JustOneMinute

They're Not Going To Stop

The NY Times escalates its war on America with its latest revelations about the high-tech capability of the NSA to monitor and data-mine international communications.

Their first wave of coverage if the "Bush Spied" scandal was fizzling out - even Doug Jehl of the Times admitted the obvious on Friday:

Among Those Told of Program, Few Objected

By DOUGLAS JEHL

WASHINGTON, Dec. 22 - As members of Congress seek more information about the eavesdropping program authorized by President Bush, their requests are being complicated by the fact that Congressional leaders in both parties acquiesced in the operation.

Only the Senate Judiciary Committee, under Arlen Specter, Republican of Pennsylvania, has pledged to hold hearings on the program, which was first publicly disclosed a week ago. Democrats are urging that the House and Senate Intelligence Committees conduct inquiries, but the Republicans who control those panels have not agreed to do so.

Some Republicans are suggesting that it is disingenuous to complain now about the eavesdropping effort.

"The record is clear; Congressional leaders at a minimum tacitly supported the program," Representative Peter Hoekstra of Michigan, the chairman of House Intelligence Committee, said this week. Mr. Hoekstra said Democrats should "attempt to understand why their leaders did not feel the same sense of outrage about the program" that some in the party are now expressing.

Rep. Peter Hoekstra had more to say on Fridatafternoon in a radio chat with Mark Levin, sitting in for Sean Hannity - he was briefed twice in 2005, each time with the ranking House Democrat, Jane Harmon, and the two Senators from the SSCI, Chairman Pat Roberts and Sen. Rockefeller.

Rep. Hoekstra said that in each briefing they had ample opportunity to ask questions and gain more insight into the program.  He also said that his impression was that his fellow Congressman were impressed by the results of the program as well as by the legal safeguards intended to protect the privacy rights of Americans.

But that was yesterday.  Today, the Times is releasing even more information about this secret NSA program:

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

And hold your breath for this legal gray area:

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.

...

Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Look - my inner geek is finding this to be very interesting.  But is there any way in the world that the Times can be persuaded that this just might not be in America's best interest, even if it has some slight potential to embarrass Bush?

I only ask as a concerned citizen; as a vicious partisan, I think the NY Times, in combination with the Moore-Streisand wing of the party, is pushing the Dems off a cliff.

What is the Dem message here?  "Oh my gosh, that evil Bush is spying on Al Qaeda and anyone who talks to them - as Democrats, we will never do that!"

Good luck.  Let us know how that works out in '06.

As to stopping the Times - maybe we do need a ruthless investigation of these leaks.  I don't know.  But they are unaccountable and out of control, and they scare me.

Just remember, it was only last week that Risen and Lichtblau wrote this, when the broke the NSA story:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Emphasis added.  Are we expected to believe that Risen and Lichtblau really developed this new story in the last week?  I favor the alternative hypothesis - this is some of the information that, a week ago, was omitted for being useful to terrorists.

Or is the really good stuff coming out next week?  I can't wait.

UPDATE:  Kevin Drum agrees that these revaltions look important:

This is interesting stuff, and it sounds like pretty useful stuff to me, too. This program and this technology might very well be important elements in the fight against al-Qaeda.

However, he then endorses oversight by way of the Ny Times front page:

But that's not the point. The point is that it appears to be illegal, and if George Bush believed it was genuinely critical to our national security he should have asked Congress to pass legislation authorizing it. The president is simply not allowed to decide for himself to break the law simply because it's inconvenient, and the excuse that he couldn't go to Congress because that would expose valuable secrets to al-Qaeda is laughable.

Well.  Where Kevin says "appears to be illegal", I would substitute "appears to be in a legal gray area", which I think more accurately captures the Times reporting.  But what to say, after four years of briefings to Congressional leaders?  Silence of the Lambs?  Silence gives consent?

One supposed advantage of a representative democracy is that various factions, representing competing institutional interests (Executive versus Legislative) or party interests (Republicans versus Democrats) can resolve some issues IN SECRET!  This particular  NSA program appears to be well suited to such a quiet conversation.  And one might have thought, after four years of briefings, that the quiet conversation was underway - Hoekstra apparently was fooled.

Lots more reax at Memeorandum.

Be Careful What You Wish For

On the topic of the NY Times leak of the NSA secret eavesdropping program, Clarice Feldman of The American Thinker notes that "In all probability, gears are turning right now for a criminal investigation leading to a possible a possible felony prosecution".

I agree - the Justice department released a letter today explaining the legal basis for the program, and it contained some pretty strong language (which I will reprint when my computer is de-glitched).

So, after all the drama of the Fitzgerald investigation, is it our official editorial position here at Just One Minute that turnabout is fair play?  Should we toss a few Timesmen in jail, and see what we can learn about the NSA leak?  Should we eagerly await a call from Chuck Schumer for a special prosecutor?

Don't rush me.  As a vengeful partisan, I would welcome an opportunity to ridicule the hypocrisy of the left, which, on the basis of scant evidence beyond the bloviations of  Joe Wilson and David Corn, insisted that the Plame leak was a desperate blow to national security.

However - waaay back when, in the summer of 2003, I noted a possible end game for a Plame investigation, and further noted that, by a large, leaks are a good thing in a free and democratic society.

My guess - the best course for annoyed righties (such as myself) would be to note vigorously the absurd double standard of the Fitzgerald prosecution, keep it in mind as one more justification for the pardon of Libby and others (if necessary), and move on.

UPDATE:  However, if there is tobe an investigation, here is the way to do it - give everyone involved immunity from prosecution for leaking classified info, but keep them open to perjury charges.

Current officials who leaked can lie and risk jail, or 'fess up and resign (which is a reasonable consequense, if this program was so troubling to the leaker - resigning in protest has an honorable history).

Former officials will at least be identified.

MORE:  I am shocked by this, from Howard Fineman:

As best I can tell — and this really isn’t my beat — the only people who knew about the NSA’s new (and now so controversial) warrant-less eavesdropping program early on were Bush, Cheney, NSA chief Michael Hayden, his top deputies, top leaders of the CIA, and lawyers at the Justice Department and the White House counsel’s office hurriedly called in to sprinkle holy water on it.

Huh?  Not even Rice and Rumsfeld not in the loop?  Well, he does say "early on" - it may be that by the time they left, Rand Beers and Richard Clarke were dialed in and available to leak.

As to Fineman's talk of impeachment - the first polls on this will send the Dem leadership scuttling back to wherever they were hiding for the first three years of this program.

Still Time!

Do you think Fitzgerald will meet with his grand jury on Dec 23rd and announce the indictment of Karl Rove?

Will he marshall a quorum in the week between Christmas and New Years to drop the bombshell?

Our guess - Happy New Year, Karl.

And at TradeSports the contract pegged to an indictment by Dec 31 is at about a 6% probability.

An indictment by March 31 2006 is at about 28.

And there is always a lamp in the window for Fitzgerald at Raw Story, but even they aren't breathlessly alerting us to impending freedom from fear.

Slugging It Out On The NSA

Here we go on the "Bush Spied, Then Bush Lied" story:

On the media-bashing front, Gabriel Sherman of the NY Observer has the backstory on how the Times came to publish their scoop when they did.  Yes, it was originally slated to be a pre-election October Surprise, although Dick Morris implies that it might have been Kerry and the Times that were surprised.

E&P has more on Times editor Bill Keller's explanation for their publication decision.  E&P also goes behind the scenes at the Times, getting this from a harried staffer:

"It's one more thing. When are we going to get out from under this or is this a permanent state now?"

Answer - it's one more thing!  And when Nick Kristof finally admits that he has been sitting on an early Woodward style leak about Valerie Plame, well, that will be one more thing, too.

On the legal front, Richard Posner defends Bush in the WaPo; John Schmidt, an associate attorney general under Bill Clinton, defends Bush's expression of Presidential prerogatives in the Chicago Tribune.

The argument offered by Mr. Schmidt is similar to that put up by AG Gonzalez in a press briefing on Dec 19:

Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. We view these authorities as authorities to confront the enemy in which the United States is at war with -- and that is al Qaeda and those who are supporting or affiliated with al Qaeda.

...we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress.  And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.

I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.  Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States.  Signals intelligence is very important for the United States government to know what the enemy is doing, to know what the enemy is about to do. It is a fundamental incident of war, as Justice O'Connor talked about in the Hamdi decision.  We believe that -- and those two authorities exist to allow, permit the United States government to engage in this kind of surveillance.

Now, let's award "Cryptic Comment du Jour" to this:

Q    If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES:  That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program.  And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Emphasis added.  That seems as if it ought to be a clue,but I have no idea what if means.

Now, for a flavor of the legal subtleties, let's excerpt the part of the FISA statute that defines "electronic surveillance".  It is pretty obvious that all sorts of technical issues may prevent the law from applying:

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Points (2) and (4) would exempt intelligence collected overseas.  Point (3) is the requirement that at least of of the parties be a non-US citizen.  The Administration claims it tries to observe this requirement, although the Times notes rare glitches.

Point (1) may be a puzzle.  I would think that if the NSA is specifically targeting a presumed AL Qaeda operative in, for example, Germany, then intercepted calls to the US would be incidental and would not be considered to represent "targeting" of the US citizen.

However, once a contact in the US starts making calls back overseas, are we "targeting" his calls by tracking them? 

On the political side, the Washington Times highlights the spanking administered to Sen. Rockefeller of the Intelligence Committee buy the Chairman, Sen. Roberts.:

Sen. Pat Roberts, Kansas Republican and chairman of the normally apolitical committee, said he was "puzzled" by a letter that Mr. Rockefeller, West Virginia Democrat and vice chairman of the committee, said he sent to Vice President Dick Cheney in 2003 after one such briefing.

"In his letter ... Senator Rockefeller asserts that he had lingering concerns about the program designed to protect the American people from another attack, but was prohibited from doing anything about it," Mr. Roberts said in a statement yesterday. "A United States Senator has significant tools with which to wield power and influence over the executive branch. Feigning helplessness is not one of those tools."

Douglas Jehl of the Times provides a roster of lawmakers who have been briefed on this program:

All told, no more than 14 members of Congress have been briefed about the program since it took effect in 2001, the Congressional officials said.

...Senator Harry Reid, Democrat of Nevada, said this week that he had received only a "single, very short briefing" on the subject this year, after taking over as his party's leader.

...

"When I was briefed on it, you couldn't help but conclude that it would have an impact on Americans," said Representative Peter Hoekstra, Republican of Michigan, the chairman of the House Intelligence Committee.

Mr. Hoekstra said that he was first summoned to one of the sessions in August 2004, after taking over as panel chairman, and that he had attended two others since, with the other leaders of the House and Senate Intelligence Committees.

But Bob Graham, a former Democratic senator from Florida who was chairman of the Intelligence Committee, said his recollection from an initial briefing in late 2001 or early 2002 was that there had been no specific discussion that the program would involve eavesdropping on American citizens.

...Among Democrats, both Senator John D. Rockefeller IV of West Virginia, the senior Democrat on the Senate Intelligence Committee, and Representative Nancy Pelosi of California, the House Democratic leader, have said in recent days that they raised objections to the program in classified letters after first hearing about it.

...

But neither lawmaker sought to block the program legislatively, an option that Republicans who have sought to rebut the Democrats' complaints have said might well have been pursued.

"A United States senator has significant tools with which to wield power and influence over the executive branch," Senator Pat Roberts, the Kansas Republican who heads the Senate Intelligence Committee, said on Tuesday. "Feigning helplessness is not one of those tools."

...

Among other Democrats said by Congressional officials to have received at least one briefing  were Tom Daschle of South Dakota, the former Senate Democratic leader; Richard A. Gephardt of Missouri, the former House Democratic leader; and Representative Jane Harman of California, the senior Democrat on the House Intelligence Committee.

Among Republicans, the group included Senator Bill Frist, the Republican leader; Senator Trent Lott of Mississippi, the former Republican leader; Senator Richard C. Shelby of Alabama, the former chairman of the Senate Intelligence Committee; and Porter J. Goss, the current director of the Central Intelligence Agency and a former chairman of the House Intelligence Committee.

OK, I keep counting 13:

Senator Harry Reid D
Bob Graham, a former D
Senator John D. Rockefeller IV
Representative Nancy Pelosi
Tom Daschle
Richard A. Gephardt
Representative Jane Harman

Representative Peter Hoekstra, R
Senator Pat Roberts, R
Senator Bill Frist
Senator Trent Lott
Senator Richard C. Shelby
Porter J. Goss

Oh, we are missing a House Majority leader...

STILL GOING: Mickey Kaus is cogent and concise on the legal issues.  And he links to a Times editorial which is the opposite.  Here is the Times with a classic example of applying a law-enforcement model in wartime:

In a democracy ruled by laws, investigators identify suspects and prosecutors obtain warrants for searches by showing reasonable cause to a judge, who decides if legal tests were met.

Colleen Rowley, are you getting this?  Patiently follow procedures and the law, and if the buildings come down, well, at least our civil liberties remained standing.

As an aside, to which democracies does the Times refer?  I am not familiar with legal procedures through all the world's democracies, but I bet there are some that would not meet the Times standard.

Here is the ARS Technica guess at the sort of technology we might be talking about.

Woodward - Novak's Source Not In White House

The Harvard Crimson is breaking news - Bob Woodward and Carl Bernstein spoke at the John F. Kennedy Jr. Forum at the Institute of Politics, and then had an on-the-record conversation at an invitation-only inner afterwards.

Woodward on Novak:

“His source was not in the White House, I don’t believe,” Woodward said of Novak over a private dinner at the Institute of Politics on Dec. 5. He did not indicate what information, if any, he had to corroborate the claim.

Woodward on the Administration conspiracy to out Valerie Plame:

Responding to Bernstein’s claim that the release of Plame’s identity was a “calculated leak” by the Bush administration, Woodward said flatly, “I know a lot about this, and you’re wrong.”

The Crimson notes Woodward's hitsory of misdirection in protecting Deep Source, Mark Felt:

Also unclear is how much can be gleaned from Woodward’s comment about Novak’s source. Woodward is widely hailed for protecting the identity of his most famous source, W. Mark Felt or “Deep Throat,” in the decades after Watergate, but he was occasionally misleading in order to protect Felt.

We continue to suspect Richard Armitage, former Deputy Secretary of State, as Woodward's source.

I *Totally* Get This Plame-Wilson Photo

TIME magazine has an odd photo of Valerie Plame coming downstairs in her pajamas while hubby Joe sits on a sofa dressed to the nines.  What does it mean?

Simple - Valerie is confused, vulnerable, and surprised as she comes out from undercover (pajamas, under the covers... oh, forget it).

Joe, on the other hand, is fully prepared for the presence of the photographer.  Why?  Because he outed his wife by advertising his own CIA connection in his NY Times op-ed.  The resulting publicity was no surprise for him.

Odd that TIME would make such an obvious statement.

NSA Eavesdropping - What Did Congress Know?

President Bush claims that Congressional leaders have been briefed roughly a dozen times since the secret NSA eavesdropping program was begun in late 2001.

However, in following up on that the WaPo finds a senior intelligence official, speaking with permission of the White House, practically calling former Sen. Bob Graham a liar:

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.

"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."

Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."

The high-ranking intelligence official, who spoke with White House permission but said he was not authorized to be identified by name, said Graham is "misremembering the briefings," which in fact were "very, very comprehensive." The official declined to describe any of the substance of the meetings, but said they were intended "to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, 'I was briefed on this but I had no idea that -- ' and you can fill in the rest."

By Graham's account, the official said, "it appears that we held a briefing to say that nothing is different . . . . Why would we have a meeting in the vice president's office to talk about a change and then tell the members of Congress there is no change?"

Nancy Pelosi released a baffling statement:

"I was advised of President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities shortly after he made it and have been provided with updates on several occasions.

"The Bush Administration considered these briefings to be notification, not a request for approval. As is my practice whenever I am notified about such intelligence activities, I expressed my strong concerns during these briefings."

She is apparently unwilling to divulge a hint as to just what strong concerns she raised.

Sen. Harry Reid was Senate Minority leader - can we hear from him?  After ducking the question the first time on Fox News Sunday, Harry Reid finally says this:

REID: Listen, the program has been in effect. It's been in effect for four years, according to the New York Times. I was briefed a couple of months ago. The program had been in existence a long time prior to that time.

WALLACE: But I want to ask you directly, Senator, because, you know, you're raising an issue about consultation. Were you ever briefed on it? Did you ever object?      

"A couple of months ago".  Well, I got a haircut a couple of days ago, but that is not the complete history of my hair styling experience.  I wonder if Sen. Reid had received earlier briefings, and whether he pulled a fast one on Chris Wallace.

Sen. Rockefeller, currently the ranking Democrat on the Senate Intel Committee, has not been heard from, although the Times said this:

After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply.

And elsewhere in the story, we see this:

...reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.

Either he made some lucky guesses, or Mr. Rockefeller knew enough about this program to raise some cogent objections.

And Tom Daschle, who was Senate Majority leader when this program was initiated in late 2001, has not been heard from [And now he has!:

Between 2002 and 2004, the White House notified me in classified briefings about NSA programs related to the war on terrorism. The briefers made clear they were not seeking my advice or consent, but were simply informing me about new actions. If subsequent public accounts are accurate, it now also appears the briefers omitted key details, including important information about the scope of the program.

Even with some of the more troublesome - and potentially illegal - details omitted, I still raised significant concern about these actions. As such, I am surprised and disappointed that the White House would now suggest that none of us informed of the program objected.

As a result of the significant legal and security concerns raised by the President's actions, I believe it is incumbent on the President to explain the specific legal justification for his actions, for the Congress to fully investigate these actions, and for the Administration to fully cooperate with that investigation.

"Omitted key details"?  Did they or did they not say they were engaging in warrantless eavesdropping?  Could that possibly be just a "detail"? ]

In related news - Eric Umansky, hardly a reliable running dog for the Right, opines that this program is in a Constitutional gray area.

DefenseTech wants to think outside the box, and wonders if we are not talking about some new technology that is not quite covered by current law and procedures.

And for a trip down memory lane - what was Echelon, and where is it now?

From the WaPo, Nov 13, 1999:

Members of Congress, the European Parliament and civil liberties groups have begun to ask tough questions about the National Security Agency's interception of foreign telephone calls, faxes and electronic mail, the most intense scrutiny of NSA operations since the so-called Church committee probed the spy agency 24 years ago. Beginning with a report written for the 15-nation European Parliament last year, public concern has been building in many countries around Echelon, the code name for a worldwide surveillance network run by the NSA and its partners in Britain, Australia, Canada and New Zealand.

Bobby Inman mentioned it briefly in Slate; here is a 60 Minutes transcript.

MORE:  David Sanger of the NY Times wrote this on Sunday in paragraph eight:

Mr. Bush's public confirmation on Saturday of the existence of one of the country's most secret intelligence programs, which had been known to only a select number of his aides...

On Friday, the Times story included a much wider circle, including Congressional leaders and the judges who oversaw the FISA program.  Now we are down to Bush and a few of his select aides.  By Wednesday, I bet it will be George wearing the headphones while Laura transcribes the tapes.

Let me give you the email addresses for the Stone Wall:

News coverage:  nytnews@nytimes.com
Public Editor:   public@nytimes.com

Yeah, they will be thrilled to hear from you.

UPDATE:  The Times could not find space to cover this, but Byron York of NRO did - here he is on problems with the cumbersome FISA process that Bush was sidestepping.

And here are some articles on a FISA breakdown in 2002:

Secret Court Rebuffs Ashcroft.
Justice Dept. Chided On Misinformation

Statement of Sen. Grassley; FISA court memorandum.

STILL MORE:  Very interesting legal analysis of the situation by Orin Kerr at the Volokh Conspiracy, and even more interesting comments.  The gist of the comments - there may be technical aspects to this that keep it legal.  For example, where the calls are intercepted, who is being targetted at the moment of interception, and who does the intercepting (the US or one of our allies) may all effect the application of FISA.

And here is Sen. Rockefeller's hand-written CYA memo from June 2003.

Media Bias - Groseclose And Milyo

A new study claiming to find media bias is available:

While the editorial page of The Wall Street Journal is conservative, the newspaper's news pages are liberal, even more liberal than The New York Times. The Drudge Report may have a right-wing reputation, but it leans left. Coverage by public television and radio is conservative compared to the rest of the mainstream media. Meanwhile, almost all major media outlets tilt to the left.

These are just a few of the surprising findings from a UCLA-led study, which is believed to be the first successful attempt at objectively quantifying bias in a range of media outlets and ranking them accordingly.

"I suspected that many media outlets would tilt to the left because surveys have shown that reporters tend to vote more Democrat than Republican," said Tim Groseclose, a UCLA political scientist and the study's lead author. "But I was surprised at just how pronounced the distinctions are."

"Overall, the major media outlets are quite moderate compared to members of Congress, but even so, there is a quantifiable and significant bias in that nearly all of them lean to the left," said co‑author Jeffrey Milyo, University of Missouri economist and public policy scholar.

The results appear in the latest issue of the Quarterly Journal of Economics, which will become available in mid-December.

Groseclose and Milyo based their research on a standard gauge of a lawmaker's support for liberal causes. Americans for Democratic Action (ADA) tracks the percentage of times that each lawmaker votes on the liberal side of an issue. Based on these votes, the ADA assigns a numerical score to each lawmaker, where "100" is the most liberal and "0" is the most conservative. After adjustments to compensate for disproportionate representation that the Senate gives to low‑population states and the lack of representation for the District of Columbia, the average ADA score in Congress (50.1) was assumed to represent the political position of the average U.S. voter.

Groseclose and Milyo then directed 21 research assistants — most of them college students — to scour U.S. media coverage of the past 10 years. They tallied the number of times each media outlet referred to think tanks and policy groups, such as the left-leaning NAACP or the right-leaning Heritage Foundation.

Next, they did the same exercise with speeches of U.S. lawmakers. If a media outlet displayed a citation pattern similar to that of a lawmaker, then Groseclose and Milyo's method assigned both a similar ADA score.

An earlier version of a study employing what seems to be the same methodology was licked around in June 2004.

Here is Dr. Milyo's website and a link to the paper.

How Long Is A Year?

I have a few more questions about the Times scoop about the secret NSA eavesdropping.

The Times said they delayed reporting this story at the request of the Administration:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Should we take that literally - was publication originally set for December 2004, appearing just after the election?

Or was this originally slated to be an "October Surprise" hit piece?

And, following the possibility that the story was politically motivated, let's ask about sources, described here as:

"Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program".

Both Richard Clarke and Rand Beers were former Administration officials by the fall of 2004, both were involved with the Kerry campaign, and either or both both may have been in the loop when this eavesdropping program was begun in the fall of 2001.

"I Did The Job You Sent Me To Do"

A combative President Bush spoke on the Patriot Act and the secret NSA eavesdropping program:

You're damn right I ordered the Code Red.

Ooops, that can't be right.  Here we go:

As president, I took an oath to defend the Constitution and I have no greater responsibility than to protect our people, our freedom and our way of life.

On Sept. 11, 2001, our freedom and way of life came under attack by brutal enemies who killed nearly 3,000 innocent Americans. We’re fighting these enemies across the world. Yet in this first war of the 21st century, one of the most critical battlefronts is the home front. And since Sept. 11, we’ve been on the offensive against the terrorists plotting within our borders.

The House of Representatives passed re-authorization of the Patriot Act, yet a minority of senators filibustered to block the renewal of the Patriot Act when it came up for a vote yesterday. That decision is irresponsible and it endangers the lives of our citizens.

The senators who are filibustering must stop their delaying tactics and the Senate must vote to reauthorize the Patriot Act.

In the war on terror we cannot afford to be without this law for a single moment. To fight the war on terror, I’m using authority vested in me by Congress, including the joint authorization for use of military force, which passed overwhelmingly in the first week after Sept. 11. I’m also using constitutional authority vested in me as commander in chief.

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.

Yesterday, the existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have.

And the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies and endangers our country.

News flash - we are still a representative democracy, despite the evident unwillingness of our opposition party to bestir itself.  If this secret program was so outrageous, the Senate and House Democrats who had been briefed on it should have spoken up.  Instead, we get profiles in courage as, per the Times, Reid, Rockefeller, and others are unavailable for comment.

And here is straight talk from Nancy Pelosi:

House Minority Leader Nancy Pelosi, D-Calif., said she had been told on several occasions that Bush had authorized unspecified activities by the National Security Agency, the nation's largest spy agency. She said she had expressed strong concerns at the time, and that Bush's statement Saturday "raises serious questions as to what the activities were and whether the activities were lawful."

Oh, she had expressed strong concerns at the time!  That's why she was asking for Congressional hearings, and sending cryptic letters to the White House and the Justice Department, letters she will no doubt produce in due course.  (No, I can't think of a reason in the world she has not produced them already - maybe her staff has been busy with their holiday shopping).

[Just to be clear - the program was suspended and revamped in 2004 after objections from Sen. Rockefeller.  How did he know so much and she so little?]

What rubbish.  Well, the prize for "Most Annoyingly Hypocritical" still goes to Sen. Feingold, who is Mr. Civil Liberties when it comes to the right of terrorists to make overseas phone calls without government interference, but will slap a lawsuit on anyone who tries to run an ad against him without first climbing a mountain of regulations.  Yeah, he has identified the enemy.

Hmm, possible compromise - maybe Bush could announce that the NSA is trying to track illegal fund raising activity intended to run anonymous attack ads against incumbents.  Sign Russ up!

MORE:  I broadly agree with this:

Retired Adm. Bobby Inman, who led the NSA from 1977 to 1981, said Bush's authorization of the eavesdropping would have been justified in the immediate aftermath of the Sept. 11 attacks "because at that point you couldn't get a court warrant unless you could show probable cause."

"Once the Patriot Act was in place, I am puzzled what was the need to continue outside the court," Inman added. But he said, "If the fact is valid that Congress was notified, there will be no consequences."

I would like to see more reporting as to why the existing procedures were not adequate, and why Bush is still operating on expedited procedures more than three years into this.

UPDATE:  What was a Congressional Dem to do?  Well, Tom Daschle was Senate *Majority* Leader for part of this program, and could easily have insisted on hearing; even in the minority, truly outraged Senate Dems could stall other legislation until their concerns on this program were addressed.  (But wait - Rockefeller's *were* addressed.  Some secret tyranny Bush is running...).

From which I conclude that Senate Dems were not outraged, and that we are being treated to a lot of useless, plotically motivated posturing when there is a real problem to be solved, to wit - what is it about the current procedures that are so cumbersome that we need a permanent emergency work-around?

Bush And The "Secret" Eavesdropping

The NY Times continued its war on America yesterday with its revelation that

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Careful readers of the story will note that this program had some judicial and legislative oversight:

According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.

...The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.

[Big Skip]

After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney's office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.

It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.

That seems reasonably clear.

However, their hand-wringing follow-up on Saturday discussing the legal foundation for this program makes no mention of the fact that Congressional leaders were briefed.

And their "Mission Accomplished" Saturday article discussing the failure of the Senate to extend the Patriot Act buries quite deeply the fact that Congressional leaders were briefed on this program.  However, we are treated to howlers such as this:

Senator Edward M. Kennedy, Democrat of Massachusetts, denounced the program as "Big Brother run amok," while Senator Russell D. Feingold, Democrat of Wisconsin, said the disclosure "ought to send a chill down the spine of every American and every senator."

"You want to talk about abuses?" Mr. Feingold asked. "I can't imagine a more shocking example of an abuse of power, to eavesdrop on American citizens without first getting a court order based on some evidence that they are possibly criminals, terrorists or spies."

"A chill"?  Sen. Feingold ought to ask his fellow Democrats, Senators Reid and Rockefeller, whether their spines are still chilled, or if they have recovered.  Sorry, I leaped to a conclusion there - neither Reid nor Rockefeller were available for comment for the Big Expose piece, so I may be unreasonably optimistic in assuming that they have a spine available for chilling.

David Sanger goes totally off the rails in a Saturday web posting that I assume will be corrected in time for the Sunday print edition.  Here is the start to paragraph six:

Mr. Bush's public confirmation on Saturday of the existence of one of the country's most secret intelligence programs, which had been known to only a select number of his aides, was a rare moment in his presidency.

Down in paragraph seventeen Mr. Sanger does note that President Bush "said Congressional leaders had been repeatedly briefed on the program...".  Thanks for sharing, and caring.

For comparison, the WaPo put the fact of Congressional briefing in the second paragraph, and even attempts to quantify "repeatedly":

The controversial order has been approved by legal authorities in his administration, Bush said, and he added that members of Congress had been notified of it more than a dozen times.

Jeff Goldstein has thoughts; Michelle Malkin has a huge round-up.

My stray thoughts:

(1)  This problematic overlap of foreign and domestic spying reminds me of Able Danger; might there be some other connections between this program and that?

(2) I have no doubt the Administration was very sensitive about sharing NSA programs with Congress after this intel debacle involving NSA intercepts and Senator Shelby (more here).  However, the Shelby leak was June 2002; this NSA program was underway by then - from the Times:

The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

(3) I am obliged to make the obvious Plame connection - the Times sat on this story for a year at the request of Administration officials.  And the WaPo manage to keep to itself the names of the European countries cooperating with the CIA secret prison program, again at the request of senior Admin officials.

But when Bob Novak had the perilous, life threatening, national security imperiling leak about Valerie Plame, all he got was a call back from beleaguered Bill Harlow in the CIA press office.  And even there, Bill did not knock himself out (although he tried harder later when spinning his story:

Harlow, the former CIA spokesman, said in an interview yesterday that he testified last year before a grand jury about conversations he had with Novak at least three days before the column was published. He said he warned Novak, in the strongest terms he was permitted to use without revealing classified information, that Wilson's wife had not authorized the mission and that if he did write about it, her name should not be revealed.

Harlow said that after Novak's call, he checked Plame's status and confirmed that she was an undercover operative. He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame's name should not be used. But he did not tell Novak directly that she was undercover because that was classified.

In a column published Oct. 1, 2003, Novak wrote that the CIA official he spoke to "asked me not to use her name, saying she probably never again will be given a foreign assignment but that exposure of her name might cause 'difficulties' if she travels abroad. He never suggested to me that Wilson's wife or anybody else would be endangered. If he had, I would not have used her name."

Comic emphasis added.  Look, when my son buys new shirts he gets the largest size in the kids section, but I don't tell people he wears the largest shirts.

Too cryptic?  OK, please, PLEASE tell me why Harlow could not have said either of the following:

"Bob, please stay on the line; DCI Tenet will be picking up to explain to you why we would not like to see anything published about Ms, Plame.

Or, "Bob, let me just double-check - your editor is still Steve Huntley of the Sun-Times, yes?  Please ask him to expect a call from DCI Tenet."

That did not happen.  Yet folks within the Adminisatration were able to get results wuth both the CIA secret prison story and the NSA story.  I just wonder why.

Testing... Is This Mike Live?

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Novak And Armitage

This post has some background to earlier speculation that Novak's primary source on the Plame leak was Richard Armitage, former Deputy Secretary of State.  However, the notion that Novak and Woodward shared a source remains a matter of Bob Woodward's speculation (echoed by Novak).  System puzzles prevent me from linking to the relevant post from yesterday.

My gist - Novak and Armitage seem to fit well, professionally anyway.  Checking Novak's archives, Lexis kicks up about nine columns from Jan 1 2001 to July 1 2003 where Novak mentions Armitage by name, each time as a hero of the piece.

By contrast, Stephen Hadley gets zero mentions.  Condi Rice gets about a dozen.

That doesn't mean Novak didn't speak with Hadley off the record.  However, Novak praised Armitage regularly, seemed to use him as a source (just from reading between the lines of some of the columns), shared Armitage's skepticism about the war in Iraq - he would have to be a much friendlier source than Hadley.

Here is a sampler of the Novak columns.  Don't forget Lexis a la Carte, the poor man's version of Lexis - searches are free, documents are $3 each.

(1) Colin Powell driving

Colin Powell, seated in the U.S. delegate's seat at the United Nations, kept a poker face Thursday that concealed justifiable satisfaction as he listened to George W. Bush; Sep 16, 2002

(2) Bush in control

On the plane ride to Prague for last week's NATO summit, President Bush and Secretary of State Colin Powell sat side by side for hours talking about the confrontation with Iraq; Nov 25, 2002

(3) Chris Dodd's vendetta

Venezuela's agony under a leftist demagogue elected by the people has enabled Democratic Sen. Christopher Dodd to revive his vendetta against Assistant Secretary of State Otto Reich; May 2, 2002

(4) Inside Report: Confirmation politics

President-elect Bush's priority of confirming former Sen. John Ashcroft as attorney general is making it harder for Senate Republican leaders to keep opposing Richmond, Va., lawyer Paul Gregory as a...; Jan 6, 2001

MORE:  The emptywheel explains why Armitage is not the leaking type.  In a scenario where State and CIA were battling the neocons, and any whisper about Wilson's wife could only be meant to bash Joe Wilson, this theory makes sense.

However - Woodward described his source as mentioning the Plame connection casually.  When Armitage talks to Woodward, he is talking to history, not tomorrow's headlines.  In that context, Armitage might very well want to talk the CIA down and the State Dept. up.

As to Armitage leaking to Novak - I am baffled that Armitage might have leaked to both (why not tell Fitzgerald initially, or hold Woodward to his promise?).  But a leak to Novak, based on what we see above, would hardly be a shocker.

MORE:  Here is Bob Novak on Meet The Press, June 1, 2003.  The question before the panel - what about the missing WMDs?  (Via Lexis):

MR. NOVAK: Oh, several of the people who are hard-liners in the administration, when the war was still going on inside Iraq, said it was absolutely essential, that we were going to be hugely embarrassed, if they didn't find weapons of mass destruction. So this is a tremendous problem for the Iraqi hawks. You know, however, after the attack on Afghanistan, I wrote a column for the next day, the next Monday, and I talked to a lot of people in the administration who wanted to say, "The next step is Iraq.  We have to hit Iraq." Nobody mentioned weapons of mass destruction. They mentioned the need for a regime change, the brutality, the security of Israel, the general posture of the Middle East. But once Secretary Powell talked the president into going to the U.N., they had to have a better reason, and that's where the weapons of mass destruction came up. You want to call it a pretext? That's a hard word, but that's the difficulty, I think, they have found themselves in.

Whose side was he on, Armitage or Hadley?

Raw Story - They Got The Day Right!

Raw Story correctly reported that yesterday was Wednesday.

The rest of their scoop seems to have vanished - Fitzgerald did not even meet with the grand jury, let alone present the evidence that would result in Rove being led away in chains (Merry Fitzmas!).

But keep hope alive! 

Tomorrow is Friday, a day when this grand jury would normally meet, so we expect Raw Story and Chris Matthews of Hardball to be giddy with expectation tonight.

But if, against all reason, we do not see major multiple indictments of Rove and company on Friday, will Raw Story and Chris Matthews be able to maintain the pretense that the grand jury is meeting and considering indictments the week before Christmas?

Hey, it's possible - maybe Fitzgerald likes to meet with grumpy grand jurors who want to get out and finish their shopping.  But I will Boldly Predict that the grand jury won't be meeting next Friday on Dec 23.

MORE:  Note to Matthews - "Hollywood courage" is boldly standing up to someone (or something) that 99.9% of your peers find objectionable.  Finding the courage to go after Karl Rove would be an example.

Real courage would involve doing something that entailed some personal or professional risk.  Andrea Mitchell, also of NBC, might be the next Bob Woodward, sitting on the news that she was tipped to a Wilson and wife backstory in June 2003 - that would be a real scoop, but going after it would require, hmm, real courage.

Or even reporting on just what it was that Libby was complaining about when he called Russert in July of 2003 would be newsworthy - we all guess Libby called about you, and some of us think it related to an accusation of anti-semitism on your part.  It would take courage to tackle that.

I am not holding my breath.  Happy Holidays.

"The Story Caused A Stir"

John Dickerson of TIME, writing in Slate, tells us that Karl Rove's story about Matt Cooper and the missing email does not make sense - it is simply implausible that Rove could have forgotten this.  (By the way, folks with a better memory that Karl's will recall that Mr. Dickerson had a byline on the July 2003 TIME story that made Matt Cooper famous.)

As to what does or does not make sense, let's pick out a few details from Mr. Dickerson's effort.  Here is his theme:

But wouldn't a man [such as Rove] who has such a busy life filled with so many distractions have been extra careful to examine his memory and his files when the question of who revealed the identity of Joe Wilson's wife started to become an issue? Lots of important people in Washington were asking, and some of them had subpoena power.

You tell me.  Here is his first point:

The first time Rove must have considered the question of whether he'd talked about Joe Wilson and his wife was on July 14, 2003, just three days after he spoke to Cooper. That's when a story appeared by Bob Novak (no relation to Viveca) revealing that Wilson's wife worked at the CIA. A source close to Rove confirmed to me the widely held speculation that Rove was one of Novak's sources. The story caused a stir because it was a tantalizing new detail in the ongoing White House effort to undermine Wilson's report.

Emphasis added.  First, although the story was published on July 14, it went out on the AP wires on Friday, July 11, the same day Rove spoke to Cooper.  Secondly, Rove spoke to Cooper just before leaving on vacation, so he may have missed the July 14 plot twists.

But in any case, the story caused such a stir that there were no questions about it at the White House press briefings for July 14, 15, and 16 (I quit looking there, but feel free to join in.)

And you will have to trust me on this (or see this contemporaneous UPDATE, or the Washington Monthly, or the Free Republic), but when TIME originally published their web-site only story by Cooper, Dickerson, et al, they said this:

Some government officials, noting that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction.

By July 22, TIME was so swept up in the "stir" caused by Novak that they amended their story slightly with a parenthetical insertion:

And some government officials have noted to TIME in interviews, (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction.

If Novak created a stir on July 14, it took a while to reach either the White House briefing room or TIME magazine.

Mr. Dickerson also manages to amuse with this:

Rove's conversation with Cooper hadn't been a negligible interaction in his own mind. It was important enough that he wrote an e-mail message about it. "Matt Cooper called to give me a heads-up that he's got a welfare reform story coming," Rove wrote Stephen J. Hadley, who has since risen to become Bush's national security adviser. "When he finished his brief heads-up he immediately launched into Niger. Isn't this damaging? Hasn't the president been hurt? I didn't take the bait, but I said if I were him I wouldn't get Time far out in front on this."

Mightn't Rove at least have checked to see if the country's top newsmagazine took his advice or not about treating Wilson seriously? (In fact, it didn't. Wilson's claims led to a cover story, but the piece did not say anything about Wilson's wife.)

So let's see - Rove talks to Cooper and mentions Wilson's wife.  That detail is not repeated in the Time cover story, but only runs at the TIME website.  And therefore, the conversation with Cooper should be burned into Rove's brain while he is away on vacation and missing all of this?

Well, the DoJ also forgot to ask about Cooper in their original document request in Sept 2003, so forgetting Matt Cooper seems to have been easy to do.  Left unmentioned [See Note!] in this story is that Matt Cooper had been on TIME's Washington desk only a few weeks, and this was one of his first chats with Karl Rove.  That might make it more memorable for Cooper, but it may have had the opposite effect on Rove.

NOTE:  Ahh, left unmentioned except where he mentions it:

Rove can't reasonably be expected to remember conversations that may have had no special relevance in his mind at the time they took place with a reporter he was talking to for the first time.

OK, a Lewis Libby moment for me.  Unstaged, too.

MORE:  Posting may be a bit cryptic today - I can get into my hosting service at Typepad, but I cannot get my site to load, so I am not at all sure what the rest of you are seeing.  However, I see from the comments and traffic that some folks are getting in to something - very odd.