The War on Terror Isn't

Terrorism is a serious problem. That does not mean that it makes sense in any way to "go to war" with it.

Terrorism is a tactic of desperation--not an enemy--and wars create plenty of both desperation and enemies, as well as the fear used to justify decay of constitutional rights. These truths have unfortunately been laid bare in our misguided foray into Iraq: it only became the "central front" of the "war on terror" after we got there. Meanwhile, the real battle against Al Qaeda and the real security risks facing this country have been ignored.

There is some good reading on this topic over at Digby's place, FDL (x2), AMERICAblog, and by Chris Bowers and Matt Stoller at MyDD.

A Pennsylvania Landslide?

Chris Bowers at MyDD predicts a landslide election for the Democratic Party in Pennsylvania on the strength of "an extremely vibrant, emerging progressive movement statewide." He believes early polling and the May 16 primary results auger well for progressives both here and nationally:

For those of you who still believe that fighting internal Democratic battles is somehow a waste of progressive resources, you need to look no further than to Pennsylvania for counter-evidence. While the newly revitalized progressive movement in Pennsylvania has locked horns with the party establishment, the result has not been drained resources and two separate, warring factions. Instead, the result has been a tremendous upswing in pro-Democratic Party activity in Pennsylvania that has benefited both the new progressive movement and the party establishment. Our new progressive movement is working--the old ways of either simply falling in line behind the party leaders or bolting the party / sitting on your hands were not working. The progressive, internal reform movement has identified hundreds of new activists, resulted in a tremendous fundraising upswing, created new progressive media outlets, started new grassroots organizations, and forged new progressive social networking spaces. This is how you do it. This is how a progressive movement can win back Pennsylvania, and indeed the entire nation.

Breaking the Covenant: Why "Chickenhawk"?

Rogers at Kung Fu Monkey lucidly explains the difference between actually supporting the troops and the all-too-popular conception of "supporting the troops" that disingenuously conflates "the Bastards in Suits" with "the People in Uniform Getting Shot At."

He argues that U.S. citizens are parties to a covenant with those in the military, and have a "deep responsibility, a responsibility far beyond the emotional support one gives a sports team, or the minimal responsibility one has with employees."

Our oath is simple:

We will make sure you have the equipment you need.
We will make sure have a clearly defined mission.
We will make sure that such missions are as well-planned as possible.
We will take care of your families while you are gone.
We will take care of you when you come home.

When the country fails its side of the covenant, citizens in a representative democracy must attend to these failures "through the instrument of our will, the government." And when the government neglects its duties, "it is our job, our responsibility -- not our right, our responsibility -- to hold those civilian administrators accountable."

This one is worth the read.

Via Tbogg

Cats can't arbitrate...

...unless they're from outer space.

Michael Froomkin notes an arbitration decision awarding to Morgan Stanley a disputed domain name (mymorganstanleyplatinum.com). The defendant, "Meow, Baroness Penelope Cat," asserted as a defense that it is a cat:

Respondent maintains that it is a cat, that is, a well-known carnivorous quadruped which has long been domesticated. However, it is equally well-known that the common cat, whose scientific name is Felis domesticus, cannot speak or read or write. Thus, a common cat could not have submitted the Response (or even have registered the disputed domain name). Therefore, either Respondent is a different species of cat, such as the one that stars in the motion picture "Cat From Outer Space," or Respondent's assertion regarding its being a cat is incorrect.

If Respondent is in fact a cat from outer space, then it should have so indicated in its reply, in order to avoid unnecessary perplexity by the Panel. Further, it should have explained why a cat from outer space would allow Mr. Woods to use the disputed domain name. In the absence of such an explanation, the Panel must conclude that, if Respondent is a cat from outer space, then it may have something to hide, and this is indicative of bad faith behavior.

Life for Lay and Skilling?

Doug Berman at Sentencing Law and Policy finds agreement with his 360-months-to-life estimates under the (very complicated) sentencing guidelines for Ken Lay and Jeff Skilling.

Notes Frank Bowman: “only suckers pay the sticker price.” That is, Andy Fastow could also have been on the hook for life, but he received (only?) 10 years because of his plea and cooperation.

"A corrupt Congress is shocked to discover a lawless Executive"

Excerpted from Professor Jack Balkin:

The Bush Administration has, over the past six years, detained American citizens without any of the protections of the Bill of Rights, engaged in cruel, inhuman and degrading treatment of detainees, imposed new forms of secrecy to insulate itself from oversight both by the Press and by Congress, used the state secrets privilege to shut down any investigation into its mistreatment of detainees, hid and prevaricated about the evidence justifying, the reasons for, and the cost of Iraqi war, and begun a massive spying program on American citizens. Throughout all of these events, the United States Congress has been essentially supine, unable or unwilling to lift a finger to oppose an executive branch that was simultaneously incompetent, arrogant and out of control. And now, when the FBI catches redhanded a Congressman engaged in the most egregious act of corruption, *now* members of Congress are upset that the Executive is asserting too much authority.

They have their nerve.

Quite frankly, I find the bipartisan closing of ranks over this issue disgusting. If Congressmen are interested in Executive overreaching, they should start demanding that the President justify his NSA program; instead they doing everything they can to paper over its illegalities. They should hold hearings on how the Executive misused and manipulated intelligence reports, hearings that have repeatedly been promised and have repeatedly been postponed. They should hold hearings on the Administrations's policies of no-bid contracts in Iraq and elsewhere, and the many reports of corruption, incompetence, and war profiteering by these very same contractors who didn't have to engage in competition or oversight. They should investigate the President's decisions about torture, about rendition, about detention policies, about, well, you name it-- all the incompetent and corrupt activities of this most incompetent and corrupt Administration.

Be sure to read the whole thing.

Of course, he's right. Crying "Executive Branch overreach" *now*, after a corrupt Congressman's office is raided and big stack of cash is found in his freezer, is a bit rich, considering the repeated instances of lawbreaking that have been alternatively ignored, supported and minimized by Congress, with only a few notable exceptions (see, e.g. Russ Feingold).

To summarize the current state of affairs:

OK: Torture authorized by Donald Rumsfeld in violation of duly enacted laws and treaties ratified by Congress
Not OK: Catching corrupt Congressmen

OK: Violating several different duly-enacted laws by spying on every American citizen's telephone calls, emails and internet traffic
Not OK: Catching corrupt Congressmen

OK: Seeking an invasion of another country by studiously ignoring all evidence contrary to that goal and failing to tell Congress about all of that evidence you ignored
Not OK: Catching corrupt Congressmen

OK: Setting up a legal black hole in Guantanamo Bay for the express purpose of avoiding judicial oversight, due process and our laws and treaty obligations
Not OK: Catching corrupt Congressmen

Update:

I'm still not willing to cut the Congress any slack on this one, given that they seem to be concerned with overreach only when their own privacy is at issue, and only in an instance where there was a search warrant. In the words of Homer Simpson, "the ironing is delicious." We are supposed to forget that Congress has ignored warrantless searches through Americans' supposedly legally protected telephone calls and internet activity, and appears to be uninterested in what other secret illegal surveillance programs may be still unrevealed. These illegal warrantless surveillance programs did not garner this kind of consternation--despite the clear affront to Congress in breaking the laws it passed.

Yet, for some reason, we are supposed to believe that this affront to Congress is different. It seems too coincidental to me that Congress finally decides that a line has been crossed when the issue is investigation of corruption, an issue many congresspeople probably ought to be concerned about, given the high profile cases involving Abramoff, Ney, Cunningham and Delay, and the widely whispered rumors that many more members of Congress are involved.

These reservations aside, I will admit that there do appear to be good arguments for why the FBI should not be involved in raiding congressional offices. Digby convincingly slides the slippery slope to the Church Committee's findings concerning abuses by the FBI in the 1960s, noting that "the FBI and the executive branch have a long sordid history of using their power for political ends." A true enough point, as is his reader's comment: "This Republican Justice Department, led by a lifetime Bush loyalist and good friend to Karl Rove now has every Democratic strategy memo that ever came across Congressman Jefferson's desk. Trust 'em?"

Mark Kleiman makes several good points in this regard, and concludes with a warning about "the precedent it will set unless the Congress cleans up its own act" by reinvigorating the Ethics Committee (which has done precisely nothing lately about anything).

A Step in the Right Direction

Glenn has analysis and a link to the text of a bill proposed by Senators Specter and Feinstein to cut off funding to any surveillance outside of FISA. Let's hope that something actually comes of this.

Yet Another Illegal Domestic Spying Program

My newest column for the Legal Intelligencer is now freely-available online.

The article notes bloggers who have been analyzing the legal implications of the collection of Americans' telephone and internet records as revealed by USA Today and Wired.

It looks like alot of the links to the blogs I mentioned did not survive editing. For completeness, here they are: professor Jack Balkin's “Twin Dangers of the National Surveillance State,” Kate Martin's guest post at the American Constitution Society’s blog, Glenn Greenwald's discussion of FISA, several items from law professor Orin Kerr (here, here and here), two from law professor Marty Lederman (here and here), and Peter Swire's “Did the Government Break the Law?” at Think Progress.

Nothing to Lose: An Insurance Company's Duty of Good Faith and Fair Dealing, Punitive Damages and the Legacies of Campbell

An advance copy of a law review article on insurance company bad faith and punitive damages that my colleagues and I prepared is available for download at ExpressO.

Here is the abstract:

This article explores the potential evisceration of the deterrence function of punitive damages, one of the only economic incentives that deters insurance companies from opportunistically breaching their insurance policies. Readers will gain an understanding of why large punitive damages awards are essential in the insurance coverage field and how such awards may implicate due process standards. The article explains the constitutional limitations set forth by the U.S. Supreme Court in imposing punitive damages, and provides a roadmap of how lower courts and practitioners are presently applying these rules.

Wanted: A Better Media

Yes, its from Walter Pincus, who is usually better than this, but this nonsense is too typical these days.

As Think Progress notes, Attorney General Gonzales claimed that the illegal domestic data mining described by USA Today was perfectly legal. The Washington Post, in turn, dutifully reported his claim--without rebuttal of why his claims were irrelevant to the issue--that the illegal domestic data mining is actually constitutional. The Post in its failure of skepticism (or the most basic level of homework) failed to report that the question of constitutionalisty is totally different from the question of legality.

That is, unbelievable as it may be, gathering all of the telephone and internet records of every American may arguably pass constitutional muster, in that it potentially does not violate the Fourth Amendment if an analogy to Smith v. Maryland works. In Smith, a 1979 Supreme Court decision concerning "pen registers," which are devices that record telephone numbers dialed by a suspect, the Court held that there was not a reasonable expectation of privacy in the telephone numbers that you dial.

However, that is not the end of the story, and Gonzalez (who is the Attorney General after all) surely knows that. There is no excuse for the media to still not know that, over a week after the USA Today story broke.

The whole story is that in response to that Supreme Court decision, Congress “acted to protect the privacy of such information” and “required the government to obtain a court order for pen registers and trap and trace devices, 18 USC 3121 et seq., and a court order or subpoena for records of past telephone calls.”

This is very easy to understand: in 1978 and 1986, Congress wrote and the President signed laws that made illegal what would otherwise be constitutional.

The Washington Post, rather than mentioning that laws might contradict the Attorney General's theory, reports:

Attorney General Alberto R. Gonzales said yesterday that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business records…Gonzales told reporters that, under the Smith v. Maryland ruling, “those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records.”

And that's that, apparently.

Again, no. (Sadly, No! is already trademarked) As Think Progress explains:

This is a classic case of misdirection. The issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it’s legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.

Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date:

1. The Stored Commuications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland.

2. The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: 1) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or 2) the government obtains a certification from the Attorney General that the program is legal under FISA.

Wanted: An Opposition Party

Glenn, Jane and Digby discuss the Senate Judiciary Committee's depressing endorsement of General Hayden--an active general who is up to his ears in the NSA's domestic spying scandals--as the new Director of the CIA. Most depressingly, four Democrats (Feinstein, Rockefeller, Levin and Mikulski) voted for Hayden despite his demonstrable lack of respect for laws restricting domestic spying and despite the President's plummeting popularity:

The committee's vice chairman, John D. Rockefeller IV, Democrat of West Virginia, said General Hayden had shown "the necessary independence that is essential to restoring the C.I.A.'s credibility and stature."

The Democrats who voted against the nomination were Russell D. Feingold of Wisconsin, Ron Wyden of Oregon and Evan Bayh of Indiana. Each cited concerns about General Hayden's role in a controversial domestic surveillance program he ran while head of the National Security Agency.

"I am not convinced that the nominee respects the rule of law and Congress's oversight responsibilities," Mr. Feingold said.

National Review Defends the Katrina President

"Revisionist historians, is what I like to call them"

Shorter Goldberg: Sure, Bush was fiddling while New Orleans drowned, but the press reported some things incorrectly about how much it was drowning and how many people were drowning with it, and isn't that just as bad, nay, worse?:

None of this is to say that the federal government and the Bush administration didn’t make mistakes. But, if we’re looking for poster children for arrogant incompetence in response to Katrina, there are better candidates than George W. Bush.

Really? Interesting argument.

Louisiana State of Emergency: August 26

Louisiana requests Bush declare Federal State of Emergency: August 27

Category 5 Storm Confirmed, Evacuation of New Orleans, Bush and Brown Warned of Potential Levee Failure, National Weather Service Issues Special Hurricane Warning, Topped Levees Reported: August 28

Landfall, Bush Administration notified of levee breach, Mayor Nagin reports water flowing over levees, Brown warns Bush of potential devastation, Director National Hurricane Center warns Bush of "grave concern" about levees, Levees breached by late morning, Louisiana requests "everything you’ve got," Bush goes to sleep: August 29

Chertoff finally becomes aware of levee failure, Pentagon claims there are enough troops, Mass looting reported, President Bush plays guitar with country singer Mark Willis and then returns to Crawford, Texas for final night of his vacation: August 30.

And that's not close to documenting everything arrogant and incompetent about Bush's Katrina non-response. It went on for days after the guitar session and played out on cable TV across the country. This is way too close in time to events most Americans likely have not yet forgetten for Goldberg to already be attempting to engage in this kind of historical revisionism.

National Review's Ugly History

I don't know why National Review Online would think it's a good idea to call attention to the magazine's back issues.

I hear he said it with a straight face, too

Our President, lecturing our neighbors to the south about the importance of democracy, human rights, poverty, health care, and transparent government, in response to a question about what his "strategy" is in confronting Venezuela, Bolivia and "the coalition of Hugo Chavez":

I am going to continue to remind our hemisphere that respect for property rights and human rights is essential for all countries in order for there to be prosperity and peace. I'm going to remind our allies and friends in the neighborhood that the United States of America stands for justice; that when we see poverty, we care about it and we do something about it; that we care for good -- we stand for good health care.

I'm going to remind our people that meddling in other elections is -- to achieve a short-term objective is not in the interests of the neighborhood. I will continue to remind people that trade is the best way to help people be lifted from poverty; that we can spend money -- and we do in the neighborhood -- but the best way for there to be growth is to encourage commerce and trade and prosperity through the marketplace.

I want to remind people that the United States stands against corruption at all levels of government, that the United States is transparent. The United States expects the same from other countries in the neighborhood, and we'll work toward them.

We'll continue to work with forces like the Central -- countries like the Central American countries, where we passed a free trade agreement called CAFTA, to remind the people in that area that relations with the United States will be beneficial to their people. There's a lot of things we're doing.

Thank you very much. I'm concerned -- let me just put it bluntly -- I'm concerned about the erosion of democracy in the countries you mentioned.

Assault on the Foundation of a Republican Form of Government

Attorney General Gonzalez, are we really going to start jailing journalists for the content of their speech?

On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."

He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others.

The government cannot simply imprison the press for publishing what it does not want to have published. As the Founder's understood, speech that reveals the government's criminal activities is particularly valuable to a well-functioning Republic. Attempting to criminalize speech about government lawbreaking by labeling it harmful to national security should roundly be considered repugnant to all citizens of this Republic. Right?

Yesterday, Gonzales said, "I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect . . . but it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity."

As for the Times, he said, "As we do in every case, it's a case-by-case evaluation about what the evidence shows us, our interpretation of the law. We have an obligation to enforce the law and to prosecute those who engage in criminal activity."

Armando has compiled a helpful history lesson for the Attorney General, starting with Justice Hugo Black in New York Times v. United States (the Pentagon Papers case):

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

. . . [T]he Government argues in its brief that in spite of the First Amendment, "[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief."

In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." . . . To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes - great man and great Chief Justice that he was - when the Court held a man could not be punished for attending a meeting run by Communists.

The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.

Next up, Justice Brennan in Times v. Sullivan:

Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375 -376, gave the principle its classic formulation:

Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, 4 ; De Jonge v. Oregon, 299 U.S. 353

. . .[T]he lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison, "if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress. . ., or the President . . ., with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States." . . . [T]he Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and
Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it

doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the `Alien and Sedition Acts,' passed at the last session of Congress . . . . [The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto - a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right." 4 Elliot's Debates, supra, pp. 553-554.

Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which "The people, not the government, possess the absolute sovereignty."

The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was "altogether different" from the British form, under which the Crown was sovereign and the people were subjects. "Is it not natural and necessary, under such different circumstances," he asked, "that a different degree of freedom in the use of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the House of Representatives, Madison had said: "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said: "In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands . . . ." 4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government.

SusanG has quite a bit more to add here, including this quote from Justice Black in New York Times v. United States:

In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly.

Frankly, this is not a close call. This one should not be an open question for any Attorney General.



Update:

The ACS Blog has an excerpt of an interesting submission on this topic from Professor Geoffrey Stone of the University of Chicago to the House Permanent Select Committee on Intelligence.

Who would want to leave Baltimore?

Via Orin Kerr, here's an incredible potential civil rights case, reported by a local Baltimore news station. A Virginia couple that was in Baltimore for an Orioles game alleges they were arrested for trespassing on a public street after asking a police officer for directions to I-95. Big mistake:

"I said, 'Thank goodness, could you please get us to 95?" Kelly said.
"The first thing that she said to us was no -- you just ran that stop sign, pull over," Brook said. "It wasn't a big deal. We'll pay the stop sign violation, but can we have directions?"
"What she said was 'You found your own way in here, you can find your own way out.'" Kelly said.

So they see a second officer and ask him. The first officer intervenes to put a stop to that:

"That really threw us for a loop when she stepped in between our cars," Kelly said. "(She) said my partner is not going to step in front of me and tell you directions if I'm not."

OK, that's strike two. For strike three, they park and call Dad for directions on the cell phone:

Collins reported the circumstances got worse. Kelly pulled 40 feet forward parking next to a curb and put his flashers on while Brook was on the phone to her father hoping he could help her with directions. Both her parents are police officers in the Harrisburg, Pa., area.
"(Brook's father) was in the middle of giving us directions when the officer screeched up behind us and got out of the car and asked me to step out. I obeyed," Kelly said. "I obeyed everything -- stepped out of the car, put my hands behind my back, and the next thing I know, I was getting arrested for trespassing."
"By this time, I was completely in tears," Brook said. "I said, 'Ma'am, you know, we just need your help. We are not trying to cause you any trouble. I'm not leaving him here.' What she did was walk over to my side of the car and said, 'Ok, we are taking you downtown, too.'"

So the company outing to Camden Yards yielded these two a night in jail and some fun time explaining the arrest to employers or potential employers. Plus, they got robbed:

Collins said police left Kelly's car unlocked and the windows down at the impound lot. He reported a cell phone charger, pair of sunglasses and 20 CDs were stolen.

Terrified

These NSA shenanigans should leave everyone a bit nervous about our government's most recent lurch towards secrecy and widespread domestic spying. As stated by NSA expert Matthew Aid, "we should all be terrified."

In an interview at Salon.com, intelligence historian Matthew Aid, a visiting fellow at George Washington University's National Security Archive and author of the first book of a three-volume history of the NSA, draws parallels between now and the discovery of NSA's Project Shamrock in 1976:

As fireworks showered New York Harbor that year, the country was debating a three-decades-long agreement between Western Union and other telecommunications companies to surreptitiously supply the NSA, on a daily basis, with all telegrams sent to and from the United States. The similarity between that earlier program and the most recent one is remarkable, with one exception -- the NSA now owns vastly improved technology to sift through and mine massive amounts of data it has collected in what is being described as the world's single largest database of personal information. And, according to Aid, the mining goes far beyond our phone lines.

The controversy over Project Shamrock in 1976 ultimately led Congress to pass the 1978 Foreign Intelligence Surveillance Act and other privacy and communication laws designed to prevent commercial companies from working in cahoots with the government to conduct wholesale secret surveillance on their customers. But as stories revealed last week, those safeguards had little effect in preventing at least three telecommunications companies from repeating history.

Here's the choice quote from the interview:

The fact that the federal government has my phone records scares the living daylights out of me. They won't learn much from them other than I like ordering pizza on Friday night and I don't call my mother as often as I should. But it should scare the living daylights out of everybody, even if you're willing to permit the government certain leeways to conduct the war on terrorism.

We should be terrified that Congress has not been doing its job and because all of the checks and balances put in place to prevent this have been deliberately obviated. In order to get this done, the NSA and White House went around all of the checks and balances. I'm convinced that 20 years from now we, as historians, will be looking back at this as one of the darkest eras in American history. And we're just beginning to sort of peel back the first layers of the onion. We're hoping against hope that it's not as bad as I suspect it will be, but reality sets in every time a new article is published and the first thing the Bush administration tries to do is quash the story. It's like the lawsuit brought by EFF [Electronic Frontier Foundation] against AT&T -- the government's first reaction was to try to quash the lawsuit. That ought to be a warning sign that they're on to something.

I'll tell you where this story probably will go next. Notice the USA Today article doesn't mention whether the Internet service providers or cellphone providers or companies operating transatlantic cables like Global Crossing cooperated with the NSA. That's the next round of revelations. The real vulnerabilities for the NSA are the companies. Sooner or later one of these companies, fearing the inevitable lawsuit from the ACLU, is going to admit what it did, and the whole thing is going to come tumbling down. If you want some historical perspective look at Operation Shamrock, which collapsed in 1975 because [Rep.] Bella Abzug [D-NY] subpoenaed the heads of Western Union and the other telecommunications giants and put them in witness chairs, and they all admitted that they had cooperated with the NSA for the better part of 40 years by supplying cables and telegrams.

The newest system being added to the NSA infrastructure, by the way, is called Project Trailblazer, which was initiated in 2002 and which was supposed to go online about now but is fantastically over budget and way behind schedule. Trailblazer is designed to copy the new forms of telecommunications -- fiber optic cable traffic, cellphone communication, BlackBerry and Internet e-mail traffic.

Check out the rest of the interview here. Glenn Greenwald has more on Senator Specter's craven cave-in on having the FISA court review the program's legality, and instead placing a new "standing" obstacle in the way of litigants challenging the illegal program (I previously discussed this standing problem here). Also check out Greenwald's breakdown of General Hayden's admission that the illegal NSA spying programs began with the understanding that they violated FISA, and without even the flimsy excuse that the Authorization for the Use of Military Force may allow the surveillance. Finally, Hunter at the Daily Kos explains the Nixon-esque aspect of the story, building off yet another excellent post from Billmon.

Explaining the Telcos' NSA Database Denials with use of Scapegoats for Hire

So as you may have heard, the big telecommunications companies that were implicated in the NSA spying scandal by USA Today's article on the massive government electronic database have all issued non-denial denials. The "denials" appear to deny specific details of the story, but leave plenty of wiggle room for the main facts to stand. AT&T, for its part, seems to be hoping that this will all blow over, stating that it will not comment on national security matters. Verizon denied that "Verizon was approached by NSA and entered into an arrangement to provide the NSA with data from its customers' domestic calls," but it qualified this denial by stating that it "cannot and will not confirm or deny whether it has any relationship to the classified NSA program," and "Verizon always stands ready, however, to help protect the country from terrorist attack." BellSouth's demand to USA Today for a retraction states:

[T]he story said BellSouth is "working under contract with the NSA" to provide "phone call records of tens of millions of Americans" that have been incorporated into the database.
"No such proof was offered by your newspaper because no such contracts exist," stated the letter, portions of which were read by spokesman Jeff Battcher. "You have offered no proof that BellSouth provided massive calling data to the NSA as part of a warrantless program because it simply did not happen."

The blogs abound with speculation of how the USA Today story and the denials can be accurate simultaneously. See Josh Marshall:

[T]here's some third party involved here, a subcontractor, a private vendor, perhaps another government agency. And because of that their claims are technically true. Or, maybe, they allowed the NSA to take the data (a variety of technical means suggest themselves) rather than 'providing' it to them. Who knows.

Paul Kiel and Justin Rood at TPM Muckraker follow up on this angle, noting a Business Week article that explains how "[r]ather than respond themselves to requests from the FBI and others, a telco can sign up with one of these companies, give them access to their call records and equipment, and let that third party do all the hard work." Note Kiel and Rood:

What are the benefits? One company, NeuStar, doesn't beat around the bush. In a pitch to service providers, it bills itself as a "scapegoat" for hire, presumably allowing phone companies to deny responsibility for or involvement in turning over their records to the government. Sound familiar?
NeuStar actually has an advantage over its competitors: it's not just an FBI-friendly third party, it's a major routing company. According to their web site, "Nearly every telephone call placed is routed using NeuStar's system, and every telecommunications service provider is one of NeuStar's customers."
Yep, their customers include AT&T, Verizon, and BellSouth - the mighty trio featured in USA Today's story on the NSA's vast calls database last week.
Now, NeuStar's CEO has repeatedly denied that his company had anything to do with the NSA program. That may be so. But if NeuStar isn't the fabled third party to hand over the telcos' data to the NSA, then it seems that there are plenty of other suspects.

Additionally, perhaps the biggest point standing in the way of believing the telco denials is the fact that another telco, Qwest, was in fact approached by the NSA, and Qwest refused to participate in the spying ring. As noted by Josh: "through his lawyer, the then-CEO of Qwest confirms that he'd rebuffed the NSA request. What interest would he have in lying about that?"

Secretly and Illegally Spying on "the Enemy" Means Secretly and Illegally Spying on Reporters and You and Me

It doesn't take a genius to predict. This is the end result of a "with us or against us" worldview combined with wiretapping without any judicial or legislative oversight. From ABC News's blog, the Blotter:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

. . .

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

Josh Marshall writes:

If that's true, then I think we can set aside any pretense that administration policy on all manner of electronic surveillance isn't being brought to bear on political opponents, media critics, the press, everybody.

I think part of the issue for many people on the administration's various forms of surveillance is not just that some of activities seem to be illegal or unconstitutional on their face. I think many people are probably willing to be open-minded, for better or worse, on pushing the constitutional envelope. But given the people in charge of the executive branch today, you just can't have any confidence that these tools will be restricted to targeting terrorists. Start grabbing up phone records to data-mine for terrorists and then the tools are just too tempting for your leak investigations. Once you do that, why not just keep an eye on your critics too? After all, they're the ones most likely to get the leaks, right? So, same difference. The folks around the president don't recognize any real distinctions among those they consider enemies. So we'd be foolish to think they wouldn't bring these tools to bear on all of them. Once you set aside the law as your guide for action and view the president's will as a source of legitimacy in itself, then everything becomes possible and justifiable.

They call this state of affairs a "Constitutional Crisis" for a reason.

Rove Indicted

That's the breaking news from Jason Leopold at TruthOut.



Update:

As reported at Jeralyn Merritt and Byron York, this story is being denied by Karl Rove's spokesman, Mark Corallo. It's not clear what is going on. Stay tuned.

Second Update:

A partial apology/retraction from TruthOut.

Third Update (6/13/06):

NYT reports that Fitzgerald will not pursue an indictment.

Secret Illegal Star Wars Surveillance

From Chris Strohm at the National Journal:

A former intelligence officer for the National Security Agency said he plans to tell Senate staffers next week that unlawful activity occurred at the agency under the supervision of Gen. Michael Hayden beyond what has been publicly reported, while hinting that it might have involved the illegal use of space-based satellites and systems to spy on U.S. citizens.

Russell Tice, who worked on what are known as "special access programs," has wanted to meet in a closed session with members of Congress and their staff since President Bush announced in December that he had secretly authorized the NSA to eavesdrop on U.S. citizens without a court order. In an interview late Thursday, Tice said the Senate Armed Services Committee finally asked him to meet next week in a secure facility on Capitol Hill.

Tice was fired from the NSA last May. He said he plans to tell the committee staffers the NSA conducted illegal and unconstitutional surveillance of U.S. citizens while he was there with the knowledge of Hayden, who has been nominated to become director of the CIA. Tice said one of his co-workers personally informed Hayden that illegal and unconstitutional activity was occurring.

. . .

Tice originally asked to meet with the Senate and House Intelligence committees, but they did not respond to his request. . . .

Tice said his information is different from the Terrorist Surveillance Program that Bush acknowledged in December and from news accounts this week that the NSA has been secretly collecting phone call records of millions of Americans.

"It's an angle that you haven't heard about yet," he said.

According to an unclassified resume, Tice was a specialist in space operations systems, command and control warfare, advanced technology and all-source collection analysis. During an 18-year career, he worked on some of the most secretive programs in the government.

Tice would not discuss with a reporter the details of his allegations, saying doing so would compromise classified information and put him at risk of going to jail. He said he "will not confirm or deny" if his allegations involve the illegal use of space systems and satellites.

And here's an excerpt from a January article by Strohm where Tice explained that he wanted to "spill his guts" to the Senate and House Intelligence Committees. They ignored him until now:

Tice sent a letter Dec. 16 to the chairmen of the Senate and House intelligence committees saying he wants to report suspected illegal activity. "These acts involve the director of the National Security Agency, the deputy chiefs of staff for air and space operations and the U.S. secretary of defense," he said.

The letter was sent the same day The New York Times reported that President Bush secretly authorized the NSA to eavesdrop on U.S. citizens without a court order.

Tice said he did not work on the program referenced in the Times article, but that his allegations are equally explosive.

"That was Hiroshima and this is Nagasaki," he said. "I want to talk about Nagasaki, which nobody's heard about yet."

Cheney Counsels Secret Lawbreaking by the Unbound Executive

Is anyone still surprised by this stuff?

In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.

And we know what happened with that decidedly un-American advice:

Even with the N.S.A. lawyers' reported success in limiting its scope, the program represents a fundamental expansion of the agency's practices, one that critics say is illegal. For the first time since 1978, when the Foreign Intelligence Surveillance Act was passed and began requiring court approval for all eavesdropping on United States soil, the N.S.A. is intentionally listening in on Americans' calls without warrants.

. . .

By all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

For his part, Mr. Cheney helped justify the program with an expansive theory of presidential power, which he explained to traveling reporters a few days after The Times first reported on the program in December.

Without warrants from any court, in total violation of the law, and without ever requesting that Congress change those laws, the NSA is stockpiling data on every American's private phonecalls and emails. With that illegal information, the NSA is secretly creating lists of people are wiretapping them--without warrants from any court--in total violation of the law, without ever requesting that Congress change those laws.

Whatever happened to small government conservatives wanting to get big government off the back of the little guy?

Charade you are.

No Warrant, No Problem: Government Compiles Illegal Database of Every American's Phone Records

We are all suspects.

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime.

. . .

"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

Well, well, well. So the NSA on secret illegal orders from the Bush Administration has built and is continuing to build an electronic database of every single telephone call made or received in America.

It seems we now *know* know why the government claimed the State Secrets Privilege in the case against AT&T.

As revealed by USA Today and written up in this Washington Post article, this dangerous program is cause for concern for EVERY American Patriot.

The potential for expansion to even more dangerous areas is almost limitless.

The potential for abuse is huge.

Blackmail is a clear threat.

The potential for mistakes is huge, particularly as this program is apparently one of the ways the government decides who to target with the eavesdropping program:

We learn now that data-collection is Phase I of the domestic spying program:

Government access to call records is related to the previously disclosed eavesdropping program, sources said, because it helps the NSA choose its targets for listening. The mathematical techniques known as "link analysis" and "pattern analysis," they said, give grounds for suspicion that can result in further investigation.

That domestic spying program, as we have discussed before, is hugely ineffective. We now know that the program begins by casting such a huge net (billions of calls) that it results in thousands of tips a month. As the New York Times reported, these "tips" were fruitless, often leading FBI agents to dead-end investigations of grandmothers and Pizza Huts.

I mean really, I don't have anything to do with Kevin Bacon, never met him, but I'm within three degrees of separation from the guy. Is there any doubt that countless people could get wrongfully swept into the dragnet from the illegal data-mining program to the illegal eavesdropping program because they once talked to a guy who once bought a pizza from a guy who lived next door to a terrorist?

And what other secret illegal programs is this lawless Administration hiding? What happened to the government's protestations that the illegal NSA spying revealed earlier was only between "known terrorists" and only when one party was overseas? Clearly, these statements were intended to fool the gullible into believing that the scope of the Administration's illegality was not nearly as widespread as it clearly is. No such belief can be reasonably held any longer. On this count, I'm going to repeat myself once again:

It seems needless to say, but the Bush Administration has quite consciously given us little reason to doubt that other significant illegal spying programs exist beyond the specific illegal N.S.A. program admitted by the President and testified to by Al Gonzalez.

Indeed, take a look at the constant repeated qualifications Gonzalez gave during his testimony (noted in the update here):

Careful C-SPAN watchers and transcript readers likely remember that Attorney General Gonzalez repeatedly limited his remarks in his unsworn Judiciary Committee testimony on warrantless wiretapping to "the program," "the program in which I'm testifying," "the program which I'm testifying about today," "the program that I'm talking about today," "the program that the president has confirmed," and "the program in which I'm testifying." The following paragraphs rather speak for themselves:

BIDEN: . . . That's the assertion. It's only emanating from a foreign country, correct?

GONZALES: Yes, sir: authorization of the program I'm talking about.
. . .
SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

. . .

SCHUMER: It's also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I'm here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I'm here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program.
. . .
KOHL: . . . And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?

GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.
. . .
SESSIONS: Thank you, Attorney General Gonzales.

I believe you've faithfully fulfilled your responsibility to give your best, honest answers to the questions so far. I think they've been very effective.

If people have listened, I think they will feel much better about the program that that the president has authorized and that you are explaining. Because some of the news articles, in particular, gave the impression that there's widespread of wiretapping of American citizens in domestic situations and in every instance there's an international call.

Most of us by plain language would understand "international" to be different from domestic. And the president has limited this to international calls in which one or more parties are connected to Al Qaida.

Is that correct?

GONZALES: Sir, the program that I'm talking about today, yes, is limited to international calls.

Don't believe that what the Government is doing is illegal? As usual, bloggers are on the case. See Glenn Greenwald, Marty Lederman (and more here), Kate Martin at the ACS's blog, Anonymous Liberal, and Orin Kerr. SusanG at the Daily Kos has 10 good reasons that YOU should be upset about the entire concept of this illegal datamining operation.

Not only did they deliberately mislead Congress and the American people about the scope of their lawbreaking, but they demonstrated conscious knowledge that what they were doing was illegal. The government AVOIDED judicial oversight from FISA where is was requested; of the big telcos, only QUEST refused to assist NSA without a court order. When Qwest requested a ruling from the FISA court or the U.S. Attorney's office, the Bush Administration REFUSED:

Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.

Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest. But AT&T and Verizon also provide some services — primarily long-distance and wireless — to people who live in Qwest's region. Therefore, they can provide the NSA with at least some access in that area.

. . .

The NSA's domestic program raises legal questions. Historically, AT&T and the regional phone companies have required law enforcement agencies to present a court order before they would even consider turning over a customer's calling data.

. . .

One major telecommunications company declined to participate in the program: Qwest.

According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.

Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.

The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

There is one clear conclusion: this country and its citizens have been repeatedly deceived and spied on by their "representatives" without any justification in law. The Executive is continuing is grab of the constitutional powers of the Judiciary and the Legislature, exercising deceit, doubletalk and demagoguery. This country is in a state of constitutional crisis.

For it before he was against it

Via Atrios:

Bush a couple of days ago:

After saying he did not consider the anthem sung in Spanish to have the same value as the anthem sung in English, Mr. Bush said: "I think people who want to be a citizen of this country ought to learn English. And they ought to learn to sing the anthem in English."

From Kevin Phillips' American Dynasty:

When visiting cities like Chicago, Milwaukee or Philadelphia, in pivotal states, he would drop in at Hispanic festivals and parites, sometimes joining in singing "The Star-Spangled Banner" in Spanish, sometimes partying with a "Viva Bush" mariachi band flown in from Texas.

Not only that, but as Think Progress points out, the U.S. Government itself commissioned a Spanish version of the anthem in 1919, and the State Department currently features four Spanish versions on its website.

But why let inconvenient things like facts get in the way of good old-fashioned demagoguery:

Yesterday Sen. Lamar Alexander (R-TN) introduced a resolution requiring the Star-Spangled banner to be sung only in English:

That flag and that song are a part of our history and our national identity. … That’s why in 1931 Congress declared the Star-Spangled Banner our national anthem. That’s why we should always sing it in our common language, English.

In his press release, Alexander said the Star-Spangled Banner has “never before…been rendered in another language.”

"President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office."

That is the disquieting lede of a crucially important article in the Boston Globe by Charlie Savage.

Glenn Greenwald builds off:

As has been clear from the beginning, and as Savage notes, the significance of the NSA scandal was never about eavesdropping. Its significance lay in the fact that the President got caught red-handed violating the law on purpose, because he believes he has the power to do so. . . .

. . .

The country intensely debates all sorts of controversial issues (torture, Patriot Act renewal, eavesdropping powers); legislative compromises are reached by the American people through their Congress, often over the objections of the President; the President signs those bills into law -- and then he simply decrees that those laws are irrelevant because he has the power to violate them at will.

. . .

As the Globe article reports with startling clarity, to describe the state of affairs we have in our country is to describe, by definition, a state of authoritarian lawlessness

"Thanks for the suggestions."