decouple from the issue of surveillance, looking forward; and with the current "no PAA" situation, the question of retroactive immunity will become more complex. E.g., there can be a call of retroactive immunity to cover a period from Feb16-xx, 2008, which is distinguishable in fact from the previous call for retroactive immunity. But you can bet the administration will do all in it's power to conflate the two. Just as it uses the word "lawful" in a deliberately deceptive way.
 

robert:

How did you know???

The President, AG Mukasey, DNI McConnell, the Dem authors of the FISA reform in the Senate and everyone else who has been read in on the enemy and the TSP are all liars.

The TSP is really used to spy on innocent Americans like you and the ACLU plaintiff lawyers and academics.

The al-Haramain Islamic Foundation is really an innocent charitable organization and the US and EU are lying when they claim it is an al Qaeda funding organization.

al Qaeda is really no danger to the United States. The GOP is just trying to scare you to win the upcoming election.

The prisoners at Gitmo are innocent and the evidence of al Qaeda atrocities was invented by the CIA or coerced through torture.

9/11 was a plot by Israel and the Bush Family to drag the nation into war.

Robert. I really like you so I am going to tell you something that would get me killed by Karl Rove if he found out.

:::looks nervously out the window at the black van parked across the street:::

At the last secret GOP meeting I attended, Karl told us that the TSP had just about completed a list of those who supported FISA and the CIA was going to start disappearing them to secret prisons in Poland near some place called Auschwitz.

You may want to leave for Venezuela tonight with arne.
 

Bart, I suggest you work on your comedy routine a while before going public.

That was some awful stuff. Here's a hint: subtlety, or if you don't want to be subtle, at least restraint, is the key to good sarcasm.

Here's another couple of clues:

1. It doesn't matter what the majority was in the Senate. Two houses, of equal force, constitutionally. How a bill passes one makes no impact on the other, by design.

2. If you don't like the way the House works, I suggest you try and elect people who will change the rules.

Recommending to the President that he just go back to breaking the law may not be very good advice. The President may be lucky he doesn't have you for counsel.
 

Dismantling the arguments against impeachment, by occams hatchet
 

Can someone please explain to me why the Telicom Immunity can not be separated from the rest of the PAA bill? It seem to be the major stumbling block to passing this most vital bill. (Everyone who supports the bill says that it is vital to the security of the US and who I'm I to question their veracity?) Is it possible that the Telicom Immunity is a poison pill? Or is it that someone is worried that the Telicom Immunity will not pass on its own merits?
 

What did the House Dem leadership do? They refused to allow the bill to come to the floor for sure bipartisan passage

Weird. It's almost like the House Democrats want a majority of the majority to approve a bill before it is allowed to pass. I wonder where they could have gotten that idea from? (I'll give you a clue: D. Hastert suggested doing things like that. Wait--that's too obvious--let's just call him Dennis H.)
 

Hm. Well, BP's post is reasonably accurate until he goes completely off the rails and states that al Qaeda isn't a threat. At that point, he just gets completely silly.
Just because we support human rights and want to keep the US Constitution reasonably intact doesn't mean we aren't aware that we live in a dangerous world.
Whether the al-Haramain Islamic Foundation is or is not truly guilty of what they've been accused of has nothing to do with whether or not they've been subjected to illegal surveillance.
Yes, it would be nice if the world resembled a Jack Bauer fantasy and all suspects were automatically guilty, but the well-documented fact of the matter is that a lot of innocent people get snared when the net is cast too widely.
Lay off the damn TV shows Brad, and pay attention to reality.
 

Bart, your heavy sarcasm about "TSP is really used to spy on innocent Americans" rings hollow when one considers that well-known administration critics such as Senator Ted Kennedy have ended up on "No Fly" lists, playing havoc with their ability to travel freely. I hardly think this was accidental.

But, that's really beside the point: we don't know who is being spied on, as no warrants are issued and no oversight is permitted, in violation of the Constitution.

As to whether I think AG Mukasey and others in Washington are liars: yes, I do.

Of course there are terrorists who wish to do America harm, and it may be that some held in Guantanamo are among those terrorists. However, this administration has utilized amorphous threat warnings repeatedly for political purposes and to bully us into accepting their lawlessness. We don't know whether one or five or a dozen or more of those held at Guantanamo are guilty; we know that many of them weren't, as they have been released; we don't know whether any other terror plots have come to light post-9/11, whether any alleged plots have been thwarted, or whether any information obtained through warrantless wiretaps or torture of captives has saved lives.

We don't know any of this.

All we have are unsubstantiated claims from an administration that has been caught in previous lies. We have no basis to accept as credible any statements they may make at any time...unless they put forth before us evidence that can be examined and appraised for its soundness.

This is the problem when dealing with known liars: one can never know when they're telling the truth or lies, so one must, of necessity, assume they're lying.
 

#@%^ BD not BP. I'll go to sleep now.
 

c2h50h said...

Bart, I suggest you work on your comedy routine a while before going public.

I was engaging in some heavy handed ridicule, not comedy.

There is nothing funny about the reality that every single allegation I noted in my ridicule, apart from the secret meeting punchline, is frequently and I believe honestly expressed across the left blogoshpere and in more than a few publications.

One conspiracy theorist in town is humorous. This is how Ann Coulter makes a living.

A nation with a substantial minority of conspiracy theorists is disturbing.

Having the House of Representatives put the nation's security at risk to seek the votes of the substantial minority of conspiracy theorists is simply scary.

(That is unless you believe the alternative theory that the House Dems are in the pocket of the trial lawyers, which in itself has been dismissed as a conspiracy theory)

Most of the folks who post here are far too intelligent to be using conspiracy theory as an argument in a national security debate.

So take a deep breath, imagine there is a President Obama and stop it.
 

"The facts [sic] are clear . . . in order to maintain the nation's defenses . . . no excuse to allow a minority to place the nation's security in danger . . . Having the House of Representatives put the nation's security at risk . . . [yada, yada, yada]"

~ BDP



soph·is·try [sóffistree]:

a deliberately invalid argument displaying ingenuity in reasoning in the hope of deceiving someone


The doublespeak of this Administration and its apologists is boundless.

"At risk" is telecom and Bush Administration exposure to prosecution for breaking the law. (Ultimately, they may not escape liability, even if "immunity" is passed. [Fingers crossed, though Scalia and Co. will, eventually and most likely, dash my hopes. Bush v. Gore, round 82.])

House of Representatives refusal to include immunity would almost certainly end this criminal collusion. Telecoms would fall back to that most-American of legal principles: "No sweat, Uncle Sam. Just show us the warrant." National security uninterrupted -- civil liberties, checks and balances intact.

And, OMG!, if lawsuits are filed, what might the discovery process reveal?! Not "sources and methods" -- these can rightly concealed. Rather, "at risk" is revelation of the complete breadth and depth of this ongoing criminal conspiracy and enterprise.

Will the Dems cave? Probably.


Terrorized by "War on Terror," by Zbigniew Brzezinski

The "war on terror" has created a culture of fear in America. The Bush administration's elevation of these three words into a national mantra since the horrific events of 9/11 has had a pernicious impact on American democracy, on America's psyche and on U.S. standing in the world. Using this phrase has actually undermined our ability to effectively confront the real challenges we face from fanatics who may use terrorism against us.

. . .

But the little secret here may be that the vagueness of the phrase was deliberately (or instinctively) calculated by its sponsors. Constant reference to a "war on terror" did accomplish one major objective: It stimulated the emergence of a culture of fear. Fear obscures reason, intensifies emotions and makes it easier for demagogic politicians to mobilize the public on behalf of the policies they want to pursue.

 

Bart,

"I was engaging in some heavy handed ridicule, not comedy."

Ummm, sorry, you missed "ridicule" and hit "bad attempt at comedy". Given the state of the country, and recent history, you cannot ridicule people's fear of incompetent and lawless behavior by the current administration.

"There is nothing funny about the reality that every single allegation I noted ... is frequently and I believe honestly expressed across the left.."

Agreed. Of course, we'll have to agree to disagree about the whether there is a basis for the allegations.

"A nation with a substantial minority of conspiracy theorists is disturbing."

Perhaps it will help to make an analogy. As any modern poll will tell you, the American electorate supports, by large majorities, legal abortion, gun control, and continued occupation of Iraq. This means that Republicans, running on their unpopular policies, face certain, and humiliating, defeat. Thus, they are engaging instead in a conspiracy to artificially inflate the fear of terrorism for the purpose of retaining some measure of power.

I use "conspiracy" here, not in the legal sense, where all the participants got together in a room and discussed it, but in a broader sense, where they have simultaneously and independently come to the conclusion that this subterfuge is their only hope -- not that it took much intelligence to realize this, given the obvious mood of the electorate today.

"Most of the folks who post here are far too intelligent to be using conspiracy theory as an argument in a national security debate."

It seems you just did. Unintentional Irony?
 

A Goldwater/Churchill ripoff for our dear Mr. DePalma:

I would remind you that mewling, sycophantic deference to the unitary executive IS a vice. And let me remind you also that surrounding the truth with a bodyguard of lies in order to subvert justice is no virtue.
 

Wow, I took a long break from this website and when I get back, the same folks are still debating the postings.

Bart, dude, you need to go to the Wizard of Oz and ask for a brain, or some courage to stand up for yourself. Seriously, you don't need to keep defending the administration to stay off of the watch lists that everyone else is on.

Are you really such a moron as to believe that the intensely political elements of this adminstration would NOT use the TSP and "national security" as a cover for illegal surveillance? Does "Nixon" sound familiar to you?

I need not run to a foreign country with you tonight, though, because one thing appears to be coming true. In the next election, enough people will be able to see well enough (certainly better than you) that change is needed.

I would bet you are one of those right-wing conservatives that hates the honorable senator McCain because he is not conservative enough for you. Do us all a favor. Just like Delay the criminal said, if McCain is the nominee then stay home and don't vote for him. Although he is an honorable man, I don't think we'll have a chance of prosecuting all the folks responsible for the criminal acts of this administration if he is the next POTUS.
 

Marty Lederman said in the opening post,
>>>>> The House actually voted to extend the PAA. Why didn't that extension become law? Because President Bush said he would veto the House's PAA extension.

Why would the President veto an extension of legislation that is so critical, that is necessary to prevent a "degradation of our intelligence capability"? Well, OMB offered one and only one reason for the veto threat -- because the House bill did not "provid[e] retroactive liability protection" . . . .

. . . .the Bush Administration is willing to degrade our intelligence capabilities in the service of telecom immunity -- not because telecoms will be reluctant to accede to lawful orders (as statutes require them to do), but instead because the Administration does not want the telecoms ever again to hesitate when the Administration asks them to cooperate in surveillance that appears to be unlawful under FISA and other relevant laws. <<<<<<

How would granting retroactive immunity (amnesty) to the telecoms prevent them from ever again hesitating about cooperating in legally questionable surveillance? Granting amnesty to the telecoms now would not guarantee that it would be granted again in the future. In fact, there is good reason to believe that it would not be granted again in the future -- one of the purposes of an amnesty is to start over with a clean slate and an assumption that past offenses will not be repeated.
 

-- one of the purposes of an amnesty is to start over with a clean slate and an assumption that past offenses will not be repeated. --

.

The position of the amnesty advocates is that there is a clean slate now -- that whatever was done was "lawful" (not necessarily within the statutes, but "lawful") and patriotic.

.

Further, the position holds that disclosure of the extra-statutory surveillance has two downsides. First, that it will expose the extent of surveillance to the terrorists that we aim to surveil without their suspicion (i.e., it discloses classified, "state secret" information). And second, that subjecting telecoms to lawsuits (which are provided for in statutes, see 50 USC 1810) will cause them to balk at future surveillance requests.

.

Those two downsides attach EVERY time surveillance is conducted outside of the statutory parameters.
 

-- How would granting retroactive immunity (amnesty) to the telecoms prevent them from ever again hesitating about cooperating in legally questionable surveillance? --

.

It doesn't. It's meant to overcome any hesitation that exists when an order is outside of the statutory norms.

.

Congress is selling the amnesty as "basic fairness." A company can't be expected to follow privacy statutes, when the company is asked to track down bad guys.

.

One comment by DNI McConnell or DoJ Mukasey went a bit under the radar, that telecoms or other entities pledged to privacy wouldn't cooperate (I assume without a warrant) when the government was tracking kidnappings and other federal criminal activity, either. This is another reason that amnesty is warranted.

.

I take away that privacy statutes, certainly the parts that provide a civil remedy against government-ordered surveillance, are hollow.
 

The Dem chairs of the intelligence and judiciary committees issued a rebuttal to the charge that the Dem refusal to allow a vote to enact permanent FISA reform impaired NSA spying in the enemy. This passage is the most interesting:

First, our country did not "go dark" on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush's overheated rhetoric on this issue, the government's orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately.

It appears that the FISC, pursuant to the lapsed PAA, issued a blanket warrant for the entire TSP covering all known terrorist groups. These Dem chairs are asserting that this order will continue to cover surveillance of all new targets who admit to being part of the previously covered groups. These assertions beg two questions:

1) Would a blanket warrant enacted under the PAA that would be illegal under the old FISA still be valid when the PAA lapsed and the old FISA came back into force?

2) Now that the Dems have informed the enemy exactly what the FISA blanket warrant covers, what is to prevent the enemy from simply changing the name of their terrorist group in their telecommunications to fall outside the groups named in the blanket warrant to avoid NSA surveillance?

In short, did the country go completely dark or merely enter dusk?
 

Now that the Dems have informed the enemy exactly what the FISA blanket warrant covers, what is to prevent the enemy from simply changing the name of their terrorist group in their telecommunications to fall outside the groups named in the blanket warrant to avoid NSA surveillance?


Right, right, right! Just imagine what will happen if they think beyond changing names in their telecommunciations! What if they start wearing fake beards when typing their messages? What if they all started doing Reagan impressions when talking on the phone?

I would hope that this "clever" strategy of changing one's name was already something that could be countered by our multi-billion dollar funded intelligence community.

Seriously, though, you argue against yourself. For all the "we don't know the true details because the true details are secret" rhetoric you've generated in defense of the administration's statements, you'd think your first "go to" explanation would be that the rebuttal was written in broad strokes that hid the true details of the authorizations that are still in place.
 

pms_chicago said...

BD: Now that the Dems have informed the enemy exactly what the FISA blanket warrant covers, what is to prevent the enemy from simply changing the name of their terrorist group in their telecommunications to fall outside the groups named in the blanket warrant to avoid NSA surveillance?

I would hope that this "clever" strategy of changing one's name was already something that could be countered by our multi-billion dollar funded intelligence community.


Sure, it would be easy for our intelligence community to determine that the enemy was using an alias by monitoring their telecommunications.

However, the old PAA blanket order does not authorize our intelligence services to listen to the enemy to determine that they were using an alias and the old and now renewed FISA will not permit NSA to conduct any surveillance without individualized probable cause.

Nice catch 22...if you are al Qaeda.

Amazing how following unconstitutional laws renders a multi billion dollar electronic intelligence agency impotent. Congress is achieving what al Qaeda could not in their wildest dreams accomplish.
 

Amazing how following unconstitutional laws renders a multi billion dollar electronic intelligence agency impotent. Congress is achieving what al Qaeda could not in their wildest dreams accomplish.

# posted by Bart DePalma : 8:25 PM


I'll tell you one thing, if scum like you have your way, they won't be hating us for our freedom any more.
 

Cboldt said,
>>>>>>> -- one of the purposes of an amnesty is to start over with a clean slate and an assumption that past offenses will not be repeated. --

.The position of the amnesty advocates is that there is a clean slate now -- that whatever was done was "lawful" (not necessarily within the statutes, but "lawful") and patriotic. <<<<<<<

The slate is not clean now. These two news articles -- here and here -- say that the telecom companies are threatened with as many as or more than 40 lawsuits. And the same news articles say,

(Bush said)"The problem is, should companies who are believed to have helped us after 9/11 until today get information necessary to protect the country be sued? My answer is absolutely not. They shouldn't be sued."

Bush said the threat of lawsuits would create doubt among private-sector "folks who we need to help protect us" and would make it harder to convince these companies to participate in the future.

- - - - - - --- - - - --

Sen. Orrin Hatch, R-Utah, a member of the Senate Judiciary and Intelligence committees, said without immunity, the firms would turn down future requests for help.

"They patriotically complied with the top government request to cooperate so that we could interdict phone calls from terrorists," he said. "And frankly, if we do not give retroactive immunity, there is not a general counsel of any of these companies that would [again] expose their company to the ... litigation that has come since."


Bush and Hatch are full of crap here. What would give the companies the confidence to participate in the future would be clearcut rules for participation. Bush and Hatch have not explained how granting retroactive immunity would make it easier to persuade these companies to participate in the future.

The problem with these companies is that they often do not give priority to their customers' interests. I have this problem with my ISP, AOL. For example, I would like to ask AOL to rotate its IP addresses among its proxy servers in order to make it difficult or impossible for blogs and other websites to block commenters by means of IP addresses, but I know that AOL has little interest in helping its customers.
 

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