Month: June 2013

When bureaucrats speak gobbldygook, watch your back

by digby

There were a couple of big stories yesterday about the NSA programs, from the AP and the Washington Post. You can read them for yourselves and decide if they are, as critics contend, treason or something else.

There are lots of details to think about but I think Emptywheel homed in on one of the most interesting:

As I noted, the WaPo makes it clear one of the most sensitive parts of the government’s surveillance programs is the collection of Internet metadata.

But the thing is, it doesn’t come out and explain whether and if so how it continues to go on.

This passage, written in the present tense, sure seems to suggest it continues.

MARINA and the collection tools that feed it are probably the least known of the NSA’s domestic operations, even among experts who follow the subject closely. Yet they probably capture information about more American citizens than any other, because the volume of e-mail, chats and other Internet communications far exceeds the volume of standard telephone calls.

The NSA calls Internet metadata “digital network information.” Sophisticated analysis of those records can reveal unknown associates of known terrorism suspects. Depending on the methods applied, it can also expose medical conditions, political or religious affiliations, confidential business negotiations and extramarital affairs.

What permits the former and prevents the latter is a complex set of policies that the public is not permitted to see. “You could do analyses that give you more information, but the law and procedures don’t allow that,” a senior U.S. intelligence lawyer said.

Yet buried in the last paragraphs of the story, WaPo’s sources suggest “the NSA is no longer doing it.” Or — as elaborated — doing “it” under the guise of and with the oversight of the FISA court.

As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court.

“I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”

I was struck by that last as well. It’s an oddly specific way of denying something, isn’t it? We used to call this a non-denial denial.

Marcy has developed some very interesting speculation about why they are speaking in this odd way: they are trying to focus everyone’s attention on the specific programs managed under Section 215 of the PATRIOT ACT and the FAA. But it’s highly possible that the data collection in question is being done under different auspices altogether.

I obviously don’t know if that’s the case. But I do know that when bureaucrats start speaking in tongues, you should be suspicious.

By the way — if you aren’t reading Marcy Wheeler on this story, you’re not getting a full picture. Not only is she a gifted close reader, she has an amazing memory and has been following this story since the early Bush years. He speculation is well grounded and her suspicions are worth taking seriously. If you need more than my dirty hippie endorsement, be advised that some of the most highly respected national security journalists in the country follow her work.

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Declassify them

by David Atkins

Greg Sargent asks if the Obama Administration couldn’t simply declassify the FISC rulings to have the “debate” over national security that it claims to welcome. And the answer is, well, yes it can:

But couldn’t the Obama administration declassify the Foreign Intelligence Surveillance Court (FISC) opinions that make this surveillance possible if it wanted to?

The answer is Yes, according to Michelle Richardson, legislative counsel for the American Civil Liberties Union. “It’s totally within the administration’s control to declassify these opinions, after redactions, if necessary,” Richardson says. “So there could actually be an informed debate about the legal basis for this sort of data collection.”

A bipartisan group of senators — led by progressive Jeff Merkley and Tea Partyer Mike Lee — is coalescing around a bill that would require the declassification and release of these legal opinions. But the appetite in Congress for this step appears limited, given that most Members support the programs.

Still, it seems clear that the administration could declassify these opinions itself, at least in some form. Indeed, even Senator Dianne Feinstein — the chair of the Intelligence Committee and a very aggressive defender of the NSA programs – signed a letter earlier this year to the FISC, asking the court to do just that. The letter noted that the court could issue “summaries” of its interpretations of the Foreign Intelligence Surveillance Act — revealing the legal thinking behind using the Act to authorize surveillance activity — while keeping the classified aspects of each specific administration request for this authorization under wraps.

A lot of people ostensibly on the left have been divided on the whether the government’s spying actions have been appropriate or not. I think not; others differ.

But what almost everyone seems to agree on is that there needs to be much more transparency about what the government is doing so that Congress and the people can make up their own minds how much security they are buying with their loss of freedom, and whether it’s at all worth it. It’s a conversation the country needs to have. It’s a conversation the Obama Administration says it wants to have. It’s a conversation that candidate Barack Obama said he wanted to have in the 2008 campaign.

And it’s a conversation that President Obama can make happen of his own accord.

So make it happen, Mr. President. Declassify the FISC rulings and let the sunshine in.

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Pandora’s Promise: Just a nation of worrywarts?

Wish you were here: Sightseers

Oh good, more oversight

by digby

Well, they did have planes to catch:

Only 47 of 100 senators attended the 2:30 briefing, leaving dozens of chairs in the secure meeting room empty as Clapper, Alexander and other senior officials told lawmakers about classified programs to monitor millions of telephone calls and broad swaths of Internet activity. The room on the lower level of the Capitol Visitor Center is large enough to fit the entire Senate membership, according to a Senate aide.

The Hill was not provided the names of who did, and who didn’t, attend the briefing.

Bob Corker did attend and was very, very impressed:

“We were given some very specific and helpful information about how these programs have helped keep the American people safe,” he said.

“I can’t imagine any United States senator sitting through a briefing like we just had and not feeling thankful for the efforts that NSA and others put forth,” Corker added.

Sorry, Bob,  Senators Wyden and Udall attended but were just a little bit more skeptical:

“We have not yet seen any evidence showing that the NSA’s dragnet collection of Americans’ phone records has produced any uniquely valuable intelligence. Gen. Alexander’s testimony yesterday suggested that the NSA’s bulk phone records collection program helped thwart ‘dozens’ of terrorist attacks, but all of the plots that he mentioned appear to have been identified using other collection methods. The public deserves a clear explanation.”

Hmmm. How could they have such different reactions?

The Hill used an interesting little anecdote to illustrate how this can happen:

Disputes between senior intelligence officials and members of Congress over who was told what, when, have been going on for years.

During the Reagan administration there was a fierce debate between administration officials and senators about whether Congress was informed about the mining of Nicaragua’s harbors.

Gary Schmitt, an AEI scholar who served as Democratic staff director on the Senate Intelligence Committee from 1982 to 1984, said then-CIA director William Casey had told members of the committee about the covert action but couched it in such a way as to minimize notice.

“The mining was mentioned but it was mentioned in the context of a very long briefing that Casey was giving and it was done in passive voice and in such a way as to make it sound like an ongoing program,” he recalled. “It was a case of writing it in such a way as to obscure the fact that the agency was directly involved in the mining.”

Udall and Wyden are on the intelligence committee and can see through the smokescreen a  bit better than those who have no clue and are easily misdirected.

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QOTD: Dana Milbank

by digby

On the liberal change of heart about government surveillance and the 4th Amendment, including the entire leadership of the Democratic Party:

I kept looking for liberal dissent — and then, on Wednesday morning, the news wires reported that a group called Voice of Resistance was meeting outside the Capitol, where demonstrators would proclaim Snowden a hero and flog an effigy of Republican Rep. Peter King (N.Y.), one of the first to brand Snowden a traitor. I arrived at the appointed place and time but found no protest. Instead, there were six journalists and a lone demonstrator, who was wearing an antiabortion baseball cap. He told me the group was actually a right-wing outfit. “The others are parking the car,” he explained, before turning the topic to Rush Limbaugh.

That’s a sad comment on … everything.

But if you seek any more proof than you already have that this issue creates the strangest bedfellows, this conclusion by uber-Villager Milbank should provide it:

While Reid tests the political winds to determine which constitutional rights Americans should have, those who should be overseeing the program are instead defending it with a just-trust-me logic. Feinstein declared that “these programs are within the law.” The top Democrat on the House intelligence committee, C.A. Dutch Ruppersberger (Md.), promised that “we’re not violating any constitutional rights.” Both said they’d like to see more about the program declassified, but their past efforts to produce more disclosure have been weak.

There are a few Democrats who have upheld the party’s tradition of championing civil liberties — such as John Conyers (Mich.), who is introducing a bill with conservative Rep. Justin Amash (R-Mich.) to curtail the program, and Sen. Jeff Merkley (D-Ore.), who with Sen. Mike Lee (R-Utah) introduced legislation backed by eight senators requiring more disclosure of secret court rulings.

But the Conyers bill is likely to go nowhere in the House, and Reid was cool to the Merkley proposal, saying only that “I’ll be happy to take a look.”

If he does look, he’ll find that they’re doing what progressives should do: Protecting the people from a too-secretive government.

I guess I really shouldn’t be all that shocked that a member of the press would take this stand. After all, telling people what their government is doing is in the job description. What’s really surprising is how many members of the press are eagerly defending the government keeping its secrets — even as if seeks to prosecute journalists for doing what the first amendment to the constitution clearly gives them the right to do.

It certainly does bring home, once again, just how easy it is for crazed politicians to impeach presidents over nothing, steal elections, start wars, monitor citizens, appease rich people — and God only knows what else. Why shouldn’t they? Hardly anyone gives a damn, not even in the so-called free press.

Good for Milbank.

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From the “Trust ‘Em?” files: a federal judge says faith in judicial “oversight” is misplaced

by digby

This strikes me as, I don’t know, important:

A retired federal judge warned Friday against blind faith in the secret court deciding the scope of U.S. government surveillance. During a panel discussion on constitutional privacy protection in the wake of a leaked Foreign Intelligence Surveillance Court decision that revealed widespread NSA data collection, U.S. District Judge Nancy Gertner stood up in the audience to counter the statements of conservative law professor Nathan Sales that secret surveillance requests are subject to meaningful judicial review. She cautioned: 

“As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced. 

Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.”

Gertner, now a professor at Harvard Law School who teaches criminal law and criminal procedure, was a civil rights and criminal defense lawyer before being confirmed to the federal bench in 1993. In an interview with ThinkProgress, Gertner explained that the selection process for the secret national security court formed in 1978 is more “anointment” than appointment, with the Chief Justice of the United States — now John G. Roberts — selecting from a pool of already-conservative federal judges those he thinks are most suited to decide national security cases in secret: 

“It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.” 

Gertner, an attendee at the American Constitution Society’s national convention, stood up during a panel discussion to make her comment after Sales, a law professor at George Mason University, suggested that individuals have some protection from excessive government surveillance because the Internet Service Providers who field government requests for information have the opportunity to challenge those requests before the secret court. “This isn’t a a paper tiger,” he said. “This is a court that engages in judicial review.” 

Gertner urged the audience to be skeptical about the court’s oversight, both because of its severely conservative make-up, and its secrecy. The judge whose order was leaked by former NSA contractor Edward Snowden was Judge Roger Vinson, who authored the error-riddled federal court decision striking down the Affordable Care Act that even his fellow conservatives rejected. 

Gertner also questioned the need for a secret court, noting that national security protections exist within the civilian court system: 

“I’m very troubled by that. When you get cases in court, in regular civilian court that have national security issues that have classified information, we developed a process whereby the parties would develop security clearances and it could be presented to the court without it being disclosed to anyone else. It is not entirely clear to me why a civilian court with those protections that is otherwise transparent couldn’t do the job. That’s the way we did it before. Then we moved to this national security court. The notion that we have to have a conversation about major incursions on civil liberties and that we have step back and say we don’t really know, we haven’t seen the standards, we haven’t seen the opinions is extraordinary troubling in a democracy.”

The FISA court has rejected only .03 of all the requests it’s had. I grant that in principle it is slightly better than the warrantless surveillance during the Bush years but in practice it seems to just be a rubber stamp. And anyway, secret courts are hardly the proper way to run a democracy, particularly when the government has decided it needs to monitor its own citizens through a process designed for foreign surveillance (which is the most confounding thing about all this, in my opinion.)

Again, oversight is not enough — and will never be fully trustworthy. With a government that has the vast police powers and surveillance capability of the most militarized nation on earth, it’s probably a good idea to have as many checks on its power as we can.

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Glenn Greenwald for congress?

by digby

In case you didn’t know, Howie Klein has an encyclopedic knowledge of every congressional district in the country. And in the wake of Peter King behaving like a totalitarian this past week, he wrote this earlier today about King’s district:

NY-02 is hardly a district the DCCC should be leaving uncontested as a red stronghold. But they do, especially under Steve Israel, a longtime crony of Peter King’s. The district’s PVI is R+1. Democrats represent 15 districts that are R+1 or worse. They are winnable seats, as Democrats like Carol Shea-Porter (NH), Raul Ruiz (CA) and Joe Garcia (FL) showed last year when they beat Republican incumbents in R+1 districts. The trick to it, though, is that the Democrats need a viable candidate and need to wage a real campaign. This is not something Peter King has had to face. When King first ran in 1992, it was an empty Democratic seat that Congressman Bob Mrazek had left so he could run for the Senate). King won 49.56 to 46.46%. But he never had a serious challenge after that. Blue America backed Dave Mejias in 2006 and he came close with 44% but the DCCC stabbed him in the back, Mejas spending only $908,135 to King’s $2,075,502. And its been worse since then with the DCCC discouraging anyone from running and undercutting those who tried. Last cycle Vivianne Falcone took 41% of the vote after spending $11,115 (against King’s $1,201,207), Needless to say, the DCCC spent exactly zero trying to help her, wasting millions of dollars are far redder districts where their conservative candidates had no chance at all.

King, probably best known for supporting violent foreign terrorists in Ireland, for his intense bigotry against Muslim-Americans and for picking fights with Michael Jackson, is back in the news this week.

Rep. Peter King (R-N.Y.) made waves yesterday on a Fox News interview in which he called for “legal action” to be taken against Guardian journalist Glenn Greenwald. The congressman’s comments were delivered in his usual stentorian style, with absolute certainty and conviction, even though they appear to lack any factual basis.
[…]
His words yesterday don’t speak to his acumen as a public servant, either. As argued previously in this space, the recent explosion of leak news has highlighted the centrality of governmental self-restraint in preserving freedoms.

I guess we shouldn’t be too surprised that the DCCC isn’t recruiting anyone to oppose King. It’s not as if the Democratic party leadership is particularly eager to fight for our civil liberties either.

But Howie knows somebody who is:

Blue America is trying to recruit [Glenn] Greenwald to run against King. A prominent constitutional lawyer and author, Glenn was born on Long Island and got his law degree from NYU. Although he’d love to see Peter King retired, he doesn’t want to serve in Congress. I can’t blame him– but I’m still trying to persuade him… and I’m willing to pledge a maximum legal contribution personally and endeavor to raise as much money for his campaign as we have done for Alan Grayson and Donna Edwards, each over $100,000 from Blue America donors.

I can certainly understand why Greenwald wouldn’t want to do this. But just imagine if he did …

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“If that does not suit you, get out”

by digby

Words to live by:

“The standard you walk past is the standard you accept. That goes for all of us. But especially those who by their rank have a leadership role.”

I can think of any number of current issues to which one can apply these words.

Update: President Obama probably should have taken this tack when he tried to send the same message. A military judge has ruled that he used “unlawful command influence” by calling for punishment before the cases have been decided in court. By contrast, the Australian commander doesn’t call for an outcome of the specific cases but instead tells soldiers who behave this way to “get out” of their own accord. It’s a small difference, but an important one when investigations are in process.

Nonetheless, I give President Obama credit for stepping up and conveying his disgust with this particular behavior. It had to be done and he did it.

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Sometimes a tweet is just a tweet: Queen of the Village holds forth on Hillary. Again.

by digby

I am at a loss for words. Luckily this speaks for itself:

There were two surprising things about Hillary Clinton’s first tweet.

Clinton broke her Twitter silence this week with this bio: “Wife, mom, lawyer, women and kids advocate, FLOAR, FLOTUS, US Senator, SecState, author, dog owner, hair icon, pantsuit aficionado, glass ceiling cracker, TBD . . . .” A photo by Diana Walker showing a serious-looking Clinton in black and looking at her Blackberry through dark glasses is her avatar.

What’s surprising is that the photograph belies her tweet. You would think with that choice of photo she would start her bio with anything but “wife, mom.” If she’s itemizing her accomplishments and interests, to have U.S. Senator and Secretary of State at Nos. 7 and 8 pretty much gives the shaft to the whole notion of “leaning in.”

For sure, “leaners’ would have started with those two and worked down. For those Hillary watchers and tea leaf readers this might give some of them a clue to her priorities. Does “wife, mom” sound like somebody who is running for president?

Would a male opponent start his tweet with “husband, dad?”

This could be a not-so-subtle way of throwing people off the scent. The other stuff — “dog owner, hair icon, pantsuit aficionado” — is funny and cute, but it doesn’t send the truly serious, almost powerful message that “wife, mom” does.

What she really cares about, of course, is being a “women and kids advocate,” which has always been her true passion. That was underscored Thursday when she announced she would join her family’s charitable arm, which was renamed the Bill, Hillary and Chelsea Clinton Foundation, and champion children’s and women’s issues.

Even more surprising about her tweet, however, is an omission.

She never mentions her faith. “Christian”? “Person of faith”? “Methodist”? “Believer”? Nothing[…]

The question is, does the Lord want Hillary to be president? Does she want to be president? Pundits took her tweet to be the launch of a presidential campaign. Yet it’s perfectly obvious that America will not vote for someone who is not a self-affirmed believer in God. We have a black president, and we will have a female president, a Hispanic president, a gay president and probably even a Muslim president before we have an atheist president. Those who talk openly about their own faith are more likely to appeal to the American public than those who don’t; we have even seen many shamelessly exploit religion for their own political purposes.

So if this tweet is her announcement that she is running, why would she describe herself as “wife, mom” but and not include “person of faith,” which, if you look at her background, she surely is?[…]

All I can say is this: If you want to figure out Hillary Clinton, to paraphrase Deep Throat, “follow the faith.”

This whole thing is based on a tweet. Seriously.

Still, it’s good to see that Sally Quinn’s demented crusade is still in full effect. I am a blogger after all.

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QOTD: The rightful 43

by digby

Al Gore:

“This in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear. It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is.”

“This is not right.”