Did Harman Approve of the Illegal Domestic Wiretap Program?

by emptywheel

Well, that was quick work. Yesterday I suggested that the Gang of Eight who purportedly attended the March 10, 2004 meeting at which Alberto Gonzales claims to have developed consensus that they should ignore James Comey's concerns and continue to tap American citizens anyway might have some enlightenment to offer about what went on at the meeting. So far, Nancy Pelosi, Jay Rockefeller, and Tom Daschle argue that Gonzales is full of shit. Jane Harman, however, engages in a little shiny-objecting.

Representative Jane Harman of California, who in 2004 was the top Democrat on the House Intelligence Committee, insisted that there was only one N.S.A. program, making Mr. Gonzales’s assertions inaccurate.

“The program had different parts, but there was only one program,” Ms. Harman said, adding that Mr. Gonzales was “selectively declassifying information to defend his own conduct,” which she called improper.

Before I go on, let's lay out the math. Speaker Pelosi reveals that a majority did agree the country should ignore little issues like legality and continue the program.

Speaker Nancy Pelosi of California, who attended the 2004 White House meeting as House Democratic minority leader, said through a spokesman that she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting, said the spokesman, Brendan Daly.

If I'm not mistaken, a majority of eight is, um, five. Which means at least one Democrat voted against the law and in favor of illegal wiretapping. Given the clear messages of the other three Democrats among the Gang, that leaves Jane Harman as the fifth vote for illegal wiretapping.

Look, I'm well aware that Gonzales is playing semantic games by claiming there is one program that is actually two or more programs (and semantic games about the meaning of "consensus"). But if that's the way Harman wants to get out of responsibility for her vote, I'm not having it. Gonzales is lying and was violating the law--but Harman's dissembling responses don't make her apparent position correct, either. If she did, in fact, cast that fifth vote for illegal wiretapping, then that vote put the lipstick of "consensus" on the pig of illegality.

Comments

[*]

I wouldn't trust any member of either congressional intelligence committee. The alphabet agencies have asserted for decades that they are under no obligation to follow US law, or to report on their activities, or to accede to any oversight whatsoever if they don't want to. The intelligence committees have always been enablers of this poke in the eye of democracy.

[P J Evans]

I wonder if that's why Harman didn't get to be chair of the intelligence committee - Pelosi would certainly be aware of her support for Shrub and Cheney, and might very well want someone who was less willing to be accomodating.

[emptywheel]

PJ

But Reyes has apparently bought Gonzales' bogus explanation for his hospital visit.

But Reyes said he was satisfied with Gonzales' explanation and cautioned against drawing conclusions.

"When there are issues of national security at stake, I think certainly one should not question the motivation of individuals," Reyes told reporters. "I'm willing to accept the rationale behind it."

Apparently without double checking with his colleagues who were at that meeting, no less.

It's called O-V-E-R-S-I-G-H-T.

[darclay]

Lipstick all over it!!

[Jodi]

So,

Mr Gonzales is in the clear again.

[looseheadprop]

OK, I am confused. If I understand the plain meaning of Daschle's statement, either there was no such meeting at all or Daschle wasn't invited:

I have no recollection of such a meeting and believe that it didn't occur. I am quite certain that at no time did we encourage the AG or anyone else to take such actions

Further the rockefeller quote also says that Gonzales is "making things up"

So, is it possible that Gonzo only invited the members he thought would vote his way?

The Pelosi statement makes is sound almost as if she was the single dissenter.

Were Daschle and Rockefeller frozen out of the meeting?
Also, if as HArmoan contends, Gonzales is selctively de-classifying parts of thsi information, was he the original classifier with the reslutant de-classification authority?

Or has someone else authorized the selective de-classification, and if so, who? And does that person, if fact, have the authority to do so?

Shades of the NIE insta-declassification?

[Mimikatz]

I'm with PJ--so that's why Pelosi was so adamant that Harman not get the chairmanship even if she had to put in an obvious hack in Silvestre Reyes (rather than the other ranking hack Alcee Hastings) instead.

Harman really is not to be trusted. Good thing she got priamried. It helped push her a little more to the center on these issues. Does she even realize how she'd been used?

[bmaz]

If not the definitive one, this still had to be one of the bigger bugs in Pelosi's butt in not wanting Harman to be Intel chair. As a corollary, it sure doesn't appear we did much better with Reyes. Quite frankly, I was appalled, and said so at the time, with some of the things he said and the apparent shallowness of his thought process when they in the process of naming Reyes. As to Harman's conduct in this instance, I don't ultimately give a rat's ass about the fact that it gave cover to the Administration, or later it turns out Gonzales, what I care is that it was patently illegal and unconstitutional. It was just wrong. Period.

[looseheadprop]

Nit to pick from the Pelosi quote:

she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting

The majority may not be 5 Marcy. What is the entire Gang of 8 was not present? What if there was not whatever quorum is necessary for it to act as a body?

That would explain why Daschle would say no Gang of 8 meeting took place.

[Jodi]

I hope this will give all pause about saying Mr Gonzales is perjuring himself.

Obviously he isn't and all the Congressional Committees despite a little camera posturing know it.

[bmaz]

LHP - Excellent question. And NO, I don't see how AGAG could have been the classifying authority; but then I doubt you see any chance of that either.

[Kagro X]

I think PJ's got it right, too. Reyes may have bought Gonzales' garbage, too. But he bought it six months after getting the job.

[P J Evans]

We can get rid of both of them in the next election - I'm assuming that there will be one. It was dim to put in someone who was worse than the original; maybe Reyes talks more independence than he has, or maybe he just has a better line of BS.

[P J Evans]

lhp - I had that thought too. It would explain a lot. Doesn't let Gonzo off the hook though (sorry, troll), since he's been tapdancing on other stuff as well.

[Mimikatz]

In CA there are "open meeting" rules requiring public notice prior to meetings of more than two members of various public bodies. There sometimes used to be "serial briefings" of members, two at a time, until the courts stopped that. So maybe AGAG had serial meetings until he got his 5 votes, and then didn't need to brief Daschle or Rockefeller. Pelosi would have been in with someone else, at which point she made her objection.

AQnything is possibloe with these clowns--anything. If they don't at the very least vote their contempt of Gonzales for his contempt of them, they really do have battered wife syndrome.

Gonzales is a star performer. The only punishment Bush can't pardon is impeachment, which would also rob him of his pension. He is really just daring them to touch him, isn't he? For anyone who say it live, was he on Prozac or something? He seems goofy to me from the clips.

Being willing to be a laughingstock and an obvious perjurer is really some kind of loyalty.

[emptywheel]

Yeah, I thought about that, LHP (and remind me to tell you about the selective declassification from yesterday's press briefing). Also thought that maybe Daschle is prevaricating so as not to fess up.

[SaltinWound]

I beleive Daschle saying he has no recollection of such a meeting is his way of saying Gonzales is grossly mischaracterizing the meeting, not that Daschle wasn't there. They're all skating on the edge of what they're allowed to say about this.

[SaltinWound]

I hate looking at my typo and wish I could edit it in the worst way. Other than that, I stand strongly by my statement.

[bmaz]

SaltinWound - That may have been true before yesterday, but assuming Gonzales was authorized to make the statements he did, that door has now been opened.

[Sojourner]

BMAZ, since the door is opened, could we call upon Mr. Comey to clarify any of this? I suspect that he has better recollection since he would not approve the program and people were shooting at him. Obviously, as EW stated previously, someone somewhere is not telling the truth.

Regardless, this whole thing is smelling like dead oysters (you have to have grown up in South Louisiana where they used oyster shells to pave roads). The fact that the Big Dick has been playing in the DoJ stuff answers a lot, though. Not that it resolves anything...

[AZ Matt]

Waxman is after the WH and DOJ on the info on Prez Records Act violations again.

http://oversight.house.gov/story.asp?ID=1431

[Gary]

EW, great work. I didn't have an email to send this to you, but here's an article arguing for inherent contempt proceedings by one of my old law profs in last Saturdays WP:

http://www.washingtonpost.com/wp-dyn/content/article/2007/07/20/AR2007072001802.html

[bmaz]

Sojourner - Within parameters, sure. But it doesn't appear that Comey was a participant in any alleged Gang of 8 meeting, so he would be unlikely to have much direct knowledge of that. It probably does expand at least marginally the areas he could discuss though. This may already have happened in executive session or whatever they call the non-public meetings where secure information can be discussed.

[Mimikatz]

Glenn Greenwald parses this to mean something closer to what Jane Harman said, that there was one program, but before Comey et al threatened to resign it contained other aspects, and those were cancelled, leaving "the program that the President approved" or the program minus the parts that were objectionable to Ashcroft, Comey and Mueller. (You make the same point, Marcy.)

As to the program left after the amputation, the program as approved met with no objections from DOJ, and so, likely, not from a majority of the gang of 8. But it sure doesn't seem that a majority of the gang approved of what Comey et al didn't. Or if they did it was without knowledge of those objections. But of course it would be objectionable to us.

There may or may not be other programs not related to the TSP that are clearly objectionable to anyone who0 doesn't care about civil liberties.

And it says nothing about AGAG's lies about other things, like the US Attorney firings and who wrote the memos that came out over his name.

[J. Thomason]

The whole GO8 thing is a ruse isn't it? Gonzales went to the hospital with illegal authorizations in his hand. Ashcroft was not the acting attorney general. Gonzales says he went on the behalf of the president. The color of an attempted undue influence continues.

I understand picking the matter apart to see if there were a perjury but the connection with the GO8 is not the only flaw. There is the perceived perjury around saying no controversy in the DOJ existed around the program and there should be no doubt that Gonzales has not offered the whole truth about what "the program" is. The creation of the ambiguity is indeed intentional.

The problem at this point is the lack of a bill of particulars against which to test Gonzales testimony. The same kind of procedural problem existed in pressing AGAG on who sent him to the hospital, he relied upon a claim of a possible executive privilege and no one pushed him to answer the question or actually assert a privilege.

The problem is the typical problem in dealing with the statements of this administration. There are always half truths, self serving charaterizations (remember the Goodling meeting), intentionally distracting accounts (G08, the program), and incomplete answers. Its all a bait and switch game like the documents that took down Dan Rather. But these games to not amount to truth telling.

The only procedural consistency that we have seen in these SJC hearings are the Specter concern troll antics and we still don't no who drew up the list of the USAs who were fired.

These are not matters of political theater, they pertain to testimony. That a defense to charges of wrongdoing is asserted should not suprise anybody. The GO8 existed in the first place because of the efforts of the WH to take Congress out the intelligence loop over concerns of security. Let us hope that we make it to exposing the illegal intelligence shop established for domestic spying to political ends including the influencing elections under Cheney's auspices. A reasonable inference that this is the bottom line is emerging. Remember the comtempt of Miers and Bolton, unauthorized email accounts, Sampson's exprssion of the problem with Lam and his strategy to gum the intention of the actions to death before congress,the admission of Goodling to Hatch act violations, the contemptous disrespect and obfuscation of Sarah Taylor and what we already know about how Cheney operates. Now we have the spectre of the obstruction of justice emerging from the VP's office not only with respect to the Libby pardon but also with respect to the MZM investigation.

Where does the SJC go from here?

[TheGris]

If Harman supported the illegal program, doesn't that open her to charges of conspiracy to commit felony FISA violations?

(When violations of the FISA laws are at some point prosecuted be a new AG or Special Prosecutor, that is.)

[Mimikatz]

This is for Jodi, especially--a complete rundown of Alberto's lies from noted Human Rights attorney and Harpers' columnist Scott Horton.

[Dismayed]

It was clear to me reading Harmon's comment that she drank the kool-aid.

She's not mad about the illegal wiretapping, she's mad that Gonzo told on her for going along.

Addington couldn't have written her response better himself!

[Boo Radley]

Hey Jodi, per Mimikatz's terrific link at 15:03, how many US Attorneys did Gonzales fire?

[Boo Radley]

Someone at least has to have access to all eight calendars. Who met, where they met, and when they met are not classified.

[Steve Elliott]

Is my take on this meeting with Gonzo correct, that there is no formal record of who was present or how they voted?

[earlofhuntingdon]

Jane Harman's obfuscations do not put Fredo in the clear. Who's to say which of those thousand bullets killed Sonny Corleone at the toll booth? All the shooters are guilty.

Fredo's lies buzz and squirm like a dead cat in August; they fully justify starting an impeachment inquiry now. But if Harman supported "the program" - which requires credulously believing that she and the rest of the Gang of Eight were adequately informed about it/them - she just put a big dent in her campaign for re-election next November.

As for the Gang of Eight, funny, isn't it, how the best metaphors for this administration come straight from Communist China and Russia?

[QuickSilver]

I had the same question yesterday about Jane Harman, listening to her opine on NPR.

Would you do the favor of cross-posting this at Daily Kos? I wish more people would see it.

[censor]

Jane Harman is an AIPAC operative. Same Libby type of breed.

[QuickSilver]

I was told ten minutes ago there's a press release in the works from Harman's office on this. Her senior aides won't confirm or deny that she supported the program, or whether she stood with the "minority" of Pelosi, Rockefeller, and Daschle. They won't say whether she was on Comey's side going into the meeting, or whether she stood with Gonzales.

Great catch, emptywheel.

[Jodi]

Mimikatz,
Boo Radley,

I will agree that Gonzales carefully answers the questions to avoid direct scrutiny or responsibility. I also note he is a lawyer.

I will also agree with many of the bloggers above that Pelosi and Harman and Reyes and Dashchle and Rockerfeller and perhaps others also slid and slipped around with their answers to questions concerning this particular hearing (the one we discuss in this thread) to do effectively the same thing as Gonzales did. (I see you complaining about it above.)

So is Mr Gonzales any worse than the rest of the rascals we are talking about?

I think not.

Now perhaps you will tell me that that all of the above mentioned are lawyers and then we will all understand it.

[Boo Radley]

Jodi, is the question to tough for you? How many US Attorneys did Gonzales (an employee of the taxpayers) fire?

OT, Gonzales did not carefully "answer" the questions. He was "careful" about his inaccurate, incomplete, and false answers. He's the AG, we pay him to be the expert on all things related to the DoJ. He doesn't earn his paycheck, but you continue to support paying him with my tax dollars.

[Woodhall Hollow]

""The wise speak only of what they know, Grima son of Galmod Jodi Wormtongue. A witless worm have you become. Therefore be silent, and keep your forked tongue behind your teeth."

[Boo Radley]

Yes Jodi, the conspiracy that Gonzales is shilling under oath is a lot more damaging than the failures of Vichy Dems.

".....Wrong as slavery may have been however, there was substantial public support for it, especially in the regions it was practiced in. It was also a blindingly simple concept to understand, so people were capable of making informed discourse and personal determination. The current situation is so malignant and convoluted that even the people frequenting this blog, generally among the most informed and passionate citizens out there, still don't have a good grip on exactly what is going on and, thanks to our "leaders", we do not look to improve much on that; certainly not with the speed and depth deserved.

Posted by: bmaz | July 24, 2007 at 14:09 "

Jodi, if you knew anything about Xtianity, you'd vaguely understand the doctrine of original sin. The fact that no one is perfect, does not absolve you from your responsibilities to support those who are doing less evil.

[earlofhuntingdon]

Most lawyers would resemble the remark that Alberto Gonzales is a lawyer. He has a degree and is, as of this afternoon, still a member of the Texas bar. Tim Russert has a law degree, but claims no knowledge of the law (and often proves it). John Yoo is a lawyer, as are Scott Horton and Glenn Greenwald. Which one would you want arguing your death penalty appeal that the State had grossly violated your constitutional rights?

It's not the degree or the professional qualification, it's who wears it. Warren Buffett "only" went to Columbia for his B school degree; George Bush got his from Harvard. Which one would you give your life savings to invest for you?

Same goes for well-informed bloggers. There's EW and Jane H, and then there the AEI-fellowship bloggers. Who ya gonna call?

[Mary]

I guess in some ways, Harman is the anomaly, but in other ways, Pelosi herself is the anomaly.

http://www.tpmmuckraker.com/archives/003773.php#more

Basically, Harman, Rockefeller and Daschle all seem in agreement that they were never at a meeting where the issue of Comey, as acting AG, disapproving of the program and Congressional members being given the opportunity to approve or disapprove of the program was at issue. They all say all that the meetings they are aware of were operational aspect briefings on the "one program" and that is all - nothing on legal underpinnings, nothing on disputes with DOJ, nothing where they had the opportunity to approve or disapprove the program or discuss emergency legislation to override AG's refusal to cooperate, etc.

From that standpoint, Pelosi is standing alone when she says that she WAS at a meeting were she WAS made aware of Comey's objections and that she also objected. ??

I have to wonder if getting into the nitty gritty of what Dems did or did not do in some of these meetings and situations is part of why Pelosi is so adamant that impeachment is off the table. fwiw

I think Harman, with her point on selective elective personal quasi declassifiation is making the same point that she also highlighted when the NIE declassification info came out in the Libby trial and it is in the nature of the same kind of National Security Act violation. also fwiw

[lll]

jodi. the point is not that these democrats are carefully choosing their words just like gonzo; the point is that their reasons differ. whereas gonzo carefully chose his words - words that included exposing a classified meeting (like exposing the classified identity of a NOC CIA agent, no?) - in order to try to save his sorry ass, the dems listed above were carefully choosing their words to AVOID exposing this classified meeting but to still call gonzo on his blatant obfuscation.

i know this is all so complicated, dear, but honestly (key word, that), if you didn't rely only your kool-aid induced lovefest colored glasses to see the world, i swear to you, the complications would simply disintegrate. truth is like that; so is reality. oughta try it sometime.

[Elsie]

Mimikatz,
Boo Radley,

I will agree that Gonzales carefully answers the questions to avoid direct scrutiny or responsibility. I also note he is a lawyer.

I will also agree with many of the bloggers above that Pelosi and Harman and Reyes and Dashchle and Rockerfeller and perhaps others also slid and slipped around with their answers to questions concerning this particular hearing (the one we discuss in this thread) to do effectively the same thing as Gonzales did. (I see you complaining about it above.)

So is Mr Gonzales any worse than the rest of the rascals we are talking about?

I think not.

Now perhaps you will tell me that that all of the above mentioned are lawyers and then we will all understand it.

Posted by: Jodi | July 25, 2007 at 15:54

Jodi,
All your misrepresentations (Rockefeller put his objections in writing, Pelosi says she objected at the time, Daschle may not have even been present, and it's still not clear what Harman did) deflections can't obscure the lies that Gonzales has told during his 3 appearances before the SJC. He got pinned to the mat yesterday when he tried to claim that he'd gone back to the reporter to correct his statement, then said it was an aide who did - and he couldn't even say what the correction was! I was surprised that members of the committee were able to restrain their contempt for him as well as they did.

[lysias]

The administration limited its intel briefings to the Gang of Eight after the leak of some NSA intercepts right after 9/11 that the administration blamed on Congress. More and more, I suspect the administration itself leaked the intercepts.

That's how Cheney operates.

[earlofhuntingdon]

"Vichy Dems" is fabulous. Lieberman and perhaps Harman would seem to fit the analogy elegantly. Sticking to the theme, see Jane H's eloquent essay about partisanship (World War Two's and today's) and her visit to the Holocaust Museum @ FDL. See also, Froomkin's liveblog @ 1.00 pm today, noting the antipathy of today's newsrooms to ImpeachmentNiks - too unsettling for the sponsors and their private equity masters.

The analogy has legs. Too many Dems are afraid of joining the maquis when it would do some good. Much easier to join after Patton and Montgomery parade down the Champs Elysees than before the Wehrmacht is sent packing in January '09.

Rove and Cheney's Sicherheitsdient, no doubt, remains marvelously effective, but really. The invasion is still planned for November '08 and there's so much to do before the boats hit the beaches in Normandy.

[KLynn]

Got to appreciate a leader who knows to

"copy" his personal letters and keep them secure and quite until needed. It's a great read.

Nice job Senator Rockefeller

[emptywheel]

Mary

Yeah, that's another way of looking at it. I love how the Republicans are only quoting off the record, even after Gonzales blabbed on about it in the SJC hearing.

[tekel]

I love the "serial briefing" theory from Mimikatz. But, SaltInWound raises a point: they're all skating on the edge of what they're allowed to say

Allowed by who? The DOJ? Don't make me laugh. Who is preventing them from telling the whole story and blowing this thing wide open? I'd love to hear Rockefeller go on MTP or Olbermann or YouTube or (please lord let this happen) the Daily Show, and just spill the whole racket to the American public.

Or, say, openly accuse someone at NSA with a crime for conducting what he OBVIOUSLY thought at the time were illegal acts of surveillance. Or slip some details to a friendly State attorney general. But wait, you say, if Rockefeller tells all, he gets charged with some kind of bullshit trumped-up national security violation- so what? If the information was classified only to conceal the fact that the Administration was in violation of the law, revealing it is not a crime, it's a public service. It's like Reagan classifying Iran-Contra, or Nixon classifying the tapes. It's a cover-up, and anyone who knows about the crime has a duty to speak out. Misprison of a felony is still a federal crime, and any citizen who has knowledge of a crime has an affirmitve duty to raise a "hue and cry" to the authorities in order to see it prosecuted. If Rockefeller doesn't tell the public what he knows, he's just as guilty as Cheney.

Rockefeller should take one for the team. He and Daschle and Pelosi and the other members of the Gang of Eight have first-hand knowledge of a conspiracy to commit a federal crime, and the only that is preventing them from talking about it is that the nature of the crime is classified?

I don't give a shit whether or not it's classified or whether or not Cheney thinks it's a matter of national security. The days of taking this Administration' s statements at face value are long gone. The House should use every weapon at their disposal to inflict as much damage on the office of the President as they can. If they reveal that the NSA has been spying on Americans since 1996, so be it. If Cheney complains that it's a crime, and wants Rockefeller arrested, so be it. Just one more confrontation between the Congress and the President- and in this showdown, who do you think will win? The unrepentant criminals, or the guy who risks his own freedom to blow their cover?

Start the impeachment hearings, remove Cheney, put his ass behind bars for breaking the law, and THEN we can argue about whether or not Daschle or Rockefeller should be prosecuted for revealing that the Administration was using the power to classify information to cover up their own crimes.

[Mary]

Glenn Greenwald parses this to mean something closer to what Jane Harman said, that there was one program, but before Comey et al threatened to resign it contained other aspects, and those were cancelled, leaving "the program that the President approved" or the program minus the parts that were objectionable to Ashcroft, Comey and Mueller. (You make the same point, Marcy.)

As to the program left after the amputation, the program as approved met with no objections from DOJ, and so, likely, not from a majority of the gang of 8.

I still believe that this all ties back, not to amputations from the program, but to the fact that uses of program information were being made that were not CIC/foreign relationship uses (the fragile grounds for committing multiple FISA felonies). IMO, that is why what Comey said he needed were additional oversight mechanisms (to prevent the misuses) that took a little time to get in place. And I still believe it ties to the reported FISA court discoveries of violations of the Chief Judge's orders and threats to purse contempt (which seemed to be taking place at about the same time).

[phred]

Mary, I agree with you, there is more math going on here than just Harman being the odd one out. I suggested it myself yesterday, but it was premature. Here you lay it out perfectly. The 4 stories from the Dems simply don't match. Now either there was a big group meeting, or the 8 were called/met with in fewer numbers (if not one at a time).

The conduct of Gonzales, Cheney, and Bush has been so egregrious that to continue saying that impeachment is off the table makes no sense. There is certainly popular support for it, so what is the hold up? I bought the election-cycle-based excuses for awhile, but this combined with the Cunningham related report that is NOT being released to protect Dems (see EW's earlier post on the subject) suggests there is something Nancy (and perhaps more Dems in general) are anxious to keep quiet.

If there is a Dem scandal lurking around somewhere, then this would be Pelosi's worst nightmare. She is banking on a landslide Dem victory in 2008 based in part on a campaign against Rethug corruption. A little Dem corruption could potentially blow that right out of the water.

Mind you, I very much want to see a Dem landslide, but I worry that if they do not impeach that becomes less likely. If there is corruption or perhaps collusion in illegal activity, the chances drop further. Yet another argument in favor of impeachment -- I can't think of a better way for Nancy to declare her mea culpa if that turns out to be necessary.

[lysias]

I thought that, according to the security classification regulations, criminal acts could not be classified.

[Mary]

Misprison of a felony is still a federal crime *grin*

Well, as long as the President is relying on tenuous threads of Executive Privilege, someone could go ahead and take the floor during a cspan hearing and tell the truth. I'd say that Exec penumbra state secrets and classification privileges would have a hard time trumping - under any law or Constitutional separation theory - absolute privilege for statements made on the floor.

[tekel]

Iysias: I thought so also, but I couldn't find anything in a quick search. Admittedly I'm not well-versed in where I should look.

But even granted that you're right, and that illegal acts may not be legally classified... do you really think that would even give Cheney pause?

If he's already broken the law once by ordering the illegal spying, why would he blush at a little illegal classification after the fact? If you're Dick "Big Time" Cheney, laws are for other people.

[tekel]

Mary: glad you liked that. I've been reading SCOTUS freedom-of-the-press cases for the last three weeks, and that line stuck in my head... I think it's from Branzburg?

[Mary]

Phred & EW - I don't really have a strong feeling on who is misstating and why, just that there aren't just a lot of apples and one orange - more a whole fruit basket to sort through. Harman did offer some of the best legislation I saw in an effort to "fix" the FISA situation and made some pretty flat statements at that time about the fact that the program absolutely could be run with FISA warrants and she made some pragmatic stabs at giving the FISA court more capacity to help address that issue. She's sharp and I liked her legislation and accompanying comments (as opposed to Reyes, who makes me cringe whenever he opens his mouth). Still, I was pissed enough at her other pro-Bush statements and positions that I did support her opponent in the primary.

lysias I thought that, according to the security classification regulations, criminal acts could not be classified.

That's in the Exec order on classification. It is also a common law standard (e.g., people can't contract away their right to report a crime bc such a contract is against public policy) However, the general theory offered by the Bush law firm (fka Dept. of Justice) is that if the President authorizes it or does it - it isn't a crime (bc he controls the sum total of the criminal enforcement mechanism). Comey mentions not buying that theory in his testimony (I'm not a Comey fan, but I think that was a telling statement - that the justification had somehow jumped from the Presidential actions as CIC were exempt from compliance with FISA bc it would interfere with separation of powers to impose FISA requirements on the PResident's CIC powers --- to a discussion of justification based on, no theoretic inability of FISA to reach CIC actions, but instead that the President can order anything done domestically and its not a crime, if the President ordered it. That he mentioned discussion of that theory was interesting to me)

[lysias]

Cheney might not blush at illegally classifying criminal acts, but would any court uphold punishing somebody for publicizing those acts?

[phred]

Mary, I didn't mean to suggest that I have an opinion yet on where the truth lies or who may be telling it. And I am only speculating that there are Dem skeletons that could fall out of the closet in the course of impeachment proceedings. My point is mainly to suggest that something isn't right.

After all of the SJC hearings and the best Leahy can do is say he is "disappointed"?
Huh?!? Pelosi, Conyers, Feingold all publicly stating that impeachment is not an option, in spite of public support for it. Things just aren't adding up, IMO.

[freepatriot]

greetings from beyond the void

I just thought I'd check in and say hello

I'm sorry to report that I've been unable to perform my duties in the past few weeks, and it looks like the shit stain is having a field day spreading her bullshit

I'm currently busy taking care of an incapacitated parent, and I will probably have little spare time to cruise the tubez in the next few months, so somebody else will have to adopt my duties for a while

for those who prefer specific details, my Mother is suffering from the final stage of a very advanced case of small cell cancer, and now requires 24 hour care. So my life is on hold for a few months

I don't usually share such personal details of my life, but I thought I should explain my absence. I'd like to thank everybody here in advance for their kind words and positive thoughts. I can still check in and read, but I don't often have the time to comment

to everybody (cept you, shit stain):

thanks for being there when I needed to find some sanity in the world

I'll Be Back

freepatriot

[tekel]

Mary: However, the general theory offered by the Bush law firm (fka Dept. of Justice) is that if the President authorizes it or does it - it isn't a crime (bc he controls the sum total of the criminal enforcement mechanism).

This is of course untrue. No man is above the law. See, generally, US v. Nixon. But, arguendo, even in the President did not answer to Federal law, would he not still be accountable for violations of state law? I think perjury is illegal in most state courts as well as federal courts. Could we get the Texas AG to bring state perjury charges against Gonzo?

and lysias: would any court uphold punishing somebody for publicizing those acts?

One sure way to find out, my friend.

[lysias]

Even if a court concludes in the end -- wrongly, in my view -- that the president's authorizing something ipso facto makes it legal, how could a court find that someone publicizing the acts in question be found by a court to have the necessary mens rea to have committed a crime, if he reasonably believed that the acts he publicized were crimes?

[phred]

freepatriot -- You have all of my very best wishes. My parents are elderly and in ill health, so I have a small inkling of the burden you are carrying. I wish you and your Mom the very best for the time you have yet to enjoy each other's company.

I have missed you in these parts, and only in part because of your estimable skills in the smack-down department ;)

[earlofhuntingdon]

Mr. Rockefeller may not be as assertive as events demand, but he was prudent to "sequester" a copy of his letter to Cheney. He was smart enough to know he'd need it to prove what Cheney knew and when and that he did it anyway.

Rockefeller and others in Congress who receive classified briefings are legally bound to keep the information they receive confidential even from their own House or Senate colleagues. Disclosures of information not otherwise in the public record may violate the law; at a minimum, they may lead to a termination of access to further classified information, which is pretty much everything of consequence, and which may lead to loss of a committee or sub-committee assignment.

That a member of Congress was legally prohibited from disclosing confidential national security information does not excuse an administration program that violated existing law. It is, in fact, evidence of that violation. It is up to Congress to change the law if need be, based on facts and circumstances disclosed to it.

If I let you borrow my car and you have an accident, that's unfortunate for everybody but you're primarily responsible. If I let you borrow my car knowing you've had three convictions for vehicular homicide, I'm equally guilty when you do it again. It all gets back to who knew what and when did they know it. Which is why Fredo ain't saying nuthin.

[Dismayed]

Sorry to hear that, Free. Tough duty. I'll give the troll a smack now and again for you, though I pale at delivering the gusto she truly deserves.

[tekel]

earl: Imagine this: I'm driving your car, and you're a passenger, and I say to you "Hey, watch me kill this cop! But don't tell anybody, becuase it's classified..." and then I run down a police officer, and you (a) don't stop me and (b) don't report me afterwards.

Sure, murder is worse than not saying anything. And maybe you don't have a duty to try to stop me. But you sure as hell have a duty to report the crime.

That's what I'm getting at: Rockefeller, Daschle, Harmon, and Pelosi all seem to have personal knowledge that VPOTUS illegally ordered the NSA to engage in criminal activities. They were passengers in the car. Maybe they couldn't stop the crimes before they happened, but they have an obligation NOW to report them, whether or not the crimes are "classified."

[orionATL]

anonymous liberal has two columns related to this matter that i find very interesting.

read'em if you haven't done so.

in one he puts the relative (un)importance of what the eight congressmen did or did not agree to in perspective, to whit, it don't matter a damn whether they all agreed, some agreed, or all had differing opinions.

mary's comments beginning at 16:28 also raise questions that interest me.

there definitely is something here that doesn't added up,

and i'm not referring to the "votes"/opinions of the congressmen.

nor ab g.'s testimony.

forget about all parsing.

i do not see why there WOULD not have been more than one "program".

for one thing, think of who was initiating this. there has been No show of restraint in anything v-p cheney has had a hand in since the day he took office. - the man is the tasmanian devil in the flesh.

i suspect there was more than one spying program, though they may have been put together under one rubric.

a central criterion for distinguishing among spying "programs" would be who was being spied on.

spying on "foreigners", vs

spying on possible american citizen saboteurs, vs

spying on american citizens with arab sympathies, vs

spying on american citizens who has been vacuumed up in terrorism legal action by the doj/fbi

(padilla's trial involves a huge amount of phone conversations spied on -

and i believe so did the trial of the former computer science prof at u.s.f. - could i be right in recalling 20,000 hours? surely not).

[bmaz]

Freepatriot - Best wishes to you and your mother. I, and the others, will be here should you need us for anything. Good luck.

[Martiki]

Freepatriot

My thoughts are with you and your mom.

[Katie Jensen]

Free patriot,

Sending prayers, and positive thoughts, you take your pick. You thoughts and words will be missed.

[Boo Radley]

Freepatriot - per everyone above, all best wishes to you, your Mom and the rest of your family through this very difficult time. Thanks very much for checking in, I look forward to the return of your always keen and often side-splitting comments.

[P J Evans]

freepatriot - hope she goes gently, but it's hard for you wtaching, I know. (been there, done that, prefer not having that t-shirt.)
We'll stomp trolls for you. Do you want your initial on them?

[lukery]

as an aside, Russ Tice says that there are "other programs" that nobody in Congress was cleared to know about, and I don't think anyone in the DoJ, including AGAG or AGJG, knew about.

If memory serves, the only people who knew about those programs were Tice, his boss (then-NSA head Hayden) and POTUS.

(best wishes freepatriot)

[lysias]

Maybe the Senate Judiciary Committee should have Russ Tice up for a new hearing.

[Neil]

Freep. That's so hard. I'm glad you can be there for her. I'm sure you are a great comfort.

[Praedor Atrebates]

Only slightly off-topic...I am asking anyone and everyone who may have a chance to attend one of the Democratic open forum "debates" to ask any or all of the following questions regarding secrecy and illegal acts: Do you believe that it is legitimate use of the classification system to hide illegal or unethical activities by the government? Do you believe it is appropriate use of the classification system to hide embarrassing actions by the government? Will you pledge, right now, to the American people to run the most open and non-secretive Administration in modern American history? Would you be supportive of a blanket, moving window of declassification that declassifies ALL government documents and activities that are 20 years old or older? Would you be supportive of legislation strictly limiting what can be classified and for how long - limiting classification to current intelligence methods and sources as well as military operations and capabilities? Would you support a federal Open Meetings law similar to that enjoyed by many states that prevents the People's government from holding secret meetings involving matters of public policy? If these laws are good enough for the states, do you not agree that a similar law is good enough for the PEOPLE'S federal government too? Would you support legislation strictly outlining what can and cannot be claimed under the rubric of "executive privilege"? Can you defend why ANY policy meeting should be secret from the American people since any and all policies that are ultimately decided upon DIRECTLY impacts the lives of the American people?

[Dover Bitch]

Isn't it possible that the "majority of those present" included the people other than the Gang of Eight? If all four GOP reps said "break the law" and all four Dems said no, that would still mean a "majority of those present" were supportive of the program as long as Hayden and Cheney and whomever else was there thought so, too.

Of course, it would shoot down AGAG's claim that Congress wanted him to go to Ashcroft's hospital bed.

[HJL]

I noticed only one comment on her AIPAC connection. It has been blogged that Harman was willing to play ball with Bush if he would drop charges against the two AIPAC execs that were nailed by the FBI. A state department employee was given 12 years for turning over papers to these two. Try Harman and AIPAC on Google

[David]

Now I think I know why Nancy Pelosi demoted Jane Harman.

[pdaly]

Emptywheel,

was reading your most recent post about the VP's annotations on the Wilson oped and how they corresponded to the WH talking points BEFORE Novak's hit piece came out--proving that Cheney had read Wislons's article BEFORE Novak published Plame CIA affiliation.

THEN... your post disappeared. Did you do that?

[bmaz]

Dover Bitch - Why yes, I believe it would. Certainly is a good thing that we have good stiff fibered moral people in the government that would never rely on semantical and rhetorical trickeration in dealing with the people like that horrible Clinton guy, eh? On a serious note, I am inclined to agree with those above that opined that the Gang of 8 bit is a diversion to some extent. In the first place, we don't know if it happened, and if it did, it was not as Gonzales led the Committee to believe. Secondly, to whatever that group or a consensus thereof wanted the program to continue (if this is true at all), they would have had neither the authority nor the timerity to demand that Gonzales and Card run to the clinically incapacitated Ashcroft's bedside.

[tekel]

if AGAG won't prosecute, maybe the states will:

http://rawstory.com/news/afp/US_judge_refuses_to_stop_states_fro_07252007.html

[Dismayed]

Tekel, Yeah, saw the story about the states. That's good news. We need to be looking for remedies where we can find them. With things FUBAR at the federal level, states with strong leadership may be the final firewall.

[tekel]

Dismayed: huzzah for the Erie doctrine, right?

[Frank Probst]

EW: I'm not sure you're parsing the statement correctly. Pelosi is saying a "majority of those present", not a majority of the gang of eight. I doubt there was an official vote. But I would like to at least know who was there. Did Daschle have a poker game that night? Pelosi and Comey seem to have been there. Was the Shooter there? Did they even bother to ask the Dems what they thought, or did the Shooter just say, "I'm Dick Cheney. I can do whatever the fuck I want!"?

[tekel]

Gonzales: did I say no? oops.

http://news.yahoo.com/s/ap/20070725/ap_on_go_ca_st_pe/congress_gonzales;_ylt=Atx2GXPtyn78NdTtxGIDHf6s0NUE

What I meant was... I don't recall.

/that's a felony

[pseudonymous in nc]

I think we need to go back to Jay Rockefeller's handwritten letter:

"As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance

Here's my speculation:

1. The pre-Comey-intervention 'TSP' was basically a black-budget continuation of TIA: mass automated voice and data screening -- perhaps with data-mining, perhaps not.

2. The 'program that the president has acknowledged' is a small subset of what was going on. And perhaps a subset of what is still going on.

3. There's confusion over the descriptions of the pre- and post-Comey-intervention activities. Abu G is separating them, because he's working within the terms of what has been acknowledged. The Negroponte memo (and Comey's account, with its deliberate vagueness on the substance) don't make that distinction, because there was no distinction between the 'acknowledged' TSP and 'other activities' at the time.

Things are also complicated by the constraints on what Intel Committee members and particularly the Gang of 8 can say. I get the feeling, though, that we're going to get more leaks.

[Mary]

Orion, in essence there have been two "programs" that have been disclosed and they were differentiated by Judge Diggs. The warrantless eavesdropping and the more widescale datamining. The datamining types of cases are the ones at issue in the link to Judge Walker's case. Right now, his ruling on States Secrets is on appeal but in the interim, he has been shooting down all the suspenders gov was trying to add with its belts (including that the Federal assertion of executive perogative, which probably kinda violates federal law as well, would, ya know, like kinda supercede state law bc the President is a chilling dude - the more recent argument).

So if Harman is being truthful in her own way (big If) about there only being one "program" then either the datamining was never disclosed to the gang of 8, or the "program" as disclosed was one where the parts were dependent on each other in some way - with criteria that kicked each part in - so it was disclosed as one comprehensive approach with the different types of surveillance being different elements with different triggers.

Whitehouse certainly made a point, in talking to Gonzales, as to whether or not the AG had ever been fully briefed in on everything going on - specifically asking whether there was ever a program that was operating without DOJ approval and without the AG ever having been briefed in on it - Gonzales smirks and twitches and starts saying that "we" certainly "thought" that "we" had the AG's approval for the "activities" (not the program) we were engaging in.

So that, with lots of other elements and bits and pieces, makes me think that what happened was that the "ok" to engage in certain activities (like warrantless wiretaps) based on specific theories of law that required specific triggers may have been expanded to allow for the same "activities" to occur, but without the same triggers and theoretic underpinnings in place. For example, say it is explained to you that, if a house is on fire, it is ok to break into that house to take a child out of the house. Well, if you are Gonzales, you might then take that "ok" to breaking into a house and "ok" to taking a child out of the house and detach them from the rationale (house on fire, exigent circumstances, etc.) and start just breaking into homes and kidnapping children and have a nice business on the side in ransom, innocently blinking and saying: but my ACTIVITIES were approved, ya huh they were - by the AG even, and just bc I don't have a burning house and I'm not trying to save the children from a fire but instead have just locked and guarded homes and I'm trying to make money off the children - well, how was I supposed to know that mattered?

Ok - an overstated example, but that's kind of what I think happened. Not that the activities changed, but that the triggers for the activities or uses to which the activities were being put evolved with little supervision until they were in actual review far different from the legal theories (however poor) and facts/circumstances originally postulated to authorize the programs. So the route re-authorizations went on until, as Comey revealed, they did not just a legal review but a FACT reveiw of the surveillance program.

IMO, that was the problem - and that is why there are all the references to Comey's crew saying there had to be additional oversight to allow the "house breaking and child snatching" activites to continue - oversight/programs to make sure they were limited to burning houses and child rescues.

And I think that happened in a context where the abuses - housebreaking and child snatching for other reasons - were also being discovered by the FISA court and the FISA court was simultaneously exploding with furor. Which put the lawyers in a position where if they went along with Gonzales, they might be looking at contempt from the FISA court and significant issues with getting FISA warrants. To do it justice, a really long post would be needed.

[orionATL]

wherever the truth lies with the admin's spy programs and abu g's comments,

based on the six years and six months of bush/cheney behavior

you can bet on three things:

1) they did whatever they wanted to do with regard to setting up spying programs

2) because of cheney's impulsivity,

they were required to take retroactively (goldsmith and comey) whatever actions they needed to take to protect themselves from liability,

3) they are now trying to imply that they were given BIPARTISAN ENDORSEMENT of whatever spying misconduct they engaged in.

one congressman - harman - certaainly does not constitute a congressional vote,

but it is a fine factoid to run with when defending oneself on teevee.

WWPS - what would pumpkin head say?

[bmaz]

Mary - I am not sure I understand exactly what you are saying here. I absolutely agree that pressure from the FISA court played a significant impetus in this whole imbroglio. In fact, I think we had a discussion her in some comment thread about this some time back. If I recall correctly it involved different commenters speculating about the basis for them having to get a signature because "something" was about to expire. In my mind, that indicated a deadline vis vis the FISA Court, although others seem to believe it was a deadline with telco companies. I personally think they would have just lied or put off telcos; the urgency and panic indicated to me that it was something they feared more, i.e. a pissed off FISA judge/court.

[emptywheel]

pdaly

That was the second part of a post I'm working on right now. I accidentally didn't hit "Draft" the first time I saved it. It'll be back in full form in a day or so.

Sorry for the confusion.

[orionATL]

mary -

thanks for the additional commentary.

the only thing i would add is that with respect to

"OK an overstated example..",

in my view, your example is not at all overstated.

this is precisely the kind of thinking ("logic"?) the bush folk use

when they go into "public lying mode" to defend themselves from public recognition of their misconduct.

the M.O. is:

do whatever it is you want to do.

if publicly exposed,

defend yourself with the most transparent or childlike arguments imaginable,

emotionally laden non sequiturs are especially useful,

and be sure to claim it was bipartisan.

equally importantly,

when on teevee always act like you believe what you are saying.

never, ever publicly admit you are wrong (or lying).

this approach

fools a lot of people

a lot of the time.

[William Ockham]

When you catch a "loyal Bushie" in a lie, the most important question to ask yourself is why did he/she tell that particular lie. Why did Gonzales say that the Ashcroft hospital visit involved something other than the "TSP" when he knew that everyone involved in the Gang of 8 briefing would contradict him and that there is contemporeanous documentary evidence about the subject of the Gang of 8 briefing? The answer is simple. He's hiding something that's worth perjuring himself over. The Ashcroft visit concerns some aspect of the "TSP" that the Administration hasn't publicly admitted and can't publicly admit. The Administration's story about why they had to avoid FISA warrants has never made any sense because FISA lets you get warrants retroactively if you have probable cause. I think it is obvious what they are hiding (and I think they hid it from the Gang of 8). They were illegally recording metadata on as much purely domestic voice and data traffic as they could. They were using that metadata to identify "suspects" to listen in on when they made international calls (or when their data communications crossed the border).

[pdaly]

Thanks for clearing that up, EW.
Looking forward to reading it again soon. Glad to know it was your editorial power and not some WH autobot censoring the internet. ;-)

To Freepatriot: sorry to hear your news.

[pseudonymous in nc]

The answer is simple. He's hiding something that's worth perjuring himself over.

Ding ding ding. This is why I was perplexed at Schumer's line of questioning. I can't believe that he's not suspicious of what went on pre-hospital-visit. The perjury approach suits Abu G just fine, because it's premised on the notion that Comey and Abu had a standoff on the acknowledged TSP, when it's the tip of a dirty great iceberg.

I think it is obvious what they are hiding (and I think they hid it from the Gang of 8). They were illegally recording metadata on as much purely domestic voice and data traffic as they could. They were using that metadata to identify "suspects" to listen in on when they made international calls (or when their data communications crossed the border).

Again, ding ding ding. The tech community has discussed the infrastructure for a while:

As Zimmermann describes above, you monitor a few seconds of some fraction of the calls looking for "hits," and then you move on to another fraction. If a particular call generates a hit, then you zero in on it for further real-time analysis and possible human interception. All the calls can be recorded, cached, and further examined later for items that may have been overlooked in the real-time analysis.

It's not a difficult deduction. The FBI was involved. The technological issues that Hayden cited weren't about the proliferation of means for Bad Guys to communicate, but the expanded capacity of surveillance technology. The BushCo legal argument is that automated filtering isn't a wiretap, because no human is listening.

They needed to get FISA out of the game because there's no probable cause. And, y'know, because 300 million warrants would likely overload the judges.

[...]

William Ockham - your conclusion seems bang on..

[bmaz]

WO - I have to chew on this a bit. I am not sure that is fully the explanation, but it is certainly factually and logically consistent so far. I can't poke any significant holes in your theory yet, but my gut tells me there is more to it than that.

[P J Evans]

bmaz

Blackmail material to keep Congress in line. Or the judges, or the MSM. Or possibly cabinet officers.
That's my guess.

[whenwego]

Hats off to both EW and William Ockham, you have unearthed two different and astounding issues:

To EW, the prize for exposing Harman for being the DINO she always has been

To WO, the prize for exposing the one issue Bush could really be impeached on: spying on EVERYONE!

[Jodi]

Boo,

Gonzales fired none and he fired all. His people did it is what he is saying but he gave them permission.
(I agree he doesn't run a very tight ship, or so he says. Maybe he is too busy doing all the heavy lifting for President Generalissimo Bush.

Boo,

My father is a born again Baptist.
My mother is a Catholic who in her youth thought about becoming a nun.

I will ply my KJV bible and my Rosary and ward off your Xtianity but I do know about original sin.

Woodhall Hollow

you should correct the spelling of your last name to reflect your character more. (I have been saving that.)

Mary,

you show some logic.

Mr Freepatriot, Sir,,

I wish you and your mother well.

[Katie Jensen]

Is there any chance that they are setting this up in regard to getting into more "grey mail" issues that will make prosecution difficult?? Or impossible??

Seems purposeful and that scares me.

[Kathleen]

And Harman "allegedly" came under investigation by the F.B.I for asking that someone go light on the AIPAC Rosen investigation/trial.
If we ever find out how deep this wiretaping program goes which "allegedly" involves (Amdocs, Comverse Insofy, Verint) all telecommunication systems that have something to do with Israel's data mining systems more shit is going to hit the fans!