Intelligence Revelations

Over the last week we've learned a few interesting things about intelligence programs being run by the NSA and the CIA, and the participation of Bush administration officials in those programs. Last Wednesday it was revealed that the CIA concealed a top secret program from Congress for eight years. Congress became aware of the program only after they were of informed of it by current CIA director Leon Panetta, who himsefl learned of the program only last month. Over the weekend we learned that the CIA withheld information from Congress on the direct orders of Vice President Cheney, according to testimony before Congress by Leon Panetta. Panetta also indicated that the program had been canceled. And yesterday we learned that the program was an effort to assassinate Al Qaeda terrorists wherever they might be found, including in friendly countries. Now officials say that no assassination was ever carried out and due to legal and logistical problems, the program never left the planning stages. Of course, that leads one to wonder just why there was an effort to keep the program away from Congress completely, especially given that we have been assassinating Al Qaeda terrorists in Pakistan (a "friendly" country) for years now. If anything, one would think that Congress and the public in general would approve of targeted killings, which have the benefit of at least not killing dozens of civilians along with the terrorist you're trying to get. I'm almost willing to bet there's still more about the program we don't know yet, but we'll see.

Also, last Friday saw the release of a report compiled by the various agencies Inspectors General regarding the warrantless wiretapping program whose existence was revealed by the New York Times in late 2005. The report doesn't offer an opinion on the program's legality, but it does discuss the program's effectiveness, finding that most leads generated by the program were dead ends and that this was due in part to the extensive secrecy that surrounded the program.

The report also touches on the other intelligence-gathering program maintained by the Bush administration, the "unprecedented" data mining operation that we learned in December was the cause of a now infamous showdown between the Department of Justice and senior Bush administration officials. The report provides little detail about the program though, so though we are well aware that it existed at one time and was canceled when the DOJ officials threatened to resign over it, we still don't know exactly what it did or where all the data it collected has gone off to.

So, an interesting weekend to say the least.

UPDATE: Via Tim F, Philip Giraldi with an informative post on why the CIA assassination program would be so problematic and thus why it likely never came to fruition.

Friday Morning National Security News

Things you should be reading:

1. Yesterday suicide bombers killed eighty Iraqis in three separate attacks. Today at least sixty more residents of Baghdad have died in two suicide bombings. It's stating the obvious to say that this raises concerns that progress on the security front is being undermined. So far, nobody really seems to understand what's prompted the new attacks.

2. Pakistan's Taliban insurgency is worsening. Fighters from neighboring Swat moved into the Buner district earlier this week, only seventy miles from the capital of Pakistan Islamabad. The Pakistani government responded by sending police forces to the district, who were promptly repelled by the militants, and other reports indicate that Taliban forces have moved into districts even closer to the capitol. Al Jazeera reports that the Taliban are now pulling their fighters out of Buner, but none of this encourages American officials to believe that Pakistan is capable of dealing with their home grown Taliban insurgency...or securing their nuclear weapons against those fighters.

3. The Washington Post reports that the debate within the Obama administration over whether to release four OLC memos was intense. One of the arguments against releasing them was surely the political furor that the move has provoked. The Obama administration says they intend to oppose any investigation in torture by Congress, a move that some Democratic members are pushing for.

4. The Jane Harman story grows even more troubling with the revelation that then Attorney General Alberto Gonzales intervened to prevent then director of the CIA Porter Goss from informing members of Congress that one of their own had been captured on an NSA wiretap speaking with an agent of Israeli government, and that Gonzales also intervened to quash any investigation of the matter by the FBI. All of this was done allegeldy so the administration could continue to count on Harman's help in protecting the Bush administration's warrantless wiretapping program (and on that score, Harman didn't disappoint.) My only question is...how long do we have to wait to get rid of her?

Deadline on Secret Memos

The Obama administration faces a deadline on the release of secret OLC torture memos today. As Glenn Greenwald makes clear, the only possible reason for not releasing them is to spare the CIA embarrassment...or greater momentum for a criminal investigation. In other related government malfeasance news, the Senate Intelligence Committee pledges to "get the facts" regarding news that the NSA exceeded it's Congressional authority and spied on Americans in recent months. Frankly, I'll be highly surprised if that actually happens, or they bother to reveal to us the full extend of "the facts" they uncover.

UPDATE: The Obama administration has decided to release the memos (h/t Adam.) I'm pleased by this news, though I expect to be outraged all over again when I read the memos themselves.

Wednesday Evening Links

1. A poignant article about how real life-and cheap-ass taxpayers-can get in the way of students living their dreams. Maybe she wouldn't make it to Juilliard, but why can't she have every opportunity to explore her talent while also getting a useful degree?

2. Randy Cohen, writing about how we should only have so much tolerance for the beliefs and practices of other culture.

3. I can't remember if I linked to this already, but the NY Times had this worrisome piece about Pakistan's instability in last Sunday's magazine. You can be rest assured that if Pakistan falls to pieces, the Taliban in Afghanistan will be the least of our worries.

4. Gun nuts protest even the most minor of tracking measures designed to help law enforcement prevent the flow of weapons to Mexican drug cartels.

5. CIA Intelligence officials bitch and moan about the release of OLC memos related to torture, threaten to hold their breaths and turn blue if the Obama administration follows through on its promise.

6. Via War & Piece, NY Times reveals that NSA has-surprise-exceeded it's Congressional authority in eavesdropping on Americans. I suppose supports the Obama administration's that there should be absolutely no judicial oversight of NSA wiretapping whatsoever.

Obama and NSA Surveillance

Regarding the Obama administration's decision to assert over-reaching legal theories so as to shield the government from accountability for the NSA warrantless wiretapping programs, Glenn Greenwald praises Keith Olbermann for focusing on this issue and eviscerating the Obama administration in the process:

Last night, Keith Olbermann -- who has undoubtedly been one of the most swooning and often-uncritical admirers of Barack Obama of anyone in the country (behavior for which I rather harshly criticized him in the past) -- devoted the first two segments of his show to emphatically lambasting Obama and Eric Holder's DOJ for the story I wrote about on Monday: namely, the Obama administration's use of the radical Bush/Cheney state secrets doctrine and -- worse still -- a brand new claim of "sovereign immunity" to insist that courts lack the authority to decide whether the Bush administration broke the law in illegally spying on Americans.

Greenwald goes on to praise the attention liberal blogs have paid to the issue as well, and then says this:

This is quite encouraging but should not be surprising. As much as anything else, what fueled the extreme hostility towards the Bush/Cheney administration were their imperious and radical efforts to place themselves behind an impenetrable wall of secrecy and above and beyond the rule of law. It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.

Over the last several years, nothing stoked opposition to the Bush administration among civil libertarians moreso than the issue of warrantless wiretapping, indefinite detention, extraordinary rendition and detainee abuse and torture. This unholy alliance of government wrongdoing prods the darkest fears of civil libertarians, who envision a government that looses itself from the rule of law so as to hide criminality or incompetence, or uses the threat of terrorism to further its own political authority and agenda. If anything, the hypocritical decision of the Obama administration to continue to offer these Bush era legal arguments to protect itself from judicial oversight is even more enraging than what the Bush administration did, as Obama personally pledged his administration to greater government transparency and oversight. I think Olbermann speaks for us all when he lambasts the Obama administration for this approach:

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About that sovereign immunity argument, the Electronic Frontier Foundation has this to say:

...it's the Department Of Justice's second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

It's hard to explain how incredible this legal argument is. I recommend Orin Kerr for an explanation of the law at play here, but essentially, the Obama administration is arguing that sovereign immunity shields the government from accountability for willful violations of the law even when the law explicitly grants a remedy for such violations. They twist the plain meaning of the statutes to arrive at the conclusion that even when Congress explicitly waives sovereign immunity (as it possesses the authority to do) the executive may still claim it, at least in matters of domestic surveillance and wiretapping. As Tim Jones at the EFF notes, the Bush administration made this claim only in regards to FISA. The Obama administration goes above and beyond to make it against three different acts of Congress that control surveillance and wiretapping. They are nothing if not ambitious.

Now if that doesn't piss you off, I don't know what will. No one who follows politics for any length of time should be so naive as to think that politicians always keep their promises and never act out of blatant self-interest, so that the Obama administration is engaging in shenanigans I and other liberals and civil libertarians don't approve of should come as no real surprise. But to not only continue to make the same legal arguments that the Bush administration, but to go beyond that and make new and sweeping legal arguments in an attempt to hide criminal conduct and incompetence, is staggering hypocrisy. That sure as hell isn't what I voted for in November, and it should be similarly unacceptable to a public that put Obama in office precisely to escape the eight long years of illegality and incompetence we witnessed under Bush.

Reluctance

Scott Horton notes the increasing reluctance on the part of the Obama administration to get to the bottom of the torture that was ordered by senior members of the Bush administration. In this article he explains how Republicans in the Senate are threatening to derail Obama administration appointments to prevent the release of three key memos authored by the OLC in the early days of the war on terror. Today he links to this article in the Daily Beast by John Sifton, who says that Obama's new CIA director, Leon Panetta, may himself have very compelling reasons for not wanting to get to the bottom of the CIA's role in torturing detainees:

The New York Times reported that Leon Panetta, the current CIA director, has taken the position that “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Yet a number of CIA officials implicated in the torture program not only remain at the highest levels of the agency, but are also advising Panetta. Panetta’s attempt to suppress the issue is making Bush’s policy into the Obama administration’s dirty laundry.

Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes served as a senior official in the Directorate of Operations—the operational part of the CIA that oversees paramilitary operations as well as the high-value detention program. (The directorate of operations is now known as the National Clandestine Service.) Panetta has kept Kappes as deputy director of the CIA—the number two official in the agency. One of Kappes’ deputies from 2002-2004, Michael Sulick, is now director of the National Clandestine Service—the de facto number three in the agency. Panetta’s refusal to investigate may be intended to protect his deputies. Since the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a cover-up.

As far as I'm concerned, they can burn the CIA down if that's what it takes to get to the bottom of the torture scandal. As useless as that organization has been in recent years, it'd be no great loss and there'd be a substantial upside; a final reckoning on what government officials did to detainees in our custody during the "war on terror". I won't stand for this stonewalling and neither should you, and you can tell the White House what you think about it yourself here.

UPDATE: And then there's the whole NSA surveillance/state secrets privilege thing, which you should probably save for a separate email to the White House just to make sure you get your point across.

Annoyance

Wherein a NY Times critic's review of a PBS Nova special on the NSA annoys me. Beyond the general snarky tone and lack of substance, there are statements like this:

The Soviet Union doesn’t even exist anymore, so it’s not really surprising that the government didn’t anticipate that the convicted C.I.A. mole Harold Nicholson would stand accused of continuing to sell secrets to the Russians from jail by using his son as a go-between.

Wait, what? Is it too obvious to point out that even though Russia is no longer Soviet, they might still want to spy on us? The Israelis spy on us for crying out loud. I mean, I'm not sure if this is sarcasm or if the critic Alessandra Stanley really is sympathizing with the CIA for not imagining that a non-friendly power might want to spy on us.

Then:

The film, written and co-produced by James Bamford, the author of a number of books about the intelligence establishment, including “The Shadow Factory: The Ultra-Secret N.S.A. From 9/11 to the Eavesdropping on America,” buries interesting insights in an old and hackneyed documentary format, with ominous voice-over narration and spooky sound effects.

At times the tone is so lurid and foreboding that the film seems like a “Dateline” exposé of sexual predators.

Okay, now anyone who's ever seen a "Frontline" special knows that this is pretty much the format of every show they do, so that a Nova special might take the same tone regarding an agency that has for years now been spying on Americans (something that is in facts spooky and ominous) really should not be that surprising or remarkable.

Then there's this:

Mr. Bamford, who is interviewed in the film seated at a computer next to a crackling fireplace, makes the case that the government’s decision after 9/11 to extend the agency’s surveillance to American citizens without a court warrant violates a citizen’s “reasonable expectation of privacy.”

Emphasis mine. There's really no other purpose for bringing that detail up except to ridicule the show.

And lastly:

It turns out that the only way to catch huge masses of digital data is to tap into the cables directly — the film says that the agency has a secret office in the same building where it can examine all messages, domestic and foreign. (Those, according to the narrator, include “cries and laughter, hopes and dreams, e-mails, faxes, bank statements, hotel reservations, love poems and death notices.”)

Another detail added, I presume, to highlight the over-the-top nature of the show. Well, okay, but I don't see what's so bad about that. Though I haven't seen the show I have a feeling that, in isolation, that line hardly seems that ridiculous.

Alright, so it's a review and critics are free to be wrong in their review, but what troubles me is more the fact that Stanley seems dismissive of the idea (or importance of the fact) that the NSA is spying on Americans. I could be wrong, but that's the distinct impression I get. And I'm not at all interested in her dismissiveness, since at this point we've safely established the idea that an intelligence agency spying on Americans is kind of a big deal.

Anyway I'm not the only one to question Stanley's politics (or her accuracy.) Fortunately this is my first, and hopefully last, experience with her.

Wiretapping and a Whistleblower

Newsweek has a very interesting pair of complementary articles about NSA domestic surveillance programs and the man who blew the lid off of one of them. First, this profile of Thomas Tamm, the man who leaked to the NY Times the existence of the NSA's warrantless wiretapping program:

In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that "the program" (as it was commonly called within the office) was "probably illegal."

Tamm—who was not the Times's only source, but played the key role in tipping off the paper—has not fared so well. The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they've been questioning Tamm's friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him.

Exhausted by the uncertainty clouding his life, Tamm now is telling his story publicly for the first time. "I thought this [secret program] was something the other branches of the government—and the public—ought to know about. So they could decide: do they want this massive spying program to be taking place?" Tamm told NEWSWEEK, in one of a series of recent interviews that he granted against the advice of his lawyers. "If somebody were to say, who am I to do that? I would say, 'I had taken an oath to uphold the Constitution.' It's stunning that somebody higher up the chain of command didn't speak up."

If you're a reader of this blog, you are almost certainly familiar with the article the NY Times published based on Tamm's leaks, the gist of which was that the NSA was conducting warrantless domestic surveillance on the communications of Americans, in defiance of FISA provisions that require a court order to conduct such surveillance. This program was later largely ratified by the Protect American Act of 2007, but for a time the program operated in contravention to FISA requirements, which provide for criminal penalties for violations of its provisions.

The wiretapping is not the only program to come to light over the last few years. Though it has received exhaustive attention thanks largely to NY Times bombshell and accompanying media attention, there has long been suspicion surrounding an even more secret NSA program that is alleged to have collected massive amounts of data about the communications of ordinary Americans in a "data mining" operation, whose purpose was to discover a pattern of activities that could reveal planning of terrorist attacks. Another Newsweek story confirms and provides some limited detail about the existence of this program:

...These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's classified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)

The NSA's powerful computers became vast storehouses of "metadata." They collected the telephone numbers of callers and recipients in the United States, and the time and duration of the calls. They also collected and stored the subject lines of e-mails, the times they were sent, and the addresses of both senders and recipients. By one estimate, the amount of data the NSA could suck up in close to real time was equivalent to one quarter of the entire Encyclopaedia Britannica per second. (The actual content of calls and e-mails was not being monitored as part of this aspect of the program, the sources say.) All this metadata was then sifted by the NSA, using complex algorithms to detect patterns and links that might indicate terrorist activity.

This was the program that resulted in the dramatic standoff in John Ashcroft's hospital room in early 2004, when Ashcroft refused to recertify the program given its blatantly illegal nature. This is the story detailed in Barton Gellman's book "Angler", excerpts of which provide the basis for these Washington Post articles which describe in more detail the "rebellion" in the DOJ, FBI and intelligence agencies over the program. The program was shuttered by President Bush as a result, but not before operating for 2 1/2 years illegally. To this day we are not aware of the details or extent of the program, the fate of the data the NSA collected, or what that data was used for (more "laundered" wiretap requests perhaps, as described in the article on Tamm?)

Tamm exposed himself to criminal charges by leaking information about the warrantless wiretapping program to the NY Times. Despite the fact that to some this makes him a traitor to our country, it is unlikely that he'll face charges under the incoming Obama administration. Unfortunately, it is also unlikely that those who worked on or authorized this program will face criminal charges, despite the fact that FISA provides for them. Like some I consider it important to finally understand the totality of the NSA's programs, and am (very reluctantly) willing to let members of the Bush administration off of the hook if it permits the Obama administration to focus on things we should be doing right now. This is a concessions to pragmatism that certainly does not change the fact that I believe some members of the Bush administration should be tried for crimes against our nation.

And though I've said this at least a hundred times here and elsewhere, I do not believe it is an excuse that members of the Bush administration from the President on down were simply doing their best to protect the American public from terrorism. I give them a lot of leeway for erring on the side of caution in some respects, but it is quite clear at this point that the Bush administration broke the law because it was inconvenient to expend the political capital necessary to have the law changed, and this changes nothing about the fact that power utilized in secret will inevitably be abused and so should be avoided whenever possible. 

NSA Spied on Innocent Americans

We are of course hugely surprised by this news:

Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.

The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations "extremely disturbing" and said the committee has begun its own examination.

"We have requested all relevant information from the Bush Administration," Rockefeller said Thursday. "The Committee will take whatever action is necessary."

"These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.

Kinne described the contents of the calls as "personal, private things with Americans who are not in any way, shape or form associated with anything to do with terrorism."

Faulk says he and others in his section of the NSA facility at Fort Gordon routinely shared salacious or tantalizing phone calls that had been intercepted, alerting office mates to certain time codes of "cuts" that were available on each operator's computer.

"Hey, check this out," Faulk says he would be told, "there's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out. It would be some colonel making pillow talk and we would say, 'Wow, this was crazy'," Faulk told ABC News.

Faulk said he joined in to listen, and talk about it during breaks in Back Hall's "smoke pit," but ended up feeling badly about his actions.

"I feel that it was something that the people should not have done. Including me," he said.

NSA awarded Adrienne Kinne a NSA Joint Service Achievement Medal in 2003 at the same time she says she was listening to hundreds of private conversations between Americans, including many from the International Red Cross and Doctors without Borders.

"We knew they were working for these aid organizations," Kinne told ABC News. "They were identified in our systems as 'belongs to the International Red Cross' and all these other organizations. And yet, instead of blocking these phone numbers we continued to collect on them," she told ABC News.

A spokesman for Doctors Without Borders, Michael Goldfarb, said: "The abuse of humanitarian action through intelligence gathering for military or political objectives, threatens the ability to assist populations and undermines the safety of humanitarian aid workers."

Both Kinne and Faulk said their military commanders rebuffed questions about listening in to the private conversations of Americans talking to Americans.

"It was just always, that , you know, your job is not to question. Your job is to collect and pass on the information," Kinne said.

They listened to the calls of people who had nothing to do with terrorism, and they continued to listen to them despite the fact that they knew these people had nothing to do with terrorism. This is what an unreviewable surveillance system gets you; people will abuse their authority because they can, and no one will stop them. Now, if the NSA and the Bush administration found it so easy to eavesdrop on calls like this, what do you think their computers have been up to with your personal data? 

Given the relatively low level of the whistleblowers, it is not known what purpose or rationale there was for listening in on the phone calls of these Americans. But I'm sure we'll be finding out.

UPDATE: Glenn Greenwald, with the questions we now should be asking.  

The Inside Story

The Washington Post, in two articles adapted from a book coming out soon, provides us with a fascinating portrait of the inside struggle over the warranteless surveillance program that ensued between various members of the Bush administration in early 2004. Although the story of threatened resignations over the program has been out for awhile, the Post provides considerably more detail of the role of significant actors and just how close the administration came to a meltdown before Bush backed down and authorized changes to the program. Two things are stunning about this story. One, that President Bush was shielded until the last minute by Cheney and his staff from the news that members of the DOJ were going to resign in protest; he simply was unaware of the magnitude of the problem on his hands. And second, that we still do not know what the NSA was doing that was so bad that the head of the FBI, the chief of the Office of Legal Counsel at DOJ, the deputy Attorney General, the general counsels of the FBI and the CIA, among others, were willing to pack up rather than continue participating in the program (it is especially shocking in light of what they eventually did authorize.) Such a mass resignation would have been unprecedented in American political history, but it was only a matter of days from happening. What were they doing? And when will we know?

First Legislative Update of '08

Well, the 110th Congress recently returned to start their second session, but it's already not looking too good.

For the umpteenth time, the House of Representatives failed to override President Bush's veto of a bill to expand SCHIP. President Bush plans to sign into law the defense authorization bill, now that both chambers of Congress gave in on a provision he sought that would exempt Iraq from lawsuits dating to the regime of executed former President Saddam Hussein. And the Senate granted at least a temporary victory to the White House when it turned back an attempt to increase court oversight of the government's surveillance of phone calls and e-mails that involve people inside the United States. Here's Russ Feingold's statement on the affair.

As you probably already know, the House and President Bush reached a deal on an economic stimulus package. However, it may face opposition in the Senate as Senators try to push their own add-ons.

Legislative Week in Review V

The House of Representatives held another vote on a slightly reworked version of the S-CHIP bill today. The vote was 265-142, which is short of the two-thirds majority needed to overturn another promised presidential veto. However, it is that override vote that counts. Many weren't there to vote today and some will switch their votes, as they did last time.

Rep. Charlie Rangel, chairman of the House Ways and Means Committee, outlined a $1 trillion plan Thursday to eliminate the alternative minimum tax and ease the tax burdens of most people by asking the rich and some companies to pay more. However, GOP Senators are threatening to block eliminating the ATM tax unless Bush's tax cuts are extended. Isn't that something! Republicans are going to block a tax cut which benefits most people in favor of ones that benefit a few. But it just confirms what we've been saying all along.

Four backers of a resolution to formally name the 1915 massacre of Armenians by Ottoman Turks a genocide said on Thursday they have asked Speaker Pelosi not to bring it to a vote in the House, at least until later this year. And bid to censure California Congressman Pete Stark over recent comments about troops and such failed, but he apologized anyway. Apparently, these types of things are all the rage. They are much more important that, you know, actually doing something about the war.

Rep. Henry Waxman, chairman of the House Oversight and Government Reform Committee, laid into Secretary of State Condoleezza Rice this week for grossly mismanaging diplomatic efforts in Iraq and concealing information from Congress. He also accused Blackwater of serious tax evasion; Sen. John Kerry is pushing for a further probe.

By a vote of 27-21, the House Education and Labor Committee advanced to the full House legislation that would prohibit workplace discrimination against gays, lesbians and bisexuals. The original ENDA bill included protection for transgendered workers as well, but it became clear it would not pass with that included. There will be an attempt on the House floor to reinsert the language, but the bill already faces a veto threat and can't afford to lose any votes if there's going to be any hope for an override.

Also in the House: A bill that seeks to reduce vet suicides and would require mental health training for VA staff, screen suicide risk factors for veterans who receive VA care, and refer at-risk veterans for counseling and treatment and designate a suicide prevention counselor at each VA medical facility, passed 417-0. It also supports outreach and education for veterans and their families, peer support counseling and research into suicide prevention. Another bill passed by voice vote on Tuesday would regulate the production, sale and purchase of explosive chemicals like those used in the Oklahoma City bombing.

House Financial Services Chairman Barney Frank plans to introduce legislation Monday that would significantly tighten regulation of the mortgage industry in an effort to prevent another crisis in the subprime lending markets. Legislation that would boost sanctions against Syria was pulled from consideration Tuesday by the House Foreign Affairs Committee after its chairman and ranking Republican could not agree on whether to add language promoting dialogue with that country. And several key medical groups have announced their support for legislation introduced in the Senate that would require pharmaceutical companies to report any gifts given to physicians.

Over in the Senate, Democrats on Tuesday reversed President Bush's cuts to education, health research and grants to local communities as they gird for Bush's first-ever veto of a regular appropriations bill. It was approved by a 75-19 vote and goes to conference with the House version which was not approved by a veto-proof margin.

Armed Services Chairman Sen. Carl Levin has called on the upcoming $196 billion Iraq supplemental, to be considered early next year, to be split into a six-month installment plan where the Senate would have to consider the rest of the money next summer. A similar plan was considered last time in the House (and was threatened with a veto), with the thinking being that it gives Congress two opportunities to try and get a change in course for the war instead of one. Levin wand Sen. Jack Reed are also looking to add a nine-month goal to complete the withdrawal from Iraq. "Adding the language in the Appropriations Committee would turn tables on Republicans by forcing them to reach the 60 votes needed on the floor to strip out the language," according to The Hill.

Judiciary Committee Chairman Sen. Pat Leaky and others say they may note vote for AG nominee Michael Mukasey unless he states firmly that he considers the practice of waterboarding to be torture. Leahy has refused to set a date for a vote on Mukasey's nomination until he clarifies his answer to Sen. Whitehouse's question on the subject.

The Post also reports that Leahy and Sen. Arlen Specter, the ranking Republican, also angrily accused the White House of allowing the Senate Intelligence Committee to review documents on its warran-tless surveillance program in return for agreeing that telecommunications companies should get immunity from lawsuits.

Controversial nominee to the 5th Circuit Court of Appeals (which covers Texas) Leslie Southwick was confirmed, apparently in order to avoid GOP filibusters of future nominees by a Democratic president, despite the fact that will probably happen anyway. The infamous "Gang of 14," who allowed previous Bush nominees to be confirmed to avoid the "nuclear option" under GOP control, met again to come up with this ingenious plan.

The DREAM Act, which would have allowed illegal immigrants who plan to attend college or join the military, and who came to the United States with their families before they turned 16, to move toward legality, failed to reach the required 60 votes. Funnily enough, crazy nutcase and Republican presidential candidates Rep. Tom Tancredo called for a federal immigration raid at a rally by Sen. Dick Durbin in support of the act. Meanwhile, 16 Dems signed a letter to Speaker Pelosi in support of passing H-1B visa and green card reform this year.

The Senate on Thursday night approved a seven-year extension of a moratorium on state and local taxes on Internet access. The House earlier approved a four-year extension, so it now goes to conference.

In corruption news, a federal grand jury investigating California GOP Rep. John Doolittle's ties to jailed lobbyist Jack Abramoff has subpoenaed the House's chief administrative officer, Daniel P. Beard, who is responsible for maintaining lawmakers' old e-mails and other records. Also, Greg Lankler, a staff assistant on the House Appropriations defense subcommittee, is fighting a subpoena in a federal investigation of California GOP Rep. Jerry Lewis' ties to Jack Abramoff. Lastly, Idaho Sen. Larry Craig has spent nearly $23,000 in campaign funds to pay a Washington lawyer who represents him before the Senate Ethics Committee, a new campaign finance report shows. Sounds like he's been a "naughty, nasty boy" to me.

UPDATE: Two Senators on Friday called for a congressional hearing to investigate reports that phone and cable companies are unfairly stifling communications over the Internet and on cell phones.

And, in a letter to White House Counsel Fred Fielding, Sen. Leahy requests all legal opinions that the DoJ has written relating to torture.

Legislative Week in Review IV

Yesterday, the House of Representatives attempted to override President Bush's veto of the SCHIP expansion, but still fell a little short of the required 2/3rds majority. This, despite the fact that 81% of Americans supported the bill, including most Republicans. Speaker Pelosi says she will offer a new bill in two weeks; aides said Democrats will make cosmetic changes, "making it clearer that the bill does not allow illegal immigrants to be covered and capping the income eligibility level," in order to pick up the requisite number of Republican votes. The Senate already has enough votes.

Also this week in the House, legislation to continue a ban on Internet taxes, a resolution condemning the State Department for its refusal to divulge public details on Iraqi corruption, and a media shield bill to protect the confidentiality of reporters' sources in most federal court cases all passed overwhelmingly but have yet to be considered in the Senate. Meanwhile, a proposed resolution that would recognize the massacre of Armenians by the Ottoman Turks during WWI as genocide looks less and less likely to make it to a floor vote with key Democrats opposed over souring relations with modern-day Turkey, despite promises by Speaker Pelosi. This makes one wonder what the point was of picking a fight with the White House that didn't wasn't necessary - just to lose it.

The House is also considering legislation to impose tighter sanctions on Burma's military junta,

In committee news, Rep. Henry Waxman is still looking into how the Bush administration misinformed about pre-war intelligence. Charging that a top Yahoo! Inc. official provided incorrect information regarding a Chinese human rights case to Congress, the House Foreign Affairs Committee on Tuesday called on the company’s leadership to appear before the panel.

Over in the Senate, the Intelligence Committee approved immunity for telecom companies involved in illegal NSA spying as part of the new FISA update, 13-2. Only Democratic Sens. Russ Feingold and Ron Wyden voted against it. However, Sen. Chris Dodd has put a "hold" on the bill and is threatening to filibuster it should Majority Leader Reid decide to bring it to the floor anyway. The House was about to consider its version of the wiretap bill this week (which does not include the immunity provisions, which is why the White House and Republicans are opposed) but it was pulled from the floor after Republicans offered a "poison pill" amendment.

Meanwhile, the Senate Judiciary Committee held confirmation hearings for AG pick Michael Mukasey. White he started off disavowing torture and vowed not to bow to White House pressure, the nominee later demurred about what constitutes torture and stated he opposed restoring habeas rights to Gitmo detainees. However, it is likely he'll be confirmed. A committee vote could happen as early as next Thursday with a full floor vote by the end of the month, though chairman Leahy says this could be delayed if they do not receive written statements by Mukasey in a timely fashion.

Sen. Obama has asked that the head of the Justice Department's voting rights division be fired for saying voter ID laws hurt the elderly but aren't a problem for minorities because they often die before old age. Bush's family planning nominee is also facing considerable opposition (for her anti-contraception views), as is his pick to head of the Justice Department’s Office of Legal Counsel. And Majority Leader Reid signaled today the Senate may take up the controversial nomination of Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit soon, seeking a vote to limit debate on the nomination Tuesday. If that succeeds, the Senate would vote on whether to confirm him. Southwick's record has evidence of racial prejudice.

The Senate Banking Committee approved measures dealing with Sudan divestment, flood insurance, and a 7-year extension of the Terrorist Risk Insurance Act which the White House has said it will not veto despite opposition. The Senate Commerce Committee held hearings on a bill that would make cell phone companies give their customers a break on early termination fees by prorating the penalties so the cost declines with time. And Sen. Schumer has threatened legislative action unless U.S. credit bureaus stop charging fees for freezing a consumer's credit history report to prevent identity theft.

Harry Reid is also hoping to finally get into conference negotiations for energy legislation with the House, if Republicans will allow it. The two houses passed completely separate bills, but Reid and Speaker Pelosi have laid out general guidelines. The White House has threatened a veto.

Lastly, the Senate rejected cuts to community anti-crime grants and NASA spending and overwhelmingly passed the Commerce, Justice, Science, and Related Agencies Appropriations Act which the White House has threatened to veto, like so many budget bills.

UPDATE: You can show your support for Sen. Dodd's hold here.

Dodd to the Rescue

Senator Chris Dodd saves the Democrats from their own spinelessness and announces his intention to kill the FISA bill that grants the big telecoms immunity for their spinelessness. However this ends, no one can say the man doesn't have some balls. More here.

Money Talks

Not that you'll be shocked or anything, but Democratic Senator John Rockefeller, Chair of the Senate Intelligence Committee and immunizer of telecom wrongdoing got a lot of campaign contributions from Verizon this year. But you know, it's not as if we should be worried about the corrupting influence of money in politics or anything.

Dems Cave...

...and grant immunity to the telecoms in the new FISA bill. Entirely predictable criticisms of Democratic spinelessness follow.

Qwest punished by Bush admin for not going along with NSA program... before September 11th

From today's Washington Post:

A former Qwest Communications International executive, appealing a conviction for insider trading, has alleged that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal.

Former chief executive Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks, according to court documents unsealed in Denver this week.

Details about the alleged NSA program have been redacted from the documents, but Nacchio's lawyer said last year that the NSA had approached the company about participating in a warrantless surveillance program to gather information about Americans' phone records.

In the court filings disclosed this week, Nacchio suggests that Qwest's refusal to take part in that program led the government to cancel a separate, lucrative contract with the NSA in retribution. He is using the allegation to try to show why his stock sale should not have been considered improper.

Nacchio was convicted for selling shares of Qwest stock in early 2001, just before financial problems caused the company's share price to tumble. He has claimed in court papers that he had been optimistic that Qwest would overcome weak sales because of the expected top-secret contract with the government. Nacchio said he was forbidden to mention the specifics during the trial because of secrecy restrictions, but the judge ruled that the issue was irrelevant to the charges against him.

Nacchio's account, which places the NSA proposal at a meeting on Feb. 27, 2001, suggests that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon. The Sept. 11 attacks have been cited by the government as the main impetus for its warrantless surveillance efforts.

The allegations could affect the debate on Capitol Hill over whether telecoms sued for disclosing customers' phone records and other data to the government after the Sept. 11 attacks should be given legal immunity, even if they did not have court authorization to do so.

Never mind that it is entirely inappropriate for the government to be awarding a contract conditioned upon an agreement to an illegal program, clearly there is more to this story about the government's relationship with the telecoms than what the administration has admitted to. The fact that the administration was trying to build their warrant-less wiretapping program even before the 9/11 attacks is shocking (though some have suggested so before) and completely discredits their arguments for why they were pursuing it in the first place. It wasn't just that they felt they needed more tools to battle a new enemy, they were interested in expanding executive power (as many of us "paranoid" and "crazy" liberals thought all along).

Thankfully, there are signs that Senators are not as keen on giving the telcos that weren't brave like Qwest immunity as once thought.

UPDATE: (Xanthippas) Here's the incomporable Scott Horton with more analysis of the tawdry underpinnings of the prosecution against Nacchio and how it might be related to this warrantless surveillance.

UPDATE II: (Xanthippas) John Conyers, Chairman of the House Judiciary Committee, says that the DOJ and Mike McConnell have some explaining to do.

More on FISA bill

House Democrats unveiled their bill to make more changes to FISA, which would sunset on December 31st, 2009. There are conflicting reports on what exactly the bill does, and Glenn Greenwald says it may not be as bad as we think. The most contentious issues is whether to give telecommunications companies retroactive legal immunity for helping the government conduct electronic surveillance without court orders, which Majority Whip Steny Hoyer says hinges on whether the Bush administration will turn over documents on what exactly those companies did.

Despite the fact that the Democrats shouldn't even be considering giving immunity, I say they should hold out on passage until they get absolutely everything they want from this administration. After all, what is the rush? The bill they passed back in August doesn't expire until February of next year. Also, I think the Dems should demand President Bush should accept censure as part of getting the FISA changes. If he wants it rubber-stamped, he should accept responsibility for having broke the law in the first place. Perhaps we can convince Sen. Russ Feingold to try and attach his proposed censure resolution as an amendment...

UPDATE: If the Bush administration and Congressional Republicans don't like this bill, that's just fine. Send them one they really don't like!

UPDATE II: Here's what happens when a telecom company didn't go along with the NSA's illegal program in the first place.

Dems to make permanent changes to FISA

Uh oh.

House Democrats plan to introduce a bill this week that would let a secret court issue one-year "umbrella" warrants to allow the government to intercept e-mails and phone calls of foreign targets and would not require that surveillance of each person be approved individually.

The bill is likely to resurrect controversy that erupted this summer when Congress, under White House pressure, rushed through a temporary emergency law that expanded the government's authority to conduct foreign surveillance on U.S. soil without a warrant. The Protect America Act, which expires in February, has been criticized as being too broad and lacking effective court oversight.

The Democrats' legislation, drafted by the Intelligence and Judiciary committee chairmen, is aimed to reconcile civil liberties, privacy and national security concerns. It would overhaul the Foreign Intelligence Surveillance Act (FISA), a 1978 law amended many times that the Bush administration argues has been outstripped by technology.

"Some conservatives want no judicial oversight, and some liberals oppose any notion of a blanket order," said James X. Dempsey, Center for Democracy and Technology policy director. "So the challenge of the Democratic leadership is to strike a balance, one that gives the National Security Agency the flexibility to select its targets overseas but that keeps the court involved to protect the private communications of innocent Americans."

Yeah, that's the ideal legislation. But how does allowing the issuance of "blanket" warrants really provide adequate oversight? I wish the article had more details. Hopefully, they will be forthcoming when the bill's announcements comes this week.

The bill would require the Justice Department inspector general to audit the use of the umbrella warrant and issue quarterly reports to a special FISA court and to Congress, according to congressional aides involved in drafting the legislation. It would clarify that no court order is required for intercepting communications between people overseas that are routed through the United States. It would specify that the collections of e-mails and phone calls could come only from communications service providers -- as opposed to hospitals, libraries or advocacy groups. And it would require a court order when the government is seeking communications of a person inside the United States, but only if that person is the target.

A target is defined as a person, group, cell or government of interest to a foreign intelligence investigation.

"Democrats have made huge strides in making improvements over the Protect America Act," said Tim Sparapani, senior legislative counsel for the American Civil Liberties Union. "Yet we think that the Constitution requires as a minimum that an individualized warrant is required whenever an American's communications are targeted. This is going to be the big sticking point."

Exactly, I don't see how these changes address the primary concerns people had about the temporary measure passed before the August recess. The ACLU, for instance, was kept completely in the dark as far as negotiations go. That's not bad in and of itself, but it is sort of an unusual snub for Democrats and makes you wonder what it happening.

Apparently, the Progressive Caucus has banded together and said they would fight any legislation that did not include a set of eight principles on wiretapping intended to preserve the "rule of law." The Huffington Post article suggests their announcement pre-empted one from Hoyer to unveil the bill. But did they have any influence over what will be introduced next week?

Democrats are wary of being called weak on national security. That concern is exacerbated by the government's withholding of details on its surveillance activities that would enable Congress to gauge whether expanded powers are needed, said Mark Agrast, senior fellow at the Center for American Progress.

Majority Whip Steny Hoyer and caucus chairman Rahm Emanuel seem to be the ones pushing for the changes the hardest, if an effort to protect Democrats from swing or conservative districts. But Open Left questions whether this is even necessary or wanted.

The bill would not include a key administrative objective: immunity for telecommunications firms facing lawsuits in connection with the administration's post-Sept. 11 surveillance program. House Democrats have said that as long as the administration withholds requested documents explaining the basis for the warrantless surveillance program, they cannot consider immunity for firms alleged to have facilitated it.

The White House on Friday evening told the chairmen of the Senate and House intelligence and judiciary committees that it would put together that information by Oct. 22 but would not say when or whether it would make the information available to lawmakers.

"We have told the White House for weeks that the House plans to consider FISA legislation on October 17," said a senior Democratic congressional aide involved in the White House negotiations. "How can members of Congress consider any proposal for immunity if the documents relating to the company's conduct aren't even being assembled by White House lawyers until October 22?"

Apparently, those documents are all they are waiting on:

In the Senate, Democrats are working with Republican colleagues on a bill to be introduced this month that probably will contain some form of relief for telecom companies -- an issue that was sidestepped in August to help win passage of the Protect America Act.

Four possibilities are being discussed, said a Senate aide familiar with the discussions. The broadest would be blanket immunity, which would immunize anyone, including government officials, who had anything to do with any surveillance program. That is the approach the government favors and is strongly opposed by civil liberties advocates.

The second is targeted immunity, in which companies that can prove they were acting in good faith would be granted immunity from prosecution. The third is substitution, in which the government would replace the defendant in the lawsuit. Finally, there is indemnification. The cases would proceed through the court system, and if there were financial penalties, the government would assume them, the aide said.

Aides spoke on condition of anonymity because they are not authorized to speak on the record.

Adding a new perspective on the debate, a group of prominent computer scientists from organizations including Sun Microsystems, Columbia University and the University of Pennsylvania recently warned that the current emergency law opens doors to the interception of purely domestic communications without a warrant. The computer scientists are concerned that the government's actions could threaten the privacy and security of U.S. communications.

Administration officials have testified that any information gathered that involves an American who is not a target will be "minimized" -- their identities blacked out -- so that their privacy is protected.

Michael Sussmann, a partner at Perkins Coie in Washington who represents communications providers, said carriers that are alleged to have participated in the government's warrantless surveillance program want immunity to halt pending cases, while those who did not are either agnostic or do not want their competitors to get a free pass.

"It's a tough call," he said. "If they were breaking the law, it was not out of any greed -- there was no remuneration or benefit to their business. It was from a sense of patriotism and interest in protecting against terrorist attack."

Glenn Greenwald has written pretty forcefully against granting immunity, and I agree. Why would Democrats try to fast-track such legislation? It just doesn't make sense.

Matt Stoller put it well:

The alternative to 'fixing' this legislation is to simply let the six month FISA extension of authority expire in February, and go back to the regime we had prior to August. There is literally no reason to do what the Democrats are about to do in the House and Senate.

The DCCC and DSCC need to be aware of what's going to happen when this legislation passes, which is that online fundraising is going to drop as it did in July. Only this time we're going to organize around it and try and actively seize those revenue streams to pursue primary challenges, since it's obvious that Democratic leaders are simply out to lunch.

Seriously, how much capitulation can Democrats in Congress get away with before they run the risk of alienating the very people they need to vote for them in the next elections? You may or may not agree with their arguments on why they can't end the war in Iraq, but there's absolutely no reason why they have to give the Bush administration the broad powers and retroactive immunity it wants. If they couldn't get it under a Republican Congress, it is simply outrageous for them to get it now.

FISA Rewrite Probably Worse Than Thought

From the New York Times:

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.

These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.

It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month’s Congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans.

Well, I have my doubts this administration didn't make the language of the bill intentionally vague to allow it even broader discretion than the new law provides on the surface. Especially since we are, in fact, dealing with an administration that doesn't even believe they ultimately need Congressional approval to do whatever they want to do anyway.

Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

The only potential silver lining to this law is that it expires in 6 months and both Speaker Pelosi and Majority Leader Reid have promised to push for changes upon the immediate return of Congress. But then again, will this lawless administration even care? In the end, this seems much more about creating a political embarrassment for Democrats and I can't believe they fell for it hook, line, and sinker.