Intel drivers

By Carol Gee

The M & M's --Two Mikes, one an Admiral and one a General, are in the drivers' seats of two of the main vehicles for the nation's Intel community. The first is Vice Admiral Mike McConnell, the Director of National Intelligence (See my recent feature post). The other Mike -- General Michael V. Hayden, heads the Central Intelligence Agency. Both men have been in the news recently, each sometimes to an advantage and sometimes to a disadvantage. Apparently, loyalty to the White House is a powerful driver for both of the Mikes. Mike McConnell originally got everything he needed in the P.A.A. reauthorization legislation to collect and analyze foreign intelligence. He would have been authorized to target strictly foreign subjects without a warrant, and to required to get FISA court warrants to target U.S. persons. Those were the essential terms in two of the three bill versions set to come up for Senate debate next week. But, after the White House demanded it during the earlier negotiations between he and Congress, McConnell also demanded retroactive immunity for the telecommunications companies cooperating with the government intelligence apparatus. Only one of the pending versions contains that provision, the Senate Intel Committee bill.

The Budgets and Authorities -- Congress has the authority to control government spending. As DNI, Admiral Mike McConnell has a certain amount of authority over CIA head, General Michael Hayden, the primary subject of later material in this post.Their operating budgets are in a bill for an estimated $48 billion waiting to be signed by our current president (OCP). OCP has threatened a veto. To quote from this headlined story from the Huffington Post, "House Votes to Ban Harsh C.I.A. Methods," by The Associated Press. December 13, 2007:

The 222-199 vote sent the measure to the Senate, which still must act before it can go to President Bush. The White House has threatened a veto.

The bill, a House-Senate compromise to authorize intelligence operations in 2008, also blocks spending 70 percent of the intelligence budget until the House and Senate intelligence committees are briefed on Israel's Sept. 6 air strike on an alleged nuclear site in Syria.

The 2008 intelligence budget is classified, but it is more than the $43 billion approved for 2007.

The Road Rules -- Reflector.com hints at possible reasons for the president's threatened veto of the Mikes' funding. The White House has set up different rules of the road for its so-called war on terror, than what Congress thinks the law should be. Thus Congress put conditions on the money. To quote:

. . . The bill requires civilian as well as military interrogators to obey the Army Field Manual's ban on torture of prisoners and the United States to adhere to Geneva Conventions rules for handling prisoners of war. The bill orders a National Intelligence Estimate on the impact of climate change on U.S. security.

Majority Leader Steny Hoyer, D-Md., said "in the pursuit of those who seek to harm us, we must not sacrifice the very ideals that distinguish us from those who preach death and destruction. Yet, under the current administration, we have seen that line blurred between legitimate, sanctioned interrogation tactics and torture."

Peter Hoekstra, R-Mich., objected to the bill's funding of studies into the impact of global warming on U.S. security, calling it wrong to divert funds "from tough antiterrorsm intelligence programs targeted at apprehending and killing terrorists" to those studies.

The Lapses -- The two Mikes have come into their positions rather recently. And each has had a certain number of inherited messes. DNI McConnell inherited the Terrorist Surveillance Program, secret and, apparently illegal. CIA Director Hayden inherited the torture tapes destruction scandal, also secret and, apparently illegal. The two Mikes do have strengths. They each have a relatively open manner. They are more comfortable than their predecessors with making things public. (McConnell sometimes declassifies materials on the spot). And they have absorbed considerable military discipline, which their boss -- OCP -- absorbed relatively little. The dark side of that is that it harder to resign in protest and ruin a military career, I think, than resign in civilian protest such as Jack Goldsmith and James Comey did over the administration operating outside the law.

• Failure to inform Congress -- New York Times headline, "C.I.A. Chief Cites Agency Lapse on Tapes" (12/13/07) To quote:
  
  

  Gen. Michael V. Hayden . . . acknowledged on Wednesday that the C.I.A. had failed to keep members of Congress fully informed that the agency had videotaped the interrogations of suspected operatives of Al Qaeda and destroyed the tapes three years later.
  
  General Hayden’s comments struck a different tone from a message he sent to C.I.A. employees last Thursday, when he said that Congressional leaders had been informed about the tapes and of the “agency’s intention to dispose of the material.”
  
  . . . General Hayden said Wednesday that “particularly at the time of the destruction, we could have done an awful lot better at keeping the committee alert and informed.”

• Failure to preserve evidence -- Just before Christmas the Times Online headlined, "CIA chief to drag White House into torture cover-up storm." To quote:
  
  

  THE CIA chief who ordered the destruction of secret videotapes recording the harsh interrogation of two top Al-Qaeda suspects has indicated he may seek immunity from prosecution in exchange for testifying before the House intelligence committee.
  
  Jose Rodriguez, former head of the CIA’s clandestine service, is determined not to become the fall guy in the controversy over the CIA’s use of torture, according to intelligence sources.

• Failure to preserve evidence -- Porter Goss and the tapes (1/17/08). To quote:
  
  

  Former CIA Director Porter Goss never criticized plans to destroy interrogation videotapes, a lawyer said Thursday as the investigation began shaping up as a matter of competing storylines.
  
  Jose Rodriguez, the CIA official who gave the order to destroy the tapes, is at the center of Justice Department and congressional investigations into who approved the plan and whether it was illegal. His attorney, Robert Bennett, said Goss and Rodriquez met several times to discuss the tapes and Goss was never critical of Rodriquez' decision.
  
  After a first round of hearings on Capitol Hill, the top Republican on the House Intelligence Committee said Rodriguez defied orders that the tapes be preserved.

• Failure to ascertain what was true before making a statement -- "Detainee's Lawyers Rebut C.I.A. on Tapes," NYT 1/19/08 To quote:
  

  In papers filed Jan. 4, Mr. Khan’s lawyers challenged a Dec. 6 statement by the C.I.A. director, Gen. Michael V. Hayden. General Hayden, addressing agency employees after being told that The New York Times was about to publish an article about the tapes, wrote that the taping stopped in 2002.

Loyalty and Chain of Command are powerful drivers for military men. Their loyalty to their Commander in Chief must truly test the resolve of the two Mikes at times. And I do not doubt their loyalty to the idea of trying to collect sufficient information about the enemy to protect the nation against attack. The trick during the years of the current administration has been for them to have matching loyalty to the Bill of Rights and to the rule of law. It is a walk on a knife edge for all of us.

(Cross-posted at South by Southwest.)

Following the Rule of Law -- Part II

By Carol Gee

Following the rule of law is a principle about which I posted yesterday. That post focused on the admirable support for civil liberties and the rule of law that has been given by Representative Sheila Jackson Lee of my home state of Texas. Today's post, about former Assistant Attorney General Jack Goldsmith, focuses on his own courageous support for the rule of law within the current Bush administration.

Judging from the facts -- I would venture to guess that Representative Jackson Lee and Jack Goldsmith are very far apart on the political spectrum. But they are very close on the integrity spectrum, in my opinion. Most of us first met Mr. Goldsmith when he testified before the Senate Judiciary Committee earlier this month. returning to former Assistant Attorney General Goldsmith's story - told at a Senate hearing three weeks ago. His riveting (10/2/07) testimony can be seen again on C-SPAN: Senate Hearing on "Preserving the Rule of Law While Combating Terrorism" - Jack Goldsmith, Harvard Law School, Professor and former Asst. Attorney General testifies before the Senate Judiciary Cmte. on FISA and counter terrorism efforts. 10/2/2007: WASHINGTON, DC: 1 hr. 55 min.

Goldsmith appeared as a single witness. Now out of the government, he testified about his prior service in the Bush Justice Department. No doubt the members of the Judiciary Committee had very fresh memories of what has gone on inside the Justice Department, according to two brave officials who told the truth to the committee during previous testimony. The first was James Comey, who originally revealed the attempts of Alberto Gonzales and Andrew Card to coerce ailing Attorney General Ashcroft into authorizing illegal wiretapping. During 2003-04 the second, Jack Goldsmith, worked in the Office of Legal Counsel for the current administration, where he worked at the time of this episode . His current book is titled, "The Terror Presidency: Law and Judgment Inside the Bush Administration."

Judiciary Committee Hearing Notes for 10/02/07 "Preserving the rule of law. . .":
As my regular readers know I sometimes take notes during congressional hearings. Following are a few of my notes which paraphrase, as best I can, the gist of participants' significant remarks made at that time.

Senator Feinstein, to Goldsmith regarding the torture law, asked: Why go beyond the UCMJ? Goldsmith explained that there was great pressure to get intelligence information. Regarding the law and counter terrorism, Goldsmith asserted that it is not the Supreme Court's job to do counter terrorism policy.

Senator Sessions: Goldsmith on the hospital room confrontation. Jim Comey, "No legal basis for the program in question." His legal analysis was at the bottom of all this. New attorney General nominee - going up to the line but not entitled to break the law. There are the Geneva Conventions and what Congress passed, the criminal torture statute in 1994. This was the controlling authority to the extreme. It prohibited "severe," etc. The CI A had 100 + lawyers and they were worried about their own culpability. The Hamdan decision mad Common Article 3 applicable to torture. The CIA went up and down over the years with risk aversion, and then not risk averse. They have needed very clear standards. Goldsmith was the one who rescinded the torture memo as "severely flawed."

Senator Feingold: "This is very important testimony." He asked if there were any administration programs not briefed to the "Gang of 8." Goldsmith was not sure how much was briefed. Feingold asserted that the PAA could be very broadly interpreted. Congress should write the law in the way we want it to be interpreted.

Mr. Goldsmith asserted that some of the drivers in the department was hostility towards the FISA court and deep fear of bombs killing U.S. citizens. Goldsmith wrote memos to replace the one he rescinded. And he was prepared to resign. He kept notes about his actions. Regarding the TSP, very few people were provided the legal opinion justifying it. (Goldsmith was willing to testify to the committee in closed session). Asked who was in on it, he named himself, Baker, Comey and Gonzales. He also stated that his book was "pre-cleared" for classification purposes. He also admitted to being self-constrained in what he disclosed in the book.

Senator Cardin: Most concerning is the administrations dealings with Congress. The disdain for the FISA court system is also my concern. "We need an independent FISA court." Goldsmith: "They have been independent. We need to to integrate detainees into the justice system because they are dangerous. We'll have to detain members of the enemy until the war is over.And that could be endless. They don't wear uniforms. They are not members of a criminal system, either. We need something else, legally."

Senator Whitehouse: Returned to the issue of the Gonzales/Card visit to the hospital room of Attorney General Ashcroft. Stated his opinion that, "James Comey and Bob Mueller were among the most level-headed people in government, not given to exaggeration. But you and Comey rushed with red lights on across town to the hospital room, Comey bounded up the stairwell, and Mueller called his FBI agents with instructions not to leave Gonzales and Card alone with Ashcroft in that room. You saw it as an emergency, the White House trying to take advantage of a very sick man." Goldsmith characterized the episode as, " It was extremely inappropriate." Senator Whitehouse stated his belief that the Office of Legal Counsel should really follow a set of internal norms and practices, and that the new Attorney General should examine the state of those norms and practices left by Gonzales. "Do a thorough scrub to protect the Justice Department. Those norms were bypassed, degraded and ignored by Alberto Gonzales, John Yu, David Addington and the like. There were no limits on the President's prerogatives. That policy has been hurtful."

Mr. Goldsmith related the "messages" he got about the terrorist threat situation, with some attribution to David Addington in the Vice President's office. Nothing should "tie the President's hands. That would be hurtful to the country. You don't want the blood of 100,000 people on your hands." He was stirring up fear, of course, but Goldsmith did not think the level of threat was exaggerated, however. There are "tens of billions of phone calls and e-mails that equal a daily matrix of threats." He said that Bin Laden "declared war" in 1996, but the administration was timid back then. But even today officials still fight over "do everything you can versus operate within the law." This produces extraordinary anxiety for decision makers. There is a great need to legislate very clearly, with oversight but not prosecution. There needs to be accountability. Right now agents all carry lots of liability insurance. We need new laws, perhaps a good faith statute? The threat was real. But the more viewpoints we get with these extremely difficult decisions, the better. Congress, indeed has the right to know how the President will interpret any new legislation.
Regarding the idea of retroactive immunity for telecom companies, he thought that was "sensible." And regarding the practice of torture, he "does not know if it has been abandoned. . . Signing statements can be operationalized. The real fear is getting hauled into court."

Senator Whitehouse continued with a discussion of how torture came under such assault; what about "very severe pain? Does that condone burning with cigarettes, which would risk death?" Goldsmith revealed that Where the "Bybee Torture Memo" standards emerged was from health care statutes applied to the requirement to provide health care benefits in emergency circumstances. Whitehouse concluded with a brilliant and important statement about his love for the rule of law. It must not be treated this way. "It has shape and substance and form" deserving better than this.

Senator Leahy told Goldsmith, "We can't trust the administration, if we want to protect those CIA agents under such tremendous pressure.". . . "You kept your conscience."

Following are the related stories during that week.

• Summary of a Phone call to the C-SPAN Thursday morning program from Scott Shane, the NYT reporter who broke the (new torture memos) story: "Representative John Conyers and Senator Patrick Leahy have asked the White House for copies of the legal opinions. Oct. 17 will be the confirmation hearings for the new AG." (Shane) talked to two dozen officials in and out of government. He noted that Acting OLC Bradbury has been refused confirmation by the Democratic Senators.


• Senator Kennedy spoke on the floor of the Senate Thursday, October 4: Regarding the NYT story -- "The office of Legal Counsel withdrew its legal opinion on torture. But later in 2005 the administration put 2 new opinions in place. 1) The harsh interrogation techniques were allowed to be used in combination. 2) It declared that the CIA was not violating the law with anything they were doing -- amounting to a declaration that the CIA had not violated any laws along the way. In that way the White House had overruled the OLC. Comey and Goldsmith had been sidelined. Attorney General Gonzales had approved these two opinions and everything else the President wanted. (Kennedy will be introducing a bill that states that the standard of treatment of detainees by anyone in the government will be the Army Field Manual). This is because 2005 Detainee Treatment Act had a loophole in it, allowing the President to define those standards, not Congress. The Executive Order took maximum advantage of the opportunity. This nation cannot stand for the use of brutal interrogation techniques."


• Statement from our current president (OCP) later that morning -- with a rather defiant tone, "I have put this program in place for a reason. This government does not torture people; we detain and question people looking for actionable intelligence. The techniques were fully disclosed to Congress. The Government sticks to U.S. law and obligations. Highly trained professionals doing this work to protect you. The American people expect their government to take action to protect them. And that is exactly what we are doing."

In conclusion - in addition to Sheila Jackson Lee and Jack Goldsmith, several Senate Judiciary Committee members have also acted admirably throughout this controversy. I include for kudos: Senator Patrick Leahy is the tough chairman. Senator Arlen Specter is the Republican who also loves the law. Senator Diane Feinstein (not an attorney), but as good as many lawyers, her fellow members have declared. Senator Kennedy, who is not afraid to speak out about almost anything. And most of all Senator Sheldon Whitehouse, whose passion for the purity of the rule of law in unmatched, in my opinion. Heroes all, too often in the company of cowards.

(Cross-posted at South by Southwest.)

Intel: checks and balances -- Rep. Reyes hearings, Part 2

By Carol Gee

The U.S. constitution sets up a system of checks and balances within the entire national government. During the "reign" of our current president (OCP), however, the executive branch has gained at the expense of the legislative and judicial branches. The loss of citizen civil liberties protections under the Fourth Amendment has been particularly serious. And it will be much more difficult to now regain these protections, than it would have been to assure protections along the way.

Increased surveillance of suspected terrorists began shortly after 9/11/01. United States citizens did not know what was going on for years because the spying on Americans was done in secret. It was not revealed until the New York Times broke the story at the end of 2005, after sitting on the story for months. To quote,

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

In a previous post I included important information about what is happening with House of Representatives oversight of the collection of domestic intelligence by the executive branch. Today's post focuses on views of the Committee Chairman versus the testimony of the man accountable in the administration, the Director of National Intelligence, Admiral Mike McConnell. (Hearing information is black font, my own thoughts are in blue font).

After the opening salvos of the House Select Committee on Intelligence Hearing regarding the Protect America Act (PAA), Thursday - 9/20/07, Chairman Sylvestre Reyes (D-TX) got to the real business of the hearing, the question of what does need to do its job of constitutional oversight of civil liberties. Reyes began, "We still do not have the documents that will allow us to understanding the administration's thinking about their surveillance programs. The threats are real, but we must maintain the balance of protecting the nation and our citizens' civil liberties. "

OCP Bush has taken the position that he has inherent constitutional authority as commander in chief, as well as actual permission from within the Authorization for the Use of Force after 9/11, to spy on us without involving the courts. The programs would never have been revealed voluntarily, because they were probably operating illegally. And now that Congress and the courts are part of the process, the administration's earlier justifications would probably wither under any kind of scrutiny. Chairman Reyes holds a good hand, because the administration wants the PAA program to be changed even more and to become permanent before February of next year. And it needs Congress' help to make this happen.

Admiral McConnell, the Director of National Intelligence (DNI) testifying, explained that the PAA rests on "three pillars: No FISA warrants are needed for surveillance of targets in a foreign land, telecommunications company cooperation is compelled, and we are required to get a warrant to target a person in the United States. Only one end of a communication can be targeted. All foreign intelligence will be included. But we still need more; the definition of Electronic Surveillance needs to exclude foreigners in a foreign country. As for the White House documents request, they are still negotiating between the various Congressional committees and the various departments in the White House about furnishing the documentation."

The "Protect America Act" title of the new temporary law is an ironic misnomer. Civil liberties protections seem always to get second billing as administration officials attempt to keep the nature and extent of their programs secret from the people's legislative representatives under the guise of "National Security," or executive privilege. Every Member of the House and every Senator has built in security clearance. And they must know what is going on in order to write and pass the laws needed by the current administration.

DNI McConnell responded to the civil liberties protection question by reiterating what went on in the drafting negotiations leading to passage of the law in early August. "We 20 expert lawyers looking over everything in the 6 or 7 drafts going back and forth. My biggest worry was that we must not be required to have warrants to gather foreign intelligence. The new law does not address reverse targeting because it would have added ambiguity and uncertainty. It was not required because it is covered elsewhere. Minimization (of privacy invasions) is already in place. Such 'incidental' information is purged from the data base if we discover it, or reported with name protection if it is pertinent to intelligence consumers."

The Protect America Act does not spell out what kind of U.S. citizen information can be collected, from whom, how is it safeguarded or who can see it. The law as it is currently written is ambiguous and vague on these key matters. And Admiral McConnell has given apparently conflicting information on the extent of domestic surveillance.

Chairman Reyes asked whether, "no Americans or 100 Americans had been under surveillance without a warrant?" McConnell answered, "How many Americans targeted without a warrant - none under me. There are thousands of foreign targets. We get a warrant if an American is the matter of intelligence. We process out the collected info on billions of transactions. The minimization process that is used means that after a time, the data goes off the database. If we happen to gather incidental American information - we destroy it. If it is of security interest, it must be published, with limits on publication of identity details. Thousands of analysts are trained in this: no spying on Americans. The number 100 was a summary level to help people understand how many warrants issued to do surveillance with Americans as the target." Chairman Reyes requested that McConnell tell the committee how many warrants on Americans there had been issued since 9/11.

Ambassador McConnell was unable to provide the Committee with the number of Americans that have been incidentally heard or read (not targeted) since 9/11/01. As a result of having their end of a communication with a targeted foreign surveillance subject gathered without a warrant, the DNI was not sure whether such information is even available.

The questions must be asked again and again until we get our answers.

To be continued.

(Cross-posted at South by Southwest.)

Fifty ways to understand the "Protect America Act"

By Carol Gee

There is a new law on the books that affects all U.S. citizens. It has the potentially comforting but ironic title, "The Protect America Act." The law (PAA, for short) is the latest amendment to the Foreign Intelligence Surveillance Act of 1978. It was hurriedly passed by Congress in August, 2007.

The subject of the legislation - PAA - is very difficult to comprehend. As a matter of fact Congress did not really comprehend the amendment for which they were voting. Wisely, they made it temporary with a "Sunset" provision. It will have to be fixed by February of next year. And Congress needs our help to do this. But in order to weigh in to your elected officials on the law's problems, we must understand the complexities of the Act.

I have compiled a kind of 50-item glossary that might help "get through the weeds" of the PAA. My approach to this task has been to look through my own September blog posts (on civil liberties and foreign intelligence gathering) for key items with terminology that might be confusing. Most are linked to the posts that have the original information. The glossary will give you my best understanding as a layman of what the terms really mean to us as citizens, but in simpler language. Please understand that these definitions are in my own words and editorial comments, unless cited, not the official ones.

I begin with this: OCP -- Our Current President (my own term), aka POTUS, the President of the United States. V-POTUS is aka the "Veep." Understand that the PAA was their deal. That is the first "given."

1. ACLU -- American Civil Liberties Union: Those on the Right would call it a "special interest group." Civil libertarians call it our "special watchdog" having the willingness and capacity to sue the government on behalf of citizens' constitutional rights.
2. AKA -- "also known as." This is included to illustrate that I know "spy talk."
3. Analyst -- The professional arm of the Intelligence Community, they are trained and certified to analyze the information gathered for intelligence purposes electronically or by the spies.
4. AUMF -- Authorization for the Use of Military Force: Congressional action giving the Commander in Chief particular permissions regarding the "use the force" of the military to protect the nation.The executive and legislative branches disagree on the meaning of what was authorized prior to the invasion of Iraq.
5. Briefing -- in reference to the "(Intel) Community" sharing intelligence findings with its "customers."
6. Checks and balances -- originated in the U.S. Constitution. The current challenges are to the Congress and the Courts to "check" the power of the Executive branch of government.
7. Civil liberties -- enumerated in the Constitution's Bill of Rights. The Fourth Amendment protects against unreasonable search or seizure (privacy protection of one's home and person).
8. Community -- refers to the people who make up the "Intelligence Community," the FBI, the CIA, the DIA, the NSA, the NCTC, etc. They also consider themselves part of an international community of people in the "Intel" business.
9. Customers -- The Community serves its clients, those who need to know the things that intelligence gathering produces. Examples include the POTUS, and the Vice-POTUS, members of Congressional Intel committees, and law enforcement people.
10. Community of interest -- the network of people that a target of surveillance is in contact with. Used in the data mining business.
11. Database -- Electronic information gathered for intelligence purposes is entered into a holding location in order to facilitate management of the raw data. This data consists of billions of bits of electronic data gathered through a variety of means, such as telecommunications records, e-mails, satellite info, bank records, etc.
12. Data mining -- sophisticated methods of analyzing raw data for commercial or intelligence purposes.
13. Domestic surveillance -- the spy business as it is practiced in the United States, as opposed to spying elsewhere.
14. DNI -- Director of National Intelligence. This intelligence coordinating position was created when the government was reorganized after 9/11/01. The DNI or his designee gives the POTUS his daily briefings.
15. Electronic Surveillance -- eavesdropping, listening to conversations, watching what people do, etc., in order to uncover threats to the national interest. The surveillance/spying is via electronic rather than person to person means.
16. FBI -- Federal Bureau of Investigation: Since the governmental Intel reorganization, the FBI is generally supposed to be in charge of domestic intelligence -- that within the United States -- though there are many FBI agents stationed overseas.
17. FISA -- Foreign Intelligence Surveillance Act - 1978: legal framework governing foreign intelligence collection, analysis and dissemination. It has been amended many times by Congress.
18. Foreign intelligence -- The Intel business as it is practiced outside the U.S. Constitutional protections are supposed to follow U.S. citizens when they are outside the U.S.
19. Fourth Amendment -- "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (source: Wikipedia)
20. Incidental -- When someone is "targeted" for electronic surveillance only one end of the conversation can be targeted for listening. The authorities have no control over who the target calls, or who calls the target. All non-target overheard subjects are known as "incidentals," though they may become targets themselves.
21. Inherent authority -- refers to the constitutional powers given to those who govern. "Unitary theory" of the presidency ascribes very broad inherent authority to OCP. Civil libertarians see this as the source of much mischief.
22. Intelligence -- Information gathered and analyzed for the purpose of protecting the United States from threats to its national security.
23. Justice Department/AG -- The Attorney General is the chief law enforcement officer of the U.S., overseeing the Justice Department. Currently an Assistant Director for National Intelligence carries a portion of the legal portfolio for the nation's Intel business, under the Acting Attorney General. (source: Wikipedia)
24. Minimization -- refers to the procedure under FISA whereby privacy protected incidental surveillance information (gathered without a warrant) is expunged ("innocent,") minimally revealed ("name protected,") or published ("of foreign intelligence significance,") depending on the judgment of the agents, analysts and supervisors.
25. National security -- something that is supposed to keep the people of the U.S. safe and secure. It is often associated with secrecy, so as to protect the sources or methods of obtaining the information.
26. National security letter -- An official letter from the FBI compelling the recipient to turn over information for national security purposes. Recently abused by the FBI, the letters were not legal substitute for a warrant issued by a court.
27. NCTC -- National Counter Terrorism Center. The "action arm" of the Intel community that works to "counter" terrorist activity.
28. NIE -- National Intelligence Estimate. An official document of the Intel community, it is designed to inform us about the most significant national security threats. (source: DNI - "NIE" 10 pg. pdf)
29. Northern Command -- The military sector that includes the United States. Charged with military protection of "the homeland."
30. Oversight -- Refers to watching what is done by another entity. The procedures and the work of the Intel community receive oversight from within the executive branch at 4 levels, as well as from Congressional Intel committees.
31. PAA -- The Protect America Act of 2007. The law came as a result of very strong entreaties from the Executive branch, claiming that they were unable to protect the nation unless the FISA law was changed.
32. Posse Comitatus -- An Act that substantially limits the powers of the Federal government to use the military for law enforcement.
33. Probable cause -- A legal standard required to get a FISA surveillance warrant.
34. Retroactive liability -- Protection against being sued for liability for things done in the past that may have been illegal. Still being sought for telecommunications companies who assisted the government with warrantless wiretaps.
35. Reverse targeting -- A practice that is illegal under FISA law. Involves targeting an innocent party in order to get at the person at the other end of that conversation.
36. Security clearance -- Official permission to know national security secrets. Members of the House and Senate are not required to get security clearances by reason of their oversight responsibilities as elected officials. Staffers are required to get clearances.
    
37. Satellite -- A space satellite able to do high resolution visual surveillance.
38. SigInt -- signals (electronic) intelligence, as opposed to "HumInt," (gathered by humans) intelligence.
39. Sleeper cell -- Terminology used to refer to a group of alleged terrorists in the U.S. waiting to strike at the U.S.
40. Sunset -- A provision in the law that requires that it be renewed.
41. Surveillance -- secretly gathering information about the activities of a suspicious person or persons.
42. Target -- The person or group under formal electronic surveillance. If foreign no warrant is required. If domestic a FISA warrant is required.
43. Telecommunications infrastructure -- Companies that provide communications services. They must cooperate with the government before electronic surveillance can take place.
44. TSC -- Terrorist Screening Center; it keeps the Watch List of suspected terrorists.
45. Ubiquitous -- everywhere. All over everything.
46. U.S. citizen -- has the civil liberties rights protections of the constitution.
47. U.S. person -- a person in the U.S. who may or may not be here legally. A warrant is required to target electronic surveillance on a U.S. person.
48. Warrant -- A court order allowing surveillance of the named subject(s).
49. Watch list -- A list of suspected terrorists. Error rate a problem.
50. Wiretap -- an electronic listening device or method for overhearing conversations.

(Cross-posted at South by Southwest.)

NYT on FISA - Part II: Administration's position

By Carol Gee

Foreign Intelligence Surveillance Act - In the Sunday (8/18/07) news, James Risen and Eric Lichtblau of the New York Times, thank goodness, are still looking at the law under FISA. In Part I of this series, I explored the genesis of the domestic spying law being amended and the sorry history of what may have been done to it by both the administration and Congress. This post explores the administration's intentions about implementing their new bonus powers.

One of the most significant new revelations of the New York Times article, concerns what the administration spokespersons asserted regarding the new law. The amended FISA law gives the director of national intelligence, Mike McConnell, and Attorney General Alberto R. Gonzales the power to set up the new procedures and approve the way surveillance is conducted. To further quote the reporters on this crucial aspect of the issue - the position of the administration about what they will do or not do under the new FISA law,

. . . Vanee Vines, a spokeswoman for the office of the director of national intelligence, said the concerns raised by Congressional officials about the wide scope of the new legislation were “speculative.” But she declined to discuss specific aspects of how the legislation would be enacted.

. . . The legislation “restores FISA to its original and appropriate focus — protecting the privacy of Americans,” said Brian Roehrkasse, Justice Department spokesman. “The act makes clear that we do not need a court order to target for foreign intelligence collection persons located outside the United States, but it also retains FISA’s fundamental requirement of court orders when the target is in the United States.”

. . . 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.”

. . . Asked whether the administration considered the new legislation legally binding, Ms. Vines, the national intelligence office spokeswoman, said: “We’re going to follow the law and carry it out as it’s been passed.”. . . Bush issued a so-called signing statement about the legislation when he signed it into law, but the statement did not assert his presidential authority to override the legislative limits.

The authors do not name the Democrats meeting with the White House about the amended FISA law. We would not be surprised if none of the misguided Senators or House Members who voted to approve the bill came to complain about it to the administration. They would leave that fight to those losing Democrats whose votes did not prevail that late Saturday night. It is now too late for the "yes"voters to read and understand the legislation they passed. My general understanding is that one reads and understands before casting a vote.

Yes, I am still so mad at those on THE YES LIST, (corrected) I can hardly resist continuing to complain. My planned forgiveness remains incomplete, not that it matters in the least, of course.

Cross-posted at South by Southwest.

Secrets and activism

By Carol Gee

Secrets in the world of politics and government are a mixed bag. Voters want their ballots to be secret and verifiable to them. Our current president (OCP) wants domestic spying to be secret, as well as most everything else about his adminstration's record. Candidates sometimes expose their opponents' secrets in order to hurt them. Though I am an Internet activist, I keep my real name a secret from the blogosphere, unlike the courageous bloggers who take a more open journalistic approach.

But one cannot be secretive and be an activist/ protestor/ community worker/ etc. And it takes courage. They are "out there" for everyone to see and to admire, or to punish like Josh Wolf. Some organize or join marches, some write letters and sign their names, some circulate petitions, and some come to Washington or other seats of government to try to change that to which they have strong objection. My current "strong objection" is to the current FISA law as recently amended by Congress. I write about it often.*

Secret government domestic spying programs with no oversight began early in this century. Today the history of the Bush administration's assault on the constitution's Fourth Amendment is a disgraceful one. Congress has abandoned its responsibility for providing a "check" on the administration's efforts to spy on its own citizens without any warrants. And so we are left again and again to the mercy of the Judicial branch to provide the balance and protections of our constitution.

Shhh! It's a secret - Today a three-judge panel will hear a big domestic spying case (8/15/07) in San Francisco, according to David Kravets at Threat Level- Wired Blogs. (Hat Tip to Citizens for Legitimate Government for the link). OCP and his lawyers are telling the court that they cannot hear the case because it is a secret. To quote Kravets,

The Bush administration is facing serious judicial headwinds Wednesday when it urges a three-judge federal appeals court panel to dismiss lawsuits challenging the constitutionality of the president's warrantless, domestic eavesdropping program.

In December, 2005, Bush . . . confirmed a warrantless, domestic surveillance program by which the National Security Agency eavesdropped on electronic communications in the United States if one person connected to the communication was outside of the United States and thought to be associated with terrorism. Among other allegations, the lawsuits charge that AT&T unlawfully gave the NSA virtually carte blanche access to the telecom's network, allowing the government to siphon communications from millions of Americans without a warrant.

The administration will urge the appeals court on Wednesday to dismiss the cases. The administration's key claim is that the lawsuits threaten to expose government secrets, and therefore Supreme Court precedent dictates the lawsuits must be thrown out -- an assertion that often prevails in court. Two lower court judges, however, balked. The administration appealed to the 9th Circuit.

This is no secret. Many people in the United States are upset about the latest turns of events regarding FISA. We were upset to learn about the program when it first became public. ANd we have gotten increasingly incensed as each new chapter unfolds. Stay tuned.

Out in the open - Each Wednesday South by Southwest highlights activism.

• United for Peace and Justice -a very big movement that is pointing currently towards Oct. 27, 2007: National Mobilization to End the War in Iraq. 10 Massive Demonstrations for Peace Across the U.S. Also has listings of protests, etc. happening in your state or area


• General Strike 9/11 - Michael Collins of The Smirking Chimp headlined (8/13/07), "GENERAL STRIKE IN USA on Sept. 11, 2007 – 9/11." Here is the simple recipe. To quote, “No School * No Work * No Shopping. Hit the Streets”


• Democrats.com/Activism - Protests - "The Aggressive Progressives," rich with all kinds of references to opportunities for action

*Previous S/SW Posts on Foreign Intelligence Surveillance Act:

Saturday, December 31, 2005: Civil liberties have staying power in the long run

Friday, January 20, 2006: Executive vs. Judiciary vs. Legislative
Saturday, August 19, 2006: Journalists, Scholars & Lawyers vs. OCP
Friday, September 22, 2006: Domestic Intelligence or Domestic Spying?

Saturday, August 04, 2007: Senate "caves" - what else is there to say?
Sunday, August 05, 2007: A Sad Day for the Fourth Amendment
Tuesday, August 07, 2007: A Foreign Intelligence Surveillance Act Primer
Wednesday, August 08, 2007: Dems get mixed reviews
Thursday, August 09, 2007: FISA Vote - Correction
Friday, August 10, 2007: A bit of credit is due
Sunday, August 12, 2007: What is important about freedom?

(Cross-posted at South by Southwest.)

Satan to return to Hell

By Edward Copeland

In a surprise move, the dark prince Karl Rove has announced that he will resign his position as Dubya's senior political adviser and return to Texas by the end of the month.

However, give the devil his due: On the way out, he predicts Hillary Nothing-But-Ambition Clinton would take the Democratic nomination, despite being a "fatally flawed candidate."

The funniest part of the story is that it says that Chief of Staff Josh Bolten told staff members that anyone who wasn't gone by Labor Day would be expected to serve until the end of Dubya's term in "January 2007." Oh, if only that were when this national nightmare would end. Wishful thinking on whoever wrote this story's part, I suppose.

WASHINGTON (CNN) -- Karl Rove, U.S. President George W. Bush's senior political adviser, is to resign at the end of August, CNN has confirmed.
Rove, who has held a top position in the White House since Bush took office in January 2001, is to stand down on August 31.
"I just think it's time," Rove told the Wall Street Journal (WSJ). "There's always something that can keep you here, and as much as I'd like to be here, I've got to do this for the sake of my family."
...
Rove also fired a parting shot at the Democrats, adding that he thought Hillary Clinton - a "tough, tenacious, fatally flawed candidate" - would win the 2008 presidential nomination.

***UPDATE***
The version offered by The Washington Post offers much more detail, including Rove's proclamation that he's done with political consulting.

The Night of the Jackal ... And A New Garlic Song - The Congress Sleeps Tonight

By J. Thomas Duffy

"The President wants a blank check. The Congress is not going to give it to him."

There's a scene in the taut, classic thriller 'Day of the Jackal' (and please, don't even think of bringing up the piece of crap with Bruce Willis and Richard Gere), where Inspector Lebel (played superbly by Michael Lonsdale) addresses the secret task force in charge of stopping the Jackal (Edward Fox) from assassinating Charles De Gaulle, and roots out a leaker.

After the astonished members settle down a minister asks "How did you know whose telephone to tap?" and Lebel responds, dryly and succinctly "I didn't, so I tapped them all."

So we now have the Bush Grindhouse, free to do as they please - once again, browbeating the Democrats into another losing vote - and, let's not forget, they have the extra billy club of that nifty Executive Order The Commander Guy gave himself last week.

So aside from some free passes to Wally World, as they jump in their station wagons for a month's vacation (and with the Iraqi Parliament cooling their heels in August, did Congress, or the President give our soldiers the time off over in Iraq?), what more can we do for our shrinking, emasculated Congress?

Why, a Garlic Song certainly would be welcomed, to serenade those they chose not to fight, not to serve, not assist the American people against this egregious attack from this person that occupies the great office of the President of the United States.

You know the tune, so sing along.

The Congress Sleeps Tonight

A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps,
A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps,

In the Capitol, the mighty Capitol
The Congress sleeps tonight
In the Senate the quivering Senate
Bush Gets His Way, Alright

Near the White House, the Unitarian White House
The Congress sleeps tonight
Near the White House, the law-breaking White House
They gave away our rights

Blush my darling and fear my darling
The Congress sleeps tonight
Don't rush my darling your acquiescing my darling
The Congress sleeps, with no oversight, tonight

A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps,
A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps, A-We-Some-Wimps,

Bonus Links

Glenn Greenwald: Democrats' responsibility for Bush radicalism

Edward Copeland: Even the rulings against it are done in secret

Robert Parry: Bush's Secret Spying on Americans

Daily Kos: Senate Gives in on Wiretapping. 16 Dems Go Along


Sleep well, my darlings ...














(Cross-posted at The Garlic.)