That the Democrats were supine in letting the FISA (Wiretap) bill rush through with minimal scrutiny is clear. What the bill does, though, I haven't quite figured out to my satisfaction.
It's another couple of degrees towards boiled frog; no, it's mostly sensible; no, it's a blank check for the executive, with meaningless oversight.
It's for six months — or is that a year? — and will, I predict be renewed once.
Emptywheel (Marcy Wheeler) has done a fabulous bit of sleuthing, and posts the results at The Next Hurrah: The Briefing Dates.
The key point is that Congressional leaders were briefed about secret (and IMHO illegal) wiretap programs so long as the administration thought they were legal — but the briefings stopped when they started to have doubts:
For the first two years of the program, the Intelligence Committee leaders were briefed fairly regularly, at least every 6 months. (It was just the Intell leaders at that point, and not the party leaders, because BushCo went on a snit after Richard Shelby leaked the news that the NSA had had an intercept from Al Qaeda before 9/11, and cut back who it briefed even more than normal; finally, though, the leaders rebelled and they began to get briefed on the big secrets too.) And they seemed to be very diligent to make sure that everyone got equal briefing. For example, when Bob Graham missed the March 5, 2002 briefing, he got his own briefing not long thereafter.
The March 10 Meeting
But then, there was an unusually long gap between briefings, from July 17, 2003 to March 10, 2004, a gap of eight months rather than six. If they had followed the previous pattern, they would have done a briefing in January, 2004.
Note, this was right during the period when Jim Comey, Jack Goldsmith, and others, were recognizing that the program was illegal. So they didn't brief Congress on the program when they discovered it was illegal, but rather let it go for two more months, until the day Comey refused to certify its legality, before they bothered to convene. Effectively, rather than warning Congress, they created a crisis, presumably creating more pressure on Congress to approve it.
Effectively, the March 10 meeting was Tom Dashcle's only briefing on the program. Perhaps that's why he forgets the meeting? Wouldn't you think he'd remember it all the more?
Also note, Tom DeLay got his very own personal briefing on March 11, the day the program operated with no legal sanction. Oh to be a fly on the wall at that meeting…
Irregular Briefing
Things get a little sketchy after that. Congress did not receive a briefing after the crisis, so they presumably didn't learn that the program operated illegally (well, maybe DeLay did, but he's kind of fond of illegal activities). Just Pete Hoekstra got a briefing on September 24, 2004, and he presumably got that solely because he had just taken over as Chair of HPSCI after Porter Goss became DCI the day before. Harry Reid had to wait much longer—two months—before he was briefed on the program after becoming Minority Leader in the Senate in 2006. Effectively, though, the program went almost a full year (March 10, 2004 until February 3, 2005) before Congress was briefed on the program that had been found to be operating illegally.
All this has increased salience this week, because basket case Attorney General Gonzales testified that back when he was White House Counsel, he got an OK to proceed with a/the program from the Congressional leaders which led Gonzales and Card to ambush Ashcroft in intensive care.
There's lots more in the original post. Sen. Rockefeller again emerges looking spineless on an intelligence issue. There is evidence for the proposition that Speaker Pelosi is smart as hell.
Today's Herald runs a big scare story on how pedophiles use wifi (sort of like they use telephones, cameras and cars, isn't it?), Wi-Fi helps child porn exchanges thrive.
Along side it is a somewhat more balanced story, Local governments try to balance security, privacy. There are a few interesting quotes, including these:
As the Internet becomes a more common way of accessing medical records, political activity and financial transactions, groups such as the Electronic Frontier Foundation argue that government utilities have no business peeking into their residents' records.
“It's tremendously important that we don't capture or record what websites people are going to,” said Michael Froomkin, a University of Miami law professor and member of both the foundation's advisory board and Alvarez's steering committee.
Stored personal information can be used in a variety of intrusive ways, he said, whether illegally snatched by an unscrupulous employee or legally sold to marketers seeking to target their ads.
Miami Beach hopes to launch wireless service later this year, which — unlike the county's project — will be free to residents and visitors. Software will watch for suspicious activity and track where users are located but not which websites they visit.
“If any such monitoring reveals criminal activity, that could be turned over to authorities, but this is not like Big Brother,” said Miami Beach spokeswoman Nannette Rodriguez.
What is “suspicious activity” and how is it divorced from where you go on the web? And exactly how is that not like Big Brother? Ms. Rodriguez doesn't explain. If it's volume of use — e.g. high volume email that looks like spammning — I could understand it, although even here there are hard issues: for example, without peeking at the content how do you distinguish a phishing scammer from a person running a political campaign?
Pat Gudridge:
I erased this entry on my first try at posting it. Maybe I was right.
The Supreme Court's decision today in Brendlin v. California showed a unanimous Court enforcing the 4th amendment against police on behalf of an individual seemingly seriously involved in the methamphetamine business. How was this possible? The case involved a so-called traffic stop — police pulled over the car in whch Brendlin was riding — as it turned out without any reason for doing so specific to the car, the way it was driven, etc. The specific question at issue was whether Brendlin the passenger had standing to object to the stop — if so, and if the stop was no good, then presumably what the police learned about Brendlin in the course of the stop (not good for him) would become legally irrelevant. Justice Souter and colleagues thought that this was an easy question to resolve.
There are consistent themes to this administration: incompetence, kleptocracy come to mind. But one area where it's shown disturbing competence is the war against the Rule of Law. The Padilla case and the ongoing attempts to keep law and lawyers out of Guantánamo are the most visible aspects of this strategy (ignore the minor bit of tactical posturing today — this is just about trying to avoid losing a lawsuit), but the corruption of the DoJ is part of the piece.
So here's the latest installment: Bush Wants Phone Firms Immune to Privacy Suits. See, those pesky lawyers are trying to get phone companies to obey the law. We can't have that if it gets in the way of our illegal wiretaps!
John Young runs a very useful, important, but edgy (some would say over the edge) service at Cryptome.org, which I wrote about in Cryptome: Often Heroic, but Sometimes Creepy.
Over the years he's had some DMCA notices, and takedown requests passed on from foreign intelligence services, all of which his ISP Verio/NTT has dealt with in what seemed from his account to be a reasonable manner.
Now, all of a sudden and apparently without giving any reason, John Young reports that he's gotten a letter telling him that Cryptome is to be Shutdown by Verio/NTT.
This notice of termination is surprising for Verio has been consistently supportive of freedom of information against those who wish to suppress it. Since 1999 Cryptome has received a number of e-mailed notices from Verio's legal department in response to complaints from a variety of parties, ranging from British intelligence to alleged copyright holders to persons angry that their vices have been exposed (see below). In every case Verio has heretofore accepted Cryptome's explanation for publishing material, and in some cases removal of the material, and service has continued.
In this latest instance there was no notice received from Verio describing the violation of acceptable use to justify termination of service prior to receipt of the certified letter, thus no opportunity to understand or respond to the basis for termination.
It may be wondered if Verio was threatened by an undisclosable means, say by an National Security Letter or by a confidential legal document or by a novel attack not yet aired.
Every few months our Verio service rep, Warren Gleicher, Senior Account Manager, (wgleicher[at]verio.net) writes to see if service is satifactory.
Danna and Warren: Cryptome would appreciate your telling what has led to the termination for publication. Send the information anonymously if necessary to keep your jobs.
At least they gave him two weeks notice, but still — pretty low not even to give a reason.
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