We know you are reading this, because now it's your job to read and hear everything, private, not-private, personal, that could keep the Bush administration in power, keeps it from being impeached or brought up on war crimes charges, keeps its Halliburton/Kellogg Root Brown agenda on track (I wonder who gets to rebuild Iran for cost-plus-any-profit-you-dream-of, after we commit genocide with nukes as it looks we are about to do?)  You hand up the info to your bosses, who hand it up to their bosses, who decide how it can best be used.  In flagrant violation of the letter and spirit of the Fourth Amendment of the Constitution.  But you are still American officers, some of you.  Never forget that.

Freedom from warrantless searches was a hard-won right.  Its origin was our Founder's contempt for the British "general warrant," which said that agents of the crown could search any home, open any mail, go through any personal belongings on a whim.  It was one of the main causes of the rebellion.  The forms of mail..

As Congress prepares to vote tomorrow on the FISA Amendments, there's one thing you should know:  law or no law, your privacy is likely to be violated, and in ways the media haven't yet reported.

I say that because, as a federal employee and homeland security specialist, I attended "security" training that urged employees of my agency to spy on Americans.  I described my experience a few weeks ago at a conference in Washington, D.C., where I was on a domestic surveillance panel that included Babak Pasdar and Eric Lichtblau.

When you come right down to it, advocacy for the new FISA bill pretty much hinges on the provision that four inspectors general will investigate and report to Congress regularly on the warrantless surveillance programs. The problem which nobody wants to talk about is that the four IGs are not capable of policing these programs.

Inspectors general, contrary to popular belief, are not fully independent. Neither should anyone ever assume that they can uncover the full 'Truth' about any program. There are a range of institutional problems that IGs face. This excellent report from POGO summarizes the issues well. Inspectors General often are a surprisingly (and poorly understood) weak link in governmental oversight. Even when they're at the top of their game, inspectors general have to surmount daunting hurdles.

I spoke to POGO's lead investigator for that report, Beverley Lumpkin, who agrees that it's far from certain that any IG investigations will uncover the information needed to hold the government accountable for warrantless surveillance.

For one thing, as POGO documents, many IGs can be pressured by agency heads in various ways, even to the point of being investigated by the agency they're supposed to keep watch on.

Central Intelligence Agency Director Michael Hayden, in perhaps the most astonishing known infringement of an IG’s independence, launched an investigation of the agency’s Inspector General, John Helgerson...it appears the main complaint against the IG was that his subordinates had been too harsh in questioning CIA officers about their activities. The IG had earlier issued highly critical assessments of agency employees’ activities in pursuing terrorists, and it is hard to escape the appearance of retaliation in this launching of a “management review.”

With such tenuous independence, drafts of IG reports frequently go to the agency head for comment and 'correction' before being finalized.

In any case, IGs lack subpoena power. Outside their own agencies, they cannot force anybody to talk to them. In addition (as I'll discuss) their resources are limited and usually stretched to the breaking point. So it's naive to assume that they can in practice get to the bottom of a large issue.

Indeed, an inspector general doesn't know what he doesn't know. With classified programs that have many tentacles, what is the chance that an IG will happen upon somebody who's both able and willing to point to all the things that need to be investigated, and the people who ought ideally to be interviewed? With this massive program, IG investigators will truly be feeling their way in the dark.

The FISA bill presumes in any event that IG staffers will be given the security clearances they need to dig into the government's most closely guarded secrets. This is information that Congress has been denied! And yet George Bush denied the necessary security clearances to staffers at DOJ's Office of Professional Responsibility specifically to thwart OPR's investigation of warrantless surveillance. Advocates of the FISA 'reform' bill just assume that cannot happen a second time. After all, we've seen many times with the Bush administration that history does not repeat itself.

Those are the larger problems that confront all inspectors general. In addition, there are specific problems with the four IGs in question (DNI, NSA, DOD, and DOJ). The first two are not statutorily independent. Rather, they're appointed by their own agency. The DNI and NSA IGs cannot and should not be trusted to render a truly independent verdict upon sensitive agency programs. Indeed last July, former DOD IG Eleanor Hill told a Senate Homeland Security hearing that the NSA IG should not be investigating the warrantless wiretapping program (PDF) because of this lack of independence (military IGs acknowledge that they serve "at the pleasure of the Directors of their agencies").

"All of those IGs recongnized that in investigations of very senior officials or in audits of programs dear to the agency head, the statutorily protected independence of the Departmental IG was critical to both the integrity of the inquiry and to the credibility of the findings in the Department, on Capitol Hill, and with the American public. I could not help but recall those conversations when I read reports last year that the oversight of what has been referred to as NSA's "terrorist surveillance program" had been handled by the NSA IG, who has limited resources and no statutory independence, and not by the Department of Defense IG."

So the involvement of the NSA and DNI IGs is not reassuring...if anything, the opposite. Their failure to investigate the programs before the NYT made them public speaks volumes about their credibility as whistleblowers on warrantless surveillance.

The DOD and DOJ IGs have their own problems. To begin with, the DOD OIG does not have its own legal counsel. As POGO's report highlights, the IG is forced to rely on the advice of the Pentagon's Office of General Counsel. With programs as sensitive and legally complex as these, that lack of legal independence is devastating to the DOD IG's ability to render an authoritative verdict. Indeed, the Pentagon Office of General Counsel repeatedly has been involved in exceptionally shady affairs, especially in facilitating Bush's torture regime.

That's the office that will play a major role in framing the legal investigation of the warrantless wiretapping under the current FISA bill. Yes, it ought to shock you.

Furthermore, both DOD and DOJ OIGs have been complaining for years about their lack of resources. No IG can conduct careful investigations of this sort without applying major resources to them. And yet the 2 IGs that do at least have statutory independence cannot meet their offices' current needs. POGO has obtained a new report from DOD IG complaining that its resources are increasingly inadequate to keep on top of current, unclassified Pentagon programs. Indeed, this spring the GAO reported that known DOD problems keep getting worse, despite the IG's best efforts.

Not by chance, DOD Inspector General Claude Kicklighter announced last week he's resigning, though he'd originally promised to stay through the end of the Bush administration. Rumors are swirling in Washington that his reason for leaving early is that his office's profound lack of resources make it nearly impossible to do his job.

DOD OIG has been a huge embarrassment for years, what with one extremely shady IG who resigned in disgrace (Joseph Schmitz), and a nominee to replace him who was utterly unqualified (David Laufman). Now comes news that the man nominated to replace Kicklighter, Gordon Heddell, plans to do the job half time while continuing as IG for the Labor Department. That is some indication of how seriously the current administration treats the critical Office of Inspector General of the Pentagon; there ought to be half a dozen IGs at DOD, perhaps, whereas Bush & Co. are giving us one half of one.

From time to time I've had occasion to investigate the activities of federal inspectors general. Although I admire the work of some of these watchdogs, I've lost any illusions about what they're able to achieve within their institutional and fiscal restraints. That's one of the reasons why I find the FISA bill's dependence on IG investigations ridiculous, and Congressional advocates of it naive. No doubt they'd say the same of me. But I'm not the one who wants to suspend the Fourth Amendment over an abyss by the thin strand of an IG report.

Update [2008-7-9 13:28:25 by smintheus]: A correction: the DNI IG is in fact covered by the Inspector General statute. The more important point remains, however, that currently the position is filled by the agency Director without requiring approval by the President or Senate. My thanks to Beverley Lumpkin for setting me straight on that.

In today's Senate debate about FISA, Senator Specter pointed out that most members of Congress do not even know what the program was, but still are being asked to grant immunity. Senator Rockefeller responded by reading his own tote list of how many senators were briefed on the secret program: 37 members of the Senate.
   Specter responded that his figures for the House are: 95 members in the House were briefed. He went on to argue that these figures still show that a majority in both houses were ignorant about the program.
   But I think the more important point is that the key leadership of both parties in both houses knew all along, and are protecting their own asses with the immunity bill.

Now that it's all becoming oh-so-clear, and Congress's behavior is starting to make sense, we can begin to play the guessing game of which congresscritters are being blackmailed on what by the Bush administration, which we know began its illegal surveillance program long before 9/11.  

The Washington Post reported last year:

Former Qwest CEO Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks...

"More than six months" puts us back in February.  That means George lost no time right after his Jan. 20th inauguration on gathering as much dirt as he could on this troublesome co-equal branch, which would be required to sit still while he attempted to squash any kind of 9/11 commission, leave all children behind, and build a case for a new war which could not be won while he ignored the war that could, in Afghanistan.

No less credible a witness than Daniel Ellsberg..

This is the most cogent and complete summary of what the FISA bill is about that I have seen. From the peerless Daniel Ellsberg of course. This patriot was ready to go to jail for the rest of his life for leaking a document which showed that America’s sons were being sacrificed for politics, when the generals believed there was no chance of victory in Vietnam. Now he is sounding the alarm. Ellsberg says of the FISA bill now before the Senate:

Ordinary citizens who want to live in a democracy — including those with nothing to hide — should be concerned about the ability of the government to use private, sensitive personal information to blackmail, manipulate, and intimidate their representatives, journalists and their sources, potential whistleblowers, and activists or dissenters of any sort.

He is asking every American for 60 seconds of action before the vote is taken.  Ellsberg says we can still stop this; the  senators are monitoring public reaction.

Original Post: Fun with NSA Spying: Blackmail

What I want to know is, which Senators are being blackmailed to vote for telcom immunity by info obtained by NSA?  Reid for sure, I bet.  I'd like to start a campaign just to ask them up front.  Are you being blackmailed, Senator/Congressman?  We  know GWB went right to work on getting the goods long before 9/11.  That alone should be enough to make telcom immunity a non-starter. Why do we even want to put a check on unlimited spying by the gov?  Here is a list of things you can do with such powers:    

  1. Spy on all protesters and activists, from pro-life to anti-war, so you know when they are going to unfurl banners in the gallery of the House of Representatives, then change the schedule.

 2.  Get the psychiatric records of anyone who leaks a "classified" document which is only classified because it shows the government continuing to fight a war which it believes cannot be won, oops, been there done that.  His name was Daniel Ellsberg, he leaked the Pentagon Papers, and Nixon wanted his deepest darkest confessions to fish through for a smear campaign.

 3.  Find out who that pesky congressman is sleeping with,..

So, you think domestic surveillance is a problem only for terrorists and criminals? Well, take that smug look off your face. As I write, information collected on millions of Americans is being used to punish them for activities as benign as purchasing retread tires.

Have you visited a bar, played billiards, visited a massage parlor or sought marriage counseling? Then, there's a good chance you have been economically punished for those activities through lowering of your credit limits and scores. That could cost you a home loan or a job, or perhaps a government security clearance. If you reported illegal activities by a former employer, you could be blacklisted for life thanks to databases maintained by firms that conduct background checks on workers for both government and businesses.

As activists have repeatedly warned, corporate and government voyeurism, aided by datamining technology, homeland security mandates and secrecy, has progressed to manipulation and penalization of lawful activities. And, it's likely to get much worse.

It is becoming clearer by the day that Congress does not fully comprehend what they are authorizing under the FISA Amendment Act.  Emblematic of this misunderstanding is this statement from Rep. Joe Sestak (PA-D):

The Act provides standards and procedures for liability protection for electronic communication service providers who assisted the Government between September 11, 2001 and January 17, 2007, when the surveillance program was brought under the FISA Court.

While Rep. Sestak's statement reflects the conventional wisdom surrounding retroactive immunity, it is a fundamental misreading of the Act.  The Act does not limit the time period of assistance from electronic communication service providers (ECSP) and does not restrict the government from continuing to ask for that assistance in the future.  It effectively allows ECSPs to continue complying with the illegal surveillance requests into perpetuity.

This immunity provision along with other aspects of the Act put the final pieces together for the restoration of the Total Information Awareness program.

[From the Frog Pond]

Hey, Happy Independence Day everybody.  Do you know what is patriotic?  Sticking up for the Constitution of the United States of America is patriotic.  So, let's review a little history, shall we?  Let me cut and paste a little snippet from the SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, better known as the Church Committee:

Senator Russ Feingold: ".. illegal wiretapping program ... that more than 70 member of this body still know virtually nothing about."

Here is what they need to know.  Bush's NSA vacuums up EVERYTHING.  Then we trust them.

They also need to know that EVERYTHING, the entire optic stream of Internet data, if routed outside of US jurisdiction, is no longer subject to the protections of US Law or the Constitution. But, hey, we trust them, right??

Imagine a world where Corporations could ignore the Government and do business as they pleased!

More follows...

A key part of the argument in the ACLU case against the NSA (which failed in the 6th circuit court of appeals) was that the government was eavesdropping without a warrant.

http://www.ca6.uscourts.gov/...

The problem was, the ACLU and plaintiffs could not prove it, because NSA invoked State Secrets.  And while it was probable that there were not warrants, it could not be proved.  The secrecy of the Bush Administration was to blame, not the law itself.

It would seem FISA is kind of back on our radar screen again. Much of the debate here stuns me, and not much of it positive. The biggest thing is I sense we are debating something technical, and something that most don't understand. So I want to repost what I wrote several months ago. This is why you should be pissed, cause what our government is doing is pretty darn staggering.

I wanted to take a couple minutes and attempt to add something to the FISA debate. People like Glenn Greenwald and front-pager mcjoan have done a stellar job of pulling back the multiple layers of the onion as it relates to the FISA debate and telecom immunity. They get at the core of the issues better then anybody around. A great service that the MSM can't seem to do themselves.

But I still find something lacking in their coverage, which is an actual analysis of what we know the government is doing from a technology point-of-view.

No not for the Iraq war but for the fact that Sweden since yesterday has a new Orwellian law. A law that allows the military to listen in on all communications that cross the border.

Once again, you've got to wonder about the political acumen of Democratic leaders who are so willing to capitulate on an issue that is working against the Republican nominee for President. Here's the Philadelphia Inquirer on John McCain:

Listen. What you are about to hear is the sound of John McCain flip-flopping his position on one of America's most cherished ideals.

A top McCain advisor says the Republican presidential candidate agrees with President Bush's outrageous program of wiretapping Americans' overseas conversations without warrants.

McCain previously had been critical of the Bush administration's unilateral decision, following the Sept. 11, 2001, attacks, to let the National Security Agency eavesdrop on untold numbers of citizens.

Before, McCain talked of the need for presidents to obey the law, just as other Americans must do.

But now he suggests that a McCain White House would pursue the same unchecked spy powers as Bush.

His flip-flop isn't as significant as the fact that McCain has gotten hold of the wrong end of the stick.

It's bad enough to think that the Dems would be willing to reward the Bush/Cheney administration for its subversion of the Constitution. But they have apparently so lost their ability to recognize a win that they'll give McCain the gift of not having to continue to tie himself up in knots on this issue. Go figure.

Hey Congress, here's another one for you, once again via Ryan Singel at Wired. In reviewing newly declassified documents, Singel not only discovered that the secret, rubberstamping FISA court showed more concern over Bush administration spying than a supposedly-overseeing Congress, but this little gem: "Mobile Phone Number Moving Caused Feds to Wiretap Wrong American."

But there were other fine eavesdropping nuggets in those pages, including info on when the FBI learned to wiretap VOIP calls, how number portability messed with FBI taps, and a moment of candor from an FBI technician about how the FBI's wiretapping software could work with the NSA's warrantless wiretapping program.

For instance,  the FBI accidentally listened in on one innocent American phone conversations due to a hack a phone company used to let people take port their phone numbers from one cell provider to another. At issue is a workaround used by CDMA providers, where a carrier assigns an alias number to a ported number in order to speed up switching at a user's usual calling area. The workaround has the unfortunate side effect of occasionally reporting the alias -- which could actually be a real person's number -- instead of the real caller to the FBI's wiretapping software.

In the FBI's own words, "due to misinformation in the call records, the unrelated subscriber was temporarily included in the investigation" and "this error has recently misled a few FBI investigations.

Secondly, in one message thread (.pdf) about moving offices in Manhattan and wiretapping the traditional wireline phone service in March 2006 [three months after the warrantless wiretapping story broke], one FBI employee who works for the FBI's Operational Technology Division asks if the NSA still does warrantless wiretaps and suggests how the FBI's equipment could be configured to deal with the lack of court orders.....

There's Bob Mueller's agency just doing it's part. Helping the NSA break the law more efficiently!

Just a thought here. Maybe Congress shouldn't acquiescing to the demands of an administration that not only spies illegally on Americans, but is so incompetent it illegally spies on the wrong Americans.

The many examples of the Bush Administration's Infringment of Civil Rights (known to real Conservatives as "the Government's Latest Assault on the Constitution) are now many and varied enough to forge a new political concensus in opposition, which can span the ideological spectrum.

There is reason to fear that unless we begin to think in broad, strategic terms about a new bulwark against the unconstrained excesses of the State, future leaders, possessed of [even] less patriotism, integrity, or restraint than the current Administration may employ the 9/11 powers assumed by the executive in more self-serving, politically predjudicial ways than has the Bush/Cheney regime.

After 218 years, the constraints on government imposed by the Bill of Rights are every bit as relevant, valid, and important today as when they were adopted. The problem is that our 21st Century legal machinery is more complex, and those who exercise the levers of power often become confused.  Its time to buttress that original wall with a stronger and more specific layer of protection, suited to modern jurisprudence. It is time that we consider criminal and civl penalties for violating the Bill of Rights...