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September 25, 2007


Feingold was fairly strident in his "immunity questioning" too.

I noticed that McConnell admitted there was no legal barrier to massive acquisition and retention of international calls. That any impediment is technological, not legal.

And what was the word he used to characterize the amount of data they're collecting? Massive?

From McConnell's comments, it seems clear that one of the problems with minimization they've got is that they've vacuumed up information, and they're arguing that so long as they don't know that they've vacuumed up American communications data, they don't have to minimize it.

I'm not clear on McConnell's interest is in the retroactive immunity, anyway? Has he alleged that absence of that affects his job, going forward?

I think "one of the problems with minimization" is they are doing much of it; maximum everything for BushCo.

I didn't get the exact wording he used, except that there are billions of transactions per day. I don't disagree that 100% capture and retention isn't likely, but there is nothing in the law to prevent fishing expeditions and retention of calls on a hunch, or even without a hunch, just to increase the size of the sample.

But he admitted there is no statutory impediment to 100% capture, review and retention. None. The only barrier is technological / time and cost.

Make the "are NOT doing much of it" Apparently my vision makes bats look like eagles......


I think for him it's a matter of him being told (by his buddies in the telecom industry) that there is no more wiretapping without immunity going forward.

I wish Leahy had asked, "If you havent' seen the legal justification, then do you at least know what laws the telecoms broke?"

Please help me here Marcy. I vaguely recall that not all telecoms cooperated with the government on "the program". It would seem that the case for retroactive immunity would be weakened if there had been some holdouts, in that the argument that "they had no choice" would be factually false.

Any thoughts?

The prepared testimony is now online at the hearing link that Marcie posted.

As for immunity going forward, they all have it. What I'm drawing a blank on is McConnell saying that absence of retroactive immunity has an impact on his job going forward. He's arguing for retroactive immunity as being "fair" because the actors alleged to have broken the law were following orders from the government.

If McConnell is the face of surveillance going forward, and he's not impacted by surveillance cases on past conduct, why is involved in that particular issue?

Qwest at least resisted executive orders. That is, there is a difference among the telecoms in how they reacted to surveillance orders. AT&T and Verizon complied.

I don't see a principled argument in favor of retroactive immunity. I see practical arguments for it (difficulty in crafting an equitable remedy - it just comes out of the taxpayer's hide anyway).

The administration wanted to keep a phony law on the books. It was pissed that the TSP was leaked, and the value of the TSP was that it was extra-statutory, i.e. fooled the bad guys into thinking the law prohibited interception of certain communications. The administration consciously decided against obtaining a change of law, until after the TSP became a matter of public knowledge.

and they're arguing that so long as they don't know that they've vacuumed up American communications data, they don't have to minimize it

and basically the real argument is that it would defeat the purpose of vacuuming all that info up if you can't then use it to trawl through.

Here's the actual deal on telecom immunity.

1. It won't make a nickels worth of difference to future cooperation. IF the administration explains to Congress what they need and Congress authorizes it - then the telecoms will have to go along. Period. They won't be able to refuse what the law tells them they have to do for the Executive branch.

2. If they do have massive liability for YEARS LONG involvement in a covert program that the FISA court chief judges IMMEDIATELY told DOJ was illegal, unconstitutional and not going to be allowed to taint their court - - - uh, so that would mean the NEXT time an Executive came to them with a huge, massive program that was not authorized by law - they might balk. And the Executive might actually have to involve Congress and get authorizing law - a law that could be reviewed by courts and challenged if and as necessary.

OH MY - would the "possible outcome" mean that the corporations act as though they existed within a Constitutional democracy where laws are written by the legislature, interpreted by the courts ... Horrors.

3. ATT, which for many years enjoyed monopolized earnings, might have to transfer monies back from their pockets and into the pockets - not of the upper 5% of the wealthiest in America, but into the pockets of regular people. Again - horrors.

4. People who broke the law might go to jail. Well, there's the worst of it, isn't it? After all, DOJ only believes in jail for lawbreakers when the Justice Dept didn't solicit the crimes internally.

But in any event - all the crap about future assistance is just that - crap. If they explain what they need and why and how it is FULLY CONSTITUTIONAL as well, they will get a law that provides what is needed and a court who can review it as needed. Government in the sunshine, the way it is meant to be in a Constituional democracy. Not government of coverup and crime.

There's been a persistent meme on the part of the administration that I've seen discussed, but I'm of the mind that the meme is a misrepresentation.

When the law was passed in 1978, almost all local calls were on a wire and almost all international communications were in the air, known as "wireless," communications. Therefore, FISA was written to distinguish between collection on a wire and collection out of the air.

This is basically saying that Congress intentionally crafted FISA to permit the warrantless acquisition of the bulk of international calls/communications (telegram, teletype, etc.), when it passed FISA in 1978.

In other words, the argument is that "Congress gave us the same thing in 1978, the ability to get international communications without a warrant. Therefore, what it just did with the PAA is renew that same old grant, mindful that international communications are now done on a wire."

I don't see a principled argument in favor of retroactive immunity

Exactly. Especially given a) the length of time the program went on without the Executive getting supporting legislation and b) the statements by AGAG when things came out that the reason they didn't go to Congress is bc they were pretty sure Congress wouldn't give them what they need. How long have the telecoms CONTINUED in the program, even after THAT public statement.

But here's the very sad thing.

What AGAG was positive a Republican rubber stamp Congress wouldn't give the President, McConnell is just as positive that a spineless Democratic Congress WILL give.

And they're probably right.

Which makes me really really wonder why the effort is spent to put Democrats in Congress who will roll over worse for the crimes of the WH then the Republicans would. *sigh*

Mary - Your last paragraph, as cboldt points out, and I have reminded several times lately, is exactly right; and the hell of it is, this was offered to them on a fucking bi-partisan silver platter long ago. The reaction was a sneer (was it Cheney?) and the words "we got all the authority we need"; get lost. These people might as well start seizing our children; they are lying, cheating, and taking everything else. Ok, that is a bit of hyperbole, but really, where does it end?

The immunity is not about the telcos at all. At least not primarily. It's about giving immunity to Bush administration officials for breaking FISA and removing the cases from court jurisdiction. Just like the MCA, the Administration knows that to truly be above the law they have to make sure that no court has jurisdiction and no Administration official can ever be called to account for their actions. Since Bush and his underlings know he can't pardon them for law-breaking he authorized, he has to get Congress to play along. Sadly, the fools seem prepared to do it. They let him get away with torture. They are going to let him get away with the spying. They might as well just declare him princeps and be done with it. Emperor worship will follow in short order.

Here's another, making the same argument, but going a step further.

Benjamin Wittes - The New Republic

But it's hard to see any real civil liberties significance in letting the NSA do with wire communications what it has always been able to do with radio communications. Do you even know which technology carries your overseas calls?

So, if the person using the landline doesn't know how the international call is carried, every step of the way (no microwave link, no satellite, etc.) then no expectation of privacy? I doubt it.

The view of 1978 law might be accurate though, seeing the "totally domestic, radio communications" clause in FISA.

If accurate, that Congress meant for the bulk of international communications to be grabbale without a warrant when it passed FISA in 1978, it means Congress was deliberately deceptive in 1978, creating a falsely inflated public expectation of privacy.

bmaz - look at the rows at Arlington, the lines of prosthetics waiting to be fitted at Walter Reed, the bodies floating in the water in NOLA, the growing ranks of poverty and uninsured - the US born children of immigrant parents either torn from their parents or tossed into detention facilities with them. I don't know that these people might as well start seizing our children is hyperbole.

Why would a rational person miss this question in a line of questioning that would demand it?
is there something we have missed in the yard sale?


Apparently we missed the entire yardsale. You know, the one where the Democrats thought they were buying power, and sold their souls (and their votes) to get it.

Lobbying and advocating. Sounds like the NPCA saying they're only using 25% of their advocating lobbying thing to get PC to stay in Fiji.


"And quite frankly, we're not living in a democracy. We have a military installed government in place, we have a state of emergency in place."

The DNI is missing that the coups in the Stans were the US and the Afghanistan war was the same. It's Africa and special forces and now Asia and Pacific Islands having military coups endorsed by PC when people already think the US is behind the coups and the military financing shows up a few months after the coup.

So, we're advocating for these coups to make sure the insurencies started by the CIA don't get to the US.

I have a question that has been bugging me for a while now. Clearly the Bushies are not real adroit at thinking in the long term perspective (with the large exception of planting autocratic/theocratic seed pods in DOJ and the judiciary); but what is their plan for when they leave office? By that, I mean they have concealed, lied, obstructed, claim to have inadvertently deleted, claimed state secret, classified etc. competently enough (about the only thing they have done competently) to keep themselves from being impeached and/or put in the stocks; and, thanks to the timid and derelict Democrats, look to be on their way to riding out their term. But what are they going to do about all the incriminating evidence of what they have really done that is still there when they leave and Bill Clinton has nothing to do in the White House except remember with glee the way they went after him and he starts plowing through the stuff? What is the plan for that? They ALWAYS have a plan to escape accountability; what is it?


I already told you the plan. They get Congress to immunize them for the blatantly illegal things that Bush ordered. Bush pardons everybody else. If they miss anything, there will be a brief, contentious Congressional investigation by a Select Committee led by a "serious" Democrat (even worse, Joe Lieberman). Their flunkies will loudly yell, "Partisanship!", the press will realize there is no sex involved, and the Dem in the White House decided that being the king isn't so bad after all. Meanwhile, the Republicans will be learning what they did wrong so that the next time they gain power they won't ever have to give it up.

Yeah, I know; and that is likely right. The wildcard that keeps bugging me is Cheney. That plan is to subtle for him; he is more of a General Sherman type. That is about the only thing that has given me even a moment's thought on the war/martial law theory some claptrap about. Or maybe they will put all their records in Yucca Mountain and douse them with plutonium or something declaring it a national security hazard....

Another interesting point:
Feingold on "concerning"

McConnell stated he went back and could not find out why that language was added.
He then said he was willing to consider revision.

That language was dramatically different than the house or senate versions, and essentially allowed acquisition of EVERYTHING concerning foreign intelligence, at home and abroad.

So it's telling that like having no clue about the pre-2007 program details, McConnell had no idea of why the WHO version of 405b needed that particular language.
In essence he is acting as a low-paid lobbyist for the Cheney Plan.

while you're waiting for the official transcript or c-span's archives, i posted the audio of today's hearing, in case you'd like to download the mp3s.

thanks to everyone for the detailed analysis.

drational wrote:

". . .In essence, he is acting as
a low-paid lobbyist for
the Cheney Plan. . .

i think that gets it just exactly right.

and my latest "nightly nolo" offers
some (albeit unwitting) advice to dick cheney
from director mcconnell -- about the strictures
of our fourth amendment -- pre-, or post-, nine-
eleven [all in under 1:30, to boot!]

great post, here marcy! -- w/ excellent
commentary, as ever, here, one and all. . .

p e a c e

drational - McConnell is the Sgt. Schultz of BushCo.

bmaz - It is possible, though not very obvious, that the effect of the Dems' oversight since the mid-terms has been similar to radiation on a tumor - shrinking the Bubble.

It might be that the Dems are negotiating with the Goopers on 'which' of the BushCo extra-lawful programs and activities they want to codify into Law, keep secret (hopefully with oversight) or shrink and remove by the time Bush leaves office.

I would be more inclined to think this possible, though, if Troops start coming home by Christmas and Bush doesn't attack Iran before the first Primary...

But, for now, I still see a rooster tail of dust a mile long behind the streaking Bus.

Oh, the post mid-term oversight has crimped their style, no doubt; but it does not seem to have meaningfully abated anything.

"Oh, the post mid-term oversight has crimped their style, no doubt; but it does not seem to have meaningfully abated anything."
Sampson, Goodling, McNulty, Elston and Alberto G. might beg to differ.
It's put a crimp in the disenfranchamentalist.com website for job hires at the DOJ.

(I don't think Leahy uses that language, but I can guarantee you he has heard it.)

gotta love EW's humor!


The whole wire vs. radio talking point is a complete misrepresentation of the debate around the '78 FISA. I was paying attention back then and I remember what happened (not to mention the fact that I did a grad school paper on the subject in 82-83). The intention behind FISA was clear to everybody, we wanted the government to stop spying on Americans without a warrant. Period. Full Stop.

FISA was written with certain technical limitations in mind, but not the way the Administration wants to portray it. The NSA made the case that when their listening posts picked up signals after they had bounced off a satellite there was no way to determine in advance whether those signals had originated in the U.S or not. They said, in effect, we have no interest in listening in on Americans but we gotta know what the Commies are up to. Everybody knew back then that the NSA was never going to get a warrant for anything. The deal was struck to say if you accidentally pick up U.S. international calls, you delete the data. But there were transoceanic cables at the time and FISA said that excuse wouldn't work for those. If those cables connect to U.S. territory, they're carrying U.S. international calls (true at the time) and you must have a warrant.

The real targets of FISA were the FBI and the CIA. Both agencies had used warrantless wiretapping (on wires and radio waves) in the U.S. The Nixon administration had even used Miami-based radio eavesdropping equipment that was supposed to be pointed at Cuba to listen on radio (walkie-talkie style) communications at the 1972 Republican National Convention. Hence the specific mention of domestic radio communications with a reasonable expectation of privacy.

To sum up, the Bush administration is turning history on its head. Because Congress believed (rightly or wrongly) that there was technical limitation that prevented it from achieving the total protection from spying it wanted, we must now allow the spying they were trying to prevent even though now we have the technology to actually prevent it.

Somewhat off-topic... well, maybe not..

Has it been confirmed that the telcos just did the scooping but the storage and sifting was with USG equipment and at USG facilities?

Some speculation on why immunity seems to be so important right now.

Telecoms are demanding solid immunity because:

- when all of this started, they believed there would be a long conservative rule which would protect them. At the very least they thought the people they were dealing with were somewhat competent, and would think about what would happen to their allies after they were out of office.

- at the start, the exec branch asked for certain data and services, and over time, they demanded more and more to the point which the telecom execs disagreed with the exec branch but had no easy way out

- perhaps there has been a growing dissent amongst those in power in the telecom industry. There were things they didn't know at first; they were under the same 9/11 spell as everyone else; perhaps there have been changes in leadership and/or balances of power in the organizations; etc.

- the compartmentalization included the telecom companies too -- they didn't have enough information to see the program in total. Now they know more and they are scrambling to protect themselves with immunity, and manila envelopes in safety deposit boxes.

- investigations by Congressional democrats are making telecom companies very nervous. They worry that their actions might be the impetus for retaliation in the form of legal action, or anti-trust actions against them.

- perhaps telecoms are threatenening to expose more information about the whole program if they aren't given guarantees -- considering that the relationship between Bushco and Telco may have become very strained.

- maybe people connected with the telecom companies became aware that their own private (they thought) communications were snatched up too. During some tough negotiations, perhaps the Bush admin even tried to use that to influence them.

- it's possible that the telcoms have been talking to whistleblowers and others in agencies, etc.

In short, perhaps the Bush admin has doublecrossed, manipulated, and screwed over the telcom companies, as is their usual M.O. It's become pretty clear that people and entities run a high risk of personal and/or professional ruin.

tryggth - I don't think anything is actually confirmed. The allegations in the affidavit/whistleblower info led towards a possible conclusion that USG had its own rooms with "its" personnel in those rooms, getting all the info routed through the equipment in those rooms. However, Mad Dogs talked about software issues and other problems with that scenario and I think it's shooting in the dark.

We know not nearly enough about the roles of telecoms and ISPs in domestic surveillance. Don't we know even less about the roles of private firms in processing and storing vacuumed-up data and the personal data gleaned from it? Assuming that the federal agencies can't handle all of the program design, software writing, and data processing tasks of surveillance programs without private sector help, we might wonder who has access to what information. It's hard for government agencies to keep tabs on private firms that have more technical expertise, I figure. Maybe all involved have pure intentions, seamless integrity, and unfailing diligence; we'd better hope so.


Yup, that's it exactly. I pointed out a long time ago that McConnell spiked the Dems bill from Dick Cheney's office in COngress. That's perfect symbolism (and probably more than that) for what you describe.

Somebody's got to get to the man-sized safe in Dick Cheney's office and haul that baby over to Senator Leahy's office.

Batman perhaps?

No No No on "retroactive immunity". That would mean Amdocs, Comverse Infosys and any other communication systems that have "allegedly" been compromised will never be held accountable. Well I know lack of accountabiliy is going around D.C. but this is criminal.

I will never ever forget Senators Kerry, Kennedy, Biden, Dodds, and Lincoln Chaffee's faces during the John Bolton nomination hearings when they kept bringing up the NSA transcripts that they were demanding that the Bush administration hand over. I really thought they were going to jump over the tables and beat Boltons ass. ( I can dream) It is 'alleged" that these transcripts have to do with the strong possibility that Bolton listened to Colin Powells negotiations with Iran, Syria etc. HOLD THESE PEOPLE ACCOUNTABLE PLEASE!

I will never believe in this justice system until we witness the people in the Bush administration who have committed very serious crimes HELD ACCOUNTABLE.

Where is the completed Phase II of the Senate Select Committee on Intelligence anyway? Why is Doug Feith still running free?

If I was a Telco, I'd want blanket immunity for everything for all time.

Since that isn't reasonable, if I were a Telco I'd want immunity for the 'Specific Things I Knew For Sure' were going to come back and get me - like documented proof of warrantless eavesdropping on innocent citizens, obvious political targets, media personalities, named Rich people, etc - targets that may have been civilly/criminally harmed with the surrepticiously acquired information.

For things like that, if I were a Telco I'd want to covered for both monetary and moral liabiliites, too.

We should be having a political debate in this Country over this whole idea of 'sweeping prior, unexamined, not-legal (as Comey would say) activities' under the rug of blanket immunity, without understanding what the implications are to US for those prior, unexamined, not legal activities.

What if piecing together that trash reveals a repeatable, systematic abuse of Power?

It is 'alleged" that these transcripts have to do with the strong possibility that Bolton listened to Colin Powells negotiations with Iran, Syria etc.

Really? I hadn't heard that - what kind of sourcing?

ew, who has traced Gillespie thru the USTA days likely also has reviewed the turbulent congressional argument that was occurring in the second Clinton term over then nearing US fullscale rollout cellphone technology. I quit studying that literature long ago. Though occasionally have bumped into Reed Hundt's writing on the 'net about some of this. The problems cellphone folks wanted decided included how to make their networks do GPS, whether the cellphones would have a simple chipset to integrate that; plus the old CALEA and 1996 dereg laws added to the corpus of congressional intent. The arguments by civil liberties folks in congress was very ardent; and the startup cellphone companies were going to be rendered vulnerable to buyout by big telcos if the congress wrote into law the kinds of chips and the transmission protocols, plus the ports to datastreams calea and e911 in the sausageLawMaking stage seemed to portend; Republicans simply characterized the little companies as foot dragging for market position's sake nearterm but that was only the monopolist fiction hype telcos manufactured. That in fact is what happened. Then Republicans got into office, put MPowell in Hundt-Kennard's place at FCC, and courts caved on UNE, pushing congress into needing to argue thru net neutrality. I find cdt's website labyrinthine and cumbersome, but, in a thread a day ago or so ew held discussion including hearing witness from cdt Dempsey; there he is in 1999 discussing in 1999 hearings, counseling congress from his understanding of privacy law as it existed then, and the calea intent, so called modernization. I don't do telecomms any more, and lack the time at the moment to explore the congressional record, but recall the vivid energy of the hassles some Democrats provided in attempts to forestall some of the problems the obsoleteness of the FISA construct clearly was going to cause. Instead of examining the warrants side of the fragmented modernization, congress spent a lot of time exercising the last few years of the Independent Counsel statute in hopes to trim a moderate Democratic president's agenda, mostly in the guise of a morals prurience; but also fairly organized on the Republican side was an effort to tip the balance to the RBOCs and their overseas nearest competitors. Then the terrorismThing got going and the neoCons got their opportunity to do it CheneyYooBybee's way, with the secrecy and state's secrets stuff to deliver a fully formed parthogenetic result of executive branch parentage exclusively, as it was. It is helpful congress wants to look at this, but there is still an executive degree of cooperativeness that has been lacking for years. It may be interesting to see how Mukasey dealt with some of the early terrorismOccurrences, as that was contemporaneous to the networks' expansion; if he is approved. I drafted this hastily, though.

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