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July 30, 2007


Quick addition: why was Tom DeLay briefed on March 11th 2004? He wasn't a Gang-of-8er. He wasn't on Defense Appropriations. He was briefed just the once, the day after Comey's hospital visit.

Also, isn't it fair to presume that Cheney convened or chaired at very least the July 17th '03 and March 10th '04 meetings, and probably all of them, 'at the behest...'?

Last point: James Risen said that 'The Program' was the operative term before the NYT (finally) broke the story. That's as nebulous a term as you could imagine, and my guess is that it was kept loose and baggy to provide ass-coverage then -- and now.

There's a Glenn Greewald piece up this morning, the gist of which is that "data mining" is a bright shiny object that both distracts attention away from illegal, warrantless wiretaps, and serves if not to exonorate then at least to cast doubt on whether our boy Al really, really committed full-blown perjury - as opposed to say, the usual dissembling weaselment - in his most recent testimony before Congress. And, the NYT swallowed the shiny lure like a hungry bucketmouth bass.

It would be good to get your thoughts, EW, on how the timeline here plays out if you eliminate the "data mining" meme and focus on other known aspects of Poindexter's Panoptican.

So Marcy, are you changing your tag from "EW" to "CW" [Chronology Weenie]?

The phrase would look great on a baseball cap.

Can any Chronology Weenie add to the timeline the NYT's admission of its participation in this little drama?

As I noted below, I wrote to the NYT Public Editor, but I'm trying to recall the exact timeline myself: i.e., I know the Times said it learned of the NSA spying program before the election. It told us that cheery fact AFTER the election.

But when did they learn? What did they learn? When did they tell us they'd learned this before the election but decided/were persuaded that it was in the country's "best interest" to keep this quiet?

I'm wondering what they were told that convinced them to suppress the story. Might they tell us now?

Inquiring Weenies want to know.


I think Glenn doesn't seriously consider how data mining (or, more likely, pattern analysis that wouldn't withstand the scrutiny of an independent computer scientist for scientific validity) would radically fuck with the notion of probable cause.

And second, if what I (and Marty Lederman) are laying out here actually happened, then the Bush Administration violated the clear guidelines offered by Congress. As joejoejoe suggested in his email to me, this is Iran-Contra territory, on top of all the problems with the surveillance aspect.

This chronology doesn't exist independent of the restrictions placed on data-mining. While I'm sure there are aspects of the NYT story taht aren't included (specifically US-US tapping), that doesn't mean directly violating laws Congress passes on appropriations isn't itself a huge legal problem.

We need more cursing, beer drinking, timeline making patriots.

I think a lot of the discussion of the TSA/data-mining program has revolved around "What could have been so bad that Ashcroft decided to not renew the program?". I believe the program didn't change at all. What changed was Congress had taken explicit action regarding funding of TIA, and the scope of TIA (prohibiting domestic use against American citizens) that led OLC to render a different judgement based on legal precedent. IMHO the legislation enacted by Congress shifted the President's discretion to deploy his surveillance program from the "twilight zone" to it's "lowest ebb" under Youngstown.

One more thing semiot

Glenn himself is getting confused by parsing. What Hayden described in his briefing is clearly not what is reported in the NYT article. He denied data-mining off of conversation content. I'm arguing that they data-mined telecom metadata. That puts the cart before the alleged horse. What I'm talking about, when I talk about data-mining, is taking meta-data, and from that meta-data, deciding which conversations (and emails) to intercept for content.

It is more permissible, to some degree, because it doesn't "tap" everyone's conversations. But it makes the probable cause problem that much worse, because you're arguing it's legal to tap people because of the kind of falafel joints they call regularly.


Well, that, plus Goldsmith and Comey came in and actually gave a damn about Youngstown, which I'm sure Yoo couldn't be bothered with.

Another perhaps interesting and worthy line of inquiry related to data-mining, which may bear on other aspects of oversight and reining in of the "administration" is that TIA was supposedly "defunded," and yet continued to operate.

Shall we now place all our eggs in the same "defunding" basket with respect to the continuance of the Iraq occupation?

I don't oppose trying, by any means. But shouldn't the TIA experience cause us to at least consider holding one or two eggs in reserve?

And would direct defiance of the Congress on yet another front be enough to overcome the "intellectual inertia" that keeps commentators like Josh Marshall from facing up to the reality that impeachment needs to be included in our toolkit here? Josh's main objection way back when was, after all, that Congress hadn't registered significant enough opposition to Bush's activities (despite having, you know, made them illegal 30 years ago).

Thanks EW. Your "pattern analysis that wouldn't withstand the scrutiny of an independent computer scientist for scientific validity" helps a bit to clarify a problem I have been wrestling with as the discussion about large-scale surveillance and "data mining" and such has unfolded recently.

Now I realize that the NSA has access to whatever computer technology can be created and employed. And I also recognize that the processing capacity of "supercomputers" has increased several orders of magnitude since I seriously studied advanced computer architechture technology back in the mid-80s. But, the idea that the NSA or any other entity can tap the entire firehouse of traffic ongoing in real time and subject that to serious sociometric analysis - which I believe is what we ultimately are talking about, sociometrics, when we say they are data mining to establish patterns of communication behavior and corellate them with other "variables of interest" either among terrorists or other enemies or potential enemies or opponents - well I just don't think it's feasible to process that much info productively. In looking at second and third-order linkages in a sociometric matrix of any size, the numbers pretty quickly exceed the numbers of atoms in the universe. So, "Total Information Awareness" is simply - IMHO - impossible, and therefore "a bright shiny object" to overawe the rubes. Impossible, that is, unless you already have a fairly short list of targets to fill out the rows and columns. Let's say you had a list of 100 Senators and their contacts over a two month period . . .

That's why I was interested to see Glenn's dismissal of data mining as the real issue that provoked the rebellion in DOJ in March 2004.

The timeline here is compelling. I just wonder if we are yet aware of what was the bone of contention, e.g., in Rockefeller's or Comey's objections about what BushCO was actually doing in their "Terrorist Surveillance Program and Related Activities."


That's fine. Just be aware you're arguing against a point I'm not making. I'm not saying this is sociometric information--many reports have made it clear that it's metadata. Which is different--and accessible to the NSA. But also that much more unreliable in determining whether anyone is a terrorist.

Kagro X -- how would you fund a program that you wanted badly, but did not have either public or Congressional approval?

Two things stick in my craw (and I'm sure EW is bored at hearing the one reiterated yet again):
-- a key post-Iran Contra learning was that covert ops needed to be run out of OVP rather than EO, to enhance plausible deniability;
-- In November 2002, Rummy killed a program with similar strong public public and Congressional disapproval (the Office of Strategic Influence) and pointedly told the press, "...I went down that next day and said fine, if you want to salvage this thing fine I'll give you the corpse. There's the name. You can have the name, but I'm gonna keep doing every single thing that needs to be done and I have. That was intended to be done by that office is being done by that office, NOT by that office in other ways." (This happens within a week of NYT's report about TIA.)

They were already used to shuffling projects and programs to other functions, in other words, in order to keep the functionality they wanted but without the oh-so-annoying lack of public approval.

Where did OSI go? did it become the contracts let to Rendon/SyColeman/Lincoln Group via DoD? Did they follow the same model with "The Program" formerly known as TIA, breaking up the functionality and letting it through other offices instead?

Having worked in corporate IT for a Fortune 50 company, I would not be surprised if we did not find that multiple contracts had been let to multiple vendors, in part to keep each vendor competitive, and in part to keep each vendor and contract administrator from realizing what was going on. And I would not be surprised if the OVP was the driving force behind the contracts -- like whatever was going on with MZM and SAIC and a couple other firms whose names have crossed this blog and other blogs. I'll also bet that commercially available information was purchased as well, but used for purposes other than those approved by unsuspecting consumers, clearly an issue in regards to probable cause; this OVP and DoD, though, believe that if money can buy it, if corporations can obtain it, it's legal.

It might also have become convoluted enough that Rockefeller couldn't comment on it, without either violating contractual agreements for non-disclosure with corporations, or without compromising parts that might be fully legal for private use by corporations but not by the government for any purpose without FISA. My gut tells me it's simple not as simple as a single department under the government's control, that the lack of a clear explanation is not merely because it's illegal.

We shd also add to the timeline when Comey became Asst Attorney General:

On October 3, 2003, President George W. Bush nominated Jim Comey to serve as Deputy Attorney General, he was unanimously confirmed by the Senate on December 9, 2003, and the President signed his commission on December 11, 2003. (whitehousse.gov)

And, when was he asked to look at this "TIA", probably at the next cycle of 90 days, i.e. around 3/10/2004, assuming he as not informed of the Jan 2004 cycle being missed.

It would make sense that what set Ashcroft et al off was the fact that the program was going to directly contradict Congress, not the program itself. Ashcroft was a Senator, after all, before being beaten by the dead Mel Carnahan, and may have had some vestigial sense of separation of powers. Goldsmith, Comey and the others as well. But Cheney has nothing but contempt for the body he once served in, and much prefers the efficiency of executive power.

So the program hadn't changed, but what made it objectionable was that it was at that point directly or about to be counter to a Congressional directive. More sh*t to eventually hit the fan when/if it all came out.

To the rest of us, of course, driftnetting and subjecting every conversation and e-mail to some sort of pattern-recognition algorithims is pretty bad in and of itself. And of course they can't make sense of such a mound of data. They would get hung up on pizza orders and miss people coming into the country on visas granted in Saudi Arabia. Again I raise the paranoid's paradox--in trying to control everything, they lose the ability to control the controllables.

I agree with Rayne upthread that this was run out of the OVP. Hence Rockefeller's letter to Cheney rather than the AG?

And I still think they were spying on their "enemies" too--a little side benefit of the program.

whenwego 12:20pm -- yeah, that letter to Cheney from Rockefeller, especially the line that says "we discussed with DCI, DIRNSA, Chairman Roberts..."

Was Cheney involved actively and directly in this sales job??

Actually I think "metadata" from communications traffic is exactly what would be subject to sociometric analysis. It's the "who talks to whom, when, and where or in what organizational context" that is typically the subject of sociometric analysis. Such metadata is available in the header of an email. It's also available in the control stream that parallels and governs telephone connections.

The point is, the NSA has to start from a fairly narrow set of target subjects to be able to fully analyze "communication patterns" in sociometric terms.

Therefore, I wonder if the issue over what the NSA has been doing is really, at base, an issue of who is being monitored, as much as it is over the nature of the data stream or its origins in the now worldwide communications system. I don't think all the possibilities in that sense have been aired - except in some speculation that maybe "blackmail" explains something about Congressional behavior.

I have no confidence whatsoever in the "explanations" we have heard publicly - even from folks like Mr. Comey. Everyone with any real knowledge of what is going on with "surveillance" is parsing like a guilty husband when the wife asks about the credit card receipts. It's all a dance around what the meaning of "program" or "authorized" or "legal" means in actual operations. Of course, there are "sources and methods" at stake here. (BTW, I have no security cleaance or any intimate knowledge of NSA operations, only a general knowledge of communications systems and sociometrics.) But I do think that illegal acts have been commited, and are probably still being committed.

For example, some "testimony" from Mr. Gonzales:

"BIDEN: Can you assure us, General, that you are fully, totally informed and confident that you know the absolute detail with which this program is being conducted? Can you assure us you personally can assure us that no one is being eavesdropped upon in the United States other than someone who has a communication that is emanating from foreign soil by a suspected terrorist, Al Qaida or otherwise?
GONZALES: Sir, I can't give you absolutely assurance of the kind that you've asked for. . . . What I can give the American people assurance is, is that we have a number of safeguards in place so that we can say with a high degree of confidence, (inaudible) of certainty, that what the president has authorized in connection with this program -- that those procedures are being followed."

And until the public has some sense of what is being done, they will be reluctant by and large to support Congressional action to curtail anything that resembles a "Terrorist Surveillance Program."


Yes. That's one of the nice touches in Rockefeller's letter (for all my complaints about him). He sent it to Cheney, who was in charge of the briefing, presumably. But he also listed everyone else who was there: DCI (then still Tenet), DIRNSA (Hayden), and he even lists Roberts by name.

In other words, he was making a record of those who didn't object (which presumably includes Harman).

Another quote from the inimitable (oh yeah) Gonzo:

"KYL: And finally, you noted that this was as interpreted by the NSA professionals. Now, I thought there were two particularly interesting lines of inquiry. And one was Senator Biden's question about whether or not, if this program is really necessary, we shouldn't try to evaluate whether it should also be applied to calls from Al Qaida terrorist A to Al Qaida terrorist B, although they happen to be in the United States.
And it was my understanding you said that the analysis of that had not been conducted. Is that correct?
GONZALES: The legal analysis as to whether or not that kind of surveillance -- we haven't done that kind of analysis, because, of course, the president -- that's not what the president has authorized. Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we're talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great. And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans."

You see, this thing is so way out there that TWICE as many Americans would object to it. So we just said, hell, it's not even worth lying about (cough, cough) . . . analyzing the legality of the thing. What would the children say? We'll just get Dick and that legal co-evil over there in OVP, Addington, to "authorize" this thing, and nothing more need be said about it, in specifics. We'll shell game this the way we did Saddam and WMD and Osama. If you can't win 'em with an argument, then baffle 'em with bullshit. And fuck Rockefeller and his stinking letters. He likes oil too, don't he. At least his grandpa did.

h/t to drational over at DKos for the quotes. He's got an interesting diary on the Dick behind the surveillance curtain going on right now.

Nice compiliation with lots of work behind it. Is there any kind of cite/reference on the 5/20/03 item? And to be fair, you might want to change the language on "1/04 - Given the pattern established in the prior three years, there should have been a briefing of Congress in January 2004, but it did not occur." Later you say two years, but didn't the briefings really just start in Jan of 03?

I'll add one date to the timetable. According to a written testimony by Comey after the May meeting with the Senate Judiciary, he disclosed that on March 9th he met with Cheney and Addington to brief them on the legal basis for not re-authorizing the warrantless wiretapping. He had disclosed in his Senate meeting that there was opposition from Cheney and Addington but gave no details of when and where this took place. We now know that Cheney and Addington were the first in the executive office to learn of the "course of action" that Comey and Ashcroft had devised on March 4th after their one hour meeting.

Here's another date:

Goldsmith over the OLC in October 2003. Think it was Goldsmith who started the review that led to the hospital scene.

(source MSNBC Newsweek here: http://www.msnbc.msn.com/id/11079547/site/newsweek/page/4/ )

I have to really, and I mean REALLY, salute the people here scouring the weeds and plumbing the depths on the details; you are doing an absolutely amazing and important job. And, for my money, nobody does it better than the folks here and their able leader. Alright, enough of the cheerleading stuff, as you have noticed, that isn't my strong point (if indeed there are any) anyway. As many of you are far better, and knowledgeable, about the micro-details than I, I would like to supply a couple of broader thoughts to place in the framework of your analysis.

It is basically incontrovertible at this point that the TIA never really died, and probably is still going as we speak. The bits and pieces may have been shuffled around, like a shell or three card monty game, but when all is said and done, the Administration put it in place and didn't look back. Quite frankly, by this point, it probably has more tentacles and is more pervasive than even Poindexter originally contemplated. With Cheney et.al., if they can do they will do it, legal or not and the track record is pretty much perfect on this statement. So, assume that until proven otherwise. However, that is a far different matter and conclusion from how the intercepted data was sorted, used and distributed.

This stuff is complex (I know, that is a duh statement). My point is that I have extremely grave reservations that it, as a whole (i.e. "the Program") could be brought into compliance with both Constitutional and statutory law even if there was an earnest good faith effort, above board, by all concerned. And, of course, we know there was no above board good faith effort; it was ushered in with subterfuge, smoke and mirrors. This means there is no way in hell it is legal or constitutional; it is simply a matter of how illegal, unconstitutional and bad it really is. Keep in mind that it is the government's incumbent duty to establish legality on fundamental Constitutional rights considerations.

There has been much consternation about the relative potential legality of the interception of the data and the subsequent sorting, use and distribution. This area of the equation is as detailed and complex as the facts we are desperately trying to piece together. There is no way to make a cogent determination on any individual aspect or piece of the puzzle without knowing the whole picture. The administration shell game depends on you not realizing this. This is also why they constantly dart, duck, appear, shift, blur and dance around like one of the Ferengi from Star Trek. If you keep trying to make legal judgments on one of the individual pieces on an interlocutory basis, it shades, jades and compromises the rest, and indeed the whole, of your consideration. You have to either assume it is all legal and start putting all the facts together with an eye toward determining if there is any thing illegal or, as I very strongly suggest, assume it is all illegal/unconstitutional and sort through it to see if there is any indicia of legality. The Administration is constantly trotting out some song and dance about why this or that is perfectly appropriate (the "program the President has confirmed" for instance) and the media, and most of us, suddenly start focusing on that and working madly to prove or disprove that. That is the shell game; QUIT FALLING FOR IT.

There are plenty of intelligent and legal modalities, or ones that could be made so if handled properly, that would actually make sense and do far more to protect this country than what Cheney and Bush hath wrought. But Cheney and Bush would have none of that; instead they have treated us to this clusterfuck that is illegal, immoral and unconstitutional, not to mention that even if it worked properly, it is not likely (as many of the tech and security heads here have eloquently explained, and the FBI has stated after returning from pizza, beer and falafel runs) to produce usable intel. This crap makes McCarthy look like a piker in many regards.

Oh, and as to Greenwald, as much as I admire and respect him, I agree completely with EW about the parsing/non-parsing etc. for exactly the over arching considerations discussed above. I think he, like all of us have from time to time, is falling for the shell game here.

Mary - Here are a source for the 5/20/03 date via GovExec.com

The Defense Department Tuesday submitted a lengthy report to Congress defending its work on the Total Information Awareness project, a controversial research initiative that envisions using technology to detect terrorist attacks before they happen.

The report was required by law and addressed the concerns of lawmakers and civil liberties advocates that TIA would violate individuals' privacy if it were used to inspect personal data, particularly financial transactions and phone records. TIA would consist of a set of technologies, including electronic searching tools to "mine" such records in the hopes of finding patterns indicating an imminent attack.

The TIA report, more than 100 pages in length, largely reiterated what Defense officials have said for months: The program is only in the research phase, and TIA isn't intended to scour large numbers of private databases. Engineers at the Defense Advanced Research Projects Agency (DARPA), which manages the TIA project, have long said that the media and privacy groups have misinterpreted their intentions.

But in reaction to criticism, DARPA announced that TIA would no longer be known as "Total Information Awareness." The name "created in some minds the impression that TIA was a system to be used for developing dossiers on U.S. citizens," the report said. "That is not [Defense's] intent in pursuing this program."

From now on, TIA will be known as Terrorism Information Awareness.

Note - the author of the GovExec piece is Shane Harris, who is likely the same Shane Harris who did excellent work on this subject for the National Journal.

And thanks for pointing out the fiscal year mistake. I don't know fiscal from mescal.

jjj - You need some fiscal to buy the mescal; only way I keep it straight. Heh.

On July 25th, I was told by someone in Harman's office (I'm a constituent) that she was preparing a press release on her role in the meeting.

There has been no press release, however. Today I was told by her office that "it was a classified meeting, and there is no disclosure of what was discussed at the meeting."

Tellingly, Harman refuses to contradict the assertion that she supported the illegal wiretap program.

Yep, QS. I'm increasingly convinced she played right along.

Though I gotta say, Reyes isn't much (any?) better than she would have been. Oh why couldn't we have pushed Holt more effectively?

A couple of us, including me, were bitching loudly that the guy was a complete dolt at the time.

Do they have dirt on Harman and Reyes? Could they be bought? They sure act like they have a vested interest in this Program...

Haven't checked, but I wonder in what USA district Harman's and Reyes' districts fall...

Thank you joejoejoe.

Dang - I was expecting something facetious in that - not that they really truly really did just that - said we'll just call it Terrorism Information Awareness.

Lots of great work in that timeline -thank you.

Kagro X -- I have also contemplated the question of what defunding the war would actually accomplish... I think the difference here though, is due to the lack of oversight and minimal auditing (if any) of highly classified programs in the Pentagon (I don't know if the NSA is operated similarly), it would be fairly simple to launder funding through the Pentagon. I suspect if Cheney can put Doug Feith there to cherry pick the intel, he could just as easily have him re-routing funds to places they ought not to go. And who would know about it? So doing an end-run around defunding TIA seems pretty straightforward.

However, when it comes to defunding the war, it would be pretty obvious if soldiers and equipment weren't coming home. However, I still think Bush would try to do another end-run here, again rerouting funds within the Pentagon as necessary in open defiance (via a signing statement no doubt) of Congress. I can imagine several stalling tactics he might employ to this end, but all with the single minded goal of doing what he damn well pleases. Again, the only way I see Congress imposing their will on Bush is to impeach him. Every other approach they might take will simply give Bush more time to stonewall, obfuscate, and ignore the will of Congress and the public.

What I do not understand is that the WH could have asked the spying on Americans, whether via direct content or by metadata analysis, to be farmed out to our allies (specifically the intelligence agencies of the United Kingdom, or Canada or Australia), countries which share Echelon or other eavesdropping networks that our NSA uses to spy on the world.

For example we spy on British subjects for Great Britain and Great Britain spies on American subjects for us, conveniently getting around any local prohibitions/laws forbidding such activity. I think James Bamford's "Puzzle Palace", or "Body of Secrets" describes such a likely arrangement.

That the WH or OVP in particular did an end round around even this end run option (well actually, I am not in possession of any knowledge to be making such a declarative statement--maybe both endruns are operative), suggests once again more politically minded eavesdropping is reserved for The Program.

Re; the phone/data tapping.
Wasn't there something about NSA taps/John Bolton/the UN?

Mary - Most of the data in the timeline is from the Electronic Privacy Information Center.

For those trying to piece together the events from early '04 the Christian Science Monitor's Tom Regan pubulished a summary of the various data-mining stories in the news on 2/23/04 in his Terrorism & Security update.


EW, you seem so certain this only involved metadata. Metadata contains a lot of stuff, including the to, from, bcc and cc data. See here. Once you single out the people, why do you think the other databases aren't searched? And why do you think the government hasn't figured out that they could just subsscribe to ChoicePoint and get whatever they want with no one the wiser?

OK, I have a question. The congress said:

(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for...

But what if funds from other areas were employed to maintain the data mining? What if Bush pulled an Iran-Contra of some sort?

Seeing if I can fix itals.

The briefings with Defense Appropriations people presumably provides ass-coverage.

I also think this needs to be differentiated from ECHELON. There are likely reasons why it couldn't have been outsourced, though the question is whether they were technological or legal/logistical.

I made a mistake with the dates on one element of the timeline.

Below should read 2/11/06 - I regret the damn error.

2/11/04 - Senate Intelligence Committe hearing: "one of TIA's strongest critics questioned whether intelligence officials knew that some of its programs had been moved to other agencies. Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was "correct that when [TIA] was closed, that several ... projects were moved to various intelligence agencies.... I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter's programs are going on somewhere else."
Negroponte and Mueller said they didn't know. But Negroponte's deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, "I'd like to answer in closed session." Asked for comment, Wyden's spokeswoman referred to his hearing statements." (via the National Journal, 2/23/04 [should read 2/23/04])

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