Saturday, May 13

NSA was afriad of FISA Court? Do tell...

Glenn Greenwald points out a key passage from the USA Today Article. The NSA didn't go to FISA because they knew the court would have told them "No, Way!".

Ya think?

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events. More

The question I have is, since FISA and court orders are usually only required when a suspect refuses to cooperate, exactly where does that put us since Verizon, AT&T and Bellsouth all agreed to supply this information?

As many of us have written, including myself here and here, the likelyhood that the request to gain access to these records could have possibly gotten past the rubber-stamp FISA court are somewhere deep south of slim and fucking nil.


How much of that point is rendered moot by the voluantary compliance of the Telcoms? As has already been discussed, the type of information sought by the government (that which would have been available via use of a pen and register or trap device) would have normally required a FISA Warrant 18 USC 3121 - but we've all seen CSI right? A warrant is only required if the cops ask you for something and you don't want to give it too them - on the other hand if you agree to let the white-gloved man open your trunk where the bundles of wet drippping rags of blood are stashed -- that's your ass pal.

So based on a technicality, at this point I doesn't seem that this NSA Phone Log program neccesarily violated FISA.

But is FISA the only law at stake here?

The issue needs to be focused on the actions of Verizon, AT&T and Bellsouth. Although previous Supreme Court decisions have stated that the phone numbers called and call time information is the property of the Telcom companies, not it's customers, there is still the issue of the Stored Communications Act which prohibits companies from voluanteering this information without the presense of a warrant. 18 U.S.C. 2702(c), 2703 (c).

2702(c) Exceptions for Disclosure of Customer Records.-- A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))--
    (1) as otherwise authorized in section 2703;
    (2) with the lawful consent of the customer or subscriber;
    (3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
    (4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information;
    (5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032); or
    (6) to any person other than a governmental entity.

Uh oh - I think Ma Bell's in trouble, unless they can successfully argue that their grant of this request was based on a clear Emergency Involving IMMEDIATE danger of death or serious physical injury!

But could the NSA or FBI even ask for it without a court order?

2703 (c) Records Concerning Electronic Communication Service or Remote Computing Service.--
(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity--
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant;
(B) obtains a court order for such disclosure under subsection (d) of this section;
(C) has the consent of the subscriber or customer to such disclosure; or [1]
(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or
(E) seeks information under paragraph (2).

So it seems to me, that absent a warrant or court order - the telecom company CAN NOT DIVULGE this information unless they have the consent of the customer. Did they? Could it be in the fine print?

In the Verizon Privacy Policy it is noted that the company may disclose information.

Disclosure of Information Outside Verizon
As a rule, Verizon will notify you and give you the opportunity to "opt out" when we disclose telephone customer information outside of Verizon. In fact, we generally keep our records of the services you buy and the calls you make private, and will not ordinarily disclose this information to outside parties without your permission. However, we do release customer information without involving you if disclosure is required by law or to protect the safety of customers, employees or property.

The policy further notes that Verizon will comply with Court Orders, but not that they will volantarily provide this information to the FBI, NSA or other agency - and arguably under the Stored Communications Act, they can't voluanteer YOUR information without your approval.

Just as an aside, I noticed from looking at AT&T Privacy Information that they are connected to SBC, and we already know that this program wasn't just limited to phone calls, it involved emails as well - and I know from experience that SBC is linked to YAHOO MAIL. (That's right, all those free addresses are probably now stored at NSA!!)

Anyway both AT&T and Bellsouth admit in their privacy documentation that they will comply with a court order - neither of them admit that they'll roll over and bark when the goverment throws them a fat classified contracting bone - the type of which they threated to deny Qwest if they didn't comply.

Ok, let's assume for a second that Qwest was wrong and Verizon was right, that under the "Emergency" conditions of the SCA (Update from Comments: where of course the never-ending War On Terra is a perfect permenent "Emergency") they could lawfully share this information with the NSA without a court order and without notifying their customers - could they then grant access only to the phone numbers and call times?

Under section 2703(2), which details the types of information that can be shared, once all other requirements (court order, etc) have been met - apparently not.

(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the--
    (A) name;
    (B) address;

    (C) local and long distance telephone connection records, or records of session times and durations;
    (D) length of service (including start date) and types of service utilized;
    (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
    (F) means and source of payment for such service (including any credit card or bank account number),

Name, Address and Credit Card Info is to be and can be provided? Hel-lo! Are we supposed to believe that the NSA asked for call times and numbers only while building the "Biggest. Database. Ever." but didn't bother to also connect-the-dots to each persons name, address and card info when they had the chance?

If you believe that one you can spank my ass and call me "Dusty Scooter Duke Nine-Fingers" all night long.

[Update:Perhaps this is why former NSA Signint Officer Russel Tice says - we ain't seen nothing yet!]


3 for 1: Rove, Foggo and Tice

Karl Rove told President Bush and Chief of Staff Joshua Bolten, as well as a few other high level administration officials, within the last week that he will be indicted in the CIA leak case and will immediately resign his White House job when the special counsel publicly announces the charges against him, according to people knowledgeable about these discussions. More

Finally! This should have an interesting impact on the Mid-term elections with the GOP primary strategist bench-sitting pending his next court date through the entire deal.

VIENNA, Va.– Federal agents Friday morning raided the home of Kyle "Dusty" Foggo, who stepped down this week from the No. 3 post at the CIA amid accusations of improper ties to a defense contractor named as a co-conspirator in the bribery case of former Rep. Randy "Duke" Cunningham. More
Amazing that the No. 3 man at CIA would not have had any clue that FBI, DIA and others were about to CSI they're way through his house and office. I mean, his job is supposed to be gathering "intelligence" right? I guess Porter Goss grabbed his trusty parachute and mwah hah hah'd his way out the secret escape hatch just in time.

CongressDaily reports that former NSA staffer Russell Tice will testify to the Senate Armed Services Committee next week that not only do employees at the agency believe the activities they are being asked to perform are unlawful, but that what has been disclosed so far is only the tip of the iceberg. Tice will tell Congress that former NSA head Gen. Michael Hayden, Bush’s nominee to be the next CIA director, oversaw more illegal activity that has yet to be disclosed: More
Oh Snap! All those blowhard pundits - yeah, I'm talking about you O'Lielly - who said we shouldn't need to worry just what the NSA is really up to are about to get their teeth kicked in by someone who actually knows what they're talking about. I'm bringing pop-corn and beer - how 'bout you?


NSA: It's not the Privacy - it's the Incompetence

Today the Washington Post Reports that 66% of Americans don't mind the idea that the government might be tracking their phone calls. And that 63% felt "it was more important to investigate potential terrorist threats "even if it intrudes on privacy.

Apparently many people agree, siding with Bill O'Reilly -"I Don't Care, as long as they aren't listening to the calls" (of course not Bill, we all know about your Falafeling ways already) and with Dick Morris who claims "This is Bush's Issue, it can't hurt him".

The assumption I guess is that if USA Today hadn't told us our calls were being tracked, we wouldn't know our calls are being track and outta sight is basically outta mind. If you can't see the Peeping Tom staring at you through the windows - why worry about him?

Yeah sure, but we already know that the NSA does record the calls, it does so automatically. Better put away the Falafel Bill...

The normal procedure for the NSA's Echelon system is to essentially trap all calls and search them for keywords that indicate they may involve a person of interest. If a keyword appears, the call is saved - if it does not, it is deleted. If the call is of "interest", but an American is involved - that Americans name would be redacted and the file destroyed until surveillance was authorized by the FISA court. But even before 9/11 this was no longer the case according to

What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.

But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.

Instead of deleting the call information - they kept it and a recorded of the number and names. For further detail let's take a trip in the way back Machine - all the way back to January when former NSA SIGINT Officer Russel Tice was interview by Amy Goodman of Democracy Now.

First lets establish the legal issues - is it ok for the NSA to Spy on Americans (whether listening to their calls or tracking their numbers?)

RUSSELL TICE: Well, as far as an intelligence officer, especially a SIGINT officer at N.S.A., we're taught from very early on in our careers that you just do not do this. This is probably the number one commandment of the SIGINT Ten Commandments as a SIGINT officer. You will not spy on Americans. It is drilled into our head over and over and over again in security briefings, at least twice a year, where you ultimately have to sign a paper that says you have gotten the briefing. Everyone at N.S.A. who's a SIGINT officer knows that you do not do this. Ultimately, so do the leaders of N.S.A., and apparently the leaders of N.S.A. have decided that they were just going to go against the tenets of something that's a gospel to a SIGINT officer.

Ok, so that's what they're told but what are the legal issues involved in this kind of tracking of phone numbers and call durations only according to the American Constitution Society?

It is illegal for the NSA to obtain records of phone numbers from the telephone companies unless the FISA court authorized it. The Stored Communications Act prohibits the telephone companies from disclosing such information to the government unless they receive a subpoena or a court order for the records. 18 U.S.C. 2702(c), 2703 (c).

In the case of the NSA, the Foreign Intelligence Surveillance Court would have to issue such an order. It does not appear that it has done so, apparently because the NSA worried that it would not approve such wholesale collection of information.

Moreover, if the NSA obtained such information in real time - using a pen register or trap and trace device - those who did so would be guilty of criminal conduct. (The law on pen registers and trap and trace devices provides that no one may use such a device without obtaining a court order either under the criminal wiretap law or the Foreign Intelligence Surveillance Act. 18 USC 3121.)

If the NSA used a pen register or trap and trace device in real time, it was required to obtain an order from the FISA court, either under the specific pen register provisions, 50 USC 1841 et seq. or under the provisions for electronic surveillance generally, 50 USC 1801 et seq. Under the electronic surveillance provisions, the NSA would have to show the court that the person whose calls were being targeted was an agent of a foreign power. Under the pen register provision, the NSA would have to show the court that the information was relevant to an ongoing terrorism investigation. Despite the low standard for a pen register, it is unlikely that the FISA court would have approved wholesale pen registers on every phone in America.
If the NSA obtained stored records, rather using a real time pen register, it would have to obtain an order from the FISA court under section 215 of the Patriot Act. That section contained an even lower standard for obtaining information.

Ok, so have we basically established that thier is NO POSSIBLE WAY that this is legal for the government. What about the telecom carries, do they have some legal liability? Back to Russell.

AMY GOODMAN: What about the telecoms, the telecommunications corporations working with the Bush administration to open up a back door to eavesdropping, to wiretapping?

RUSSELL TICE: If that was done and, you know, I use a big "if" here, and, remember, I can't tell you what I know of how N.S.A. does its business, but I can use the wiggle words like "if" and scenarios that don't incorporate specifics, but nonetheless, if U.S. gateways and junction points in the United States were used to siphon off information, I would think that the corporate executives of these companies need to be held accountable, as well, because they would certainly also know that what they're doing is wrong and illegal. And if they have some sort of court order or some sort of paper or something signed from some government official, Congress needs to look at those papers and look at the bottom line and see whose signature is there. And these corporations know that this is illegal, as well. So everyone needs to be held accountable in this mess.

What about the practically of this type of program, what good are phone number only when what you really want to know are operational plans, details, whose going to attack what and where? Russell sheds some light on this as well.

AMY GOODMAN: We're talking to Russell Tice, former intelligence agent with the National Security Agency, worked at the N.S.A. up until May of 2005. What is data mining?

RUSSELL TICE: Data mining is a means by which you -- you have information, and you go searching for all associated elements of that information in whatever sort of data banks or databases that you put together with information. So if you have a phone number and you want to associate it with, say, a terrorist or something, and you want to associate it with, you know, `Who is this terrorist talking to?' you start doing data on what sort of information or what sort of numbers does that person call or the frequency of time, that sort of thing. And you start basically putting together a bubble chart of, you know, where everybody is.

A bubble chart of whose talking to whom, eh? Wouldn't that bne a neat thing to have -- too bad that'll never happen.

Lord help you if you've got a wrong phone call from one of these guys, a terrorist overseas or something, and you're American. You're liable to have the F.B.I. camping out your doorstep, apparently, from everything that's going on. But it's basically a way of searching all of the data that exists, and that's things like credit card records and driver's license, anything that you can get your hands on and try to associate it with some activity. I think if we were doing that overseas with known information, it would be a good thing if we're pinning them down. But ultimately, when we're using that on -- if we're using that with U.S. databases, then ultimately, once again, the American people are -- their civil rights are being violated.

It seems to me that Russell knew damn well what was going on here, but for security reasons kept things hypothetical, notice that he slipped up at the end there?

Well, could this kind of thing happen to me or you? Well, it happened to Russel already...

AMY GOODMAN: Do you expect you are being monitored, surveilled, wiretapped right now?

RUSSELL TICE: Yes, I do. As a matter of fact, in - you know, sometimes you just don't know. And being, you know -- what they've basically accused me of, I can't just walk around thinking that everybody is looking at my heels and are following me around. But in one scenario I turned the tables on someone I thought was following me, and he ducked into a convenience store, and I just walked down there -- and I saw him out of my peripheral vision -- and I basically walked down to where he ducked into and in the store, I walked up behind him. He was buying a cup of coffee, and he had a Glock on his hip and his F.B.I. badge. I don't think it takes a rocket scientist to figure out what was going on there.

The point about surveillance is that eventually they're going to take action - the FBI or the DIA are going to be called in order to investigate a "person of interest" that has popped up on the NSA Bubble Diagram. And the real question is, how often are they going to be targetting innocent Americans who show up because they happen to live in the same Pizza Hut Delivery Area as a possible Terrorist sympathizer? And also, just how narrowly defined are we casting the term "supporters of terrorism" when the Administration and it's supporters regularly throws out the T-Word (Treason) against just about anyone who disagrees with them?

Yet again, we only have to go back to January and a report by the New York Times to see just how far affield this has already gone...

WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency, which was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of foreign-related phone and Internet traffic, that the unfiltered information was swamping investigators. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for the eavesdropping program, which did not seek court warrants, one government official said. Mr. Mueller asked senior administration officials about "whether the program had a proper legal foundation," but ultimately deferred to Justice Department legal opinions, the official said.

Surely, though all this hightech NUMB3RS-like analysis much have at least yeilded some high probability targets right?

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism - case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

F.B.I. field agents, who were not told of the domestic surveillance programs, complained they often were given no information about why names or numbers had come under suspicion. A former senior prosecutor, who was familiar with the eavesdropping programs, said intelligence officials turning over the tips "would always say that we had information whose source we can't share, but it indicates that this person has been communicating with a suspected Al Qaeda operative." He said, "I would always wonder, what does 'suspected' mean?"

In response to the F.B.I. complaints, N.S.A. eventually began ranking its tips on a three-point scale, with 3 being the highest priority and 1 the lowest, the officials said. Some tips were considered so hot that they were carried by hand to top F.B.I. officials. But in bureau field offices, the N.S.A. material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more "calls to Pizza Hut," one official, who supervised field agents, said.

It was clear even back in January that if the program were as "limited and focused" as the President claimed, how were the FBI getting thousands upon thousands of bogus phone numbers, emails address and names?

Now we know how.

As to exactly who is "suspected" it seem that it's mostly Quakers, Peace Activists and members of Greenpeace. Y'know - really dangerous people.

The downside of this isn't the fact that the FBI is going to be shadowing you or your friends -- it's the fact that the FBI won't be too busy shadowing you, or your local teachers and Quakers to pay attention the next Moussuoui or Padilla.

We've turned the NSA into the Digital Chicken-Little armed with the super-computers that cried "Wolf". It's difficult to argue that we haven't been hit again - as long as you don't count the Anthraxing of Congress - simply because it takes years for Bin Laden to plan an attack or just plain dumb-ass luck.

Meanwhile we're blowing off $Billions of tax payer dollars on this boon-doogle and 66% of the public doesn't think it matters? We you realize this is the same Bush Administration that gave us the failed WMD search, Iraq Reconstruction, the failed response to Katrina and Gulf Coast Reconstruction, the Medicare Prescription Drug Plan and Terry Schiavo-Gate, it becomes clear their incompetence knows no bounds and that hundreds of thousands of people have already suffered as a direct result of it.

It matters.


Thursday, May 11

John Kerry : Enough is Enough

John Kerry Posting today on Dkos:

We've got a government run by people who hold themselves above the law -- in the way they not only treat prisoners in Abu Ghraib, but assert unchecked power to spy on American citizens.

We know the consequences. We witnessed the CIA being bullied by the Rumsfeld Pentagon and the Cheney White House into shredding its credibility with unfounded claims of "slam dunk" evidence for mythical weapons of mass destruction in Iraq.

But where's the insistence that - after having lives lost to this abuse of power and more lives on the line - we're going to demand an accountability moment?

Now that the President has tapped the chief defender of his warrantless wiretapping program to become CIA Director, what are we going to do about the nomination of Michael Hayden to head this wayward agency?

Peter Hoekstra, Republican chairman of the House Intelligence Committee describes this nominee as "the wrong person, in the wrong place, at the wrong time." Of course he's right.

He's nearly prophetic on a day when we are reminded of the Administration's determination to keep the extent of their illegal domestic spying program secret. Think about the fact that we have to read in the newspapers that the Department of Justice abruptly ended an investigation into the conduct of department lawyers who approved the program - not because the approving lawyers were cleared of wrongdoing but because investigators were denied the information to conduct the investigation. Does the Attorney General care about the oath he took? It didn't demand he protect a President's reputation, it demanded he protect the Constitution.

What else? Oh, yes, today we learn the NSA isn't just listening to international calls but is collecting the phone call records of tens of millions of Americans who aren't suspected of wrong-doing. How many times will government secrecy shield decision-makers from any kind of accountability?

Enough is enough. Yes, Congress needs to end the days of roll-over and rubber stamp before General Hayden becomes Director Hayden and proves Chairman Hoekstra right by doing the job wrong.

But something far more fundamental is out of whack in Washington. Every day we learn something new about this Administration's attitude - and too many people greet each story with a yawn as we learn that President Bush has announced he can disobey more than 750 laws enacted on his watch. Since when do we accept that any President has the power to set aside statutes passed by Congress when it conflicts with his interpretation of the Constitution?

We're dealing with a group of people who believe our traditional values are a luxury we can no longer afford. That's the Bush-Cheney Doctrine - under which we can't foreswear the fool's gold of information secured by torturing prisoners, under which we need to create a shadow justice system with no rules and no transparency, under which unwarranted secrecy and illegal spying are now absolute imperatives of our national security and those who question the abuse of power question America itself.

These guys believe in their guts that executive powers trump the constitutional doctrine of separation of powers and smearing administration critics is not only permissible, but necessary-and revealing the identity of a CIA agent is an acceptable means to hide the truth.

I know one thing - we can't defeat the Bush Cheney Doctrine if we're not crystal clear that it's wrong and we will not tolerate it any longer.
Then later in a comment he stated:

Many of you have asked variations on this question --what am I doing? Good question.

For one thing, I went to American University an hour ago and I gave a speech about what’s going on here. Just finished up. I spoke out, and I did what I could to draw some attention to this just an hour after President Bush went out and tried to muddy the waters. We need to use the megaphone we have. No trees falling in the blogosphere! See how it comes out on the news tonight.

Second, I’m keeping it up. I’ve got a lot of tough questions for the Attorney General and the White House. I’m going to get some answers. You’ll see more on this during the afternoon in the Senate.

Third – someone asked earlier about this: I already support the censure motion.

Fourth – I’ve introduced a resolution to get our combat troops out of Iraq by December 31. I’m not going to let go of it either. I’m working it with my colleagues.

But, lastly: the ultimate accountability moment is in November. That’s why I’m so invested in getting these Iraq War vets elected, and why I’ve traveled to 22 states and raised a whole bunch of money for candidates and the Party. Like my pal Fred Short says, “Never, never again!” (Fred knows what I mean.)

Amen John, Amen.


NSA Tracking Tens of Millions of Domestic Calls

USA Today has reported that the NSA surveillance program, rather than being restricted to "international calls" by suspected terrorist agents into and out of the U.S., has instead been contracting with AT&T, BellSouth and Verizon to create a massive database of domestic calls.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

QUESTIONS AND ANSWERS: The NSA record collection program

"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.

Coincidentally, President Bush's fresh new choice to replace Porter Goss as the head of the CIA, General Michael Hayden - the man who doesn't seem to know what the 4th Amendment says - appears to have already admitted to this program in an interview from 2002.

I have met personally with prominent corporate executive officers. (One senior executive confided that the data management needs we outlined to him were larger than any he had previously seen). [...] And last week we cemented a deal with another corporate giant to jointly develop a system to mine data that helps us learn about our targets.
This program is clearly illegal and has been carried out without a court order in clear violation of the 4th amendments prohibition of "reasonable search and seizure" - how could any of this information ever be used in court under the fruits of the poison tree rule?

Moments ago
, the President in response to the USA Today report stated.

Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America. I want to make some important points about what the government is doing and what the government is not doing.

First, our international activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities.

We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we've been very successful in preventing another attack on our soil.

But is the process of tracking phone calls genuinely legal?
Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers' calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered....

In the case of the NSA's international call-tracking program, Bush signed an executive order allowing the NSA to engage in eavesdropping without a warrant. The president and his representatives have since argued that an executive order was sufficient for the agency to proceed. Some civil liberties groups, including the American Civil Liberties Union, disagree....

In December, The New York Times revealed that Bush had authorized the NSA to wiretap, without warrants, international phone calls and e-mails that travel to or from the USA. The following month, the Electronic Frontier Foundation, a civil liberties group, filed a class-action lawsuit against AT&T. The lawsuit accuses the company of helping the NSA spy on U.S. phone customers.

Last month, U.S. Attorney General Alberto Gonzales alluded to that possibility. Appearing at a House Judiciary Committee hearing, Gonzales was asked whether he thought the White House has the legal authority to monitor domestic traffic without a warrant. Gonzales' reply: "I wouldn't rule it out." His comment marked the first time a Bush appointee publicly asserted that the White House might have that authority.

Further according to one DKos Poster who called to complain to his cell phone provider Cingular Wireless, which is a subsidiary of AT&T and Bellsouth, was directed to the following URL.

The following are excerpts of their privacy policy:

We will not sell or disclose your personal information to unaffiliated third parties without your consent except as otherwise provided in this Policy. We may use information about who you are, where and when you browse on the Web, where your wireless device is located, and how you use our network to provide you better service and enrich your user experience when you sign up or use any of our products or services.


Under federal law, you have a right, and we have a duty, to protect the confidentiality of information about your telephone usage, the services you buy from us, who you call, and the location of your device on our network when you make a voice call. This information is sometimes referred to as "Customer Proprietary Network Information," or "CPNI." We share CPNI and other personal information about you with affiliates of AT&T and BellSouth Corporation (the parent companies of Cingular) that provide telecommunications services to which you also subscribe. Before sharing CPNI in any other way, we will first notify you of your rights under the law, describe how we intend to use the CPNI, and give you an opportunity to opt out of such usage (or, when required by law, to opt in

Some more background on CPNI.

n the United States, CPNI (Customer Proprietary Network Information) is information that telecommunications services such as local, long distance, and wireless telephone companies acquire about their subscribers. It includes not only what services they use but their amount and type of usage. The Telecommunications Act of 1996 together with clarifications from the Federal Communications Commission (FCC) generally prohibits the use of that information without customer permission, even for the purpose of marketing the customers other services. In the case of customers who switch to other service providers, the original service provider is prohibited from using the information to try to get the customer back. CPNI includes such information as optional services subscribed to, current charges, directory assistance charges, usage data, and calling patterns.

The CPNI rules do not prohibit the gathering and publishing of aggregate customer information nor the use of customer information for the purpose of creating directories.

Under the Telecom Act of 1996 Service Providers must protect customer information:

(a) In general

Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier.

    (b) Confidentiality of carrier information

    A telecommunications carrier that receives or obtains proprietary information from another carrier for purposes of providing any telecommunications service shall use such information only for such purpose, and shall not use such information for its own marketing efforts.

    (c) Confidentiality of customer proprietary network information
    (1) Privacy requirements for telecommunications carriers
    Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

However, there are some exceptions...

(d) Exceptions
Nothing in this section prohibits a telecommunications carrier from using, disclosing, or permitting access to customer proprietary network information obtained from its customers, either directly or indirectly through its agents—

    (1) to initiate, render, bill, and collect for telecommunications services;

    (2) to protect the rights or property of the carrier, or to protect users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services;

    (3) to provide any inbound telemarketing, referral, or administrative services to the customer for the duration of the call, if such call was initiated by the customer and the customer approves of the use of such information to provide such service; and

    (4) to provide call location information concerning the user of a commercial mobile service (as such term is defined in section 332 (d) of this title)—

      (A) to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety, fire service, or law enforcement official, or hospital emergency or trauma care facility, in order to respond to the user’s call for emergency services;

      (B) to inform the user’s legal guardian or members of the user’s immediate family of the user’s location in an emergency situation that involves the risk of death or serious physical harm; or

      (C) to providers of information or database management services solely for purposes of assisting in the delivery of emergency services in response to an emergency.

Also this confidentially requirement is not absolute and contains a loophole for "aggregate" information.

(c) Confidentiality of customer proprietary network information

    (1) Privacy requirements for telecommunications carriers
    Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

    (2) Disclosure on request by customers
    A telecommunications carrier shall disclose customer proprietary network information, upon affirmative written request by the customer, to any person designated by the customer.

    (3) Aggregate customer information
    A telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service may use, disclose, or permit access to aggregate customer information other than for the purposes described in paragraph (1). A local exchange carrier may use, disclose, or permit access to aggregate customer information other than for purposes described in paragraph (1) only if it provides such aggregate information to other carriers or persons on reasonable and nondiscriminatory terms and conditions upon reasonable request therefor.

My own suspicion is that the Bush Administration is going to attempt to use the arguement that this program qualifies under the "emergency" exception and is only designed to gather "Aggregate" data - but whether that dodge of the Telecom Acts specific privacy requirements is suffucient remains to be seen, and is frankly rather doubtful as Glenn Greenwald points out today the kind of information described by the USA Today article seems to include that recorded by a Pen Register device (only on a much larger scale) and is already covered under FISA.

Additionally georgia10 has pointed out that disclosing this kind of electronically stored information without a court order, even without FISA, is illegal as a cybercrime under 18 U.S.C. section 2702,

Meanwhile, the legality of the already revealed domestic surveillance program remains in great doubt - the NSA has refused to provide appropriate security clearances the Department of Justice - which would allow them to investigate and verify the legallity of how things are being conducted. From the AP:

Security issue kills domestic spying inquiry
NSA won't grant Justice Department lawyers required security clearance

WASHINGTON - The government has abruptly ended an inquiry into the warrantless eavesdropping program because the National Security Agency refused to grant Justice Department lawyers the necessary security clearance to probe the matter.

The inquiry headed by the Justice Department's Office of Professional Responsibility, or OPR, sent a fax to Rep. Maurice Hinchey, D-N.Y., on Wednesday saying they were closing their inquiry because without clearance their lawyers cannot examine Justice lawyers' role in the program.

"We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program," OPR counsel H. Marshall Jarrett wrote to Hinchey. Hinchey's office shared the letter with The Associated Press.

... "Without these clearances, we cannot investigate this matter and therefore have closed our investigation," wrote Jarrett.

So here we have a situation where the President promises that his actions are legal, even though the FISA Law specifically states that it is the sole and exclusive method in with surveillance of this type will be conducted, we also the revelation that the government has conducted warrantless physical searches. Then, when the Congress begins to grumble about investigating the NSA program the White House practically twists their arms off in order to shut that investigation down, and when the governments own lawyers in the DOJ want to investigate - they get blocked.

Despite the Presidents claims, we already know that these activities are not limited to suspected members of al Qaeda and their associates. So just what is going on here? Have we started a War thousands of miles a way in order to "protect freedom" only to have it gradually stripped away at home? No more Habeas Corpus? Illegal search and seizure, kidnapping, secret detention and torture, and possibly even assasination are now viable options?

I strongly suspect, that's exactly what is going on.


Tuesday, May 9

The SmearBoating of Ray McGovern

It's been going on for some time, but last night on the O'Reilly factor Operation Rally Round the Rumfeld reached an all new level as 27 year CIA vet Ray McGovern was repeatedly accused of being a "Far Left Looney" by O'Reilly and Faux-Liberal Juan Williams.

(Transcripts are not yet available, but from what I remember O'Reilly stated)

    "He wants to Impeach the President"

    "He claims the Presidents wants terrorists to attack the U.S."

    "He's conspired with Cindy Sheehan"

    "He's a nut"

    "None of the other news outlets have honestly looked into this guys background - it should have been a the TOP of every article"

    "It's not like anyone who has worked for the government, automatically has credibility"

So, McGovern is a wacko-nutjob that the press should have exposed? And exactly how does this explain that Rumsfeld did say he "knew where the [WMD's] were" on This Week, and that he did say "There's bullet proof evidence of links between Saddam and Al Qaeda"?

Yeah, sure, McGovern being a "nutball" just happened to make Rumfeld Lie his ass off... right.

I'm sure Media Matters will be all over this a few hours, they usually are -- but before they join the fray I wanted to take a bite outta O'Leilly.

Glenn Greenwald has already been on the case here and has carefully documented the rise of these rumors and allegations against McGovern as they bubble up from the fever swamp of the right-wing bloviosphere.

What is it that Gateway Pundit's "investigation" revealed about McGovern that prompted Reynolds' admiration, along with his lament that "Big Media" failed to issue a similar report? To begin with, in the headlines of Gateway Pundit's post, we learn right away that McGovern is a"nutjob," as in: "Nutjob Ray McGovern Heckles Rummy."

But that revelation is just the beginning. Gateway Pundit also informs us that McGovern is a "certified nutcase" who "has a trail of lunatic behavior a mile long." G.P. also uncovered evidence conclusively demonstrating that McGovern is a "moonbat." I agree with Instapundit- what right does the MSM have to keep this important information from us?

What is the evidence which supports these substantive allegations? G.P. first cites a website - something called - with the headline: "Government May be Manufacturing Fake Terrorism," presumably to imply that McGovern believes that Islamic terrorist attacks are perpetrated by the U.S. Government. In fact, the website merely quotes McGovern as accusing the administration and its supporters of manipulating terrorist threats in order to maximize their power and urging skepticism about government statements in the event that another terrorist attack prompts efforts to impose martial law.

So McGovern doesn't really think the government is sponsoring terrorism, but we could speculate about exactly what feels - just like O'Reilly does - forever. (Maybe he feels that the "Red Light/Green Light" Homeland Security alert system just might be being manipulated, that the government might be taking advantage of the fear that terrorism attacks engender to gather more and more power onto itself. Y'know, like ignoring Habeas Corpus, the 8th Amendment ban on "Cruel and Unusual Punishment" and the 4th Amendment ban on illegal "search and seizure"? God they're right, that McGovern is a fucking fruitcake! That kinda shit could never happen in the U.S. of A!)

Enough guessing - here's what McGovern actually said...

Ray McGovern, former CIA Analyst during the Regan and Bush 41 regimes, joined Alex Jones on his daily radio show Monday 17th October as part of a round table discussion of issues surrounding the Iraq war and the "war on terror".


Mr McGovern stated that the war

"has nothing to do with democracy or freedom or defending "our way of life", it is to do with enriching the pockets of those who support this administration."

Alex then put it to Mr McGovern that Congressman Ron Paul had recently been on the show and said that The Bush Administration was openly trying to set up a martial law police state in America. McGovern responded in the affirmative:

"Well it does seem that those who have his (Bush's) ear are hell bent on giving away or providing wider responsibilities to our military. Witness what they are talking about now with giving the military primary responsibility for catastrophes, for hurricanes and so forth. Our military has been built up as an instrument of power but has never existed with this kind of potency before, and so we all need to look at this because there are laws against using the military in law enforcement capacities and we need to get to our Congressmen and Senators and say "look enough of this stuff."

That law would be the Posse Comitatus Act of 1878. So McGovern is being called a "nutball" for accurately pointing out the reality of the greater militarization of our society as being illegal?

Greenwald continues...

McGovern has also said that the desire for control over oil and the desire by some "zionists" to benefit Israel were factors influencing the U.S. invasion of Iraq -- views which apparently makes him both crazy and anti-Semitic. Moreover, McGovern travelled to Iraq as part of what G.P. calls a "hate America freakshow" that included "pedophile" (not to mention former United States Marine officer and aide to General Norman Schwarzkopf) Scott Ritter, whose pre-war claims about Iraq (in stark contrast to Instapundit, among others) proved to be entirely true. G.P. also uncovered the highly incriminating fact that McGovern (like 60% of Americans) also opposes the war in Iraq and, as a result, has attended various anti-war events. G.P. also links to "Allahpundit" over at Hot Air, Michelle Malkin's new venture, where the same "charges" are repeated.

It seems rather amazing that the fetid ramblings of Instapundit and Michelle Malkin are winding up on National Television -- oh wait never mind we're talk about FOX aren't we? Ok, it's not that surprising.

As Georgia10 points out today, this phenomenon is far from new - it's classic rebranding GOP/Fox style.

This obsession with form over substance is the hallmark of political analysis these days. Instead of addressing the substance of Colbert's critique, Cohen's first column obsessed over the form of its delivery. And now, he wastes a second column whining about the tone of emails he received, instead of addressing the substance of his readers' complaints. Deborah Howell, in her Abramoff column dust-up, focused more on the form of reader emails than the fact they were calling her out on a factual error. And the substance of Harry Taylor's dissent wasn't analyzed as media coverage focused on form: the President vs. the protesting American

Confronted face-to-face with facts that are unarguable, the tried and true tactic is to impune the character of the person bringing out the issue. This has been done to Cindy Sheehan, Joe Wilson, Scott Ritter and many others.

Catch the GOP in the midst of indiscriminately spreading rancid bullshit (which I suspect they might consider fertilizing) and you'd best be ready to get smeared. It doesn't matter that when you compare Rumsfeld 2006 to Rumsfeld 2003 you have a clear picture of things - let's ignore that and instead accuse the accuser of having untoward motives simply for asking the question.

What I find really frightening about this, is the concept of the litmus test, that somehow you have to be perfectly and completely politically "clean" - simply for your question to be considered legitimate. Just like the soldier who had previously asked Rumsfeld about "Hillbilly Armor", and was later accused of being a pawn of the media. Instead of wondering why the media would need to use pawns and couldn't simply ask the question themselves, they attack the soldier and ignore the fact that the U.S. forces to this very day have not resolved the armor issue.

It's Revisionist Reality.

Rumsfeld didn't really say what he said - because McGovern is an anti-semite who likes to flog cats on the weekend. Fact doesn't matter. Truth doesn't matter. Experience and expertise don't matter. This guy is a "Far Left LI-BER-AL" and can't be trusted. And poor Don Rumsfeld had to put up with his rantings? Good on the Secretary for being so patient, so gracious...

And the most frightening parts is that this shit works at redirecting the attention of a large portion not only of audience of Faux News, it works for much of the general public as well. Operation: Hey Look over There... marches on.

And we all lose in the process, left and right alike.

(Update - Link to Olbermann Transcript)


Sunday, May 7

Conservatism is a Failure

Like the now discredited ideologies of Facism and Marxism, Conservatism Unbound as it has been implemented by the Bush Administration has been shown to be an abject and total failure.

As Hunter discribes in his and quite brillliant Dkos Diary on The Great Conservative Walkback, Conservatives such as Jonah Goldberg have tried to deny the failure of conservatism when implemented by claiming that Bush is somehow - Not - a conservative.

The defining premise usually used (in these days of tanking and now near-thirty-percent approval ratings) to disassociate the failures of Bush, the House, the Senate, all their advisors, all their supporters, and the cats they loved as children from so-called true conservatism is primarily that true fiscal/governmental conservatives suppose themselves to value "restrained federal power", aka small government, which Bush allegedly does not. This, though, is a load of horsehockey. Fiscal and other conservatives may say that they value small government, but it is a fact of the movement that when in a position to actually implement those policies, they do not. And that is not a unique phenomenon: it is a traceable pattern of the movement.

Though it's true that conservatism favors small government when it comes to actually helping people - providing police and fire protection, environmental protection, worker safety, consumer protection - as opposed to helping big business, they certainly opposing "smaller" government when it comes to foreign policy as a projection of American military might and civil liberties protections from American military power used domestically (via the NSA and DIA).

There is this luminescently self-serving notion floating around, on the right, that conservatism was "failed" by Bush through general incompetence, and that we can hardly blame conservatism for that. It is noteworthy that, in fact, no conservative has yet been able to fulfill the supposed success of conservative ideals.

The incompetence is true enough, but from the days of Cal Thomas onward, I'd say that incompetence is part-and-parcel with the conservative movement in general, in that "competence" is not high on the rating scale when it comes to "conservative science", or "conservative policy implementation", or "conservative staffing". It is an ideological movement so utterly and religiously convinced of its own brilliance that actually implementing brilliance has always been an exercise left to the imagination of the observer.

The attempt here is a sever the relationship between the conservative movement and it's stated goals vs the demonstrable results of the Bush Administration when it actually puts Conservatism into practice. However part of the incompetence we've seen repeatedly in the Bush Administration, from their planning of the Iraq War, the handling of it's aftermath to similar lack of planning prior to Katrina and it's aftermath - are the result of Conservative ideology, not an unforeseen bi-product of it.

Part of modern conservatism is the assertion that conservatism is being "oppressed" or "discriminated against" by the rest of the world -- academia, science, government, media, music & Hollywood, etc., etc., am I leaving anyone out? -- which is not only liberal, but unwilling to "tolerate" conservative ideas. Therefore, "forcing" ideological conservatives into positions of power in each of these areas (often through the gawdawful power of childlike whining) is a prime conservative goal.

In other words, purity of ideology quite specifically trumps substance or experience, in "conservative" staffing efforts from academia to the White House; incompetence follows soon after as expertise is cast aside in favor of loyalty to the movement. Porter Goss may be out on his ear, but his rabid partisanship at the expense of actual intelligence and investigation efforts was legendary even before he was nominated for his latest clusterfuck -- and in fact, his rabidity and willingness to "purge" those seen as unfriendly to the conservative administration was the reason he was selected for the job, as all parties acknowledge.

Why was General Shinseki ignored? His view that we needed more troops for the aftermath of the Iraq War - a view that was tempered by the practical experience and success of our efforts in Bosnia - didn't fit within the Uber-Conservative ideology of Wolfowitz, Feith, Cheney or Rumsfeld. He was ignored and so where long-standing State Department and NSA plans which had been crafted during the Clinton administration by Richard Clarke's counter-terrorism organization (De Lenda Plans) to address both the political and military issues presented by Iraq, Afghanistan and various terrorist friendly nations around the world.

This is the core of the Incompetence of Conservatism - ideological faith and loyalty is placed far in front of fact and practical ability to get the job done.

The failure of these movement ideals when put into actual practice, and their subsequent reshuffling and rebranding, is itself an ongoing and cyclical phenomenon. I'm still waiting for the next "iteration" of the discredited conservative label to appear, the rebranding that tacitly admits the failures of the last aborted iteration, and recasts the whole thing to seem vaguely plausible again. We've had neoconservatism and the creaturelike Compassionate conservatism, and both of their heads seem quite decidedly to have been lopped off, at this point. "Crunchy Con" is a hilarious new entry, attempting to latch onto the immensely popular environmental and other liberal concerns in the same faux, ultraBranded way that Compassionate attempted to attach Reagan-era conservatism to basic premises of human decency. Crunchy Conservatism is essentially environmentalism as overscripted reality show: now, you can eat branded, agribusiness-produced "organic", and save the planet through bumper stickers.

What will be next? Likely, some play on the notion of coupling Conservative to some actually-competent foreign policy... "Competent Conservatism" or "Responsible Conservatism" come to mind, as methods for distancing the movement from their latest dungpile of world-butchering empire gone awry, or the stink of a strictly conservative-based deficit not likely to be closed for a generation. If the fundamentalist right gets even the slightest actual progress in anti-Roe or pro-prejudiced legislative success, on the other hand, I expect "Tolerant Conservatism" or "Progressive Conservatism" to mount a counter-challenge, to assure the wider public that no, all that religious nonsense really wasn't what we meant all this time, don't be silly. Vote for us again, and it'll be entirely different this time: we've got a new name for it. Same policies, same think tanks, same advisors, same pundits, same coded messages, and same political machines, but it's different this time, damn it.

Yes, when the current version of Conservatism fails miserably, it will simply be repackaged - it's proponents claiming "Oh, that wasn't Real Conservatism, this this is - see?" But how could it not fail? Conservatism is a ideology for governing that first and foremost depends on the idea that government is a failure, so how could any truly conservative led government ever be a success - it's a given that those implementing policy don't believe in the effectiveness of their own efforts.

We really shouldn't be surprised by the massive fuck-ups in Iraq and the Gulf Coast. We really shouldn't be surprised that EPA has become toothless, that we can't seem to get the FDA to ensure even basic flu protections with a looming global pandemic on the horizon.

People who proclaim to hate government ("Government is the problem" - Ronald Reagan) - are the last people who should be in charge of it. In their effort to implement their concept of "More Freedom" they ultimately aim to dismantle the primary method of protecting individuals from abuse and exploitation from each other and industry, including the oversight role of government as protector of the common good (regulation) and arbiter of disputes (tort reform).

They seek a toothless ineffectual stunted government - and that is exactly what they have wrought, despite all their protestations that this is an aberation and not what true conservatism is about -- the truth is that this is exactly what Conservatism is about.

Deliberate, willfull incompetence and failure.

And this will remain true no matter what shiny new packaging and rebranding modern conservatives attempt to use to resell thier snake-oil, they attempts at actual governing will always result... in failure.