Bits & Pieces

Your Federal government continues to insist that ISPs should be required to keep records of internet usage by their customers for use in criminal investigations. Think of this a the equivalent of having your geographic location tracked and provided to the government at its request. Compare it to requiring your library to track books you check out, or your local video store being required to provide to the government the videos you rent. (I think that Robert Bork might have something to say about that.)

The FBI claims this merely allows them to continue to do traditional investigation. But that is not the case. It is a blatant invasion of privacy.

John Yoo has a piece in today’s WSJ. I won’t quote it, except to say it is the same old argument, louder and with even less substance. To wit, the President of the US has unlimited power to do anything that the President decides is necessary to protect the country, notwithstanding statutes or even apparent Constitution provisions to the contrary.  In other words, an imperial presidency.

The Anonymous Liberal ably dissects and refutes each section of Yoo’s argument.

In today’s op-ed Yoo finally gets around to a subject that he didn’t bother to mention in his original opinion, the relevance of the Youngstown case. In an almost childish bit of sophistry, Yoo asserts that “Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president’s power involving military strategy or tactics in war.” Needless to say, this is an interpretation of Youngstown shared by precisely no one. Youngstown explicitly involved a conflict between the president’s power to direct the Korean War and Congress. In every case since then, the Supreme Court has applied the Youngstown framework to presidential claims of Article II authority. In the recent Hamdan case, the Court relied on Youngstown in striking down the Bush administration’s military commissions. Suggesting that Youngstown was about a “labor dispute” is like suggesting that Marbury v. Madison was about a judicial appointment. It entirely misses the point of the case. Yoo writes:

Moreover, earlier Justice Departments — reaching across several administrations from both parties — had likewise concluded that Youngstown did not limit the president’s legitimate conduct of foreign affairs and national security policy.

This is just not true. There are undoubtedly some OLC opinions, particularly ones that address the War Powers Resolution, that conclude that some provisions of that Act go beyond even the broad Congressional authority recognized in Youngstown, but no administration (before the Bush administration) ever claimed that FISA was such a statute. And if you’re going make that rather audacious argument, you at least have to discuss and distinguish Youngstown and its progeny, something Yoo did not even attempt to do in his opinion.

According to the New York Times, Dick Cheney personally ordered that a CIA clandestine program be kept secret from Congress for eight years. The investigation of what happened has to occur. This was the program the Leon Pannetta, current CIA director, canceled last month when he first learned of its existence.

The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday.

The report that Mr. Cheney was behind the decision to conceal the still-unidentified program from Congress deepened the mystery surrounding it, suggesting that the Bush administration had put a high priority on the program and its secrecy.

The Bush administration not only invaded the privacy of telecommunications in apparent violation of the Constitution, but the wiretaps were not even partiularly helpful in combatting terrorism.

Most intelligence officials interviewed “had difficulty citing specific instances” when the National Security Agency’s wiretapping program contributed to successes against terrorists, the report said.

While the program obtained information that “had value in some counterterrorism investigations, it generally played a limited role in the F.B.I.’s overall counterterrorism efforts,” the report concluded. The Central Intelligence Agency and other intelligence branches also viewed the program, which allowed eavesdropping without warrants on the international communications of Americans, as a useful tool but could not link it directly to counterterrorism successes, presumably arrests or thwarted plots.

It appears this is was more an exercise in establishing unfettered Presidential power that a serious anti-terrorism tool. And the report warns that the program may have tainted criminal terrorism prosecutions.

The Justice Department IG found that the program played only a “limited role in the FBI’s overall counterterrorism efforts,” but warned that the information collected by the program could have tainted criminal prosecutions. It recommended that the Justice Department look hard to see if there was information collected by that program that should have been or should be turned over to defendants in terrorism cases. By law, prosecutors have to give a defendant all relevant information about their case, including any evidence that helps a defendant prove they are innocent.

It appears that there may finally be some progress on investigation into Bush’s warrantless wiretapping program. There is an unclassified summary written by five inspectors general, according to the Washington Post.

The inspectors general from the Departments of Justice and Defense, as well as the CIA, the NSA and the office of the Director of National Intelligence, said they reviewed thousands of documents and interviewed more than 200 people in connection with the report, including Bush era officials John Negroponte, who served as director of national intelligence, National Security Agency Director Michael V. Hayden, Secretary of Defense Donald Rumsfeld and Attorney General Alberto Gonzales.

But other key figures such as Bush White House Chief of Staff Andrew Card, former Attorney General John D. Ashcroft and former CIA director George Tenet declined interview requests, investigators said. The inspectors general lack the authority to compel them to talk.

Update: Here is a link to the full unclassified report.

Here is an area where far more transparency is needed. As reported in today’s New York Times, the electronic surveillance operations by the NSA continue and are even broader than originally described.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

We are talking here about domestic (not international) intercepts, on a large scale, without warrants. The full extent of the program must be acknowledged, and an analysis of how such warrantless intercepts have been deemed constitutional. If, say, China were doing this to its citizens we would properly condemn the actions. Why the silence here?

More detail:

The recent concerns about N.S.A.’s domestic e-mail collection follow years of unresolved legal and operational concerns within the government over the issue. Current and former officials now say that the tracing of vast amounts of American e-mail traffic was at the heart of a crisis in 2004 at the hospital bedside of John Ashcroft, then the attorney general, as top Justice Department aides staged a near revolt over what they viewed as possibly illegal aspects of the N.S.A.’s surveillance operations.

James Comey, then the deputy attorney general, and his aides were concerned about the collection of “meta-data” of American e-mail messages, which show broad patterns of e-mail traffic by identifying who is e-mailing whom, current and former officials say. Lawyers at the Justice Department believed that the tracing of e-mail messages appeared to violate federal law.

“The controversy was mostly about that issue,” said a former administration official involved in the dispute.

Updated: More from Marc Ambinder.

According to a former Google executive who left in 2004, the thought that the NSA’s data miners could begin ordering them to install a secret pipeline to the agency has many in the company worried. ‘During my time at Google,’ he said, ‘we actually had committee meetings to plan strategy for what to do if the NSA came to us with a demand – and I left kind of in the middle of this. We started making process changes to the way we handled information to make sure that information that the NSA wanted wouldn’t be there. The right thing to do would be to erase everything, but the founders of Google are such information freaks they couldn’t do that. So they wanted to find ways make it so that the NSA couldn’t benefit from [the stored data] but Google could. And by the time I left, they hadn’t located that boundary . . . They were really worried about what would happen if the NSA learned what could be done with information that Google had. And they figured that they only had a couple of years before somebody in the government figured it out.’

- James Bamford, from his book The Shadow Factory (via Quote of the Day mailing list)

Read the sad details here.

[Judge] Walker’s decision (.pdf), if it survives, ends more than three years of litigation accusing the nation’s carriers of funneling Americans’ electronic communications to the Bush administration without warrants in the aftermath of the Sept. 11, 2001 terror attacks. The ruling also means that the public may never know how the Bush White House coaxed the telecoms to participate in the program without court warrants, as the Electronic Frontier Foundation alleged in a lawsuit lodged in federal court here three years ago.

Matt Taibbi succinctly summarizes what is wrong with the Democrats.

Why is the Gitmo decision classic Democratic Party thinking? Because when certain of us said we wanted Gitmo closed, we sort of meant a change in policy – we didn’t mean just physically closing the plant, moving the prisoners elsewhere, and leaving the policies essentially unchanged. This is what this generation of Democrats does every time: every time they come to a fork in the road, they try to take it.

There’s always some sort of semantic twist involved with their policies, an asterisk, some kind of leprechaun trick to get around doing the simple right thing. They’re all for gay rights, and then once the lights come on, they’ve basically codified the closet by ushering in Don’t Ask, Don’t Tell.

They campaign against the war in Iraq, promise to get us out, and say they were against it all along — and then once they get in power, they start using words like eventually and in 4-6 years and once the situation stabilizes. Later it turns out that what they meant by being against the war all along was their conviction that we should have invaded on a Thursday instead of a Tuesday, or some such bullshit.

It is why I could never join that party. I fall more in the libertarian vein, without the blind devotion to economic liberty and low taxes above all other principles and without the belief in Jesus Christ as my personal savior.  But liberty is critical. Wars fought because we have the power to do so without more are wrong (for us and for the countries where we fight). Government intrusion via electronic surveillance in the name of security is wrong. Torture of anyone is wrong. Gitmo was unnecessary and counter-productive. Violations of the Constitution are wrong.

But it is rapidly becoming clear (surprise!) that Obama is in fact a Democrat. As Taibbi concludes:

I still like Obama, in a lot of ways. Having a president with less ability to inspire public confidence at a time like this, with our economy in such a death spiral, would be a disaster; God knows where we’d be right now with a McCain or a Mike Huckabee at the helm. But this guy has to show some stones somewhere along the line. He has to just forget the DC game and just take a clear stand on an issue like this sometime. He’s kind of running out of time to rescue his all-important first impression.

But don’t get me started on the current Republican party either.

In a long-fought case filed by an Islamic charity claiming it had been illegally wiretapped, the Judge seems to have reached the end of his rope regarding government delay and claims of “state secrets” to refuse discovery.

Government lawyers trying to fend off a much-watched warrantless wiretapping case in federal court now face sanctions and the possibility of a judgment that the United States committed illegal surveillance (pdf), following an order filed on Friday by Northern District of California Chief Judge Vaughn Walker (.pdf).

Walker, bringing to a head months of volleying between the government, the plaintiffs and himself, ordered Justice Department lawyers to explain why he should not essentially enter a default judgment against the government for violating the Foreign Intelligence Surveillance Act by spying on the Al-Haramain Islamic Foundation.

The NSA, it turns out, has been intercepting far more email and phone calls than is allowed even under the overly-broad legal authorization they were given by the Bush Administration. Quelle surprise.

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

***

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said.

During the Bush administration, the Republicans (with too much help from the Democrats) greatly increased centralized government power, all in the name of “security.” So now, when the DHS puts out a report warning local police agencies about a growing risk of violence from right-wing fringe groups, the Republican blogosphere goes crazy. Glenn Greenwald asks where their outrage was during the last eight years. The usual trope of the right – if you have done nothing wrong, you have nothing to fear – doesn’t seem to calm them this time.

It’s certainly true that federal police efforts directed at domestic political movements — even ones with a history of inspiring violence in both the distant and recent past — require real vigilance and oversight, and it’s also true that the DHS description of these groups seems excessively broad with the potential for mischief.  But the political faction screeching about the dangers of the DHS is the same one that spent the last eight years vastly expanding the domestic Surveillance State and federal police powers in every area.  DHS — and the still-creepy phrase “homeland security” — became George Bush’s calling card.  The Republicans won the 2002 election by demonizing those who opposed its creation.  All of the enabling legislation underlying this Surveillance State — from the Patriot Act to the Military Commissions Act, from the various FISA “reforms” to massive increases in domestic “counter-Terrorism” programs — are the spawns of the very right-wing movement that today is petrified that this is all being directed at them.

When you cheer on a Surveillance State, you have no grounds to complain when it turns its eyes on you.  If you create a massive and wildly empowered domestic surveillance apparatus, it’s going to monitor and investigate domestic political activity.  That’s its nature.

And Andrew Sullivan has more and points to the PSB video below.

At several points in the last few years, as I gamely tried to convince conservatives that they should be concerned about the scale and scope of the Bush-Cheney surveillance state, the torture program, the claimed presidential right to seize, detain and torture anyone deemed an “enemy combatant”, the avoidance of the FISA law, the suspension of habeas corpus, I was ridiculed as an hysteric. When forced to defend basic civil liberties against a presidency claiming unprecedented war powers within the boundaries of the US and potentially against American citizens, I found only one argument got through. What if Hillary Clinton got this kind of power?

If you ISP is Comcast or AT&T, you should know that they are both working with the RIAA against you. Both companies admit they are beginning to send out warning letters to users who the RIAA believes are downloading pirated content. The warning is that the alleged downloaders might be disconnected from the Internet. All based only on the claims of the RIAA. Outrageous.

In December, the RIAA, the lobbying group of the four largest recording companies, announced the group would no longer pursue an antipiracy strategy that focused on suing individuals, but rather would seek the help of broadband providers to stem the flow of pirated content. The RIAA said an undisclosed number of ISPs had agreed to cooperate but declined to name them. In January, CNET News reported that AT&T and Comcast were among the group.

Sources told CNET on Wednesday that a Comcast executive confirmed that the nation’s second largest ISP is working with the RIAA. At the same Nashville conference where Cicconi spoke, the Comcast exec said the ISP has sent 2 million warning notices to customers accused of infringement by entertainment companies. The sources have also confirmed that Cox is a member. (You can read more about that here: “Comcast, Cox join RIAA antipiracy campaign.”)

While it is difficult to outpace the US in its erosion of civil liberties, one contender for the crown currently held by America must be the UK. Now, its government is proposing that all social networking interaction be recorded and stored indefinitely by the government.

Vernon Coaker the U.K. Home Office security minister, on Monday said the EU Data Retention Directive, under which Internet service providers must store communications data for 12 months, does not go far enough. Communications such as those on social-networking sites and via instant-messaging services could also be monitored, he said.

“Social-networking sites such as MySpace or Bebo are not covered by the directive,” said Coaker, speaking at a meeting of the House of Commons Fourth Delegated Legislation Committee. “That is one reason why the government (is) looking at what we should do about the Intercept(ion) Modernisation Programme, because there are certain aspects of communications which are not covered by the directive.”

And, using language only George Orwell would appreciate while fully understanding, note what the British government.calls the program: Interception Modernisation Programme.  Why not come out and call it what it is: your governmental will store (and access and use against our citizens) all data techncally possible.

The Pet Shop Boys, in a recent concert, suggested that the entire world was turning into China. That is, a free market overseen by a police state. If a pop music team understands this, why does the public look away. We are closing in on this result. Seriously.

Protecting our technology infrastructure is critical. But should a spy agency, one that participated in what is surely illegal wiretapping and which is under the control of the Pentagon, have complete control over that infrastructure? The answer is surely no.

The official in charge of national cybersecurity has just resigned and made clear that excess involvment of the NSA is the reason.

The idea of the NSA taking over governmental cybersecurity efforts is not exactly new: it was discussed by a commission organized by the Center for Strategic and International Studies last fall, and the agency already has some related responsibilities. Last week, Director of National Intelligence Admiral Dennis Blair suggested (PDF) to a House of Representatives committee that the NSA would be an appropriate body to take over cybersecurity efforts, saying “there are some wizards out there at Fort Meade who can do stuff.”

But Beckström warned that would be a mistake and could significantly threaten “our democratic processes…if all top level government network security and monitoring are handled by any one organization.”

More here.