The Next Hurrah

The FISA Report

by emptywheel

Laura links to a CQ story based on this SSCI report on FISA. As Starks noted in his CQ article, the report reveals that the telecom companies did not have the requisite approval from the Attorney General for the period following the hospital confrontation; rather, they had White House Counsel Alberto Gonzales' approval.

The committee’s published report on legislation (S 2248) that would rewrite the rules for government surveillance states that telecommunications companies participating in the NSA program received regular letters affirming President Bush had authorized the program.

But all but one of the letters also stated that the attorney general had determined the program to be lawful, according to the report. That letter, which covered a period of “less than sixty days,” instead stated that “the activities had been determined to be lawful by the counsel to the president.”

I'll have my own excerpts of the report in a post shortly. But for now, consider some implications of this:

• Bush did not authorize the program personally after Comey refused to authorize it; Gonzales did. Presumably, they were trying to protect the President (and the Vice President) from responsibility for having done so. But where, then, does the legal responsibility for having violated the Telecommunications Act lie? With the telecoms, for taking authorization from the White House Counsel--who is not approved by the Senate--rather than the Attorney General? Furthermore, does this expose Gonzales legally? Update: I need to make a correction. The report makes clear that Bush authorized the program at each step. It's just that for the post-hospital confrontation period, he was relying on Gonzales to certify it was legal.
• I wonder whether Bush told the telecoms why Gonzales was approving the program rather than Comey subbing for Ashcroft? Did the telecoms know that Comey, not Gonzales, was acting AG? Did Bush simply say Gonzales had approved the program because Ashcroft was sick?
• This report says nothing about the pre-9/11 activities Nacchio has alleged.

About that Need for a Whistleblower Law...

by emptywheel

I believe it was just the other day when I was saying it was more urgent to implement whistleblower protection than to write a new journalist shield law. This doesn't change my opinion in that regard.

This summer the House Judiciary Committee launched an effort to collect tips from would-be whistleblowers in the Justice Department. The U.S. attorney firings scandal had shown that much was amiss in the Department, and with the danger of retaliation very real, the committee had set up a form on the committee's website for people to blow the whistle privately about abuses there. Although the panel said it would not accept anonymous tips, it assured those who came forward that their identity would be held in the "strictest confidence."

But in an email sent out today, the committee inadvertently sent the email addresses of all the would-be whistleblowers to everyone who had written in to the tipline. The committee email was sent to tipsters who had used the website form, including presumably whistleblowers themselves, and all of the recipients of the email were accidentally included in the "to:" field -- instead of concealing those addresses with a so-called blind carbon copy or "bcc:".

See, if we didn't force our whistleblowers to sneak around so much, this wouldn't be the monumental fuck up it is. As it is though, this is likely to discourage a more whistleblowers from coming forward.

That say, I will at least entertain (for the moment) that this was deliberate. The Republicans have always hated this tip line--they've been trying to shut it down since Conyers started this. And the email explained that the tip line has now been shut down.

This message is to inform you that the Committee is now ending the tip line and has voted to approve procedures governing the confidentiality of the e-mails received.

So this email included the emails of everyone who has--or will--submit a tip to the tip line. And that entire list was carbon copied to Cheney's office.

Some of the email addresses appear to be transparently fake, but there's also, much more troubling, a vice_president@whitehouse.gov carbon copied on the email, which is the public email address for Vice President Dick Cheney.

In other words, it would be very smart poker if some disloyal Democratic staffer or a Republican staffer to "accidentally" send Cheney the list of all those who were revealing secrets about DOJ. There have been some Republican leaks of damaging testimony in the past. What would it take for someone to "accidentally" make this tip line backfire--to make it serve the intelligence purposes of those trying to avoid responsibility for politicizing DOJ, rather than the opposite?

The Wilkes Firestorm

by emptywheel

Chrisc, who thankfully made it safely through the San Diego fires, didn't let them distract her from the matter at hand: the Wilkes trial. Mark Geragos took the opportunity of a big natural disaster to sneak his client onto the stand to testify--apparently taking the government by surprise. I'll review a few of the details, but I'd like to compare the account of Seth Hettena and that of Allison Hoffman. It's a great example of why blogging (or non-"objective" reporting) can be more informative than traditional reporting. Hoffman, who has been doing a good job on this story, gives us the gist of Wilkes' testimony: Geragos sprung Wilkes on the Prosecution, and Wilkes denied everything.

Defense contractor Brent Wilkes emphatically denied bribing former U.S. Rep. Randy "Duke" Cunningham Friday as he took the stand in his trial, which had been suspended while wildfires ravaged Southern California.

Wilkes' attorney, Mark Geragos, surprised prosecutors by calling Wilkes on the first day of trial in a week. The lawyer had not warned them he would be calling his client and had not hinted in earlier hearings that Wilkes would testify in his own defense.

But she doesn't give us a full assessment of the effect of his testimony. Hettena, on the other hand, gives us a fair impression of the effect of Geragos' surprise.

We were all curious what the government would do on cross, but Geragos’ maneuvering left Halpern with less than an hour to prepare. It showed. His questions were argumentative and off the mark. Several attempts to impeach Wilkes failed because Halpern couldn’t get the documents he needed admitted as evidence.

[snip]

At other times, the prosecutor lost control of his witness. He allowed Wilkes to trash the government’s witnesses and deliver a ringing endorsement of earmarks:

Earmarks are not dirty things and earmarks are an alternative to a bureaucracy being in complete control of the budget.

Instead of challenging this (bridge to nowhere, anyone?) Halpern only rolled his eyes in disbelief.

It dawned on me that Halpern was trying to run out the clock, stalling until the end of the day so he could regroup and prepare for a proper cross. But in the meantime, he afforded Wilkes to connect with the jury at the government’s expense. Jurors were cracking up at Wilkes’ jokes and smiling when he shook his head at Halpern’s questioning.

Far be it for Geragos to miss the opportunity to use showmanship to try to win a case.

One thing Hettena doesn't say in this post (though he has said it elsewhere). This trial--particularly the government's case--has been putting the jury to sleep. It's bad enough for Halpern's case that he got caught unprepared. Still worse, though, that Wilkes' testimony seems to be the highlight of the case so far.

Hot and Cold Running Classification

by emptywheel

According to the NYT, the White House has very generously allowed the entire SJC to view the documents justifying the domestic wiretapping program--at least that's what Tony Fratto says.

The White House on Thursday offered to share secret documents on the National Security Agency’s domestic surveillance program with the Senate Judiciary Committee, a step toward possible compromise on eavesdropping legislation.      

Fred F. Fielding, the White House counsel, offered to show the documents to Senator Patrick J. Leahy, Democrat of Vermont, the committee’s chairman; Senator Arlen Specter of Pennsylvania, the ranking Republican on the committee; and staff members with the necessary security clearances, said Tony Fratto, a White House spokesman.

Mr. Fratto said that if Mr. Leahy and Mr. Specter so wished, other committee members would be granted clearances for the N.S.A. program and permitted to see the documents. A spokeswoman for Mr. Leahy, Erica Chabot, said he would make sure the entire committee had access. [my emphasis]

If Chris Dodd's stance on FISA has succeeded in one thing, it has been to ratchet up the pressure on the Administration to negotiate ... or at least as close as it comes to negotiating. But that negotiation does not extend to the House, which won't get to see the family jewels until it agrees to negotiate on retroactive immunity.

Neither the House Intelligence Committee nor the House Judiciary Committee has been shown the documents. Mr. Fratto noted that a bill pending in the House contained no provision for immunity from lawsuits and suggested that unless that changed, the House committees would not see the documents.

“If the committees say they have no interest in legislating on the issue of liability protection, we have no reason to accommodate them,” he said.

Now, this is particularly troubling, since those on HPSCI do have clearances to see lots of secret stuff, and since before the August 4 debacle of a FISA amendment, the House side was getting all the briefings, whereas SJC received none, as a committee. As Marty Lederman notes, this is proof--as if you needed any after Dick Cheney declared himself Fourth Branch--that this Administration is playing big fat games with classification.

Razed

by emptywheel

Okay, I mean this to be an honest question. The NYT has scary pictures up--courtesy of William Broad, who was glued to Judy's hip on Mobile Bioweapons Lab stories in summer 2003--showing that the purported nuclear reactor the Israelis took out in Syria has been razed to the ground.

That offers proof, the accompanying article states, that the Syrians were up to no good, and that the bombed site was a nuclear reactor.

A mysterious Syrian military facility that was reportedly the target of an attack by Israeli jets last month has been razed, according to a new satellite image that shows only a vacant lot in the place where Syria was recently constructing what some U.S. officials believe was a nuclear reactor.

The new photograph, taken by a commercial satellite yesterday, suggests that Syrian officials moved quickly to remove evidence of the project after it was damaged by Israeli bombs on Sept. 6, said David Albright, president of the Institute for Science and International Security, a nonprofit research group.

"They are clearly trying to hide the evidence," Albright said in an interview. "It is a trick that has been tried in the past and it hasn't worked."

Here's what I don't get. The site was bombed. By Israelis. If you have doubts about their ability to destroy things from the air, just ask the Lebanese. What these pictures show is a site that was razed. It doesn't show anyone doing the razing. It doesn't show the site just after it was bombed. All it shows is a site that was completely destroyed. It shows no evidence of how or who destroyed it.

So why do we believe a site that has clearly been destroyed, that we know to have been bombed, was destroyed after it was bombed?

Update: From Arms Control Wonk:

• The pictures showed a large building near a river. That’s about it. If the building was a reactor, it was very far from completion. Absent reliable human intelligence, I see nothing that conclusively demonstrates the building was a reactor although IAEA inspections would have been decisive on this point.

• Assuming it was a reactor, it is much too early to make design determinations based on imagery. Overhead identifications of reactors can, and are, often wrong as they were in the cases of Baotou — a fuel fabrication facility in China mistaken for a plutonium production reactor — and the gigantic North Korean whole in the ground that is Kumchang-ri. As I noted the other day, IC estimates of the size and type of the Yongbyon reactor, at a comparable stage, were incorrect.

• The people leaking are those dissatisfied with US policy. “A sharp debate is under way in the Bush administration,” Mazetti and Helen Cooper reported, about “whether intelligence that Israel presented months ago to the White House … was conclusive enough to justify military action by Israel and a possible rethinking of American policy toward the two nations.” Obviously, that rethinking hasn’t happened yet. The people who lost that debate are leaking national security information, appealing to the press. That is precisely why Hoekstra (R-MI) and Ros-Lehtinen called for more information — this is about North Korea, not Syria.

Trying to Peel the Haggis

by emptywheel

The White House must be trying to peel Scottish Haggis away from the Democrats on the SJC who oppose granting the telecoms immunity for illegally spying on citizens. Why else show Leahy and Specter the family jewels--the justification for the domestic wiretap program--without sharing them with the rest of SJC?

The White House has offered leaders of the Senate Judiciary Committee access to legal documents related to the National Security Agency’s warrantless surveillance program, senators said Thursday.

But Senate Judiciary Chairman Patrick J. Leahy, D-Vt., said while the White House had offered the documents to both him and the panel’s ranking Republican, Arlen Specter of Pennsylvania, he was pushing for the entire committee to receive access to the documents. But he also said he would take advantage of the offer and review the documents.

[snip]

The entire Senate Intelligence Committee and its staff did receive access to the documents prior to its approval of draft surveillance legislation last week, and had conditioned its own markup of getting to view them. That committee’s draft legislation includes retroactive legal immunity.

If they could bring Scottish Haggis back into the camp of Republican rubber stamps (and at least get Leahy to agree to let the bill move through the committee), they should be able to get their telecom immunity. After all, DiFi and Whitehouse already voted for immunity in SSCI (though Whitehouse wants to add more oversight on minimization). So with Specter, they'd have an 11-8 vote for immunity.

How about it, Haggis, want to be a hero? Or will you once again trade your purported principles for party fealty?

The funny thing, though, is what this childish tactic says about the others on SJC--those who can't see the family jewels. Feingold has already seen the family jewels over at SSCI, along with DiFi and Whitehouse. So which of the following Senators do you think the White House is trying--with such desperation--to prevent from viewing the family views?

• Ted Kennedy
• Joe Biden
• Herb Kohl
• Chuck Schumer
• Dick Durbin
• Ben Cardin

Sure, Kennedy and Biden are blowhards (Schumer, for his part, isn't even solidly against immunity yet). But they're Senator blowhards. What are you guys so worried about?

Shorter GOP: It's Okay if Maliki's Govt Supports Insurgents, So Long as It's Not OUR Money

by emptywheel

I'd like to return to an interchange between Waxman and Condi from the hearing today. Condi made a verygenerousoffer to let Waxman's committee review documents pertaining to corruption. Waxman pointed out that that offer did not allow the committee to discuss what it discovered in those documents publicly.

He raised the example of whether Iraqis were laundering money for use in militias. And Condi admitted that some of the corruption in Iraq contributed to funding militias. "Particularly in the south."

Someone must have been reading the blogs, because the Republicans (in a pretty smart strategy) saved some time for their designated attack dogs, Shays, Cannon, and Davis at the end so they could clarify what Condi meant with that answer (Darrell Issa must be busy in California trying to dilute that state's electoral votes while Rome burns, because this is usually his role on Oversight). At least Davis and Cannon (and I think Shays, though I was in the other room) got Condi to clarify that US money isn't going to Shiite militias who kill our troops. Iraqi money does.

Frankly, I'd sure like to see the accounting (though Condi correctly pointed out that State Department's relevant budget never goes directly to Iraqis, so it really doesn't fund Shiite militias). But consider where that leaves the Republicans.

We are currently providing a great deal of military support for a government that supports militias--Condi says--that our arch enemy (unless you're Ollie North or Poppy Bush) is also supporting. We're supporting Maliki's government which in turn uses corruption to support pro-Iranian factions.

And that's okay for the Republicans, so long as Maliki isn't launder our own money to support the Shiite militas. Mostly because they have no choice. Stopping such a practice would effectively admit that the war has completely backfired, making our arch enemy (unless you're Ollie North or Poppy Bush) stronger.

Waxman Hosts Condi

by emptywheel

Condi stumbles out of the gate. Waxman asks a question about al-Maliki obstructing a corruption investigation of his cousin. Condi first tries to appeal to sources and methods, which Waxman slaps down. Forced to answer further, Condi answers generally.

No one is more concerned about allegations of corruption in Iraq than we are.

[snip]

I can't comment on this specific allegation, I don't want to do so without reviewing this allegation.

[snip]

I'm overseeing a very large organization, we are determined to look at allegations of corruption, we have many many hundreds of documents, hundreds of reports of corruption. Nothing is going to be gained by speaking pre-maturely about corruption.

Then Waxman raises an order that Maliki has issued that immunizes himself and ministers

It is our understanding that the Iraqi leadership is not immune from investigation.

Condi punts--saying she'll have to get back to Waxman. He points out this came up in the earlier hearing with State Department officials. So I guess Condi's final tactic is to retreat to admitting she hasn't--and may well not--do her homework.

The Republicans (Davis and especially Chris Shays) now attack Waxman for accusing Maliki of corruption. It gets so bad that Condi has to take a step back and note that she is worried about corruption (this could get embarrassing if the Administration ever decides to throw over Maliki based on allegations of corruption).

The Guards Have Left the Country

by emptywheel

The NYT has an interesting article telling the story of the Blackwater guards involved in the September 16 shooting. It does a great work getting the views of 6 current and former Blackwater guards in spite of the company's policy gagging them.

But there are two details, above all, that deserve more attention (particularly since the article simply presents them, without raising any questions about what they mean). First, several of the guards involved in the shooting have already left Iraq.

According to Blackwater employees, the leader of the convoy on Nisour Square was a man known as Hoss. He and two or three other members of the team have returned to the United States because their tours of duty were up or their contracts with the company had ended, one employee here said. In Hoss’s case, the trip home was to remove shrapnel from a wound he received before the Sept. 16 shootings. [my emphasis]

Understand, the story explains that only four or six of the guards involved that day shot at the Iraqis. So perhaps as many as four of those four to six people are already gone from Iraq--beyond the reach of Iraqi law. And in Hoss' case, it was for a reason that existed before the shooting, but was not urgent enough before the shooting to get him out of the country. Further, the implication is that several of these people--like the guy who shot the VP's bodyguard in the Christmas Eve shooting, were no longer employed by Blackwater shortly after the killing, thereby absolving the company of any further action with regards to the (former) employee. Were they fired? The story says only "their contracts ... had ended," not how they ended.

The other thing this article reveals but does not say plainly is that there's some dispute about this event. That's true of those still in Iraq who were apparently not part of the convoy.

They described a grating sense among many of Blackwater guards, especially those with years of experience, that the killings on Sept. 16 were unjustified.

“Some guys are thinking that it was not a good shoot, that it was not warranted,” said one Blackwater contractor, using military jargon for an episode that results in a wrongful death. “I don’t think there was criminal intent involved. I just think it was the application of the use of deadly force gone horribly wrong.”

And more interesting still, that's true of some of the people who were on the convoy.

The Blackwater employees said that talk about the Sept. 16 shootings had also focused on a heated dispute between members of the team in the square, pitting the men pouring gunfire into Iraqi vehicles against other Blackwater guards who were imploring them to stop.

“There was turmoil in the team, where half the guys were saying, ‘Don’t shoot,’” said a military veteran who spoke to a member of the Blackwater team on the convoy.

In other words, in addition to the four to six guys doing the shooting--at least one of whom has been removed from Iraq--there are four to six guys who believe the killing was excessive.

Any bets on whether those other four to six--the ones trying to stop the shooting--ever testify publicly?

The United States of AT&T Wants Satellites Now, Too

by emptywheel

Well, here's another reason AT&T is so desperate for retroactive immunity. It'd suck to have their bid to acquire a satellite TV company derailed as consumers realized AT&T is using that technology to spy on them, huh?

AT&T has been consulting lawyers in Washington about how long it would take to get government approval to purchase either EchoStar Communications Corp. or DirecTV Group Inc., people familiar with the matter said. If it does make a bid for one of the satellite providers, AT&T could unveil the offer before year's end in hopes of getting federal antitrust officials to approve the combination before a new administration takes over, these people say. [my emphasis]

Yeah, I'm sure AT&T would like to get such a move approved before the end of the year. You know, while they still had their former lawyer in charge of DOJ and still had one of their big lobbyists running the oval office?