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May 16, 2007


Nice picture and article in the Guardian! Congrats!

And as Marty Lederman pointed out, Bush tried to talk Comey out of his opinion, then caved only when he realized he was faced with the resignations of several top people at DOJ, including Ashcroft. Ashcroft, his deputy and others resigning would have exposed the program. ("They did something so bad even Ashcroft thought it was illegal!") Bush really had no choice at all, faced with men of (some) principle. Too bad they were evidently the only ones in his Administration. There is a lesson for Dems here.

I try to read everything you put up (btw nice work getting into the Guardian!). Sometimes the legal convolutions are more than my little brain can handle, but be that as it may. It seems to me that one would have to be a bear of VERY little brain to escape noticing that Bush broke the law here. And I'd even go so far as to say that the SCOTUS would find it so, too. Where is the class action lawsuit? Where is the ACLU? This oughta be a *cough* slam dunk! And even if we can't try a sitting president, can't we argue that the Justice Department should have done its job and nailed the WH for its lawlessness? I just don't get it. But then, ... well, you know the rest.

There have been so many signing statements that (supposedly) changed law or protocol or procedure, I'm sure that the President feels he can override the OLC if he feels that will fit his new "responsibilities" and powers. Their/his argument is probably centered on terrorist interception under the Patriot Act and the War Authorization. He's made that statement before. Why change now? And it's not surprising that we're back to this...I think they feel they are up against the wall and it's bunker time. Besides, we're only a year and a half from the election. Gotta set up the listening and data mining now to prepare. (Oops, paranoia again. Silly me.) Besides, who really thinks they stopped?

Hagel calls for Gonzo to go... no 'moral' ability to run the department.

Bush clearly is on the same page, there.

Another shiny object is the Domestic Surveillance Program. Everyone seems to be accepting the CW that this program was what Comey and Ashcroft found objectionable. On the face of it, it would seem to make no difference which program they objected to, given the brazen and despicable lengths the Bushies went to in order to get it authorized, but this is illusory. When the full details of this particular melodrama are known, Comey and his crowd are not going to end up semlling any better than the Bushies, because I am fairly certain we will find that what they objected to was an intrusion not on the individual liberties of citizens, but the prerogatives of large corporations (Communications companies), and the "changes" needed to bring the program into their version of 'legality' had more to do with providing the fig-leaf of compulsion to companies who were worried about their P/R peril when their customers found out how easily they had sold out to admin pressure. Beware of lionizing Comey and Ashcroft. Both may in fact be men of principle. The question is WHICH principles?

I haven't seen anybody draw what, to me at least, is the rather obvious conclusion about all this. In March 2004, George W. Bush was in the middle of a very tight re-election campaign. There is no way he could have been re-elected if Ashcroft, Comey, Mueller, et. al. had resigned on a matter of principle involving civil liberties. Comey and Mueller responded to this as if it were a coup attempt (Mueller sends FBI agents as muscle to protect Comey). Unfortunately, I think they got outfoxed and the lawlessness of this Administration continued.

"He still reauthorized the domestic spying program in spite of the fact that OLC had determined it had no basis in law."

That about sums it up. You would think with one unlawful act after another (signing statements, et al) that we the people would be impeaching his ass by now. That it has not occurred yet is ineffable and bewildering to me...(and even though I was very young, I still remember Watergate -- and this WH makes Nixon, et al look like boy scouts)

Comey's testimony was so fascinating. I know there is more dirt that they have not unearthed with him. I hope SJC gets more in private from Comey.

Keep writing and screaming Marcy -- we need you. Congratulations on your great piece in the Guardian.

Marcy I don't know how you do it day after day -- sometimes I am so enraged by the administration before breaksfast it's hard to put together a coherent sentence the rest of the day. This country owes you, FDL and TPM a huge debt of gratitude.

I'm sure I'm missing something in the timeline, but if the program's "legality" needed a sign-off from DOJ every 45 or 90 days (I've seen both time periods cited), what changed between the last time DOJ signed off and their refusal to do so at this (following) review?

And there you have it. Knew it was illegal, did it anyway. Nothing we haven't all known for years. It will set a bad precident if congress doesn't act on this now certan knowledge.


There are two parts to the domestic wiretap program. THe first, actually intercepting the signals, was bid out under Clinton. There were real technical reasons to do so, but if you've got a gripe with that part of the program, that's where you need to start.

That physical change permitted the wiretapping of Americans without a warrant. And it also permitted the collection of all the metadata in this country.

But if you listen to DiFi, it sure seems like she's talking about the warrantless wiretapping.


The change was a new AAG wh came in in Fall 2003, who heard of some problems with the program, who then got permission to study it's legality, and did so just before the March 2004 sign-off period.

EW - I am familiar with the pin register procedures developed and implemented under Clinton, and that isn't exactly what I am talking about. Last year, under questioning from Specter, Gonzales specifically stated that the hospital visit that Comey referred to in yesterday's testimony was NOT related to what he then called the "Terrorist Surveillance Program" acknowledged by the president, but to a different program. Gonzales is less of a bumbling moron than circumstances have forced him to appear, and he is VERY careful about wording. So there is another program, possibly a data-mining feeder program refrenced on Frontline recently, but also possibly a blanket-intercept program about which we have no details. In any event, it defies both history and personality to be assuming that Ashcroft and the people with whom he surrounded himself would, after 2 years of steady implementation, suddenly find something objectionable about a simple overseas-domestic intercept program. More likely, something about the program had changed, like, perhaps they were beginning to get complaints from the corporations whos collusion they would need, over and above the Clinton-era changes to the intercept rules, to accomplish their surveillance goals. Supposition, yes, but worthy of keeping in mind. On a personal note, I am in awe at the quality and volume of your reporting on these matters. Please never stop.

The Times and Post portray this as a bureaucratic fencing match, dramatic, but susidiary. It was and is a Constitutional crisis.

Comey and Mueller prepared for a fistfight or worse at Ashcroft's bedside between Comey's FBI security detail and Gonzales' Secret Service guys. Gonzales - a member of the Texas bar - showed up to get a signature from a doped up executive who did not then retain the power of his office. Where's the bar disciplinary committee?

The President started this bushwhack by calling Ashcroft's wife, to "cajole" her into permitting a visit, no doubt "to protect national security". Smart lady, she knew that if this were kosher, the President would have called Comey, so she called him to stop the ambush of a guy who had been in ICU for nearly a week.

This time, this time, the cavalry showed up. How many other times didn't they even get a call? How many times has there been no one on the post to return it?


It is possible there is another program (or aspect of it--which could well be the collection and storage of the pin data, which it's not clear they were doing under Clinton). It's also possible that Gonzales lied under oath--as he has done on at least two more occasions.

In the Risen-Lichtblau coverage of this, though, there was indication that some within the court system (perhaps FISA, perhaps in courts where they tried to introduce this data as evidence) complaining about the program--which accords perfectly with what Comey said yesterday.

All of which is my way of saying there is a lot more evidence suggesting it is as Risen-Licthblau and Comey described, that the concerns came via the courts to a new lawyer in OLC.

Ockham, that's exactly right. The concurrent resignations of the Director of the FBI and the top lawyers at the DOJ would have been an election nightmare. The domestic spying programs would have been leaked, and the uproar and collateral disclosures would have cost Bush the election. I think that fear is the only thing that caused Bush to back down. As it was, when things died down, Bush further corrupted the process by marginalizing or replacing the lawyers who put the law above his election prospects.

As for the "revised" spying programs themselves, how do we know whether Bush has kept promises he made to make them comply with DOJ concerns? The one domestic spying program that has been acknowledged, Mr. Bush promised to operate within FISA. He has now publicly withdrawn that promise.

And where were Rove and Cheney? They didn't come up in Comey's testimony, but they're never more than an arm's length away. Neither of them could have been uninvolved with an issue so intimately involving unilateral Presidential authority and Bush's re-election prospects.

There's still something missing, the thing that Comey kept saying he would not discuss -- the nature of the illegality. Illegal enough for Mueller and Olson to jump into action when Comey hit the Panic button, to prevent it from happening. I just don't see them responding this way if the issue was a "technical" good-faith violation of the law with few consequences.

I am convinced that "something" was/is the warrantless wiretapping of political opponents, specifically Democratic politicians and elected officials.

So what happened after Friday? The program was reauthorized without DOJ. Comey had decided to wait to resign until Monday to give Ashcroft time to step down at the same time. Yet the program continued for 2-3 weeks in this illegal state. Something is missing here. Something must have happened pretty dramatically, and then there had to be massive communication between all the ready-to-resign officials and staff. Did FBI threaten arrest? Did DoJ threaten something more, like an independent investigation?


Well, that would explain the high-powered response to the news that Gonzo and Card were going to Ashcroft's bedside.
I think - WAG - that that in itself was the tipoff that Bush/Cheney/Rove were doing domestic non-terrorist surveillance, because it was such a rushed thing: if Ashcroft had known about it already and been OK with it, there wouldn't have needed to be the rush. They knew Ashcroft wouldn't go along with it, they knew Comey wouldn't go along with it, so they had to try to force it. And lost temporarily.

Considering that the bombings in Madrid on March 11 2004 occurred just after this drama, is there any possibility that the legal issues involved surveillance on people in places like Spain or Africa (IANAL), or would this sort of standoff only occur over wiretapping in the US?

I'm having trouble figuring out how the FBI and DOJ come into play if we're really talking about an NSA program here. Does DOJ and/or the FBI routinely vet NSA programs? Or, perhaps, are we talking about another domestic spying operation, this one run out of the FBI?

The warantless spying on Americans and all its variants in terms of "programs" is IMO the single biggest threat to our country and constitutional government.

Clearly there's more than meets the eye. The fact that Ashcroft, Mueller, Comey, etc would have resigned proves there was some real shit. As others have noted these guys were not the constituionalist types but very partisan Repubs. There's something there that scared these guys.

Now what I find hard to believe is that more people don't know about it. The fact that Comey spoke with such carefulness not willing to divulge which "program" and what the legal basis was speaks volumes. He knows but is unwilling to blow the whistle. In my mind he is then complicit. So are many other folks. What fear do they have? They'll be arrested for leaking "classified" information. Imagine how it would play out - govt charging someone for leaking but the public responding this was necessary since our liberties were taken without any legal basis. So what is it about these "programs" that people are afraid to speak out?

"("They did something so bad even Ashcroft thought it was illegal!") Bush really had no choice at all, faced with men of (some) principle. Too bad they were evidently the only ones in his Administration. There is a lesson for Dems here." - Mimikatz

Well there are several Dems that know about these "programs". Jay Rockerfeller hid a letter to Cheney in his safe. Jane Harman was on all the talk shows promoting the value of these "programs". We now have heard from Dick Durbin saying the classified Iraq intelligence did not amount to any rationale for invading Iraq but he was afraid to speak up since it was classified. How can he in all conscience look himself in the mirror knowing he enabled the loss of hundreds of thousands lives? IMO, the Dems are equally complicit in enabling these "programs". That is why there is no oversight or investigations into the "legal basis" of these "programs". Because if there is an investigation there will be many hands in the cookie jar including several Dems who clearly acquiesced.

Our constitutional system I'm afraid is already lost. The question is will the usurpation of these draconian powers by the state ever be chipped away???

Are we sure the mystery "program" involved surveillance? The drama in the ICU happened at exactly the same time that Abu Ghraib was bubbling to the surface. Have we ever seen the smoking gun Executive Order allowing our guys to torture Iraqis?

Bush may or may not be a distraction, but he is as dull as a lump of old charcoal.

As a former telecom guy I can say that "legal intercept" capability is something that has been a requirement in telecom bids in most first-world countries since about 2000. The law requires that telecom operators have the capacity to intercept all forms of communications in any new installation. In fact this requirement was great news for our company because all our long-time customers were forced to upgrade or replace their existing switches. Nice business if you can get it...

There’s some interesting stuff in this Kos diary from a year ago. Funny how there’s been no resolution to any of this in a year, huh? Seems things are so deeply screwed up that we don’t even know where to start…

I don't think it was Abu Graib. The military was shocked by it, but most Americans weren't. It's something that most Americans would find deeply offensive, something domestic, something intrusive that goes against our entire cultural sense of what's okay and what's not. Our standards have dropped a lot, but these three guys (Mueller, Olson, and Comey) saw something they knew we could not tolerate, something so bad that it would destroy their careers or send them to jail if they had any part of it.

None of these three are heroes. They're just smarter/more rational than the obsessed wackos they work for. They leapt into action not for us but for themselves. And that's okay. The Founding Fathers set the whole thing up to play on self-interest.

Dang, my second sentence should have had parentheses. The "It" I am referring to is the unknown crime, not Abu Graib. Preview is my friend, preview is my friend...

Side note: I remember sitting in the cafeteria at my telecom company discussing the legal intercept requirement with several engineering and scientific directors. I broached the idea that with switch-level intercept capability, with all forms of communications evolving to packets and ATM cells, and with the development of server platforms that were fast enough to analyze massive amounts of data in real time, that the real danger here was the temptation for governments and corporations to capture and analyze all data flowing into and out of a country---and then to use/abuse/sell the results.

The response I got was "yeah, so?" Everyone agreed this was where we were heading, that some leaders and some telcos would be only too eager to abuse this capability, and as the equipment provider we were not in the place to regulate the use of the switch. We provided the access port and then it was out of our hands; it was up to the telco and government to hold to ethical standards. Everyone shook their heads, shrugged, and left the table.

In hindsight, and borrowing from Tuesday's F-thread, I guess at that table we realized that no one could put that genie back in the bottle, and that we were well and truly fucked.

I'm not so convinced that there was something that they saw and immediately knew was bad. The new OLC guy came in, and it took many months to produce a report. The report was a rejection of previous decisions. BUT, once the decision was made, everyone saw the light: the one thing they had was that OLC had not previously rejected the program. But the smart lawyers knew that the OLC was GOD, and any attempt to overthrow that was bound to be bad for anyone at DoJ.

Leahy and Committee have several routes to information as to what was at the core of the Hospital Room covert op. They can ask Muller, as they have jurisdiction over FBI. They can ask the AAG who did the legal opinion for OLC. They probably could ask Mrs. Ashcroft who had custody of her Husband's Hospital Room, and who got the call from Bush or maybe Cheney before she called Comey. Finally they can ask Ashcroft himself, though I would excuse him if he doesn't necessarily remember all the details that went on about him in his post operative drugged up state. They don't have to do that in Public -- in some ways I think yesterday's committee hearing in public may have been notice that the committee already is well into this matter.

Couple of elements of what may be back-story here, helpful in seeing a larger picture. We know that James Risen was ready to publish much of this story about six weeks before the 2004 election, but the Times sat on it, and may very well have talked to the WH about it at the time. Anyhow, one element in the Risen Story which may or may not be applicable is that FBI was at witts end getting all sorts of NSA leads to search out (thousands per week as I remember) and they were pissed as hell that it was a time waste. Anyhow, Risen continued to research his spiked story, got a publisher, got a different Job so he could leave the Times, and then announced a pub date for his book, essentially forcing the Times to decide in 2005 whether to break the story, or let Risen publish letting the world know that the Times had sat on the story. So then we have the reported confrontation in the Oval Office between Bush and the Publisher and Editor of the Times (plus their lawyer) -- and they go ahead and publish much of Risen's original work, about a month before his book hits the bookstores. In the meantime both Comey and the OLC AAG had left Justice and gone into the private sector, and could well have been deep background sources for Risen's book. (not saying I know anything at all -- but there are a very limited number of people from context, who could have been sources.)

Last week something of interest happened on the House Floor quite late in the night while they were debating the Intelligence Community Budget. Heather Wilson tried to get into the budget authorization for this secret wiretapping program, and on a much better than party line vote, she was defeated. She was told by the committee chair that the whole privacy/wiretapping matter would be a seperate bill at a later date, but she persisted, calling it an emergency and all that. Now I am wondering if she knew Comey would be revisiting the matter in the Senate this week -- and this was just one more effort last ditch effort to hide something in legislation. At any rate she lost, and lost many Republicans on the vote. She voted against the whole bill because her amendment did not pass. Nonetheless, what's now apparent is that whatever this program is, it is not funded in the House Bill. That means if it is to be funded -- it will have to be included in the Senate Bill. Congress may not be able to defund Iraq, but it may be that some parts of this secret program are on the way to being defunded if the WH does not come completely clean with what it is doing and justify all of it, and perhaps let Gonzales go in the process.

I think Leahy and House Leadership know exactly what they are doing...but like all legislation, it is messy to watch.

This hospital thing really got to me. The acting AG, Comey (the Fitz appointer), is racing through the night streets of DC – lights and siren – because the White House is pulling some shit. Then, at the hospital, Comey calls FBI Director Mueller. Mueller tells Comey to hand his cell phone to the FBI guys at the scene, and Mueller orders them to insure that under no circumstances is Comey to leave the room. Think about that - the Justice Dept. is preparing for a standoff with the White House – in Ashcroft’s fucking hospital room. What if Gonzo and Card showed up with their own security?? These guys truly are the leading assholes in the country.

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