The Coming National Surveillance State

Yesterday's Republican filibuster of the stimulus package had a second effect; it continued to hold up passage of any FISA bill to push Democrats up against the wall and raise the booga-booga factor to get them to submit to the will of Lord 24% George Bush.

Legislation to overhaul the Foreign Intelligence Surveillance Act remained stalled in the Senate Tuesday, held hostage by a partisan clash over procedures for consideration of an unrelated economic stimulus package.

A frustrated Majority Leader Harry Reid , D-Nev., complained that Republicans were blocking his efforts to schedule votes on proposed amendments to the bill (S 2248). He questioned Minority Leader Mitch McConnell ’s commitment to the legislation, saying Republicans have declined to allow FISA to move forward.

“The Orwellian Bush administration has now slopped over into the Senate, and now the Republican leader is now becoming Orwellian himself,” Reid said. “They want to stall the FISA legislation as long as they can, and they’ve done a pretty good job, because they want this legislation to be completed at the last minute, to give the House and the Senate conferees little time to work on this.”

That lurch forward is still lurching, however, and yesterday we saw Ben Cardin's amendment to sunset the bill in 4 years instead of 5 go down to defeat, even though it had majority support in the chamber. Due to the pre-arranged rules, it needed 60 votes. It received 49 (to 46 no votes). And we'll keep seeing that, as every amendment to the bad Intelligence Committee bill, which includes amnesty for the phone companies, will be unable to make it over the bar set by Senate rules. As if to certify this, the President sent a little whiny note over to the Senate yesterday, warning that he would veto any effort to change the Intelligence Committee bill.

As emptywheel points out, the opposition to any and all amnesty amendments is a give, but particularly telling is the administration's focus on Feingold's amendments that limit the way the government uses this "foreign surveillance" to spy on Americans. None of these amendments (3979, 3913, 3915) would restrict collection of data of foreign persons--they each protect the privacy of people in the U.S. They are hellbent on spying on us. Emptywheel:

"We've been talking about this FISA stuff for almost a year now. All this time, the Administration has claimed that it was only interested in wiretapping foreign circuits that transited the US. But that's obviously just the start of what they insist on doing with this law.

They want to be able to spy on communications between the US and other countries without having to protect US person data through minimization or adequate targeting procedures. George Bush is basically trying to legalize his illegal spying program, all with the willing assistance of the US Congress."

It's really worse than that, and you have to look on this with a real sense of dread. Jay Rockefeller, in a series of statements on the floor of the Senate, is essentially advocating for the illegal spying of Americans, and worse, is intimating that drift nets will be legalized.

Rockefeller makes clear that the impending changes to the law aren't about making it easier for the National Security Agency to listen in on a particular terrorism suspect's phone calls. Instead, the changes are about letting the nation's spooks secretly and unilaterally install filters inside America's phone and internet infrastructure.
Rockefeller, the chief Democratic architect of the changes, explains:

"Unlike traditional [Foreign Intelligence Surveillance Act] application orders which involve collection on one individual target, the new FISA provisions create a system of collection. The courts role in this system of collection is not to consider probable cause on individual targets but to ensure that procedures used to collect intelligence are adequate. The courts' determination of the adequacy of procedures therefore impacts all electronic communications gathered under the new mechanisms, even if it involves thousands of targets."

In short, the changes legalize Room 641A, the secret spying room inside AT&T's San Francisco internet switching center that was outed by former AT&T employee Mark Klein. That room sits at the center of a lawsuit against AT&T for its alleged illegal participation in the government's secret, warrantless spying program.

This bulk data collection by the nation's spy agencies would have almost no oversight and no checks. This is a surveillance state that these clowns are attempting to legalize, a manifestation of Big Brother.

Progressives are vowing to oppose any and all efforts at telecom immunity, but the other surveillance techniques in the bill are almost worse. And there is a deliberate attempt to give as little time as possible to their consideration.

This is disgusting.

Cover-Up

There's one man in America most qualified to answer questions about warrantless wiretapping and this push for telecom immunity. His name is Mark Klein. He worked for AT&T when he discovered a secret NSA surveillance room on Folsom Street in San Francisco. He has clearly and succinctly explained why telecom immunity would be a great tragedy for this country.

Klein explained why he traveled all the way from San Francisco to lobby Senators about the issue: if the immunity provision passes, Americans may never know how extensive the surveillance program was -- or how deeply their privacy may have been invaded.

"The president has not presented this truthfully," said Klein, a 62-year old retiree. "He said it was about a few people making calls to the Mideast. But I know this physical equipment. It copies everything. There's no selection of anything, at all -- the splitter copies entire data streams from the internet, phone conversations, e-mail, web-browsing. Everything." [...]

Its very location in San Francisco suggests that the program was "massively domestic" in its focus, he said. "If they really meant what they say about only wanting international stuff, you wouldn't want it in San Francisco or Atlanta. You'd want to be closer to the border where the lines come in from the ocean so you pick up international calls. You only do it in San Francisco if you want domestic stuff. The location of this stuff contradicts their story."

We still don't know, nearly two years after the initial revelations, the extent to which Americans have been spied upon by their own government. And without allowing the legal process to move forward, we'll never know. What's already in the public domain is shocking.

Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order [...]

However, in February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.

A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.

Uh, OK, it was only "hackers" you were interested in. I see. And regardless, it's still an illegal action. Their excuse was that they were only tracking "metadata" like the phone number or the length of a call, and that's not technically an invasion of privacy. As emptywheel notes, there's a ring of familiarity there.

This excuse sounds precisely like public denials about the program Hayden made after the NYT revealed the problem with the program involved data mining [...]

In January, 2006, Gen. Michael Hayden: Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.

This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda.


GEN. HAYDEN: You know, I tried to make this as clear as I could in prepared remarks. I said this isn't a drift net, all right? I said we're not there sucking up coms and then using some of these magically alleged keyword searches -- "Did he say 'jihad'?

In other words, faced with the anonymous description that the problem with the warrantless wiretap program had to do with data mining, Hayden neatly parsed that it couldn't be data mining because they didn't "[suck] up coms and then [use] some of those magically alleged keyword searches." Hayden denied that they had mined content, but he stopped well short of saying that they hadn't mined metadata.

Which strongly suggests that Michael Hayden was well aware that the NSA was mining metadata, long before 9/11.

Mr. Klein and Chris Dodd sat down for an interview, and it left the Senator more convinced than ever that this would be a grave injustice and legal travesty to grant retroactive immunity. The Judiciary Committee marks up this bill TOMORROW. It's time to contact anyone and everyone on that committee and tell them that the deceptions and lawbreaking of the Bush Administration cannot be allowed to vanish from history. They cannot put telecom companies above the law.

Wiretapping Update: House of Cards Crumbling

When we last left our story, we discovered that the NSA was seeking phone records for massive data mining well before 9/11. That's been corroborated by other lawsuits and filings.

...in May 2006, a lawsuit filed against Verizon for allegedly turning over call records to the NSA alleged that AT&T began building a spying facility for the NSA just days after President Bush was inaugurated. That lawsuit is one of 50 that were consolidated and moved to a San Francisco federal district court, where the suits sit in limbo waiting for the 9th Circuit Appeals court to decide whether the suits can proceed without endangering national security [...]

But Mayer and Nacchio may not even be the only two arguing that the NSA started a program of collecting Americans' phone records before 9/11.

In a January 2006 Slate article that came out before the USA Today totally blew open the call records story in May 2006, Tim Naftali and THREAT LEVEL pal Shane Harris reported:

"A former telecom executive told us that efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source, who asked not to be identified so as not to out his former company, reports that the NSA approached U.S. carriers and asked for their cooperation in a "data-mining" operation, which might eventually cull "millions" of individual calls and emails."

Now, this is specifically about data mining, taking in millions of calls and emails. There is no mention of actual access to the calls themselves until after 9/11. But clearly, the White House was ramping up for some kind of surveillance almost immediately, perhaps data mining from supposedly international sources which are routed through the United States. Today, it was revealed that Verizon executives have been giving up phone records on hundreds of occasions since 2005, an illegal act, by the way.

The company said it does not determine the requests' legality or necessity because to do so would slow efforts to save lives in criminal investigations.

The words "good" and "German" come to mind.

Verizon also disclosed that the FBI, using administrative subpoenas, sought information identifying not just a person making a call, but all the people that customer called, as well as the people those people called. Verizon does not keep data on this "two-generation community of interest" for customers, but the request highlights the broad reach of the government's quest for data.

The disclosures, in a letter from Verizon to three Democrats on the House Energy and Commerce Committee investigating the carriers' participation in government surveillance programs, demonstrated the willingness of telecom companies to comply with government requests for data, even, at times, without traditional legal supporting documents. The committee members also got letters from AT&T and Qwest Communications International, but those letters did not provide details on customer data given to the government. None of the three carriers gave details on any classified government surveillance program.

Verizon detailed 720 of these "emergency requests" from government agencies, and other telecoms may have detailed even more if they weren't barred by the Director of National Intelligence, who invoked the state secrets privilege.

We're getting a fairly clear picture of near-constant collaboration between spying agencies and corporate telecommunications firms, in a manner where the telecoms are almost an arm of the government, in rampant violation of the Fourth Amendment. Yet Fred Hiatt, in his infinite wisdom, sees nothing wrong.

Let's leave to the side Hiatt's inane claim that these telecoms, in actively enabling the Bush administration to spy on their customers in violation of the law, were motivated by the pure and upstanding desire to be "patriotic corporate citizens" -- rather than, say, the desire to obtain extremely lucrative government contracts which would likely have been unavailable had they refused to break the law. Leave to the side the fact that actual "patriotism" would have led these telecoms to adhere to the surveillance and privacy laws enacted by the American people through their Congress in accordance with the U.S. Constitution -- as a handful of actual patriotic telecoms apparently did -- rather than submit to the illegal demands of the President [...]

There is no such thing as a "patriotism exception" to the laws that we pass. It is not a defense to illegal behavior to say that one violated the law for "patriotic" reasons. That was Oliver North's defense to Congress when he proudly admitted breaking multiple federal laws. And it is the same "defense" that people like North have been making to justify Bush's violations of our surveillance laws -- what we call "felonies" -- in spying on Americans without warrants.

By definition, the "rule of law" does not exist if government officials and entities with influential Beltway lobbyists can run around breaking the law whenever they decide that there are good reasons for doing so. The bedrock principle of the "rule of law" is that the law applies equally to everyone, even to those who occupy Important Positions in Fred Hiatt's social, economic and political circles and who therefore act with the most elevated of motives.

Indeed, we already know that the federal government is willing to lie about intelligence failures, blaming them on restrictive wiretap laws, and they're willing to use their lapdogs in the media to exploit the same intelligence failures to push for this opportunity. We're not dealing with honest brokers, and therefore you must call into question their agenda for wanting these spying powers. The Fred Hiatts of the world would rather reward and facilitate lawbreaking than defend the Constitution. Again, those words "good" and "German" come to mind.

UPDATE: John Conyers has some questions.

Your Liberal Media

We've just come through a week where the Attorney General outright lied to Congress, where Senate leaders called for a special prosecutor to investigate him on charges of perjury, where even the New York Times has called for Abu G's impeachment if the Solicitor General fails to appoint a special prosecutor, where two members of the executive branch have been found in contempt of Congress, where Iraq appears to be slipping into a deep political crisis and a potential fracturing, to the extent that Nouri al-Maliki may be ready to demand Gen. Petraeus' ouster, where new evidence shows that Pat Tillman may have been killed for his political views, where this morning's paper brings us news of massive data mining on a scale that has yet to be disclosed:

To put this into perspective, remember that the White House has been willing to go to the public and make a positive argument for certain surveillance procedures (notably evasion of the FISA Court strictures) which appear to be illegal on their face. This must be much more serious and apparently something all but the most ravenous Bush authoritarians would never accept. It is supposedly no longer even happening and hasn't been for a few years. So disclosing it could not jeopardize a program. The only reason that suggests itself is that the political and legal consequences of disclosure are too grave to allow.

...with all of this stuff going on, Meet the Press had on this panel of the punditocracy...

NBC's "Meet the Press'' - Dan Balz and Eugene Robinson of The Washington Post, Andrea Mitchell and Chuck Todd of NBC News, Ron Brownstein of The Los Angeles Times and John Harwood of CNBC.

...and spent at least the first half-hour on the Hillary/Obama spat. Now, I've written about that too, but clearly it's not the only thing that's happened this week. Tim Russert opened the report with "what a week this has been!!!" and he looked almost ready to fall off his chair, hyperventilating at the prospect of getting to talk about Hillary for the next 18 months.

These are the least serious people in America, who are passing themselves off as the most serious people.

UPDATE: I also saw this Cokie Roberts/David Gergen exchange where Cokie, the ultimate concern troll, warns against Democrats moving leftward because "that is going to be a biiiiig problem for them 'just like it was in Vietnam.'" This is typical bias from the Washington Elites, who live in a total bubble and have no idea what the mood in the nation is like. Fareed Zakaria, who must get out more, first of all corrected that "way to the left" is not where any of the likely 2008 Democratic nominees are, and furthermore, distance from Mr. 28% Bush is unbelievably popular in the country. Digby says it best:

Roberts and Gergen are exalted Village elders. Roberts is supposedly a representative of "Democratic centrists" and Gergen a representative of "Republican centrists" but they are both really representatives of the establishment that represents the interests and prejudices of The Village. "The people" are abstract concepts they use in various ways to bolster their central argument that power is best left in the hands of "sensible" elders like themselves. When the people "speak" they are either "Real Americans" asserting their desire that sensible elders lead us out of the wilderness or dirty hippies who want to take the country into perdition.

If we do nothing else, we should ensure that the Democratic candidates pay no attention to these gasbags. That's not to say they shouldn't pay attention to the actual press narratives and the stereotypes that will inevitably emerge. But the punditocrisy should be shunned and ignored. They are promoting their own interests and those interests are always hostile to Democrats, who by dint of their more diverse coalition of Americans, are simply not as willing to bow down to the establishment. They are effectively agents of the Republican party simply because that is the party of authoritarian followers who will put their trust in the elite village elders. Democrats will never win by catering to them. Indeed, it is in our best interest to treat them as the hostile force they are --- it certainly didn't help to try to appease them with "centrism" as the last 20 years have proven in spades. Look at what they and the Republicans have done.