Obama White House Seeks Delay On Declassification

Secret agencies like their secrets secret. Even old secrets. The Boston Globe reported Sunday that “roadblocks” and “turf battles” among government agencies will likely delay the release of millions of pages of documents scheduled to be declassified on December 31. Some date back to World War II.

In spite of President Obama’s pledge to bring new openness to government, the executive order drafted to replace one signed by President Bush in 2003 “is meeting resistance from key national security and intelligence officials, delaying its approval.” To head off the deadline, the new draft order may have to modify the “automatic declassification” provisions of a Bush Executive Order:

Section 3.3(e)(3) By notification to the Director of the Information Security Oversight Office, before the records are subject to automatic declassification, an agency head or senior agency official designated under section 5.4 of this order may delay automatic declassification for up to 3 years for classified records that have been referred or transferred to that agency by another agency less than 3 years before automatic declassification would otherwise be required.

When is “automatic declassification” not automatic? When agency officials can drag their feet indefinitely. To meet the looming deadline, the Federation of American Scientists’ Secrecy News reports, “several agencies would have to forgo a review of the affected historical records, which they are unwilling to do. And so it seems they will simply be excused from compliance.”

According to the Boston Globe:

“They never want to give up their authority,” said Meredith Fuchs, general counsel at the National Security Archive, a research center at George Washington University that collects and publishes declassified information. “The national security bureaucracy is deeply entrenched and is not willing to give up some of the protections they feel they need for their documents.”

Our documents, they need to be reminded. The Globe concludes by acknowledging that even declassification does not render a document public:

Officials estimate that there are 400 million pages of historical documents that have been declassified but remain in government records centers and have not been processed at the National Archives, where the public can view them.

One such document is the official crash report on the B-29 that crashed during a test flight near Waycross, GA in 1948. Writing for the New Jersey Post-Courier in 2003, Matt Katz laid out the details fifty-five years later. The crash killed nine, including three civilian contractors from RCA. The contractors’ widows tried in vain to find out what happened in their husbands’ last moments. After the widows filed a lawsuit charging negligence, the government quashed the case by declaring the official crash report a state secret. United States v. Reynolds (1952) was the landmark case that formally recognized the state secrets privilege.

Only by accident did the daughter of one contractor come across the Air Force accident report – declassified in 2000 – for sale on the Internet. An engine had caught fire. The plane broke apart in mid-air. But there was more, Katz writes: “Failure to follow procedure. Failure to carry out special safety orders. Pilot error. These were the causes identified by the Air Force – all evidence that could have been used 50 years ago to support the claims of negligence.”

There was more:

• Two Air Force orders calling for changes in the exhaust system – "for the purpose of eliminating a definite fire hazard" – were not complied with. The fire began in the exhaust system.

• An Air Force order requiring the inspection of rivets was ignored. Loose rivets may have been a factor in the crash.

• The plane needed "more than the normal amount of maintenance." It had been out of commission because of technical problems 97 of the 189 days before the crash.

The victims’ families in this case only had to wait half a century for their answers from the military. Now, after extensions by presidents Bill Clinton and George W. Bush, America’s secret agencies will get yet another extension from the Obama administration “of an undetermined length - possibly years,” according to the Globe report.

Change deferred. Is it change denied?

(Cross-posted from Campaign for America's Future.)

Chairman Mao, Inc. is watching you

File it under "free markets and free people go hand in hand."

Naomi Klein writes, in her current Rolling Stone piece that China's new surveillance infrastructure, Golden Shield, is almost ready to protect China's "market Stalinism."

This is how this Golden Shield will work: Chinese citizens will be watched around the clock through networked CCTV cameras and remote monitoring of computers. They will be listened to on their phone calls, monitored by digital voice-recognition technologies. Their Internet access will be aggressively limited through the country's notorious system of online controls known as the "Great Firewall." Their movements will be tracked through national ID cards with scannable computer chips and photos that are instantly uploaded to police databases and linked to their holder's personal data. This is the most important element of all: linking all these tools together in a massive, searchable database of names, photos, residency information, work history and biometric data. When Golden Shield is finished, there will be a photo in those databases for every person in China: 1.3 billion faces.

Golden Shield (which Klein dubs Police State 2.0) must be inducing surveillance envy among higher-ups in the Bush administration, both for its domestic spying and profit potential. Former Bush CIA chief, George Tenet, is already on the board of Connecticut-based L-1 Identity Solutions, the biometrics firm vying for the contract to supply China with the technology for Police State 2.0. Supplying police-state technology to China is probably illegal under U.S. law, Klein notes, and has been since shortly after the Tiananmen Square massacre in 1989.

U.S. business consultant, Stephen Herrington, a former military-intelligence lieutenant colonel, tells Klein that what he's seeing in China scares the hell out of him.

"I can guarantee you that there are people in the Bush administration who are studying the use of surveillance technologies being developed here and have at least skeletal plans to implement them at home," he says. "We can already see it in New York with CCTV cameras. Once you have the cameras in place, you have the infrastructure for a powerful tracking system. I'm worried about what this will mean if the U.S. government goes totalitarian and starts employing these technologies more than they are already. I'm worried about the threat this poses to American democracy."

Herrington pauses. "George W. Bush," he adds, "would do what they are doing here in a heartbeat if he could."

If he hasn't already. "Ready for export to a neighborhood near you," Klein quips.

What’s more ironic is how this new Homeland Security industry isn’t some poster child for free-market capitalist innovation, but constitutes another kind of arms industry. Companies like L-1 Identity Solutions developed their technology using taxpayer dollars. Their principle clients are government agencies funded with taxpayer dollars. And their efforts at getting around export restrictions so they can sell these new "arms" to a lucrative Chinese market are defended by a growing Homeland Security industry lobby funded, again, with taxpayer dollars.

Klein observes,

The global homeland-security business is now worth an estimated $200 billion — more than Hollywood and the music industry combined. Any sector of that size inevitably takes on its own momentum. New markets must be found — which, in the Big Brother business, means an endless procession of new enemies and new emergencies: crime, immigration, terrorism.

Homeland Security player General Electric controls major media in this country and Cisco Systems, a supplier of security hardware to China, is a sponsor of television's 24. For both, fear is their business. Maintaining it makes business sense.

In a sidebar, Klein considers what China's security apparatus means for us.

"... they're becoming more like us and we're becoming more like them. I think this urge to know as much as possible about what people are saying and writing and doing, this is something the police around the world share. They generally want as much information about people as possible. The way I put it in the piece is that there seems to be this global middle ground emerging, not to say that we are like China now, but you do have a glimpse of catching the future and of course it's the future that we've imagined many, many times in every Hollywood movie."

Smile.

Next man makes a move, the country gets it!

The new, improved GOP -- less reality-based than ever! Glenn Greenwald dissects the "Hollywood liberal" haters' new Hollywood-based Internet ad promoting the Protect America Act. All that's missing is Kiefer Sutherland:

Impressively, the ad dramatically packs every component of GOP politics into one minute: There are dark, primitively omnipotent Arab Terrorists lurking darkly and menacingly, planning to slaughter you and your whole entire family right now. You have only a few seconds to live, literally or metaphorically. The clock on your life is counting down right now. You are in severe danger.

We want more unchecked government power. You better give it to us, or else the Terrorists will kill you all. Give up more power to us, do what we say, and you can lay your head down on your pillow at night without a care in the world, knowing that we love you and are keeping you Safe and Protected -- Keeping America Protected -- like a baby snugly embraced in the womb. You want that, don't you? We want to give it to you. The House Democrats want you dead.

Come to think of it, alluding to Mel Brooks is too flattering. They've become more like campy, lipstick-smeared Tallulah Bankhead, the crazed religious fanatic out to "cleanse" others' sins and herself of self-loathing for her incestuous impulses.

Die! Die! My Darlings!

"Attempting to gill net bad guys"

Congressional Quarterly's Jeff Stein dissects the problem with FISA, and points to a New Yorker audio with The Looming Tower's Lawrence Wright, explaining how he himself fell under surveillance without a warrant, despite assurances to the contrary.

Electronic surveillance (and overdependence on it) is a kind of armchair way of gathering intelligence, and no substitute for "good human intelligence work out there — where the bad guys are."

CQ observes:

It’s just not true, no matter how many times administration officials say it, that critical operations to find the kidnappers of American soldiers in Iraq and an al Qaeda cell in Germany were held up by FISA regulations. McConnell himself said he was mistaken.

[. . .]

As former counterterror agent Michael Tanji put it on Wired magazine’s Danger Room blog: “It’s bad enough that the Director of National Intelligence is trotting out a bogus threat so the government can snoop on all Internet traffic. What’s worse is that this kind of mass surveillance is a pretty lame way to catch the honest-to-God bad guys.”

Tanji added, “The fact that we are essentially attempting to gill-net bad guys is a fairly strong indicator that the intelligence community has yet to come up with an effective strategy against information-age threats.”

Worth reading in full.

[h/t A-Tone Music]

Separate and unequal

Glenn Greenwald opines today on the naked corruption on display in the Telecom Immunity law winding through Congress with bipartisan support. It's designed to exempt telecoms from lawsuits spawned by violations of communications laws, committed at the behest of the NSA for the White House's domestic surveillance program.

. . . these corporations are using their vast resources to give money to key lawmakers and pay huge lobbying fees to politically
well-connected former government officials to pressure the Congress to write a new law that has no purpose other than to declare that they are immune from accountability for their lawbreaking. They're conniving, literally, to be specially exempted from the rule of law.

[. . .]

By definition, our Beltway establishment does not believe in the rule of law -- at least not for them. They are creating a completely segregated, two-track system where high Beltway officials and their corporate enablers arrogate unto themselves the power to decide when they can break the law. They are thus literally exempt from our laws, even our criminal laws, while increasingly harsh, merciless, and inflexible punishments are doled out for the poorest and least connected criminals -- who receive no consideration of any kind, let alone presidential commutations or special laws written for them by Congress retroactively rendering legal their patently criminal behavior.

The Telecom Immunity law that Congress seems well on its way to enacting is one of the most conclusive pieces of evidence yet not only that our Royal Beltway Court is corrupt and decayed at its core. It also proves that they no longer care who knows it.

This weekend, the WaPo reported allegations by former Qwest Communications CEO, Joseph P. Nacchio, that "the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal."

Per Nacchio's lawyer:

"Mr. Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request," Stern said. "When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process, including the Special Court which had been established to handle such matters, Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act."

Granted, Nacchio is appealing convictions for insider trading, and the substance of his allegations could be suspect, but company records of the alleged Feb. 27, 2001 meeting with the NSA could easily confirm whether the NSA was working on a domestic surveillance program six months before September 11, 2001.

State secrets and the secret secrets that hide them

Trying to get at the truth in the domestic surveillance lawsuits is tough when anything you say can or even remember may be declared a state secret in the wiretapping lawsuits:

“Is it the government’s position that when our country is engaged in a war that the power of the executive when it comes to wiretapping is unchecked?” Judge Harry Pregerson asked a government lawyer. His tone was one of incredulity and frustration.

Gregory G. Garre, a deputy solicitor general representing the administration, replied that the courts had a role, though a limited one, in assessing the government’s assertion of the so-called state secrets privilege, which can require the dismissal of suits that could endanger national security. Judges, he said, must give executive branch determinations “utmost deference.”

“Litigating this action could result in exceptionally grave harm to the national security of the United States,” Mr. Garre said, referring to the assessment of intelligence officials.

That is, when we say "terrorist," you say "case dismissed." It's a patriotic Pavlovian imperative.

Terrorist -- salivate -- take a pellet.

The New York Times reports that all three judges were inclined to hear "one or both" of the cases at issue.

But to sue, you must have standing. To have standing, you must have proof you've been targeted, and that's a state secret.

“Whether plaintiffs were subjected to surveillance is a state secret,” the Justice Department said in a recent brief ... “and information tending to confirm or deny that fact is privileged.”

In a the case brought by an Islamic charity, the plaintiffs had mistakenly received a government document the charity claims proved they had been subjected to surveillance. It has since been reclaimed by the government. Even their memories of the document are secret.

Judge Pregerson, appointed by President Jimmy Carter, appeared irritated with the government’s arguments, and he became frustrated when Mr. Garre said he could not provide simple answers to questions about the scope of a recently amended 1978 law, the Foreign Intelligence Surveillance Act. Mr. Garre said it was a complicated law.

“Can’t be any more complicated than my phone bill,” Judge Pregerson said.

Can't say. It's a state secret.

What else do THEY know?

Just got a love note in the mail from my credit card company regarding my account ending in ####:

We noticed that you have recently experienced difficulty using your Bank of America card at an ATM, so we're taking the opportunity to remind you of your Personal Identification Number (PIN).

Huh? OMG. Last Saturday I went down to a local brew pub to watch Live Earth, to mingle with Drinking Liberally friends and area environmental activists. Went to buy a beer and ... only $5 in the wallet. Enough for one beer, but ...

Walked next door to an off-brand ATM to get some cash. I put in my PIN, but couldn't make the thing cough up the dough, so I left. I realize now it was because I'd put in my credit card, not my bank card -- different PIN.

But the Powers knew about it. Bank of America knew where I was, when I was, and how much I wanted to withdraw.

So now, if Bank of America knows that, what else do THEY know?

Where did I put that tin foil hat?

Off with their heads

Busy reading this morning, catching up on the outrage and calls for the imprisonment and/or death in the gas chamber of newsmen over the "traitorous" New York Times and Los Angeles Times publishing stories about the SWIFT program. The White House asked them not to. The Wall Street Journal published about SWIFT too, but "friendlies" don't get targeted.

"Loose lips kill American people," House Speaker Dennis Hastert, R-Ill. said, prompting from conservative bloggers a flurry of WWII-style posters targeting the Times. Supposedly, the Times "tipped off" terrorists to our financial monitoring programs.

Were terrorists really not aware we were monitoring internancial financial transactions? I knew. A lot of other people knew too. How?

"We've established a foreign terrorist asset tracking center at the Department of the Treasury to identify and investigate the financial infrastructure of the international terrorist networks." -- President George W. Bush, September 24, 2001


"I have also issued an Executive Order to help deal with this threat by giving the United States more powerful tools to reach the means by which terrorists and terrorist networks finance themselves and to encourage greater cooperation by foreign financial institutions and other entities that may have access to foreign property belonging to terrorists or terrorist organizations." -- President George W. Bush, September 24, 2001


"Our successes breed new challenges. As the formal and informal financial sectors become increasingly inhospitable to financiers of terrorism, we have witnessed an increasing reliance by al Qaida and terrorist groups on cash couriers. The movement of money via cash couriers is now one of the principal methods that terrorists use to move funds." -- testimony before the House Financial Services Committee of Stuart A. Levey, Under Secretary Terrorism and Financial Intelligence, U.S. Department of the Treasury, September 22, 2004 (Levey was quoted in the Times report.)


"We put the world's financial institutions on notice: if you do business with terrorists, if you support them or sponsor them, you will not do business with the United States of America." -- President George W. Bush, 11/7/01

Terrorists need money to carry out their evil deeds. The President’s first strike in the war against terror was not with a gun or a missile – the President’s first strike was with his pen as he took action to freeze terrorist finances and disrupt their pipelines for raising and moving money in the future.

The world's financial institutions have been put on notice -- if you support, sponsor, or do business with terrorists, you will not do business with the United States. Denying terrorists access to funds is a very real success in the war on terrorism. Since September 11, the United States and its allies in the war on terrorism have been winning the war on the financial front:

- President Bush launched the first offensive in the war on terrorism on September 23 by signing an Executive Order freezing the U.S.-based assets of those individuals and organizations involved with terrorism.

- 196 countries and jurisdictions have expressed their support for the financial war on terror.

- 142 countries have issued orders freezing terrorist assets, and others have requested U.S. help in improving their legal and regulatory systems so they can more effectively block terrorist funds.

- The assets of at least 153 known terrorists, terrorist organizations, and terrorist financial centers have now been frozen in the U.S. financial system.

- Since September 11, the U.S. has blocked more than $33 million in assets of terrorist organizations. Other nations have also blocked another $33 million.

- On November 7, the U.S. and its allies closed down operations of two major financial networks – al-Barakaat and al-Taqwa – both of which were used by al-Qaeda and Osama Bin Laden as sources of income and mechanisms to transfer funds.

- On December 4, President Bush froze the assets of a U.S.-based foundation – The Holy Land Foundation for Relief and Development -- that has been funneling money to the terrorist organization Hamas.

- The U.S. government created three new organizations -- the Foreign Terrorist Asset Tracking Center (FTAT), Operation Green Quest and the Terrorist Financing Task Force. These new organizations will help facilitate information sharing between intelligence and law enforcement agencies and encourage other countries to identify, disrupt, and defeat terrorist financing networks.

- International organizations are key partners in the war on financial terrorism. On September 28, the United Nations Security Council passed resolution 1373 that requires all nations to keep their financial systems free of terrorist funds.

- The Financial Action Task Force (see note below) -- a 29-nation group promoting policies to combat money laundering -- adopted strict new standards to deny terrorist access to the world financial system.

- The G-20 and IMF member countries have agreed to make public the list of terrorists whose assets are subject to freezing, and the amount of assets frozen.

-- The White House, 12/01

Here's the unclassified banner from the web site of the Society for Worldwide Interbank Financial Telecommunication, http://www.swift.com/.




Their web site includes this:

2. Cooperation - SWIFT has a history of cooperating in good faith with authorities such as central banks, treasury departments, law enforcement agencies and appropriate international organisations, such as the Financial Action Task Force (FATF*), in their efforts to combat abuse of the financial system for illegal activities.

SWIFT tracking numbers are printed right on bank statements in some European countries, according to a caller I heard yesterday on a call-in show. He called in from Finland.

And this from Counterterrorism Blog:

Reports of US Monitoring of SWIFT Transactions Are Not New: The Practice Has Been Known By Terrorism Financing Experts For Some Time
By Victor Comras

Yesterday’s New York Times Story on US monitoring of SWIFT (Society for Worldwide Interbank Financial Telecommunication) transactions certainly hit the street with a splash. It awoke the general public to the practice. In that sense, it was truly new news. But reports on US monitoring of SWIFT transactions have been out there for some time. The information was fairly well known by terrorism financing experts back in 2002. The UN Al Qaeda and Taliban Monitoring Group , on which I served as the terrorism financing expert, learned of the practice during the course of our monitoring inquiries. The information was incorporated in our report to the UN Security Council in December 2002. That report is still available on the UN Website. Paragraph 31 of the report states:

“The settlement of international transactions is usually handled through correspondent banking relationships or large-value message and payment systems, such as the SWIFT, Fedwire or CHIPS systems in the United States of America. Such international clearance centres are critical to processing international banking transactions and are rich with payment information. The United States has begun to apply new monitoring techniques to spot and verify suspicious transactions. The Group recommends the adoption of similar mechanisms by other countries.”

"One of the darkest eras in American history"

Intelligence historian Matthew Aid in Salon:

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.

"Double super secret background"

The precedent-setting "state secrets" case from 1953 is United States v. Reynolds. In 1948 an Air Force B-29 crashed near Waycross, Georgia while testing secret electronic equipment. An engine fire had precipitated the breakup of the aircraft as the thirteen men onboard attempted to bail out. Only four survived.

Widows of three civilian passengers who died sued for compensation, believing the government negligent. Military officials argued that release of the Air Force crash report for the trial would compromise national security (though they offered to provide the survivors for examination). The Supreme Court agreed and ruled in the government's favor without itself ever examining the documents. The widows reluctantly settled for a lesser amount than they had originally won in the lower courts.

Justifying the need for secrecy at the time, Air Force Secretary Thomas K. Finletter wrote:

"The airplane . . carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this Department and would not be in the public interest."

A series by Matt Katz on the families' efforts to find out the truth is available online from the South Jersey Courier-Post, entitled "State Secrets." It explains:

... the decision effectively established a new law, granting the military unprecedented power to conceal documents that it says can compromise national security. It is considered the most important case on the "state secrets privilege," and essentially allows the military to keep documents secret from anyone, even from federal judges.

Jump ahead fifty years.

After the birth of her first son, Judith Loether began wondering about her father, Albert Palya, an RCA engineer from Hadden Heights, NJ, the son of Austrian immigrants, and about the accident that had taken his life when she was only days old.

In 2000, Loether stumbled across Accident-Report.com run by Michael Stowe, an aviation history buff who has collected over 100,000 declassified military airplane accident reports. Decades' worth. Loether ordered a copy of the 220-page declassified report on the B-29 crash that killed her father. She spent months poring over it.

"It was just wrong. It's not the American way," Loether says today, barely concealing her anger.

The accident report laid out the details,

Failure to follow procedure. Failure to carry out special safety orders. Pilot error. These were the causes identified by the Air Force - all evidence that could have been used 50 years ago to support the claims of negligence.

Among other findings the Courier-Post series reports:

● Two Air Force orders calling for changes in the exhaust system - "for the purpose of eliminating a definite fire hazard" - were not complied with. The fire began in the exhaust system.

● An Air Force order requiring the inspection of rivets was ignored. Loose rivets may have been a factor in the crash.

● The plane needed "more than the normal amount of maintenance." It had been out of commission because of technical problems 97 of the 189 days before the crash.

There was slight mention of the classified testing program, Project Banshee, the kind of information routinely blacked out today in documents released through the Freedom of Information Act, signed by President Lyndon Johnson in 1966.

Last November, Brown [the families' lawyer] took the case to the Supreme Court with a highly unusual petition charging that fraud was committed upon the court five decades earlier. In the petition, the three families sought $1.14 million, the $55,000 difference, adjusted for inflation, between the original court award and the money the families received in the final settlement.

The petition argued the Air Force intentionally suppressed the crash secrets.

"When it found it could not protect them based on truth, it determined to resort to the lie that they contained, and might compromise, military secrets," the petition says.

The Supreme Court refused to hear their case.

Further details of their ongoing legal battle are available here, here, and here (the Third Circuit's judgment from September 2005).

The precedent having been set, United States v. Reynolds has been cited over 500 times in the years since, according to the Courier-Post, including 19 times in the Supreme Court. The Nixon administration invoked Reynolds in the 1974 Watergate case. Two weeks ago, the Bush administration invoked the state secrets privilege to quash the Electronic Frontiers Foundation's class action lawsuit against AT&T.

"It's Deja Vu All Over Again"

Olmstead v. United States (1928), the landmark government wiretapping case.

Roy Olmstead and his associates ran a liquor business during the prohibition period. The government built its case against him based upon warrantless wiretaps on his home and business telephones. Olmstead et. al. contended that the use of the wiretaps violated their rights under the Fourth and Fifth Amendments. The Supreme Court ruled 5-4 against them. The decision was later reversed by Katz v. United States in 1967.

History best remembers Olmstead for the dissenting opinion of Justice Louis Brandeis:

The makers of our Constitution ... sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

...

It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants' premises was made. And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

...

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

Call it what it is: Un-American

This administration didn't swear oaths to the Unified Executive Theory. They swore oaths -- and promptly forgot them -- to preserve, protect, and defend the Constitution of the United States.

Including the 4th Amendment, which the president's nominee to head the CIA, former NSA chief, General Michael Hayden, doesn't seem to have read lately. From the National Press Club, January 23:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So General, sir, your reasonable search still requires a warrant backed by probable cause.

A signal intelligence (sigint) specialist who checked in with DefenseTech.org back in December took a slightly different view from the general's:

"It's drilled into you from minute one that you should not ever, ever, ever, under any fucking circumstances turn this massive apparatus on an American citizen," one source says. "You do a lot of weird shit. But at least you don't fuck with your own people."

Another America-hating Democrat, obviously.

Incidentally, Americablog already has your tee shirts and mugs printed up:

NSANow Spying on Americans

A Funny Thing Happened on the Way to the Kremlin

(updated below)

Matthew Yglesias at The American Prospect puts the USA Today piece in its broader perspective:

FUN WITH SURVEILLANCE. Turns out the NSA, with the collaboration of every phone company except Qwest, is monitoring all of our calls -- not to listen in to what's being said, but simply to gather data about the calls and draw inferences from that. It's important to link this up to the broader chain. One thing the Bush administration says it can do with this meta-data is to start tapping your calls and listening in, without getting a warrant from anyone. Having listened in on your calls, the administration asserts that if it doesn't like what it hears, it has the authority to detain you indefinitely without trial or charges, torture you until you confess or implicate others, extradite you to a Third World country to be tortured, ship you to a secret prison facility in Eastern Europe, or all of the above. If, having kidnapped and tortured you, the administration determines you were innocent after all, you'll be dumped without papers somewhere in Albania left to fend for yourself.

UPDATE: Growing up, these were the kinds of behaviors we learned to associate with tyrannical regimes. Government surveillance was the sort of thing adults warned us kids would happen if the United States ever fell to communism.

Now eat your cereal.

They were wrong. It's the kind of thing that happens when Americans are too busy acquiring stuff and figuring out how to pay for it to tend the garden of democracy and defend it from the neighborhood bullies and vandals. I left it unattended for too long, and now look.

And patriotism? They were wrong about that too. If this is what it feels like to be a patriot locked in a struggle for your heritage and your country, it has little to do with uplifting music and light spirits. It's more about righteous anger, fierce determination and a set jaw.

They can all hear us now

Even before the Justice Department used the "state secret privilege" to kill off the class action lawsuit against AT&T over violations of telecommunications laws and laws guarding customers' privacy, I've been wondering which other telecoms might be involved. This morning, USA Today has the scoop.

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.

"I'm telling you the truth, I'm lying."

In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," Bush explained, "one end of the communication must be outside the United States."

As a result, domestic call records — those of calls that originate and terminate within U.S. borders — were believed to be private.

Sources, however, say that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans. Customers' names, street addresses and other personal information are not being handed over as part of NSA's domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information.

Qwest Communications seems to be the lone holdout, the one with enough concern for the legal liabilities involved or for its customers to to decline in the face of pressure from the government.

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.

FISA might not agree with them. Ergo, break the law.

The Boston Globe asked recently, which other laws does the Bush administration claim to uphold with its fingers crossed behind its back?

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, "whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Nothing to see here, folks. Just state secrets. Move along.

From the AP: Feds move to dismiss lawsuit challenging spy tactics:

The Justice Department said Friday it was moving to dismiss a federal lawsuit challenging the Bush administration's secretive domestic wiretapping program.

The lawsuit, brought by the San Francisco-based Internet privacy group, Electronic Frontier Foundation, does not include the government but instead names AT&T Inc., whom the group accuses of colluding with the National Security Agency to make communications on AT&T networks available to the spy agency without warrants.

From Wired News:

The government is not admitting, however, that AT&T aided the National Security Agency in spying on American's phone calls and internet communications.

"[T]he fact that the United States will assert the state secrets privilege should not be construed as a confirmation or denial of any of Plaintiffs' allegations, either about AT&T or the alleged surveillance activities," the filing reads. "When allegations are made about purported classified government activities or relationships, regardless of whether those allegations are accurate, the existence or non-existence of the activity or relationship is potentially a state secret."

Next on Fox, a new reality show, The Star Chamber. Followed by The President's Analyst.

Quid pro quo?

Something about this AT&T story has been nagging at me like a second-rate burglary. It might be just a footnote to the NSA domestic spying scandal. Or not.

Assuming for the moment that the allegations are true, AT&T would not go along with blatant violation of telecommunications laws out of the goodness of their hearts, out of a sense of patriotic duty, or for a mere promise of legal indemnity. They got something. Or were promised something.

What was their quid for the government's quo?

Smooth sailing for the SBC merger? (Like it wasn't going to happen otherwise?) Cash up front? A promise not to be punished for not cooperating? (The Bush administration saves its sticks for non-corporate players.)

Here's another possibility:

"Congress is going to hand the operation of the Internet over to AT&T, Verizon and Comcast." [more]

Matt Stoller at MyDD quotes this interview with Edward Whitacre, the CEO of SBC Communications (now AT&T):

How concerned are you about Internet upstarts like Google (GOOG), MSN, Vonage, and others?

How do you think they're going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes?

The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! (YHOO) or Vonage or anybody to expect to use these pipes [for] free is nuts!

Follow the money.

The President's Analyst

On April 6, Mark Klein, a retired twenty-two year AT&T technician, told the U.S. District Court in San Francisco that in October 2003 the National Security Agency (NSA) installed data mining equipment in a secret room adjacent to AT&T’s San Francisco Internet and telephone switching hub. AT&T documents Klein submitted suggested that similar rooms exist in Atlanta and elsewhere. He says other technicians reported similar monitoring rooms were installed in Seattle, San Jose, Los Angeles and San Diego.

"It appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet, whether that be people's e-mail, Web surfing or any other data," Klein said in a statement reported by the Associated Press.

“Can you hear me now?” unnerved AT&T customers might say.

After the New York Times revealed the existence of the NSA program in December, Klein went public. His affidavit was filed as part of a class-action lawsuit a civil liberties group, the Electronic Frontier Foundation (EFF), filed against AT&T in January.

Other wiretapping lawsuits by the American Civil Liberties Union, the Center for Constitutional Rights and others target the government, which President Bush deflects by claiming constitutional authority as Commander in Chief. So instead the EFF suit goes after private-sector accomplices.

EFF charges AT&T with violating customers’ privacy by participating in “a secret and illegal government program to intercept and analyze vast quantities of Americans’ telephone and Internet communications.” The suit alleges that in providing direct access to its voice and data network and its massive telephone and Internet records, AT&T is in direct violation of electronic surveillance and communications privacy laws.

The Times quotes an anonymous network designer who believes that the locations of the sites are consistent with administration assertions that only foreign communications or those between foreign countries and the United States are being targeted. He and other experts acknowledge, however, “it would be a simple technical matter to reprogram the equipment to intercept purely domestic Internet traffic.”

That is, assuming the NSA’s "semantic traffic analyzers" aren’t already warrantlessly tapping purely domestic calls. Asked about that very possibility the same day Klein’s lawyer released his statement, Attorney General Alberto Gonzales told the House Judiciary Committee, "I'm not going to rule it out."

When The President’s Analyst starring James Coburn ruled it in back in 1967, it was meant as satire.

Dr. Sidney Schaefer (Coburn) goes on the lam from his high-stress job as the president’s psychiatrist. Hunted by intelligence agencies from around the world, Sidney is ultimately “rendered” to an electronic fortress – a telephone switching hub, coincidentally – not by international spies, but by TPC (the phone company).

The corporation wants to reduce capital costs and boost profits by injecting telephonic microchips into people’s brains. TPC’s smiling, animatronic CEO explains:

“Can you imagine the ease, the fun with which you can place a call?” Just think the number and “you’re in instant communication, anywhere in the world.” All secretly monitored from a central location.

The phone company simply needs a law replacing people’s names with numbers as legal identification and requiring prenatal implantation of the “cerebrum communicator.”

But first it must overcome the public’s “misguided resistance.”

After torturing the president’s personal secrets out of Schaefer, TPC expects to blackmail the president into using his office to “mold public opinion and get that legislation.”

Pure fantasy. From 1967.

Anyway, blackmail is no longer necessary, so “pre-9/11,” as a former Halliburton CEO, Vice-president Dick Cheney, might say. “Torture doesn’t work,” as Secretary of Defense Donald Rumsfeld might say. About getting that legislation, “Would 10K … help?” as one of lobbyist Jack Abramoff’s e-mails might say.

Instead of trusting to kidnapping, torture, threats and wiretapping, a modern CEO president can use town meetings as authentic as Disney’s “Hall of Presidents” to overcome misguided public resistance to, say, eliminating Social Security or to his second war.

Or his third.

“Wild speculation,” as President Bush might say.

The politics of lying

A long time ago, in a high school far, far away I read a book on scams called "The Vulnerable Americans" by Curt Gentry (1966).

As best I recall, there was a chapter on a school bus service in Greensboro or High Point, NC that had a run of breakdowns in its fleet of new GM buses. Despite repeated complaints, the owner kept getting the runaround from the area rep, who claimed that no other customers had had similar problems (a lie). The breakdowns must have been caused by the service's drivers.

The money quote went something like this:

"He was lying to me. I knew he was lying to me. He knew I knew he was lying to me. But he lied anyway, not because he had anything to gain from the lies, but because it was company policy."

I thought about that when Scott McClellan reponded to Sen. Russ Feingold's call for censuring the president over warrantless wiretapping:

White House spokesman Scott McClellan said Monday that the move by Sen. Russ Feingold of Wisconsin “has more to do with 2008 politics than anything else.” Feingold is usually mentioned in lists of potential candidates for the Democratic presidential nomination in 2008.

“I think it does raise the question, how do you fight and win the war on terrorism?” McClellan said. “And if Democrats want to argue that we shouldn't be listening to al-Qaeda communications, it's their right and we welcome the debate.”

Except no Democrats are arguing that. McClellan knows that. The White House knows that. So unless the straight-talking foes of moral relativism have redefined knowingly speaking falsehoods as "spin" or "advocacy," McClellan's characterization of Democrats would be a ... lie.

Company policy.

Note: post delayed on account of Blogger maintenance

UPDATE: Just picked up a copy of Gentry's book, and the story is not in there. I must have picked that story up elsewhere.