Friday, August 31, 2007

Justice IG Looking at Gonzales

Gonzales knew that the water was heating up in his pan at the Justice Department.

He had to jump out before it became too late.

The Justice Department's inspector general indicated yesterday that he is investigating whether departing Attorney General Alberto R. Gonzales gave false or misleading testimony to Congress, including whether he lied under oath about warrantless surveillance and the firings of nine U.S. attorneys.

The disclosure by Inspector General Glenn A. Fine in a letter to Congress signals an expansion of the department's internal investigations into Gonzales's troubled tenure, probes that were not previously known to be focused so sharply on the attorney general and his testimony.

Fine's office has also separately expanded a probe into whether senior Gonzales aides improperly considered partisan affiliations when reviewing applicants for nonpolitical career positions. As part of that inquiry, Fine sent hundreds of questionnaires in the past week to former Justice Department job applicants. ...

The scope and pace of the investigations suggest that public attention on Gonzales will probably continue long after he leaves his job on Sept. 17. But officials declined yesterday to say whether Fine's expanding investigations played a role in the attorney general's resignation. ...

Fine, in a letter yesterday to Sen. Patrick J. Leahy (D-Vt.), said his office "has ongoing investigations" related to Gonzales's testimony on several key issues, including the prosecutor firings and allegations of improper hiring practices, the National Security Agency's Terrorist Surveillance Program, the FBI's use of national security letters, and Gonzales's characterizations of his conversation with an aide before a House hearing. ...

Fine has the authority to refer cases for criminal prosecution, including on perjury or obstruction-of-justice charges, if warranted. He and H. Marshall Jarrett, head of the department's Office of Professional Responsibility, can also recommend internal disciplinary action for violations of department rules and guidelines, although many Gonzales aides involved in the controversial actions have left the government.

Thursday, August 30, 2007

You Can Fool Some of the People ...

The administration's "pull out all the stops" Perception Management effort to convince the public that the situation on the ground in Iraq is improving seems to be paying dividends, at least according to some people.

The White House is growing more confident that it can beat back efforts by Congressional Democrats to shift course in Iraq, a significant turnabout from two months ago, when a string of Republican defections had administration officials worried that President Bush’s troop buildup was in serious danger on Capitol Hill.

Current and former administration officials say they realize that the September battle over the troop buildup will be difficult. But they also say the president’s hand is stronger now than it was in early July, when Republican senators like Pete V. Domenici of New Mexico and Richard G. Lugar of Indiana publicly called for a change of course.

“There is a tonal shift, and that is important, but there is always the chance that it could be ephemeral, in the same way that the panic of early July proved ephemeral,” said Peter D. Feaver, who helped draft the buildup strategy as an official with the National Security Council but recently returned to his post as a political science professor at Duke University. “I don’t detect any triumphalism in the White House.”

A senior administration official, speaking on condition of anonymity to avoid upstaging the president, said there was “a sense the dynamic has changed.” But the official was also cautious, adding: “I don’t want to portray overconfidence. This is a very important debate, and September is going to be a very important month.”

With Congress in recess in August, no reliable indication of lawmakers’ sentiments will emerge until the House and Senate return next week.

Democratic leaders say they intend to renew their efforts to force Mr. Bush to withdraw troops as soon as possible, and one prominent Republican — Senator John W. Warner of Virginia, the senior Republican on the Senate Armed Services Committee — rattled the White House last week when he called for Mr. Bush to begin bringing a small number of troops home by Christmas.

But other Republicans have not embraced Mr. Warner’s plan. At the same time, some Democrats who had been critical of Mr. Bush’s handling of the war have acknowledged that the heightened American troop levels in Iraq do appear to have produced some signs of military progress.

At least one nonpartisan analyst, Charlie Cook, the editor of The Cook Political Report, an independent newsletter, says the pendulum appears to be swinging — even though the war remains hugely unpopular and Republican lawmakers are under great pressure at home to end it.

“It’s a momentum situation,” he said. “The momentum back in June and early July was really running hard against the war, and it was starting to snowball. But that snowballing stopped, and it has probably kind of reversed itself somewhat.”

Unfortunately for the White House, you can't bullshit history.

The Iraq disaster will look even worse in hindsight than it does to the media-influenced American people now.

Tuesday, August 28, 2007

The Iraq War -- A Perfect Arena For Fraud

Several federal agencies are investigating a widening network of criminal cases involving the purchase and delivery of billions of dollars of weapons, supplies and other matériel to Iraqi and American forces, according to American officials. The officials said it amounted to the largest ring of fraud and kickbacks uncovered in the conflict here.

The inquiry has already led to several indictments of Americans, with more expected, the officials said. One of the investigations involves a senior American officer who worked closely with Gen. David H. Petraeus in setting up the logistics operation to supply the Iraqi forces when General Petraeus was in charge of training and equipping those forces in 2004 and 2005, American officials said Monday.

There is no indication that investigators have uncovered any wrongdoing by General Petraeus, the top commander in Iraq, who through a spokesman declined comment on any legal proceedings. ...

The inquiries are being pursued by the Army Criminal Investigation Command, the Department of Justice, and the Federal Bureau of Investigation, among other agencies. ...

The investigation into contracts for matériel to Iraqi soldiers and police officers is part of an even larger series of criminal cases. As of Aug. 23, there were a total of 73 criminal investigations related to contract fraud in Iraq, Kuwait and Afghanistan, Col. Dan Baggio, an Army spokesman said Monday. Twenty civilians and military personnel have been charged in federal court as a result of the inquiries, he said. The inquiries involve contracts valued at more than $5 billion, and Colonel Baggio said the charges so far involve more than $15 million in bribes.

Investigations span the gamut from low-level officials submitting false claims for amounts less than $2,500 to more serious cases involving, conspiracy, bribery, product substitution and bid-rigging or double-billing involving large dollar amounts or more senior contracting officials, Army criminal investigators said. The investigations involve contractors, government employees, local nationals and American military personnel. ...

In a sign of the seriousness of the scandal, the Defense Department Inspector General, Claude M. Kicklighter, will lead an 18-person team to Iraq early next month to investigate contracting practices, said Geoff Morrell, the Pentagon press secretary.

Mr. Morrell said Mr. Kicklighter, a retired three-star Army general, would stay in Iraq indefinitely to investigate contracting abuses, and was empowered to fix problems on the spot or take action if his team identified potential criminal activity.

Monday, August 27, 2007

Gonzales Resigns

Rove gone.

And now Gonzales leaving.

Rats from a sinking ship? Or is some unexpected development on the way?

As recently as Sunday afternoon, Mr. Gonzales was denying through his press spokesman, Brian Roehrkasse, that he intended to leave.

Mr. Roehrkasse said Sunday afternoon that he had telephoned Mr. Gonzales about the reports circulating in Washington that a resignation was imminent, "and he said it wasn’t true, so I don’t know what more I can say."

White House spokesmen also insisted on Sunday that they did not believe that Mr. Gonzales was planning to resign. Aides to senior members of the Senate Judiciary Committee said over the weekend that they had received no suggestion from the administration that Mr. Gonzales intended to resign.

Friday, August 24, 2007

Padilla Suing U.S. Officials Over Abusive Treatment

Convicted Al Qaeda operative Jose Padilla is seeking to hold former Defense Secretary Donald Rumsfeld and 59 other US officials responsible for what his lawyers say were abusive and unconstitutional tactics used against Mr. Padilla while he was held in military custody as an enemy combatant from 2002 to 2006.

Lawyers working on Padilla's behalf filed the civil lawsuit earlier this year in federal court in South Carolina. It was publicly disclosed by the lawyers this week.

"Mr. Padilla suffered gross physical and psychological abuse at the hands of federal officials as part of a scheme of abusive interrogation intended to break down Mr. Padilla's humanity and his will to live," the 30-page complaint says.

"The grave violations suffered by Padilla were not isolated occurrences by rogue lower-level officials," the suit says. Besides Mr. Rumsfeld, it names Defense Secretary Robert Gates, former Attorney General John Ashcroft, former Deputy Secretary of Defense Paul Wolfowitz, and former Defense Intelligence Agency Director Lowell Jacoby, among others, who "personally ordered and/or approved Mr. Padilla's detention and interrogation program."

Last week, Padilla was found guilty by a Miami jury of conspiring with Al Qaeda to engage in violent jihad. Federal prosecutors said he attended a training camp in Afghanistan. He faces a potential life sentence in prison.

Some analysts have pointed to Padilla's conviction as vindication of the Bush administration's alleged harsh treatment of him at the US Naval Consolidated Brig in Charleston, S.C., prior to his transfer to the criminal justice system in early 2006. But other analysts say that regardless of the guilty verdict in Miami, significant constitutional and other legal issues surrounding Padilla's treatment by the military remain unresolved.

Chief among them is whether a US citizen, like Padilla, who was arrested on American soil, can be stripped of most of his constitutional rights while being held in military custody and interrogated as an enemy combatant. Padilla was held at the brig for 43 months.

According to the court docket, a Justice Department lawyer is representing each of the named defendants. Andrew Ames, a Justice Department spokesman, said the government would have no comment on the pending case.

The defendants have been ordered to respond to the suit by Oct. 15.

Thursday, August 23, 2007

FOX News as Administration Propaganda Arm

Condemning the Fox News Channel as a warmonger that's agitating for a U.S. attack on Iran, documentary filmmaker Robert Greenwald and independent U.S. Sen. Bernie Sanders announced an "online viral video campaign" Wednesday calling on television news organizations "not to follow Fox down the road to war again."

Greenwald, the director behind "Outfoxed: Rupert Murdoch's War on Journalism" and "Wal-Mart: The High Cost of Low Price," has compiled a new three-minute video that mashes clips from Fox's coverage of the 2003 invasion of Iraq and its aftermath with recent coverage of possible U.S. military action against Iran.

The video and an accompanying "open letter" to ABC, NBC, CBS, MSNBC and CNN -- viewable at -- urge news organizations to ask tough questions about administration policy on Iran and say citizens should pressure them to do so.

Three telephone messages to Fox in New York seeking comment were not returned Wednesday. ...

The video has clips of U.S. Sen. Joe Lieberman, I-Conn., former U.N. Ambassador John Bolton, Fox host Bill O'Reilly and others warning of the potential for a U.S. war against Iran, spliced together with graphics that say ''Sound Familiar?'' and ''Other networks followed Fox's lead on Iraq.''

In one clip, CNN correspondent Christiane Amanpour says during an interview that CNN was intimidated by the administration "and its foot soldiers at Fox News."

"We felt it important right now to raise awareness and ask the media to please ask the hard questions, before it's too late," said Greenwald. "We've focused on TV because they are the ones who have the greatest, quickest input. But over time, we will be asking and expanding this to all media."

In a conference call announcing the campaign, Greenwald and Sanders, I-Vt., said they don't have answers about what to do about Iran, but said they fear the White House will make a unilateral decision to attack.

"We have got to put pressure on the mass media not to play the same craven role they played in Iraq, when they effectually collapsed and became a megaphone for Bush's policies," Sanders said. "What Robert is saying here is that the leader of that effort is Fox News, which in many ways is simply a propaganda machine for the Republican Party and the Bush administration."

Wednesday, August 22, 2007

Presidential Advance Manual [Sensitive -- Do Not Copy] Offers Tips on Dealing With Protesters

A White House manual that came to light recently gives presidential advance staffers extensive instructions in the art of "deterring potential protestors" from President Bush's public appearances around the country.

Among other things, any event must be open only to those with tickets tightly controlled by organizers. Those entering must be screened in case they are hiding secret signs. Any anti-Bush demonstrators who manage to get in anyway should be shouted down by "rally squads" stationed in strategic locations. And if that does not work, they should be thrown out.

But that does not mean the White House is against dissent -- just so long as the president does not see it. In fact, the manual outlines a specific system for those who disagree with the president to voice their views. It directs the White House advance staff to ask local police "to designate a protest area where demonstrators can be placed, preferably not in the view of the event site or motorcade route."

The "Presidential Advance Manual," dated October 2002 with the stamp "Sensitive -- Do Not Copy," was released under subpoena to the American Civil Liberties Union as part of a lawsuit filed on behalf of two people arrested for refusing to cover their anti-Bush T-shirts at a Fourth of July speech at the West Virginia State Capitol in 2004. The techniques described have become familiar over the 6 1/2 years of Bush's presidency, but the manual makes it clear how organized the anti-protest policy really is. ...

The manual offers advance staffers and volunteers who help set up presidential events guidelines for assembling crowds. Those invited into a VIP section on or near the stage, for instance, must be "extremely supportive of the Administration," it says. While the Secret Service screens audiences only for possible threats, the manual says, volunteers should examine people before they reach security checkpoints and look out for signs. Make sure to look for "folded cloth signs," it advises.

To counter any demonstrators who do get in, advance teams are told to create "rally squads" of volunteers with large hand-held signs, placards or banners with "favorable messages." Squads should be placed in strategic locations and "at least one squad should be 'roaming' throughout the perimeter of the event to look for potential problems," the manual says.

"These squads should be instructed always to look for demonstrators," it says. "The rally squad's task is to use their signs and banners as shields between the demonstrators and the main press platform. If the demonstrators are yelling, rally squads can begin and lead supportive chants to drown out the protestors (USA!, USA!, USA!). As a last resort, security should remove the demonstrators from the event site."

White House Presidential Advance Manual (12-page PDF)

Tuesday, August 21, 2007

You Can't Just Say 'GFY' to Leahy And Get Away With It. Or Can You?

I'm sure Cheney, et al., are quaking in their boots now.

A leading Democrat threatened on Monday to pursue contempt charges against the White House next month over its response to a subpoena for internal documents on the National Security Agency’s domestic surveillance program.

"Time is up," said Senator Patrick J. Leahy, Democrat of Vermont, the chairman of the Senate Judiciary Committee. "We've waited long enough."

Mr. Leahy's comments ratcheted up the battle between Congressional Democrats and the White House over access to secret documents on the legal underpinnings of the eavesdropping program, which authorized the N.S.A. to listen in without a court warrant on Americans’ international communications.

Nearly two months ago, the Senate voted to subpoena the White House and the Bush administration for access to the documents as part of its investigation into the program.

The White House, in a letter to Mr. Leahy on Monday, said it had identified a number of classified documents that appeared to fall under the subpoena but it said the documents could be covered by a claim of executive privilege. The White House asked for more time to research the issue.

"It remains our goal to avoid a conflict between the branches on this important issue of national security," the White House counsel, Fred F. Fielding, said in the letter.

But Mr. Leahy made clear that his patience was running out. With Congress on its August break, he returned to Washington and held a news conference announcing that the White House had failed to meet the Monday deadline he had set for complying with the subpoena.

"Follow the law, and don't act like you're above the law," Mr. Leahy told reporters in remarks aimed at the White House. "Go ahead and answer the subpoena."

Leahy also made known one of the reasons that the GOP-led 109th Congress refused to investigate the NSA scandal:

The Senate Judiciary Committee in the conservative-led 109th Congress, chaired by Sen. Arlen Specter (R-PA) also attempted to ask questions about the program’s legal justifications. But Vice President Cheney personally barred him from issuing subpoenas:

"In fact, we were about to issue subpoenas then and one of the senators came to our meeting and said that the vice president had met with the Republican senators and told them they were not allowed to issue subpoenas.

"Not quite sure that's my understanding of the separation of powers, but it seemed to work at that time."

Monday, August 20, 2007

Reverse Psychology

Day after day last week, outgoing White House political strategist Karl Rove delivered slashing attacks on Sen. Hillary Rodham Clinton, the Democratic presidential front-runner. Her healthcare record was "spotty and poor," he declared. Her candidacy was "fatally flawed," he said. And no one with her negative poll numbers, he stated, "has ever won the presidency."

Why did Rove, who often stays in the background, step forward to deliver such public attacks -- especially when the Democrats haven't begun to choose their presidential candidate for 2008 and when the general election is more than a year away?

The answer might seem obvious: Rove saw Clinton as a formidable opponent and wanted to get his licks in early.

For high-level campaign professionals like Rove, however, that kind of thinking may be too simple.

The decision to focus on the New York senator to the exclusion of other potentially formidable Democratic standard-bearers such as Sen. Barack Obama of Illinois offered a rare glimpse into a world where things are not always what they seem -- the world of modern-day electioneering, whose denizens often prefer going from A to B by way of Z.

In this case, Rove's weeklong broadside against Clinton ... looks suspiciously like an exercise in reverse psychology that his team employed three years ago when it was preparing for President Bush's reelection bid.

The ploy was described by Rove lieutenant Matthew Dowd during a postmortem conference on the 2004 election at Harvard University the month after Bush defeated Democratic Sen. John F. Kerry of Massachusetts.

In the run-up to the 2004 Democratic National Convention, when it was not yet clear who Bush's opponent would be that November, Rove and his aides had begun to fear that their most dangerous foe would be then-Sen. John Edwards of North Carolina.

With his Southern base, charismatic style and populist message, Edwards, they believed, could be a real threat to Bush's reelection.

But instead of attacking Edwards, Rove's team opened fire at Kerry.

Their thinking went like this, Dowd explained: Democrats, in a knee-jerk reaction to GOP attacks, would rally around Kerry, whom Rove considered a comparatively weak opponent, and make him the party's nominee. Thus Bush would be spared from confronting Edwards, the candidate Republican strategists actually feared most.

Unlike Kerry, who had been in public service for decades, Edwards was a political newcomer and lacked a long record that could be attacked. And, unlike former Vermont Gov. Howard Dean, who had been the front-runner but whose campaign was collapsing in Iowa, Edwards couldn't easily be painted as "nutty."

If that sounds implausibly convoluted, consider Dowd's own words:

"Whomever we attacked was going to be emboldened in Democratic primary voters' minds.

"So we started attacking John Kerry a lot in the end of January because we were very worried about John Edwards," Dowd said. "And we knew that if we focused on John Kerry, Democratic primary voters would sort of coalesce" around Kerry.

"It wasn't like we could tag [eliminate] somebody. Whomever we attacked was going to be helped," he said.

Saturday, August 18, 2007

Castro: Cuba Not Cashing U.S. Guantanamo Rent Checks

The United States pays Cuba $4,085 a month in rent for the controversial Guantanamo naval base, but Cuba has only once cashed a check in almost half a century and then only by mistake, Fidel Castro wrote in an essay published on Friday.

The ailing Cuban leader, who has not appeared in public for more than a year, said he had refused to cash the checks to protest the "illegal" U.S. occupation of the land which he said was now used for "dirty work."

"The base is needed to humiliate and to do the dirty work that occurs there," he said of the detention camp where some 355 terrorism suspects are still being held with no legal rights despite international criticism.

Castro, who turned 81 on Monday out of public sight, said the U.S. checks are made out to the "Treasurer General of the Republic," a position that ceased to exist after Cuba's 1959 revolution.

He said only one U.S. check was ever cashed -- in 1959 due to "confusion" in the heady early days of the leftist revolution.

Castro's refusal to cash the checks to protest the "illegal" occupation has been long known. In a television interview years ago, he showed the checks stuffed into a desk drawer in his office.

The final installment of Castro's long historical essay on Cuba's hostile relations with the United States -- written for future generations -- was published by the ruling Communist Party newspaper Granma.

The essay entitled "The Empire and the Independent Island" recounted Castro's view of U.S. efforts to control Cuba since U.S. troops landed on the island in the Spanish-American War that secured Cuban independence from Spain in 1898.

The United States retained 46.8 square miles (121 square kilometers) at the entrance to Guantanamo Bay in eastern Cuba for a naval base, which has been used as a prison camp for Taliban and al Qaeda terrorism suspects since the Afghanistan war following the September 11 attacks in 2001.

The base was initially a coaling station for the U.S. Navy to protect the approaches to the Panama Canal.

Castro said the enclave was "illegally usurped" by the United States, adding that the base no longer had any strategic military purpose in the age of nuclear-powered aircraft carriers packed with fast fighter-bombers.

"If we have to wait for the collapse of the (capitalist) system, we will wait," Castro wrote. He said Cuba was always on alert to the threat of a U.S. invasion.

Friday, August 17, 2007

More Details on the "Sickbed Visit" Released to House Judiciary Committee

Notes taken by Director Robert S. Mueller III of the F.B.I. say that Attorney General John Ashcroft was "barely articulate," "feeble" and "clearly stressed" shortly after a hospital-room meeting in March 2004 in which two top White House aides tried to persuade him to sign an extension for eavesdropping on Americans without warrants.

Mr. Mueller's notes, based on a visit to Mr. Ashcroft's room and released Thursday by the House Judiciary Committee, provide a fuller picture of the events surrounding a March 10, 2004, confrontation over the surveillance program. They go beyond the account that Mr. Mueller gave the committee in July and reinforce an account by James B. Comey, the former deputy attorney general who testified in May.

In providing corroboration for Mr. Comey's version of events, Mr. Mueller's typewritten entries served to rebut the suggestion of some Bush administration officials who have privately dismissed Mr. Comey's account of the hospital standoff as an overwrought and one-sided description.

In terse shorthand, and despite heavy redactions, Mr. Mueller offered a glimpse of a tumultuous battle over the fate of the eavesdropping program. The notes list 26 meetings and phone conversations over three weeks — from March 1 to March 23 — during a fierce debate that almost led to mass resignations at the Justice Department and the Federal Bureau of Investigation.

Mr. Mueller was not at the meeting between Mr. Ashcroft and Alberto R. Gonzales, then the White House counsel, and Andrew H. Card Jr., then the White House chief of staff. He arrived at the hospital shortly afterward, and his entries include an account of his hospital-room meeting with Mr. Ashcroft as well as what he says Mr. Comey told him about the earlier confrontation.

The notes also reveal a series of meetings before and after March 10 between Mr. Mueller and other high-level administration officials. Some of those meetings were attended by Vice President Dick Cheney, suggesting that Mr. Cheney had played a central role in the controversy. Other regular participants included Mr. Gonzales and Gen. Michael V. Hayden, then the director of the National Security Agency, which conducted the eavesdropping program.

The notes, which were turned over to the committee this week, are not dated. But they suggest that Mr. Mueller gradually became an intermediary between the White House and the Justice Department, meeting with each side almost hourly as the crisis deepened.

During their bedside meeting with Mr. Ashcroft, Mr. Gonzales and Mr. Card tried to obtain his signature on a presidential order reauthorizing the program. Mr. Comey, acting as attorney general during Mr. Ashcroft's hospitalization, had declined to sign the reauthorization, he said, because he believed that part of the program was illegal.

During the meeting, Mr. Ashcroft rebuffed the White House entreaties to sign the directive. Mr. Comey was present during that session, and Mr. Mueller's notes show that Mr. Comey then briefed the F.B.I. director on Mr. Ashcroft's remarks. Mr. Ashcroft, the notes said, reviewed his legal objections to the eavesdropping program and complained to Mr. Gonzales and Mr. Card that he had been "barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH," a reference to the extreme secrecy imposed by the White House.

After the meeting concluded without success, the Bush administration decided to proceed with the program anyway. But Comey, Mueller and half a dozen or so other Justice Department officials threatened to resign if it was not changed. The standoff was averted after President Bush agreed to make changes, Mueller and others have testified, but the changes have never been described.

FBI Director Mueller's notes (6-page PDF)

Thursday, August 16, 2007

National Technical Means To Be Used Domestically

Posse Comitatus, anyone?

The Bush administration has approved a plan to expand domestic access to some of the most powerful tools of 21st-century spycraft, giving law enforcement officials and others the ability to view data obtained from satellite and aircraft sensors that can see through cloud cover and even penetrate buildings and underground bunkers.

A program approved by the Office of the Director of National Intelligence and the Department of Homeland Security will allow broader domestic use of secret overhead imagery beginning as early as this fall, with the expectation that state and local law enforcement officials will eventually be able to tap into technology once largely restricted to foreign surveillance. ...

Although the federal government has long permitted the use of spy-satellite imagery for certain scientific functions -- such as creating topographic maps or monitoring volcanic activity -- the administration's decision would provide domestic authorities with unprecedented access to high-resolution, real-time satellite photos.

They could also have access to much more. A statement issued yesterday by the Department of Homeland Security said that officials envision "more robust access" not only to imagery but also to "the collection, analysis and production skills and capabilities of the intelligence community." ...

Under the new program, the DHS will create a subordinate agency to be known as the National Applications Office. The new office, which has gained the backing of congressional intelligence and appropriations committees, is responsible for coordinating requests for access to intelligence by civilian agencies. Previously, an agency known as the Civilian Applications Committee facilitated access to satellite imagery for geologic study.

Oversight of the department's use of the overhead imagery data would come from officials in the Department of Homeland Security and from the Office of the Director of National Intelligence and would consist of reviews by agency inspectors general, lawyers and privacy officers. "We can give total assurance" that Americans' civil liberties will be protected, Allen said. "Americans shouldn't have any concerns about it."

Wednesday, August 15, 2007

Kafkaesque Procedures in Al-Haramain CATCH-ALL Case

Oakland lawyer Jon Eisenberg calls the case of Al-Haramain Islamic Foundation v. George W. Bush the strangest he has ever handled. How strange? Eisenberg was required to write one of his briefs in a windowless government office, without notes or lawbooks, under the watchful eye of two federal security guards.

When he got hungry, one of the guards brought him a banana. And when he finished, a security official shredded all his drafts — and even the banana peel, Eisenberg said.

The brief-writing session was just one facet of the extraordinary secrecy surrounding the Al-Haramain case, Eisenberg said. Al-Haramain is one of dozens of plaintiffs across the nation that have filed suit, claiming they were illegally spied on by the government as part of the war on terror.

In most of the cases, including Al-Haramain's, the government has contended that any disclosure about the surveillance program would reveal state secrets and has refused to say whether the plaintiffs were wire-tapped. It has then moved to dismiss the complaints.

But in the Al-Haramain case, the Treasury Department inadvertently disclosed National Security Agency call logs stamped "top secret" indicating that the charity and two of its attorneys had been surveilled. Last year, U.S. District Judge Garr King ruled that the logs -- referred to in the court papers as "The Document" — gave the charity standing to sue in federal court.

Today, Eisenberg and Justice Department lawyer Thomas Bondy will each have 20 minutes to argue over King's decision before a three-judge panel of the U.S. 9th Circuit Court of Appeals. Although the argument will be conducted in public, much of the information in the case, including what was in "the Document," remains veiled in mystery.

Many of the government's motions have been filed under seal, and those lodged publicly contain gaps; one government brief reads: "REDACTED TEXT. PUBLIC TEXT CONTINUES ON PAGE 6."

Some of Eisenberg's briefs have been redacted as well, because they are considered too sensitive for the public to see. But although Justice Department lawyers can see Eisenberg's redactions, he isn't allowed to see theirs.

In the Al-Haramain case, Eisenberg has had to respond to a government filing he was not allowed to see.

Asked Monday if there was any way, under the government's interpretation of the law, that someone could contest the surveillance program, a senior Justice Department official replied, "In the current context, no." ...

The Al-Haramain proceedings turned Kafkaesque in June, he said, when he was told he would have to write a brief in the government office.

The filing was in response to a Justice Department brief that was redacted, he said. In the public portion, a team of government lawyers asserted that the case should be dismissed because of the "state secrets" doctrine. They also contended that the call log does not prove that the plaintiffs were subjects of the NSA's warrantless wiretapping program.

Eisenberg vigorously disputed the public portion of the filing, saying that if the government prevailed, the case would "quietly die without a judicial determination of whether the president. . . has broken the law by conducting warrantless electronic surveillance in violation of the Foreign Intelligence Surveillance Act."

As for what was in the sealed part of the government brief, Eisenberg said, "I could only guess," but he decided to write a response based on his knowledge of the case and his hunches. For a week, he said, "I thought a lot about what I wanted to draft and tried to commit it all to memory," since he would not be allowed to bring in notes. "That was a challenge. . . . And, yes. . . I was trying to guess at what the government had argued in the secret portions of its 9th Circuit brief and decide how to respond to something I'd never seen. That was a new experience for me."

In a public brief, Eisenberg described cryptically what happened June 26, when he and his co-counsel Steve Goldberg had to write their sealed response brief under what he called "highly unusual and objectionable restrictions imposed by the government." The conditions included preventing them from bringing notes or law books to the drafting session, and barring one of their co-counsel from participating, the brief said. ...

Asked if he had ever before had to write a brief without any notes or lawbooks, Eisenberg responded, "Of course not. Under any other circumstances, that would be malpractice."

Tuesday, August 14, 2007

PPT is On The Job

The "Plunge Protection Team" (PPT) is doing it's behind-the-scenes thing to try to keep the credit crisis that began with the sub-prime meltdown from taking the rest of the financial system down with it.

Informed sources say that Hank Paulson re-activated the PPT last October.

Bush administration sources said they are assessing the need to speak publicly on the credit crunch, lest too many voices create confusion or prompt retail investors to think the problems are deepening.

Instead, authorities are keeping their public comments to a minimum even as Treasury Department and Federal Reserve Board officials are reaching out privately to lenders, brokerages, banks, credit rating agencies and other market participants for real-time data about the size and scope of the situation.

Representatives for the Treasury Department and the White House declined to comment Monday on reports that Treasury Secretary Henry M. Paulson Jr. convened a meeting at his Washington home Sunday. Paulson often works through the weekend and sometimes convenes meetings there, sources said.

Members of the President's Working Group on Financial Markets [the PPT], including the Treasury, Fed, Securities and Exchange Commission and Commodity Futures Trading Commission, are in touch regularly via staff members and telephone.

And in a not-entirely unrelated note:

Goldman Sachs, Wall Street's most profitable investment bank, said Monday that it is injecting $2 billion into one of its struggling hedge funds, underscoring the intensity of the turmoil in credit markets and its potential reach into the U.S. economy.

The fund shed about 30 percent of its value in last week's trading, shrinking to $3.6 billion from about $5 billion in a matter of days. Goldman's Global Equity Opportunities Fund is the latest hedge fund to acknowledge big losses in recent weeks as problems in the mortgage industry spread to other parts of the credit market and to stocks. ...

Goldman is providing about $2 billion of the $3 billion infusion into its Global Equity Opportunities Fund, which makes bets on stock price movements. A group of investors that includes billionaire Eli Broad and Hank Greenberg, former chairman of American International Group, are putting in the rest.

The GEO fund is a "quant" fund, meaning it makes its trades based on opportunities in the market identified by computer-based models. In recent days, Goldman said, such funds have come under pressure as a volatile stock market moved in unpredictable ways.

"In response, we've been reducing risk and leverage in GEO," Viniar said. "Unfortunately, the recent simultaneous global unwinding of portfolios utilizing quantitative investment strategies has exacerbated GEO's performance challenges."

Responding to the speculation that has helped roil markets in the past week, the company said that its high-profile Global Alpha hedge fund and North American Equity Opportunities Fund have pared their riskier positions and are "positioned to actively pursue market opportunities."

The Global Alpha fund is down 27 percent this year, with more than half of those losses occurring in the past week, the company said. ...

Wall Street is paying attention to news from quant funds, whose automated models are developed by mathematicians and whose trading involves limited human intervention. These models are often based on trading patterns of assets over a period of time.

The models are closely guarded by each fund, but the problems they faced last week suggest that many share the same strategies, analysts said, leading to fears that too many will fail in a volatile market and send ripples through the entire financial system.

Monday, August 13, 2007

Don't Let The Door...

I suspect that there is more to the announcement that Karl Rove is leaving the White House than meets the eye.

There usually is when someone as versed in political skullduggery as Rove makes an unexpected resignation announcement.

Or maybe he is just losing it. In a interview conducted Saturday by the Wall Street Journal, Rove made a few interesting comments:

"He will move back up in the polls," says Mr. Rove, who interrupts my reference to Mr. Bush's 30% approval rating by saying it's heading close to "40%," and "higher than Congress."

Looking ahead, he adds, "Iraq will be in a better place" as the surge continues. Come the autumn, too, "we'll see in the battle over FISA" -- the wiretapping of foreign terrorists -- "a fissure in the Democratic Party." Also in the fall, "the budget fight will have been fought to our advantage," helping the GOP restore, through a series of presidential vetoes, its brand name on spending restraint and taxes.

As for the Democrats, "They are likely to nominate a tough, tenacious, fatally flawed candidate" by the name of Hillary Rodham Clinton. Holding the White House for a third term is always difficult given the pent-up desire for change, he says, but "I think we've got a very good chance to do so."

Other people may have their math, but Rove has "the math."

Although that didn't work out so well the last time around.

Friday, August 10, 2007

Bush Shows Off His MBA

Hint to White House economic team: You might not want to have had the president repeat that numbskull prediction about a "soft landing" for housing at precisely the moment central banks were pumping $150 billion into the financial system to prevent a market meltdown over anxieties about mortgage-backed securities. Brings back memories of "Mission Accomplished."

Seriously, folks, we all need to get used to days like yesterday because there are going to be a lot more of them. In a world in which trillions of dollars have been bet on the premise that low interest rates and record-low default rates would continue forever, "repricing of risk," as the administration likes to call it, is not some minor technical event. It's more like a tectonic shift going on beneath the surface of the economy.

Think about it. In the space of just several months, we've moved from an environment in which fly-by-night brokers were peddling low-interest mortgages to bad credit risks with no documentation and no money down, to one in which the largest banks are raising rates and tightening terms for their best borrowers. ...

And in the course of several hours, a financial system that was seemingly awash in liquidity suddenly didn't have enough. ...

One concern is that rather than spreading risk among millions of investors, the current system has reconcentrated risk on the books of a dozen global broker-dealers who lend most of the money to fund managers so they can buy all those credit instruments. And it is many of the same firms -- Goldman Sachs, Bear Stearns, Deutsche Bank, Citicorp -- that have also underwritten hundreds of billions of dollars in corporate takeover loans that, suddenly, they cannot sell as they had planned. It's no coincidence that the shares of such firms have taken a beating in the past few months as rumors swirl around Wall Street that one or another is facing major losses.

We may be discovering, in fact, that the new financial order is not all it is cracked up to be.

Although it has provided ingenious new mechanisms to finance the legitimate needs of businesses and householders and new ways for investors to hedge risks, it has also created opportunities for potentially destabilizing speculation. It is now common for the aggregate value of "derivative" instruments to be many times the volume of the stocks, bonds or commodities on which they are supposedly based. And often it is the trading on derivatives markets that now drives the trading on "real" markets, rather than the other way around.

Australian analyst Satyajit Das makes the point that the main achievement of the new financial architecture has not been to spread risk so much as it has been to expand risk by vastly increasing the amount of borrowed money. Making loans to buy bonds secured by packages of other loans makes for big fees and exciting work for bankers. But as Das predicted last year in his book, "Traders, Guns & Money" -- and as we all discovered yesterday -- if the supply of credit suddenly dries up anywhere in the system, the elaborate new structure they've created can come crashing down on itself.

Thursday, August 09, 2007

South Carolina GOP Primary To Play Leapfrog

South Carolina's Republican Party will move its 2008 presidential primary forward to Jan. 19, sources said yesterday, a decision almost certain to spark a cascade of calendar changes that could push the start of voting to New Year's Day or even to before Christmas.

The move, set to be announced today, is likely to cause the New Hampshire primary and Iowa caucuses to be shifted at least to early January, and other states are actively angling to stake out spots earlier in the process. The maneuvering has injected a new note of uncertainty into what is already the earliest-starting presidential campaign in history, and top strategists for the candidates said it would force them to revise their carefully worked out plans.

Katon Dawson, who heads the South Carolina GOP, made the shift to retain the distinction of holding the "first in the South" presidential primary balloting. Dawson's move was sparked by the Florida legislature's decision to upstage South Carolina by moving the state's primary to Jan. 29. South Carolina had been scheduled to vote Feb. 2. ...

The move is certain to trigger action by New Hampshire Secretary of State William M. Gardner, who is compelled by state law to set the date of his state's primary at least a week before any other. That could push New Hampshire's primary, currently scheduled for Jan. 22, to Jan. 8.

In Iowa, state law requires presidential nominating caucuses to be held at least eight days before any other voting. ...

South Carolina's Democratic primary, which is scheduled to take place Jan. 29, is not affected by the decision. But the resulting moves by New Hampshire and Iowa would apply to both parties' contests in those states.

The calendar has been shifting despite warnings from officials of the two national party committees, who have threatened to punish state parties holding their voting earlier.

The RNC can block half of a state's delegates to the national convention for defying the party's wishes. The Democratic National Committee has threatened to disqualify delegates pledged to candidates who campaign in states in which it has not authorized early voting.

Those threats have had little impact on state leaders, who predict that the parties would not follow through on those threats by the time of the conventions next summer.

Wednesday, August 08, 2007

Airlines Suing CIA and FBI For 9/11 Info

Airlines and aviation-related companies sued the CIA and the FBI on Tuesday, asking a U.S. court for access to information they say would shed light on whether the aviation industry was to blame for the Sept. 11 terrorist attacks, or whether it had acted reasonably.

The separate lawsuits in U.S. District Court in Manhattan asked a judge to order the U.S. government to let the aviation companies interview the agencies' investigators as part of their defense against lawsuits brought by victims or families of victims of the 2001 attacks.

In the CIA lawsuit, companies including American Airlines Inc., United Airlines Inc., US Airways Group Inc., Delta Air Lines Inc., Continental Airlines Inc. and The Boeing Co. asked to interview the deputy chief of the CIA's Osama bin Laden unit in 2001 and an FBI special agent assigned to the unit at that time.

In the FBI lawsuit, the companies asked to interview a "limited number of former and current FBI employees" who had participated in investigations of al-Qaida and al-Qaida operatives before and after Sept. 11, 2001.

Government spokeswoman Yusill Scribner said she had no immediate comment on the lawsuits.

A victims' compensation fund established by Congress has paid $6 billion to 2,880 families of those who died in the attacks and more than $1 billion to 2,680 injured victims.

But 41 cases filed on behalf of 42 victims remain pending in federal court in Manhattan because some victims decided to pursue the usual court route rather than accept payouts from the September 11th Victim Compensation Fund of 2001.

Tuesday, August 07, 2007

NYPD Must Release Intelligence Reports on RNC Protesters, Judge Rules

A federal judge yesterday rejected New York City's efforts to prevent the release of nearly 2,000 pages of raw intelligence reports and other documents detailing the Police Department's covert surveillance of protest groups and individual activists before the Republican National Convention in 2004.

In a 20-page ruling, Magistrate Judge James C. Francis IV ordered the disclosure of hundreds of field intelligence reports by undercover investigators who infiltrated and compiled dossiers on protest groups in a huge operation that the police said was needed to head off violence and disruptions at the convention.

But at the behest of the city and with the concurrence of civil liberties lawyers representing plaintiffs swept up in mass arrests during the convention, the judge agreed to the deletion of sensitive information in the documents to protect the identities of undercover officers and confidential informants and to safeguard police investigative methods and the privacy of individuals caught up in investigations.

The city had largely based its bid for nondisclosure on the need to protect those identities and methods, and argued that the public might misinterpret the documents or the news media sensationalize them. But the civil liberties lawyers insisted that the documents — even without the sensitive materials — were needed to show in court that the police had overstepped legal boundaries in arresting, detaining and fingerprinting hundreds of people instead of handing out summonses for minor offenses.

The order was the latest development in the long-running case, which posed thorny questions about the free speech rights of protesters and the means used by law enforcement officials to maintain public order.

It appeared that the plaintiffs, who had denounced the police for trampling on the civil liberties of protesters who were fingerprinted and detained at length for minor offenses, had largely won the day, while the city had achieved a more limited objective.

Christopher Dunn, the associate legal director of the New York Civil Liberties Union, which represents the lead defendants in a barrage of more than 80 lawsuits, said of the judge's ruling: "He's given us everything we asked for. He has redacted the names of undercover agents and the particulars of surveillance techniques. We agreed to that. But he has said the city cannot withhold the information it gathered in these operations." ...

The city and the Police Department have come under intense scrutiny over the surveillance tactics, in which for more than a year before the convention undercover officers traveled to cities across the country, and to Canada and Europe, to conduct covert observations of people who planned to attend. But beyond potential troublemakers, those placed under surveillance included street theater companies, church groups, antiwar activists, environmentalists, and people opposed to the death penalty, globalization and other government policies.

And as the convention unfolded, more than 1,800 people were arrested, mostly for minor violations, and many were herded into pens at a Hudson River pier and fingerprinted instead of being released on summonses or desk appearance tickets, which are more customary for charges that amount to little more than a traffic ticket.

As scores of federal lawsuits challenging the mass arrests on Aug. 31, 2004, were filed in Federal District Court in Manhattan, with plaintiffs claiming wrongful detentions of up to two days and other violations by the police to keep protesters off the streets, the outlines of the extensive covert surveillance operation began to emerge from court records.

In March, The New York Times disclosed details of the sweeping operation, including a sample of raw intelligence documents and summaries of observations from field agents and the police cyberintelligence unit. Some plaintiffs and their lawyers, seeking to bolster their cases, asked the court to disclose the documents. In May, Judge Francis allowed the disclosure of 600 pages of documents relating to security preparations before the convention.

But a second batch of documents, including pictures and reports by undercover agents detailing which protest groups were infiltrated and the results of the surveillance operations, remained in contention. The city argued that disclosure would reveal sources, methods and other information that might compromise current and future investigations, while the plaintiffs contended that the reports would disprove city claims that the protesters planned to engage in violence, and would show that mass arrests had been unnecessary.

In his ruling yesterday, Judge Francis acknowledged that some information in the documents needed to be protected. He himself edited out what he regarded as privileged law enforcement information in many "field intelligence reports" from agents covering confidential sources and techniques. And he did not order the release of documents in which the Republican convention was not mentioned. ...

In addition to the field intelligence reports, two other categories of documents whose contents and even subject matter have never been publicly discussed -- 84 documents that the city contended were privileged in their entirety and 177 that the city agreed to release with its own editing -- were ordered disclosed in part by the judge.

The city, he said, did not explain "why the documents in the first category are privileged, nor does it explain why it is necessary to redact information from documents in the second category," adding: "The court can only guess at why the city believed that they are subject to privilege." ...

"We believe that these documents will disprove the N.Y.P.D.'s claim that demonstrators planned to engage in violence," Mr. Dunn (ACLU) said. "We believe these documents will reveal not only the vast scope of the N.Y.P.D.'s political surveillance operation, but also that there was no need for the Police Department's harsh treatment of protesters."

Monday, August 06, 2007

Some Details on the "Updated" FISA

Here are some questions and answers about the new eavesdropping law and the debate surrounding its adoption:

What will the NSA and other spy agencies be able to do now that they couldn't do before?

Intelligence agencies will no longer need a warrant to collect communications between the United States and overseas, including the conversations of Americans, so long as the intelligence investigation is directed at a person believed to be outside the U.S. The conversation does not have to be about terrorism, just a matter of foreign intelligence interest.

The administration has said its intent is not to collect information on Americans. But critics say intelligence agencies are only required to delete Americans' private information from their records if it is deemed not relevant to the investigation.

The attorney general and the director of national intelligence have four months to submit to the secret national security court guidelines for determining what surveillance can take place without a warrant. The court then has six months to approve those procedures and cannot reject them unless it finds that the government has made a clear error in drawing them up, a legal standard critics say will make it nearly impossible for the executive branch to be denied. Democrats had proposed requiring that the court evaluate the guidelines within 45 days and have a greater role in evaluating the procedures. A little-noticed provision in the new law also suggests that warrantless physical searches of homes and businesses inside the United States may be allowed if the investigation concerns a foreign target of an intelligence investigation, a congressional aide said.

What was the urgency about passing this law before Congress took its August break?

The urgency was twofold. Three weeks ago, intelligence officials told lawmakers they were unable to obtain a "significant portion of what we should be getting" because of a judge's ruling in recent months that limited their ability to intercept conversations between foreigners that were routed through the United States - where a lot of computer equipment that handles Internet communications is located. An intelligence official familiar with the matter said the gap had to do with the time involved in processing a warrant. The disclosure of this intelligence gap coincided with a new intelligence report warning of a heightened terrorist threat to the United States. With Congress heading for its month-long summer recess, lawmakers agreed that a short-term fix was needed.

Democrats felt pressured to address the gap before they left town and were unable to pass a measure requiring more court oversight, as many wanted. So many accepted a broader surveillance measure backed by the White House. This law will only be in effect for the next six months.

Plugging a security gap seems to make sense. What is it about the new law that opponents don't like?

The White House and congressional Democrats agreed on the need to close the gap, but differed on how to do it. Both sides said the law should be clarified to ensure that conversations between foreigners could be monitored without a warrant.

The clash arose on the question of warrantless surveillance of conversations between foreigners and people inside the United States. The administration said that it needed quick access to such conversations, and obtaining a warrant would delay intelligence collection.

Many Democrats, however, said the White House's measure went far beyond what was needed to fix the specific intelligence gap.

They said there should be court oversight of government interception conversations involving Americans, even if technically the spy operation was directed at a foreigner. They also wanted to speed the warrant applications and approval process by giving the government more resources to do so.

Much of what the NSA does is classified. Are there questions about the law and how it will work that are difficult for outsiders to answer?

Yes, the largest question critics have raised is whether the administration will consider itself bound by this law. The Bush administration justified previous warrantless surveillance operations, like the "Terrorist Surveillance Program," on a secret presidential order invoking the president's powers as commander-in-chief.

IRS Fails Social Engineering Test

A new report by the Treasury Department's Inspector General for Tax Administration (TIGTA) gives details of an audit that showed that a majority of IRS employees surrendered sensitive information, including computer log-on passwords, to investigators using social engineering techniques.

Employees Continue to Be Susceptible to Social Engineering Attempts That Could Be Used by Hackers (22 page PDF).

We made 102 telephone calls to IRS employees, including managers and a contractor, and posed as computer support helpdesk representatives. Under this scenario, we asked for each employee’s assistance to correct a computer problem and requested that the employee provide his or her username and temporarily change his or her password to one we suggested. We were able to convince 61 (60 percent) of the 102 employees to comply with our requests. As part of the audit, we also evaluated whether employees contacted appropriate offices to report or validate our test calls. Only 8 of the 102 employees in our sample contacted either the audit team, the Treasury Inspector General for Tax Administration Office of Investigations, or the IRS computer security organization to validate our test as being part of an official Treasury Inspector General for Tax Administration audit.

The above conditions were particularly alarming because we had conducted similar social engineering test telephone calls in August 2001 and December 2004. Our 2001 and 2004 test calls yielded 71 percent and 35 percent noncompliance rates, respectively. In response to these two prior audits, the IRS took corrective actions to raise awareness of password protection requirements and social engineering attempts. However, the corrective actions have not been effective. Based on the results of this audit, we conclude employees either do not fully understand security requirements for password protection or do not place a sufficiently high priority on protecting taxpayer data in their day-to-day work. To better understand employee behavior, we asked the employees in our sample why they did not comply with IRS password security requirements. Some of the notable reasons given were that the employee thought the scenario sounded legitimate and believable, did not think changing his or her password was the same as disclosing the password, or had experienced past computer problems.

When employees are susceptible to social engineering attempts, the IRS is at risk of providing unauthorized persons access to computer resources and taxpayer data. In addition, when attempts at social engineering are not reported to appropriate personnel, the IRS cannot investigate incidents and take action to minimize the effect of a security breach. ...

While our calls were part of an official TIGTA audit, hackers could include a reference to a nonexistent TIGTA audit in an attempt to divert attention from their social engineering attempts, particularly if an employee questions the call.

Saturday, August 04, 2007

California Moves To Prevent Electronic Voting Skullduggery

Expressing concern that several brands of electronic voting machines used in California were vulnerable to tampering, Secretary of State Debra Bowen late Friday ordered new security protections be added and limited the use of two types of machines that were to be used in next year's elections in several Southern California counties.

Bowen also withdrew state approval of the InkaVote Plus machines used in Los Angeles County, saying that the machines' maker, Election Systems and Software, had failed to submit its equipment to her office in time to analyze its vulnerability to hacking.

She said her office would examine the InkaVote machines and expressed optimism that they would win approval in time to be used in next year's elections, but did not say what would happen if the machines failed her tests. ...

Her announcement, made just nine minutes before a midnight deadline, was condemned by the head of the state's county registrar's association, Contra Costa Registrar Stephen Weir.

Weir said Bowen's actions -- along with an unusual audit in which she dispatched several computer experts to try to hack into the machines, which they did -- had undermined public confidence in the security of the new electronic machines. But her solutions, he said, would not do anything to restore the public peace of mind, especially for elections that will occur this year, such as a special Congressional election in Los Angeles in two weeks. ...

Bowen ordered that some machines made by Diebold Election Systems and Sequoia Voting Systems be limited to one per polling place to limit the chances that they could be tampered with. The Sequoia machines are used in Riverside, San Bernardino and Ventura Counties. ...

The security requirements Bowen imposed include: reinstalling the software before the Feb. 5. election to ensure it has not already been tampered with; placing special seals at vulnerable parts of the machines to reveal tampering; securing each machines at the close of each day of early voting; assigning a specific election monitor to safeguard each machine; and conducting a complete manual count of all votes cast. ...

Alan Dechert, president of Open Voting Consortium, and group that is critical of the electronic voting machines, said many activists would be critical that Bowen did not completely decertify those machines. "She's not asking for changes to hardware or software," he said. "This is not really doing much for transparency."

Bowen's actions came on the heels of an audit she released last week. It found that machines manufactured by Diebold Hart and Sequoia-which are used by more than twenty Californian counties--could be compromised either through manipulating the software or physically breaking into the computer hardware.

Friday, August 03, 2007

Misdirection Op

Now we know why the White House has recently gotten its panties all in a bunch to get FISA changed.

A judge has ruled that an important part of the U.S. COMINT program is illegal.

But there is a deception story being floated by the administration involving this "revelation."

A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration's wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president's spying powers.

House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court's decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision. ...

The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA). ...

Gaining access to the foreign communications at issue would allow the NSA to tap into the huge volume of calls, faxes and e-mails that pass from one foreign country to another by way of fiber-optic connections in the United States.

"If you're calling from Germany to Japan or China, it's very possible that the call gets routed through the United States, despite the fact that there are geographically much more direct routes to Asia," said Stephan Beckert of Telegeography Inc. ...

Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.

Do not be fooled by the administration about this. The spying being discussed here is not one of the important aspects of the extra-legal NSA domestic warrantless program that has brought the heat down upon the White House.

Intercepting "foreigner to foreigner while both outside the USA" communications has never required a FISA warrant and is not illegal.

The routing of so much of this traffic through the United States is not just an accident of technology. It is a marriage of convenience. The intelligence community assumed that it would be able to take advantage of their traditional legal ability to spy on foreigners and that building the modern telecom backbone in the USA and using it for international transit traffic would make their lives easier.

A judge obviously thought otherwise.

The politics of this "revelation" is important. The White House is already conflating this matter with the illegal NSA CATCH-ALL program that was exposed by the New York Times in December 2005. Sleight-of-hand always requires something in the decoy hand. Todays news is the decoy.

Thursday, August 02, 2007

Some Things "Have To Ripen in a Certain Way"

I guarantee that if Chiquita had been paying protection to FARC, rather than the right-wing AUC, the ambiguity about the legality of the act wouldn't have been in question.

On April 24, 2003, a board member of Chiquita International Brands disclosed to a top official at the Justice Department that the king of the banana trade was evidently breaking the nation's anti-terrorism laws.

Roderick M. Hills, who had sought the meeting with former law firm colleague Michael Chertoff, explained that Chiquita was paying "protection money" to a Colombian paramilitary group on the U.S. government's list of terrorist organizations. Hills said he knew that such payments were illegal, according to sources and court records, but said that he needed Chertoff's advice.

Chiquita, Hills said, would have to pull out of the country if it could not continue to pay the violent right-wing group to secure its Colombian banana plantations. Chertoff, then assistant attorney general and now secretary of homeland security, affirmed that the payments were illegal but said to wait for more feedback, according to five sources familiar with the meeting.

Justice officials have acknowledged in court papers that an official at the meeting said they understood Chiquita's situation was "complicated," and three of the sources identified that official as Chertoff. They said he promised to get back to the company after conferring with national security advisers and the State Department about the larger ramifications for U.S. interests if the corporate giant pulled out overnight.

Sources close to Chiquita say that Chertoff never did get back to the company or its lawyers. ...

Chiquita's executives left the meeting convinced that the government had not clearly demanded that the payments stop. Federal prosecutors, however, are now weighing whether to charge Hills; Robert Olson, who was then Chiquita's general counsel; former Chiquita CEO Cyrus Friedheim; and other former company officials for approving the illegal payments, according to records and sources close to the probe.

The company has already pleaded guilty to making $1.7 million in payments to the United Self-Defense Forces of Colombia (AUC), and it agreed to pay a $25 million fine. But last week, lawyers for the former Chiquita executives sent letters to the Justice Department, asserting that their clients did not intentionally break the law but believed they were waiting for an answer from the highest levels of the Bush administration. ...

But legal sources on both sides say there was a genuine debate within the Justice Department about the seriousness of the crime of paying AUC. For some high-level administration officials, Chiquita's payments were not aiding an obvious terrorism threat such as al-Qaeda; instead, the cash was going to a violent South American group helping a major U.S. company maintain a stabilizing presence in Colombia.

The prosecution first centered solely on Cincinnati-based Chiquita, the world's largest banana producer and one of its largest food-distribution companies. It has operations in 70 countries and 25,000 employees, and has been in Colombia for more than a century, dating to the days when the company was called United Fruit. [see also 1954 Guatemalan coup d'état]


On April 24 [2003], the company executives met with Justice officials, including Chertoff. They disclosed the payments and Justice officials said they were against the law. Hills said he agreed, but stressed that Chiquita would have to withdraw from the country if it did not pay AUC, and noted this could affect U.S. security interests in that region.

That's when, according to the five sources, Chertoff acknowledged that the matter was complicated, and said that he would get back to them after conferring with other administration officials.

A week later, Hills and Olson told the company board's audit committee that Justice had advised them that there would be "no liability for past conduct" and that there was no "conclusion on continuing the payments," according to a summary of the case filed by the prosecution. The company authorized new payments to AUC starting on May 5.

The astonishing thing about this is that the Justice Department did eventually bring charges against Chiquita. The publicity -- especially in Latin America -- surrounding the controversy is what forced DOJ's hand.

Wednesday, August 01, 2007

DOJ HQ Intervenes in Case, US Attorney Resists Pressure, Gets On Dismissal List

The night before the government secured a guilty plea from the manufacturer of the addictive painkiller OxyContin, a senior Justice Department official called the U.S. attorney handling the case and, at the behest of an executive for the drugmaker, urged him to slow down, the prosecutor told the Senate Judiciary Committee yesterday.

John L. Brownlee, the U.S. attorney in Roanoke, testified that he was at home the evening of Oct. 24 when he received the call on his cellphone from Michael J. Elston, then chief of staff to the deputy attorney general and one of the Justice aides involved in the removal of nine U.S. attorneys last year.

Brownlee settled the case anyway. Eight days later, his name appeared on a list compiled by Elston of prosecutors that officials had suggested be fired.

Brownlee ultimately kept his job. But as Attorney General Alberto R. Gonzales confronts withering criticism over the dismissals, the episode in the OxyContin case provides fresh evidence of efforts by senior officials in the department's headquarters to sway the work of U.S. attorneys' offices. ...

Brownlee said the head of the criminal division had authorized him that afternoon to execute the plea agreement. In his testimony and in an interview afterward, Brownlee recounted that he asked Elston whether he was calling for his boss, Deputy Attorney General Paul J. McNulty, and Elston replied, "No."

"I told him to leave it alone, to go away," Brownlee said, "and he did."

But Elston's attorney, Robert N. Driscoll, said his client had telephoned Brownlee at the direction of McNulty, who that evening had received an appeal for more time by Mary Jo White, a defense lawyer representing an executive for OxyContin's manufacturer, Purdue Pharma. White is a former Manhattan U.S. attorney.

A Justice official, who spoke about internal deliberations on the condition of anonymity, also said McNulty had asked his chief of staff to place the call.

Elston was McNulty's top aide until he stepped down in June amid the controversy over the prosecutors' firings. McNulty also has resigned, effective Friday, becoming the sixth senior aide to Gonzales involved in the controversy to leave the department in recent months.

Brownlee -- who testified that he had not received negative performance reviews -- said that he was "concerned" about his name appearing on the firing list and that he spoke to McNulty about it. "He assured me that Mr. Elston was a good man," Brownlee said. "I had my own views."

In addition to assembling the Nov. 1 list of five prosecutors, including Brownlee, who were recommended for dismissal, Elston also played a controversial role in trying to quell the political uproar after the firings took place. Four of those prosecutors have told Congress that Elston warned them that Gonzales might criticize them in public if they spoke out about the circumstances of their removal.