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May 15, 2007

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The best part of that testimony is that, after watching Card/Gonzales try to pry permission out of Ashcroft and Ashcroft telling them no and they had to talk to Comey, Comey tells Card he won't meet with him at the White House wihout a witness after witnessing his conduct with Ashcroft. Card replies "What conduct? We were merely there to wish him well."

What kind of mindset do you have to have to say something like that? I mean, really, you were just in the room with the guy, you know he was standing right there when you did what you did, and yet later that same day you claim nothing of the sort happened.

Just, wow.

They were on a mission from God.

Just read the full transcript (Specter and all) in the Washington Post. At the start Comey told Schumer he was uncomfortable discussing this incident. But boy, is it clear that he has thought A LOT about what he would say when/if asked about it. The sheer narrative drive and power of his testimony is amazing.

To quote Ugh, just, wow.

Oh, and nice title, hil!

Could anybody please tell what is new about this? If I remember correctly the story of the attempt to get Ashcroft to sign this and his refusal broke shortly after the scandal itself was revealed and that is now quite some time ago. The only thing new seems to me that it is now "official".

This part also stunned me: "I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances."

What kind of gov't are we running that the FBI director has to tell his agents to ensure that the acting Attorney General is not removed by the White House Counsel and Chief of Staff (and presumably their security detail)? Did Mueller really think it was a possibility that Gonzales/Card would attempt to have Comey forcibly removed from Ashcroft's hospital room?

I have visions of a shootout between the FBI agents and the Secret Service. It's like something out of a Banana Republic.

If anyone had told me in 2001 that the Attorney General who followed Ashcroft would be someone who would manage to make John Ashcroft look like one of the good guys by comparison, I'd consider it as improbable as the notion that the rule of the Taliban in Afghanistan, or Saddam Hussein in Iraq, or the mullahs in Iran, could be replaced by something worse.

Hartmut - I think a lot of the details of what exactly went on are new, but the real news here is that Mueller, Comey, Ashcroft and assorted other top DOJ officials were going to resign because Bush/Card/Gonzales continued the program even after Comey and Ashcroft refused to sign off on it.

As Comey said "I couldn’t stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis."

Also, IIRC, the official story on this was that the program was "suspended" until it could be revised for DOJ certification - but Comey's testimony makes clear that this was not the case - the program was continued in its "not legally justifiable" form until ultimately modified for DOJ approval.


What kind of mindset do you have to have to say something like that?

Just what is thier view of the world of people? As I ungracefully age I am less able to understand how "they" think.

And are there to be no repercussions? These attempts to circumvent the law are adequate grounds for dismaissal. After all, they do have rather important jobs...Hmmmm, I think I might fire someone for such conduct even if the job was less important.

Hartmut, I agree that we've heard most of this before, but there are some new details that make the story even more disturbing. And it's always good when people get a second chance to be outraged about something that wasn't given enough attention the first time around.

Ugh, Card's blatant lying reminds me of Tucker Carlson's story about Karen Hughes:

Then I heard that [on the campaign bus, Bush communications director] Karen Hughes accused me of lying. And so I called Karen and asked her why she was saying this, and she had this almost Orwellian rap that she laid on me about how things she'd heard -- that I watched her hear -- she in fact had never heard, and she'd never heard Bush use profanity ever. It was insane.

I've obviously been lied to a lot by campaign operatives, but the striking thing about the way she lied was she knew I knew she was lying, and she did it anyway. There is no word in English that captures that. It almost crosses over from bravado into mental illness.

Power corrupts; absolute power corrupts absolutely.
Thankfully, there are still citizens in some of the offices of this administration who can recall for whom they serve. The Regentizing of the DoJ under Gonzalez is why the next generation is unlikely to have a Comey. It's like watching the pod people gradually taking over the US government. That's the story.

AAAaaaaaaaaaaaatghhhhhhhhhh.

Well everyone here has been talking about it for a long time and it is finally happening. The Bush regime is bringing about the elimination of many of the freedoms we all take for granted.

It hasn't happened quite like everyone here has talked about with respect to the Patriot Act, but rather through Republicans losing the election to Democrats. Truly this is all Bush's fault.

According to two members of the House Democrat Caucus, Reps. Nancy Pelosi and Steny Hoyer have informed them that they will "aggressively pursue" reinstatement of the so-called Fairness Doctrine over the next six months. In January, Democrat presidential candidate Rep. Dennis Kucinich announced that he was going to pursue the Fairness Doctrine through his Government Reform subcommittee. That announcement was greeted with silence. But now, Pelosi has moved things to the front burner.

I can hear the jack-booted thugs coming up the stairs now...

If only Obisdian Wings cared about freedom and rights for Republicans and Conservatives as much as they do for terrorists and insurgents, perhaps they could help poor insurgents like myself throw of the shackles of my oppressors.

Hilzoy: I've got the full transcript linked at Balkinization, plus a post drawing the obvious cinematic analogy.

Cheers,

Marty

They're not pod people. They're gangsters.

I knew the story, but not all the details. Hearing (well, reading) Comey's testimony took my breath away, esp. the part where he dashed off to the hospital (with a sirens-screaming escort, apparently) in order to get there before Gonzales and Card.

I wonder why they were so hell-bent on getting that surveillance program approved. They'd already evaded FISA review, after all; that the program was illegal wasn't an issue for them (hell, they sent it forward anyway without DoJ sign-off).

Is there even more about the surveillance program we should know about?

Or was trying to get around Comey and "persuade" a semi-conscious Ashcroft to sign off just another in the endless series of because-we-can power plays?

That's got to be a fake bril.

CaseyL: "I wonder why they were so hell-bent on getting that surveillance program approved. They'd already evaded FISA review, after all; that the program was illegal wasn't an issue for them (hell, they sent it forward anyway without DoJ sign-off)."

Might as well CYA if possible. Also, it was probably important to some of the people at NSA (or wherever) that DOJ provide cover (certainly the CIA folks wanted this on the torture issue).

Though this raises an interesting possibility - did the White House tell NSA et al that DOJ had re-authorized the program when DOJ had not?

[D]id the White House tell NSA et al that DOJ had re-authorized the program when DOJ had not?

That's a rhetorical question, right?

One, who at NSA would have asked?

Two, if anyone had, the WH would probably say "Authorization isn't necessary under the Unitary Executive. We'd like to dot all the i's, but it's not a high priority."

That's got to be a fake bril.

Maybe, but he did copy the bril-like practice of not providing a link. You know it must be a super-reliable source when they can't even spell the name of the Democratic Party correctly.

I wonder why they were so hell-bent on getting that surveillance program approved.

Two reasons: (1) they were in for a full-blown revolt at DOJ if they didn't get approval; (2) the fig leaf of independent review is necessary in case you have to justify yourself later. Nobody wants to say, "My lawyers refused to tell me it was legal, but I went ahead and did it anyway."

Marty: Thanks. Updated.

Now that Gonzales is the AG, what would stop him from approving whatever it was that made Comey and Ashcroft resist? And how would we know he ever did so?

And how would we know he ever did so?

you won't. so sit back and enjoy American Idol. just be happy you live in a country where the government is accountable to the people, and we can all make adequately-informed decisions about who to better protect us from the giant creeping evil.

but, seriously, if you can't trust a two-term Republican president, who can you trust ?

but, seriously, if you can't trust a two-term Republican president, who can you trust ?

And now, folks, it's time for "Who do you trust!" Hubba, hubba, hubba! Money, money, money! Who do you trust? Me? I'm giving away free money. And where is the Batman? HE'S AT HOME WASHING HIS TIGHTS!

The Frontline segment tonight answered the Gonzales question posed by cw: he's approved whatever anyone thought they wanted to do and, as is clear from his testimony, Admin figures limit their denials, admissions, and descriptions to a single one of several programs.

Greenwald is teh aw3sum3 on this today.

"Could anybody please tell what is new about this? If I remember correctly the story of the attempt to get Ashcroft to sign this and his refusal broke shortly after the scandal itself was revealed and that is now quite some time ago. The only thing new seems to me that it is now 'official'."

That's exactly right; all the essential details have long been reported; but details in newspaper stories are subject to the usual dismissals; official Congressional testimony somehow makes everything vastly more important. That's the vital power and importance of controlling the gavel in at least one house of Congress, even if the reported facts don't magically change when delivered to a Congressional committee: somehow said facts are often treated as if they have now magically become far more important and credible.

It's kinda strange, I have to admit. (Personally, I think Congress should accept my ability to cite a fact via Google as of equal credibility and importance, but negotiations on that are still in progress.)

One might regard it as the Congressional equivalent, such as it is, in muddier form, to the president's "bully pulpit," though.

It's almost a shame that we're not still in the days when the whole country had only three tv networks to get video from, and if even one of them put live Congressional hearings on during the day, the effect could be like none other on the country (see the McCarthy or Watergate hearings, for two of the most prominent examples).

On the flip side, when there were only three pipes, that's all we had, and things could happen like CBS putting on hearings into Vietnam and then being cowed by the Administration into shutting down the live coverage; nowadays we have a hundred million capillary sources, so endlessly more information gets out, but has to be agglomerated and conglomerated to gain equal notice. All in all, we're doubtless better off now, but, still, I have some nostalgia for the days of focusing most of the country on a single topic, even if just for a few hours.

but, still, I have some nostalgia for the days of focusing most of the country on a single topic, even if just for a few hours.

American Idol gets 10% of the population, twice a week.

"American Idol gets 10% of the population, twice a week."

The Army-McCarthy hearings:

For 36 days, over 180 hours of air time, the Army-McCarthy hearings were viewed by over 80 million viewers.
The US population, babies and the near-dead included, was ~160,000,000.

Mine's bigger than yours.

So:

(1) why did DOJ apparently do a 180 on the legality of the program?

I am guessing that this is the result of Goldsmith becoming head of OLC, and deciding, with Comey's support: "hey, some of these executive power opinions are complete bullsh*t".

Ashcroft, of course, had been head of DOJ all along, and if the original OLC the-president-can-do-whatever-he-wants opinions bothered him we've seen no sign. But when OLC changed its conclusion, he stood by his Department--so Ashcroft is not so much a civil libertarian as just someone who has some limits--some understanding that the Attorney General of the United States is not supposed to act like the President's mob lawyer: if OLC made a strong substantive argument that the program was illegal, DOJ wasn't going to just override it because the White House asked them to, and they weren't going to rush to his hospital room and ignore Comey's status as Acting Attorney General because they didn't like his answer, and the President wasn't going to continue actions that DOJ had definitively told him were illegal.

It's also possible that rather than/in addition to Goldsmith, there was new factual information about how the surveillance was being used.

(2) why is the FBI director so heavily involved (he is the one who actually discusses the thing w/ Bush, right?) and no mention of NSA personnel?

I think Charley must be right: there's more than one classified surveillance program.

I really, really hope that the Senate Judiciary Committee is planning to call Mueller and Goldsmith.

"I think Charley must be right: there's more than one classified surveillance program."

Has anyone credible ever thought otherwise? Who would think otherwise, and what would they be smoking?

Farber: I am guessing that this is the result of Goldsmith becoming head of OLC, and deciding, with Comey's support: "hey, some of these executive power opinions are complete bullsh*t".

That is what Charlie Savage thinks too (via Froomkin):

In early 2004, several Justice officials who were not in office at the launch of the NSA program began questioning whether it violated civil liberties. Jack Goldsmith , the new head of the Justice Department's Office of Legal Counsel, said he doubted that the program was lawful. After listening to Goldsmith, Comey and Ashcroft agreed, Comey said.

Not sure why Savage thinks it was the NSA program though.

Lithwick:

Specter does get Comey to admit that the president ultimately did the right thing by modifying the program. Also that nobody overtly threatened Comey. Or maimed him. But Comey gets one more chance to launch his main zinger: "They went ahead and reauthorized the program without my signature." And that's about all he needs to say. The White House went ahead and reauthorized a controversial, presidential-power-grabbing program deemed illegal by the Justice Department, after trying to extract permission from a critically sick John Ashcroft who didn't quite know what day it was.

Today's revelations shouldn't be much of a surprise. Gonzales had nothing but contempt for the Justice Department back when he worked for the president, and he has nothing but contempt for the Justice Department now that he, well, still works for the president. Nevertheless, if this whole sordid U.S. attorney scandal wanted for a metaphor, it need search no longer. Here's the Rule of Law lying in critical condition in its hospital bed, while the man now charged with its stewardship runs roughshod over it, all in the name of expanding presidential power.

Here are some previous articles which discuss Mueller's fear that info from the NSA surveillance program would taint FBI investigations. So it's possible that he was initially talked into relying on the info. because the OLC okays the program, then the OLC does a 180 and he's really pissed....

I wonder if the requirement that "one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda" is what they added, to support the argument that it was legal under the AUMF & placate DOJ & the FBI.

I wonder when we'll find any of this out. Probably not under this Attorney General.

Probably not under this Attorney General.

I doubt he remembers.

Is it just me, or does Joe Klein not have the slightest understanding of the difference between the NSA wiretapping program and the NSA data-mining program?

"Here are some previous articles which discuss Mueller's fear that info from the NSA surveillance program would taint FBI investigations."

This -- referring to "the" program -- loses a crucial point: these articles -- and much other information -- back the fact that Mueller feared that info from the NSA would taint FBI investigations; there's no evidence whatsoever in these articles, or to the best of my knowledge, anywhere else in the public press, that proves, or even suggests, or even hints, that the only relevant NSA program of domestic consequence is the eavesdropping and data-mining program that we know so little about.

Asserting that the only NSA program of concern is that one would be an utter, and vast, and critical, mistake.

We don't know what we don't know. But, at the risk of sounding Rumsfeldian: we know that we don't know what we don't know.

As well, as Glenn notes:

[...] But Law Professor Orin Kerr offers some speculation on that question which strikes me not only as persuasive, but also as the only logically possible answer. He suggests that there were changes to the program itself -- i.e. changes in the operational rules of the NSA's eavesdropping -- not merely changes to the DOJ legal theories (emphasis added)....
I very strongly suspect, and am reasonably sure, though I can't prove it, that this is correct.

Ditto the further conclusion:

[...] That would necessarily mean that -- contrary to what the administration has repeatedly insisted was true -- it was not merely Al Qaeda and similar groups who were the targets of the eavesdropping conducted in secret, but targets beyond that category.
But the issue isn't only one NSA program, and it isn't even only NSA.

Not at all.

The question is what abuses have been ongoing, or at least present at times, in the entire sweep of the Bush government's approach to domestic investigation and surveillance: FBI, CIFA, Homeland Security, DoD, Army Intelligence, the TALON program (which Clapper has now allegedly shut down -- but intel programs often have a way of shifting names and continuing), DIA, and on and on.

The fish: what does it do from the head down?

It's not just one program, and it's not just NSA, that anyone should be concerned about.

Right, I know it's not one program, and it's not just NSA, but I am speculating about the particular program that the dramatic hospital bed confrontation involved.

"Is it just me, or does Joe Klein not have the slightest understanding of the difference between the NSA wiretapping program and the NSA data-mining program?"

I have an extremely low opinion of Joe Klein -- one of the legion of pundits past their sell-by date by a couple of decades -- but I'm not clear what crucial distinction you think he's missing there.

We know very little, but stating that there is front-end datamining leading to mass surveillance seems uncontroversial. What important distinction do you feel he was eliding?

I do note that when Klein writes that "Quietly, with the election past in January, Bush put the NSA operation under the control of the FISA court," he neglects to note that, as I just linked above, the Administration continues to assert that FISA doesn't limit the president's power to surveil as they wish.

This is a tired rehash of very old news. The New York Times and various lefty blogs tried to make hay out of this nonstory last year. They got no traction with the American people, who very sensibly found no problem with the NSA eavesdropping on al-Qaeda and their minions within the US. Comey is obviously axe grinding based on some personal animus against Alberto Gonzales. It is clear to any unbiased observer that Comey's story makes no sense and leads one to be thankful that our AG is the honest plain-spoken Gonzales and not a conniving schemer like Comey. Fortunately no one outside the liberal blogosphere and lefty rags in the Northeast and San Francisco are paying attention to these histrionics.

Orin Kerr and Marty Lederman are making similar guesses:

Here's one speculation just suggested to me by a fellow B'zation blogger: Perhaps under the Yoo-approved program, once a U.S. person received any phone calls or e-mails from a "covered" person overseas, the NSA was authorized to intercept all of that U.S. person's future phone calls. (After all, what the Administration was most interested in would not be overseas calls, but instead calls that might reveal activity of Al Qaeda cells here in the U.S.) Under the Goldsmith-approved, AUMF-based program, however, only international calls with actual persons covered by the AUMF could be intercepted. Who knows? — this is only speculation.

I will be, at this point, pretty surprised if I don't know anyone who was eavesdropped on.

Watching Comey's testimony at TPM, when asked who made the call to Mrs. Ashcroft to let Card/Gonzales in, Comey hesitated before answering. Seemed to me that he was trying to decide between "no" and fingering the President and finally decided on the answer he gave - "some recollection that the call was from the President himself" - I'd bet decent money that, based on how he looked while hesitating, that he *knows* it was from the President and didn't really want to say so and so compromised in his answer. Especially since he's *very* confident it came from the White House (seems odd that he would be sure of this and not who).

Just you wait, nabalzbbfr, until you're sick
And you scream to fetch the doctor double-quick
I'll be off a second later
And go straight to the theatre
Just you wait, nabalzbbfr, just you wait!

They got no traction with the American people, who very sensibly found no problem with the NSA eavesdropping on al-Qaeda and their minions within the US.

Actually, I kinda remember the NSA wiretapping program being a major issue in the November elections, with ad after ad from the GOP saying that you shouldn't elect Democrats because they oppose Bush's wonderful program. The election results demonstrate that the American people were quite sensible indeed.

(Cross-commenting from Balkinization, b/c I'm curious if anyone has any thoughts -- this means you, Gary ...)

I wonder now whether or not notice of the 45-day authorization was forwarded to the phone companies ... *that* would help explain why Card and Gonzales were jumping up &down to get the imprimatur ASAP ... anyone know anything on that score?

I can well imagine that at 12:01 a.m., the day after the authorization period expired w/out renewal, Big Phone would've flipped the "off" switch for its own good ... lest it be opened up to liability for violations of federal law.

makes sense to me.

Boy, I hope judiciary doesn't drop this...

We know very little, but stating that there is front-end datamining leading to mass surveillance seems uncontroversial. What important distinction do you feel he was eliding?

Klein describes a program wherein front-end data mining is used to obtain FISA warrants for wiretapping of specific numbers. It's like he's completely missed the point of the scandal, which is that the wiretapping itself is taking place without warrants.

There is a separate issue relating to data mining, sure, but that wasn't raised until well after the original warrantless wiretapping scandal broke. The idea that aside from data mining, the administration has been complying with FISA and getting warrants all along, seems to be a notion that only Joe Klein has been briefed on. The rest of us, including the federal court that enjoined the NSA wiretapping program, didn't get the memo.

Anderson - good point, I wondered something similar upthread with respect to people at the NSA. Do you suppose they told the Telcos that the program had received the proper re-authorization anyway (using Ashcroft's illness as an excuse not to produce the documentation)?

I wondered something similar upthread with respect to people at the NSA

Ah, so you did -- I probably had that in the back of my mind, tho for some reason I see the surveillance amateurs at Big Phone being MUCH more antsy about getting their thumbs-up ... I may be naive on that score.

Do you suppose they told the Telcos that the program had received the proper re-authorization anyway

Ha! Wouldn't surprise me in the least -- I doubt they'd been faxing over copies of the actual DOJ document, tho who knows.

Italics begone?

(What is this "Preview" button for?)

nabalzbbfr: be thankful that our AG is the honest plain-spoken Gonzales

Dude – so close. You had me right up to that.

Is it just me, or does Joe Klein not have the slightest understanding of the difference between the NSA wiretapping program and the NSA data-mining program?

Fixed!

Cross-commenting from Balkinization, b/c I'm curious if anyone has any thoughts -- this means you, Gary ...)

I wonder now whether or not notice of the 45-day authorization was forwarded to the phone companies [....]

I'm disinclined to speculate very far, but I don't know any reasons to think that's implausible.

Steve: "Klein describes a program wherein front-end data mining is used to obtain FISA warrants for wiretapping of specific numbers. It's like he's completely missed the point of the scandal, which is that the wiretapping itself is taking place without warrants."

Thanks for explaining; I think I get your point now, although it looks -- offhandedly -- to me as if Klein doesn't not acknowledge your point, but disagrees, and holds the views that said eavesdropping (not "wiretapping," which is an extremely specific act, in which actual wires are attached to actual phones or their lines, and which doesn't subsume the entire vast range of other forms of electronic eavesdropping developed since the heyday of actual wiretapping in the Forties through Sixties) is a good idea within his preferred guidelines.

As a matter of policy, I'm inclined to disagree, although the devil lies in more detail, but it's not my clear reading that Klein's disagreement with you and I on this constitutes entirely missing the distinction between electronic eavesdropping and datamining. However, I do take your point, and amn't inclined to quibble further about it.

"Do you suppose they told the Telcos that the program had received the proper re-authorization anyway (using Ashcroft's illness as an excuse not to produce the documentation)?"

I find the parenthetical unlikely: I wasn't aware that there's a legal out from DoJ following the law if they can produce a note from the doctor. Direct lying, on the other hand (the non-parenthetical part of what I quote), I don't find at all entirely implausible.

"What is this 'Preview' button for?"

It allows us to indulge our perception -- and the need for speed -- that we are superior folk well beyond the need for such a childish crutch.

It's an educational tool, you see.

OCSteve: "Dude – so close."

Curiously, it turns out that pretty much no one has a "problem with the NSA eavesdropping on al-Qaeda and their minions within the US."

It's the assertion that that president can decide, in violation of law, on his own, without regard to even a secret court that almost never has disapproved a warrant, who might be "al-Qaeda and their minions" so that they can be eavesdropped upon.

But I'm sure that any unbiased observer has no problem with President Hillary Clinton having such power. Trust the president! That's what American government is all about, as expressed in the Federalist Papers, isn't it?

Also, we should just get rid of those inconvenient "courts" that so interfere with imprisoning evildoers: all we need to do is trust the government prosecutors, and lock up whomever they say is guilty! Clearly, anyone who finds that insufficient supports criminals.

The collocation of 'Ashcroft' and 'minions' in this post gives me the irresistable urge to reprint this, er, bon mot from Z magazine online (April 2004):

"The attorney general, who under his infamous Patriot Act made prosecution of cyber crimes easier, proudly announced he and his mignons had arrested 125 cyber criminals after beginning their "sweep" on Oct. 1."

although it looks -- offhandedly -- to me as if Klein doesn't not acknowledge your point, but disagrees, and holds the views that said eavesdropping (not "wiretapping," which is an extremely specific act, in which actual wires are attached to actual phones or their lines, and which doesn't subsume the entire vast range of other forms of electronic eavesdropping developed since the heyday of actual wiretapping in the Forties through Sixties) is a good idea within his preferred guidelines.

That's been Klein's problem since the very beginning... back when he uttered the infamous line "People like me who favor this program don't yet know enough about it yet... Those opposed to it know even less -- and certainly less than I do." It's like he's imagining a hypothetical eavesdropping protocol that he'd agree with, and then, for no apparent reason, behaving as though the protocol actually being employed by the administration matches his imaginary one.

Putting all that aside, Klein is committing a simple factual error when he says that the program, "as he understands it," involves using the results of data mining to procure FISA warrants. The federal court which enjoined the NSA surveillance program, on the other hand, found that it was "undisputed" that the electronic surveillance in question was occurring without warrants. If he would pay any attention to this issue, he'd see that the actual program under debate simply doesn't look like the one he imagines in his head.

JakeB, look up the etymology of "minion". You might find it amusing.

Steve: "Putting all that aside, Klein is committing a simple factual error when he says that the program, 'as he understands it,' involves using the results of data mining to procure FISA warrants."

Again, I agree with your general points, but not necessarily on your reading of this small point. I hold no brief for Klein, but it seems to me that he acknowledged the program's illegality when he wrote that "the problem was that all the front-end activity--monitoring thousands of calls (but not tapping them, as I understand it)--was illegal under existing FISA law."

Perhaps that means that he felt it was legal, but that wouldn't be my first reading.

I read you as implying that any and all surveillance under the NSA "Program" was absent a FISA warrant, and that Klein is glossing this, which may very well be correct, and the suggestion is well-taken, but possibly you may be assuming facts not in evidence: there's a distinction between what we suspect went on, and what we know went on. I agree with you that Klein seems inclined to substitute his imaginatory, and speculative, version of "the Program," for the (as yet-unknown-to-us) facts, but it wouldn't do to approach engaging in that sort of thing from the opposite direction.

If we want to pick on Klein over fine points of wording in a blog post, I'd point to this:

[...] then the NSA can go to FISA court and ask for a warrant to check out the stockbroker's private records to see if KSM was selling Spanish stocks before the Madrid bombings [...]
And I would note that "checking out" a "stockbroker's private records" seems perhaps more likely to be done by the FBI than the NSA, which is focused on intercepting communications. (These sorts of distinctions are part of why I'm a pedant about the usage of "wiretapping" versus "electronic surveillance" versus physical searches, and such; there are endless means of surveillance, relatively few of which have to do with telephones, so focusing on telephones and actual physical wiretapping is a confusing distraction, given that it's no longer 1936, or even 1966.)

I hold no brief for Klein, but it seems to me that he acknowledged the program's illegality when he wrote that "the problem was that all the front-end activity--monitoring thousands of calls (but not tapping them, as I understand it)--was illegal under existing FISA law."

The reason why I take issue with this is that Klein is claiming that data-mining is the entire issue. You seem to think I should be satisfied that Klein has acknowledged that something illegal took place. But what I take issue with is Klein's misrepresentation of the program as including:

1) a data-mining stage, which may technically be illegal under FISA;

2) followed by a targeted surveillance stage, where the government uses the results of the data-mining to procure FISA warrants.

At best, this assumes facts not in evidence. Perhaps the best-case scenario for the Bush Administration is that FISA simply didn't anticipate data-mining technology, and so they had to get creative when it came to data mining, but otherwise they followed FISA to the letter. But the facts don't support this scenario. As the District Court stated in enjoining the warrantless wiretapping program:

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.

Significantly, at the same time it reached this conclusion, the court dismissed the plaintiffs' claim relating to the data-mining program, stating that the government hadn't publicly admitted anything with respect to the details of that program.

Klein's significant error, then, is that he believes the only thing that was done without warrants is the data mining. The court's decision establishes that, in fact, the non-data mining portion of the program operates without FISA warrants, as the government itself has admitted.

There may be room for a good-faith dispute as to the legality of warrantless data mining, since it's new technology. But I don't see any room for disagreement with respect to the issue of conducting individualized electronic surveillance without a warrant. FISA says you have to get a warrant from the FISA court to do this, and they didn't. Klein is glossing over that fact by claiming that the only dispute involves data mining.

"Klein is glossing over that fact by claiming that the only dispute involves data mining."

Fair enough.

Dude – so close. You had me right up to that.

Arrr! I missed that -- I was tweaking him at Belgravia.


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