| Olberman (via Crooks and Liars) hits another one out of the park.
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Thursday, January 26
C&L: 4th Amendment and Wrong
Why I love David Gregory (MSNBC)
Crossposted on Dailykos
In yesterday's White House press gaggle, David Gregory (MSNBC) just stepped up and Cleaned-Scotty's-Clock and it was a wonderful thing to witness - and it should be remembered, therefore I am presenting it here as well as my own appropriately snarky commentary and background info.
First the Party-line From The White House
MR. McCLELLAN: We've already talked about the FISA court. That is a very important tool, as well, and we make very good use of the FISA tool. But FISA was created in a different time period for longer-term monitoring. This program is for a shorter period of time aimed at detection and prevention. And so that's what it's focus is.And I think we have to step back and remember that -- and I think the Attorney General talked about this in his remarks yesterday -- there is a longtime tradition in war of engaging in surveillance of the enemy.
Overseas? Yes. Domestically, well yes too if you include COINTELPRO, but I wouldn't recommend using that as your example, Scotty.
That's what this is. We are a nation at war, and there is an enemy that is deadly and determined to strike us again and inflict even greater damage. And we saw the problem highlighted in the 9/11 Commission report when we learned too late about communications that were taking place from two hijackers that were in the United States talking to people outside the United States.
But the problem there wasn't that the couldn't pick up the communications - they did. The problem with some of the most daming communictions was that they didn't translate them soon enough. The 9/11 Commission Report also said this...
In May 2001, the drumbeat of reporting grew louder with reports to top officials that "Bin Ladin public profile may presage attack" and "Bin Ladin network's plans advancing." In early May, a walk-in to the FBI claimed there was a plan to launch attacks on London, Boston, and New York. Attorney General John Ashcroft was briefed by the CIA on May 15 regarding al Qaeda generally and the current threat reporting specifically. The next day brought a report that a phone call to a U.S. embassy had warned that Bin Ladin supporters were planning an attack in the United States using "high explosives." On May 17, based on the previous day's report, the first item on the CSG's agenda was "UBL: Operation Planned in U.S."9 The anonymous caller's tip could not be corroborated.
Why do you need to tap the phones of Americans without a warrant when you have people calling you direcly, and walking in the front door telling you "Osama Bin Ladin is going to attack" - and you don't listen?
Ok, Rant over....back to Scotty.
MCCLENNAN: That's the kind of problem this is designed to detect, and then be able to act and prevent attacks. It's about connecting the dots. That's what the 9/11 Commission said we need to do.So the President not only had the authority to do what he's doing, but he has the responsibility to do what he is doing, because it's about saving lives. It's about preventing attacks. It's very limited in nature, and it's focused on international communications involving al Qaeda members or affiliated terrorist organizations from either communicating inside the United States to someone outside, or communicating from outside the United States to someone inside. And I think the American people expect us to do everything within our lawful power to protect them. And the President made it very clear that as long as he is President, he will continue acting to do everything he can within his powers and within the law to protect the American people.
But we work very closely with Congress. We have briefed members of Congress on this vital tool over the course of the law few years, and we'll continue to work closely with Congress.
So they've prevented attacks, eh? Which attacks? Who whom? Where? During his Presidency the Clinton Administration prevented attacks on LAX, the UN, the Holland Tunnel, the Lincoln Tunnel, CIA Headquarters and 11 simultaneuos airliner bombs over the pacific. Just what you done for us lately Scotty?
This is where David steps up to the plate.
DAVID GREGORY Q I think that -- I mean, the way I read this question, he's asking, will you ask the FISA court for approval of this program -- not specific instances, but will you ask the FISA court if this is -- if this program, the overall program, is sanctioned under the law. And that's the -- MR. McCLELLAN: Well, if the FISA court wants to talk any more about any communications that they have had with administration officials, that's up to them. It is a highly classified court, for good reasons.Q They won't talk about it.
MR. McCLELLAN: Well, that's why I leave it up to them. If there's anything more they want to say, then I would leave it up to them.
So basically, the court can't talk about it for security reasons and the President, Attorney General and General Hayden are talking about it, but Scotty won't answer questions about whether they've considered amending the law? Huh?
Q Can I just follow on this point, because let's be clear about a couple of things. First of all, the President argues, asserts, that he has the power to unilaterally authorize this wiretapping, okay? It's not -- he doesn't have the monopoly on the truth of how --No, Scotty it's not the same authority and it's not wrong.. McClellan it would appear is referring to the congressional testimony made in 1993 by Clinton Admin official Jamie Gorelick during the Aldrige Ames case where his home was physically searched without a warrant. At that time, the FISA Law didn't cover physical searches - but was amended to do so in 1995. The Clinton Administration assertion that they had an inherent right to warrantless physical searches of foreign intelligence did not violate FISA. Bush's warrantless electronic surveillance does.MR. McCLELLAN: The courts have upheld it and previous administrations have asserted it, as well.
Q Well, that was different, and that is, again -- this is your position --
MR. McCLELLAN: Same authority. Same authority, David.
Q -- that's in dispute.MR. McCLELLAN: No, that's not -- hang on -- that's not in dispute. And look at the Associate Attorney General under the Clinton administration. The courts have upheld this authority in the past. Look at the federal courts. The President talked about it and we provided it in a document. So that's wrong.
Q No, I don't think that's wrong, and we can go into that, but I don't -- our time is not best spent doing that.
MR. McCLELLAN: That the courts haven't upheld it.No, the courts have not upheld this authority in the past. The "document" that Scotty is referring too is certainly the 40-page DOJ defense of the extra-FISA program. That document notes the Hamdi case where the court found that an American Citizen could be held as an "Enemy Combatant". It said nothing about surveillance, and further the court insisted on judicial review of the case prior to the designation being assigned to that prisoner. Transfering the rules in Hamdi to the NSA situation would clearly indicate that judicial review and a warrant are still required before subjecting American citizens to the same treatment as foreign terrorist targets.
One of the other cases mentioned by the DOJ, Youngstown v Sawyer involved President Truman taking control of the nations steel mills in order to prevent a strikes in the midst of the Korean War. The court held that the President did not have that power under Article II of the Constitution and his "Command in Chief" duties. The DOJ, bizarrely, argues the reverse. I'm a layman, not a lawyer and I could figure this out, as apparently has David Gregory, what's Scotty's excuse?
Q My question is, instead of spending time trying to fine-tune the rhetoric over what you want to call this program for political purposes, why not seek to amend FISA so that it can better suit your purposes, which is another thing the previous administration did when it wasn't considered to be agile enough? So why not, if you want the program to be more responsive, to be more agile, why not seek to amend FISA?
Seems a perfectly reasonable question to me. If you need this authority, why not ask for it? What was the Patriot Act all about anyway?
MR. McCLELLAN: Let's look at a practical example. Do you expect our commanders, in a time of war, to go to a court while they're trying to surveil the enemy? I don't think so. This is a time of war. This is about wartime surveillance of the enemy. That's what this is about. And we don't ask our commanders to go to the court and ask for approval while they're trying to gain intelligence on the enemy. So I think that's a real practical term to look at it in when you're talking about this issue, because that's what this is about.
Well, gee - do you expect that the "enemy" just might sometimes include the American people? If yes, and you assert that we are now doing law enforcement via the Military you have a problem with the Posse Comitatus Act now don't you? (NSA is a part of DOD btw)
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."
The PCA generally prohibits U.S. military personnel from direct participation in law enforcement activities. Some of those law enforcement activities would include interdicting vehicles, vessels, and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities. Prohibiting direct military involvement in law enforcement is in keeping with long-standing U.S. law and policy limiting the military's role in domestic affairs.
And if the Military is not doing law enforcement, then basically - we are under Martial Law. But then that's exactly what these guys are really thinking isn't it - with their Signing Statements and all. It doesn't matter what the law is if the President simply chooses to ignore the law and make up a quasi-Constitutional Justification that is in direct contradiction to "previous administrations and the courts".
Q There's no way to amend --MR. McCLELLAN: Well, no, let me back up, because I talked about this the last couple days. I mean, it's a very good question and an important question. FISA is an important tool. We use it. General Hayden talked about that. When we were briefing members of Congress over the course of the last few years -
No, you briefed the "Gang of Eight" and they had no advisory capacity nor could they share the information with anyone else, including their own staff due to security. The Congressional Research Service has noted that failing to notify all of Congress (not just the Gang of Eight) may have broken the law.
MCCLENNAN - I think it was more recently, over, maybe, the last couple years -- I think the Attorney General talked about it -- we talked with congressional leaders, bipartisan congressional leaders, about this very issue: Should we go and get legislation that would reflect the authority the President already has?Why not? Particularly since FISA is currently the sole and exclusive controlling legal authorization for Foreign (International) Surveilance under Under 18 USC § 2511?
MCCLENNAN - cllAnd those leaders felt that it could compromise our national security interest and this program if we were to go and get legislation passed. Because we don't want to let the enemy know about our play book, and the more you talk about this program, the more potential it has to harm our national security interest. That's why we don't get into talking about the operational aspects about it.
Oh, so you think Al-Qaeda is out there reading the Congressional Record, becoming versed in U.S. Federal Law and would like stop calling the U.S. if they knew you might be listening in? Yeah, right. Logic dictates that they've long ago adapted to the possibility of NSA phone taps on "international" calls and are using code-words and phrases to mask what's really going on. Why stop doing that when calling the U.S.?
Btw, the FISA court is already Secret - so why are you expecting al-Qaeda to get your "play book" and know who we're tapping, when and where? Roving Wiretaps were approved under the Clinton Administration in 1995 weren't they?
MCCLENNAN: But it is important for the American people to understand exactly what this program is and how limited it is and what its purpose is. There's been some misrepresentations. Now, with that said, as I pointed out, we work very closely with Congress. We'll continue to work closely with Congress as we move forward. But the President has the authority and the responsibility to do what he's doing and he's going to keep doing it.You'll work closely with Congress,eh? Well it seems they don't have the security clearance to even listen to a whistleblower like Russell Tice, and they won't even share information about Katrina which isn't classified in any way shape or form. Tell us another one, Scotty...
Vyan
Domestic or International Spying - you decide?
Countdown, Keith Olberman's excellent segment last night in response to Scotty McClennan desperate dance to gloss over the fact that people are being spied upon domestically by the NSA.
Courtesy of Crooks and Liars.com
Wednesday, January 25
Time to Start Playing Offense
By the time of, or at least soon after the State of the Union, Democrats -- not just the party, but we the rank and file - need to realize it's time to stop playing Defense and start playing Offense.
Simply complaining endlessly about the failings and foibles of the Bush Administration isn't enough (Although it's fun and theraputic). We also, vitally, need to point out how and why our path and philosophy is better. Some of this is obvious - Curruption and Lies:Bad, Honesty:Good - but on some issues we still need some work (Taxation, Governments Role in our lives, Being comfortable in our own faith, Support nearly for unlimited Abortion).
Well past the point where we made everyone understand who we really and where we stand rather than let Bully O'Reilly's repeatedly define us as the Far-Left Secular-Progressives who with to put porn in your homss 24/7, take God out of your lives, and homosexualize your teenagers.
We'll never get Bush's true poll numbers down to just those who actually believe in the policies he implements - as opposed to the policies he exposes - to finally show up as the 12-15% of hard-core bat-crazed wing-nuts that they are.
We have to realize that what we have staring us in the face - is a completely golden oppurtunity to completely repudiate the policies and practicies of the neo-conservative movement and set them back for decades, if not completely run them out of politics.
I know that seems like a tall order, but bear with me. The truth is the neo-cons who currently control the Republican party are hell-bent on self-destruction. They're like deeply addicted power-junkies who don't know when or how to restrain themselves. Just look at Jack Abramoff's behavior - openly scorning his own clients with epithets and insults in email, after email. Everyday we hear about another scandal, another hotbed of curruption and incompetence.
- The Bush Administration failed to head the numerous warnings, and crunch the intelligence to prevent 9-11.
- Osama Bin Laden got away at Tora Bora.
- Koran Desecration, Humiliation, Stress positions and Waterboarding at Guantanemo Bay. One prisoner, al-Libi, claims under duress that Iraq still has Nuclear aims - he's Wrong.
- We go to War with Iraq, but all the WMD and Nuclear intelligence, our justification for going to war, is all Wrong.
- We didn't have enough troops to secure the nation allowing a deadly Iraqi insurgency to grow and spread, we still don't properly equip them with proper armor or helmets - if they try to equip themselves they get threatened, and we've cut their benefits while locking them into perpetual service with "Stop-loss" policies. All the Pentagon's expectations and plans are just plain Wrong.
- Vice-Presidential Chief of Staff "Scooter" Libby Indicted, Rove implicated in Plame Affair.
- Abu Graib gets Gitmo-ized, and photos of prisons in humiliating poses and stress positions begin to appear. Repubs claim it was just "frat styled hazing" on the night shift - they're Wrong.
- Republican House Majority Leader Tom DeLay Indicted for Money Laundering.
- $8.8 Billion just plain disappears in Iraq under the Coalition Provisional Authority.
- 2000 U.S. Soldiers dead since "Mission Accomplished", 50,000 wounded. Another estimated 100,000 Iraqi casualties, President Bush only admits to 30,000.
- Secret Detention Centers and the Extraordinary Rendition program.
- Terry Schiavo gets her own personal Congressional Legislation and a Grandstanding Red-Eye flight by the President to sign it. Republican Heart surgeon and Senate Majority Leader Bill Frist gives her a video diagnosis, "She seems responsive to light". She dies anyway as per her wishes, and the autopsy shows that she was blind.
- The levees break in New Orleans - Bush remains on vacation and in avoidance of Cindy Sheehan.
- Republican Congressman "Duke" Cunningham pleads guilty to bribery.
- Republican Lobbyists Mike Scanlon and Jack Abramoff plead guilty to bribery of Congressmen. Tom Delay and Bob Ney implicated. Repubs and Corporate Media try to implicate Dems also, but they're Wrong.
- The NSA has been spying on American's without a warrant for over four years and causing the FBI to be flooded with makeshift busy-work instead of focusing on legitimate threats. Bush Admin claims they could've stopped 9-11 if they'd already been doing this, except that they were and they are still Wrong.
- Halliburton allowed our troops to drink contaminated water in Iraq, meanwhile $Millions of rebuilding funds were lost and squandered,
- The White House was specifically informed that the levees could fail before Katrina hit, and did nothing.
Yet, there are those who simply refuse to believe all the above. They live in a world of pseudo-reality, swamped by denial and self-deception. They know and suspect the truth, but can't bring themselves to admit it -like a junkie who can't put down the Fundie/Wingnut crack-pipe. They get bogged down in semantics - "How can you say Bush lied", and we get bogged down with them - arguing irrelevancies.
Truth is, it doesn't matter whether Bush lied or not - he was Wrong, and that's the point. We can't afford a President who makes this many bone-head mistakes and is wrong this often, deliberate or not. If he lied, well then he simply knew he was wrong, so he's a bastard - but if he didn't, he was just plain ignorant now wasn't he? Just which is really worse? I vote being a bastard is better than being a deluded dumb-ass, but maybe that's just me.
Bush personally shouldn't be the target anyway IMO, he's a lame duck President. The target needs to be the Bush Administration as a non-functioning organization, Cheney, Rove and all of Bush's political appointees like Brownie need to be the target - and of course their lackeys in Congress.
What people need to know, is just what Dems will do about all this?
Can we Dems seriously give them - particularly those who continue to support the President and Republican Party against their own best interests - a sense that we won't make the kinds of gross (deliberate?) mistakes that the Bush administration has made? Sadly, probably not.
But that doesn't mean we can't get there. People, we have some work to do. It's not enough just to let the Repubs implode if people fail to recognize that all the above is a direct result of the Republican Philosophy of Government - which is a Government that Doesn't Work. Their main campaign arguement since Ronald Reagan has been that "Government can't solve your problems, Government is the problem", and they've worked long and hard to make sure that axiom is true. Right now, with Repubs in charge - They are the problem.
We need to hang that sound bite around their neck like a scarlet letter. Their government doesn't work - but Dems in power have and will make Government limited, but effective.
We have to stop running away from Monica, and learn to crow about the great things we've already accomplished. A Democratic President Balanced the U.S. Budget, reduced the size of government by 15% while preventing drastic unneccesary cuts in Medicaid and Medicare. A Democratic President and Administration, brought peace to Northern Ireland, ended the wars in Bosnia and Kosovo saving the lives of Millions from Ethnic Cleansing, and at the same time prevented al-Qaeda Jihadist from starting an anti-American insurgency in the region. (Now that, was a noble causetm). A Democratic Administration prevented the Millenium Bomb Plot, the attempted bombing of LAX, the Lincoln Tunnel and the Holland Tunnel. A Democratic Administration caught Aldridge Ames, caught Eric Robert Rudolph and executed Timothy McVeigh.
We have to make it clear that the Democratic vision is one that isn't for unneccesary government intrusion into our personal lives or the operation of our businesses without due and probable cause. We have to learn some consistency on this - it shouldn't matter if it's guns or pornagraphy. People have an equal freedom to own either, as long as they show the personally responsibility [yes, that's right - Steal those soundbytes and turn them around] not to let either fall into the wrong hands or be used irresponsibly. It should be about what you do and how it impacts those around you - not what you possess.
Our primary objective has to be election reform and accountability. We can't have a government "by and of the people" if we can't verify what the people actually voted for. At the moment this needs to be a state-level initiative, as various states have begun to test and challenge the security of Diebold and other automatically voting equipment. WIthout this, we have nothing.
Our secondary objective needs to be a revamping of our tax policy. Dems are also being accused of "taxing and spending", when the truth is that Republicans are Super-spending (with the debt approaching $8 Trillion) and tax-shifting the burden from us onto our children, and their children. A tax-cut doesn't really cut anything if all it does is explode the defecit, rather it simply forces those same taxes to be paid years later with interest.
Government isn't a surrogate Mommy or Daddy - but it can and should be a tool to help us get back up when we fall down as a result of medical problems, natural disasters or other tragedies. The axiom should be that government provides a platform where the strong can pool their resources and help those who need aid the most, simply because if they don't - no one else can without the neccesary resources.
Dems needs to allay the fears of Conservatives - No, not cynically shift to the right DLC style - but make it clear that they have a plan to address the deficit and welfare of America in new and innovative ways such as John Kerry campaign suggestion of a tax credit to businesses who provide for American jobs rather than overseas jobs.
I think this idea should be expanded and ceased upon.
Rather than simply rollback the Bush Tax cuts and thereby "raising taxes" (although the truth is that a full rollback would simply put the taxes back where they were when we were running surpluses) another idea would be to offer public service tax credits.
A Public service tax credit should be available anytime that an individual or corporation chooses to spend money to meet public service goals, for example television stations that provide for campaign ads to candidates free of charge (thereby removing the need to develop complex campaign finance laws and schemes to catch people who try to "game the system" like Abramoff and co.), or provide for books, materials and facilities donated to public schools, or add more employees to your health-care rolls. etc. The point being that the more that private citizens and companies do to take care of themselves and each other -- the less government has to spend doing it for them. Conservatives like to crow that people always know better than government. Well, sure sometimes they do - and sometimes they don't. Either way government taxes should NOT disable them from trying to do the best they can on their own before it the guvmint comes in afterward to pick of the left-over peices for all those who are -- to borrow a phrase - left behind. Public Service Tax Credits should be offered as an alternative to a straight repeal of the Bush Tax-Cuts.
Under this plan It's possible that the overall tax burden might go down even further than Bush's cuts if enough people and companies embrace the credit option, the end goal is on eliminating the need for government spending by having as many people as possible able to stand on their own without government assistance. This strategy would completely destroy the old "Tax and Spend Liberal" canard.
We also need to re-address not just tax issues, but moral ones. Issues of faith and values. A recent episode of West Wing contained a scene where the Ambassador stated the following to the American representative...
With "Life, Liberty and the Persuit of Happiness". All the aspirations of your people are financial - not ethical.And the chilling truth of that statement was palpable. We equate the "greatness" of America not with our character or values, but with or individual financial circumstances. The size of our SUV and the strength of our economy. Dems certainly need to take this bull by the horns.
It goes without saying that bribery, corruption and cronyism are wrong. But it also needs to be said that abortion is great moral issue as well, and that we Dems certainly do not celebrate in the destruction of human life. Rather, we must seek policy which supports personal ethics that make abortion unneccesary. We must support comprehensive sex education,since almost 90% of teens indoctrinated into abstinence-only programs break their vows and have unprotected sex within 18 months (since they are discouraged and withheld knowledge of effective contraception). Abstinence is a good choice - but so is Safe-sex. Our foster system care needs to be serious reformed. Adoption should be cheaper and far more open. We should encourage the formation of extended families for child care, as well as family support from the corporate world as well such as on-site day care. Our schools need deep and serious reform using innovation rather than rote test teaching..
Being "Pro-Choice" need to include all the choices, all of the positive things that people can say "Yes" too, rather than simply say "No" to an embryo.
There are just a couple examples of what we need to allow people to be able to comfortably say "Yes" to the Democratic party, rather than simply say "No" to Repubs. Those that only say "No" are likely to sit-out the 2006 mid-term or even the 2008 elections, and we need them - we need them on our side if we're going to save this country from itself.
We need them as part of the Reality-based community, not neccesarily as Democrats - True Conservatism can function within our reality, I firmly believe this is true, but they still need to be in the same reality as the rest of us to start with.
The Conservative movement has been hijacked by Neo-cons, who are just exploiting the "wackos" with anti-Liberal rhetoric. Just remember, A Balanced Budget Amendment was included in the GOP's Contract on America a decade ago. Where did those Conservatives go? Just think, if the Neo-cons can pull all this crap, fail at so much of it this badly and still not be held accountable, just what will stop them from going even further next time?Vyan
NYT: Millions disappear from Iraq Rebuilding Funds
A new audit of American financial practices in Iraq has uncovered irregularities including millions of reconstruction dollars stuffed casually into footlockers and filing cabinets, an American soldier in the Philippines who gambled away cash belonging to Iraq, and three Iraqis who plunged to their deaths in a rebuilt hospital elevator that had been improperly certified as safe.
The audit, released yesterday by the office of the Special Inspector General for Iraq Reconstruction, expands on its previous findings of fraud, incompetence and confusion as the American occupation poured money into training and rebuilding programs in 2003 and 2004. The audit uncovers problems in an area that includes half the land mass in Iraq, with new findings in the southern and central provinces of Anbar, Karbala, Najaf, Wasit, Babil, and Qadisiya. The special inspector reports to the secretary of defense and the secretary of state.
Agents from the inspector general's office found that the living and working quarters of American occupation officials were awash in shrink-wrapped stacks of $100 bills, colloquially known as bricks.
One official kept $2 million in a bathroom safe, another more than half a million dollars in an unlocked footlocker. One contractor received more than $100,000 to completely refurbish an Olympic pool but only polished the pumps; even so, local American officials certified the work as completed. More than 2,000 contracts ranging in value from a few thousand dollars to more than half a million, some $88 million in all, were examined by agents from the inspector general's office. The report says that in some cases the agents found clear indications of potential fraud and that investigations into those cases are continuing.
Some of those cases are expected to intersect with the investigations of four Americans who have been arrested on bribery, theft, weapons and conspiracy charges for what federal prosecutors say was a scheme to steer reconstruction projects to an American contractor working out of the southern city of Hilla, which served as a kind of provincial capital for a vast swath of Iraq under the Coalition Provisional Authority.
But much of the material in the latest audit is new, and the portrait it paints of abandoned rebuilding projects, nonexistent paperwork and cash routinely taken from the main vault in Hilla without even a log to keep track of the transactions is likely to raise major new questions about how the provisional authority did its business and accounted for huge expenditures of Iraqi and American money.
"What's sad about it is that, considering the destruction in the country, with looting and so on, we needed every dollar for reconstruction," said Wayne White, a former State Department official whose responsibilities included Iraq from 2003 to 2005, and who is now at the Middle East Institute, a research organization.
Instead, Mr. White said, large amounts of that money may have been wasted or stolen, with strong indications that the chaos in Hilla might have been repeated at other provisional authority outposts.
Vyan
Tuesday, January 24
Bush Admin Fumbling the NSA Pushback
From Reuters:
A top U.S. intelligence official on Monday said President George W. Bush's warrantless spying program was necessary because the war on terrorism has rendered laws governing electronic surveillance ineffective.As part of a high-profile White House campaign to defend the controversial program, former National Security Agency director Air Force Gen. Michael Hayden said eavesdropping was not as wide-ranging as has been described by critics who say Bush may have overstepped his authority by authorizing it.
"This isn't a drift net out there where we're soaking up everyone's communications," said Hayden, who is now principal deputy to U.S. intelligence chief John Negroponte.
"This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda," he said in remarks delivered at the National Press Club.
Now the Washington Post has the full transcript of Hayden's statement - and going through it helps establish exactly what the NSA and Administration have been thinking and doing. First he notes that the 9-11 highjackers would not normally have been targeted by NSA surveillance.
Hayden: The American SIGINT system, in the normal course of foreign intelligence activities, inevitably captures this kind of information, information to, from or about what we call a U.S. person. And by the way, "U.S. person" routinely includes anyone in the United States, citizen or not.
So, for example, because they were in the United States -- and we did not know anything more -- Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA prior to 9/11.
Technically most of the 19 highjackers were in the U. S. illegally using expired visas - and it's fair to note the NSA wouldn't normally know their immigration status that alone is no excuse to violate FISA. With a FISA Warrant these persons could be tapped at will, but the Catch-22 of the situation is that the FISA court will not accept evidence to begin a surveillance based on evidence that clearly comes from an unwarrant tap. Basically these persons have to be identified via non-NSA means (such as an FBI FISA application) in order for NSA to tap them.
There were in fact two NSA domestic spying programs, one which began almost immediately after Bush was elected as directed by Dick Cheney along with Hayden and one directed by the President.
... NSA started receiving numerous requests from Cheney and other officials in the state and defense departments to reveal the identities of the Americans blacked out or deleted from intelligence reports so administration officials could better understand the context of the intelligence.So we've established that sharing the names of U.S. Persons indentified by normal NSA surveillance with other U.S. Agencies was illegal. I've posted previously about this attempt to share data in the days soon after 9-11 and the resulting revolt it generated with the halls of NSA.Separately, at this time, Cheney was working with intelligence agencies, including the NSA, to develop a large-scale emergency plan to deal with any biological, chemical or nuclear attack on US soil.
Requesting that the NSA reveal the identity of Americans caught in wiretaps is legal as long as it serves the purpose of understanding the context of the intelligence information.
But the sources said that on dozens of occasions Cheney would, upon learning the identity of the individual, instruct the NSA to continue monitoring specific Americans caught in the wiretaps if he thought more information would be revealed, which crossed the line into illegal territory.
Cheney advised President Bush of what had turned up in the raw NSA reports, said one former White House official who worked on counterterrorism related issues.
"What's really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department," one former counterterrorism official said. "There was a real feeling of paranoia that permeated from the vice president's office and I don't think it had anything to do with the threat of terrorism. I can't say what was contained in those taps that piqued his interest. I just don't know."
QUESTION: Sam Husseini from IPA Media. You just now spoke of, quote, "two paths," but of course the FISA statute itself says that it will be the exclusive means by which electronic surveillance may be pursued. Are you not, therefore, violating the law?The second plan, which was authorized by the President after 9-11, allows for NSA surveillance and the sharing of targeted U.S. persons without using the FISA court. Probable Cause is required (by the 4th Amendment) to be presented to the FISA court, prior to the issuance of a warrant - and it appears that a lack of probable cause as well as the illegal sharing of "protected names" may have been the prime justification for the Presidents action based on questions put to Hayden during his statement.GEN. HAYDEN: That's probably a question I should deflect to the Department of Justice, but as I said in my comments, I have an order whose lawfulness has been attested to by the attorney general, an order whose lawfulness has been attested to by NSA lawyers who do this for a living. No, we're not violating the law.
QUESTION: General Hayden, the FISA law says that the NSA can do intercepts as long as you go to the court within 72 hours to get a warrant.So basically, you have to have a everything sufficient to justify probable cause in order to apply an Emergency Tap, in the expectation that you will eventually have to go before the FISA with the evidence supporting your claim. The 72-hour time window doesn't work for you when you can't meet probable cause. Moving on to the last question:I understood you to say that you are aggressively using FISA but selectively doing so. Why are you not able to go to FISA as the law requires in all cases? And if the law is outdated, why haven't you asked Congress to update it?
GEN. HAYDEN: Lots of questions contained there. Let me try them one at a time.
First of all, I need to get a statement of fact out here, all right? NSA cannot -- under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general's standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it's not like you can throw it on for 72 hours.
QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --The problem with Hayden's statement, and apparently with version two of the NSA Surveillance programs is this:GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
QUESTION: But the --
GEN. HAYDEN: That's what it says.
QUESTION: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable --
GEN. HAYDEN: No. The amendment says --
QUESTION: The court standard, the legal standard --
GEN. HAYDEN: -- unreasonable search and seizure.
QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?
GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.
Routh Amendment of the U.S. Constitution: 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.More analysis on this subject from georgia10 on Dkos.
Indeed, the problem here isn't with FISA, including the 72 hour post-hoc feature, it's with a demonstrably lowering of the bar from probably cause to the "reasonable suspicion" standard. The most telling answer Hayden gave was to the question of whether the Administration political opponents were being targeted for NSA surveillance, presumably under the "reasonable suspicion" standard rather than the legal and constitutional "probable cause".The admission that Bush's spying program uses a "reasonable suspicion" standard rather than a "probable cause" standard is explosive and damning. Why? Because the Bush administration knew--indeed, took the position--that a reasonable suspicion standard with respect to non-U.S. citizens was probably unconstitutional. Yet the administration now applies that same unconstitutional standard to United States citizens?
In the summer of 2002--well after Bush's spying program was already secretly implemented- the Senate Select Committee on Intelligence held a hearing on the DeWine amendment. (Hearing Report PDF) What transpired at that hearing proves that the Bush administration (a) knew that wiretaps of United States citizens are, pursuant to the Constitution, always subject to a probable cause standard; and (b) Congress explicitly rejected a lower standard for non-U.S. citizens.
DeWine himself limited his amendment to apply only to non-U.S. citizens, recognizing that "we must be cautious not to endorse an overly permissive use of the surveillance powers of FISA." The Committee heard testimony from the administration's top lawyers, and from top legal scholars in the field of eavesdropping and criminal law.
James Baker was then counsel for intelligence policy at the Department of Justice and head of the Office of Intelligence Policy and Review, which is the office that prepares and presents to the FISA court "all the applications under the FISA Act for electronic surveillance and physical search of foreign powers and their agents." If there was any expert on FISA warrant and applications at the time, it was Baker. He began his testimony by praising the PATRIOT ACT FISA changes, testifying as follows:
In my view, the changes have allowed us to move more quickly and more effectively and to also be more focused in our approach in dealing with the kinds of threats that Mr. Bowman made reference to. So we at the Department are grateful for the changes that Congress made in the statute, because I believe they've been important and have been employed effectively.No word of how "ineffective" FISA is there.
QUESTION: No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration? Because as Vice President Gore recently said, "It is much worse than people realize."Hayden didn't answer the question, and when you note that this entire process began with the Vice President using NSA to spy on White House and State Deptartment personnel, it seems obviuos that if they can brazenly do that, what's to stop them from spying on an anti-war anti-Bush outfit like World Can't Wait?
Looks like Wayne Madsen might just not be ready for that tin-foil hat after all.
Meanwhile, Alberta Gonzales has been getting the raspberry on his barnstorming tour in support of the Presidents policies, as law students turn their back on him
WASHINGTON (AP) — Attorney General Alberto Gonzales defended the Bush administration's domestic spying program Tuesday and suggested that some critics and news reports have misled Americans about the breadth of the National Security Agency's surveillance.
Gonzales said the warrantless surveillance is critical to prevent another terrorist attack within the United States and falls within President Bush's constitutional authority and the powers granted by Congress immediately following the Sept. 11, 2001 terrorist attacks. (Related video: More from Gonzales)
At a Georgetown Law School Forum, Gonzales said the nation needs "to remember that ... it's imperative for national security reasons that we can detect reliably, immediately and without delay" any al-Qaeda related communication entering or leaving the United States.
As he spoke, more than a dozen audience members stood silently with their backs turned to the attorney general. Outside the classroom where Gonzales was to speak, a pair of protesters held up a sheet that said, "Don't torture the Constitution."
If they keep this up, this entire NSA Pushback might do just about as well as the President's Social Security Reform program did.
Vyan
Kerry blasts Hurricane FEMA
From Intervention Magazine last October.
When President Bush appeared on “Good Morning America” on Thursday, September 1, 2005, four days after Hurricane Katrina hit New Orleans, his main excuse for the delay in the Federal government’s response to the flooding was that nobody could have predicted that the levees around New Orleans could have broken. President Bush said, “I don't think anybody anticipated the breach of the levees. They did anticipate a serious storm. But these levees got breached. And as a result, much of New Orleans is flooded.”From Today's Washington Post:
Statement from John Kerry released today.In the 48 hours before Hurricane Katrina hit, the White House received detailed warnings about the storm's likely impact, including eerily prescient predictions of breached levees, massive flooding, and major losses of life and property, documents show.
A 41-page assessment by the Department of Homeland Security's National Infrastructure Simulation and Analysis Center (NISAC), was delivered by e-mail to the White House's "situation room," the nerve center where crises are handled, at 1:47 a.m. on Aug. 29, the day the storm hit, according to an e-mail cover sheet accompanying the document.
The NISAC paper warned that a storm of Katrina's size would "likely lead to severe flooding and/or levee breaching" and specifically noted the potential for levee failures along Lake Pontchartrain. It predicted economic losses in the tens of billions of dollars, including damage to public utilities and industry that would take years to fully repair. Initial response and rescue operations would be hampered by disruption of telecommunications networks and the loss of power to fire, police and emergency workers, it said.
In a second document, also obtained by The Washington Post, a computer slide presentation by the Federal Emergency Management Agency, prepared for a 9 a.m. meeting on Aug. 27, two days before Katrina made landfall, compared Katrina's likely impact to that of "Hurricane Pam," a fictional Category 3 storm used in a series of FEMA disaster-preparedness exercises simulating the effects of a major hurricane striking New Orleans. But Katrina, the report warned, could be worse.
The hurricane's Category 4 storm surge "could greatly overtop levees and protective systems" and destroy nearly 90 percent of city structures, the FEMA report said. It further predicted "incredible search and rescue needs (60,000-plus)" and the displacement of more than a million residents.
"How is it that the White House Situation Room received detailed warnings 48 hours before Hurricane Katrina hit, that the National Hurricane Center was warning CNN and the world that Katrina could be The Big One, that FEMA reported two days before landfall that Katrina's surge `could greatly overtop levees and protective systems,' destroy nearly 90 percent of city structures, require `incredible search and rescue needs (60,000-plus),' and displace more than a million people - and the President days later still insisted on national television, `I don't think anybody anticipated the breach of the levees' that left 1,300 dead and thousands more homeless?"Where's the accountability? Where's the compassion?
"Hurricane Katrina stripped away any image of competence and exposed the true heart and nature of this administration. It showed Americans at their best - and our government at its worst.
"Sadly, there's an enormous gap between what Americans deserve and what the government delivers. The shocking weakness of our government to deal with urgent challenges is tragically and dramatically underscored by the information that was being fed into the White House Situation Room, and the lack of response coming from a vacationing president on his ranch in Crawford.
"Beginning with the appointment of an Arabian horse executive to lead America's emergency preparedness in the post-9/11 world, to a president who remained away from the heart of the hurricane's devastation for five days, Katrina is the story of a failure of leadership and its very real human consequences.
"We wouldn't be having this conversation if the people running our government in Washington had cared to listen. They didn't listen to the Army Corps of Engineers when they insisted the levees be reinforced. They didn't listen to the countless experts who warned this exact disaster scenario would happen. They didn't listen to years of urgent pleading by Louisianans about the consequences of wetlands erosion in the region, which exposed New Orleans and surrounding parishes to ever-greater wind damage and flooding in a hurricane. They didn't listen when a disaster simulation just last year showed that hundreds of thousands of people would be trapped and have no way to evacuate New Orleans. They didn't listen to those of us who have long argued that our insane dependence on oil as our principle energy source, and our refusal to invest in more efficient engines, left us one big supply disruption away from skyrocketing gas prices that would ravage family pocketbooks, stall our economy, bankrupt airlines, and leave us even more dependent on foreign countries with deep pockets of petroleum. And now it's a proven fact that they didn't listen when everyone was warning that Katrina was The Big One Louisianans had long dreaded. They didn't even abandon their vacations.
"The people of the Gulf Coast got more of the same hurricane force spin and deception when they needed action and compassion. To say it's an outrage is the understatement of the year - right up there with Brownie and his `heck of a job.'"
And just when you thought it couldn't get any worse. From Uncommon Sense on Dkos:
VyanAnyone who remembers President Bush's stall tactics on the 9/11 commission will recognize them here:
The White House is crippling a Senate inquiry into the government's sluggish response to Hurricane Katrina by barring administration officials from answering questions and failing to hand over documents, senators leading the investigation said Tuesday.And, this is in response to a Republican-controlled investigation. We're not talking about a non-partisan commission here. We're not talking about fire-breathing Democrats with subpoena power. From the beginning, the worst that was likely to happen for the administration was a finding of equal culpability between the feds, the State of Louisiana and the City of New Orleans.In some cases, staff at the White House and other federal agencies have refused to be interviewed by congressional investigators, said the top Republican and Democrat on the Senate Homeland Security and Governmental Affairs Committee. In addition, agency officials won't answer seemingly innocuous questions about times and dates of meetings and telephone calls with the White House, the senators said.
But, this president can't even fake openness. He won't even pretend to cooperate with an investigation into the devastation, on his watch, of yet another major American city.
DU: Kerry to support filibuster of Alito
According to posts on Democratic Underground - staffers at John Kerry's office have responded to questions and confirmed that John Kerry will support a Filibuster of Samuel Alito.
I just called the press office and they aren't aware of this so there may be a misunderstanding. I'm waiting for an email while they try to track this down.Update
Hey Sandy--
Yes, Kerry would vote no on cloture (i.e. support a filibuster) - so that's correct.
Not only that, but Kerry also has an Web Petition in place for supporters to sign.
From John Kerry.com
I've studied Judge Alito's legal record. I met with him one-on-one. After all this, I am left with one simple conclusion: if Judge Alito becomes Supreme Court Justice Alito, he will move the Court backwards.
I will vote against Judge Alito's confirmation, and I hope a majority of Senators choose to join us on the Senate floor, voting and speaking out against him. I know we face tough odds, but this is an important fight.The bottom line is Judge Alito cannot be trusted on the Supreme Court. We can't trust him to stand up to government abuse of power. We can't trust him to ensure all citizens enjoy equal protection under the law. We can't trust him to protect our right to privacy. We can't trust him to defend mainstream American values.
To muster enough Senators to defeat Judge Alito, the American people have to make it clear that they are against his nomination. That's where you come in. By speaking out, you will help us convince other Senators to join our fight.
Go here (http://www.johnkerry.com/...) to sign the Petition yourself.
And don't forget pass it on.