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Profile: National Security Agency (NSA)
National Security Agency (NSA) was a participant or observer in the following events:
New documents contradict Attorney General Alberto Gonzales’s recent sworn testimony before the Senate Judiciary Committee, indicating that Gonzales may have committed perjury before the panel.
Lied About Congressional Briefing - In testimony before the committee (see July 24, 2007), Gonzales told senators that a March 10, 2004 emergency briefing with the so-called “Gang of Eight,” comprised of the Republican and Democratic leaders of the two houses of Congress and the ranking members of both houses’ intelligence committees (see March 10, 2004), did not concern the controversial NSA warrantless domestic surveillance program, but instead was about other surveillance programs which he was not at liberty to discuss. But according to a four-page memo from the national intelligence director’s office, that briefing was indeed about the so-called “Terrorist Surveillance Program,” or TSP, as it is now being called by White House officials and some lawmakers. The memo is dated May 17, 2006, and addressed to then-Speaker of the House Dennis Hastert. It details “the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program,” wrote then-Director of National Intelligence John Negroponte. The DNI memo provides further evidence that Gonzales has not been truthful in his dealings with Congress, and gives further impetus to a possible perjury investigation by the Senate. So far, both Gonzales and Justice Department spokesmen have stood by his testimony. The nature of the March 2004 briefing is important because on that date, Gonzales and then-White House chief of staff Andrew Card tried to pressure then-Attorney General John Ashcroft, while Ashcroft was recuperating from emergency surgery in the hospital, to reauthorize the domestic wiretapping program over the objections of acting Attorney General James Comey, who had refused to sign off on the program due to its apparent illegality (see March 10-12, 2004). Comey’s own testimony before the Senate has already strongly contradicted Gonzales’s earlier testimonies and statements (see May 15, 2007). The entire imbroglio illustrates just how far from legality the NSA wiretapping program may be, and the controversy within the Justice Department it has produced. Gonzales flatly denied that the March 2004 briefing was about the NSA program, telling the panel, “The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program.”
Grilled By Senators - Senator Charles Schumer (D-NY) pressed Gonzales for clarification: “Not the TSP? Come on. If you say it’s about other, that implies not. Now say it or not.” Gonzales replied, “It was not. It was about other intelligence activities.” Today, with the DNI documents in hand, Schumer says, “It seemed clear to just about everyone on the committee that the attorney general was deceiving us when he said the dissent was about other intelligence activities and this memo is even more evidence that helps confirm our suspicions.” Other senators agree that Gonzales is not telling the truth. “There’s a discrepancy here in sworn testimony,” says committee chairman Patrick Leahy (D-VT). “We’re going to have to ask who’s telling the truth, who’s not.” And committee Democrats are not the only ones who find Gonzales’s testimony hard to swallow. Arlen Specter (R-PA) told Gonzales yesterday, “I do not find your testimony credible, candidly.” The “Gang of Eight” members disagree about the content of the March briefing. Democrats Nancy Pelosi, Jay Rockefeller, and Tom Daschle all say Gonzales’s testimony is inaccurate, with Rockefeller calling Gonzales’s testimony “untruthful.” But former House Intelligence chairman Porter Goss and former Senate Majority Leader Bill Frist, both Republicans, refuse to directly dispute Gonzales’s claims. [Associated Press, 7/25/2007]
Mueller Will Contradict Gonzales - Three weeks later, notes from FBI director Robert Mueller, also present at the Ashcroft meeting, further contradict Gonzales’s testimony (see August 16, 2007).
Entity Tags: National Security Agency, Patrick J. Leahy, Tom Daschle, Senate Judiciary Committee, US Department of Justice, Porter J. Goss, Nancy Pelosi, John Ashcroft, John D. Rockefeller, John Negroponte, Andrew Card, Arlen Specter, Bill Frist, Charles Schumer, “Gang of Eight”, James B. Comey Jr., Dennis Hastert, Alberto R. Gonzales
Timeline Tags: Civil Liberties
FBI Director Robert Mueller testifies before the House Judiciary Committee about the NSA’s warrantless wiretapping program (see Early 2002), which many believe to be illegal. Mueller directly contradicts testimony given the day before by Attorney General Alberto Gonzales (see July 24, 2007), where Gonzales claimed that “there has not been any serious disagreement about the program that the president has confirmed.” Mel Watt (D-NC) asks Mueller, “Can you confirm that you had some serious reservations about the warrantless wiretapping program that kind of led up to this?” Mueller replies, “Yes.” Later, Sheila Jackson-Lee (D-TX) asks about the now-notorious visit by Gonzales and then-chief of staff Andrew Card to then-Attorney General John Ashcroft’s hospital room, where they tried to pressure the heavily sedated Ashcroft to reauthorize the program (see March 10-12, 2004). Gonzales testified that he and Card visited Ashcroft to discuss “other intelligence matters,” and not the NSA surveillance program. Jackson-Lee asks, “Did you have an understanding that the conversation was on TSP?” referring to the current moniker of the NSA operation, the “Terrorist Surveillance Program.” Mueller replies, “I had an understanding that the discussion was on an NSA program, yes.” Jackson-Lee says, “I guess we use ‘TSP,’ we use ‘warrantless wiretapping,’ so would I be comfortable in saying that those were the items that were part of the discussion?” Mueller agrees: “The discussion was on a national NSA program that has been much discussed, yes.” [Speaker of the House, 7/26/2007; New York Times, 7/26/2007]
Legal analyst Jeffrey Toobin says he is “shocked” and “appalled” by the apparent perjury of Attorney General Alberto Gonzales to Congress. Gonzales testified (see July 24, 2007) under oath about a 2004 visit to a hospitalized John Ashcroft by himself and then-White House chief of staff Andrew Card to pressure Ashcroft, then the attorney general, to overrule the acting attorney general, James Comey, and reauthorize the National Security Agency’s domestic wiretapping program (see December 15, 2005). Toobin says of Gonzales’s apparent perjury, “You know, it’s our job to be jaded and not to be shocked. But I’m shocked. I mean, this is such an appalling set of circumstances. And the Justice Department is full of the most honorable, decent, skilled lawyers in the country. And to be led by someone who is so repudiated by members of both parties is, frankly, just shocking.” Toobin explains the nature of Gonzales’s alleged lies: when Gonzales was first asked, under oath, if there was any dispute among Justice Department and White House officials over the NSA program, he denied any such debates had taken place (see May 16, 2007). But months later, Comey testified (see May 15, 2007) that there was so much dissension in the Justice Department concerning the program that the attempt to pressure the ailing Ashcroft to reauthorize the program brought the dissent to a head: Comey, Ashcroft, FBI director Robert Mueller, and other officials threatened to resign if the program was not brought into line. Comey flatly contradicted Gonzales’s version of events. (Weeks from now, Mueller will release five pages of his own notes from that 2004 hospital meeting that will confirm Comey’s veracity; see August 16, 2007.) After Comey’s testimony called Gonzales’s truthfulness into question, Gonzales changed his story. He told his Congressional questioners that there were in fact two different programs that were being discussed at Ashcroft’s bedside, one controversial and the other not. Mueller has also testified that there is only one program causing such dispute: the NSA warrantless surveillance program. Toobin says, “So, this week, what happened was, the Senators said, well, what do you mean? How could you say it was uncontroversial, when there was this gigantic controversy? And Gonzales said, oh, no, no, no, we’re talking about two different programs. One was controversial. One wasn’t. But Mueller said today it was all just one program, and Gonzales, by implication, is not telling the truth.” The White House contends that the apparent contradiction of Gonzales’s varying statements is explained by the fact that all such surveillance programs are so highly classified that Gonzales cannot go into enough detail about the various programs to explain his “confusing” testimony. But Toobin disputes that explanation: “Mueller didn’t seem confused. No one seems confused, except Alberto Gonzales.” [CNN, 7/26/2007; Raw Story, 7/27/2007]
Four Democratic members of the Senate Judiciary Committee request that Attorney General Alberto Gonzales be investigated for perjury in light of his contradictory testimony to the Senate Judiciary Committee regarding the NSA warrantless wiretapping program (see July 24, 2007). “It has become apparent that the attorney general has provided at a minimum half-truths and misleading statements,” the four senators—Charles Schumer (D-NY), Dianne Feinstein (D-CA), Russ Feingold (D-WI), and Sheldon Whitehouse (D-RI)—write in a letter to Solicitor General Paul Clement calling for a special counsel to investigate. “We ask that you immediately appoint an independent special counsel from outside the Department of Justice to determine whether Attorney General Gonzales may have misled Congress or perjured himself in testimony before Congress.” [Senate Judiciary Committee, 7/26/2007] (The letter is sent to Clement because he would be the one to decide whether to appoint a special counsel. Gonzales and outgoing Deputy Attorney General Paul McNulty have recused themselves from any such investigation due to their own involvement in the incidents. The next person in line at the Justice Department, acting Associate Attorney General William Mercer, lacks the authority to make such a decision.) [CBS News, 7/26/2007] Senate Majority Leader Harry Reid (D-NV), who did not sign the letter but supports the request for a special counsel, says, “I’m convinced that he’s not telling the truth.” The call for a special counsel follows earlier testimony by FBI director Robert Mueller that flatly contradicted Gonzales’s testimony (see July 26, 2007), though White House spokespersons denied that Mueller contradicted Gonzales.
White House Denies Perjury Allegation - White House press secretary Tony Snow says the apparent contradictions stem from Gonzales’s and Mueller’s restrictions in testifying in public about the classified program. “The FBI director didn’t contradict the testimony,” Snow says. “It is inappropriate and unfair to ask people to testify in public settings about highly classified programs. The president, meanwhile, maintains full confidence in the attorney general.” And Justice Department spokesman Brian Roehrkasse insists that Gonzales was referring during his testimony to a separate intelligence operation that has not yet been revealed, though numerous other sources have contradicted that position (see July 25, 2007). “The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified,” Roehrkasse says.
Further Instances of Misleading Testimony - Senate Democrats also assert that Gonzales has repeatedly given false and misleading testimony about the US attorney firings, has been part of a White House program to encourage White House aides to ignore Congressional subpoenas, has falsely claimed that he has never discussed the firings with other witnesses (including White House aide Monica Goodling, who recently testified that she discussed the firings with Gonzales), and other instances of deception. Schumer says, “There’s no wiggle room. Those are not misleading [statements]. Those are deceiving. Those are lying.” [Associated Press, 7/26/2007] Schumer says at a press conference later in the day, “The attorney general took an oath to tell the truth, the whole truth and nothing but the truth. Instead, he tells the half-truth, the partial truth and everything but the truth. And he does it not once, and not twice, but over and over and over again. His instinct is not to tell the truth but to dissemble and deceive.…I have not seen anything like it from a witness in the 27 years that I have been in Congress.” Feingold adds, “Based on what we know and the evidence about what happened in terms of the gang of eight and what he said in that sworn testimony in the committee, I believe it’s perjury.…Not just misleading—perjury.” [US Senate, 7/26/2007] Judiciary Committee chairman Patrick Leahy (D-VT) does not sign the letter asking for the investigation, and has instead sent his own letter to Gonzales giving him a week to resolve the inconsistencies in his testimony. “The burden is on him to clear up the contradictions,” Leahy says. Leahy is joined by ranking Republican committee member Arlen Specter (R-PA), who says the call for a special counsel is premature. Specter accuses Schumer of “throwing down the gauntlet and making a story in tomorrow’s newspapers.” [Associated Press, 7/26/2007] Specter has suggested that Gonzales resign instead of continuing as attorney general. [USA Today, 7/26/2007]
'Linguistic Parsing' - Justice Department aides acknowledge that Gonzales’s self-contradictory testimonies have caused confusion because of his “linguistic parsing.” [New York Times, 7/26/2007]
Entity Tags: Paul J. McNulty, Robert S. Mueller III, Senate Judiciary Committee, US Department of Justice, Tony Snow, Sheldon Whitehouse, William W. Mercer, Paul Clement, Patrick J. Leahy, Russell D. Feingold, Monica M. Goodling, Alberto R. Gonzales, Arlen Specter, Charles Schumer, Brian Roehrkasse, Harry Reid, National Security Agency, Dianne Feinstein
Timeline Tags: Civil Liberties
In a letter to Senator Arlen Specter (R-PA), Director of National Intelligence Mike McConnell acknowledges that President Bush “authorized the National Security Agency to undertake various intelligence activities designed to protect the United States from further terrorist attack.” Many of these “intelligence activities,” the nature of which has never been made public, were authorized under the same secret executive order Bush used to authorize the NSA’s domestic warrantless wiretapping program (see Early 2002). McConnell says that the only aspects of the variety of programs that can be acknowledged or discussed are those already revealed by the New York Times in its expose of the NSA warrantless surveillance program (see December 15, 2005). McConnell adds, “It remains the case that the operational details even of the activity acknowledged and described by the President have not been made public and cannot be disclosed without harming national security.” McConnell also acknowledges that the marketing moniker “Terrorist Surveillance Program” was adopted in early 2006, after the revelations of the NSA program hit the media. [Mike McConnell, 7/31/2007 ]
Congressional Democrats attempt to short-circuit the Protect America Act (see August 5, 2007) currently under debate. They introduce their own bill, the Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act, that would address the administration’s concerns that the Foreign Intelligence Surveillance Act imposed unwieldy limitations on the NSA’s ability to electronically monitor foreign communications that were transmitted through communications networks inside the US. The Democrats’ bill redefines “electronic surveillance” to allow the NSA to monitor such communications without a FISA warrant if it “reasonably believes” the targets of those communications to be outside the US. This would give the NSA new surveillance powers, so the Democrats’ bill provides for oversight by the FISA Court, audits by the Justice Department’s Inspector General, and restrictions on domestic surveillance. However, the Bush administration does not want the bill to become law. President Bush announces that he opposes the bill, and threatens to hold Congress in session past its August adjournment date until he can get the Protect America Act passed. The Democrats’ bill dies before ever coming up for a full vote in Congress. [US House of Representatives, 8/3/2007 ; Slate, 8/6/2007]
The Center for National Security Studies (CNSS) issues a warning about the Protect America Act (PAA—see August 5, 2007). The PAA lets the NSA conduct warrantless surveillance against US citizens “without any meaningful judicial oversight,” the CNSS writes, and gives the NSA almost unlimited access to almost all international communications that originate in, pass through, or terminate with a US citizen, again without oversight. According to the CNSS, the administration refused to countenance any suggestion that the NSA should be restricted to focusing on foreigners, terrorist targets, or conducting surveillance that could be construed as necessary to national security, as well as refusing to allow any meaningful judicial or Congressional oversight. [Center for National Security Studies, 8/5/2007]
Mitch McConnell. [Source: US Senate]President Bush signs the controversial Protect America Act (PAA) into law. The bill, which drastically modifies the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978), was sponsored by two Senate Republicans, Mitch McConnell (R-KY) and Christopher Bond (R-MO), but written by the Bush administration’s intelligence advisers. [US Senate, 8/5/2007; Washington Post, 8/5/2007] It passed both houses of Congress with little debate and no hearings (see August 1-4, 2007). “This more or less legalizes the NSA [domestic surveillance] program,” says Kate Martin, director of the Center for National Security Studies. [New York Times, 8/6/2007] Slate’s Patrick Radden Keefe adds ominously, “The Foreign Intelligence Surveillance Act is now dead, and it’s never coming back.” [Slate, 8/6/2007] The PAA expires in six months, the only real concession Congressional Democrats were able to secure. Though the Bush administration and its allies in Congress insist that the law gives the government “the essential tools it needs” to conduct necessary surveillance of foreign-based terrorists while protecting Americans’ civil liberties, many Democrats and civil liberties organizations say the bill allows the government to wiretap US residents in communication with overseas parties without judiciary or Congressional oversight. Bush calls the bill “a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law” that needs to be expanded and made permanent by subsequent legislation. The administration says that the lack of judiciary oversight in the new law will be adequately covered by “internal bureaucratic controls” at the National Security Agency. [Associated Press, 8/5/2007; Washington Post, 8/5/2007]
Reining in FISA - The PAA allows FISA to return “to its original focus on protecting the rights of Americans, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas.” Before the PAA, the White House says, FISA created unnecessary obstacles in allowing US intelligence to “gain real-time information about the intent of our enemies overseas,” and “diverted scarce resources that would be better spent safeguarding the civil liberties of people in the United States, not foreign terrorists who wish to do us harm.” The PAA no longer requires the government to obtain FISA warrants to monitor “foreign intelligence targets located in foreign countries” who are contacting, or being contacted by, US citizens inside US borders. FISA will continue to review the procedures used by US intelligence officials in monitoring US citizens and foreign contacts by having the attorney general inform the FISA Court of the procedures used by the intelligence community to determine surveillance targets are outside the United States.”
Allows Third Parties to Assist in Surveillance, Grants Immunity - The PAA also allows the director of national intelligence and the attorney general to secure the cooperation of “third parties,” particularly telecommunications firms and phone carriers, to “provide the information, facilities, and assistance necessary to conduct surveillance of foreign intelligence targets located overseas.” It provides these firms with immunity from any civil lawsuits engendered by such cooperation.
Short Term Legislation - The White House says that Congress must pass further legislation to give telecommunications firms permanent and retroactive immunity against civil lawsuits arising from their cooperation with the government’s domestic surveillance program. [White House, 8/6/2006]
Temporary Suspension of the Constitution? - Representative Rush Holt (D-NJ), a member of the House Intelligence Committee, says: “I’m not comfortable suspending the Constitution even temporarily. The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security.” [Washington Post, 8/5/2007]
Entity Tags: Christopher (“Kit”) Bond, National Security Agency, Foreign Intelligence Surveillance Act, George W. Bush, Foreign Intelligence Surveillance Court, Mitch McConnell, Al-Qaeda, Terrorist Surveillance Program, Kate Martin, Patrick Radden Keefe, Rush Holt, Protect America Act
Timeline Tags: Civil Liberties
Aziz Huq. [Source: American Prospect]Aziz Huq, an author and the director of the Brennan Center for Justice at New York University, writes that the Protect America Act (PAA-see August 5, 2007) came about as a result of what he calls “the most recent example of the national security waltz, a three-step administration maneuver for taking defeat and turning it into victory.” Step one is a court defeat for the administration, for example regarding detainees at Guantanamo (see June 28, 2004), or the overruling of military commissions in 2006 (see June 30, 2006). The second step, which comes weeks or months later, is an announcement that the ruling has created a security crisis and must be “remedied” through immediate legislation. The third and final step is the administration pushing legislation through Congress, such as the Detainee Treatment Act (see December 15, 2005) or the Military Commissions Act, that, Huq writes, “not only undoes the good court decision but also inflicts substantial damage to the infrastructure of accountability.”
Step One: FISC Refuses to Approve NSA's Surveillance Program - In January 2007, the administration announced that it was submitting the NSA’s domestic surveillance program to the Foreign Intelligence Surveillance Court (FISC), the secret court that issues FISA warrants for surveillance (see May 1, 2007). This was due to pending court cases threatening to rule the program in violation of FISA and the Fourth Amendment; the administration wanted to forestall, or at least sidestep, those upcoming rulings. In June, FISC refused to approve parts of the NSA program that involved monitoring overseas communications that passed through US telecom switches. Since a tremendous amount of overseas communications are routed through US networks, this ruling jeopardized the NSA’s previous ability to wiretap such communications virtually at will without a warrant. The administration objected to the NSA having to secure such warrants.
Step Two: The Drumbeat Begins - Months later, the drumbeat for new legislation to give the NSA untrammeled rights to monitor “overseas” communications, which not only traveled through US networks, but often began or ended with US citizens, began with appearances in the right-wing media by administration supporters, where they insisted that the FISC ruling was seriously hampering the NSA’s ability to garner much-needed intelligence on terrorist plots against the US. The White House and Congressional Republicans drafted legislation giving the NSA what it wanted, and presented it during the last week of the Congressional session, minimizing the time needed for scrutiny of the legislation as well as reducing the time available for meaningful debate.
Step Three: Passing a Law With Hidden Teeth - The legislation that would become the Protect America Act was carefully written by Bush officials, and would go much farther than giving the NSA the leeway it needed to wiretap US citizens. Instead, as Huq writes, “the Protect America Act is a dramatic, across-the-board expansion of government authority to collect information without judicial oversight.” Democrats believed they had negotiated a deal with the administration’s Director of National Intelligence, Mike McConnell, to limit the law to addressing foreign surveillance wiretaps, but, Huq writes, “the White House torpedoed that deal and won a far broader law.” The law removes any real accountability over domestic surveillance by either Congress or the judiciary. Former CIA officer Philip Giraldi says that the PAA provides “unlimited access to currently protected personal information that is already accessible through an oversight procedure.” The law is part of the administration’s continual attempts to “eviscerat[e]” the checks and balances that form the foundation of US democracy.
Ramifications - The law includes the provision that warrantless surveillance can be “directed at a person reasonably believed to be located outside of the United States.” Huq writes that this is a tremendously broad and vague standard that allows “freewheeling surveillance of Americans’ international calls and e-mails.” He adds: “The problem lies in the words ‘directed at.’ Under this language, the NSA could decide to ‘direct’ its surveillance at Peshawar, Pakistan—and seize all US calls going to and from there.… Simply put, the law is an open-ended invitation to collect Americans’ international calls and e-mails.” The law does not impose any restrictions on the reason for surveillance. National security concerns are no longer the standard for implementing surveillance of communications. And the phrase “reasonably believe” is uncertain. The provisions for oversight are, Huq writes, “risibly weak.” Surveillance need only be explained by presentations by the Director of National Intelligence and the Attorney General to FISC, which has little room to invalidate any surveillance, and furthermore will not be informed of any specific cases of surveillance. As for Congress, the Attorney General only need inform that body of “incidents of noncompliance” as reported by the administration. Congress must rely on the administration to police itself; it cannot demand particulars or examine documentation for itself. The law expires in six months, but, Huq notes, that deadline comes up in the middle of the 2008 presidential campaign, with all the pressures that entails. And the law allows “the NSA to continue wielding its new surveillance powers for up to a year afterward.” The law, Huq writes, “does not enhance security-related surveillance powers. Rather, it allows the government to spy when there is no security justification. And it abandons all but the pretense of oversight.” [Nation, 8/7/2007]
AT&T attorney Michael Kellogg enters the courtroom. [Source: Wired News]The Ninth Circuit Court of Appeals in San Francisco hears two related cases: one a government appeal to dismiss a case brought against AT&T for its involvement in the National Security Agency (NSA)‘s domestic wiretapping program (see July 20, 2006), and the other a challenge to the government’s authority to wiretap overseas phone calls brought on behalf of a now-defunct Islamic charity, Al Haramain (see February 28, 2006). The AT&T lawsuit is brought by the Electronic Frontier Foundation (see January 31, 2006). Among the onlookers is AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009), who has provided key documentation for the EFF lawsuit (see Early January 2006).
Government Lawyer: Court Should Grant 'Utmost Deference' to Bush Administration - Deputy Solicitor General Gregory Garre, arguing on behalf of the US government, tells Judge Harry Pregerson, one of the three judges presiding over the court, that allowing the EFF lawsuit against AT&T to go forward would result in “exceptionally grave harm to national security in the United States,” even though a previous judge has ruled otherwise (see July 20, 2006) and the government itself has admitted that none of the material to be used by EFF is classified as any sort of state secret (see June 23, 2006). Pregerson says that granting such a request would essentially make his court a “rubber stamp” for the government, to which Garre argues that Pregerson should grant the “utmost deference” to the Bush administration. Pregerson retorts: “What does utmost deference mean? Bow to it?” [Wired News, 8/15/2007] Klein will later accuse Garre of using “scare tactics” to attempt to intimidate the judges into finding in favor of AT&T and the government. [Klein, 2009, pp. 79]
Government Refuses to Swear that Domestic Surveillance Program Operates under Warrant - Garre says that the goverment’s domestic surveillance program operates entirely under judicial warrant; he says the government is not willing to sign a sworn affidavit to that effect. Reporter Kevin Poulsen, writing for Wired News, says that Garre’s admission of the government’s reluctance to swear that its domestic surveillance program operates with warrants troubles all three judges. AT&T attorney Michael Kellogg argues that AT&T customers have no proof that their communications are being given over to the government without warrants, and therefore the EFF lawsuit should be dismissed. “The government has said that whatever AT&T is doing with the government is a state secret,” Kellogg says. “As a consequence, no evidence can come in whether the individuals’ communications were ever accepted or whether we played any role in it.” EFF attorney Robert Fram argues that the Foreign Intelligence Surveillance Act (FISA) allows citizens to challenge electronic surveillance by permitting courts to hear government evidence in chambers. He is careful, Poulsen writes, to note that EFF does not want specific information on the NSA’s sources and methods, and says that EFF already has enough evidence to prove its assertion that AT&T compromised its customers’ privacy by colluding with the NSA’s domestic surveillance program.
Government Mocks Whistleblower's AT&T Documentation - Garre mocks Klein’s AT&T documents, saying that all they prove is that the NSA’s secret room in AT&T’s San Francisco facility (see Late 2002-Early 2003, January 2003, and October 2003) “has a leaky air conditioner and some loose cables in the room.” Fram counters that Klein’s documentation is specific and damning. It proves that the NSA housed a splitter cabinet in that secret room that “split” data signals, allowing the NSA to wiretap literally millions of domestic communications without the knowledge of AT&T customers (see February 2003, Fall 2003, Late 2003, and Late 2003). Fram says Klein’s documents, along with other non-classified documentation EFF has presented, proves “the privacy violation on the handover of the Internet traffic at the splitter into the secret room, which room has limited access to NSA-cleared employees. What is not part of our claim is what happens inside that room.” Klein’s documentation proves the collusion between AT&T and the NSA, Fram states, but Judge M. Margaret McKeown questions this conclusion. According to Poulsen, McKeown seems more willing to grant the government the argument that it must protect “state secrets” than Pregerson.
Government Argues for Dismissal of Al Haramain Case - As in the AT&T portion of the appeal hearing, the government, represented by Assistant US Attorney General Thomas Brody, argues for the Al Haramain lawsuit’s dismissal, saying, “The state secrets privilege requires dismissal of this case.” Even the determination as to whether Al Haramain was spied upon, he argues, “is itself a state secret.” The Top Secret government document that Al Haramain is using as the foundation of its case is too secret to be used in court, Brody argues, even though the government itself accidentally provided the charity with the document. Even the plaintiff’s memories of the document constitute “state secrets” and should be disallowed, Brody continues. “This document is totally non-redactable and non-segregable and cannot even be meaningfully described,” he says. A disconcerted Judge McKeown says, “I feel like I’m in Alice and Wonderland.” Brody concludes that it is possible the Al Haramain attorneys “think or believe or claim they were surveilled. It’s entirely possible that everything they think they know is entirely false.” [Wired News, 8/15/2007]
No Rulings Issued - The appeals court declines to rule on either case at this time. Klein will later write, “It was clear to everyone that this panel would, if they ever issued a ruling, deny the ‘state secrets’ claim and give the green light for the EFF lawsuit to go forward.” [Klein, 2009, pp. 79-81] Wired News’s Ryan Singel writes that the panel seems far more sympathetic to the EFF case than the Al Haramain case. The judges seem dismayed that the government fails to prove that no domestic surveillance program actually exists in the EFF matter. However, they seem far more willing to listen to the government’s case in the Al Haramain matter, even though McKeown says that the government’s argument has an “Alice in Wonderland” feel to it. Singel believes the government is likely to throw out the secret document Al Haramain uses as the foundation of its case. However, he writes, “all three judges seemed to believe that the government could confirm or deny a secret intelligence relationship with the nation’s largest telecom, without disclosing secrets to the world.… So seemingly, in the eyes of today’s panel of judges, in the collision between secret documents and the state secrets privilege, ‘totally secret’ documents are not allowed to play, but sort-of-secret documents—the AT&T documents—may be able to trump the power of kings to do as they will.” [Wired News, 8/15/2007] Wired News’s David Kravets notes that whichever way the court eventually rules, the losing side will continue the appeals process, probably all the way to the US Supreme Court. The biggest question, he says, is whether the NSA is still spying on millions of Americans. [Wired News, 8/15/2007]
Entity Tags: Foreign Intelligence Surveillance Act, US Supreme Court, Electronic Frontier Foundation, Bush administration (43), Al Haramain Islamic Foundation, AT&T, David Kravets, Ryan Singel, Thomas Brody, National Security Agency, Mark Klein, Kevin Poulsen, M. Margaret McKeown, Gregory Garre, Harry Pregerson, Robert Fram, Michael Kellogg
Timeline Tags: Civil Liberties
In testimony before the House Judiciary Committee, Director of National Intelligence Mike McConnell admits, “9/11 should have and could have been prevented; it was an issue of connecting information that was available.” [ABC News, 9/18/2007] The reason he gives for this is: “There was a terrorist. He was a foreigner. He was in the United States [note: presumably he is referring to Khalid Almihdhar]. He was planning to carry out the 9/11 attacks. What the 9/11 Commission and the Joint Inquiry found is that person communicated back to al-Qaeda overseas and we failed to detect it.” [US Congress, 9/18/2007] However, it is unclear which portions of the 9/11 Commission and Congressional Inquiry reports he thinks he is referring to. The 9/11 Commission report contains two brief mentions of these calls to and from the US, but does not say whether they were detected or not, although it does say that other calls made outside the US by the 9/11 hijackers were detected. [9/11 Commission, 7/24/2004, pp. 87-8, 181, 222] The Congressional Inquiry report says that the calls between Almihdhar in the US and the al-Qaeda communications hub in Yemen were intercepted and analyzed by the NSA, which distributed reports to other intelligence agencies about some of them. [US Congress, 7/24/2003, pp. 157 ] The FBI had requested the NSA inform it of calls between the number Almihdhar talked to, an al-Qaeda communications hub in Yemen, and the US (see Late 1998), but the NSA did not do so (see (Spring 2000)). A variety of explanations are offered for this after 9/11 (see Summer 2002-Summer 2004 and March 15, 2004 and After).
Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), testifies before the Senate Judiciary Committee about his former department’s involvement in approving the NSA’s warrantless wiretapping program (see Early 2002). [Washington Post, 10/20/2007] There were aspects of the Terrorist Surveillance Program “that I could not find the legal support for,” he says, but because the program is classified, he refuses to give specific details about which aspects violate the law. Goldsmith says he assumes the White House does not want the legality of the program scrutinized, and therefore, “the extreme secrecy—not getting feedback from experts, not showing it to experts—led to a lot of mistakes.” [Associated Press, 10/2/2007]
Testimony About Hospital Visit - Goldsmith testifies about the failed attempt by then-White House counsel Alberto Gonzales and then-White House chief of staff Andrew Card to pressure then-Attorney General John Ashcroft to declare the program legal over the objections of Goldsmith and Ashcroft’s deputy, James Comey (see March 10-12, 2004). Goldsmith, who accompanied Comey to Ashcroft’s hospital room to counter Gonzales and Card, calls their visit “inappropriate and baffling,” and testifies that Ashcroft “didn’t appreciate being visited in the hospital under these circumstances.” Goldsmith’s testimony further refutes the previous testimony of Gonzales, who insisted that there had been little or no dissension within the department over the wiretapping program (see July 24, 2007). Goldsmith tells the committee, “There were enormous disagreements” about the program, though Gonzales’s explanations could be construed as technically accurate given the varying terminology used for the program. [Washington Post, 10/20/2007] Goldsmith adds that Comey’s account of the events of that visit is accurate, becoming another former administration official to contradict Gonzales’s own testimony about the incident. Goldsmith also contradicts Gonzales’ insistence that there was very little real dissension among Justice Department and White House officials over the legality of the NSA wiretapping program. [Associated Press, 10/2/2007]
Bush Sent Gonzales, Card to Pressure Ashcroft - Goldsmith also testifies that President Bush personally dispatched Gonzales and Card to Ashcroft’s hospital room (see October 2, 2007).
Entity Tags: George W. Bush, Bush administration (43), Alberto R. Gonzales, US Department of Justice, Terrorist Surveillance Program, Office of Legal Counsel (DOJ), National Security Agency, James B. Comey Jr., John Ashcroft, Andrew Card, Jack Goldsmith
Timeline Tags: Civil Liberties
Qwest logo. [Source: Qwest]Former Qwest CEO Joe Nacchio, who refused to accede to Bush administration demands that he participate in the warrantless wiretapping of US citizens (see February 2001 and Beyond), says in court documents released today that the NSA retaliated against Qwest by withdrawing a large government contract from the firm. Nacchio was convicted on 19 counts of insider trading, and was unable to mount the defense he wanted because the information he tried to present to the court was classified. He is appealing the verdict. The documents released today make up part of that defense. The documents indicate that the NSA was discussing a secret and possibly illegal surveillance operation against Americans as far back as February 2001—months before the 9/11 attacks, which Bush officials have used to justify wiretapping Americans without court warrants. Although the legal filings are heavily redacted for public consumption, they reveal, among other things, a February 27, 2001 meeting between Nacchio and NSA officials to discuss an infrastructure project and another, classified topic that may be regarding the NSA’s illegal wiretapping of US citizens (see February 27, 2001). After the discussion, in which Nacchio refuses to participate in the operation, the NSA withdrew its “Groundbreaker” contract from consideration for Qwest. Nacchio and an associate “went into that meeting expecting to talk about the ‘Groundbreaker’ project and came out of the meeting with optimism about the prospect for 2001 revenues from NSA,” Stern writes, “[T]he Court has prohibited Mr. Nacchio from eliciting testimony regarding what also occurred at that meeting, [redacted].… The Court has also refused to allow Mr. Nacchio to demonstrate that the agency retaliated for this refusal by denying the Groundbreaker and perhaps other work to Qwest.” Nacchio was convicted for not warning investors that Qwest’s stock would drop before he sold off his own stock; Nacchio contends that he believed the secret NSA contracts would come through and bolster his former firm’s stock price. [Raw Story, 10/12/2007; Marketwatch, 10/13/2007]
Qwest's No-Bid Contracts - On May 25, 2007, Judge Edward Nottingham wrote that, according to Nacchio, “Qwest entered into two classified contracts valued at hundreds of millions of dollars, without a competitive bidding process and that in 2000 and 2001, he participated in discussion with high-ranking [redacted] representatives concerning the possibility of awarding additional contracts of a similar nature.… Those discussions led him to believe that [redacted] would award Qwest contracts valued at amounts that would more than offset the negative warnings he was receiving about Qwest’s financial prospects.” [Washington Post, 10/13/2007]
'Quid Pro Quo' - The Electronic Frontier Foundation’s Hugh D’Andrade writes, “It appears that the NSA’s requests for cooperation came with an implied quid pro quo—give us your customer’s calling records and we will reward you with generous contracts worth millions. It is beginning to look like the telecoms were motivated by something other than ‘patriotism’ after all.” [Electronic Frontier Foundation, 10/17/2007]
'Never-Ending Carousel' - And Salon’s Glenn Greenwald, himself a former Constitutional law and civil rights litigator, writes, “The cooperation between the various military/intelligence branches of the federal government—particularly the Pentagon and the NSA—and the private telecommunications corporations is extraordinary and endless. They really are, in every respect, virtually indistinguishable. The federal government has its hands dug deeply into the entire ostensibly ‘private’ telecommunications infrastructure and, in return, the nation’s telecoms are recipients of enormous amounts of revenues by virtue of turning themselves into branches of the federal government. There simply is no separation between these corporations and the military and intelligence agencies of the federal government. They meet and plan and agree so frequently, and at such high levels, that they practically form a consortium.” Greenwald calls it “a never-ending carousel of multi-billion dollar transactions—pursuant to which enormous sums of taxpayer money are transferred to these telecoms in exchange for the telecoms serving as obedient divisions of the government, giving them unfettered access to all of the data and content of the communications of American citizens.” [Salon, 10/15/2007]
Entity Tags: National Security Agency, Qwest, Joe Nacchio, US Department of Defense, Hugh D’Andrade, Herbert Stern, Glenn Greenwald, Bush administration (43), American Civil Liberties Union, Electronic Frontier Foundation, Edward Nottingham, AT&T
Timeline Tags: Civil Liberties
Michael Mukasey, the new Attorney General, writes an op-ed for the Los Angeles Times pushing for Congressional immunity for US telecommunications firms over their cooperation with the NSA’s warrantless wiretapping program. Mukasey supports the NSA program, echoing the administration’s long insistence that the surveillance program is “crucial” in protecting the country against terrorist attacks. He also reiterates the administration’s criticism of the “outdated” Foreign Intelligence Surveillance Act, which he says hampers the government’s ability to collect needed intelligence and does little to protect the privacy of US citizens. Mukasey calls for Congress to pass a Senate bill that would grant the telecommunications firms retroactive immunity to civil lawsuits and criminal charges surrounding their cooperation with the NSA, and would no longer require court orders for the government to “direct surveillance at foreign targets overseas”—surveillance that would target US citizens. Mukasey says the US will “need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.” Mukasey strongly opposes another Senate bill that would grant no immunity and would continue to require the government to obtain FISA Court warrants before wiretapping domestic communications. Two days earlier, the director of national intelligence, Michael McConnell, penned a virtually identical op-ed for the New York Times (see December 10, 2007). [Los Angeles Times, 12/12/2007]
The Bush administration begins a push to get Congress to pass legislation to protect telecommunications companies from lawsuits over their assistance with the NSA’s warrantless wiretapping program. This is part of the administration’s long and sometimes uneasy partnership with the telecom industry to conduct a wide range of secret anti-terrorism surveillance operations. The firms fear further lawsuits and more public exposure, and some have refused outright to cooperate (see February 27, 2001 and 1990s).
Fiber Optics - Twenty years ago, the NSA had little difficulty in monitoring telephone communications because older technology relied on broadcast signals carried by microwave towers and satellite relays; the agency used its own satellite dishes to cull the signals. But fiber optic communications are much more difficult to tap, forcing the agency to seek the cooperation of the telecoms to monitor their signals.
Relationship - “It’s a very frayed and strained relationship right now, and that’s not a good thing for the country in terms of keeping all of us safe,” says an industry official in favor of immunity for the telecoms. “This episode has caused companies to change their conduct in a variety of ways.” Both the director of national intelligence, Mike McConnell, and the new Attorney General, Michael Mukasey, write virtually identical op-eds in recent days calling for passage of legislation to grant immunity to the telecoms and remove the need to obtain warrants to wiretap Americans’ communications (see December 10, 2007 and December 12, 2007).
Two Bills - Currently, two bills are before Congress: one largely crafted by Republicans and passed on by the Senate Intelligence Committee that would grant retroactive immunity to the telecoms, and another from the House Judiciary Committee that would not. The White House says President Bush will veto any legislation that does not grant immunity to the telecoms. [New York Times, 12/16/2007]
MSNBC host Keith Olbermann reveals what may be a personal stake in the Bush administration’s push for immunity for telecommunications companies who helped the NSA spy on Americans (see January 28, 2008). Attorney General Michael Mukasey’s son Marc Mukasey is a partner in the law firm of Bracewell & Giuliani (the same Rudolph Giuliani who up until recently was a candidate for the Republican nomination for president). Marc Mukasey is one of the lawyers representing Verizon, one of the telecom firms being sued for cooperating with the government’s surveillance program (see May 12, 2006 and June 26, 2006). Olbermann says of the Mukasey-Giuliani connection: “Now it begins to look like the bureaucrats of the Third Reich trying to protect the Krupp family industrial giants by literally re-writing the laws for their benefit. And we know how that turned out: Alfred Krupp and eleven of his directors were convicted of war crimes at Nuremburg.” [MSNBC, 1/31/2008]
Senator John D. Rockefeller (D-WV) lets slip the news that changes proposed to US surveillance laws drastically increase the government’s ability to conduct electronic surveillance inside the US. While speaking against an amendment that would require the government to destroy non-emergency evidence procured through domestic surveillance if a court later finds the surveillance was illegal, Rockefeller reveals that the new laws will not just “make it easier for the NSA to wiretap terrorists,” as the argument goes, but will allow the NSA to, in reporter Ryan Singel’s words, “secretly and unilaterally install filters inside America’s phone and Internet infrastructure.” Rockefeller tells his fellow senators: “Unlike traditional [Foreign Intelligence Surveillance Act] application orders which involve collection on one individual target, the new FISA provisions create a system of collection. The courts role in this system of collection is not to consider probable cause on individual targets but to ensure that procedures used to collect intelligence are adequate. The courts’ determination of the adequacy of procedures therefore impacts all electronic communications gathered under the new mechanisms, even if it involves thousands of targets.” Singel puts it more plainly: “In short, the changes legalize Room 641A, the secret spying room inside AT&T’s San Francisco Internet switching center” (see November 7-8, 2007). FISA judges will, if the law is passed, no longer evaluate whether the government has sufficient cause to eavesdrop on someone inside the US. Instead, the judges will only be able to evaluate descriptions of what the NSA is doing with its “filters.” There is no provision in the new bill to penalize the NSA for conducting illegal surveillances. [Wired News, 2/5/2008]
Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell write to Silvestre Reyes, the Democratic chairman of the House Intelligence Committee, about their desire to see the Protect America Act renewed. In the letter, they mention the failure to exploit NSA intercepts of calls between the 9/11 hijackers in the US and al-Qaeda’s main global communications hub, which apparently had the potential to thwart the 9/11 plot (see Early 2000-Summer 2001). They write: “[O]ne of the September 11th hijackers communicated with a known overseas terrorist facility while he was living in the United States. Because that collection was conducted under Executive Order 12333, the intelligence community could not identify the domestic end of the communication prior to September 11, 2001, when it could have stopped that attack.” [US Department of Justice and Office of the Director of National Intelligence, 2/28/2008 ] Executive Order 12333 became law in 1981 and governed general activities by the US intelligence community. [US President, 12/4/1981] The order did allow the NSA to disseminate information about US persons to law enforcement officials in the event of an impending terrorist act. [US Congress: House Permanent Select Committee on Intelligence, 4/12/2000] The letter does not give more detailed reasons why Mukasey and McConnell think the NSA could not have traced the calls and informed the FBI of the two hijackers’ presence in the US (see (Spring 2000)). [US Department of Justice and Office of the Director of National Intelligence, 2/28/2008 ] Similar incorrect statements have been made by numerous intelligence officials since December 2005, when the NSA’s warrantless wiretapping program was revealed (see December 17, 2005).
The American Civil Liberties Union (ACLU), fresh from obtaining the release of a 2003 Justice Department memo that justified torture for US military officials (see April 1, 2008), calls on the Bush administration to release a still-secret Justice Department memo from October 2001 that the 2003 memo used as legal justification to ignore the Fourth Amendment (see October 23, 2001). The Fourth Amendment protects against unlawful search and seizure. The 2001 memo claims that the “Fourth Amendment had no application to domestic military operations.” The ACLU believes that the Fourth Amendment justification “was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued” (see Shortly After September 11, 2001-October 2005), a claim the Justice Department denies. The NSA is part of the Defense Department. Jameel Jaffer, director of the ACLU’s National Security Project, says: “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power. The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” No one has ever tried to assert, before this memo was written, that the Fourth Amendment was legally impotent for any reason or justification inside US borders. Jaffer notes that no court has ever ruled that the Fourth Amendment does not apply to the military: “In general, the government can’t send an FBI agent to search your home or listen to your phone calls without a warrant, and it can’t send a soldier to do it, either. The applicability of the Fourth Amendment doesn’t turn on what kind of uniform the government agent is wearing.” The ACLU has known about the October 2001 memo for several months, but until now has not known anything of its contents. In response to a 2007 Freedom of Information lawsuit, the Justice Department acknowledged the existence of “a 37-page memorandum, dated October 23, 2001, from a deputy assistant attorney general in OLC [Office of Legal Counsel], and a special counsel, OLC, to the counsel to the president, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.” The only information publicly known about the memo was that it was related to a request for information about the NSA’s warrantless wiretapping program. The ACLU has challenged the withholding of the October 2001 memo in court. [American Civil Liberties Union, 4/2/2008]
The Electronic Frontier Foundation joins the American Civil Liberties Union in its skeptical response to the news of a secret October 2001 Justice Department memo that says the Fourth Amendment does not apply in government actions taken against terrorists (see April 2, 2008). “Does this mean that the administration’s lawyers believed that it could spy on Americans with impunity and face no Fourth Amendment claim?” it asks in a statement. “It may, and based on the thinnest of legal claims—that Congress unintentionally allowed mass surveillance of Americans when it passed the Authorization of Use of Military Force in… 2001 (see September 14-18, 2001) .… In short, it appears that the administration may view NSA domestic surveillance, including the surveillance of millions of ordinary Americans… as a ‘domestic military operation.’ If so, this Yoo memo would blow a loophole in the Fourth Amendment big enough to fit all of our everyday telephone calls, web searches, instant messages and emails through.… Of course, the [Justice Department’s] public defense of the NSA program also asserted that warrantless surveillance did not violate the Fourth Amendment.… But the memo referenced above raises serious questions. The public deserves to know whether the 2001 Yoo memo on domestic military operations—issued the same month that the NSA program began—asserted that the Fourth Amendment did not apply to domestic surveillance operations conducted by the NSA. And of course it reinforces why granting immunity aimed at keeping the courts from ruling on the administration’s flimsy legal arguments is wrongheaded and dangerous.” [Electronic Frontier Foundation, 4/2/2008]
Former national security official Norman Bailey admits publicly and on the record that the PROMIS database and search application has been given to the NSA. As Salon magazine points out: “His admission is the first public acknowledgement by a former US intelligence official that the NSA used the PROMIS software.” Bailey also says that the application was given to the Treasury Department for a financial tracking project in the early 1980s that also involved the National Security Council (see 1982-1984). Bailey worked for US governments from the Ronald Reagan era until the George W. Bush administration and, in addition to the 1980s tracking program, he headed a special unit within the Office of the Director of National Intelligence focused on financial intelligence on Cuba and Venezuela in 2006 and 2007. [Salon, 7/23/2008]
William Odom. [Source: Brendan Smialowski / Bloomberg News]Retired Lieutenant General William Odom, former director of the National Security Agency (NSA) under Ronald Reagan, says that he is “shocked” by the revelations of a propaganda campaign mounted by the Pentagon to manipulate public opinion regarding Iraq (see April 20, 2008 and Early 2002 and Beyond). Odom says: “Well, I was a little shocked by it.… My own sense of my obligations and my officer’s honor in the past would make me think that’s not a proper thing to do.… But I don’t think they’ll be able to defend that position publicly very well, particularly because of its sort of conspiratorial nature. I think it’s quite legitimate for military officers to talk to a number of people in the Pentagon, but to be part of a recurring meeting that is designed to shape the public opinion—that’s a strange thing for officers to be willing to do, in my view.” [WAMU-FM American University, 5/19/2008; Think Progress, 5/19/2008]
The campaign of Republican presidential nominee John McCain (R-AZ) says that if elected, McCain would retain the right to operate his own warrantless wiretapping program against Americans. Like President Bush, McCain believes that the president’s “wartime” powers trump federal criminal statutes and court oversight. McCain’s campaign is also backing off on earlier assertions that more oversight is needed for telecom companies accused of illegally cooperating with the NSA’s domestic spying program; the campaign now says that McCain is for “unconditional immunity” from prosecution for telecoms. Campaign spokesman Doug Holtz-Eakin says: “[N]either the administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001.… We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution.” The Article II citation has long been used by Bush officials to justify their contention that a president’s wartime powers are virtually unlimited. McCain’s stance directly contradicts a statement he made in December 2007, when he told Boston Globe reporter Charlie Savage: “I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.… I don’t think the president has the right to disobey any law.” McCain’s campaign is so far refusing to respond to requests to explain the differences between his December assertions and those made today. [Wired News, 6/3/2008]
President Bush signs the FISA Amendments Act of 2008 (FAA), a revamping and expansion of the original Foreign Intelligence Surveillance Act (see 1978). The legislation passed the House by a sweeping 293 to 129 votes, with most Democratic Congressional leaders supporting it over the opposition of the more liberal and civil liberties-minded Democrats. Republicans were almost unanimously supportive of the bill. Though Democratic Senators Russell Feingold (D-WI) and Christopher Dodd (D-CT) managed to delay the bill’s passage through the Senate, their attempt to modify the bill was thwarted by a 66-32 margin. (Dodd credits AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) as one of the very few people to make the public aware of the illegal NSA wiretapping program, which the FISA amendment would protect. Without Klein, Dodd states, “this story might have remained secret for years and years, causing further erosion of our rights.”) Senator Barack Obama (D-IL), the party’s presumptive presidential nominee, gave his qualified support to the bill, stating: “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program.” Obama had opposed an earlier Senate version that would have given “blanket immunity” to the telecommunications companies for their participation in the illegal NSA wiretapping program (see December 15, 2005). House Speaker Nancy Pelosi (D-CA), who organized Democratic support for the bill in the House, said that she supported the bill primarily because it rejects Bush’s argument that a wartime chief executive has the “inherent authority” to conduct some surveillance activity he considers necessary to fight terrorism. It restores the legal notion that the FISA law is the exclusive rule on government spying, she said, and added: “This is a democracy. It is not a monarchy.” Feingold, however, said that the bill granted “retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.” The amendments restore many of the provisions of the expired Protect America Act (PAA—see August 5, 2007) that drastically modify the original FISA legislation and grant the government broad new surveillance powers. Like the PAA, the FAA grants “third parties” such as telecommunications firms immunity from prosecution for engaging in illegal surveillance of American citizens if they did so in partnership with government agencies such as the National Security Agency (NSA). [Washington Post, 6/20/2008; CNN, 6/26/2008; US Senate, 7/9/2008; White House, 7/10/2008; Klein, 2009, pp. 95-97] Senate Majority Leader Harry Reid (D-NV) actually refused to honor a “hold” placed on the bill by Dodd, a highly unusual move. Klein will later note that Reid has in the past always honored holds placed on legislation by Republicans, even if Democrats were strongly supportive of the legislation being “held.” Klein will write that Pelosi crafted a “showpiece” FISA bill without the immunity provisions, garnering much praise for her from civil liberties organizations; however, Pelosi’s colleague House Majority Leader Steny Hoyer (D-MD) had secretly worked with the White House to craft a bill that preserved immunity for telecoms, and on June 10, Pelosi “rammed” that bill through the House. The final bill actually requires the judiciary to dismiss lawsuits brought against telecom firms if those firms can produce evidence that they had worked in collusion with the NSA. Feingold later observes that the final bill is not a “compromise, it is a capitulation.” [Klein, 2009, pp. 101-103] Klein will write that Democrats and Republicans have worked together to “unw[ind] one of the main reforms of the post-Watergate era and accepted the outrageous criminal rationalizations of [President] Nixon himself.” Klein will quote Nixon as saying, “If the president does it, that means it’s not illegal” (see April 6, 1977), and will say that is “the essence of the FISA ‘compromise’” and turned Congress into the White House’s “rubber stamp.… It is the twisted judicial logic of a dictatorship.” [Klein, 2009, pp. 107]
Entity Tags: Nancy Pelosi, Foreign Intelligence Surveillance Act, FISA Amendments Act of 2008, Christopher Dodd, Barack Obama, George W. Bush, Mark Klein, Russell D. Feingold, Richard M. Nixon, Harry Reid, Steny Hoyer, National Security Agency, Protect America Act
Timeline Tags: Civil Liberties
The Electronic Frontier Foundation (EFF) files a lawsuit against the National Security Agency (NSA), President Bush, Vice President Dick Cheney, former Attorney General and White House counsel Alberto Gonzales, former Cheney chief of staff David Addington, and other members of the Bush administration. The EFF claims the lawsuit is “on behalf of AT&T customers to stop the illegal unconstitutional and ongoing dragnet surveillance of their communications and communications records.” The EFF is referring to its ongoing lawsuit against AT&T and other telecommunications firms, which it accuses of colluding with the NSA to illegally monitor American citizens’ domestic communications (see December 15, 2005). The case, the EFF writes, “is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it.” After January 2009, the newly elected Obama administration will challenge the lawsuit, Jewel v. NSA, on the grounds that to defend itself against the lawsuit, the government would be required to disclose “state secrets” (see Late May, 2006). The government used similar arguments to quash the EFF’s lawsuit against AT&T (see April 28, 2006), arguments which were rejected by a judge (see July 20, 2006). [Electronic Frontier Foundation, 2009] The suit will be dismissed (see January 21, 2010).
The Electronic Frontier Foundation (EFF) files a lawsuit challenging the constitutionality of the recently passed amendment to the Foreign Intelligence Surveillance Act (FISA—see July 10, 2008). The EFF is particularly concerned with the portion of the legislation that grants retroactive immunity from prosecution to telecommunications firms that worked with government agencies to illegally conduct electronic surveillance against American citizens (see December 15, 2005). The FISA Amendments Act of 2008, or FAA, violates the Constitution’s separation of powers, according to the EFF, and, the organization writes, “robs innocent telecom customers of their rights without due process of law.” The lawsuit was triggered by Attorney General Michael Mukasey’s recent submission of a classified certification in another EFF lawsuit about illegal electronic certification (see January 31, 2006) that claimed the electronic surveillance conducted on behalf of the National Security Agency by AT&T did not happen. EFF senior attorney Kevin Bankston says: “The immunity law puts the fox in charge of the hen house, letting the attorney general decide whether or not telecoms like AT&T can be sued for participating in the government’s illegal warrantless surveillance. In our constitutional system, it is the judiciary’s role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive’s. The attorney general should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans.” Mukasey’s certification claimed the government has no “content-dragnet” program that surveills millions of domestic communications, though it does not deny having acquired such communications. EFF has provided the court with thousands of pages of documents proving the falsity of Mukasey’s assertions, the organization writes. EFF attorney Kurt Opsahl says: “We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law. Intelligence agencies, telecoms, and the administration want to sweep this case under the rug, but the Constitution won’t permit it.” EFF spokesperson Rebecca Jeschke tells a reporter that the FAA “violates the federal government’s separation of powers and violates the Constitution. We want to make sure this unconstitutional law does not deny telecom customers their day in court. They have legitimate privacy claims that should be heard by a judge. Extensive evidence proves the existence of a massive illegal surveillance program affecting millions of ordinary Americans. The telecoms broke the law and took part in this. The FISA Amendments Act and its immunity provisions were an attempt to sweep these lawsuits under the rug, but it’s simply unconstitutional.” EFF lawyers fear the FAA will render their lawsuit invalid. [Electronic Frontier Foundation, 10/17/2008; Salon, 10/17/2008] The EFF has filed a related lawsuit against the NSA and senior members of the Bush administration (see September 18, 2008).
PBS’s Nova series broadcasts “The Spy Factory,” an examination of the National Security Agency’s domestic surveillance program. The program is crafted by author and national security expert James Bamford with PBS producer Scott Willis. One portion of the broadcast shows a representation of the enormous data flow of Internet communications entering the US from Asia at Morro Bay, California, and then goes to a small AT&T facility in San Luis Obispo. “If you want to tap into international communications, it seems like the perfect place is San Luis Obispo,” Bamford narrates. “That’s where 80 percent of all communications from Asia enters the United States.” However, the NSA taps into the AT&T datastream much farther north, in AT&T’s Folsom Street facility in San Francisco (see October 2003 and Late 2003). According to former AT&T technician Mark Klein (see July 7, 2009 and May 2004), the NSA would have far more access to domestic communications by tapping into the dataflow at the San Francisco facility. He will later write, “This fact belies the government’s claims that they’re only looking at international communications.” [Klein, 2009, pp. 50-51; PBS, 2/3/2009]
Columnist and international law expert Scott Horton writes of his horror and shock at the nine just-released Bush administration memos from the Justice Department designed to grant President Bush extraordinary executive authority (see March 2, 2009).
'Disappearing Ink' - Horton writes: “Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as […] counterterrorism operations inside the United States” (see October 23, 2001, and October 23, 2001). Horton continues: “John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the president as commander in chief. The rest of the Constitution was apparently printed in disappearing ink.”
Timing of Repudiation Proves Bush Officials Found Claims Useful - Horton has no patience with the claims of former Office of Legal Counsel chief Steven Bradbury that the extraordinary powers Yoo attempted to grant Bush were not used very often (see January 15, 2009). “I don’t believe that for a second,” Horton notes, and notes Bradbury’s timing in repudiating the Yoo memos: five days before Bush left office. “Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it,” Horton asserts.
Serving Multiple Purposes - The memos “clear[ly]” served numerous different purposes, Horton notes. They authorized, or provided legal justification for, the massive domestic surveillance programs launched by military agencies such as the Defense Intelligence Agency and the National Security Agency (see September 25, 2001). But the memos went much farther, Horton says: “[T]he language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.” They also gave Bush the apparent legal grounds to order the torture of people held at secret overseas sites (see March 13, 2002), and to hold accused terrorist Jose Padilla without charge or due process, even though the administration had no evidence whatsoever of the crimes he had been alleged to commit (see June 8, 2002).
American Dictatorship - Horton’s conclusion is stark. “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship,” he writes. “The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.” [Harper's, 3/3/2009]
Congressional Quarterly reporter Jeff Stein publishes an article alleging that House Democrat Jane Harman (D-CA) was captured on an NSA wiretap telling a suspected Israeli agent that she would lobby the Justice Department to reduce espionage charges against two officials of the American Israel Public Affairs Committee (AIPAC—see October 2005). The offer was allegedly made in return for AIPAC’s help in Harman’s attempt to gain the chairmanship of the House Intelligence Committee (see Summer 2005). Stein’s sources say the wiretap was approved by a federal court as part of an FBI investigation into illegal Israeli covert actions in Washington. Stein also reports on accusations that the FBI investigation into Harman’s activities was halted by then-Attorney General Alberto Gonzales in return for Harman’s support for the Bush administration’s warrantless wiretapping program (see Late 2005). In a statement, Harman says the allegations are false. “These claims are an outrageous and recycled canard, and have no basis in fact,” she says through a spokesman. “I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves.” [Congressional Quarterly, 4/19/2009] Harman’s chief of staff, John Hess, later tells reporters that Stein’s story “recycles three-year-old discredited reporting of largely unsourced material to manufacture a ‘scoop’ out of widely known and unremarkable facts—that Congresswoman Jane Harman is and has long been a supporter of AIPAC, and that some members of AIPAC regarded her as well qualified to chair the House Intelligence Committee following the 2006 elections.” Hess adds, “If there is anything about this story that should arouse concern, it is that the Bush administration may have been engaged in electronic surveillance of members of the Congressional intelligence committees.” [Roll Call, 4/21/2009]
Explanation of Harman's Failure to Ascend - According to Stein, “[s]uch accounts go a long way toward explaining not only why Harman was denied the gavel of the House Intelligence Committee (see December 2, 2006), but failed to land a top job at the CIA or Homeland Security Department in the Obama administration.” [Congressional Quarterly, 4/19/2009]
Bipartisan Corruption - Both Congressional Democrats and their Republican colleagues are remarkably silent on the charges, which, if true, would taint both a high-ranking Congressional Democrat and a former Republican attorney general. “The whole thing smells, and nobody’s hands are clean,” says an aide to a senior Democratic lawmaker. Conservative scholar Norman Ornstein of the American Enterprise Institute says, “I don’t think anybody wants to touch it.” Ornstein, who says he knows Harman “very well,” calls the charges a “big embarrassment,” but notes that he would be “very surprised” if the charges proved to be true. The political watchdog group Citizens for Responsibility and Ethics in Washington (CREW) is calling for an investigation. CREW executive director Melanie Sloan says, “If Rep. Harman agreed to try to influence an ongoing criminal investigation in return for help securing a committee chairmanship, her conduct not only violates federal law and House rules, but also her oath to uphold the Constitution.” [Roll Call, 4/21/2009]
Entity Tags: John Hess, Federal Bureau of Investigation, Citizens for Responsibility and Ethics in Washington, Central Intelligence Agency, American Israel Public Affairs Committee, Alberto R. Gonzales, House Intelligence Committee, Jeff Stein, US Department of Homeland Security, Jane Harman, Norman Ornstein, National Security Agency, Melanie Sloan, Obama administration
Timeline Tags: Civil Liberties
US Special Operations Command (SOCOM) sends 1,000 more Special Operations forces and support staff into Afghanistan, military sources tell Fox News contributor and conservative author Rowan Scarborough. A spokesman at SOCOM confirms this will bring the publicly acknowledged number of Special Operations forces in Afghanistan to about 5,000. The movement of forces comes as Lieutenant General Stanley McChrystal is awaiting Senate confirmation to take command in Afghanistan. McChrystal is expected to put more emphasis on using Special Forces and black operations for counterinsurgency, man hunting, capture, and assassination operations.
Revamping Special Operations Afghanistan - SOCOM has also been revamping the command structure and the way commandos operate in Afghanistan. Military sources say Brigadier General Ed Reeder, who heads the new Combined Forces Special Operations Component Command in Afghanistan, has changed the way Green Beret “A” Teams, Delta Force, and other special operators conduct counterinsurgency. Reeder’s new secret command combines the more open Green Berets and Marine commandos with secret Delta Force and Navy SEAL units that conduct manhunts. The covert side works in task forces identified by a secret three-digit number, and is aided by Army Rangers and a Joint Interagency Task Force made up of the CIA, National Security Agency, FBI, and other intelligence units. [Fox News, 6/5/2009]
Entity Tags: National Security Agency, 1st Special Forces Operational Detachment--Delta, Combined Forces Special Operations Component Command, Central Intelligence Agency, Ed Reeder, Green Berets, Navy Seals, US Army Rangers, Federal Bureau of Investigation, US Department of Defense, US Special Operations Command, Stanley A. McChrystal
Timeline Tags: War in Afghanistan
The cover of Mark Klein’s ‘Wiring Up the Big Brother Machine… and Fighting It.’ [Source: BookSurge / aLibris (.com)]Former AT&T technician Mark Klein self-publishes his book, Wiring Up the Big Brother Machine… and Fighting It. In his acknowledgements, Klein writes that he chose to self-publish (through BookSurge, a pay-to-publish venue) because “[t]he big publishers never called me,” and the single small publishing house that offered to publish his book added “an unacceptable requirement to cut core material.” Klein based his book on his experiences as an AT&T engineer at the telecom giant’s San Francisco facility, where he primarily worked with AT&T’s Internet service. In 2002 and 2003, Klein witnessed the construction of of a “secret room,” a facility within the facility that was used by the National Security Agency (NSA) to gather billions of email, telephone, VoIP (voice over Internet Protocol), and text messages, most of which were sent by ordinary Americans. The NSA did its electronic surveillance, Klein writes, secretly and without court warrants. Klein describes himself as “wiring up the Big Brother machine,” and was so concerned about the potential illegality and constitutional violations of the NSA’s actions (with AT&T’s active complicity) that he retained a number of non-classified documents proving the extent of the communications “vacuuming” being done. Klein later used those documents to warn a number of reporters, Congressional members, and judges of what he considered a horrific breach of Americans’ right to privacy. [Klein, 2009, pp. 9-11, 21-24, 33, 35, 38, 40] In 2007, Klein described his job with the firm as “basically to keep the systems going. I worked at AT&T for 22 and a half years. My job was basically to keep the systems going. They were computer systems, network communication systems, Internet equipment, Voice over Internet [Protocol (VoIP)] equipment. I tested circuits long distance across the country. That was my job: to keep the network up.” He explained why he chose to become a “whistleblower:” “Because I remember the last time this happened.… I did my share of anti-war marches when that was an active thing back in the ‘60s, and I remember the violations and traffic transgressions that the government pulled back then for a war that turned out to be wrong, and a lot of innocent people got killed over it. And I’m seeing all this happening again, only worse. When the [NSA] got caught in the ‘70s doing domestic spying, it was a big scandal, and that’s why Congress passed the FISA [Foreign Intelligence Surveillance Act] law, as you know, to supposedly take care of that (see 1978). So I remember all that. And the only way any law is worth anything is if there’s a memory so that people can say: ‘Wait a minute. This happened before.’ And you’ve got to step forward and say: ‘I remember this. This is the same bad thing happening again, and there should be a halt to it.’ And I’m a little bit of that institutional memory in the country; that’s all.” [PBS Frontline, 5/15/2007]
Federal judge Vaughn Walker dismisses Jewel v. NSA, a lawsuit brought by the Electronic Frontier Foundation (EFF) against the National Security Agency and senior Bush administration officials over the administration’s warrantless surveillance program (see September 18, 2008). Walker rules that the privacy harm to millions of Americans from the illegal spying dragnet was not a “particularized injury” but instead a “generalized grievance” because almost everyone in the United States has a phone and Internet service. EFF legal director Cindy Cohn says: “We’re deeply disappointed in the judge’s ruling. This ruling robs innocent telecom customers of their privacy rights without due process of law. Setting limits on executive power is one of the most important elements of America’s system of government, and judicial oversight is a critical part of that.” EFF attorney Kevin Bankston says: “The alarming upshot of the court’s decision is that so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional. With new revelations of illegal spying being reported practically every other week… the need for judicial oversight when it comes to government surveillance has never been clearer.” The EFF indicates it will appeal Walker’s decision. [Electronic Frontier Foundation, 1/21/2010] The Obama administration echoed claims made in previous lawsuits by the Bush administration, invoking the “state secrets” privilege (see Late May, 2006) and supporting previous arguments by the Bush-era Justice Department. The administration even went a step further than its predecessor in arguing that under the Patriot Act, the government can never be sued for illegal wiretapping unless there is “willful disclosure” of the communications. [Klein, 2009, pp. 116-117]
A US District Court judge awards damages in a lawsuit, finding the NSA illegally monitored the calls of the plaintiffs. The Al Haramain Islamic Foundation and two of its lawyers, Wendell Belew and Asim Ghafoor, sued the US government in 2006 based on evidence that their calls had been monitored; the US Treasury Department inadvertently provided them with an NSA log in August 2004 showing their calls had been monitored in May of that year (see February 28, 2006). In defending against the suit, the Justice Department argued, first under President Bush and then under President Obama, that the case should be dismissed based on the government’s invocation of the state secrets privilege (see March 9, 1953) concerning the NSA log, and that the plaintiffs could not otherwise demonstrate that surveillance had occurred, meaning the plaintiffs had no standing to bring suit. Judge Vaughn Walker rejected these arguments, noting that the plaintiffs had introduced into evidence a speech posted on FBI’s Web site by FBI Deputy Director John Pistole to the American Bankers Association (ABA), in which he said that surveillance had been used to develop a case by the Office of Foreign Assets Control (OFAC) against Al-Haramain, and Congressional testimony by Bush administration officials that disclosed the manner in which electronic surveillance was conducted. In the summary of his decision, Vaughn wrote, “[The Foreign Intelligence Surveillance Act] FISA takes precedence over the state secrets privilege in this case,” and “defendants have failed to meet their burden to [provide] evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.” [Al-Haramain v. Obama, 3/31/2010; Washington Post, 4/1/2010, pp. A04]
Entity Tags: George W. Bush, Asim Ghafoor, Anthony J. Coppolino, Alberto R. Gonzales, Al Haramain Islamic Foundation (Oregon branch), “Justice Department”, Barack Obama, Federal Bureau of Investigation, Robert S. Mueller III, Suliman al-Buthe, Keith Alexander, Eric Holder, US Department of the Treasury, Wendell Belew, Vaughn Walker, National Security Agency
Timeline Tags: Civil Liberties
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