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September 28, 2007

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some might say it's supposed to be the function of the American press to provide for "parasites" like the public interest...

I guess I'm a parasite on Google too, for that matter. I'm comfortable with that.

I'm definitely a parasite on the ACLU, and the Democratic party. (though the latter seems somewhat bled dry recently)

I wonder if I'm more like a tapeworm, or a tick....

actually, I think a better metaphor might be E. coli or other fecal and intestinal flora. The organized media does what it does for itself, including moving material into the public record, and we happen to be able to re-digest their passings after they're done with it.

Of course, we might sometimes give them a little gas. but we're not blood-suckers. (i.e., our taking our share of information doesn't diminish their access to it.)

I like that--intestinal flora.

More like symbiotes than parasites, I think. Or commensals. We don't really want to kill them off, we need them for some source material, and we can provide useful feedback for them. And vice versa - although a lot of them don't want to admit that.

WaPo has a reputation?

WaPo and other have been parasites, too, of the ACLU and CREW and others who have pushed for FOIA releases and discovery in lawsuits that MSM didn't bother with since it didn't fit the then-popular narratives.

Interesting point, Mary. Want me to pass that on??

PJ

Folks have actually been fairly open to admitting that.

Pssst - big surprise - the kidnapped soldiers/surveillance story keeps changing.

http://www.tpmmuckraker.com/archives/004323.php

Now Ackerman's trying his hand at timelines too.

But we find out the kidnapping is the May kidnapping. And that people were arguing and fussing - not that they needed lots more Monica Goodlings to be able to sign off (although it did apparently take them 2 hours to get hold of AGAG after they decided to get him involved - - apparently he was in a very hard to find place, a meeting in Texas with USAs.

Have fun. Eric's no relation to Joe is he?

Sturgeon's law says that 90% of everything is crap (and that's definitely on the conservative side). So the people at Duke should be cheering because you're saying the blogosphere is way ahead of the curve.

Thanks for the update! Do you have the sense that anyone at the Conference feels that Bush and Cheney are 'propping-up' the Citizens of Our Country to be "bullet-catchers" a la Cheney glove-ing a few rounds with Libby?

Isn't that the actual reality of the UE in Our case? Elevated above the Rule of Law, and scared to death of being brought to Justice for Crimes Against Humanity by the Rest of the World - isn't BushCo saying, in effect: To get to Me, you'll have to hurt Them (US) first. Is that the source of Bush and Cheney's sense of Safety?

To take it further - Are the Bush Loyalists, including his Supporters in the Military, saying that they have the Money, Power and Position over the Little People (US,) and is that the source of the Goopers' sense of Safety? That their buffer from the pain of Responsibility is US?

Is it reasonable to frame the question: Is BushCo sacrificing US to save Themselves from their own Irresponsible Actions?

About Washington Post's publication of draft documents: consider the December 2005 publication of the civil rights section at Department of Justice workgroup 73 pp. report on Voting Rights section 5, unanimously recommending DoJ side with complainants protesting ethnically profiled DeLay gerrymander. WaPo published it after the federal appeal loss by complainants, but before the US Supreme Court heard argument.

Another classic journalistic report at WaPo was its news that the Bush term-2 Social Security privatization draft legislation cost analysis at Health and Human Services was completed, but suppressed. I see no link in the article by WaPo to the actual actuarial report, but WaPo is fairly explicit about the administration's reported warning to the HHS analyst that congress was to be kept in the dark on the actual costs.

The best blog sites harbor some well informed people, who take the time to verify before joining the din of political speech online. Blogs that are accurate in their reporting, however, prove to be surprisingly time consuming, if one is to do the research to verify the contributions of the various writers. As with many collaborative contexts, the blogs like other newsmedia entities, develop insight by sharing references and thought pathways among the advanced people investigating a constellation of topics. A fair characterization would be 1/5 elegant work product, 4/5 ungainly striving to sift fact from factoid from protofact.

Doesn't look like it, Mary.

Ackerman should defer to emptywheel for timelines.
The timeline misses the big FISA related event of the Day, 5/15/07:

COMEY at SJC at 10am.

The afternoon 4 hour debate that caused delay may have been spurred by the new spotlight on their illegal program....
Plus, it probably got them to waste another 2 hours tracking down gonzo, rather than Clement who was acting AG, for the signature.

http://www.dailykos.com/story/2007/9/28/114956/496

Things that you should be proud of saying publicly at Duke:

That bloggers are not just looking to get noticed so they can land a day job with the instiutional media.

hps

Oh yeah, I did say that.

Sure you can pass it on EW.

I'm a parasite too - I benefit from a few good blogs. The spread of information is kind of parasitic by its nature. By itself, with no glommers, information has no need to exist.

Where facts and info are concerned - better to be their parasite than their predator imo.

drational - yep, the timeline left a lot off and that's a very good point (the testimony)

But on this, "Plus, it probably got them to waste another 2 hours tracking down gonzo, rather than Clement who was acting AG, for the signature"

I think Clement was only acting AG for the USAs matter - not acting AG in general and being in Texas isn't like being in the hospital - I think AGwas still AGAG.

I still think they are trying to keep Clement as clean as they can and what they were doing and wanted to do that was causing issues invovled stuff they didn't want to have to brief him in on --- both to keep him clean for Repubs later use and also so that if he and his crew end up making legal arguments later before the Sup Ct that are totally and wholly contradicted by the actual facts they can blink innocently and claim ignorance.

I know this probably wouldn't be your favorite question, but if they are going to have a whole section on the Lacrosse issues and Nifong, I would really like to hear Chemerinsky or someone chime in on how the Comey presser on Padilla was so very very different than the Nifong presser.

"institutional media" *g* Obviously, if they'd wanted that they would have affiliated with AEI instead of TNH.

Work calls. Who'll answer first - me or the NSA?

Fight the good fight.

Hmm. In trouble? No. But you should be ready for some intense discussion.

Do they grok that the blogosphere isn't just political activists, frustrated wonks and navel gazers, that we're only a very small portion of the entire blogosphere when we talk about politics?

I'm with PJ on the symbiotes; we'd have far less to discuss if the media did their job, and they'd have far fewer readers if we weren't so torqued off at their current output, bolstering readership out of pure outrage. Either way we're propping each other up. But what has really changed? we're merely media's consumers who became visible; we used to be just as pissed off when they failed us, just invisible to them. Now they actually hear us; they actually see us when we show them what they were supposed have done, they actually respond and chase stuff because we nip at their heels. Is that leech-ery, parasitic, or merely a shift towards the business model outlined in the Cluetrain Manifesto?

Maybe I should ask another way: in the pre-internet days, way back in the 1970's, wouldn't an outfit like WaPo have actually done the legwork to ensure the public could read content like the grand jury recording? and if they wouldn't have, why are they doing it now?

Mary,
From the timeline, it looks like they "tried" to get ahold of Clement for a signoff at 5:15 pm. Then they spent an hour and 48 minutes trying to get Gonzo. So it looks like Clement was authorized to sign off, but they elected to get Gonzo instead.
I bet you are right about keeping him clean for Sup Ct. But still looks like they made a conscious decision to go around him, and this added delay (he went home for the evening- no cellphone? unlisted number?).
So when McConnell says that FISA delay jeapordized investigation, they omit the time wasted finding Gonzo.

Rayne

Remember, too, that one of the risks was that Swopa would remix the Libby testimony and turn it into a rap.

I must harass him for not finishing it before this conference, which he threatened to do.

Look back at the timeline at TPM.
The result of the FISA warrant is to notify the FBI.
This is the FBI, not the CIA or NSA.

They were tapping Americans here in the US in response to the insurgent captures in Iraq.

That we bloggers were parasites on the legal teams of the mainstream media, who pay lawyers a lot of money to make sure things like the Libby grand jury recording gets released to the public.

Or as economists would say, that bloggers free-ride on public or common goods, i.e. information, that are provided by others. No argument here, and no reason I can see not to say it.

Then as Rayne points out, bloggers use the "goods" to produce yet more goods. We can only hope that one day this will include Swopa's Libby remix.

Parasites! My ass! EW, I think we can think of a better analogy/metaphor than that of a parasite, to describe our relationship to the "news" that spews out of the orifices of the moribund media (MM). Try sponges. That's what we are. When somebody in the MM spills something, like the recordings of Libby's litany of lying, we're there to wipe it up and squeeze it out anywhere we want to. What? Did they want it to be their exclusive use? It's public domain! I don't know one blogger who referred to it or put a link to it in their blog without crediting the source! If the MM don't want people using it--they can keep it to themselves and make of it what they will (which will be four-fifths of zero).

So it looks like Clement was authorized to sign off Yep, but not as acting AG for the USA matter is all.

The result of the FISA warrant is to notify the FBI.

And whether it was tapping or datamining (and I kind of think they were wanting to go through scooped up emails) I'm pretty sure that they had no good target to latch onto and work out from and what they were wanting involved trawling through big globs of data/info that absolutley included US data - but still, the FBI vehicle could be also because they were utilizing FBI to get the "US based information" i.e., handle the switching stations (if you buy that - and I don't really) or more likely handle the storers/providers of captured info that was going to be sifted through. But that's all just spec. Their stories sure don't hold though, do they? When you have the head of DOJ's national security division testifying with a story that doesn't hold water at all - it just shows that much more what DOJ has become. Wainstein just migrated from covering up GITMO domestic and war crimes to another slot where he can render similar services in a new field.

Off subjuct slightly where can I find a translation of the missive between Bush and Spanish offical?

I hope Swopa does some smooth re-dub toasting of Olson's trial close and open statements, but, the conference has ample discussion of that special form of hyperbole which is advocacy in a courtroom. I wonder if anyone noticed the recently ex AG of UK, Lord Goldsmith has broken with King's Counsel precedent and accepted a post with a US firm; one commentary suggested he could help with defense contract acquisition, as his UK background included some shielding of one such business. One of the difficult disputes to fathom has been the healthy criticism of editors and publishers, on the background of the dual standard of the Bush administration: plant propaganda, then cite it as causus belli; claim state secrets in the evolving reconfiguration of pursuit of sub rosa organizations who are security risks. In other words, I appreciate Pinch's need to look at a 50-year plan for his organization's survival and integrity. In fact, I would gauge his decision on the personnel matter with post-calaboose Judy, to dismiss her, was informed by some thorough investigations conducted by many media sources, traditional and netroot. I expect the chorus of the telco business case for net inequality Real Soon Now, even at the Duke conference. I am glad NYT already has sallied into paywalllessness, as a pushback against the voices of those who would try to advance the profit motive as far as the courts will permit into the internet structure and IP standards committees' plans for the future.

D'clay: if you read Castillian, there now three days since publication.

Darclay

Here

Here's one (among many) scenario that might make sense.

What if what caused the delay was the fact that what they wanted to do was absolutely prohibited by statute and Constitution and they all pretty much knew it. But they wanted to do it anyway.

Maybe the failure to get Clement involved at that point was fairly deliberate. Someone may have taken a shot at getting him involved, but the reason they then re-directed to AGAG was a conscious decision to go after the Texas guy instead - either bc Clement wasn't fully briefed on 'teh program' and would have to know things they didn't want him to know in later Sup Ct arguments related to something like the EFF case, or bc the exact things they were wanting to do were clearly prohibited and he needed to be kept clean so they decided to leave it all within the existing dirt pile.

Especially with the Comey testimony on tap.

So they don't have a good case to do what they want to do - but AGAG signs off anyway and makes the call to the FISA judge (who can't really act at this point, whether he/she agrees or not). They do it, and the judge (who may have expressed an opinion even at the point of AGAG's notification) is pretty much just sitting and waiting for the ability now to lay down the law.

Maybe even that "law" includes a finding that the telecoms may have violated law if they assisted the AGAG in what he did. A "what he did" that is now before a court.

And AGAG's role in whatever was done - which generated so much dissension - may have even generated some kind of FISA court action (like perhaps barring the AG from making future applications the way others had been barred for fibbiness with the court?) which might have precipitated his final stand down. After all, as bad as things were - how much worse to have a situation where the AG is barred from making security court applications bc of wrongdoing before the court?

Or perhaps Comey's testimony itself set up a sitution where the FISA court took actions regarding Gonzales? And maybe no one wanted to get into just what kind of contempt powers the FISA court might have and that resulted in the stand down?

In any event, I think they need the judge's testimony in closed session as to how the situation was brought to the court and how it was handled vis a vis the court.

Then, I'm sure, you'll have the admin claiming that the judge can't testify to Congress bc the matters are classified.

Wowser - won't that be interesting. Glad that table is being kept cleared.

Darclay, Wapo had an article on it yesterday, but I haven't seen an actual translation of the transcript. I would like to see it, also, if anyone knows of one.

Wapo article quoted extensively from it.

Mary

I haven't read the timeline.

But is it possible that Clement, after something that FISC said, refused to sign off on the wiretap?

Also, about the Comey testimony--don't forget that he wasn't subpoenaed. So it's unclear whether DOJ would have anticipated the train wreck that was going to hit them. They're kind of dumb, that way.

EW-
Clement refusal is another consideration. Certainly the language is Fishy and they do not explicitly say the Sol Gen was not available.
"at 5:30 p.m. the OIPR attempted to reach the Solicitor General.... However the Solicitor General had left for the day and the decision was made to attempt to reach the AGAG in Texas.

So
1) they knew Clement was gone and fake called his empty office cuz they knew AGAG was more likely to approve, or they fake called to keep Clement clean as above.

2) They tried Clement and he balked; they make up a story that sounds like they never got ahold of him; because they got ahold of gonzo, who always says yes.

Even if they were blind-sided by the Comey testimony, the timing is wild.
I am looking back at the liveblog on Kos.
Specter got testy after comey finished, owing to the 21 minute uniterrupted testimony. That was at 10:34 am.

In the Transcript, specter timestamps the start of his questions:
"And we do have second rounds. And we do have eight -- seven Democrats here. It is now 9:48 -- 10:48. And at the start of this hearing I asked my colleagues among the Republicans to join me here."
According to the Liveblog, the Gavel ended the testimony (with applause) shortly before 1141 a.m.

The internal FISA deliberations in the McConnell Timeline started at 12:53 pm.

The Transcript of the hearing was published by CQ wire service in 5 parts, starting at 1:33 pm. and ending with Part 5 at 2:23 p.m.

I assume many folks in the DOJ, Admin and Intel were appraised of what happened earlier in the SJC. The FISA deliberations continued from 12:53 to 5:15, which is when they supposedly called Clement. I find it hard to believe that the Comey testimony was not a part of the discussion. Goldsmith noted in his book that Clement was soft with respect to Addington's hard line on many issues. We also know that Mueller was in the Comey camp over the March 2004 disagreement, and he remained firmly so by providing his notes and testimony in July 2007. Whomever was doing the 4 hour deliberation, I'd guess Mueller was on one side of the fence and that Addington had a hand in the other side of it. if so, Addington's camp probably wanted Gonzales rather than Clement to make the final call if there was domestic involved.

I'm having a hard time with the claim that it took them two hours to find AGAG, in Texas for a speech to USAs.
Shouldn't his itinerary and a list of contact numbers/locations have been on file somewhere, in case of emergency? I'd expect at least that much from any one I might reasonably be expected to need to get hold of.
Oh. I forgot. This is Bushco, where competence is not a requirement.

Back to EW's speculation, perhaps a good portion of the 5:30-7:15 time was a debate between Clement and the OIPR, and when Clement wouldn't budge the were forced to call Gonzo. I think the business about multiple calls and unable to find the AG of the US when he is undoubtedly traveling with aides who all have RNC issued blackberries is covering something.
There was either a problem with Clement or Gonzo had to gather up his cojones by conferring first with Addington. Gonzo was hours before the target of a big bad SJC testimony, so I'd guess he was skittish....

clarify:
Only hours before, Gonzales had been the target of a big bad SJC testimony, so I'd guess he was skittish...."

EW - But is it possible that Clement, after something that FISC said, refused to sign off on the wiretap?

I'd say lots is possible but I don't think that was the sequencing. Under the emergency wiretap approach that seems to have been described in the pieces of testimony so far and under statute, it is pretty much up to the AG to decide if an emergency exists and what he is going to do about it, with the judge really only getting a "say so" when the after the fact application is made. (1805 f-1 and2)

...when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

So while it could be that they had a FISA judge (and I don't know if the FISC firewalls would still require it to be the Chief Judge or not) they were talking to and that Judge said something that made Clement agree that there was no basis - but then they got AGAG to come back and re-do the notification, I don't see it happening that way.

I really truly believe that, since Clement is Sol Gen, they want to keep up 'plausible deniablity' on his part as to any misuses and disputes regarding teh program. I wouldn't be surprised if they argued 'just long enough' to get him out of the office as a back up. But between the difficulty getting AGAG once they decided they did want him after all, and all the prior hashing around - - I just have to believe that what they had was more a stored communications issue, where there was a lesser impetus on speed bc they knew they weren't losing anything. I also tend to think that the problems were bc they knew for what they wanted to do, they didn't have a good faith basis to argue there was probable cause to believe that their activities would only be invading and seizing foreign to foreign communications and also they knew that when the 72 hour application was made - on top of those issues, the judge would also see that no true minimization procedures were employed.

So I think the conversations went along the lines of - hey, we know that the FISC thinks what we are wanting to do is illegal and we have pretty sure and certain knowledge they would deny a request to do what we are going to do. So, given that, but also given that we want to do it anyway (maybe even have an order from McConnell or the Decider to do it anyway?) what do we do?

Do we go ahead and proceed under the emergency measures? Which means someone has to deal with initially pissed judge and also with the resolution of the application when it is made.

Or do we just do it and don't tell anyone? Which we had been doing but now have a FISC that thinks it has been given jurisdiction by submitting teh program for operation under their auspices and, with such a high profile case, someone is going to know what we did and that we did it without going to the court despite our public statements to the contrary and -- -- to the extent a telecom is involved, they may even demand that we prove we are operating under the 72 hour emergency approach and won't help us if we can't say someone gave the notice to the FISC as set forth in the statute.

Or do we not do it? And if not - where is the pressure coming from to do it anyway (guesses anyone?) and can we afford to piss them off either and is there any chance that our trawling really will help things and are we turning our back on solidiers in need?

And while we're all arguing about it - can someone at least try to put together some kind of argument that might fly under probable cause or some kind of minimization procedures the court might buy? And let's see what we get put together before getting AGAG on the line with the Judge.

And someone wait till Clement is out of his office and then pretend you went to get him - we need to paper that we weren't sitting on our hands, but if we pull him in now he'll have to know exactly how the program works and he'll know we are getting ready to do things the court has said we shouldn't and with cases on appeal, giving that knowledge to our Sol Gen (after things he's already done) is not a good idea.

That's all spec - but I personally can't see anyone waiting so long for anything involving getting "authorization" for real time insurgent to insurgent communications that they knew how to access. I mean - these were people who were all ok with signing off on torture and kidnap and likely the end result of too much torture in a pit of depravity.

I do see someone waiting while they all argue over raiding older stored communications banks with flimsy searches to try to get enough info to narrow down to where they can make "real" searches. And I do see, despite the FISC having said they can't do such a thing, someone like Cheney/Addington telling them to do it anyway - esp if before putting the program under FISC they routinely got by with such a thing.

And by then, I can see a telecom or communications storer saying - if you want us to cooperate, we need to know more specifics on WHY you don't have a warrant for communications that will involve massive amounts of US communications (I keep using massive bc McConnell is the guy who said there is potentially 'massive' liability IIRC), especially withall the public statements about bringing the program under the court's supervision. At that point, someone has to be able to tell them they are in at least the toe holds of operating statutorily under 1805 imo.

The delays may have even been trying to sell the telecoms or communications storers on what they wanted and providing it without that messy step of invoking the emergency procedures. And the AGAG delay, more specifically, in getting back to them and on the phone with the FISC Judge, might have been that the initial call came in while he was speechifying, but an aide was briefed - aide went and whispered the problem in AGAGs ear, and AGAG spent some arm twisting time of his own with telecom counsel, perhaps, or getting briefed by Cheney on how Cheney wanted him to handle things, etc.

But I just don't buy Clement 'informing' the court, then getting info from the FISC judge and then backing out, only to be replaced by AGAG informing the same judge of the same stuff. Could be though - who knows?

I can very much imagine, though, that AGAG thought he had nothing that could happen to him if he did just go ahead anyway. But esp with Lamberth making the statements he made in June about the FISC barring misfeasors, malfeasors and fibbers before -- I just gotta wonder if the court didn't have a reaction. And by then, too, the court's best contact - Baker - was gone. And Comey was explaining who exactly tried to get the order signed off on (and of course, I think that order was tied to court requirements fwiw) etc.

I think Congress really needs to up the ante by asking the Chief Judge to come testify (and any other Judge who may have been involved in the process), behind closed doors initially.

Hate to say, "I told you so" but....

This from Politico --

Former House Speaker Newt Gingrich will open a website by Monday in an effort to round up the $30 million in pledges that he says would be his ticket to entering the race for the 2008 Republican presidential nomination.

He'll get his 30 mil. It's been the plan from the beginning. And Hillary is in deep shit against Newt. Bill Richardson is in my opinion the most likely guy to beat him.

Mary:
I understand the AG centralization of FISA, but there is something in the McConnell letter and the anonymous DOJ source at TPM that suggests FISA emergency procedure is delegatable:

The McConnell timeline specifically notes Clement was called first for signature... The McConnell letter notes he was acting AG while AG was out of town, and doesnt specify that this was limited to USAtty issues. thus acting AG can sign off.

The TPMm article from a few days ago notes that McNulty was a candidate to sign off but had resigned. This screwed up all our predictions of timing because we assumed the event occurred after McNulty had actually left. but maybe, upon submitting his resignation, he relinquished operational duties.
He submitted resignation letter on May 14th, one day before this event.

At any rate, the TPM source got the bit about Clement going home correct and also notes McNulty would have once been able to signoff, so I don't think the Gonzales sign off was a necessity. It was elective. It introduced more delay, and if "even a few seconds matter" as McConnell alleges, this delay must be meaningful.

I think McConnell is a lying stooge and we should not pay attention to him.

There, that felt good. Actually, I think the time line problem is only that they had to get their stories straight on the limited intelligence hang out that Abu did - keep it straight that the whole nine yards of off record intelligence programs that was once called 'The Program' , was to now only to refer to the warrentless wiretapping. That, and they needed to practice their 'I do not recalls'.

Aside: I think blogsphere is not a parasite, it is a remora that attaches itself to the belly of the beast and feeds on things that go past it.

drational:

FISA defines AG to include the AG, or acting AG, and Deputy AG (they don't mention acting DAG). So it is interesting that McNulty hasn't been mentioned or in the loop at all.

As a matter of fact, to add to the timeline - May 14th is supposedly when McNulty submited his resignation.

http://www.cnn.com/2007/POLITICS/05/14/justice.mcnulty/index.html

Someone needs to flesh out why a) they didn't go to McNulty, who was staying on still and b) why they did go to Clement and why, having decided to go to him, they dropped it so immediately upon finding he was out of his office. Phones exist and who in DC leaves their office so soon after 5 and doesn't expect they might get an emergency to deal with still that evening?

If they were worried about secure phone lines to discuss issues re: teh program, then it would have likely been far easier to try to bring him back to the office than to get secure line arrangements for Gonzales (which might have been a part of the delay).

Was Clement's status as acting AG for the USA matter deemed to bring him within the statute, even though he was only acting for the matters Gonzales was recused from? Or was he, perhaps, acting for additional areas as well? Was he being treated as acting DAG bc of McNulty's resignation, even though McNulty was staying on? Had Gonzales had to privately recuse from more matters than we know about? Was Clement being approached as Sol. Gen and therefore as someone who could give some of the certifications under FISA (for the group including nat sec. employees of exec branch who had gone through advice and consent) Or was he really just being contacted and tapped to try to mediate some of the dispute and not bc anyone thought he could sign off and that's why they dropped it so quickly?

No real way to tell if those, or any of a myriad of other possiblities, apply.

and btw, WaPo says that "other" warrants had already been granted in the case by the time all this dispute came about.

OK - I've read the timeline now and it recites that Clement was made acting AG while Gonzales was travelling - so that explains that - they weren't relying on his acting status under the USA matter, but a separate delegation of temporary acting status to him.

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