Tuesday, June 05, 2007

Updates on the NSA's (Illicit & Unconscionable) Domestic Surveillance Initiative


1.) NSA Surveillance Program Violated Congressional Notification Law?
2.) Gonzales Contradicts His Sworn Testimony About Bush’s Warrantless Spying Program
3.) What other programs are the NSA geeks runnning?
4.) Comey, Ashcroft and the NSA Wiretapping Program
NSA Surveillance Program Violated Congressional Notification Law?
By Luke O'Brien
June 05, 2007

The Bush administration may have broken a law requiring broader congressional notification of intelligence activities when it authorized an NSA warrantless wiretapping program that snooped on American citizens after 9/11. The Hill reports today that Democrats are beginning to make noise over the White House's decision to limit its disclosure of the NSA program to the "gang of eight" -- the leaders of both parties from the House and the Senate and the chairs and ranking members of the intelligence committees in both houses of Congress.

For four years, only this small group of lawmakers was aware of the NSA program, which bypassed the Foreign Intelligence Surveillance Court in spying on Americans (with the help of major telecoms). But the program may have circumvented a 1991 law that allows the administration to limit disclosure of its snooping only in highly sensitive cases involving covert activity overseas, not in instances of foreign or domestic intelligence gathering. Under the law, passed after the Iran-Contra scandal to give Congress better oversight of the executive branch, intelligence gathering must be reported to the full intelligence committees of the House and the Senate.

A Congressional Research Service report (.pdf) last year reaffirmed the conditions under which the president can withhold information from Congress and said that "the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute."


Gonzales Contradicts His Sworn Testimony About Bush’s Warrantless Spying Program

Think Progress Web Site

Attorney General Alberto Gonzales directly contradicted his 2006 sworn testimony about the NSA domestic surveillance program during a press conference today.

Recall, last month, Deputy Attorney General James Comey revealed in sworn testimony that there had been significant dissent within the Justice Department surrounding the Bush administration’s warrantless domestic spying program. Comey revealed that the deep doubts about the program’s “legality and oversight” almost led to the resignations of Attorney General John Ashcroft, FBI Director Robert Mueller, and others.

Comey’s disturbing account contradicted Alberto Gonzales’ sworn testimony before Congress in 2006. He said at the time:

GONZALES: Senator, here is a response that I feel that I can give with respect to recent speculation or stories about disagreements. There has not been any serious disagreement, including — and I think this is accurate — there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into. I will also say –

Last month, Gonzales refused to retract his original testimony, raising “fresh questions about the nature of the classified dispute” to which Comey referred. Center for American Progress senior fellow Peter Swire noted that Gonzales’ refusal to revise his testimony either confirmed that Gonzales had “made serious misstatements under oath” or that senior Justice Department officials were, in effect, “confirming that other ‘programs’ exist for domestic spying.”

Today, Gonzales appeared to resolve the question. He confirmed that both he and Comey were referring to the same domestic spying program:

QUESTION: Mr. Attorney General, last month, Jim Comey testified about a visit you and Andy Card made to John Ashcroft’s hospital bed. Can you tell us your side of the story? Why were you there? And did Mr. Comey testify truthfully about it? Did he remember it correctly?

GONZALES: Mr. Comey’s testimony related to a highly classified program which the president confirmed to the American people sometime ago. And, because it’s a highly classified program, I’m not going to comment on his testimony.

Gonzales’ confirmation that he and Comey were in fact referring to the same NSA warrantless wiretapping program raises fresh questions about his credibility. Assuming Gonzales is now telling the truth, his original claim that there was no “serious disagreement” about the program should be viewed as a brazen effort to mislead Congress about the depth and seriousness of the legal controversy surrounding the spying program.

– Ryan Powers
What other programs are the NSA geeks runnning?
By fazzaz31

Pundits worldwide are wondering just what other programs the NSA might have running, other than the single one Attorney General Gonzales was so adamant about keeping the intelligence committee focused on.

Before we can elucidate further, we need to know a little about how the NSA works. In a nutshell, the manner in which it works is also the reason why what they do is illegal within our national borders, and why Ashcroft said no to that warrantless wiretapping program.

The Agency's mission

Pay attention now: NSA is chartered by the National Security Act of 1947 (as amended)[1] to conduct foreign military sigint only, but may assist civilian law enforcement officials thus:

NSA of 1947, ASSISTANCE TO UNITED STATES LAW ENFORCEMENT AGENCIES, SEC. 105A.. [50 U.S.C. 403-5a] (a) AUTHORITY TO PROVIDE ASSISTANCE. - Subject to subsection (b), elements of the intelligence community may, upon the request of a United States law enforcement agency, collect information outside the United States about individuals who are not United States persons. Such elements may collect such information notwithstanding that the law enforcement agency intends to use the information collected for purposes of a law enforcement investigation or counterintelligence investigation.

Again: "outside the United States" and, "individuals who are not United States persons."

Broadly speaking, NSA has two jobs: 1) intercept foreign military communications, and 2) decipher code. They are really good at both jobs. FISA was later specifically crafted to allow them to listen domestically when the origination point was either domestic or foreign, as long as there was some foreign node involved, but only with a warrant, eg, a FISA warrant. Notwithstanding FISA, there is no mention in NSA 1947 (as amended and published as of this morning) of any amendment redirecting their exclusive targets as being foreign only, or including US persons.

Comey, Ashcroft and the NSA Wiretapping Program
Posted on: May 17, 2007
by Ed Brayton

The Senate Judiciary Committee held a remarkable hearing this week with testimony from former Deputy Attorney General James Comey (he was deputy under Ashcroft and resigned after Ashcroft did, but was universally respected and viewed as politically independent). Comey gave rather remarkable testimony about what happened on March 10, 2004 in regard to DOJ approval for that program. I'm not going to quote the whole thing, but I'm going to tell the story he told.

Apparently, the DOJ had to evaluate the NSA wiretapping progam and sign off on its legality, which they did originally when the program first came about. The deadline for reapproval was March 11, 2004 and the DOJ had been working for several weeks evaluating the program. Both Comey and Ashcroft, along with other senior DOJ officials, determined that the program had gone off the tracks and had begun to operate in a way that was unconstitutional. Comey and Ashcroft had a meeting about a week before that and determined that they could not approve the program as it was being run.

Within a few hours of that meeting, Ashcroft became very sick and was hospitalized, where he would remain for quite some time. Comey took over as acting attorney general in his absence. Comey told the White House that the DOJ would not sign off on the program as it was being run, but they weren't taking that answer. They wanted Ashcroft to overrule it, so they went to the hospital on March 10th to try and get him to sign it. And I'll quote this part directly because it reads like something out of a movie almost:

The next day was Wednesday, March the 10th, the night of the hospital incident. And I was headed home at about 8 o'clock that evening, my security detail was driving me. And I remember exactly where I was -- on Constitution Avenue -- and got a call from Attorney General Ashcroft's chief of staff telling me that he had gotten a call...from Mrs. Ashcroft from the hospital. She had banned all visitors and all phone calls. So I hadn't seen him or talked to him because he was very ill. And Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.

So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and -- with whom I'd been discussing this particular matter and had been a great help to me over that week -- and told him what was happening. He said, "I'll meet you at the hospital right now." Told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital. I got out of the car and ran up -- literally ran up the stairs with my security detail.

I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that...

And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn't clear to me that he could. He seemed pretty bad off.

I tried to see if I could help him get oriented. As I said, it wasn't clear that I had succeeded. I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room. I was shortly joined by the head of the Office of Legal Counsel assistant attorney general, Jack Goldsmith, and a senior staffer of mine who had worked on this matter, an associate deputy attorney general. So the three of us Justice Department people went in the room.

I sat down...in an armchair by the head of the attorney general's bed. The two other Justice Department people stood behind me. And Mrs. Ashcroft stood by the bed holding her husband's arm. And we waited. And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there -- to seek his approval for a matter, and explained what the matter was -- which I will not do. And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, "But that doesn't matter, because I'm not the attorney general."

And as he laid back down, he said, "But that doesn't matter, because I'm not the attorney general. There is the attorney general," and he pointed to me, and I was just to his left.

The two men did not acknowledge me. They turned and walked from the room. And within just a few moments after that, Director Mueller arrived. I told him quickly what had happened. He had a brief -- a memorable brief exchange with the attorney general and then we went outside in the hallway.

A little while later, he got a call from Andrew Card, then the White House Chief of Staff and was summoned to the White House. Comey told them that he would not meet with them without a witness and he called Ted Olson, who was then the Solicitor General (#3 man in the DOJ) to go with him. They met with other senior DOJ officials before going to the White House. Comey didn't come out and say this, but if you read between the lines it looks like most of the senior DOJ staff was threatening to resign over it.

So the White House went ahead and reauthorized the NSA program without DOJ approval the next day, at which point Comey prepared a letter of resignation. And here's the stunning part - apparently, Ashcroft was going to resign too. Ashcroft's chief of staff asked Comey to wait on his resignation so that Ashcroft could resign with him. He agreed to do so.

At that point, things get a little confusing. Comey says he met with Bush privately, as did FBI Director Mueller, and that Bush told them to do what they thought was right and what was necessary to get the program on a legal footing. But Comey doesn't come out and say that anything about the program was changed. Still, he ended up not resigning, so one would assume that his legal concerns were assuaged somehow because he was quite insistent that he would not continue if the White House went ahead with the program without DOJ approval and that neither he nor Ashcroft would approve it as constituted at the time. As Orin Kerr put it at the Volokh Conspiracy, "It sounds like the President personally either gave in or reached a compromise with Comey (it's not clear to me which) that refashioned the program in a way that DOJ was willing to approve."

There are two appalling parts to this story. The first is the incredibly callous behavior of Card and Gonzales, going to the hospital to get Ashcroft to sign off on a program they had already determined was not operating legally. The second is the White House reauthorizing the program that their own DOJ said was not legal. Though Comey was clear to say that the DOJ's approval was not required by law, when your own DOJ officials, including their ideological compatriots in Ashcroft and Olson, say that the program is operating illegally and you ignore them and reauthorize it anyway, there's something rotten in Denmark.