Category Archive 'NSA Flap'
14 Dec 2008

The Drip Who Leaked

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Thomas M. Tamm

Michael Issikoff, in Newsweek, systematically applies the coat of whitewash, drapes the red-white-and-blue bunting, and affixes the journalistic left’s paper mâché halo to Thomas M. Tamm, renegade attorney from the Department of Justice’s Office of Intelligence Policy and Review (OIPR), who leaked damaging allegations about the NSA foreign communications surveillance program to New York Times reporters James Risen and Eric Lichtblau, ultimately resulting in their famous December 16, 2005 Bush Lets U.S. Spy on Callers Without Courts story, which naturally won them the Pullitzer Prize.

Tam, you see, was understandably outraged by the following nefarious practice.

After arriving at OIPR, Tamm learned about an unusual arrangement by which some wiretap requests were handled under special procedures. These requests, which could be signed only by the attorney general, went directly to the chief judge and none other. It was unclear to Tamm what was being hidden from the other 10 judges on the court (as well as the deputy attorney general, who could sign all other FISA warrants). All that Tamm knew was that the “A.G.-only” wiretap requests involved intelligence gleaned from something that was obliquely referred to within OIPR as “the program.”

Obviously any fair-minded attorney would conclude that an instance of special handling of particular intelligence information or the exclusion from participation in its processing and examination by any subordinate judges of Justice Department officials always ipso facto constitutes a sufficiently grave breach of the Foreign Intelligence Surveillance Act and the US Constitution to necessitate an immediate donation to the John Kerry Campaign and a covert phone call to the Times. What else is a patriotic American do?

Issikoff procedes to explain that Tamm’s Hamlet-like struggle with his conscience over leaking and Raskolinkov-like agonies over fear of being caught and punished made the poor soul depressed.

He had trouble concentrating on his work at the U.S. Attorney’s Office and ignored some e-mails from one of his supervisors. He was accused of botching a drug case. By mutual agreement, he resigned in late 2006. He was out of a job and squarely in the sights of the FBI. Nevertheless, he began blogging about the Justice Department for liberal Web sites.

And Tamm had good cause for fear.

With the investigative speed and precision the FBI is famous for, brandishing guns and wearing flak jackets, G-men promptly descended a mere two years later upon Tamm’s suburban home to seize his desktop computer, his children’s laptops, some private papers, and his Christmas card list.

Let that be a lesson to policy free-lancers, leakers, violator of the Espionage Act, and traitors everywhere!

Divulge highest level classified information, participate in undermining US counterrorism, act consciously to discredit the elected government you serve, and the FBI will come over and browbeat your family and steal your PC.

That, of course, is as far as it is going to go, if the administration you are discrediting happens to be George W. Bush’s. The Bush Administration has never been able to muster the intestinal fortitude needed to make sure that the people working in the highest level classified positions in its War on Terror are actually on its own side, and still less has it able to steel its nerves to the point where it dares actually to prosecute such cases.

The Bush Administration understands only too well that it would be represented, after all, in court in cases of that kind by representatives of the Bush Administration. The leakers and traitors would be represented by skilled counsel from leading white shoe law firms and the cream of the faculty of Ivy League law schools. The defendants would additionally have the mainstream media operating as full-time public relations managers and publicists. So I suppose the administration’s timidity may be at least partly exculpated by its self awareness of its own inadequacy.

04 Apr 2008

More on Mukasey’s Phone-Call-From-Afghanistan

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Peter Carr, Principal Deputy Director of Public Affairs at the Department of Justice, responded to Glenn Greenwald’s request for clarification as follows:

In a question-and-answer session after his Commonwealth Club speech last week, Attorney General Mukasey referenced a call between an al Qaeda safe house and a person in the United States. The Attorney General has referred to this before, in the letter he sent with Director of National Intelligence McConnell to Chairman Reyes on February 22, 2008. In that letter, contained in this link [.pdf], the Attorney General and the Director of National Intelligence explained that:

    “We have provided Congress with examples in which difficulties with collections under [Executive Order 12333] resulted in the Intelligence Community missing crucial information. For instance, one of the September 11 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. The failure to collect such communications was one of the central criticisms of the Congressional Joint Inquiry that looked into intelligence failures associated with the attacks of September 11. The bipartisan bill passed by the Senate would address such flaws in our capabilities that existed before the enactment of the Protect America Act and that are now resurfacing.”

This call is also referenced in the unclassified report of the congressional intelligence committees’ Joint Inquiry into the 9/11 attacks.

Greenwald spills buckets full of indignation and continues beating his accusatory tom-tom, being absolutely in love with the notion that he has found a deliberate falsehood he can explode to the embarrassment of the evil Bush Administration, and he has a pretty good echo of his theory (accepting it as proven gospel) going in a number ( 1, 2, 3) of the standard cages making up the left blogosphere’s monkey-house, but (sorry, Glenn!) he has actually proven absolutely nothing.

At best (from Greenwald’s point-of-view), the Attorney-General offered an inelegantly-phrased hypothetical open to misinterpretation. On the other hand, it is not impossible at all that there really was a phone call from an al Qaeda safe house which was not intercepted because of legal red-tape. In which case, Mr. Greenwald is going to be very sorry that he has so heavily invested in this story.

Still developing.

Original story.

04 Apr 2008

Was a Pre-9/11 Call From Afghanistan Not Intercepted For Lack of a Warrant?

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Back in March, as this New York Sun 3/27 story indicates, Attorney General Michael Mukasey, in a speech arguing for Congressional support for FISA, seemed to indicate that the absence of a warrant prevented US surveillance of a crucial pre-9/11 phone call from a safe house in Afghanistan to someone in the United States.

Attorney General Mukasey, in an emotional plea for broad surveillance authority in the war on terror, is warning that the price for failing to empower the government would be paid in American lives. Officials “shouldn’t need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that’s the call that we may really want to know about. And before 9/11, that’s the call that we didn’t know about,” Mr. Mukasey said yesterday as he took questions from the audience following a speech to a public affairs forum, the Commonwealth Club. “We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went.”

At that point in his answer, Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. “We got three thousand. … We’ve got three thousand people who went to work that day and didn’t come home to show for that,” he said, struggling to maintain his composure.

There has been little media coverage of what seems to be possibly a major story, but the left blogosphere has erupted today with attacks on Mukasey for allegedly lying, led by “the left’s most dishonest blogger” Glenn Greenwald himself.

Reading General Mukasey’s comment as reported in the Sun, I was not certain myself whether he was referring to a real incident or merely to a hypothetical, but the major counter-offensive being mounted this morning by the left’s big gun liars seems to indicate that it could very well be the former.

Greenwald’s attack in Salon is being followed up by the leading leftwing Congressional representatives, these days operating on the House Judiciary Committee, John Conyers (D-MI), Jerrold Nadler (D-NY) and Bobby Scott (D-VA), sending Mukasey an accusatory letter, demanding that he explain his March statement.

Mr. Mukasey may simply reply that he was only speaking hypothetically of course. Developing.

01 Feb 2008

Risen Subpoenaed

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Leading New York Times traitor James Risen is facing a federal investigation for being the beneficiary of further Intelligence Community anti-Bush Administration leaking.

A federal grand jury has issued a subpoena to a reporter of The New York Times, apparently to try to force him to reveal his confidential sources for a 2006 book on the Central Intelligence Agency, one of the reporter’s lawyers said Thursday.

The subpoena was delivered last week to the New York law firm that is representing the reporter, James Risen, and ordered him to appear before a grand jury in Alexandria, Va., on Feb. 7.

Mr. Risen’s lawyer, David N. Kelley, who was the United States attorney in Manhattan early in the Bush administration, said in an interview that the subpoena sought the source of information for a specific chapter of the book “State of War.”

The chapter asserted that the C.I.A. had unsuccessfully tried, beginning in the Clinton administration, to infiltrate Iran’s nuclear program. None of the material in that chapter appeared in The New York Times.

Hat tip to Frank A. Dobbs.

06 Nov 2007

Pouting Spooks Sign Letter

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Valerie Plame’s pal Larry Johnson posts a letter from “a group of distinguished intelligence and military officers, diplomats, and law enforcement professionals” to the Senate Judiciary Committee “strongly urging that (they) not send Mukasey’s nomination to the full Senate before he makes clear his view on waterboarding.”

If anyone ever cared to investigate who was involved in leaking national security information to the New York Times and Washington Post, I’d suggest waterboarding some of the people on this list of signatories.

Brent Cavan
Intelligence Analyst, Directorate of Intelligence, CIA

Ray Close
Directorate of Operations, CIA for 26 years—22 of them overseas; former Chief of Station, Saudi Arabia

Ed Costello
Counter-espionage, FBI

Michael Dennehy
Supervisory Special Agent for 32 years, FBI; U.S. Marine Corps for three years

Rosemary Dew
Supervisory Special Agent, Counterterrorism, FBI

Philip Giraldi
Operations officer and counter-terrorist specialist, Directorate of Operations, CIA

Michael Grimaldi
Intelligence Analyst, Directorate of Intelligence, CIA; Federal law enforcement officer

Mel Goodman
Division Chief, Directorate of Intelligence, CIA; Professor, National Defense University; Senior Fellow, Center for International Policy

Larry Johnson
Intelligence analysis and operations officer, CIA; Deputy Director, Office of Counter Terrorism, Department of State

Richard Kovar
Executive Assistant to the Deputy Director for Intelligence, CIA: Editor, Studies In Intelligence

Charlotte Lang
Supervisory Special Agent, FBI

W. Patrick Lang
U.S. Army Colonel, Special Forces, Vietnam; Professor, U.S. Military Academy, West Point; Defense Intelligence Officer for Middle East, Defense Intelligence Agency (DIA); founding director, Defense HUMINT Service

Lynne Larkin
Operations Officer, Directorate of Operations, CIA; counterintelligence; coordination among intelligence and crime prevention agencies; CIA policy coordination staff ensuring adherence to law in operations

Steve Lee
Intelligence Analyst for terrorism, Directorate of Intelligence, CIA

Jon S. Lipsky
Supervisory Special Agent, FBI

David MacMichael
Senior Estimates Officer, National Intelligence Council, CIA; History professor; Veteran, U.S. Marines (Korea)

Tom Maertens
Foreign Service Officer and Intelligence Analyst, Department of State; Deputy Coordinator for Counter-terrorism, Department of State; National Security Council (NSC) Director for Non-Proliferation

James Marcinkowski
Operations Officer, Directorate of Operations, CIA by way of U.S. Navy

Mary McCarthy
National Intelligence Officer for Warning; Senior Director for Intelligence Programs, National Security Council

Ray McGovern
Intelligence Analyst, Directorate of Intelligence, CIA; morning briefer, The President’s Daily Brief; chair of National Intelligence Estimates; Co-founder, Veteran Intelligence Professionals for Sanity (VIPS)

Sam Provance
U.S. Army Intelligence Analyst, Germany and Iraq (Abu Ghraib); Whistleblower

Coleen Rowley
Special Agent and attorney, FBI; Whistleblower on the negligence that facilitated the attacks of 9/11.

Joseph Wilson
Foreign Service Officer, U.S. Ambassador and Director of Africa, National Security Council.

Valerie Plame Wilson
Operations Officer, Directorate of Operations

25 Sep 2007

Bush the Incompetent

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Dan Froomkin of the Washington Post is a leftwing editorialist I don’t commonly agree with, but I think the opening, at least, of today’s column hits the nail on the head.

The last two times the Pew Research Center asked people to describe President Bush in a single word, chief among the overwhelmingly negative responses was the word “incompetent.”

What makes that particularly fascinating is that it’s a realization that the public has reached pretty much on its own.

Unfortunately, Froomkin then goes right off into leftwing subjectivity land, repeating the usual memes about unsatisfactory management of the war in Iraq, failure to perform Moses-level miracles on flooded New Orleans, and (quelle horreur!) actually trying to appoint Republicans to DOJ positions.

Froomkin essentially takes the opposite of the facts as his basis to lambaste Bush.

Iit’s well past time to ask ourselves: What has Bush done to our government?

Bush’s two top advisers — Vice President Cheney and just-departed political guru Karl Rove — made little secret of their desire to have the wider federal bureaucracy serve their purposes. But just how much has the exertion of absolute White House political control, through a network of loyalists put in key positions, damaged government agencies’ ability to accomplish the tasks the American people expect of them?

How many long-time senior career employees have been marginalized, micromanaged or driven out of government?

Unfortunately, the real reason Americans think Bush is incompetent is precisely the reverse. Americans have concluded that Bush is incompetent because he cannot defend his own Attorney General when he tries to replace some federal attorneys. They believe that he is a weak leader because he could not compel large portions of the State Department and the Intelligence community to support his policies.

This president did not succeed in replacing disaffected senior officers in the CIA or reforming the Agency, and when National Security information was leaked repeatedly in the New York Times and Washington Post, no one was ever prosecuted or punished.

On the other hand, his adversaries successfully managed to criminalize even questioning the bona fides of Ambassador Wilson’s testimony, and succeeded in convicting the Vice Presidential Chief of Staff of perjury in a case where no crime could possibly ever have occurred. It was George W. Bush himself who appointed the man who aimed the torpedo at the midships of his administration. Bush made James B. Comey (Martha Stewart’s nemesis) Deputy Attorney General, and when John Poindexter (angry at not being reappointed) called for a washbowl and a towel and recused himself, James B. Comey selected the special prosecutor.

Bush is not incompetent because he tyrannically remodeled the bureaucracy. He is incompetent because he has failed to get control of the government he was elected to head, and because he has failed both to punish his enemies and to defend himself and his friends.

02 Aug 2007

Newsweek Reveals Secret Court Ruling Hamstrung Counter-Terrorism Surveillance

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There have been several articles and editorials over the last few days referring to a recent deficit in the administration’s Counter-Terrorism surveillance program, and ongoiing Congressional attempts to remedy the problem.

Wall Street Journal 7/30 editorial

New York Times article 8/1

Yesterday (8/1), Michael Isikoff and Mark Hosenball, in Newsweek, identified the source of the problem, and exposed the behind-the-scenes Congressional bickering going on right now.

A secret ruling by a federal judge has restricted the U.S. intelligence community’s surveillance of suspected terrorists overseas and prompted the Bush administration’s current push for “emergency” legislation to expand its wiretapping powers, according to a leading congressman and a legal source who has been briefed on the matter.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

The first public reference to the order came obliquely this week from House Minority Leader John Boehner—one of a number of senior Republicans who have been leading the White House-backed campaign to persuade Congress to rush through an expanded eavesdropping measure before it leaves for August recess at the end of this week.

He and other GOP leaders have said that the country will be at a greater risk of a terrorist attack if Congress doesn’t act immediately—and they have accused Democrats of “playing politics” by balking at some of the provisions the administration is seeking.

“There’s been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States,” Boehner said on an interview with Fox News anchor Neal Cavuto.

“This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people,” Boehner added. “The Democrats have known about this for months.”

Boehner’s description of the scope of the ruling appears to focus on one key feature of the surveillance program—the large-scale tapping without warrants of telecommunications “switches” located in the United States; they are used to rout international calls even when both parties are overseas. But there are indications the ruling has in some instances interfered with the National Security Agency’s ability to intercept phone calls where one of the parties is in the United States, as well. …

..last January, partly in a bid to quell criticism from Democrats and civil liberties groups, the administration agreed to submit the entire surveillance program to the FISA court for review. Much about the process has never been explained publicly. But at some point after the new program began, one of the FISA judges—who, by rotation, was assigned to review the program for periodic updates—concluded that some aspects of the warrantless eavesdropping program exceeded the NSA’s authority under the Foreign Intelligence Surveillance Act, the basic 1978 law that governs eavesdropping of espionage and terrorist suspects, said the lawyer who had been briefed on the ruling. The judge refused to reauthorize the complete program in the way it had been previously approved by at least one earlier FISA judge, the lawyer said, adding that the secret decision was a “big deal” for the administration.

It was only after that ruling that Director of National Intelligence Mike McConnell this spring began urging Congress to pass an emergency “fix” that would clarify and specifically grant the NSA authority to tap switches based in the United States without review by the FISA court. The administration effort has accelerated in recent weeks—and won the support of key Democratic leaders—amid warnings from the intelligence community that the country is facing greater risk of a new terrorist attack due in large part to the resurgence of Al Qaeda in Pakistan.

Congressional aides (who asked not to be identified talking about ongoing negotiations) said today that Democratic and Republican leaders of the intelligence committees met until late Tuesday night trying to reach an agreement on a short-term measure that would grant some of the enhanced authority—including the ability to tap telecommunications switches without warrants—that the administration is seeking. One stumbling block that has emerged: the administration’s insistence that Attorney General Alberto Gonzales be given an expanded role to oversee the program—a particularly controversial move at the moment, given new allegations that the embattled attorney general has misled Congress about legal disputes over the surveillance program. Sen. Jay Rockefeller, the Senate Intelligence Committee chairman, said today in a statement that he has “become convinced that we must take some immediate but interim step” to expand surveillance, but that the administration proposal to grant Gonzales greater authority “is simply unacceptable.”

In a conference call with reporters today, Sen. Kit Bond, a Missouri Republican and vice chairman of the Senate Intelligence Committee, lashed out at Democrats because they are resisting language in the administration proposal that would give Gonzales a new oversight role over the program. “The Democrats don’t trust anybody in the administration,” Bond said when asked about the objections to expanding Gonzales’s role. “They didn’t like Scooter Libby, they don’t like Karl Rove and most of all they don’t like President Bush. I don’t care who they like. We need to keep our country safe.”

But Bond declined to respond when asked if it was a federal judge who created the alleged intelligence “gap” in the first place. “I can’t comment on why this has occurred,” Bond said, after checking with an aide about whether he could respond to a question about a ruling by a FISA judge. “But the director of national intelligence [McConnell] has said we are significantly burdened in capturing foreign communications. It is a significant new burden.”

If the “Big Surprise” al Qaeda is promising comes to pass, one really would not want to be in the shoes of the judge responsible for throwing a monkey wrench into the American Intelligence Community’s efforts to capture the enemy’s communications, nor those of one of the Congressional democrats later found to have been playing political games while the threat drew near.

01 Aug 2007

Democrats Reversing Course on Communications Surveillance

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James Risen, one of the two New York Times journalists who published the leaked story on Counter-Terrorism communications datamining in December of 2005, is in the interesting position this morning of reporting on democrats reversing course and hastening not only to authorize but even to expand the program democrats have been using as a political target since the time of Mr. Risen’s original article. A deliciously ironic development.

Under pressure from President Bush, Democratic leaders in Congress are scrambling to pass legislation this week to expand the government’s electronic wiretapping powers.

Democratic leaders have expressed a new willingness to work with the White House to amend the Foreign Intelligence Surveillance Act to make it easier for the National Security Agency to eavesdrop on some purely foreign telephone calls and e-mail. Such a step now requires court approval.

It would be the first change in the law since the Bush administration’s program of wiretapping without warrants became public in December 2005.

In the past few days, Mr. Bush and Mike McConnell, director of national intelligence, have publicly called on Congress to make the change before its August recess, which could begin this weekend. Democrats appear to be worried that if they block such legislation, the White House will depict them as being weak on terrorism.

31 Jul 2007

The Real Datamining Scandal

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David B. Rivkin, Jr. and Lee A. Casey argue, in yesterday’s Wall Street Journal, that the real wiretapping scandal ought to be considered the significant degradation of American Counter-Terrorism surveillance capabilities as the result of partisanship and ideological assault.

Last Tuesday’s Senate Judiciary Committee hearing — at which Attorney General Alberto Gonzales was insulted by senators and ridiculed by spectators — was Washington political theater at its lowest. But some significant information did manage to get through the senatorial venom directed at Mr. Gonzales. It now appears certain that the terrorist surveillance program (TSP) authorized by President Bush after 9/11 was even broader than the TSP that the New York Times first revealed in December 2005.

It is also clear that Mr. Gonzales, along with former White House Chief of Staff Andrew Card, tried to preserve that original program with the knowledge and approval of both Republican and Democratic members of key congressional committees. Unfortunately, they failed and the program was narrowed. Today, the continuing viability of even the slimmed-down TSP — an indispensable weapon in the war on terror — remains in serious doubt. …

In December 2005, … a firestorm of controversy erupted when The New York Times published a story describing the TSP. Although it was clear from the beginning that the program targeted al Qaeda — a particular communication was intercepted based on the presence of a suspected al Qaeda operative on at least one end — and not directed at ordinary Americans going about their daily routines, the administration’s critics quickly wove the TSP into their favorite overarching anti-Bush narrative. They cited it as just one more example of a supposedly power-hungry president, the new “king George,” chewing up our civil liberties.

Administration officials, including Attorney General Gonzales, repeatedly explained the TSP to Congress and the public, presumably to an extent consistent with continuing national security imperatives. In particular, they said that only communications where at least one party to the conversation was outside of the U.S. were intercepted; purely domestic calls were not in play. But after months of congressional pressure, and having failed to secure new legislation that would have fundamentally revised FISA, the administration announced in January this year that it had reached an agreement with the special FISA court to bring the TSP under judicial auspices. …

What has gotten lost in all of this increasingly sordid game of political gotcha is the viability of a critical program in the war on terror. The TSP was brought under the FISA court’s jurisdiction this January, allegedly without impairing its effectiveness. But FISA orders are not permanent. They must be periodically reissued, and FISA judges rotate. As an editorial on the facing page of the Journal first reported Friday, well-placed sources say that today’s FISA-compliant TSP is only about “one-third” as effective as the 2005 version — which, in turn, was less comprehensive than the original program. This is shocking during a summer of heightened threat warnings, and should be unacceptable to Congress and the American people.

The problem is particularly acute because FISA’s 1978 framework has been rendered dysfunctional by the evolution of technology. FISA was enacted in a world where intercepts of purely foreign communications were conducted overseas, and were entirely exempt from the statutory strictures. Only true U.S. domestic communications were intercepted on U.S. soil and these intercepts were subjected to FISA’s prescriptive procedures. Yet, with today’s fiber optic networks functioning as the sinews of the global communications system, entirely foreign calls — say between al Qaeda operatives overseas — often flow through U.S. facilities and can be most reliably intercepted on American soil. Subjecting these intercepts to FISA strictures is absurd.

Moreover, the very fact that the intelligence community operates in a state of continued uncertainty about what precise surveillance parameters would be allowed in the future — instead of having the collection efforts driven entirely by the unfolding operational imperatives — is both unprecedented in wartime and highly detrimental. In past wars, as fighting continued, valuable battlefield experience was gathered, causing weapons systems, military organization and combat techniques to improve consistently. In this difficult war with al Qaeda, by contrast, the key battlefield intelligence-gathering program has been repeatedly emasculated.

Congress’ obsession with the TSP’s legal pedigree has become the major threat to its continued viability, rivaling in its deleterious impact the infamous “wall,” much criticized by the 9/11 Commission, which prevented information sharing between the Justice Department’s intelligence and law-enforcement divisions. It is hypocritical for those in Congress who preach fidelity to the 9/11 Commission recommendations to behave so dramatically at odds with their spirit. The question Judiciary Committee members should have been asking Mr. Gonzales was not whether he had misled them — he clearly did not — but whether the TSP is still functioning well. The question the public should be asking those senators — and with not much more civility than the senators showed Mr. Gonzales — is what are they going to do about it if the answer is no.

30 Jul 2007

Technology and Politics Hamper US Counter Terrorism Surveillance Program

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While Congressional democrats are playing “He said; she said” games on the subject of Counter-Terrorism data-mining in order to bring down Alberto Gonzalez, Newsweek is reporting that US Intelligence Agencies are having difficult keeping up with changes in technology and that all the political games the left and the MSM have played with the Echelon program have also had a real impact, significantly diminishing the program’s effectiveness.

Six years after 9/11 , U.S. intel officials are complaining about the emergence of a major “gap” in their ability to secretly eavesdrop on suspected terrorist plotters. In a series of increasingly anxious pleas to Congress, intel “czar” Mike McConnell has argued that the nation’s spook community is “missing a significant portion of what we should be getting” from electronic eavesdropping on possible terror plots. Rep. Heather Wilson, a GOP member of the House intelligence community, told Newsweek she has learned of “specific cases where U.S. lives have been put at risk” as a result. Intel agency spokespeople declined to elaborate.

The intel gap results partly from rapid changes in the technology carrying much of the world’s message traffic (principally telephone calls and e-mails). The National Security Agency is falling so far behind in upgrading its infrastructure to cope with the digital age that the agency has had problems with its electricity supply, forcing some offices to temporarily shut down. The gap is also partly a result of administration fumbling over legal authorization for eavesdropping by U.S. agencies. …

According to both administration and congressional officials (anonymous when discussing such issues), the White House and intelligence czar’s office are now urgently trying to negotiate a legal fix with Congress that would make it easier for NSA to eavesdrop on e-mails and phone calls where all parties are located outside the U.S., even if at some point the message signal crosses into U.S. territory.

04 Jul 2007

British Wire-Tapping Thwarted Bomb Attacks

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The Guardian indicates that the recent bomb attacks in Britain were thwarted by means of surveillance of telephone and email traffic.

The plot to mount car bomb attacks in Britain was hatched outside the UK, with the doctors allegedly involved linked to a ringleader or mastermind abroad, counter-terrorism officials believe. One theory is that the alleged plot was orchestrated by one or two jihadists who infiltrated the NHS and indoctrinated others.

It emerged last night that investigators suspect that the two men caught at Glasgow airport trying to ram a Jeep into the terminal building were also behind the failed attempt to detonate two car bombs in central London last Friday.

Sources also suggested that all known members of the cell had been accounted for. “There is not a huge manhunt,” one well-placed official said. Though the terrorist threat level remains at “critical” there were indications that it would soon be downgraded to “severe”, meaning an attack is highly likely but not imminent.

All eight people arrested have links with the NHS – seven are doctors or medical students and one worked as a laboratory technician. All entered the UK legally.

Intelligence sources last night declined to say where the “guiding hand” or mastermind behind the plot was based. It is likely, given the dates on which some of the suspects entered Britain, that the plot was hatched a year ago, or even earlier.

Though MI5 insists none of the suspects arrested in connection with the plot were under surveillance, the mobile phones detectives recovered from the would-be car bombs contained details that matched material on the security service database. Counter-terrorism officials say data from the phones and email traffic was checked on the database used by MI5, MI6 and GCHQ, the government’s eavesdropping centre. Connections were found linking that information and communications abroad, which enabled the police and security services to speed up their investigations in Britain.

“This linkage allowed the police to move quickly,” said a source. The foreign intercepts included talk of jihad, an official added. Counter-terrorism officials say the links between members of the British-based cell were via the foreign intercepts. It is believed, for example, that Mohamed Haneef, the doctor arrested at Brisbane airport, had long conversations with one of the suspects arrested in Britain.

23 Aug 2006

Althouse Dissects Diggs

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Ann Althouse, law professor and often acerbic blogger (who notoriously does not tolerate fools gladly), lowers the boom on Judge Anna Diggs Taylor in the Times.

As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”

For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.

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