Data-Mining

by emptywheel

I've been arguing for two years that the secret that Bush was hiding about the illegal domestic wiretap program is that they were using crappy data mining programs to pick their targets for wiretaps. In tomorrow's NYT, they're almost done filling out that picture.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

Though Shane and Johnston don't seem to have a sense of how using data-mining to pick targets might introduce problems into the entire concept of probable cause.

It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

Somewhere--I'll have to look for it--there's a reference to the program expanding once they got Abu Zubaydah's computer. Which suggests they took a data profile of one terrorist and all the contacts he had in his laptop, and assumed that everyone else with a similar profile was also a terrorist. I've long suggested that they may have wrapped up folks who shopped the same falafel joints as genuine Al Qaeda targets (ut oh--Bill O'Reilly may be in trouble).

Though there are signs this is a limited hang-out of the program. I suspect, for example, it may focus on an aspect of the program  that was ended--the bad data mining, while ignoring an aspect (US to US communication) that perhaps wasn't ended.

Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details.

And it wouldn't be an NYT article if it didn't include self-serving justifications. Why is it, do you suppose, that the NYT has waited until today to tell us they were conned into spiking their story in October 2004, just weeks before the presidential elections, because the Administration claimed there had been no disagreement on the program???

The first known assertion by administration officials that there had been no serious disagreement within the government about the legality of the N.S.A. program came in talks with New York Times editors in 2004. In an effort to persuade the editors not to disclose the eavesdropping program, senior officials repeatedly cited the lack of dissent as evidence of the program’s lawfulness.

[snip]

Mr. Gonzales’s 2006 testimony went unchallenged publicly until May of this year, when James B. Comey, the former deputy attorney general, described the March 2004 confrontation to the Senate Judiciary Committee.

I mean, you'd think an entity dedicated to the art of journalism might, when they heard Gonzales' claim in February 2006 that there had been no serious dispute ... you might think they would have revealed that they had been sold that bill of goods two years earlier, only to learn those were fraudulent goods. But I guess NYT thought they'd get around to telling us this in their own sweet time, huh?

Comments

[cboldt]

-- Though Shane and Johnston don't seem to have a sense of how using data-mining to pick targets might introduce problems into the entire concept of probable cause. --

It's a knotty balance.

With greater surveillance, ostensibly aimed at gathering foreign intelligence, what to do about overhearing a purely domestic hit contract?

Pardon the stream of consciousness hypothetical situation.

I've resisted forming an ultimate opinion on both the data-mining and (so-called terrorist) surveillance programs. I hold that "against FISA equals unconstitutional" is false, so you see generally where my head is.

Some issues are resolved on a macro level, and others on a fact-specific "after being charged" level.

My concern was, I'm sure, seen by others before I did, and I've seen it stated (albeit rarely). But the combination of "we think this person is bad" and "we have the right to incarcerate base on our belief" is dangerous.

The trade off with more aggressive surveillance is a risk of prosecution lost for violation of privacy. It's not an easy call, and a thoughtful person will resist jumping to a conclusion in either direction.

[bmaz]

You read my mind. After reading masaccio's link to this article, I was going to post a comment that is basically a nutshell of your post here. 2006, my butt; what do think they are sitting on or "spiking" as we live and breathe this moment. simply amazing, and yet they continuously fail to be students of their own failed history. Secondly, and this goes back to something I said earlier, NO WAY it is intellectually or legally viable to say this wasn't the same program, as Gonzales has done. Fraudulently hiding hiding aspects of their illegality does not detract from the fact that it is, well, illegal. Third, someone earlier pondered whether or not this junk could still be going on today; of course it could, and of course it is. Lastly, contrary to the bleatings of the Administration and their sycophants, this is not a complex and/or complicated legal area. It is fucking crystal clear, and in essence is no different from the analysis of pen register devices that has been going on for decades.

[AmIDreaming]

Suppose, now, just suppose you've just been effectively blindsided by two jetliners flown into skyscrapers. Suppose further that your shiny new SIGINT toy TRAILBLAZER isn't worth its weight in scrap metal, and your bosses are screaming for intel.

What choice do you have but to drop completely any USSID-18 protections and open the floodgates to any and all collection? Even though USSID-18 violations have heretofore been among the most serious transgressions which a SIGINT spook could commit...

[bmaz]

cboldt - I see exactly where you are going with that stream of consciousness; and on this point, I am going to diametrically diverge. Irrespective of our two positions, my overaching concern is, not just the failure to attempt to process all this within the framework of the law, but the absolute refusal to attempt it coupled with the dishonesty and disingenuousness attendant to that refusal. It is my inclination that you will agree with that part, but I am interested to hear.

[Garrett]

crappy data mining programs

You got your training set. Then you got your test set.

If the system has never passed a test set, no one on Wall Street would ever bet a penny on it.

Good-enough-for-government terrorist data mining program: first name, "Mohamad"; last name, "Atta". Hey, it works!

[lizard]

I am still fairly certain that the issue Comey et. al. objected to had absolutely nothing to do with the infringement of the rights of individuals. Rather it was the use of governmental authority against BUISINESS INTERESTS. Comey, Ashcroft, Mueller, were acting in character and defending what they always have defended, the rights of the wealthy. Specifically, I think it was the telecomm people who enabled the data mining program that were starting to push back against the NSL's. Maybe they foresaw the lawsuits they are facing now.

[bmaz]

AmIDreaming - the choice is to make a good faith attempt to bring it all within the law; even if it is after the fact and after the immediate panic has subsided. At a minimum, that is the choice.

[AmIDreaming]

bmaz - Of course. But Michael Hayden, DIRNSA at the time, has publicly shown himself to be pretty vague about probable cause.

[cboldt]

On a review, I find my comment too cryptic.

First, a restatement of one comment: But the unchecked, unilaterally-decided combination of "we think this person is bad" and "we have the right to incarcerate base on our belief" is dangerous. Our system of government, and our system of justice are based on checks and balances, independent prying (and sometime adversarial) eyes.

My other thought is more difficult to convey, but I tried with "The trade off with more aggressive surveillance is a risk of prosecution lost for violation of privacy."

A person who promises to prevent crime (or prevent terrorist acts - the line between "crime" and "terrorism" is is a tough draw - what was the crime before 9/11 was perpetrated?) ... at any rate, a promise to prevent crime is an interesting notion in its own right.

The protector (who has no liability on failure to protect) urges relaxation of privacy in exchange for exposing more potential criminals. But if the surveillance is unreasonable under the 4th amendment, then the prosecution is stymied.

The point of my post isn't to defend one conclusion over the other - I honestly find this to be a sticky and difficult problem. It should be an apolitical problem. I view it as tension between the hive and the bee.

[bmaz]

Damn cboldt, and you thought the FIRST comment was too cryptic?

[earlofhuntingdon]

A little knowledge is a dangerous thing. Why do seemingly more and more journalists know or tell us less and less about the context of their stories? "Might" raise privacy issues? Duh.

Data mining - the analysis done after data has been collected - may well be the tip of the iceberg, which iself doesn't seem to have broken the surface. I suspect that "commercial databases" are only one of many sources of data that newer and more sophisticated s/w is combing.

Extensive privacy issues are at stake. There are general classes of potential abuse that should be investigated. In addition, I suspect that few regular readers of blogs such as this would trust Karl Rove to keep his hands off data flows that would let him either improve his "math", or obtain J. Edgar Hoover-like blackmail files for current or future use.

[cboldt]

-- Irrespective of our two positions, my overarching concern is, not just the failure to attempt to process all this within the framework of the law, but the absolute refusal to attempt it coupled with the dishonesty and disingenuousness attendant to that refusal. --

First, the hypothetical was for an investigator to choose between exposing a domestic hit, and exposing surveillance outside of constitutional bounds.

I think there is a big area between FISA and "foreign intelligence gathering for which no court need be involved," but I see no way to distinguish between the two without an actual case.

IOW, I'd not be keen on arguing that all surveillance outside of FISA was unconstitutional. My reaction to "it's illegal" (i.e., outside of FISA) is "So what? - tell me why it's unconstitutional."

I think you and I are similarly offended by the amount, extent and nature of official prevarication.

There are trade offs involved, and prevaricators dismiss the trade-offs by invoking bogey-men.

At any rate, "privacy" and "individualism" are extraordinarily fundamental and difficult notions.

[cboldt]

Not necessarily a cure for cryptic, but here goes.

The more that privacy is violate, the more likely the looker will find a pre-crime.

But if the privacy violation is found inconstitional, then the pre-criminal goes free, under the same protection that got him off the first time.

How much personal privacy will ALL of us give up, to protect the hive?

[bmaz]

That I will agree with.

[jazz]

Maybe I am just blowing in the wind, but once more with all that AL and EW and the rest of you have figured it is time to file a bar complaint. I do not see anyone in Congress ready to do the heavy lifting required for impeachment. Just maybe get the stone rolling down the hill with a bar complaint against Gonzo for lying will wakeup some bravery and put some guts into our Cogressmen.

[QuickSilver]

Well, Jay Rockefeller wasn't cryptic. He said in his letter to Cheney it sounded like TIA.

From the size of government contracts for data storage, it sure seems like they are saving every damn thing.

[the third man]

bmaz, re: cbolt
hear hear!

Wouldn't it be great if on the 33rd anniversary of this letter there was a similar one from George and Dick? But please hurry, just 12 more days!

[bmaz]

Just to clarify, my agreement was with the 18:44 comment; I had not yet seen the 18:49 comment when I posted. As to the 18:49 comment, I am not sure whether you have failed to cure the crypticness, whether I am dense, both, or neither. I trust you meant to type unconstitutional; if not, then the dense explanation is looking better. At any rate, and I fully admit that reasonable people may differ, but, to me, "the hive" IS privacy, our other rights and the constitution. I think any of our lives individually is subservient to the principles and the process. That is one thing that eats at me at the Administration's line of bologna about fighting them there to protect us and it was necessary to incur the losses over there to protect us. We have lost somewhere on the order of 3,700 soldiers in Iraq; close to 5,00 if you include the civilian contractors that have been lost (and which would have been included casualties in any other war). And for what? Most all rational people, by now, agree that Iraq has made us less safe overall. But, even if the converse were true, are you (figuratively, not cboldt or anyone else individually) telling me that 5,00 americans would have died here without going? No. This has been one of the biggest shams in the history of the world. As you have eloquently stated, the "prevarication" and "straw men" artifices that we have been plied with are, indeed, unconscionable.

[Boo Radley]

Thanks bmaz and cboldt for an excellent discussion. Another metaphor might be the tension in Xtian theology between social and individual responsibility. Another take is that privacy and the public good are "permanent existentials" that overlap in difficult cases.

[the third man]

letter
(sorry, screwed up the link)

[bmaz]

Twice I mistyped "5,00" when it should have been 5,000. Consistent if nothing else I suppose.

[cboldt]

Tied up in combination with the power to peer is the power to unilaterally incarcerate/impose on a pre-criminal without answering to a third party.

At any rate, there should be no doubt in anybodies mind that some pre-criminals aim to fly airplanes into buildings, or inflict similarly destructive events aiming to maximize loss of innocent life.

It's a difficult and high-stakes balance.

What sticks in my craw is that the observer (Bush/Gonzales) fails to describe the balance except in black and white, and that the talker (Gonzales) comes off as a liar.

I felt about the same with Clinton/Reno, FWIW - although the incidents were different.

Listening to GWB on his morning talk, he points to prepaid cell phones and the internet as the technologies that require FISA adjustment. I'd concede both of those technologies as the equivalent of billboards, if the government would promise that non-prepaid cell phones had privacy. Dream on, ALL cell phone conversations are the equivalent of billboard pronouncements.

Do read the FISA changes carefully, just as it was prudent to read interrogation methods changes carefully.

[cboldt]

-- but, to me, "the hive" IS privacy --

No, I mean for "the hive" to represent submission of individual, for the greater good. The individual is expendable, if it benefits the hive.

I'm "anti-hive" in one way - that humans don't hive. I think individual personal independence and responsibility creates a superior human society.

[om/]

Plame was using NSA for domestic political group survellance. The web sites make sense because some of the targets like MoveOn, Larry, etc. had Plame complain about domestic groups and CIA using NSA, etc. on these politics.

[marksb]

Of course they are capturing and saving *everything*. They can, so this gang will.

As we've discussed before, the technology exists, off the shelf, to split the optical signal, then capture and do RT top-level analysis of all backbone traffic. "Legal intercept" gives them access to the switches and that's been in the contracts with telcos since at least 2001. This is a project that, if given to someone who actually can do a decent engineering job, could be done in fairly short order.

To expect these guys to do anything else is wishful thinking.

[cboldt]

-- the technology exists, off the shelf, to split the optical signal ... --

Some time ago I researched the statutory aspects of funding hardware to implement such a split. The fraction of traffic to be captured approaches unity.

On the upside, local community is strengthened in a measure proportional to distrust of big brother.

[bmaz]

Ah, now I see what you are saying a little more clearly. I can pretty much agree with that. And I especially agree with the charade of Bush blathering about "pre-paid cell phones and the internet" as if without those modalities everything would be hunky-dory. Every method of human communication is the issue; always has been. Out principles do not need their core eviscerated because there is not a cord on every phone, or because teletype and fax machines are more advanced and interconnected (computers and the net). As you put it, that is part of one of the great "prevarications"; namely that 9/11 "changed everything" and "the world is different after 9/11" Like hell it is; it's the same old world, we were just suddenly awakened to some of the realities of it that we had been blithely and arrogantly ignoring for a long time. The world is what it is, but that is no reason to give up and destroy that which we are founded on. In fact, that is our greatest strength in trying to overcome the world's problems and make it a better place.

[bmaz]

OM/ - What are you saying, because that comes across as, well, gibberesh.

[cboldt]

-- one of the great "prevarications"; namely that 9/11 "changed everything" --

I recall telling my better half, that morning, "expect more government." In that regard, 9/11 changed everything, and Democrats and Republicans alike will capitalize on the event to assert government over the individual.

I heard no voice say "personal responsibility and defense is strength," the universal reaction was "we failed to protect you, give us more [money|power|control] and ... [promise omitted for vagueness]"

The underlying message of "depend on us" is shitty - well, it is to me anyway, I reject its principle.

At bottom, I think most every individual in the public, regardless of political persuasion, is being taken for a ride.

[scarecrow]

One question that needs to be asked is who is leaking to the NYT and why? One group might be spinning the story to dampen the cry for Gonzales' perjury investigation, and doing so by leaking (but not requiring Bush to confirm) the old story about data mining.

Another group might be leaking this information to refocus on the real problems, which is the scope and possible continuation of programs we know little about -- the ones that Comey et al found objectionable.

If the leakers are the former group, this is all we'll get unless it isn't enough to shield Gonzales; if the leakers are in the latter group, we can expect more to keep leading reporters to the rest of the "White House horrors" (John Mitchell, for you old timers).

[masaccio]

The NYT obviously thinks I am stupid. I keep paying for this stuff, why?

Off to the Theater.

[tryggth]

There is the Hayden confusion. Also, note the use of "hot pursuit" in this WH infomercial:

http://www.whitehouse.gov/news/releases/2006/01/20060122.html

You can be sure that in the fevered minds of the WH legal braintrust sending the FBI to those pizza parlors was a hot pursuit exception to the Fourth.

[bmaz]

Scarecrow - If you look at the article closely, you will find (at least I did) that the "new" leaks don't amount to diddly squat; they are pretty much whitebread comments even though the sources demanded they remain unidentified. The real info here is stuff that has been known to the NYT for a long time, but they haven't fessed up with. They laundered it through the prism of the current situation on Gonzales, but the meat is not particularly new. At least that is my take so far.

[chris]

Yes, OM, what are you saying?
You string several little things together and only you seem to understand its conclusion. Please explain Plame, NSA, moveon, etc.

[chrisc]

Am I the only one who doesn't think this program was really about sifting out terrorists?
Granted, the FBI said that they were constantly sent on endless investigations into nothing. Kept them busy.

Now let's see- this is a huge massive data mining operation. And Karl Rove got his start doing direct market advertising - and uh, someone needed some data for the caging episodes. Am I connecting dots that are not there?

I seriously think they were also mining for possible GOP supporters- people well qualified to make contributions. And looking for malcontents to harrass if they wanted to get on an airplane.

[bleh]

I'm a little disturbed about an assumption that seems to be implicit in many of these comments, to wit, that occasional acts of terrorism can be completely prevented by ANY means.

As a thought-experiment, assume that some uber-computer were able to scan ALL emails and phone calls, apply filters and heuristics sufficient to reduce the number of "hits" to something reasonable, and provide "actionable intelligence," all in real time. Assume further that Americans would permit this.

By what fraction would terrorist attacks in the US (historically amounting to what, half a dozen or so over the last decade, mostly by homegrown right-wingers? And how many before that?) be decreased, thanks to this capability?

Does anyone seriously think that, with just average evasiveness and intelligence, seriously dedicated plotters couldn't evade such a surveillance system?

And does anyone think anything like such a system is possible? What resources do we employ trying to stop drug traffickers? How many hundreds of millions of dollars have we thrown at trying to catch Osama bin Laden? With what effectiveness?

We're arguing about the capabilities and legalities of vaporware. Our privacy is being grossly invaded for no good reason at all. These effectiveness of these extremely expensive and massively illegal tech-toys is minimal to none. The bang-to-buck is ludicrous.

Any business that tried a trick like this would go under in a quarter. And if it didn't, its management would be fired wholesale the minute a single stockholder found out.

[Murtha_Has_An_Idea]

Congress Recklessly Continues Illegal FISA Violation, Despite Option, Power, and Requirement To End It Today

I don't know what's more amazing:

1. The illegal activity hasn't ended;
2. Despite the option to block funding, the DNC 2001-2007 has not filibustered any bills that would end funding for this illegal activity; or
3. Despite the legal option to end funding, the Congress under DNC control -- without knowing the details of that illegal activity -- keeps paying for it.

The DNC has the option to cut funding, and the GOP is powerless to stop this.

Recall, a Denver DOJ Staffer [read="DoJ/US Prosecutor"] said in writing there was malfeasance by Members of Congress: Not ending the funding for illegal activity comes to mind. Sounds like a serious charge. But has anyone in Congress accused him of slander, libel, defamation, contempt of Congress or Members of Congress? No. Sounds like the charges are not disputed.

We voted for change in 2006. The DNC is giving us excuses. Cut the budgets; end the funding for things the President will not cooperate. Members of Congress who refuse to do this are arguably reckless in failing to assert their 5 USC 3331 oath of office.

Indictment

Article 1 Section 9 prohibits expenditures for illegal things.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Article 4 imposes a legal requirement on Members of Congress to asser their oath of office

Article IV Section 4 imposes a legal obligation to preserve a Republican form of government, one that includes an enforcement mechanism:

The United States shall guarantee to every State in this Union a Republican Form of Government,

Article VI reminds Members of Congress that the US Constitution is the Supreme Law; and that they are bound by oath to defend it:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

State AGs are executive officers bound to defend this Constitution.

Checklist 1

___ 1. FISA is a statute, or "law" [Check]

___ 2. Money is being spent on illegal activity [Check ]

___ 3. Members of Congress, without knowing the details, keep passing this budget [Check ]

___ 4. Members of Congress, despite the option to end funding for illegal things, keep passing bills to pay for what is not lawful. [Check ]

___ 5. Members of Congress, when not using all lawful options to enforce the Constitution and Supreme Law, are allegedly breaching their 5 USC 3331 oath of office. [Check ]

The evidence is clear: Members of Congress, despite a legal option to end funding what what is not lawful, continue to appropriate funds they reasonably know defy the Constitution. This funding amounts to an illegal breach of their oath of office; and impermissibly renders the Constitution and their oath meaningless. This defies that oath of office, 5 USC 3331.

Refusing to us use all lawful options, and making excuses -- in the absence of information -- to act, appears to be a mental reservation about one's legal obligations:

"“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law."

Checklist 2

___ "well and faithfully" discharging ones duties means using all lawful options -- including budget cuts -- to defend the Constitution, and prevent the President from using government resources to defy the law [Check ]

___ "without any mental reservation" means they have no doubt that their oath is to the US Constitution, Supreme Law, and the requirement to enforce those treaty and legal requirements using all lawful methods. [Check ]

___ Taking impeachment off the table, and refusing to cut budgets -- when the Congress has the power to end that funding for that illegal activity, FISA violation, illegal occupation, prisoner abuse, or other unlawful conduct in Iraq -- is arguably a mental reservation about doing ones job. [Check ]

Summation

Members of Congress are complicit with illegal FISA violations. Congress is wasting time waiting for evidence of a foregone conclusion: The President has violated the law; and this Congress in 2007 continues to illegal appropriate funds illegally, in violation of their oath, for things they know breach their oath and the Supreme Law.

The conclusion is unmistakable:

A. The Members of Congress have a legal duty to act, and have the power to end funding for things that are not lawful;

B. Members of Congress have, in continuing to rubber stamp funding for FISA violations and illegal/reckless warfare in Iraq, have failed to prevent illegal activity; but done the opposite: Provided funding for illegal activity, without a fair showing that the activity has been brought into compliance

C. The Member of Congress have been put on notice, well understand, and the President has not denied, that there have been FISA violations;

D. Within the ranks of the DNC are specific budgeting options the Congress could use to end funding for illegal activity, this has not been ended.

E. Members of Congress, despite the duty to fully assert their oath, have not used all lawful options to compel the President to end his illegal warfare, FISA violations and other illegal activity.

F. Members of Congress do not need more information: The President has substantially confirmed the illegal FISA violations; but despite knowing of this illegal activity, Members of Congress continue to appropriate funds for things that are not lawful; and contrary to the standards of the Constitution: Permitting only things which are lawful.

G. It is illegal for Members of Congress to provide funding to unlawful warfare, Geneva violations, and FISA violations

H. It is a breach of their 5 USC 3331 oath of office for Members of Congress, despite having the power and duty to end this illegal activity, to continue providing this funding especially when they do not have the information they need about the nature of the activity.

There is a reasonable basis for the US Attys to prosecute. The President and Congress appear to have jointly agreed not to timely review these legal issues. The circumstances are grave. The State AGs need to act today and enforce indictments against the President, VP, and Members of Congress in re oath of office violations, illegal funding, unlawful expenditures, and illegal FISA violations.

[bmaz]

Bleh - Not in the same words, granted, but that was essentially the point behind my comments at 19:08 and 19:41. Since 9/11 I have never, at any time, been more concerned about dying at the hands of a terrorist than I am at the hands of the lousy and uneducated drivers in my city or the poorly regulated and monitored food supply we are provided with. I don't see gazillions being poured into rectifying those ills, which might actually make a difference. There are probably better examples even than those, they just happened to be topics of conversation here in my house today. But, as has been noted before, the group that has been in charge of our country really has nothing to sell but fear itself.

[sojourner]

Commenting as a non-practicing journalist (somehow I got off into IT), I am appalled that the NYT (or any major paper, for that matter) would sit on a story such as this. I think Emptywheel has had some comments in prior posts about this.

The cocktail weenie circuit, I am willing to bet, is much of the overall cause, coupled with White House threats to oust various journalists if they got too critical in their stories. The reporters for the big newspapers got sucked into the glitz and glamour. It does not help that their boardrooms are probably in bed with many of the Bushies, either.

Aside from the fact that our country's greatest newspapers (and other media) have had a hand in flushing our constitution down the toilet, it is a shame that they have also flushed the credibility that they struggled so hard to build.

I am a strong proponent of the equal time rule. If that is ever reimplemented, things might change. I also think media ownership rules need to be reexamined. These were some of the tools that the Bushies used to silence the very media they were using.

[bmaz]

anon, is that you under an alias?

[scarecrow]

Related development: the Prez chose to use his Saturday radio address to tell us how out of date FISA is, and to claim their is a terrorist loophole in FISA that needs to be fixed, or he can't protect us. So just as it's reconfirmed that there were other programs going on that raised Comey's objections, the Prez is telling us, "don't worry about that; that was just us trying to plug the 'terrorist exception' and we're going to ask Congress to close that loophole, so whatever we need to do (and may have been doing before except for that wimp Comey) we can do again." No problem; nothing to see here; move along.

[Kathleen]

Amdocs, Comverse Infosy. Go watch the four part report by Fox news reporter Carl Cameron on YOu tube on Isralei communication systems and data mining.

[Tom Maguire]

Let the record note:

Here is the first Times article from Dec 16, 2005, which does mention Abu Zayadah:

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

Under the agency's longstanding rules, the N.S.A. can target for interception phone calls or e-mail messages on foreign soil, even if the recipients of those communications are in the United States. Usually, though, the government can only target phones and e-mail messages in the United States by first obtaining a court order from the Foreign Intelligence Surveillance Court, which holds its closed sessions at the Justice Department.

Just to tweak the Anon Lib, let's note that the President confirmed a program in a Dec 17 2005 radio address, and spoke about the eavesdropping.

Then on Dec 24 the Times delivered a second round about data-mining:

WASHINGTON, Dec. 23 - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

In this story it is "part of the program"; in Gonzo-world, the program the President confirmed is apparently the eavesdropping but not the data-mining.

I ought to dredge up a link to Hayden's presser as well, from Jan 2006. That is not the program the President confirmed either, of course.

Bonus query - how do we have a perjury trial on this topic and deal with all this classified info?

And does Gonzales get to sign off on what classified info can be introduced? Hard to delegate that power to a special counsel.

I vote for a Senate impeachment trial, where they can do whatever they want as far as evidentiary rules. Of course, that may have a certain red Queen feel...

[Mimikatz]

Bleh has a point--and it reminds me of Ronald Reagan and his "missle defense shield." The idea that we could totally prevent one of these attacks is crazy, and crazy-making to even try. What we really need to do is to strengthen each of the components of our system (the citizens, the families, the communities) so that we could exist after a disaster if necessary, and then just do our best to cope like we do in all sorts of other aspects of our lives.

More people have died from lax food safety regulation since 9/11 than died in the attacks. Ten times as many if you look at lax regulation generally. We learn to live in an uncertain world. These people need to get a grip. Is it just the lust for power or are they paranoid to begin with, or is it a self-reinforcing situation?

[cboldt]

-- and we're going to ask Congress to close that loophole, so whatever we need to do (and may have been doing before except for that wimp Comey) we can do again." No problem; nothing to see here; move along --

Has the modified FISA language been made public from any source? Has Gonzo put details to his request?

[J. Thomason]

CBOLDT, why rest on the criteria of "constitutionality" and "hive" insterests. There has always been a tendency to allow the executive legal leeway in responding to a national crisis. The difference here is that we have have an executive arguing "perpetual war."

And why should "illegality" as opposed to "constitutionality" be undermined though? Civil behaviour is dependent on the establishment of public values. The doctrine of "necessity" certainly requires a judgment. And the doctrine of "precrime" is merely a another semantic diversion away from existing "criminal conspiracy" standards although you do point to the possibility of more intrusive inquiry. The fundamental principle is that people are secure in their letters and person without probable cause. What you argue is a fundamental departure from the presumption of innocence. But this unfettered right is crucial to independent enterprise.

The problem is that that the current administration is prone to use legitimate law enforcement techniques for the sake of economic and social coercion. And the uses of law enforcement, propoganda and surveillance are not tools that are historically linked to one particular political ideology. Circumstances though here inevitably harken to the natural tension between "democracy" and "capitalism" mentioned by others earlier. Still, I would venture to say, on the most fundamental level evolutionary survival requires unique adventures beyond "hive" standards.

Constitutional tensions are by there very nature cybernetic, formative and procedural though there are Constitutional guarantees of substantive protections. Is it a "knotty balance?" I would say a "sacred" balance, a "delicate" balance. I do not mean to be provocative but it strikes me that the ultimate tendency of your argument is really nothing more than an argument that because the King does it it cannot be illegal especially as it is applied to give Bush unchecked power and turnning a blind eye. What else would an argument of an executive privilege to act outside the law be in the face of a perpetual state of crisis than an argument for sovereign immunity unchecked by the impeachment power. Our Constitution provides for a remedy for the criminal behaviour of the executive. It really is founded on the first principle of the most basic limitation of administrative law which checks the arbitrary and capricious exercises of executive power.

No matter how these issues of domestic surveillance are handled care should be made to check the unfettered and arbitrary assertion of power by the executive. This is not to deny the need you perceive, but takes care that the deliberation required to make these decisions is ultimately vested in the people. The fig leaf of security justifications by the executive bypassing Congressional oversite needs to be stripped away and the current executive checked for the fundamental common abuse of the principles of security. Legal structures likewise need be further evolved to move ahead with an appropriate balance asserted through the legislative instruments of the ciitzenry rather than the illegal adimistrative prerogatives of the executive. Giving Bush et al a pass in this regard is a surrender of the model of sovereignty which had emerged historically and in principle as the necessary response to tyranny in the governance of autonomous states.

[bmaz]

Hey Tom Maguire, I agree with that.

Mimikatz - Exactly my point above. I think we could throw drug safety and regulation in there pretty easily, along with the most inane and simple hospital errors, easily preventable, that cause literally a huge boatload of deaths every year. I almost got killed by some geriatric blind midget on a cell phone that couldn't see out of her Escalade today, so I am a little hot on the road and driver safety issue today as well....

[pseudonymous in nc]

I was looking back at the stuff I gathered back in December 2005 on the technology behind NSA datamining, and found this link again:

The US government has just bought the world's biggest RAM drive in order to speed up cross-checking across several vast databases...

We do know that several of the servers using the SSD storage are running Solaris and that altogether the site has about 100TB of storage, but the specific government department and applications involved have not been revealed.

However, not that many departments could possibly want to run such vast queries regularly. It would also be extremely difficult to justify a $4.7 million investment unless that work was seen as vital and speed was a main consideration in that work. It is also peculiar that such a large purchase could be approved at a time of tightening belts.

Now, we're not saying that the Department of Homeland Security is behind the purchase. Or that it is using the technology to search the various databases of people that it, the government, the NSA and the Pentagon possess. But all of them are based in Washington DC and there are of course some issues about Islamic terrorists already living in the States.

And the date of that story? March 9. 2004.

My guess all along has been that Comey and Goldsmith's objections were to the automated signal processing of voice and data comms, against the argument that if a computer's doing it programmatically across the entire network, it's not an 'eavesdrop', since there's no-one sitting with an earpiece and a pack of Chesterfields in a dark room.

[John Powers]

I've not registered my thanks yet to Marcy for her excellent reporting. Thank you, thank you, thank you.

bleh wrote: "We're arguing about the capabilities and legalities of vaporware. Our privacy is being grossly invaded for no good reason at all. These effectiveness of these extremely expensive and massively illegal tech-toys is minimal to none. The bang-to-buck is ludicrous."

An essay by John Allen Paulos Privacy and Terrorists makes this point in plain language in detail.

[cboldt]

-- CBOLDT, why rest on the criteria of "constitutionality" and "hive" insterests. There has always been a tendency to allow the executive legal leeway in responding to a national crisis. The difference here is that we have have an executive arguing "perpetual war." --

I rest on the constitution because it is the ultimate "bottom" in domestic legal analysis. My reference to "hive" is meant to induce the reader to probe the tension between personal and group interests.

I have a serious problem with the moniker "war," where the object of the war is a common and age-old human condition e.g., war on drugs and war on terror.

-- though there are Constitutional guarantees of substantive protections --

It depends on the meaning of "guarantee" and "substantive." I see both notions in play, with word games being used to convince a gullible public that "all is (mostly) well, send more money."

-- Our Constitution provides for a remedy for the criminal behavior of the executive --

At bottom, impeachment is a political remedy - and it can be used against judges as well as against the executive. I have discomfort in that solutions of "political" nature are essentially solutions driven by the weight of public opinion, and public opinion is generally manipulated.

[pseudonymous in nc]

Some time ago I researched the statutory aspects of funding hardware to implement such a split. The fraction of traffic to be captured approaches unity.

This is why I always considered those people who suggested it was oppo monitoring to be off-base.

They're sucking in everything. Because they think they can, and because Texas Memory Systems makes the kit to do it. All of your comms is belong to them.

Related development: the Prez chose to use his Saturday radio address to tell us how out of date FISA is, and to claim their is a terrorist loophole in FISA that needs to be fixed, or he can't protect us.

And Abu G used his opening statement to make the same claim. You'd be forgiven for thinking that they're scrambling to cover their tracks, wouldn't you? After all, mass automated domestic surveillance would be hard to spin to non-28%ers. Flopsweat ahoy.

[pseudonymous in nc]

In this story it is "part of the program"; in Gonzo-world, the program the President confirmed is apparently the eavesdropping but not the data-mining.

Well, in Gonzo-world, it's the bit of the FISA-violating eavesdropping they thought they could get away with confirming, and have FISA amended to give them post hoc ass-coverage.

[J. Thomason]

cboldt You are very clear at this point in these point. I suppose as a matter of process the question to you then is how do you see the balance you seek practically acheived? I understand that this is taking off from your musings, which I appreciate. I am curious as to whether while acknowledging aspects of your premises as being valid a common understanding of a mutually appreciated process is possible.

[phred]

As I read through this thread (late, but que sera) I am reminded of "give me liberty or give me death". I am perfectly willing to risk the latter to preserve the former.

[Katie Jensen]

And in a democracy it should be all about having the discussion. We as american citizens should know what the pay off is, how many pre crimes, how many terrorist attacks have been thwarted, and how much privacy did we the people give up. This should be the discussion and it can be had without having to get into specifics.

If the president had simply come to the people or to congress in a hearing and said "look we violated the law and this is what we were faced with, these are the options as we see it, where do we go from here?" To me this is how a democracy should work. This is ridiculous!! The administration policy suggests that we the american people are too stupid to have the discussion. Something happened within that gang of 8 that was not about democracy.

There are way too many secrets and not enough faith in the American people.

[phred]

bleh -- thanks for your comment, this points out something that drives me nuts... Even the premise of only spying on international-domestic connections is a farce. In data mining you're looking for patterns, so you don't just snoop on the target, you snoop on all of their immediate contacts. It's like a giant Kevin Bacon game. Let me give a concrete example...

30 years ago a relative of mine worked with Opra Winfrey. Lets say they worked together 3 years ago instead, and that for some reason Opra was a target. The spying then would include my relative, who would contact me, then I get pulled in. Within very few steps the whole planet is being spied on (what is it 6 steps? I forget, less than 10). It's kinda like chain letters, the math doesn't hold together for very long. So lets say they are trying to figure out the guest list for some swank Hollywood dinner with all this snooping of theirs. You think I would make the list? Nope, me neither.

They never intended to exclusively data-mine international-domestic calls, they would miss too much. But as bleh pointed out, the flip side is to pull it all in and at that point the software can't handle the volume (hence, it's vaporware).

All of which is a longwinded way of saying that all this snooping had to be targeted. Since we have no idea where Osama is, who do you imagine the targets have been?

[pdaly]

Today's news by the NYT reminds me of the bewilderment I experienced on my trip to Singapore in the late 1980s. Singapore was "western"-- ultraclean and capitalistic. There were three tiered shopping malls on practically every street corner. Visiting Singapore after passing through Thailand hours earlier was like landing in a Disneyland version of America in Southeast Asia. However, its government was scarily heavyhanded when it came to enforcing cleanliness.

At the time, the burning issue covered on Singapore's front page was a debate about how to keep public restrooms clean. More specifically, the article published arguments For and Against placement of surveillance cameras in the stalls of public restrooms.

The pro camera group(which was backed by the government, I believe) simply wanted to catch those dirty criminals defiling public property. It costs MONEY you know to keep cleaning the stalls, etc.

The anti-camera group offered a possibly valid-- albeit tepid-- argument against cameras in the bathroom stalls: 'Well, the small tiles used in those stalls means there is so much grout the bathrooms become pretty dirty on their own. We shouldn't necessaryily blame the mess on people.'

Hello?!! People are entitled to some privacy! Who cares about tile size and groutiness.

That trip taught me America's freedoms were the essential gifts from our Founding Fathers. Cleanliness, shopping venues and business opportunities are nice but merely at best derivative of that freedom.

The WH is eroding our freedoms. The Congressional investigations into illegal executive branch activities are starting. I just wish Congress would try out some Singapore bathrooms. Maybe they would move faster (no pun intended).

For a laugh, check out Comedy Central's John Stewart on his 7/25/07 airing of "The Daily Show." Near the end of the video clip Stewart summarizes Gonzales' Senate testimony this week:

"Alberto Gonzales is saying basically
there are "problems" of which he cannot speak
for which he IS responsible,
but not to blame.
And that HE is the ONLY one that [sic] can clean up the mess
that he can neither confirm
nor deny exits."

[cboldt]

-- how do you see the balance you seek practically acheived? --

Well, that is the 64 thousand dollar question. From my personal point of view, the answer is that I expect the vast majority of individuals will concede substantial amounts of privacy, personal power and other indicia of individuality, resulting in a society that is more socialistic than individualistic.

In other words, the notion of "balance" is subjective.

-- I am curious as to whether while acknowledging aspects of your premises as being valid a common understanding of a mutually appreciated process is possible. --

I see opposing sides as outcome driven, and both side paying lip service to "process."

[P J Evans]

Well, George keeps saying they hate us for our freedom, so that's why he's been working so hard at taking it away from us. (He may possibly think they'll stop hating us once we no longer have any freedom.)

[sojourner]

FWIW, I just read the NYT article. I came away with the distinct feeling that the authors do NOT have any sense of how technology can be manipulated.

Data mining is one thing... But I suspect that, while they were at it, ol' Karl R could have just asked them, while they were at it, to also capture all information coming from certain Internet Protocol (IP) addresses, such as the Democratic National HQ's domain. If you think about all of the activities that were probably going on at the time, all he would have had to do was give someone the IP number.

The point is, it is not just about eavesdropping and data mining. It opened up an entire new world so that the Bushies could listen to terrorists, and anyone they feared in the political world. It is just a high-tech version of the spying that Nixon ordered. Electronically, there are probably dossiers of many selected individuals both in the House and Senate and across the nation.

It sounds like something out of a science fiction journal, but it is very possible.

[P J Evans]

Well, George keeps saying they hate us for our freedom, so that's why he's been working so hard at taking it away from us. (He may possibly think they'll stop hating us once we no longer have any freedom.)

[P J Evans]

oops ... got an error message, so it's posted twice. (I really don't like Windows. It tends to be flakey.)

CBoldt - that term "precriminal" sounds a lot like "thought crime".

[phred]

Yep -- "precriminal" reminds me of Minority Report... I prefer processing criminals post-crime.

[bmaz]

PIN, Phred and Katie - Exactly.

PIN, You got to give these guys credit for their cojones. From a posture of unprecedented disapproval, they are trying to cover their tracks AND expand their grip on power at the same time. Amazing. I think they are also tapping into massive fiber optic data pipeline cables out here under the desert in addition to the stuff you describe in DC. There is a nasty little (actually massive) company by the name of ManTech run by some folks close to Cheney, including the father of Congressman Rick Renzi (R-Az) that has an inexplicably huge site in the desert south of Tucson adjacent to Ft. Huachuka, a military intel facility. ManTech specializes in what - yep, data mining.

Phred - Isn't that what our countrymen have always fought and dies for, to NOT give up the very things we are now being told to give up?

Katie Jensen - Not only did the Administration not go to Congress and the people to make it right and make it work, when Congress went to them with this in mind after 9/11, they were thrown out the door and told not to worry about it, we'll do what needs to be done and we got it covered. Prior to now, the Administration literally refused to even discuss amending FISA by stating that "we got all the authority we need". Unamerican is too kind.

[J. Thomason]

Philip K. Dick had this all figured out way ahead of time. All roads point to the psychological road map insinuated in A Scanner Darkly.

[cboldt]

-- that term "precriminal" sounds a lot like "thought crime" --

They should strike the same chord, because they are hard to distinguish. How do we measure the depth of intent? And if the intent is deep enough, lock 'em up in GTMO (or elsewhere) and throw away the key.

[J. Thomason]

Cboldt. Dialectical bliss it is then.

[J. Thomason]

You know there is a kind of providential and phenomenal uniqueness in the American experience: a people met a continent. I understand that there is a kind of wager in asserting a thesis that social health can be maintained by a principled political system that got something right or that individual propserity can be obtained civilly. We can only imagine the tragedy of Russia in the 20th Century where 60 million perished in war and genocide. Regrettably some have direct experience with this sort of horror. But alas we can try to find solutions. I think this is about more than the mere arguments.

[bmaz]

cboldt - Probably not hard to guess this, but I am not high on the pre-crime/thought crime bit. I am pragmatic enough to understand the need of contemplating the subject on an esoterical plane though. This is nothing new in this country though. In the extremely few and rare circumstances where this was really an issue though, we always found a way to shoehorn them into the system or took care of it quietly with some sort of black op sweeper team. The bozos we have now are literally trying to institutionalize the latter option into the accepted fabric of our ethos and that is just not acceptable. Hell, its not even acceptable to blatantly suggest it.

[radiofreewill]

If we don't bottleneck ALL of the wiretapping with the protections of FISA, even if it takes further revision while guaranteeing oversight and review, then Big Brother wins.

That's all there is to it.

The pressure to create a Domestic database with massive digital files on every single person in America is too powerful to resist, and there's no putting that genie back in the bottle once it's out.

Our only real hope is that Access-To and Algorhythms-Run-Against the database are engineered and controlled for individual privacy, as guaranteed by the Constitution.

Most likely, Comey and the Senior Staff were ready to quit over Un-Audited Access and Un-Controlled Queries against the Domestic database, which could 'target' individuals for information harvesting (revealing their digital file).

So, in the non-FISA scenario, if you had Access and were authorised to Run-a-Query on a [politician, journalist, wealthy person, former diplomat, individual person,] then you would have an unfettered view into everything that had been vacuumed up on that person, and no audit trail connecting you to the query.

We should assume that we'll eventually lose the privacy argument. Even so, we should always insist on controls that are nuclear football safe.

Our choices are FISA or PINO (privacy in name only)

[BillE]

This is a very interesting thread.

The concept of hooking the data and voice backbones and capturing everything is very similar to the concept of phased array information gathering. In the phased array no single pickup is the most important. But, temporally combining and producing a virtual signal from all the pickups in the array builds a far more complete pickture. This technology is used in lots of areas of signal processing: Astronomers use it to build better incoming signals. Radar warning sites use it to look for missiles, mapmaking uses it for 3d maps. And a lot more.

The idea is you capture stuff in real time ( 100 Terabytes will do fine but the CERN lab on swiss french border is doing Petabyte data capture assume your gov has a lot more storage than this ) and then scan the data. Using doppler effect and plain trig you can do amazing stuff with computers just look at a flyby animation of mars all generated with phased array mapping.

I would speculate that in this arena the information being mapped is not physical but social groups analysis. Looking to solve the 6 degrees of kevin bacon thing. If someone mapped every IP address I connect to for every and know my phone usage( cell and land line ) You could then throw in the google search criteria stuff and know quite a bit about me. Now spice it up with credit bureau, drivers license, social security, ... and what viola look what you've built. Orwell would be proud.

300 million americans, of whom how many actual have something to do with KKKarls math? 1 million? 10 million for players around the world. 100 TB / 10 M is about 10 M of storage per player.
Just domestic 100 TB / 300 M is about .5 M which if it is reduced to endpoints is more than enough connections for most people.

What is interesting is those in power of both parties and the sitting judges. An interesting search is US Senator. Or District Court Judge.

Other relevant searches include if you throw in voter records etc all kinds of good caging data. Direct marketing on steroids here.
I always wondered where KKKarl dug up his new voters. Exurbs yeah right.

[Jodi]

Explaining a different viewpoint.

1. So you look at a vast amount of data (some of which is supposedly off limits) and the cost is 1 to 5 Billion a year.
2. You don't use what you find to arrest and charge bad people. Instead you identify them, watch them carefully and learn who their associates are, and then (but not too soon) when some one of them doesn't make a proper turn signal, or has a non-operative light on a vehicle, doesn't have the proper passport or visa, or obtains some materials that alert a dog, you pull them in and check them out.
3. You are able to prevent a 911 or a London or Madrid bombing, and prevent the expenditure of anywhere up to many Trillions of Dollars.

Then the problems of spending money with no observable quick return and the problems of illicitly observing someone inside a protected jurisdiction are washed away like a little dust on a car in a rainstorm.
You are a hero.

That is a better way to look at these affairs especially if you have the responsibility to keep 911s from happening, and take your job seriously.

[J. Thomason]

The Bush administration has a deep lead in moving ahead with the politics of creating an illusion of propriety.

The locus of a proposed comprehensive data base may have been associated with the ADVISE data consolidation program at the Department of Homeland Security. And apparently as of January 2007 the plan was to share FISA applications and orders with a gang of two Specter and Leahy. In other words the administration has a two year lead on the current focus 2001-05 in the narrative to fall back on in defense.

Significantly Dan Eggan writes in the Washington Post on January 18, 2007:

"The Bush administration said yesterday that it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort that will be overseen by the secret court that governs clandestine spying in the United States."

Court Will Oversee Wiretap Program

My take on this is that this shift in policy would not have occurred if there had been no continuing dissent in the DOJ after the objections raised by Comey and Goldsmith were apparently met. The crux of the perjury charge is that Gonazles testified there were no ongoing objections after March 2004. Specter and Leahy know there were ongoing objections because they were part of the compromised oversite solution. It is possible that their hands are tied because of the cloud of the security issues used to neutralize Congress. I am unaware whether this compromise remains operative the point is Gonzalez in denying no continuing dissent ignores the obvious pressure that resulted in this January 2007 adjustment.

[bmaz]

Jodi - If these jerkoffs took their "responsibility to keep 9/11s from happening" seriously, 9/11 likely wouldn't have happened. The half life on the quality of your discourse is accelerating at an astronomical rate; and you didn't start off with much to work with in the first place.

[masaccio]

Jodi, that is a nice thought. But could I ask you to go back and read bleh's comment at 20:40 and think carefully about exactly what it means?

[jo6pac]

Gobbel was right Orwell was later but on the same track
jo6pac

[litigatormom]

It doesn't matter, for legal purposes, whether there is someone sitting in a dark van with a pack of Chesterfields listening to the wiretapped conversations. What matters, for legal purposes, is "interception." That is the capture and recording of a telephonic or electronic communication. You need to show probable cause for the interception, not between the interception and the listening. And, as a general matter, you can't show probable cause without specifying a person or a place to be searched. You can't establish probable cause based on an algorithm that searches for data containing key words or phrases, or anything else, for that matter.

Most of the data being assembled through data-mining is probably never touched. But the mere fact that it is captured and added to the database means it has been "intercepted" because the government has it and retains it. It can be examined, tomorrow, next week, next year, ten years from now. And the 72 hour post-interception window provided by FISA for getting a warrant is meaningless when you are talking about data-mining, because that's not enough time to analyze the amount of information you capture in a day of data-mining, find the stuff that is actually relevant and then say, "Hey, FISA court, lookee what I found, can I have a warrant?" You could do that if all you were talking about was wiretapping. But that's not all they're doing. That's why the Administration could never explain why the 72 hour window was inadequate -- they couldn't do that without confirming that they were data-mining.

Here is an interesting question. The reports about data-mining raise the question of whether the Administration has violated the Congressional de-funding of John Pointdexter's Total Information Awareness program back in 2003. Along with investigating Abu G for perjury, someone ought to start an investigation into that issue as well. (If true, it's not a good omen for what would happen if Congress voted to de-fund the war.)

[Marky]

Hey, OT but I think this is extremly important.
Several months ago I asked if Bush could be impeached after he leaves office, towards the end of prosecuting him for criminal acts committed as President. I believe it was at TNH that my theory was shot down quite strongly.

Look at the precedent cited here:

http://talkingpointsmemo.com/archives/015933.php

and now tell me that Bush cannot be impeached after he leaves office. Is that really the case?!

[MarkH]

We simply DO NOT trust Bush & Co and it appears they're using the pretext of protecting America from the nuclear mushroom cloud to gather information which could be used for other purposes.

The resources of government can be immense. In many instances it needs to be immense.

Can we ever trust any administration since they might misuse the power?

Heck, even within the Democratic party there is significant mistrust of different factions (DLC v. non-DLCers for example).

So, after being attacked we run around like a chicken with it's head cut off and fear everything in the world, including ourselves. Can such a chicken live for long?

FDR said we have nothing to fear (from an external foe) except fear itself (which would cause us to not respond). But, today we have learned we have a potential enemy much more dangerous than any al Qaeda -- 'We have seen the enemy and it is us.'

We have political parties and the intellectual culture each has created. Are they the seeds of our political destruction? Are they as destructive to our national unity as the "North" and "South" of Civil War days?

[bmaz]

Marky - I don't know who told you that, but that is most certainly not true. A federal officer, including the President, can indeed be impeached after leaving office. Of course, the remedies available upon conviction are diminished and are pretty much limited to stripping of residual vestiges of office such as pension and benefits and barring the person from holding any office again. However, once out of office, there is no bar to a traditional criminal prosecution in addition to, or in place of, the impeachment action you inquired about.

Litigatormom - I don't know if you read my comments above, and that I made a few months ago, but I believe that TIA, or at least a substantial portion of it, is exactly what is at the root here.

[bmaz]

This comment from Atrios about somes it up:

"Whoever the Hell They Wanted To Without Warrants

Look, all the parsing of statements is a waste of time. They were eavesdropping on whoever they wanted to without any warrants or oversight. Whether or not "whoever they wanted to" included, say, the John Kerry campaign or Markos Moulitsas is still an open question. They obviously claimed the power to do so, it just isn't clear if they did it."

[Jodi]

masaccio,

I did read it.

Some points are on the mark. Others totally off. Others inconsequential.

It is an ongoing war. Tactics and strategies will be modified constantly by both sides.

No one says there will be 100% prevention. However that has been the case in the USA since 911. Blind luck, the war in Iraq, or what?

The historical reference to rightwingers, and last decade, and before that ignores the facts that technology has changed so much in the last 10 years. Also that AQ whom we are much more worried about than local rightwing militias has struck many times all over the world, in the last 20 years, and appears to be getting stronger.

Serious plotters? Well these most devious people are surrounded by people of much less ability, and normally everyone must use quite ordinary means of travel, communication and purchase.

Yes a business might go under spending money to insure nothing happens, but a Government would be voted out in one election cycle if something did happen, and they hadn't taken the necessary steps no matter what the expense.

The comment is full of (to use a part of bleh's own words) vapor.

[Jodi]

bmaz,

your comment "If these jerkoffs took their "responsibility to keep 9/11s from happening" seriously, 9/11 likely wouldn't have happened." seems to imply that the Bush Administration caused 911 in just 6 months in office. That is quite a stretch!

Further your comment "The half life on the quality of your discourse is accelerating at an astronomical rate;" indicates strongly that you should avoid using technical/scientific terms that you don't understand.

Best stick to the legal jargon.

[bmaz]

Jodi - Are you so poor that you can't even afford to pay attention? I did not imply that the Bushies caused 9/11; I stated that they failed to prevent it. Had they been paying attention, that might not have been the case. the record is effectively incontrovertible that they did not pay attention in this regard. In regard to technical and/or scientific jargon, I have an educational background, both undergraduate and graduate in the physical sciences and understand the concept and principles of half life just fine thank you; I simply don't consider your reasoning ability to be logical or scientific and, therefore, was not using the term in that vein. It was a put down, not a dissertation dimwit.

[Jodi]

bmaz,

ahhh...

It was putdown(nonsense.) Well then I understand.

[seriously jodi stfu]

gd it !!

i knew it !!!

a very interesting comment thread and then < sigh > jodi the concern troll has to drop its three cent load on everything ...

jeebus

[sponson]

Who got the take? Who had access? I think the real reason for the ferocity of the stonewalling, is that the politicos had access to the databases and the intelligence resources. Just a guess.

[rhfactor]

(((( I've been arguing for two years that the secret that Bush was hiding about the illegal domestic wiretap program is that they were using crappy data mining programs to pick their targets for wiretaps. In tomorrow's NYT, they're almost done filling out that picture. ))))

All I can say is, this is a shame. It takes no sleuth to figure out I have designated you as one of the progressive left's SECRET WEAPONS.

But given we don't yet have the media distribution power of the NYT, I continue to argue, that in addition to your powerful (and prescient) written analyses, you would serve America well (and that's no joke) if you'd go on camera regularly, if not nightly, to package your comments and analysis for mainstream consumption.

Marcy, I don't know one other person who shines so brilliantly in this role as you do. I hope you will recognize this isn't about flattery. It's about smart resource allocation.

You have not only excellent THINKING but also COMMUNICATIONS Resources embodied in who you are and how you present your thoughts. It's almost criminal to hide that light under a bushel, reserved for the ricochet cross-links and DIGGS of the blogosphere. You need to be out front more, and inhabit the role you must have been created for: The first "Ready for Primetime" progressive news analyst who understands how to package your analysis -- and connect the dots at high level and present all of this via 3-5 minute TV segments.

I hope you will have time, ultimately, given your no-doubt tight schedule in Chicago during Yearly Kos, to meet. I really believe the time is now.. and let's not have any more 2 year gaps of time where the THINKING has been done -- and the point made clear -- yet the expression of that work gets trapped in the pressure cooker of the text based blogosphere, and fails to cross over into the realm of mainstream attention.

You're going to be treated - RIGHTFULLY SO - in Chicago this week as a goddess of the blogosphere. People will hang on every single word you say. I'm just asking that you contemplate the audience FAR BEYOND the blogosphere. Because at the end of the day, a well-educated left is almost useless when the bulk of America is in the dark.

This text-entrapment has got to stop -- or we waste years. Thank you for the foresight you have shown in all of your thinking and processing of atrocity after atrocity from this Bush Criminal Administration.

rhfactor

[Franklin]

On balance the NYT's article seems pretty good -- although it does raise additional questions.

I would agree though that the "no serious disagreement" justification for withholding publication of the article sounds implausible. The very existence of a leak about the program to the NYT would seem to suggest that the initial source was so troubled by the program that he or she felt compelled to get the information out to the public. If there was a leak of this nature, there obviously was disagreement, the Bush line notwithstanding. I suspect most editors and reporters -- especially ones in the top tier -- would have been skeptical of the Bush administration's "no serious disagreement" justification.

[mk]

March 2004. What else was going on in the WH at that point? A re-election campaign.
So what was it that made Comey et al go off about the data mining -- how the collected data was being sifted -- as opposed to what data was being collected? What kind of data mining effort did they find out about?
It's another fairly complicated issue with lots of legal ramifications --but at the end of the day, I believe the bottom line -- the political upper hand -- will be the motive.
Dick's one-percent paranoia plus Karl's political targeting and caging capability yields another way to gain insider knowledge and game the system.
What other use for the data would have created the outrage expressed by so many in a willingness to resign rather than let the program continue as it was?

[caye]

mk: i agree with you. This and the Attorneygate are connected. I believe this misadministration is really less interested in fighting terrorism and more interested in winning (stealing) elections. Data mining/caging:tomato/tamato

[Tom Maguire]

March 2004. What else was going on in the WH at that point? A re-election campaign.

Since you ask, what else was going on at Justice? The torture/detainee work done by Yoo was rebutted in late 2003, the TSP program(s) were a problem as of March 2004, Fitzgerald was appointed to get Libby and Cheney in Dec 2003 - quite a busy six months.

[Coral]

I am reminded by the discussion here of Bentham's Panopticon http://en.wikipedia.org/wiki/Panopticon . With the exception that here the entire nation (world?) is being watched.

And who are the watchers? Rove, Cheney, the GOP. Is this not a precursor of something like the old Soviet KGB or the East German Stasi?

[Davis X. Machina]

I believe this misadministration is really less interested in fighting terrorism and more interested in winning (stealing) elections

They've simply allocated their attention and resources in proportion the the perceived magnitude of the threat.

The threat to their Republic, the Republic of Pasty White Guys On The Make, that is. To this Republic, a Democratic electoral victory is a threat orders of magnitude greater than anything spawned overseas.

[phred]

litagatormom -- it's late in the thread, but just in case you check back...

The Pentagon is a black hole for money. That which goes to "black" (classified) programs cannot be audited (last I checked) and therefore there is no proper oversight of how the funds are distributed. This was how the Pentagon paid Howard Hughes to raise a Soviet nuclear sub (unsuccessfully) off the floor of the Pacific in the '60s, see the book Blind Man's Bluff about US/Soviet submarine cold-warfare. Finding money then to keep the TIA going would be a piece of cake, you just move it from some other black program and without oversight who would know?

[cboldt]

Visiting a couple of points in J. Thomason's of July 28, 2007 at 21:11 ...

-- Constitutional tensions are by there very nature cybernetic, formative and procedural though there are Constitutional guarantees of substantive protections. Is it a "knotty balance?" I would say a "sacred" balance, a "delicate" balance. I do not mean to be provocative but it strikes me that the ultimate tendency of your argument is really nothing more than an argument that because the King does it it cannot be illegal --

I'm fine with the label "sacred" being applied, because I see the constitution as the highest written authority, having primacy over statutory law -- my use of "knotty" was meant to convey that the real-world balance between privacy and protection is complex, and involves many potential interactions.

I'm not arguing that whatever interception and resulting action is constitutional. On the contrary, I'm wary and concerned that we don't have transparency regarding how the information is used. We don't know if the surveillance is constitutional until either a case or an admission is brought up. The court cases that apply the constitution to warrantless surveillance activities (Truong, bin Laden, Keith) have admitted some evidence, and precluded other evidence. The Jabara case (scroll up and down from the post at that link, posts 226, 228 (short version) and 238) is a good window into what happens when warrantless interception becomes an evidentiary issue.

What I do resist is the conclusion that a violation of FISA represents a violation of the constitution. The genesis of FISA is interesting (See Kieth case), and there is a "round and around we go" feeling, between the courts, Congress, and the executive on the general subjects of surveillance and predictability of criminal prosecution.

--No matter how these issues of domestic surveillance are handled care should be made to check the unfettered and arbitrary assertion of power by the executive. This is not to deny the need you perceive, but takes care that the deliberation required to make these decisions is ultimately vested in the people. --

On the balance between privacy and "protection," I tend to favor more privacy and less "protection." I think the Jabara case was wrongly decided, for example.

I'm concerned about an overly powerful executive branch -- I've been known to suggest to my righty friends that they may want to temper their enthusiasm for supporting President Bush's assertion that certain powers are rightfully the sole province of the executive, by pointing out that they are conceding that the same powers rightfully belong to an unchecked future President Kerry, Obama or Hillary Clinton.

I have no doubt that President Bush has overreached in many areas (and continues to overreach), and I think a number of those overreaches will, in time, bite us in the ass, one way or another.

Meanwhile, the public, righty and lefty alike, is pushing for more government, with the only difference being where and how the force of (supposedly benevolent) government will be applied.

[cboldt]

Visiting a couple of points in J. Thomason's of July 28, 2007 at 21:11 ...

-- Constitutional tensions are by there very nature cybernetic, formative and procedural though there are Constitutional guarantees of substantive protections. Is it a "knotty balance?" I would say a "sacred" balance, a "delicate" balance. I do not mean to be provocative but it strikes me that the ultimate tendency of your argument is really nothing more than an argument that because the King does it it cannot be illegal --

I'm fine with the label "sacred" being applied, because I see the constitution as the highest written authority, having primacy over statutory law -- my use of "knotty" was meant to convey that the real-world balance between privacy and protection is complex, and involves many potential interactions.

I'm not arguing that whatever interception and resulting action is constitutional. On the contrary, I'm wary and concerned that we don't have transparency regarding how the information is used. We don't know if the surveillance is constitutional until either a case or an admission is brought up. The court cases that apply the constitution to warrantless surveillance activities (Truong, bin Laden, Keith) have admitted some evidence, and precluded other evidence. The Jabara case (scroll up and down from the post at that link, posts 226, 228 (short version) and 238) is a good window into what happens when warrantless interception becomes an evidentiary issue.

What I do resist is the conclusion that a violation of FISA represents a violation of the constitution. The genesis of FISA is interesting (See Kieth case), and there is a "round and around we go" feeling, between the courts, Congress, and the executive on the general subjects of surveillance and predictability of criminal prosecution.

--No matter how these issues of domestic surveillance are handled care should be made to check the unfettered and arbitrary assertion of power by the executive. This is not to deny the need you perceive, but takes care that the deliberation required to make these decisions is ultimately vested in the people. --

On the balance between privacy and "protection," I tend to favor more privacy and less "protection." I think the Jabara case was wrongly decided, for example.

I'm concerned about an overly powerful executive branch -- I've been known to suggest to my righty friends that they may want to temper their enthusiasm for supporting President Bush's assertion that certain powers are rightfully the sole province of the executive, by pointing out that they are conceding that the same powers rightfully belong to an unchecked future President Kerry, Obama or Hillary Clinton.

I have no doubt that President Bush has overreached in many areas (and continues to overreach), and I think a number of those overreaches will, in time, bite us in the ass, one way or another.

Meanwhile, the public, righty and lefty alike, is pushing for more government, with the only difference being where and how the force of (supposedly benevolent) government will be applied.

[Agincour]

Marty Lederman has a very interesting speculation on what the problems might be with the data mining.

http://balkin.blogspot.com/

[cboldt]

(please pardon my double post above ... combination typad stall and operator error)

-- The torture/detainee work done by Yoo was rebutted in late 2003 --

And then enacted into law by Congress in 2006.

[Boo Radley]

OfT and fwiw the NBA gambling scandal imvho highlights the primary role of government (outside of national defense) which is to function as a referee. Finding non-partisan referees requires an investment in a highly technological society.