The Murdoch Media Service Obliges GOP Lies

by emptywheel

Gosh, what a remarkable coinkydink. This morning, Roll Call comes out with this story:

Specifically, Republicans are planning to use the kidnapping and subsequent murder of three U.S. soldiers in Iraq earlier this year to put a "human face" on the issue, the House staffer explained. According to this aide, while Democrats' arguments about privacy may resonate with some voters, Republicans believe using real-world examples of how a weak FISA has put U.S. troops in danger will help galvanize public support for their position.

"We're content to have the Democrats make these abstract and obtuse privacy arguments," the aide said. "As long as we make this debate ... about real world, human examples," Republicans believe they can maintain party discipline on Bush's veto and effectively fight Democrats in the public arena.

And on the very same day, Murdoch's rag comes out with this story.

U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year, The Post has learned.

[snip]

In the early hours of May 12, seven U.S. soldiers - including Spc. Jimenez - were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the "Triangle of Death."

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

Somehow, Murdoch's crack newspaper doesn't mention the fact that it was the bureaucracy at Alberto Gonzales' DOJ, and nothing to do with the FISA law, that caused the delay. As Spencer Ackerman reported a few weeks back:

McConnell told the committee today that restrictions derived by the FISA Court this year on wiretapping foreign-to-foreign communications that pass through the U.S. prevented the NSA from surveilling Iraqi insurgents who had kidnapped U.S. soldiers for 12 hours. But the source, who is privvy to the timeline of the incident, says "internal bureaucratic wrangling," and not court-based restrictions, were responsible for the lag time. "To get an emergency warrant, you just have to believe the facts support the application that someone is an agent of a foreign power," the source says. "That takes approximately five seconds to establish if you're going after an Iraqi insurgent."

Why did so much time elapse before the surveillance? Top Justice Department officials needed to approve the emergency order. But according to the source, Attorney General Alberto Gonzales was out of town; Deputy AG Paul McNulty had resigned already; Solicitor General Paul Clement "had left the building"; and the other responsible official, Assistant Attorney General Kenneth Wainstein was not yet authorized to approve the emergency order. Wainstein testified today, but demurred from answering questions about the incident in open session.

You see, those soldiers died because "Paul Clement 'had left the building,'" not because of any laws on our books. But god forbid the Republicans would actually leak the truth to compliant media outlets to accomplish their agenda.

Comments

[Jodi]

Strange all these rantings against a free press.

[katie Jensen]

Yah, you get what you pay for.

[Jeff]

What's more, if I'm not mistaken, the bill that's gotten out of Conyers' and the Intel Committee in the House changes this aspect of the bill anyway. Unless I'm mistaken.

Curious what you think of the bill altogether, with full knowledge that what ends up going to Bush's desk for signature very well may not be the same as the bill working its way through the House.

[...]

wonder how much murdoch got for that story? clearly he is on the gop payroll..

[DaveS]

**"You see, those soldiers died because "Paul Clement 'had left the building,'" not because of any laws on our books."

The laws on the books are the entire reason anyone had to try to find Paul Clement in the first place.

[Amos Anan]

I know that this is top secret and if I were to be provided with the answer Americans will die and the blood of 100,000 Americans in the coming attack will be my responsibility, but what does an in progress military assault in Iraq have to do with monitoring telecom lines in the U.S.?

Were Al Qaeda in Iraq calling their handlers on Atlantic Avenue for instructions on what to do? Are internal telecom lines in Iraq routed through the U.S.? If so, why? Especially since that would supposedly represent a legal problem with monitoring. If there are handlers in the U.S. I find it impossible to believe that the FISA court would not give an OK to monitoring. There's also the existing right for a retroactive OK on monitoring.

None of this is believable on any level.

[LM]

"what does an in progress military assault in Iraq have to do with monitoring telecom lines in the U.S.?"

I've wondered that, too. It just doesn't make sense.

[Jeff]

The laws on the books are the entire reason anyone had to try to find Paul Clement in the first place.

The argument obviously is, were the DoJ not such a dysfunctional mess, there would have been no problem. If Ackerman's story is accurate, the Post story misrepresents the nature of the problem, making it sound - as you do - that there were problems intrinsic to the law itself, as distinct from the ability of Doj - this DoJ - to implement it as any reasonable organization would be able to do.

[DaveS]

"...but what does an in progress military assault in Iraq have to do with monitoring telecom lines in the U.S.?"

Because almost every call made on the planet is routed through the US in today's digital age. That's the reason that FISA is outdated... it would require a warrant to intercept pretty much any communication anywhere on the planet, because it is routed through the US and is, according to FISA, a "domestic" communication.

This has all been well covered in the media, and anyone paying attention (rather than concerning themselves with lobbing partisan bombs) should know it.

[bmaz]

1) We have been in Iraq as the conquering and occupying authority for five years and can't intercept terrorist cell phone calls there? WTF?

2) If we really knew they were using cell phones, then we would have specific enough information to insure no American's info would be intercepted and, being only foreign-foreign at that point, nothing else was needed.

3) Did someone forget about the 72 hour exigent circumstances provision?

4) Even if you make it past items 1-3, why didn't one of those tough guy, patriotic, do anything for the troops, Republican Daddies just do the right thing and have the balls to accept any consequences? They all jaw in reverence about Jack Bauer, but not a freaking one of them has the balls to be Jack Bauer; when its crunch time, they are always yellow backed cowards of the highest order, never willing to join the battle themselves. They must have all been drunk in a Texas gutter, had "other priorities", or been suffering from a pilonidal cyst that day.

[DaveS]

"If Ackerman's story is accurate, the Post story misrepresents the nature of the problem, making it sound - as you do - that there were problems intrinsic to the law itself, as distinct from the ability of Doj - this DoJ - to implement it as any reasonable organization would be able to do."

Nonsense. It makes very clear the circumstances of the relevant officials, and it doesn't sound "disfunctional" at all, but, rather, about what you'd expect when dealing with such high level officials who are very busy.

The underlying point--and the problem with the law--is that it is patently absurd to require a FISA warrant or a AG approved emergency FISA exception to intercept a call between terrorists in Iraq. Part of the problem, also, is that so many people are willing to pretend that it is NOT absurd for purely political reasons.

[Mary]

1. Surveillance did start right away.

Per McConnell's timeline,
http://www.talkingpointsmemo.com/docs/fisa-timeline/?resultpage=3&
on May 12 when the kidnapping happened, "theatre-based and national sigint assets responded by dedicating all available resources to obtaining intelligence..."

At that time, there was an existing order from the FISA court allowing surveillance techniques which could be used in such a situation. On "May 13 and 14" leads were developed using existing surveillance techniques. On May 14, per the timeline, they approached the FISA court "...for an amendment to a then current order with some bearing on the hostage situation. The amendment was granted that day."

2. As the issuance of the amendment shows, even an actual order (basically the 'warrant' they talk about) could be issued almost contemporaneously with the request - - much less the decision to institute emergency, warrantless, surveillance.

3. There is no actual proof or evidence that the FISA court has or does "require a warrant" for "agent of foreign power to agent of foreign power" communications, because the pass through a US switch and for spoken communications there would be no basis under FISA for that type of holding - I don't buy, don't believe it, and think that they are conflating phrases - like Iraq/9-11. Per Kate Martin via the Muckraker:

FISA expert Kate Martin of the Center for National Security Studies also finds McConnell's statement dubious.

"It's totally implausible, like the claim about the arrests in Germany. Doesn't NSA have collection capabilities in Iraq? If so, they are totally outside FISA," Martin says. "Even if they're taking the Iraqi insurgent calls off the wire in the U.S. talking to each other, they don't need a court order and no court is going to bar them. Or is it that the NSA is so incompetent that it doesn't know they are Iraqi insurgents talking to each other and they were just blindly searching all traffic, which the court said they weren't allowed to do?"

4. What FISA does not allow, and where things get interesting, is calls involving foreign persons who aren't agents of foreign powers and non-spoken communications like emails. Can NSA scoop up all foreign to foreign communications that go through US switches and/or can NSA scoop up or mine through all kinds of foreign to foreign emails where there is no probable cause to believe that those calls involve agents of foreign powers - just foreigners. That's the problem IMO and it works with some of the rhetoric they are spouting too. They pretty carefully tack on "foreign to foreign communications" when they talk about terrorist communications. Ross Feinstein, for McConnell, told/queried Spencer Ackerman: "Should we be spending time having to go through such a process to intercept foreign to foreign communications?" leaving off the "where there is no probable cause to believe that either party to the communication is the agent of a foreign power?"

5. Someone needs to flat out ask the direct question - was the problem with probable cause that you KNEW you would be seizing and searching through many communications that would not have anything to do with foreign insurgents at all, i.e., you were going fishing? Bc that is the only way they would have had that problem.

6. Someone also needs to flat out ask if FISA approved the emergency authorization at the end of the emergency period and if not - who is facing charges? If so, didn't they resolve the situation within FISA and without any changes to statute? So are the changes to insulate someone who should be facing charges for FISA violations?

7. Per the timeline, once they "tried" (after dutifully waiting until 5:30) to reach Clement, who was acting AG but who had stepped out of the building - presumably with Blackberry, why did they immediately swap over to AGAG and spend another couple of hours trying to get him instead of having Clement come back? Was it bc they wanted to do something that they knew would NOT be approved at the end of the 72 hours and so they didn't want to involve Clement, just someone who had already been willing to be signing off on FISA breaking warrantless surveillance for a few years anyway?

8. Notice that no one operated under the believe that they could forego warrants and use the Foreign power to Foreign power warrantless exception - only the emergency warrantless exception was attempted.

[radiofreewill]

This is an 'emotions-first' piece - actually the whole fucking BushCo ploy here is an 'emotions-first' play - that seeks to give irrational 'rage' in the Base a target (other than Bush's ineptitude) for their 'frustrations' - this time it's the 'phony' FISA Law.

This is dangerous. It's throwing gas on a fire, rather than helping to put it out.

Murdoch is pressing out completely partisan, Ideological Propaganda, intended as 'Hate-bait.'

[Mary]

One last item - nowhere does the timeline mention the actual granting of the FISA order subsequent to the emergency request.

Maybe they stopped shy of that - or maybe it never happened.

[DaveS]

@bmaz, you don't understand FISA. If the call is routed through the US, it requires a warrant under FISA, so that answers #1 and #2.

Re: #3, if I recall the 72 hour provision allows them to intercept the call, but they can't listen to it until they get the warrant.

Re #4, seriously? You consider that sort of "argument" to be reasonable?

Why are you guys so set on defending FISA? Even in the absence of wartime powers, etc... it's a horribly outdated law.

[Jeff]

It makes very clear the circumstances of the relevant officials, and it doesn't sound "disfunctional" at all, but, rather, about what you'd expect when dealing with such high level officials who are very busy.

As I indicated in my first comment in this thread, I am not defending anything here, just to be clear. But again, first, if you can't recognize that a DoJ that has been decimated by the sheer corruption and incompetence of the Gonzales regime is not "what you'd expect when dealing with such high level officials who are very busy," you are pretending as much for purely political reasons as those you accuse of not recognizing the absurdity of FISA in light of this spring's court ruling are.

Second, the fact remains that if Ackerman's story is accurate, then the Post story is simply a lie, regardless of what one thinks about the law; thus, for instance, the Post story would be false in stating:

But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Finding one of the few DoJ officials left has nothing to do with "cobbl[ing] together. . . legal grounds."

Similarly, if, as you seem to concede, the trouble was finding the relevant officials, it is false to state:

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

They were not, according to Ackerman, "discuss[ing] legal issues," as though the legalisms held things up. They were waiting to find one of the few officials left in DoJ capable of providing the relevant authorization.

[bmaz]

Why DaveS., I believe it is you that doesn't really understand the complexities of FISA; you are relying on mindless GOP talking points. Mary has been kind enough to edify you (and for the record, I believe she is being overly generous to your side in her discussion under her item number 4; I don't think it buys your argument one ounce of relief here). Lastly, you bet your ass I am serious about my number 4. And, under the one in a billion chance your bleating simpleton claims turned out to be true and there was a legal violation that resulted, that would be a proper situation for the Presidential Pardon Power (as opposed to the petty, immoral and self serving obstruction of justice reason behind the Libby pardon).

[Hugh]

The story is bogus for multiple reasons.

First, no one has ever maintained that the NSA couldn't monitor international to international communications, this includes traffic going through US switches. Routing information should have been able to distinguish between domestic calls and international ones.

Second, even had their been a question about US switches, the NSA still had capabilities to monitor international to international communications outside the US.

Third, an emergency order should have taken a 5 minute phone call, not 9 hours, and all of that delay can rightly be ascribed not to deficiencies in FISA but to bureaucratic bungling. A shocking idea I know given this Administration's record. It should be remembered as well that FISA allows a 72 hour period for surveillance to begin before a request must be submitted to the FISC.

Fourth, it seems slightly incongruous that this Administration that has violated FISA blatantly for years should suddenly get religion about it just as a life and death situation presents itself.

[seamus]

OT- but very interesting. a Chicago Federal court has ordered discovery of the DOJ political prosecutions.

The litigation, entitled Beam v. Gonzales, questions the actions of former Attorney General Alberto Gonzales and Federal Elections Commission chair Robert Lenhard in going after a group of Edwards fundraisers.

snip

Gonzales personally authorized a small army of nearly 100 federal agents to raid a law office and simultaneously raid the homes of its employees and their families. Indeed, one agent commented about how he had been flown in from Iraq to help find out why American citizens had made contributions to the John Edwards campaign.

link

[Mary]

Italics begone

bmaz - I am trying to be overly generous on #4. I think from the nature of the desires to ditch any court supervision and ditch requisite minimization procedures, they pretty clearly want to scoop up US persons communications too. But I do think that the foreign to foreign, where there is no reason to believe either is the agent of a foreign power as defined by the act, has come up and so that is an argument that can be conflated in - I also think that stored emails, being stored with a US facility - are an area where warrant issues might exist under the act.

Clearly - those things could be addressed by targeted legislation in a way that would make many people feel relatively comfortable.

I think that the reason no one wants to have the "no probable cause to believe they are an agent of a foreign power" argument is that then they have to say to the world that the US courts and US legislature will allow a US President to rifle through all communications and emails of foreign corporations and businesses and individuals; and to do anything that President wants, unchecked and unsupervised, with that information.

Particularly after SWIFT, this is the kind of thing that will make companies, people, etc. reluctant to use US entities and flow throughs if they can turn to an alternative source with less arbitrary and abusive privacy protection for their personal and financial information.

So everyone talks about "terrorist" communications but is drafting for ALL foreign communications and to even dragnet US communications with it.

Keep in mind, the only Judge (other than what FISA may or may not have done when 'teh program' was submitted ) to rule on the merits of the program found it to violate the Constitution.

The discussion needs to be reality based - how much dragnetting and of what kinds, duration, and storage of dragnet info could/should be allowed and how much supervision is appropriate.

With the overarching issue that Congress shouldn't collude with the Executive to violate the Fourth Amendment.

And the sad reality that a Dem Congress will engage in that collusion, almost more readily that the "rubber stamp Republicans" At least when Republicans ran the Congress, early on after the program was revealed, Gonzales admitted that he hadn't gone to Congress for authorizations bc he thought they wouldn't give it.

How times have changed with the Dems in charge.

[bmaz]

Oh Mary, I was not busting your chops in the least; just letting the other cluck know that I did not think your graciousness bought him any relief on his insipient argument. And boy, howdy, your last two clauses are the bitter truth.

[Mary]

One other quick item. Clement, as acting AG, isnt' the only one who could have made the emergency request (and btw - did anyone ever get that designation as acting REVOKED before Gonzales did make the request or was Clement still, as Comey was when Gonzales approached Ashcroft, AG when Gonzales made the call).

McNulty, as DAG, is empowered under FISA too. He had just the day before announced he was resigning. Odd timing that, isnt it? The day before the whole place falls apart over a surveillance request that, as it is being characterized, should not have required a warrant at all, and a couple of days AFTER the kidnapping and AFTER amendments were sought and granted to a standing FISA order - - McNulty resigns. In any event, he stayed on for some time and he very likely could have made the request. Why didn't he? Why doesn't he feature in at all? Why hasn't anyone asked Clement or McNulty why they were so unavailable during the emergency?

Sounds pretty fishy to me.

I wonder how long the odds are that Gonzales went ahead, knowing the order request would be turned down and knowing why and knowing about previous admonitions, but unconcerned that he, as AG, would authorize anyone to pursue the AG for the FISA felonies?

[benjoya]

it seems slightly incongruous that this Administration that has violated FISA blatantly for years should suddenly get religion about it just as a life and death situation presents itself.

understatement of the year

[bmaz]

To tag onto Mary's comment, I don't recall ever hearing a logical and valid reason that Ken Wainstein "was not yet authorized". A guy who's very job description is to lead and make decisions in precisely these situations somehow was "not authorized" despite possessing every prerequisite necessary and having been confirmed almost a year earlier to perform these duties. There are a plethora of reasons why this clusterfuck occurred; all pretty much attributable to the incompetence and criminality of the Bush Administration, not the existence of FISA.

[P J Evans]

Funny, there didn't seem to be any problems with FISA when Clinton was president, or before that, either. Only since Shrub and Darth were appointed to office has it become a Big Problem needing Radical Revisions. [caps intended, along with the implied snark]