Can right-wingers read? Pt. 2

The recently released inspectors general report on Bush's warrantless surveillance programs had almost nothing positive to say about them or John Yoo, who provided specious legal justifications for those programs on demand. Today Yoo lashes back at the inspectors in a Wall Street Journal op-ed. His matrix of illogic is so dense that the piece appears to be intended to make your eyes bleed. In the interest of public welfare, I'll supply a summary:

Shorter John Yoo: I don't understand the Foreign Intelligence Surveillance Act of 1978. And neither do you.

There are so many deplorable gaps and misstatements (as with his many Bush-ear OLC opinions) that the question naturally arises: Can John Yoo read?

Yoo doesn't understand the clear meaning of the FISA law or how it was updated since 1978.

Yoo isn't aware that the FISA law came into existence in 1978, long after Franklin Roosevelt's death.

Yoo makes a constitutional argument without displaying any apparent awareness of the text of the Constitution.

Yoo doesn't understand what was at issue in Youngstown v. Sawyer, with its landmark ruling by the Supreme Court on the balance between Congressional and Presidential power.

Yoo quotes from but evidently hasn't read the Federalist Papers.

Yoo hasn't even read what he himself wrote about the Patriot Act in 2003.

Traditionally it has been John Yoo's writings that have evoked horror and disgust. But the deeper problem appears to be Yoo's reading ability.

The weaknesses of the FISA inspectors general reports

In my recent post highlighting aspects of the newly declassified version of the report about Bush's warrantless surveillance, I took it for granted that the inspectors general produced a thoroughly inadequate overview of the programs. Perhaps I shouldn't have left that unsaid.

One year ago almost to the day I predicted that any such FISA investigations by the intelligence agency inspectors general would be hobbled and blinkered, and would result in reports that have little merit. That commentary is still worth reading. One thing to add to it, now that we've seen the first such IG report: Two of the five inspectors involved (for CIA and DoD) are in fact "Acting" inspectors general – which makes their independence and authority all the shakier.

No surprise then that practically everything that matters is treated poorly or not at all in the unclassified version of the IG report.

It tells us nothing about which topics the inspectors general wished to but were unable to investigate adequately.

It tells us virtually nothing about the most controversial "Other Intelligence Activities" (which even Bush's own DoJ lawyers rebelled against in 2004). It tells us nothing about whether any or all of these programs were illegal. Nothing about why DoJ officials concluded that many of the programs were illegal. Nothing about what pressure if any was brought on government lawyers to produce opinions testifying to the programs legality. Almost nothing about why John Yoo was given carte blanche to whip out such opinions, without any oversight in the OLC.

It tells us very little about who was responsible, and by what steps, in the creation of seemingly illegal surveillance programs.

It tells us nothing about who was being surveilled, or how, or how often, or how many people were affected. Nothing about how many purely domestic communications were intercepted. Nothing about whether legally privileged or business or personal or political or journalistic communications were intercepted. Nothing about increases or decreases or other changes in the programs over time.

It tells us nothing about what the cooperating telecoms knew, or how willingly they cooperated.

It tells us very little about how much new and actionable intelligence these seemingly illegal programs produced. It tells us little about how much 'poisonous fruit' ended up befouling terrorism prosecutions being brought by the FBI.

And it doesn't seem to make any attempt to assess whether the statements made about the programs by Bush administration officials were on the whole accurate.

crossposted at unbossed.com

IG report on Bush's warrantless surveillance program

The shameful FISA 'modernization' law passed by Congress last July, which retroactively legalized the egregiously illegal (and still mysterious) electronic surveillance of Americans instituted by George Bush, had at least one modestly useful provision: It required the inspectors general of the DoD, DoJ, NSA, CIA, and ODNI to produce a report on the history and scope of the secret Bush surveillance. The unclassified version of the IG report has now been made public (PDF).

It tells us few details about the surveillance programs and its conclusions are so tame as to be risible. On the other hand, it does contain some food for thought.

First, very strikingly, several top Bush administration officials refused to be interviewed by the inspectors general for this report. The IG investigation was mandated by Congress in exchange (it was a terrible 'bargain') for permitting the lawlessness of the Bush surveillance programs to be swept under the carpet permanently. But the following key figures in the White House, the DoJ, and the CIA gave the inspectors general the brush off: Andrew Card (Bush's Chief of Staff); David Addington (Cheney's CoS and Counsel); John Ashcroft (AG); John Yoo (DoJ's Office of Legal Counsel); and George Tenet (CIA).

Second, the report acknowledges what many of us surmised in 2007 from circumlocutions used by Alberto Gonzales in testimony to the Senate Judiciary Committee - that what Bush termed the 'Terrorist Surveillance Program' (the interception of international communications into the US by suspected Al Qaeda operatives) constituted only one of the warrantless surveillance programs that Bush was authorizing without seeking permission from the FISA Court. The IG report lumps all of Bush's other warrantless programs, essentially mysterious to us, under the rubric "Other Intelligence Activities". Together the TSP and the OIA are termed the "President's Surveillance Program" (PSP).

The inspectors general tell us nothing substantive about these "Other Intelligence Activities". Their report does however note that when John Yoo's legal memos (see below) were reviewed in 2003 by DoJ officials Jack Goldsmith, Patrick Philbin, and James Comey, they were found to be particularly weak in regard to justifying the "Other Intelligence Activities".

Third, it's worth emphasizing that the repeated presidential authorizations for warrantless surveillance programs, for years on end, were made under a presidential assertion that a more or less permanent state of emergency existed. The Justice Department's Office of Legal Counsel did its part in undermining the Constitution by holding, again and again, that the existence of a threat of terrorism within the United States made warrantless surveillance "reasonable" under the Fourth Amendment. The 'evidence' for such a permanent threat, assembled regularly by the CIA, consisted in part of the surveillance that had already been conducted without warrant. In other words, it was a self-perpetuating cycle.

The Presidential Authorizations were issued at intervals of approximately every 45 days. As described in the next section, with each reauthorization the CIA and later the NCTGC prepared an assessment of current potential terrorist threats and a summary of intelligence gathered through the PSP and other means during the previous authorization period. The Department of Justice's Office of Legal Counsel reviewed this information to assess whether there was "a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to [continue] to authorize the warrantless searches involved" in the program. The Office of Legal Counsel then advised the Attorney General whether the constitutional standard of reasonableness had been met and whether the Presidential Authorization could be certified "as to form and legality." Each of the Presidential Authorizations included a finding to the effect that an extraordinary emergency continued to exist, and that the circumstances "constitute an urgent and compelling governmental interest" justifying the activities being authorized without a court order.

Fourth, Alberto Gonzales opined to the inspectors general that the involvement of the Justice Department in this legal sham every 45 days was important because (a) it helped to convince the private telecoms to go along with programs that violated the clear letter of the law, and (b) it would help in the event of future investigations into those involved in implementing the illegal programs.

[Alberto Gonzales] also stated that it was important that the cooperating private sector personnel know that the Attorney General had approved the program. In addition, Gonzales said that for "purely political considerations" the Attorney General's approval of the program would have value "prospectively" in the event of congressional or inspector general reviews of the program.

Fifth, from 2001 to May 2003 John Yoo was the only person at the Office of Legal Counsel, and one of only three non-FBI personnel at the Justice Department, to be read into the warrantless surveillance programs. Yoo's nominal supervisor at OLC, Jay Bybee, was kept out of the loop and had "no idea" how his deputy John Yoo drafted the OLC memos that (according to Gonzales) gave "a sense of legitimacy" to the programs. Those memos were of course scandalously incompetent, a fact that caused consternation at OLC after Yoo's departure.

Sixth, the lawyers got involved in generating opinions in support of the legality of the programs only after Bush had begun authorizing them in October 2001. That was when Attorney General Ashcroft was read into the program, and the same day he authorized it. At OLC, John Yoo did not produce his first memo supporting the legality of these warrantless surveillance programs until November 2, 2001. The NSA lawyers as well were kept out of the loop until after Bush authorized the program in consultation with NSA Director Hayden – at which time the NSA lawyers dutifully "supported the lawfulness of the resulting program".

Seventh, George Bush's account of the genesis of the warrantless surveillance is definitively shown to be false (as I had surmised here two years ago). After the controversial programs became public, Bush tried to portray himself as an innocent bystander in their development. Bush wanted voters to believe that he'd merely implemented something that the NSA Director had wanted to do.

The spying that would become such a divisive issue for the White House and for General Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.

"Is there anything more we could be doing, given the current laws?" the president later recalled asking.

General Hayden stepped forward. "There is," he said, according to Mr. Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.

By all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

Well, not quite all accounts. At the time this NYT report appeared, I commented that it was incoherent because its sources tried to portray Cheney –improbably - as doing little more than cheerleading on behalf of Hayden's initiative. More likely, I thought, the pressure for warrantless surveillance programs came from Cheney first, and Hayden eventually bowed to the pressure.

The new IG report confirms that my interpretation of events was right (from page 5):

In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP [President's Surveillance Program].

Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities.

So, the IG report has nothing about a dramatic face-to-face meeting between Bush and Hayden. Instead, Tenet was sent to pressure Hayden to have the NSA do more, and we can infer that Hayden responded that he would expand surveillance if he received explicit authorization.

This section of the history of the programs is critical, but notice how briefly and vaguely the inspectors general treat it. In particular, nobody is identified as having sent Tenet to talk to Hayden. Tenet merely chats with Hayden "on behalf of the White House". Who in the 'White House'? We're not told, and that fact speaks volumes I think. It was Cheney, and the inspectors general don't care to say so at least in their unclassified version of the report.

Eighth, much of the declassified IG report is devoted to a detailed narrative of how lawyers at the post-Yoo Justice Department refused to continue backing the surveillance programs in March of 2004. Little here appears to be new, though I do not remember knowing that after Bush reauthorized the programs without DoJ concurrence, FBI Director Mueller told Bush that he would remove the FBI from participation in the programs. Mueller also threatened to resign if Bush required the FBI to continue participating in the program.

Ninth, in 2006 the Justice Department's Inspector General investigated the value to the FBI of the intelligence generated by the warrantless surveillance programs. As referred to in this combined report, the classified 2006 study appears to have found that the programs generated lots of useless 'leads' and relatively little of any value (it "concluded that although PSP-derived information had value in some counterterrorism investigations, it generally played a limited role in the FBI's overall counterterrorism efforts").

Meanwhile Michael Hayden as CIA director, and some of his immediate subordinates, have touted the importance of PSP-derived information in CIA activities. However the Inspector General for the CIA found that the CIA was not tracking the information it received in such a way as to be able to substantiate such claims about its importance. CIA officials also told the Inspector General that much of the PSP-derived information was "vague or without context", rendering it of little use.

Tenth, the DoJ Inspector General's report found that Alberto Gonzales' testimony about the warrantless surveillance programs to the Senate Judiciary Committee was "confusing, inaccurate, and had the effect of misleading" those who hadn't been read into the program. Gonzales falsely told the Committee that the March 2004 dispute between the DoJ and the White House was unrelated to the "Terrorist Surveillance Program" whose existence Bush had acknowledged. Gonzales also falsely said that DoJ lawyers had no concerns about that program's legality.

Rather bizarrely, however, the DoJ Inspector General's report concluded that Gonzales "did not intend to mislead Congress".

crossposted at unbossed.com

Criminal neglect

No doubt by now you've seen the reports that say New Orleans is the city with the highest crime rate in America, with 19,000 reported crimes in 2007 according to FBI statistics. Among large cities, the three with the worst crime rates reportedly were Detroit, Baltimore, and Memphis, in that order.

Proverbial damned lies and statistics. These rankings are calculated based on just 6 categories of crime (murder, rape, robbery, aggravated assault, burglary and auto theft). Hence they neglect most categories of crime and in particular many of the most severe kinds of criminal activity. If these were included, one city would stand head and shoulders above the others in its single-minded devotion to criminal enterprises: Washington, DC.

What sorts of major crimes have been excluded from consideration? For starters, all manner of war crimes – things like invading a sovereign country without justification and then neglecting its internal security, killing or driving into exile millions in the process. That's a criminal enterprise on a vast scale, isn't it? All of it headquartered in Washington.

But that's just the beginning of the list, whose outer limits are unknown and probably unquantifiable. For example, the illegal electronic surveillance of Americans without warrant by the NSA - and who knows how many other federal agencies - very probably affects tens of millions of us. But the White House won't fess up and the FBI and Congress refuse to investigate so we're left to guess how many crimes have been perpetrated in this category. Of course some haters of liberty would not want to press charges anyway, but plenty of others would leap at the opportunity to put the criminals behind bars.

If violating the wiretap laws isn't considered sufficiently felonious in your household to merit much concern, then consider instead the crime of torture. At least 775 prisoners have been locked up in Guantanamo Bay prison during the last few years, every one of them subject to extensive and prolonged tortures. But an untold number of prisoners have been abused in other sites around the world as part of a criminal conspiracy directed from Washington. Torture's pretty big as felonies go, isn't it?

As for the lesser crimes committed by this same gang, they too may be beyond count. Who can really say how many documents they've destroyed or concealed, in the attempt to obstruct justice, just with regard to their torture network? And the tally for subpoenas they've flouted has been limited only by the number that were served on them.

But you know all this. I call it to mind because of the very misleading statistics I began with, which apparently exclude torture and a variety of related white collar crimes. If included, they would qualify Washington as the crime capital of the country - for several years running. By extraordinary coincidence, those statistics are compiled by the very same cabal's self-styled "Justice Department". Not only does it not maintain a tally for torture and such crimes, but neither does it seek to prosecute for them.

Which brings me to a subject much discussed in recent weeks. Any number of news reports have passed along a viewpoint being expressed by anonymous advisers to president-elect Obama. It would be inadvisable to prosecute the really big criminals in Washington, the sources will have us to know, so we should anticipate that they'll be let off the hook for all their crimes - even or especially the most egregious ones.

It's an argument from expediency. Prosecutions of well-connected criminals would prove unpopular seems to be the gist of it. There's also a second argument from expediency being circulated: that Obama won't be able to concentrate on his own agenda if he wastes time prosecuting torturers and such. Cleaning up the crime wave in Washington forms no part of Obama's agenda, these anonymous types would have us believe.

On the face of it, their suggestion is preposterous. Prosecuting federal criminals is part of the presidency, a job Obama has been seeking for two years. If the president refuses to do it, there is nobody else who can take it on. It's not a prerogative, it's a duty. These advisers seem to be implying that Obama can't walk and chew gum at the same time.

Instead, they've been promoting the idea that a body such as the 9/11 commission ought to investigate the criminals thoroughly and then just maybe do nothing to hold them accountable. You remember the 9/11 commission, the one that decided as soon as it convened "not to play the blame game". The anonymous sources have also been promoting specific proposals that Obama create a new set of kangaroo courts to try some of the torture victims and a new legal status, "preventive detention", to keep other victims locked away without trial. The purpose would be to prevent that unpleasant discovery process from exposing awkward facts in open court about crimes that might not be expedient to prosecute.

The kangaroo court idea quickly was taken back off the table by Obama after the suggestion provoked outrage. Yet it's tempting to conclude, as many have, that his advisers have fanned out under instructions to use the media to tamp down public expectations that the worst crimes will be punished as crimes. Because to fail to do that would be such a betrayal of the rule of law that one could hardly be expected to swallow it without the ground being prepared carefully in advance. And on the other hand, to let on that such a betrayal is in the works without any authorization from the president-elect would be, well, presumptuous.

But on the whole, I don't see much sense in the theory that the next president truly intends to let all these criminals off the hook. For one thing the legacy of lawlessness becomes permanent if such crimes are put off limits now. How unseemly would that be? It might lower the crime rate in Washington, true, but only because nobody's allowed to count a whole range of what used to classed as crimes. The pretense that they're really crimes sooner or later will have to be dropped.

And the criminals themselves, what will they get up to next?

But more's the point, you'd have to assume that legal chaos would ensue if laws of the utmost gravity go unenforced. For how could the government legitimately prosecute lesser crimes in the future if greater ones get written right off? It would be criminal neglect on a grand scale.

And if the criminal code starts to crumble, why should anybody assume the rest of the legal code would remain intact? Are contracts any longer enforceable if criminal laws are not?

Hmm...those anonymous advisers don't seem to have mentioned it yet, but could a cancellation of debts be in the works? As long as the next president is hollowing out the law as a favor to big time criminals, there ought to be something in it for all the rest of us. And come to think of it, I'm getting awfully tired of paying that mortgage.

How about it then, an amnesty for everyone and everything? That way we all win.

crossposted at unbossed.com

Whistleblowers expose truth of illegal NSA eavesdropping on Americans

Today ABC reports that the NSA warrantless surveillance program is every bit as far-reaching as critics have always predicted it would turn out to be. Independently of each other, two whistleblowers from the military assigned to help with the spying since 2001 have described it as obnoxious in the extreme. The revelations will be detailed in Jim Bamford's latest book on the NSA, The Shadow Factory, to be published next week. The whistleblowers say that telephone calls back home of Americans living or serving in the Middle East are listened to and recorded willy nilly - without any regard for their content or whether the victims of the spying present any sort of threat of terrorism. Among the victims of spying were military personnel stationed in Iraq, journalists, and humanitarian workers. Even intimate calls to spouses were recorded (and passed around among those monitoring them, who treated the program as if it were a lark).

When the illegal spy program was exposed, George Bush and members of his administration, including the former head of NSA Michael Hayden (now CIA Director), denied that it involved calls made by Americans overseas. Bush declared on May 11, 2006:

I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.

In other words, if al Qaeda or their associates are making calls into the United States or out of the United States, we want to know what they're saying.

...the privacy of ordinary Americans is fiercely protected in all our activities. We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates.

Unsurprisingly that turns out to be false. It's worth emphasizing that the Bush administration's denials turned out to be false right across the board: that the NSA eavesdrops upon purely domestic calls; that the NSA uses a "driftnet" rather than targeting a narrow group of suspected terrorists; that the NSA was storing vast amounts of data from domestic surveillance and poring through it with data-mining programs in the manner of the prohibited Total Information Awareness.

Say hello to Big Brother.

Here's part of the ABC report, which should be read in full:

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

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

She said US military officers, American journalists and American aid workers were routinely intercepted and "collected on" as they called their offices or homes in the United States.

Big Brother is in full denial...while reading over your shoulder:

A spokesman for General Hayden, Mark Mansfield, said: "At NSA, the law was followed assiduously. The notion that General Hayden sanctioned or tolerated illegalities of any sort is ridiculous on its face."

The director of the NSA, Lt. General Keith B. Alexander, declined to directly answer any of the allegations made by the whistleblowers.

Congress should do more than demand answers from Michael Hayden. It should ensure that he is put on trial for perjuring himself in testimony before Congress in May of 2006 in which he insisted the surveillance program was legal; said the NSA abided by the standard of "probable cause" when determining whether to intercept calls, while employing a standard of "reasonableness" (this was of course a nonsensical contradiction); and denied that it intercepted calls by Americans abroad or was anything other than "narrowly focused" on al Qaeda and terrorist organizations.

But, then, Congress also should have impeached George Bush when the illegal spying became public knowledge. This is not the first time an NSA whistleblower has told the Senate that the NSA is conducting illegal surveillance.

Unfortunately, the spineless Senator Jay Rockefeller is in charge of investigating these latest revelations of illegal activity. Rockefeller led the charge earlier this year to grant telecoms retroactive immunity for helping the Bush administration with the illegal spying, thus ensuring that civil lawsuits against the telecoms would never succeed in exposing the truth of what the surveillance has actually entailed. Craven Democrats in Congress share some of the blame with Republicans for permitting this lawlessness to continue.

crossposted at unbossed.com