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Tilting at Windmills

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July 8, 2008
By: Kevin Drum

FISA....Tim Lee is reading about J. Edgar Hoover's steady expansion of domestic surveillance during his long tenure as FBI director:

The most remarkable thing about it is how familiar it all seems. As [Athan] Theoharis tells the story, the FBI has, from its inception, pushed for ever broader authority to spy on Americans. During the first half of the 20th century, it pushed relentlessly for broader statutory authority. When Congress would not give it the authority it wanted, it sought authorization from senior executive branch officials for authorization to break the law. If authorization wasn't fortcoming, the bureau would often do what it wanted anyway and not tell its nominal superiors of its activities.

Tim seems persuaded that Hoover-ish sorts of surveillance aimed at political enemies is probably going on today, but I think Matt Yglesias is closer to the target with this:

These practices, of course, were per se abusive in many ways, and led to further abuses, and then under Richard Nixon led to the revelation of massive abuses and the creations of the safeguards we're now busy unwinding.

I suppose at this point I've become fatalistic about FISA and am mostly just waiting for this whole cycle to repeat itself.

There is, of course, no way to know with certainty what NSA is doing right now, but even if their programs really are tightly focused on international terrorist activity today (and I think they are), the odds are about zero that a gigantic, secret, wholesale surveillance program with poor oversight will remain tightly focused in the future. Even if George Bush's motives are entirely pure, abuse is inevitable under the kind of rules set forth in the FISA legislation currently waiting for Senate approval. A decade or two from now, a 21st century version of the Church Commission will write this story for the second time and our children will wonder how we let it happen. I sort of doubt that we'll have a very good answer.

Kevin Drum 3:12 PM Permalink | Trackbacks | Comments (74)

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Expecting anyone to give a shit about rule of law is so tiring. We should all just be resigned and give up.

Now if a blow job was involved...!

Posted by: John McCain: More of the same on July 8, 2008 at 3:16 PM | PERMALINK

There is, of course, no way to know with certainty what NSA is doing right now, but even if their programs really are tightly focused on international terrorist activity today (and I think they are), . . . —Kevin Drum

Why in the world would you assume this? What has the Bush administration done over the last seven years that suggests that they aren't doing whatever the fuck the want to do if for no other reason than they can?

Posted by: Jeff II on July 8, 2008 at 3:21 PM | PERMALINK

but even if their programs really are tightly focused on international terrorist activity today (and I think they are)

Why do you think that?

You've said this before. Why?

Posted by: shortstop on July 8, 2008 at 3:22 PM | PERMALINK

You've said this before. Why?

Because Kev owns the most awsomenest pair of rose-colored glasses EVAH!


.

Posted by: spork_incident on July 8, 2008 at 3:29 PM | PERMALINK

There is, of course, no way to know with certainty what NSA is doing right now, but even if their programs really are tightly focused on international terrorist activity today (and I think they are), the odds are about zero that a gigantic, secret, wholesale surveillance program with poor oversight will remain tightly focused in the future.

Yes, this is getting repetitious, but WTF? Nameless, faceless administrations in the future will finally get around to gaming & abusing this massive power, but you're confident that the gang that couldn't shoot straight, an administration that's crooked as a snake in water, is "tightly focused on international terrorist activity." Sometimes I wonder what the sunsets are like where you live on Mars.

Posted by: junebug on July 8, 2008 at 3:30 PM | PERMALINK

A decade or two from now, a 21st century version of the Church Commission will write this story for the second time and our children will wonder how we let it happen. I sort of doubt that we'll have a very good answer.

A decade or two? Your children are already wondering how you guys are letting this happen.

Posted by: jbryan on July 8, 2008 at 3:33 PM | PERMALINK

It is hilarious to contemplate that the result of all the anti-Communist surveillance was to enable a transvestite homosexual (Hoover) to blackmail the Kennedys for screwing Marilyn Monroe !

Posted by: H-bob on July 8, 2008 at 3:38 PM | PERMALINK

A decade or two? Your children are already wondering how you guys are letting this happen.
Posted by: jbryan

Hardly. I'm pretty sure my children (both under the age of 12) aren't wondering about such things. In fact, I don't want them to. However, if you are thinking of this in the context of adult children, what precisely are they doing to prevent all this? Given my exposure to generations X & Y, they, like most of their parents, haven't been paying attention either.

Posted by: Jeff II on July 8, 2008 at 3:41 PM | PERMALINK

this post should be saved for those future generations. because the level of willful blindness to the crimes and abuses to constitutional governance committed by this depraved administration is fully on display in your concerns.

'no way to know what nsa is doing';
'a decade or two';

and the kicker:

'programs really are tightly focused on international terrorist activity'


you cannot be serious.

Posted by: linda on July 8, 2008 at 3:41 PM | PERMALINK

Why in the world would you assume this? What has the Bush administration done over the last seven years that suggests that they aren't doing whatever the fuck the want to do if for no other reason than they can?
It's only the institutional history at the NSA that makes this plausible. The NSA has (OK, according to Bambford and other unofficial sources) internalized all the rules about no domestic surveillance over the last 30 years. For that matter, in the 60s, they rebuffed some of the more outrageous requests, e.g. J Edgar Hoover's request that the entirety of the Society of Friends (Quakers) be surveilled.

I'm reasonably certain that there has been some abuse, e.g. (guessing here) surveillance of Democratic legislators for tenuously arguable "national security" reasons. The peculiar fight over the telecomm immunity provision makes this plausible. I'm hoping that domestic surveillance of the actual content of voice traffic hasn't been massive.
(Analysis, including automated analysis, of who-called-who, recursively, is another matter.)

Posted by: Bill Arnold on July 8, 2008 at 3:42 PM | PERMALINK

but even if their programs really are tightly focused on international terrorist activity today (and I think they are)

Suuurrre Kevin, it'll be future administrations that will abuse this FISA. Not the current Criminal-in-Chief. It's inexplicable that you still seem to give Bush the benefit of the doubt. I'm just wondering, what exactly does the Bush administration have to do to shake your faith in them?

Posted by: ckelly on July 8, 2008 at 3:45 PM | PERMALINK

It's only the institutional history at the NSA that makes this plausible. The NSA has (OK, according to Bambford and other unofficial sources) internalized all the rules about no domestic surveillance over the last 30 years. For that matter, in the 60s, they rebuffed some of the more outrageous requests, e.g. J Edgar Hoover's request that the entirety of the Society of Friends (Quakers) be surveilled.

I'm reasonably certain that there has been some abuse, e.g. (guessing here) surveillance of Democratic legislators for tenuously arguable "national security" reasons. The peculiar fight over the telecomm immunity provision makes this plausible. I'm hoping that domestic surveillance of the actual content of voice traffic hasn't been massive. (Analysis, including automated analysis, of who-called-who, recursively, is another matter.) Posted by: Bill Arnold

Right now, we really have no idea for sure what the FBI, CIA or NSA do with their time. We never know until so long after the fact that it doesn't matter any longer.

Posted by: Jeff II on July 8, 2008 at 3:46 PM | PERMALINK

Really a stunning comment that "I think they are," which I believe goes a great deal in addressing the other part -

A decade or two from now, a 21st century version of the Church Commission will write this story for the second time and our children will wonder how we let it happen.

It's happening now - and most of us are aware of this - because as Somerby might say,the liberal 'leaders' in the media prefer to look the other way.

Posted by: bh on July 8, 2008 at 3:47 PM | PERMALINK
There is, of course, no way to know with certainty what NSA is doing right now, but even if their programs really are tightly focused on international terrorist activity today (and I think they are),

What, aside from blind faith in the honesty of the Bush Administration, justifies this belief?

Posted by: cmdicely on July 8, 2008 at 3:58 PM | PERMALINK

The warrantless spying, according to sworn QWEST testimony started almost immediately after Bush came into power (February 2001) i.e. months before the 9/11 attacks. Since we know that terrorism was almost completely ignored prior to 9/11 and that there was never a problem getting FISA warrants for spying on foreigners, there can only be one reason they never wanted this massive spying operation to go the warrant route: the spying was on Americans and specifically on Democrats i.e. for political balckmail.

Posted by: Ian S on July 8, 2008 at 4:04 PM | PERMALINK

It isn't like BushCo has been spying on peace groups, Quakers, etc. Or politicizing every aspect of government. No way -- everything has been to protect us! You tell 'em, Kevin!

Posted by: John McCain: More of the Same on July 8, 2008 at 4:06 PM | PERMALINK

A decade or two from now, a 21st century version of the Church Commission will write this story for the second time and our children will wonder how we let it happen. I sort of doubt that we'll have a very good answer.

"Son, I'd love to tell you why we no longer enjoy the freedoms that the founders of the United States fought to secure for us... unfortunately, our monitoring devices prohibit us from speaking on these matters."

Posted by: josef on July 8, 2008 at 4:08 PM | PERMALINK

I can't understand why after all these years anyone, much less you Kevin, would assume that George Bush's motives are entirely pure. The man and his team are the worst sort of scum who would use any ploy, legal, illegal, moral, or immoral to advance their agenda. I wouldn't trust him not to con his own grandmother.

Posted by: walldon on July 8, 2008 at 4:20 PM | PERMALINK

Kevin, I'm surprised at your gullibility at this late date. There's absolutely no chance that this administration isn't spying on its political enemies. We know for a fact that they define peace groups and environmental groups as potential terrorists, and that they will manipulate the DOJ for partisan ends. In the light of day! Why wouldn't they do it when they are confident they can keep anyone from finding out?

Posted by: BJ on July 8, 2008 at 4:21 PM | PERMALINK

our children will wonder how we let it happen. I sort of doubt that we'll have a very good answer.

Oooh pick me. Groupthink, lockstep Republicans and gutless, establishment Democrats let it happen.

Posted by: ckelly on July 8, 2008 at 4:23 PM | PERMALINK

Our children will not wonder how we allowed the civil protections of the constitution to erode. They will know nothing of them, so will not be able to ask about them, and they will be too busy working jobs that earn a day's worth of calories.

Posted by: Brojo on July 8, 2008 at 4:34 PM | PERMALINK

If we're destined to live in a world of oppressive domestic surveillance and "Total Information Awareness" there is a way we can fight back.

All of that information means nothing if the folks down at the FBI and the NSA can't separate the wheat from the chaff. If a significantly large number of people started sending themselves bogus emails relating nefarious plots to subvert the government (and perhaps praising Allah) there would be gridlock at the FBI. Next time you're talking to your mom on the phone, blurt out "Bin Laden" and "Al Qaeda" and "LaGuardia" before you hang up; the guys at the NSA will shit their pants.

Or we could all sit home wait for the FBI to arrest us for belonging to the ACLU or Friends of the Earth.

Posted by: Dave Brown on July 8, 2008 at 4:36 PM | PERMALINK

shortstop:

Why do you think that?

You've said this before. Why?

Because Obama supports this version of FISA, and we can't be at odds with the Great Leader, can we?

Posted by: Andy on July 8, 2008 at 4:37 PM | PERMALINK

They've been doing this shit since the 1960s...it's just done with computers nowadays instead of a tea kettle and an envelope.

Magic Lantern

ECHELON

CARNIVORE

Roving bugs on your cell phone.

Posted by: Old Hat on July 8, 2008 at 4:38 PM | PERMALINK

What Ian said:

The warrantless spying, according to sworn QWEST testimony started almost immediately after Bush came into power (February 2001) i.e. months before the 9/11 attacks. Since we know that terrorism was almost completely ignored prior to 9/11 and that there was never a problem getting FISA warrants for spying on foreigners, there can only be one reason they never wanted this massive spying operation to go the warrant route: the spying was on Americans and specifically on Democrats i.e. for political balckmail.

Posted by: Gore/Edwards 08 on July 8, 2008 at 4:42 PM | PERMALINK

Because Obama supports this version of FISA, and we can't be at odds with the Great Leader, can we?

You haven't been paying attention, "Andy."

Kevin has been ascribing non-nefarious motives--note, though Kevin won't, that there's a distinction between declining to assume the worst and positively affirming the best--to the NSA since long before Obama even announced his candidacy. Kevin, unlike Obama, has been consistent in this position.

Posted by: shortstop on July 8, 2008 at 4:47 PM | PERMALINK

Right now, we really have no idea for sure what the FBI, CIA or NSA do with their time. We never know until so long after the fact that it doesn't matter any longer.

According to reports, the NSA invented a vocabulary to describe their FISA-compliance (and perhaps FISA-like compliance practices) practices. e.g. "minimization", which means methods to prevent improper human examination of content of surveilled conversations. Also note that the NSA organization will have to work with future administrations, and grovel for funding (NOT a given) from Congress. The government is not a monolith.
Open questions are (A) the veracity of this information about these institutional practices (B) whether the NSA rebuffed the certain requests from the GWBush administration for improper, perhaps massive, domestic surveillance (C) what independent organizations like the FBI and CIA have done.

Posted by: Bill Arnold on July 8, 2008 at 4:50 PM | PERMALINK

Dammit, Kevin— you can be so dense sometimes.

It doesn't matter whether the NSA programs are tightly focused on catching terrorists or not. What matters is whether the raw data they're mining is available under the table to political operatives who are using it for criminal purposes. The only reason to resist the kind of oversight you put in place to prevent that from happening is to keep the channel from being shut down because you're relying on it for your own off-the-books purposes.

Why do we have to keep explaining simple crap like this to you all the damned time?

Posted by: s9 on July 8, 2008 at 5:03 PM | PERMALINK

even if their programs really are tightly focused on international terrorist activity today (and I think they are)

Not to pile on, but...oh, hell, I'll pile on. If that were true, why the hell is the Bush Administration working overtime to keep what it actually did a secret? Sheesh!

Posted by: Gregory on July 8, 2008 at 5:08 PM | PERMALINK

Most of the children of J. Edgar Hoover's generation did not ask their parents why the FBI was allowed to spy on politicians and people like Martin Luther King, Jr. without warrants, and most of the children of today's parents will not wonder why W. Bush was allowed to spy on Americans without warrants, either. Asking questions of those in authority is considered unpatriotic to many American children, who we can expect to be just as compliant as their parents.

Posted by: Brojo on July 8, 2008 at 5:09 PM | PERMALINK

I have tried to keep a close eye on the surveillance news. The instances of political spying that I can remember of the top of my head are:

  • Reports about FBI leak investigations going after the telephone call records of investigative journalists.
  • John Bolton requesting the names of the US government officials that were "minimized" (redacted) in NSA intercepts of US diplomatic communications.
  • Texas republicans using the dept. of "homeland security" and/or FAA to track down democrats who refused to vote on the Texas redistricting plan.
In the case of the amateurish database kept on peaceful protesters its important to realize this database was kept by units in charge of guarding military bases. Historically some disarmament activist have cut trough fences to try and damage stuff like bulletproof helicopters using ordinary hammers. If you imagine you are the guy who has spend many long cold nights patrolling the fences around military bases then: A. keeping an eye on peace-activist may appear reasonable since they are the ones who cut trough those fences the most. B. telling apart non-destructive and "direct action" peace-activists may not have been part of basic training and a plus in recruiting, to say the least. And C. Your ass is on the line if someone manages to to take a normal size hammer to a nuclear submarine that can withstand the pressures of the deep seas again. (Yeah, I know "forging plowshares symbolism" I get it. Now get out of that freezing water and convince some MSM talkingheads or voters!)

There is the question of why the IRS needs voter registration information, but there are plenty of above board explanations. There may have been something more behind passport-gate but I don`t think so.

In the whole political hiring, firing and prosecuting saga at DOJ websites, legal publications campaign contribution records and other public records appear to have been the biggest source of political information on people.

All in all its not as STASI like as one would expect seeing the "total information awareness" plans. Plans that were technically clearly unfeasible with any serious data quality. But that didn`t bother the inteligence contractors association (Mike McConnels old job). This is nothing like the terabyte that a private blackmail/inteligence operation inside telecom Italia collected on influential figures from politicians to corrupt soccer referees to central bankers messing with bank takovers to big names in fashion. That doesn`t make it any less illegal though.

But why would the GOP need STASI files when people pour their hearth out on their myspace pages and even the most obscure law-review articles available at ones fingertips in a way that would make Nixon drool? (You should read some of the myspace pages of young GOP loyal hacks in very key positions that would have been faceless a decade ago. Abstinence "education" is part of the party platform of these kids?)

I theorize this shows how serious Cheney, Addington and others are in their executive power expansion plans. It looks like they decided that they can never win battles to create new executive powers if they get caught in the same disgusting political abuse many of these very people where caught with under Nixon. That and Nixon campaigner Karl Rove has a lot of experience doing dirty dirty politics while staying somewhat in general sight of the legal lines, or at least not getting caught.

But on "national security" its hard to read about Addington and Cheney withouth thinking that breaking the law is the whole point of what they do. They want to get away with it and set the precedent that Nixon (And underlings) were right and that they would have gotten away with it if it wasn`t for the pesky detail that they abused these "executive powers" for crass political purposes. That combined all the effort to fix Bush 1`s "mistake" in Iraq makes me wonder if these guys have done anything but "fix" cold-war era "mistakes". Their biggest worry in Iraq was US voters realizing the extent of the war. Less troops equals less protest equals more "force projection opportunities" was Rumsfelds math.


I second the Bamford Citation by Bill Arnold and would add Matthew Aid and Cees Wiebes to the sources that suggest the NSA under Hayden was rather professional. I suspect Hayden went along, much like Colin Powell, because he figured people would get hurt if the job went to Monika Goodling. Especially US soldiers could be at risk. Soldiers he, like Powell, identifies with because of his history. (Sorry for that pop-psychology) Notice how Hayden has tried to protect the CIA interrogators rather than allow the white house to let all the torture blame roll down to them. Call it the right thing to do, call it the wrong thing to do, you can`t call it the politically expedient thing to do! Its the same with the Iran NIE`s. As long as the El Kibar intel turns out legit, which I suspect at least the Syria part will, then I cant think of a single instance of the guy accommodating the Cheney faction or sprouting the neoncon line.

Matthew Aid BTW mentioned an FBI source claimed the FBI aimed to have an informer in every mosque in the US. Its in a major centrist European newspaper. This would fit with all the cases where an informer tricks a bunch of idiots into recording suicide bomber videotapes in exchange for sneakers. Guantanamo prisoners have also claimed to have been offered to be let go if they became infiltrators in European Muslim communities.

What hasn`t made it into US papers yet is that US inteligence agencies have gotten bank records not just from SWIFT but directly from European banks without going trough one of the many legal channels. A simple unofficial request and a reminder that these banks need an account with the US treasury if they want to do transfers in dollars are all it takes.

Posted by: asdf on July 8, 2008 at 5:12 PM | PERMALINK

Also note that the NSA organization will have to work with future administrations, and grovel for funding (NOT a given) from Congress. Posted by: Bill Arnold

Actually, CIA, FBI and NSA budgets are pretty much rubber stamped. Unless they are looking for serious amounts of money (the escalation of the Afghan campaign against the Soviets), they rarely have to explain their spending because just a literal handful of people in congress, specifically the intelligence committee members, ever even get a peek at what any of the agencies are doing (a bit more than a peak, of course, with the FBI since it's primarily a police organization). In fact, the Bush administration has purposely shifted some missions to the military because it's budget is something of black hole and its range of operations less prescribed than the CIA's (see Seynour Hersch's piece in last week's New Yorker).

Posted by: Jeff II on July 8, 2008 at 5:12 PM | PERMALINK

What, aside from blind faith in the honesty of the Bush Administration, justifies this belief?

Two themes have been constant in the Bush administration: a complete disregard of the laws, internal rules, and customs that have traditionally limited the executive branch, and incompetence so massive that it's almost funny if you temporarily forget how much power these people have. It's possible that there are Republican moles deep in the NSA, performing domestic surveillance without the knowledge of their superiors. However, this would require a light touch and discretion that this presidency has never exhibited. Given the political implications of this type of abuse, it would be extremely hard to keep secret if any career bureaucrats found out. They sure haven't had any luck keeping other secrets.

there can only be one reason they never wanted this massive spying operation to go the warrant route

No, there's another excellent reason: the administration cares more about proving that it has the right to do anything it wants than it does about protecting the American people. As Glenn Greenwald pointed out, there's basically no doubt that if Bush had simply asked Congress to weaken FISA after 9/11, he would have gotten exactly what he wanted. He didn't do this, because it was more important to give Congress the finger. These are the same idiots who were willing to fight all the way to the Supreme Court for the power to imprison an American (Yasser Hamdi) whom they knew wasn't a threat, and had no intention of prosecuting.

If that were true, why the hell is the Bush Administration working overtime to keep what it actually did a secret?

The same reason they go out of their way to turn down FOIA requests (for stupid shit where they haven't even done anything illegal) and invitations to testify before Congress: because it believes that the executive branch should be exempt from legislative or judicial oversight. This is the culmination of Dick Cheney's entire career.

Posted by: Nat on July 8, 2008 at 5:25 PM | PERMALINK

--but even if their programs really are tightly focused on international terrorist activity today (and I think they are)

After seeing what Bush was doing to the DoJ I don't see how anybody can say that. This President and VP were very much into control of everything, even now the GOP votes so straight that it's as if the only constituency they have is Bush and Cheney.

This Administration has operated by threats - AND FISA only came about BECAUSE we could see the evidence back in the Nixon era but Bush doesn't cooperate so congress has no idea. We have to see the evidence AND this wiretapping started BEFORE 9/11 anyhow - when terrorism, at least according to interviews by the 9/11 commission showed that Bush, Ashcroft didn't take terrorism seriously. Bush didn't use FISA, didn't ask congress for something updated - WHY - yeah, I think Bush was very self-serving in his agenda? I think we have to find out.

Posted by: Me_again on July 8, 2008 at 5:32 PM | PERMALINK

(and I think they are)

Kevin, have you considered a job in comedy writing? That was just brilliant.

Posted by: Crust on July 8, 2008 at 5:35 PM | PERMALINK

(and I think they are)

Because if there's one thing criminals with a penchant for extreme secrecy deserve, it's the benefit of the doubt.

Posted by: Crust on July 8, 2008 at 5:38 PM | PERMALINK

(and I think they are)

Kevin, I hope you enjoyed your nap. By the way, the year is now 2008 and the President is now George W. Bush not his father George H. W. Bush.

Posted by: Crust on July 8, 2008 at 5:43 PM | PERMALINK

(and I think they are)

I'm sure that Comey and Ashcroft took on Gonzales in that hospital room standoff over a program "tightly focused on international terrorist activity". How could it be otherwise?

Posted by: Crust on July 8, 2008 at 5:52 PM | PERMALINK

A decade or two from now, a 21st century version of the Church Commission will write this story for the second time and our children will wonder how we let it happen. I sort of doubt that we'll have a very good answer.

They pass this bill, it'll just show that the Church Commission just did work well enough for the corporations need to control what party is in office. I've no doubt that AT&T and Verizon much prefer Repugs. It's just like paperless voting machines and stack DoJs.

Freedom lost usually requires a bloodbath to get it back - Martin Luter King, jr., certain stated as much after people told him to simply wait on equal rights. We lose control of wiretapping and the control simply goes to whomever is in office. Bush won't give it up, Obama won't either.

No thanks, I want this bill defeated now because it will never be revisited again. It's not coming back at all.


Posted by: Me_again on July 8, 2008 at 5:53 PM | PERMALINK

The answer is obvious.

Because the liberals and others in positions to influence were derelict in their duty to vociferously oppose the wholesale violation of existing laws.

I am sure that Mr. Drum is aware of the answer but does not want to admit it.

Posted by: gregor on July 8, 2008 at 5:55 PM | PERMALINK

(and I think they are)

Of course. There's no way in the weeks and months after 9/11 that Congress would have agreed to amend FISA to accommodate a program "tightly focused on international terrorist activity". Hence the need to break the law instead.

Posted by: Crust on July 8, 2008 at 5:56 PM | PERMALINK

Let's face it, when people can do something, even if they're not supposed to, sooner or later some of them will do it. That's why we're supposed to have accountability and checks and balances. Give people power, technology and immunity from oversight and by golly, some of them will do bad things. When those people are people with the track record of this administration, I have to ask Kevin why he thinks the worst hasn't been happening for the last seven-plus years. It's impossible to underestimate the bad intentions, bad faith, ill-will and incompetence of this administration and Kevin should know that.

Posted by: jrw on July 8, 2008 at 5:58 PM | PERMALINK

(and I think they are)

You are surely right that the program is "tightly focused on international terrorist activity". Just as the Bush administration "does not torture". And released Gitmo inmates who wrote Op-Ed's for the New York Times and participated in anti-Bush films "returned to the battlefield" by doing so.

Posted by: Crust on July 8, 2008 at 5:59 PM | PERMALINK

(and I think they are)

After all the War in Iraq is just a "tightly focussed" operation. Why should this be any different?

Posted by: Crust on July 8, 2008 at 6:02 PM | PERMALINK

Nothing these clowns have done smacks of responsible behavior. They claim to be above any law. I am more and more inclined to believe the worst about 9-11 since they began this illegal spying process before it happened--almost to ensure no one was on to THEM. They are covering their asses on a lot of things. Kevin: you are blogging scared. Still. That says a lot about the new ex post facto law under consideration.

Anyway: the new FISA law is unconstitutional on many grounds, and a waste of our time. Except they want to have something to hide behind. And something to threaten us all with until they are jailed or gone from the scene.

Posted by: Sparko on July 8, 2008 at 6:04 PM | PERMALINK

(and I think they are)

Of course. That's why the new powers in the FISA bill and the telco immunity provisions are "tightly focused on international terrorist activity". Oh wait...

Posted by: Crust on July 8, 2008 at 6:08 PM | PERMALINK

The Bush administration isn’t the only one that can eavesdrop without a warrant. There are many who do this for recreation.

Just sayin.

Posted by: Just Listening on July 8, 2008 at 6:08 PM | PERMALINK
According to reports, the NSA invented a vocabulary to describe their FISA-compliance (and perhaps FISA-like compliance practices) practices. e.g. "minimization", which means methods to prevent improper human examination of content of surveilled conversations.

I wouldn't trust the reports if that is an example they cite: “minimization” is not a term NSA invented to describe its FISA-complaince activities. From the FISA statute (at 50 USC § 1801(h)):

“Minimization procedures”, with respect to electronic surveillance, means—
  1. specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
  2. procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
  3. notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
  4. notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
Posted by: cmdicely on July 8, 2008 at 6:12 PM | PERMALINK

Nat:

They sure haven't had any luck keeping other secrets.

They haven't had any luck keeping the secrets that we know about. That, my friend, is a tautology.

They did manage to keep some of those secrets for a remarkably long time, though. Consider the whole signing statements story. That was literally a matter of public record, but the story didn't break to the public until Charlie Savage found it years after it started. And he apparently found it by looking at those public records, not from any insider tip.

Posted by: Crust on July 8, 2008 at 6:14 PM | PERMALINK
It's possible that there are Republican moles deep in the NSA, performing domestic surveillance without the knowledge of their superiors. However, this would require a light touch and discretion that this presidency has never exhibited.

Its also possible that the Bush appointee running NSA is conduction domestic surveillance with the full knowledge of his superiors (i.e., the Secretary of Defense and the President), which wouldn't have those requirements you see as atypical for this administration.

Posted by: cmdicely on July 8, 2008 at 6:19 PM | PERMALINK

Let's get off Nixon as the whipping boy. He was probably a Puritan compared to LBJ and his voyeuristic bugging of Martin Luther King's bedroom escapades, or JFK's connections with the Chicago Outfit that got him over the hump in the election v. Nixon. The lib press gave JFK a pass as a fellow lib and went after Nixon because he was more conservative.

Imagine what the lib media would have done to Nixon if he had shared Sam "Momo" Giancana's girlfriend, Judith Exner, or allegedly used Chicago Mafia muscle to silence cuckolded husbands, and so forth.

Posted by: Luther on July 8, 2008 at 6:30 PM | PERMALINK
A decade or two from now, a 21st century version of the Church Commission will write this story for the second time and our children will wonder how we let it happen. I sort of doubt that we'll have a very good answer.

I think its pretty clear that enablers saying things like "if their programs really are tightly focused on international terrorist activity today (and I think they are)" without any good reason will be part of "how we let it happen", though I agree that there won't be a very good answer.

Posted by: cmdicely on July 8, 2008 at 6:31 PM | PERMALINK

ECHELON is the name for a specific type of VAX computer used to analyze satellite traffic.... that was of course back in the day of VAX computers and lots of satellite traffic. If someone uses it to describe entire NSA or other sigint surveillance networks thats a good hint that this person is reading popular stuff rather than detailed and accurate stuff. Try James Bamford, Matthew Aid Cees Wiebes and declassified documents.

Magic lantern should not scare everyone who practices basic email hygiene.

Carnivore should not scare anyone who knows GPG and S/MIME. Both can be used for free and with close to every e-mail client. Just create some keys have your friends do the same and start signing keys and encrypting e-mails. (try cacert.org for web of trust S/MIME certs)

Posted by: asdf on July 8, 2008 at 6:38 PM | PERMALINK

Kevin concludes: "A decade or two from now, a 21st century version of the Church Commission will write this story for the second time and our children will wonder how we let it happen. I sort of doubt that we'll have a very good answer."

To become more critical than CMDicely at 6:31, we'll have all sorts of good answers in terms of explanatory value, such as:

1. Many enablers (right on, CM) giving Obama a pass;
2. Many "liberals" still blindly believing in the two-party duopoly every two or four years;
3. Democratic leadership continuing to whore after PAC and Big Biz dollars, including the Obama who a href="http://socraticgadfly.blogspot.com/2008/07/four-myths-of-obama-campaign-finance.html">non-idealistically opting out of public campaign financing.

No, as far as explanatory power, there will be plenty of "good" answers.

Unfortunately, as far as the wisest, or "best and brightest" political governance, valuing of civil liberties, etc., there will be a bunch of shitty answers.

And, most enablers will probably claim, during the second "Church Commission," to be innocent of ever having been enablers.

(If we're lucky enough to have a second "Church Commission," Kevin.)

Posted by: SocraticGadfly on July 8, 2008 at 6:41 PM | PERMALINK

Boy, my day to miscopy or mis-paste HTML for hyperlinks:

Here's more about Obama who is non-idealistically opting out of public campaign financing.

Posted by: SocraticGadfly on July 8, 2008 at 6:44 PM | PERMALINK

Boy, my day to miscopy or mis-paste HTML for hyperlinks

Highly doubt anyone ever notices a non-working link to your blog.

Posted by: on July 8, 2008 at 6:57 PM | PERMALINK

I wouldn't trust the reports if that is an example they cite: “minimization” is not a term NSA invented to describe its FISA-complaince activities. From the FISA statute (at 50 USC § 1801(h)):
Mea culpa then - I'd forgotten about the FISA statute language and my copy of Bamford is packed for a move. It still feels like an agency usage, sort of semi-mathematical jargon. Does anyone who knows care to share the history of this and similar language?

Actually, CIA, FBI and NSA budgets are pretty much rubber stamped.
If there are serious inquiries at the Congressional level (e.g. another Church Commission), open-ended NSA funding will not be a given.


Posted by: Bill Arnold on July 8, 2008 at 7:10 PM | PERMALINK

If there are serious inquiries at the Congressional level (e.g. another Church Commission), open-ended NSA funding will not be a given. Posted by: Bill Arnold

That's an awfully big "if."

Give the character of the current Congress, we won't be seeing any "serious inquiries." For one thing, as someone mentioned above, there haven't been any blow jobs, just measly crimes against humanity.

Posted by: Jeff II on July 8, 2008 at 7:32 PM | PERMALINK

Bill Arnold @ 3:42 PM wrote - "It's only the institutional history of NSA that makes this plausible...".
The question has now become: what is done with the "non-target" intercept that is really accidentally swept up in the process of intelligence gathering? Formerly it was deleted/destroyed; is that what is happening to it now? Or has some office has been established just to "re-check" this intercepted material before it is deleted in order to make certain that "nothing of value" has been missed? NSA, unfortunately, has enough employees, and is spread out enough physically, that it shouldn't be that difficult to hide something in plain sight.
Assuming, of course, that anyone would want do something such as that...

Posted by: Doug on July 8, 2008 at 7:53 PM | PERMALINK

"Its also possible that the Bush appointee running NSA is conduction domestic surveillance with the full knowledge of his superiors (i.e., the Secretary of Defense and the President), which wouldn't have those requirements you see as atypical for this administration."

Posted by: cmdicely on July 8, 2008
------------

It seems VERY likely Hayden was doing his all for el residente and got promoted to DCI for that.

But, just who is the NSA director now? Was he confirmed by this Dem-controlled Senate or before 2007? Is he/she a Bushie or just a career NSAer?

Posted by: MarkH on July 8, 2008 at 8:00 PM | PERMALINK

How did Spitzer come under surveillance again? I seem to remember a couple of different stories and neither quite made sense.

Posted by: B on July 8, 2008 at 8:08 PM | PERMALINK

Any bill signed into law can be challenged in Federal Court. It takes the proper paperwork but a new law can be blocked from taking effect - any new law.

The FISA legislation currently waiting for Senate approval is unconstitutional; No law can be made by congress that can trump Constitutional Amendments, such as the 4th Amendment; or even infringe on an amendment.

The next proper step as soon as Bushie boy signs the FISA bill into law is simply walk over to a Federal Court and start the process to halt the law from having any effect on any lawsuit now in Federal Court.

If the ACLU is a professional organization they will have the paperwork at the ready to stop the law from going into effect.

Congress is simply being stupid.

Now your task is to be smarter than congress.


Posted by: James on July 8, 2008 at 8:17 PM | PERMALINK

How did Spitzer come under surveillance again? I seem to remember a couple of different stories and neither quite made sense. From memory,
the story was that Roger Stone told the FBI about Spitzer's call girl habit, hearing about it in a Miami sex club (I have not read the New Yorker article). That the FBI claimed Roger Stone's story had nothing to do with the investigation which was about possible money laundering. However, there were a fair number of largish money transfers involved, conduct which is likely to attract unwanted attention even if you're not a political player.

There still isn't a good story about why Joe Bruno (the NY State Senate (Republican) majority leader) decided to quit recently to spend more time with family and grandchildren. I suspect with zero evidence that it was payback for the (Republican?) downing of Spitzer, but perhaps it was just an already-ongoing investigation, or perhaps he truly just wants to spend more time with family.

The new NY State governor (Patterson) preempted a possibly similar issue by admitting that both he and his wife had affairs a few years ago then patched up their marriage.

Posted by: Bill Arnold on July 8, 2008 at 8:36 PM | PERMALINK

asdf: Try James Bamford, Matthew Aid Cees Wiebes and declassified documents.
Do you recommend any particular books or articles by Matthew Aid/Cees Weibes? Of particular interest would be stories/analysis about the relationships between U.S. intelligence agencies and the presidential administrations, and about inter-agency relationships.


Posted by: Bill Arnold on July 8, 2008 at 8:50 PM | PERMALINK

> Why in the world would you assume this? What
> has the Bush administration done over the last
> seven years that suggests that they aren't doing
> whatever the fuck the want to do if for no other
> reason than they can?

John Bolton let slip that he was using NSA intercepts to track his (and therefore presumably Cheney's) opponents in the State Department, so I don't think there can be any question that this material is being used for partisan Republican political purposes.

Cranky

Posted by: Cranky Observer on July 8, 2008 at 9:26 PM | PERMALINK

John Bolton let slip that he was using NSA intercepts to track his (and therefore presumably Cheney's) opponents in the State Department,

You're referring to stories like this?


"The NSA ended gave its raw data to then Under Secretary of State for Arms Control John Bolton on at least 10 different occasions since 9/11. Bolton, nominated by Bush to be US ambassador to the United Nations, let slip during his confirmation hearings in April that he asked the NSA to unmask the identities of the Americans blacked out in the agency's raw reports, to better understand the context of the intelligence."

That they so willingly unredacted the identities for somebody like Bolton is a breach, but at least the raw reports had redacted identities for the Americans involved, if we believe the story.


Posted by: Bill Arnold on July 8, 2008 at 9:52 PM | PERMALINK

*

Posted by: mhr on July 8, 2008 at 10:15 PM | PERMALINK

Of course they are violating the law, the intent of the law, and every American's expectations about their government's respect for the Constitution. These are people who believe that they are above the law, believe that the government exists to enrich them and their cronies, and believe that winning crookedly is a mark of personal strength. Good lord, they torture for the fun of it.

Posted by: Eric on July 9, 2008 at 8:59 AM | PERMALINK

They (the govt.) have been able to do whatever they want to whomever they want for years, and they will continue to do so, no matter who's in Congress or in the White House (or as Whoopie Goldberg calls it, the "Caucasian House").

Posted by: bigapplegeorgiapeach on July 9, 2008 at 9:56 AM | PERMALINK

That they so willingly unredacted the identities for somebody like Bolton is a breach, but at least the raw reports had redacted identities for the Americans involved, if we believe the story. Posted by: Bill Arnold

Jeez, Bill. Either you're trolling for Kevin or Santa Claus, the Easter Bunny and the Tooth Fairy all get together at your place on Fridays for poker.

Posted by: Jeff II on July 9, 2008 at 10:52 AM | PERMALINK

our children will wonder

The Petraeus Generation will not be wondering about warrantless searches and other lost constitutional rights.

Posted by: Brojo on July 9, 2008 at 11:54 AM | PERMALINK

Jeez, Bill. Either you're trolling for Kevin or Santa Claus, the Easter Bunny and the Tooth Fairy all get together at your place on Fridays for poker.
Of course there were and continue to be abuses. With this administration, that's a given. The burningly interesting questions are (a) how severe the abuses were/are, and (b) the level of pushback from professional career employees. The release of (parts of) the NIE on Iran makes it clear that the Cheney wing ("4th branch") is not in control.

Posted by: Bill Arnold on July 9, 2008 at 11:56 AM | PERMALINK

And I suppose that, in ten or fifteen years, after a nuke goes off in some big city in the US, we can listen to all the blathering about how the Government failed "to connect the dots."

First you have to find the dots. That's what counter-intelligence is all about. It's not about finding evidence of a crime. It's not about probable cause. It's about pulling strings on a big ball of string, and following where they go.

If you are suspicious of the FBI (and there are good reasons to be suspicious of the FBI), maybe we should follow the British model: empower a separate counter-intelligence service with broad "spy" powers but no powers to arrest or charge.

Posted by: DBL on July 9, 2008 at 2:42 PM | PERMALINK

The best way to protect America from a rogue nuclear attack is to stop killing innocent peoples in other nations. Sweden and Uruguay are not worried about rogue nuclear attacks because they do not enslave and colonize other nations.

Posted by: Brojo on July 9, 2008 at 4:24 PM | PERMALINK




 

 

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