Fisa on The Huffington Post

Mark Dorlester: Good News for Civil Libertarians?

2009-12-07T17:48:10Z

Good news for civil libertarians ... well, at least the possibility of good news. Ironically, the root of the good news is that Congress sometimes has great difficulty getting things done.

It seems that, although several of the most controversial and draconian provisions of the Patriot Act and the Foreign Intelligence Surveillance Act (FISA) will expire December 31 unless renewed, Congress has been unable to get it's work done on time. Often in such a circumstance Congress simply throws up its hands and reauthorizes existing law as-is.

(If you wish to review Patriot Act/FISA background, see my previous article in Huffington Post.)

Congress has agonized for years over certain controversial provisions of the Patriot Act and FISA. Immediately after 9/11, amid the national terror, humiliation, and panic, Congress enacted the Patriot Act and changes to the 1978 FISA law enabling the executive branch to largely bypass normal judicial review of such things as phone taps and search warrants. Instead, the new laws allowed investigators to issue "National Security Letters" - search warrants - strictly on the basis of the investigator's suspicion, without probable cause, and with no judicial review.

Further, the executive branch empowered itself to search your home, business, financial records, and more without your knowledge - and also empowered itself to send you to prison if you found out about the search and told anyone.

Perhaps all that was understandable, if unconstitutional, as the dust was literally settling in lower Manhattan. But in the 8 years since, Congress has reauthorized and in some cases actually expanded many parts of these draconian laws. Among the long list of additional controversies was the grant of retroactive immunity to telecom companies who cooperated with the wholesale interception of your phone and intenet communications, even if they suspected their cooperation might not be legal.

Each time, Congress has included "sunset" provisions which require that the offending parts of the laws must expire unless renewed at a later date. This at least forces Congress to reconsider their actions several years later. This is one of those "sunset" years.

The House and Senate Judiciary Committees (HJC/SJC) have held hearings and approved somewhat different bills for further consideration - in the House by other House committees and in the Senate by the full chamber. Neither the House or Senate bill restores the full set of constitutional invasions these laws perpetuate, but the House bill (H. R. 3845) at least puts some additional restraints on the National Security Letters, substantially improves reporting, oversight, and audit requirements, and entirely scraps the outrageous "lone wolf" continuous tracking provision. Generally, civil liberties groups much prefer H. R. 3845 to the weaker Senate bill, S. 1692.

Normally, the House and Senate bills would eventually reach a House-Senate Conference where differences would be resolved; the unified bill then would be passed by both houses, and the President would sign it. But with so much on Congress' agenda between now and the scheduled December 18 recess, time has run out.

But, rather than sweep the issue under the rug (again) by simply reauthorizing existing law for yet another 4 or 10 years, Congress is widely reported ready to extend current law for only several months, and resume the substantive process of correcting Patriot/FISA early next year, building upon what had already been accomplished. As House Judiciary Committee Chairman John Conyers (D-MI-14th) stated upon the November 5 HJC approval of H. R. 3845,

" ... we have the opportunity to fix the most extreme provisions of that law and provide a better balance. Our legislation passed today preserves government legal powers where they are needed most, but reins in some of the most problematic aspects of existing law. This bill greatly protects the privacy and freedom of Americans, while preserving critical surveillance powers and operations."

This time, there's hope the slow pace of Congress works to our advantage. To help, sign the petition and open letter to President Obama. As always, the way to have the most influence is to call your Congressperson and Senators and say, "Don't renew the Patriot Act and FISA in a last-minute rush. Continue work on these laws next year, and this time, get it right."

Ted Johnson, Maegan Carberry, Teresa Valdez Klein: Justice For All? The Patriot Act, Rape Victims and America's Youth Re-Assert Themselves

2009-09-30T15:44:46Z

Just because the issue hasn't been in the public eye for the last couple of months, that doesn't mean that the Patriot Act and FISA and illegal wiretapping aren't still cause for concern to a lot of people on both sides of the aisle. Today, Jon Pincus, CEO of the Seattle startup QWORKY and the co-chair of the Computers, Freedom, and Privacy (CFP) 2010 Conference, joins us to talk these essential, nuts-and-bolts issues: Will Congress reauthorize certain parts of the Patriot Act before the end of the year? Will activism on Twitter and Facebook, like Pincus's notorious "Get FISA Right" group on barackobama.com during the election, make a difference? Will the conservative Tea Partiers go nutty and join the far-leftist liberals in fighting against government wiretaps? (Fingers crossed. Think of the signage!)

We also talk Roman Polanski's arrest and the immediate "rape apology" by half of Hollywood. What's with this, guys? Yeah, he's an artist, but the dude drugged and raped a 13-year-old girl and then fled his sentencing. This isn't a complicated issue if you believe in justice. We also kick the tires on those unemployment numbers for young people - over 50% ... wow... - and discuss whether or not these unemployed young'uns will end up taking up a noble cause because, ya know, there's nothin' good on TV and they're sick of internships. Finally, there's that ridiculous talking-heads reality TV-like competition on Washington Post, aiming to crowdsource their next columnist. While the process might be absurd, it's a job in journalism, right? I call dibs!

Listen to the show here, subscribe to the iTunes podcast, or use the Blog Talk Radio player:

Wilshire & Washington, the weekly Blog Talk Radio program that explores the intersection of politics, entertainment, and new media, features co-hosts Ted Johnson, Managing Editor of Variety; conservative blogger Teresa Valdez Klein (www.teresacentric.com), and liberal blogger Maegan Carberry (www.maegancarberry.com). The show airs every Wednesday at 7:30am PST on BlogTalkRadio.com.

Robert Davey: Bye Bye Public Option

2009-08-18T13:11:32Z

No surprise really, but very disappointing all the same, that owing to the activities of a few extremist nutcases, Obama is signaling he's prepared to accept health care reform that does not include a public option.

Obama does not seem to have a taste for conflict; he seems too keen to secure agreement with those who oppose him. Making a deal with the drug industry that precludes using the purchasing power of the federal government to negotiate lower drug prices was a disaster.

In general though, why is it that the Republicans always seem to win, while the Democrats always cave? Two years ago, after Bush and McConnell hammered and hammered away that the Foreign Intelligence Surveillance Act desperately needed reforming, in order to, in Bush's words, "give our intelligence professionals the tools they need," the Democrats in Congress caved and gave them their victory. The White House's case was built on lies and misrepresentation, but no Democrat had the guts to challenge those lies, so we got a completely redundant law called the Protect America Act, and, six months later, another battle when that law expired.

Now the boot's on the other foot: a Democrat in the White House. But the Republicans are still telling lies, only now the lies and misrepresentation are about health reform. And their lies are being believed once again.

Isn't it interesting that Obama only supported a public option as one among a spectrum of choices, most of which already exist? It's intriguing to speculate on the real reasons behind the venomous opposition the public option has inspired. Are some worried that it might work too well, perhaps?

Now we hear from Republicans and conservative Democrats that health care reform will be too expensive. How is it that a trillion dollars is too much to spend on health care for all, when last fall a trillion dollars was not too much to flush away into the banking system to pay off contracts concluded recklessly and tied to nothing of real value at all?

I'm an English-born immigrant and a Canadian citizen. Oh, yes, and I admit it, I was brainwashed by Orwellian British propaganda into accepting the National Health Service as normal. My mother was able to have surgery because of the NHS, and because of that, my two brothers and I were born. The NHS took care of me, for example when I had an appendectomy at 18 months and after a serious car accident at 26. So did the Canadian system.

It probably won't interest American readers, but to Europeans and Canadians the debate over health care in this country has a stale, fusty, worn and worn-out feeling. Americans still can't agree over an issue that was settled so long ago in so many other democracies.

Larry Siems: Why We're Challenging the FAA

2009-07-22T12:52:39Z

On Wednesday, July 22, PEN American Center will join the American Civil Liberties Union in court to challenge the FISA Amendments Act (FAA), which greatly expanded the ability of the U.S. government to spy on Americans without a warrant.

PEN is an 87-year-old organization that defends writers and the freedom to write around the world. We are plaintiffs in this lawsuit first and foremost because we believe our own communications, which include sensitive phone calls and emails with writers facing persecution in countries from Afghanistan to Zimbabwe, are vulnerable under the program.

Like our coplaintiffs in the case, which include human rights, labor, legal, and media organizations, we rely on confidential international communications to carry out our work. The trust we depend on is hard-won: those with whom we work abroad have often been monitored, imprisoned, or persecuted in their countries, and some of them are living and working in countries where a history of cooperation between their governments and U.S. intelligence agencies has left a legacy of fear and distrust of the United States. The fact that the National Security Agency (NSA) now has nearly limitless authority to monitor our international calls and emails severely compromises our ability to communicate freely with our endangered colleagues, undercutting our ability to ascertain and serve their needs.

But surveillance powers like those the National Security Agency now possesses do more than damage our ability to do international human rights work. We know from the experiences of our colleagues in countries where governments had unchecked surveillance powers (including the United States as recently as the 1970s) that programs that allow governments to spy on their own citizens are often directed against writers and intellectuals, and that surveillance in general poses a serious threat to the intellectual and creative freedoms of all citizens.

While its full scope remains unknown, the surveillance program that the Bush administration first implemented late in 2001 clearly gave the National Security Agency unprecedented power to monitor telephone and internet communications, and concerns about its constitutionality have surfaced repeatedly. In 2004, the Department of Justice even refused to provide the legal certification necessary for reauthorization of the original program because top department officials -- all Bush appointees -- were not convinced of its legality. When elements of the program were finally exposed in 2005, however, Congress failed to hold accountable the officials who had authorized it or to put new legislative protections in place. Instead, in 2008 it passed a new law -- the FISA Amendments Act -- that not only granted immunity to telecommunications companies for their participation in the NSA program, but also provided the executive branch with even broader authority to monitor the communications of innocent people.

Wednesday's hearing is the first in a lawsuit specifically targeting the constitutionality of the FISA Amendments Act. It comes amid new and disturbing revelations about the NSA's surveillance activities. Earlier this month, the Inspectors General of the NSA, CIA, Defense Department, Justice Department, and the Office of the Director of National Intelligence released a report describing a surveillance program that was far larger than previously acknowledged; that report, too, questioned the legal basis for the program the Bush administration launched in 2001 and revealed that most of the intelligence leads generated by the program had questionable relevance to terrorism investigations. Meanwhile, ongoing Congressional investigations have uncovered new information suggesting that the NSA continues to scrutinize emails on a scale that may even violate the terms of the FISA Amendments Act.

First the Bush administration and now the Obama administration insist that these surveillance powers are necessary to protect the country from individuals and groups that threaten national security. In fact, the laws that the FISA Amendments Act eviscerated were specifically crafted to ensure the U.S. government could spy on suspected terrorists and other foreign threats. What those laws also guaranteed, however, was that the constitutional right of American citizens and residents to be secure against unreasonable searches was protected. History has repeatedly shown how, without such protections, surveillance in the name of national security often extends to spying on peaceful political activists, journalists and writers, and other ordinary, law-abiding citizens.

So we are heading to court, asking a federal judge to strike down those provisions of the FISA Amendments Act that allow unchecked, warrantless surveillance of our telephone and email communications. And we will continue to press the Obama administration and Congress to rein in a range of post-9/11 surveillance powers that threaten the right of our members, and all American citizens and residents, to read, write, and communicate freely without fearing that our government is listening in or gathering private, First Amendment-protected information.

Presidential Surveillance Program: Spying Went Beyond Warrantless Wiretapping

2009-07-10T13:55:48Z

WASHINGTON — The Bush administration built an unprecedented surveillance operation to pull in mountains of information far beyond the warrantless wiretapping previously acknowledged, a team of federal inspectors general reported Friday, questioning the legal basis for the effort but shielding almost all details on grounds they're still too secret to reveal.

The report, compiled by five inspectors general, refers to "unprecedented collection activities" by U.S. intelligence agencies under an executive order signed by President George W. Bush after the Sept. 11, 2001, terror attacks.

Bob Ostertag: How Do You Say "Overcollection" in Farsi?

2009-06-22T18:27:45Z

There is a bizarre disconnect between news coverage of Internet surveillance and censorship in Iran and here in the US. To a certain point, this has some rational basis: after all, US citizens are not out in the street laying down their lives in defense of democracy. Here in the US, nine years ago we all stayed home and watched on TV while the Supreme Court handed a contested election to George W. Bush.

Be that as it may, Americans need to take a deep breath and a look in the mirror, for the same technical surveillance capabilities being used and abused in Iran are being used - and abused - here at home.

A lead article in today's Wall Street Journal reports on the Iranian government's web surveillance technologies, specifically a "monitoring center" installed last year within the government's telecom monopoly, provided to the theocratic state by the Finnish cell phone giant Nokia and the German electronics conglomerate Siemens AG. According to the WSJ, the technology enables the Iranian state to scan through vast amounts of electronic communications searching for particular keywords and the like. This is ominous, because it suggests that the Iranian authorities may have been tracking the identity of those who have been emailing and tweeting about opposition activities over the last week, and may now be in a position to begin picking these people off in a highly targeted way, if they are not doing so already.

Incredibly, this lead story in this leading news publication also tells us

in the U.S., the National Security Agency has such capability, which was employed as part of the Bush administration's "Terrorist Surveillance Program." A White House official wouldn't comment on if or how this is being used under the Obama administration.

Hello? That's it? Really?

Ahem.

Time to review what we know, and what we don't know, about Internet surveillance in the US.

In 2005, AT&T technician Mark Klein "blew the whistle" on the existence of a secret "monitoring center" at AT&T's facility located at 611 Folsom Street in San Francisco, where a complete copy of all the Internet traffic AT&T receives at that center is diverted onto a separate fiber-optic cable which is connected to a room secretly run by the NSA. Subsequent lawsuits by the ACLU and the Electronic Frontier Foundation, as well as congressional hearings, have established that there are at least 15 to 20 other such "monitoring centers" at other AT&T facilities around the country and possibly more, and likely equivalents at other corporate facilities. All of which is completely unconstitutional and illegal.

Unfortunately, much of the effort to find out exactly what happens in these "monitoring centers" was derailed last year when congress passed and President Bush signed the FISA Amendments Act (FISAAA), which gave the giant telecomms retroactive immunity for breaking the law in facilitating the illegal NSA surveillance. Then-candidate Barack Obama initially promised to join Wisconsin Senator Russ Feingold in a filibuster against the law, then reversed himself and voted for it, triggering intense dissent among his activist base. Obama defended his flip-flop arguing that the revised law would create a legal structure for ensuring that state surveillance of electronic communications was kept within constitutional bounds.

Last April, less than a year after FISAAA was passed and only three months into Obama's term, the administration announced it had already "discovered" that the NSA has been - surprise surprise - engaging in "significant and systemic... overcollection" of domestic communications between Americans. In other words, the NSA was and is engaged in exactly what Obama had preposterously claimed the new law would prevent.

Then just last month, a federal appeals court dismissed dozens of lawsuits challenging illegal domestic surveillance of American citizens, ruling that FISAAA gave the giant telecomms immunity from liability. Finally, at closed-door congressional hearings just a couple of weeks ago, NSA officials again asked forgiveness for "inadvertent overcollection" of surveillance on American citizens.

The dismissal of the lawsuits brings to a screeching halt the related discovery efforts of the ACLU and EFF to learn exactly what happens in the secret monitoring centers the NSA runs across the country. This was actually one of the main arguments used against the FISAAA legislation last summer: that giving the corporations retroactive immunity would halt the discovery proceedings attached to lawsuits, that were our best shot at learning what goes on in those secret centers. As of a couple of weeks ago, this has come to pass in exactly the manner foreseen.

Meanwhile, with a democratic insurrection exploding on the streets of Tehran, Nokia and Siemens AG are under extreme pressure to fess up and tell the world exactly what is in that monitoring center they built for the Iranian government. Which leaves you and I in the supremely ironic situation that we know less about the surveillance operations of our own government than we do about the surveillance operations of the theocratic Islamic regime in Tehran.

I wonder if there is a word in Farsi for "overcollection."

Fact is, there is no word for it in English either. "Overcollection" is not part of the English language. Google it and you will see that this word was actually born three months ago, birthed in the Obama administration's bumbling effort to explain away the new surveillance regime.

One of the surest clues to the abuse of power is when state officials start inventing new words to describe their own actions.

If you want to know more about what you and I don't know about what our government knows about us, visit the Electronic Frontier Foundation at http://www.eff.org.

And remember, what you don't now can hurt you.

Newly Declassified Report Reveals More Details About Lack Of Pre-9/11 Info-Sharing By FBI, CIA, NSA

2009-06-17T19:31:49Z

A newly-declassified report prepared for the 9/11 Commission sheds more light on who was responsible for the lack of information sharing between U.S. intelligence and law enforcement agencies in the months before the terror attacks.

Former Attorney General John Ashcroft was wrong to blame the Clinton-era Justice Department's 1995 policy for the "wall" during his 2004 testimony before the commission, according to the report obtained by the Federation of American Scientists' Project On Government Secrecy.

Rather, it was the FBI's own sloppy work and widespread misunderstanding of information-sharing procedures that led to the lack of coordination among the agencies and the much-criticized failure to obtain a criminal warrant to search so-called "20th hijacker" Zacharias Moussaoui.

According to the 31-page monograph, the last remaining commission document to be declassified, "A review of the facts surrounding the information sharing failures, however, demonstrates that the Attorney General's testimony did not fairly and accurately reflect the significance of the 1995 documents and their relevance to the 2001 discussions."

In fact, information-sharing procedures "were widely misunderstood and misapplied" resulting in "far less information sharing and coordination... than was allowed." Also, "everyone was confused about the rules governing the sharing and use of information gather in intelligence channels."

In an ironic twist, the FBI was reluctant to file applications for surveillance due to the agency's previous "factual errors contained in a series of FISA applications, most notably the Bin Ladin-related FISAs. As a result, the Foreign Intelligence Surveillance Court, insisted on a strict separation between criminal and intelligence matters, which led the FBI to be overly cautious in their applications for surveillance and agents' sharing of information.

The court's Chief Judge actually wrote Ashcroft in March 2001 that because of "continued errors on a series of FISA applications," the court was banning a supervisory FBI agent.

There were also crucial human errors, likely exacerbated by the widespread confusion over information-sharing, that led to the failure of the FBI's Minneapolis field office to obtain a criminal warrant to search Moussaoui's laptop.

In addition, the National Security Agency placed caveats on all Bin-Laden-related reports which put extra barriers in the way of sharing information.

Ashcroft did not return calls for comment.

Read the report:

11 -

Shahid Buttar: Secrecy Sacrificing National Security

2009-06-10T14:01:19Z

Whether defined in terms of a system representing the will of the people, or as one of divided powers exercising checks and balances, our government claims legitimacy based on its accountability. That accountability, in turn, relies on transparency. It is no accident that, in light of its historical function as "the broad light of day" said by Supreme Court Justice Louis Brandeis to be the best disinfectant for "men's actions," the press has long been considered our unofficial fourth branch of government.

As the antithesis of transparency, secrecy presents a deeply insidious threat to our democracy: it excludes the press and public from participation in policy debates, inhibits the operation of inter-branch checks and balances, and ultimately precludes the rule of law. Secrecy must therefore not be taken lightly, as the Obama Administration seemed to acknowledge when declaring a new era of transparency and disclosure on its first day in office. But unfortunately, the administration's welcome rhetoric has yet to find its reflection in reality.

The grave dangers of official secrecy explain concerns with the new administration's approach -- or, more accurately, hesitation -- towards restoring the rule of law. Across several policy areas related to national security, the Obama administration continues to resist disclosure, opting instead to follow its predecessor's disappointing habit of hiding inconvenient facts and dubious policies.

Three Threats to Transparency

The dangers of government secrecy require public skepticism of the national security establishment. Cloaked in mystery and largely unaccountable since their emergence following WWII, our national spy agencies have done more to undermine democracy in America than most threats from which they have claimed to protect us. Communism, black nationalism, revolutions abroad, violent extremism, and animal & environmental rights have all proven less threatening to America and our national values than the Red Scare, the Counter-Intelligence Program (COINTELPRO), the Green Scare, and the surveillance regime erected under the guise of the war on terror.

This pattern of secrecy unfortunately continues, visible today in at least three sets of counter-terror policies: torture, warrantless electronic surveillance, and the recent expansion of the FBI's powers. Secrecy in any one of these areas would justify concern. Its pervasiveness poses a problem for our Republic far more dangerous than any threat to our physical security.

Secret policies, and their secret enforcement, endanger the values that have long defined our society and made it worth securing. While presented as necessary for our nation's physical security, government secrecy itself threatens our national security in a more fundamental sense, calling for an engaged, mobilized grassroots movement to shift the landscape of the debate in Washington and restore the rule of law by demanding transparency.

Torture, Transparency, and the Rule of Law

Torture -- which continues at Guantanamo Bay despite the President's repudiation of enhanced interrogation techniques -- implicates secrecy on two fronts. One involves the memos authorizing torture and reporting on its results. To his credit, President Obama has released several previously classified official documents authorizing the previous administration's lawlessness. But despite widespread outrage toward the individuals responsible for those policies, none have faced justice.

A further set of memos analyzing the torture program remains secret. Vice President Cheney claims that they demonstrate the usefulness of torturing detainees, and has ironically called for their disclosure by the CIA. The mainstream discourse has accepted his premise: that the legitimacy of torture turns on its results (i.e., whether enhanced interrogation inspired detainees to provide incremental information, and whether that information has proven reliable).

But no evidence proving the effectiveness of torture would justify it. Torture is illegal. Period. Our laws are unequivocal, and reiterated in domestic statutes; numerous international treaties to which the U.S. is party; and the Fifth, Sixth, and Eighth Amendments to our Constitution. These laws are not negotiable instruments that can be abrogated for the sake of political convenience.

Until those responsible for torture face prosecution for their crimes, our criminal justice system as a whole will face a mounting legitimacy crisis. How can any criminal penalty -- especially the 323,318 prison sentences imposed from 2006-2007 on Americans convicted of non-violent offenses -- appear legitimate when our nation's most notorious criminals violate our most fundamental laws, yet remain not only free, but actively engaged in influencing our national security policies?

President Obama's suppression of two thousand photos documenting the severity of U.S. torture further illuminates the need for transparency. The photos reportedly depict torture and abuse by U.S. military personnel stationed both in Iraq and in Afghanistan. They are horrific: some are autopsy photos of unarmed detainees killed by U.S. troops while in custody; others, according to Retired Major General Antonio Taguba, depict "every indecency,"including physical brutality, psychological abuse, and sexual assault by U.S. forces.

The President has predicated his refusal to release these photos -- and Senators Joe Lieberman (I-CT) and Lindsey Graham (R-SC) have joined him by demanding a legislative prohibition on the photos' disclosure -- on two grounds. First, they claim the torture photos "would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals." Second, they argue that "releasing these photos would inflame anti-American opinion... thereby endangering [U.S. troops] in theatres of war." Neither argument holds water.

First, the photos in fact expose a great deal. They differ from those already released by exposing a variety of disturbing sexual abuses, from forced exhibition and masturbation to penetration involving brooms. The photographs even show U.S. personnel raping prisoners outright.

The photos also make clear that torture was used not only in extreme circumstances demanding immediate action (i.e., the so-called "ticking time bomb" scenario), but also relatively routinely, pursuant to an official -- though illegal -- policy. Torture committed under the Bush administration was not an aberration committed by a few "bad apples," but a systematic and widespread pattern of abuse condoned by our nation's highest officials and implemented throughout the chain of command.

Second, the argument that releasing these photos would place American soldiers at risk is, quite frankly, preposterous. It is not the pictures that we should fear, but rather the illegal conduct depicted in them.

Torture is a violation not only of the laws of war, the U.S. Constitution, and the oaths of office of everyone responsible, but -- if truly a threat to our troops abroad -- also a crime against them potentially rising to the level of treason. U.S. Air Force Major Matthew Alexander, who led a team of interrogators in Iraq and conducted over 300 interrogations himself, recently wrote that "the No. 1 reason foreign fighters flocked [to Iraq] to fight were the abuses carried out at Abu Ghraib and Guantanamo."

While disclosing torture photos may inspire our enemies to redouble their efforts, that problem suggests that we prosecute U.S. torturers and their commanders, not that we cover up the evidence. Secretary of State Hillary Clinton recently said that "China... should examine openly the darker events of its past and provide a public accounting... both to learn and to heal." Her recommendation is prescient, and applies no less forcefully here at home. According to the editorial board of The Detroit Free Press, "Nothing would command more respect abroad than a demonstration of America's resolve to pursue the truth about itself, wherever the trail leads."

Covering up these abuses helps avoid the prosecution of those responsible. To fully repudiate torture and its legacy, the Obama administration must release the pictures and bring to justice those who authorized and conducted torture. Until then, the rule of law will remain a notion towards which the U.S. -- like China -- will merely aspire.

Secret Surveillance and Secret Policies

Beyond torture, mass electronic surveillance is another arena in which government secrecy continues to impede the transparency necessary to allow a reasoned debate.

As the Obama administration confronts lawsuits over the so-called "Terrorist Surveillance Program" (TSP) crafted in secret by its predecessor (as well as another suit, challenging torture outsourced to other countries), it continues to resist transparency through an unrestrained invocation of the state secrets privilege. The Ninth Circuit's recent rejection of that doctrine's overbroad application is encouraging, as is congressional interest in curtailing it via federal statute. But judicial scrutiny of surveillance is stalled until September and, after appeals, could take years. The surveillance program itself should not escape criticism in the meantime.

The administration's resistance to disclosure suggests the accuracy of fears that the program is essentially an unbounded dragnet. Last year, the FISA amendments supported by then-Senator Obama (despite his earlier promise to filibuster them) conferred on the NSA a vast expansion of its authorities. Its new powers left Americans more vulnerable to warrantless surveillance -- the uses of which could be bent to no end of potentially nefarious ends -- than ever before in our history. Yet the NSA has violated even those expanded powers, and not just in piecemeal fashion: the Department of Justice and FBI have found ongoing abuses so vast and pervasive as to be systemic.

The TSP itself -- whose revelation in 2005 sent a massive shockwave through the policy establishment -- may have been a contrivance, an arbitrarily designated part of a far broader surveillance scheme. Before leaving office, former Attorney General Alberto Gonzales alluded to further operations beyond those previously confirmed. No information about those programs has been released to the public -- or to members of Congress, who have themselves been subjected to illegal monitoring by spy agencies.

Secrecy pervades not only surveillance policies, but also their application. For instance, national security letters (NSLs) authorized under the PATRIOT Act include gag orders that prohibit recipients from disclosing the mere existence of official demands for information, much less their contours. The overuse of NSLs, which routinely demand private information about law-abiding Americans in violation of their Fourth Amendment rights, led the Justice Department to conclude that the FBI had committed "widespread and serious" abuse of its NSL authority.

Without knowing who, in particular, has been subjected to illegal spying, court challenges are untenable: a federal judge found the TSP unconstitutional in August 2006, but her opinion was reversed when a divided panel of three Sixth Circuit judges found no evidence that authorities had actually spied on the particular plaintiff in that case.

Like its predecessor, the Obama Administration has repeatedly asserted the state secrets privilege to impede judicial review, or accountability in the court of public opinion. The Al-Haramain litigation -- in which the Administration faces a hearing in September concerning the program's legality -- involves the only concrete case of electronic warrantless surveillance that civil rights advocates have been able to confirm.

As with the torture photos, then, our government is aiming to stuff genies back into bottles. But where secrecy supporters fear the reaction abroad to the torture photos, policymakers resisting the revelation of domestic surveillance activities instead fear the reaction of the American public. In a democracy, or a representative republic, that particular fear is the most illegitimate ground fathomable for keeping information secret.

Expanding Secret FBI Powers

The recent expansion of the FBI's powers is a third arena reflecting pervasive official secrecy threatening our national values. Last summer, senior DOJ and FBI officials conducted a series of behind-the-scenes "briefings" for aides to some members of Congress and civil rights advocates (including myself) on major revisions to the Attorney General's Guidelines governing the FBI.

First enacted in 1971 to forestall congressional intervention after the COINTELPRO surveillance scandal, the guidelines originally aimed to ensure that the FBI enforces laws, rather than violating them. But the Guidelines' protections have been watered down over time, with each successive revision further unleashing the Bureau's historical habit of harassing and intimidating law-abiding Americans.

Having failed to stop Attorney General Ashcroft from implementing severely problematic revisions in 2003, members of Congress repeatedly objected when Attorney General Mukasey did so again in late 2008. The new Guidelines expand the investigative methods available to agents, reduce supervisory controls and temporal limitations on fishing expeditions, and by eliminating the need for a factual predicate underlying investigations, invite racial and religious profiling apparent in the Bureau's latest investigative successes.

But even the Mukasey Guidelines are the tip of an iceberg. Following last summer's briefings on the Guidelines, members of Congress unsuccessfully demanded an opportunity to conduct oversight and propose amendments. The FBI and DOJ repeated the charade in November, hosting another series of briefings for congressional staffers and advocates (again including myself), this time about the FBI's Domestic Investigative Operational Guidelines (the DIOGs) that implement the Mukasey Guidelines.

Briefings on the DIOGs occurred the week before Thanksgiving, just before they took effect on December 1. At that point, the policy was already substantially complete and agents had begun training on its provisions. There was no meaningful opportunity to suggest changes.

Substantively, the DIOGs included several disturbing new policies that would prove positively incendiary if confirmed, including two separate provisions mandating ethnic profiling. But because they remain completely secret, the DIOGs have received no scrutiny.

In the version discussed with me by the Bureau's Chief Privacy Counsel last November, the DIOGs mandated a "geo-mapping" program modeled on a failed 2007 proposal by the Los Angeles Police Department. In response to concerns about the vulnerability of Muslim American communities to religious profiling, officials claimed that the FBI's version of the policy would raise fewer concerns because it would profile all ethnic & religious minorities, not just Muslims.

The DIOGs also included a section on "ethnic behavior," adopting a discredited analysis released in August 2007 by the New York Police Department. FBI Director Robert Mueller has responded to a recent furor over the FBI's infiltration of groups conducting constitutionally protected activities (like activist groups in Maryland, as well as religious congregations in New York, Los Angeles, and elsewhere) with false claims that the FBI does not "investigate places, we investigate individuals." His assertion is implausible in light of a policy authorizing the Bureau's invasions of mosques, but because that policy remains secret, the FBI has escaped public examination.

This January, I filed a FOIA request on behalf of my former employer, seeking disclosure of the secret DIOGs to enable a public debate. In early March, the FBI conceded that the document represents "a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence," and promised two weeks later to release it after completing a review of its contents. The FBI has yet to fulfill that promise (although my former colleagues did recently file an appeal).

The State of Play

It is one thing for the execution of polices to be shrouded in secrecy. After all, surveillance is ineffective if the target is aware of being monitored. But pursuing secret policies is altogether different.

While Senator Feinstein (D-CA) is leading a congressional inquiry into torture, she has accepted Cheney's premise that torture can be potentially justified by particular circumstances. Meanwhile, congressional and public oversight of the NSA and FBI has been ephemeral, largely because their policies remain thoroughly opaque.

No one knows which groups, or how many, have been infiltrated by undercover FBI or local law enforcement agents. Similarly, the identities of individuals monitored by the NSA remain secret -- perhaps because they include literally every American. Finally, the photos documenting our torture program, and the memos analyzing its results, are also secret.

Without transparency, we can neither assure ourselves that our government's activities are either helpful or legal, nor can we adequately assess the case for prosecuting Bush administration officials for potential crimes and constitutional violations, as we are legally bound to do. If "national security" includes protecting our nation and its values from threats, secrecy should be considered chief among them.

Harmut Beil is an interface designer, photographer, pilot, and pro-democracy activist who lived in the former East Germany before moving to California for eight years (where I met him before recently moving east to lead the Bill of Rights Defense Committee). He says, "While struggling with surveillance behind the iron Curtain, we saw the western countries, lead by the U.S., as an example of the freedoms we tried to achieve. I am deeply concerned now about the developments of recent years in the U.S....I think the United States could learn a great deal from the history of my country."

How You Can Support Transparency

President Obama said throughout his campaign for the White House that "real change comes from the bottom up," and as a grassroots organizer who rose to our nation's highest office on the shoulders of unprecedented millions, he should know. From that perspective, his administration appears to be waiting -- unwilling to take the lead on restoring the rule of law, but perhaps willing to respond to a grassroots movement either justifying or compelling transparency and accountability.

A coalition of human rights groups is calling on supporters of the Constitution to rally and march against torture later this month in DC. In the meantime, you can take action online to promote transparency and accountability by adding your name to one of several letters compiled by the Bill of Rights Defense Committee for Justice Department officials and members of the Senate Intelligence Committee. We've drafted letters from lawyers, educators, faith leaders and other concerned Americans discussing the need for accountability from the perspectives of their respective fields of expertise.

Bob Cesca: Sharing Tea Bags with Right Wing Extremists

2009-04-15T20:05:23Z

One of the very bizarre accusations overheard at the tea bag protests Wednesday was that President Obama is somehow a "fascist." At the same time, and often in the same protest, he was also accused of being a "communist."

Of course it's ideologically impossible to be both, in the same way it's impossible to be both informed and a FOX & Friends host, but then again I'm expecting too much logic and message coherence from people who spent all of Wednesday protesting against socialism and wealth redistribution while gathered in publicly funded -- dare I say "socialized" -- parks and town squares.

But back to that "fascist" accusation. I'm not convinced that tea baggers like Michelle Malkin understand that fascism is, in fact, a form of right wing extremism. Because for the last 24 hours or so, Malkin, Limbaugh, Glenn Beck and the usual band of apoplectic brainiacs appear to have been vigorously defending "right wing extremism" after having previously accused the president of being on the same flank of the ideological spectrum.

Yeah, I know. It doesn't make sense.

Rewind to Tuesday morning: a Homeland Security report covering potential threats from "right wing extremist" groups, including militias, white supremacists and neo-Nazis, was obtained by talk show host Roger Hedgecock. And, predictably, the gang who can't seem to decipher basic high school level social studies concepts, kneejerked into one of their paranoid tantrums -- insisting that the report was entirely about them.

Almost right away, the far-right blogs and FOX News Channel were set ablaze with reports that the Obama administration was targeting conservatives with a massive surveillance operation. But here's the thing: the DHS report wasn't about conservatives. The word "conservatives" doesn't appear anywhere in the report. It was all about radical domestic terrorist groups who happen to subscribe to outlandish ideologies well beyond the mainstream of political discourse. Notwithstanding this very clear distinction, Malkin and the broader wingnutosphere lost their collective shpadoinkle and insisted the DHS was targeting the mainstream tea baggers.

Now, when this story first broke, I was at a bit of loss as to how to accurately interpret the right's wildly conspiratorial, victimized reaction. Either Malkin and Beck were just as confused and incoherent as always, and, in their loud noises anti-government rage, they were inadvertently coupling themselves with right wing extremists. Or they not-so-subtly admitted that there isn't much difference between a garden variety conservative, a garden variety wingnut and a garden variety right wing extremist -- that they're all basically militant racists who are plotting to blow up federal buildings. I don't know.

There's one thing we know for sure, however: they're definitely freaked out about the government's post-9/11 intelligence apparatus -- the very same bureaucracy they actively and vocally cheerled throughout the Bush years. Malkin, in particular, was one of the most outspoken and cheerleadery endorsers of allowing unchecked executive power via the vice president's office, the NSA, the CIA and the military, while encouraging these agencies to use any means necessary to smoke out the evildoers. This included illegal wiretapping, rendition, suspension of habeas rights and every awful provision found within the USA PATRIOT Act.

Yet in light of this DHS report, Malkin seems to believe that the government might be spying on people. Her people. "Right wing extremists."

So they're suddenly worried about privacy are they? Whatever happened to Rush Limbaugh's maxim: "Our civil liberties are worthless if we are dead!" Or Senator Big John Cornyn's words of wisdom: "None of your civil liberties matter much after you're dead."

Glenn Greenwald wrote on Tuesday:

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

It's like that classic SNL sketch from 1988 with Tom Hanks as Mr. Short Term Memory. Hanks is at a restaurant and orders his favorite meal: poached salmon. He takes a bite of his fish then, forgetting he took a bite, shouts, "Ah! There's something in my mouth! There's something in my mouth!" The wingnuts begged and fear-mongered for this gigantic overreaching surveillance state and now they're suddenly alarmed that it's covering terrorists other than brown-skinned foreigners with funny hats?

That could be the clincher, though. The far-right outrage might have something to do with skin color.

In 2005, the Southern Poverty Law Center's Intelligence Project reported that as many as 60 domestic, white right wing terrorist attacks were thwarted by law enforcement in the ten year span following the Oklahoma City bombing which, by the way, was also perpetrated by an American right wing extremist with boy-next-door white skin.

The plots, all foiled by law enforcement, reportedly included violent plans by antigovernment militia groups, racist skinhead organizations, and Ku Klux Klan members to use various types of chemical bombs and other weapons.

Nice. More examples of right wing extremists. Extremists who are evidently being coupled by Malkin with the broader conservative movement. I hasten to note here that I'm not citing these examples for the same reason Malkin and wingnutty websites such as Religion of Peace like to highlight Islamic terrorist attacks: as an ongoing feargasm intended to incite more wars and cultural intolerance. I'm merely presenting evidence that, yes, right wing terrorists do exist. Sorry, Malkin. There are also left wing terrorists, by the way, and they were the subject of their own DHS report issued back in January, according to the Washington Times.

The point being that terrorist attacks can be orchestrated by anyone -- not just brown religious zealots. (I can't believe I actually have to write that.)

Whether intentional or not, the talkers and bloggers who appear to be driving the post-Bush crazy train, have, intentionally or not, opened up the conservative tent to some pretty unsavory and dangerous characters. And in light of what happened in Pittsburgh, are they really so sure that deliberately conflating conservatism with the radical, violent end of the ideological spectrum is such a wise strategy? Beck and the others were so shocked and disturbed that their rhetoric was being partly blamed for Pittsburgh. But that was last week. This week, they definitely seem to be sharing their tea bags with the psychotics. And such behavior can cause a serious infection. Political infection. Is what I meant.

BobCesca.com

FISA Court Quietly Moves To Avoid Accusations Of Bias

2009-03-02T11:41:23Z

First, the workers encased the room in reinforced concrete. Then came the thick wood-and-metal doors that seal into the walls. Behind those walls they labored in secret for two years, building a courtroom, judge's chambers and clerk's offices. The only sign that they were done came recently, when biometric hand scanners and green "Restricted Access" placards were placed at the entrances.

Jayne Lyn Stahl: Another Unitary in the White House?

2009-02-28T20:07:45Z

Now that the lovefest with President Obama approaches its seventh week, it might be time to test the waters, and question some recent eye-opening positions his administration has recently taken on a range of issues from invoking state secrets, backing immunity for telecoms who illegally spied on ordinary Americans to opposing a lawsuit that would require his predecessor, George W. Bush, to publicly divulge the contents of 14 million e-mails which just conveniently surfaced after having been mysteriously "misplaced" for years.

While Obama is said to have initially opposed immunizing telecoms from prosecution, he reportedly voted for the new spy bill Congress passed last summer because it gives the "U.S. presidency broad, warrantless surveillance power." (Wired) In light of Mr. Bush's hyperactive executive branch, it is not unthinkable to consider whether our new president will follow suit.

As you may recall, both Republicans and Democrats gave an enthusiastic thumbs-up for legazing the egregious Bush White House practice of allowing communication behemoths to perform warrantless wiretaps with legislation that allows for even greater domestic surveillance in addition to granting what amounts to unlimited legal amnesty to those telecoms that acted in collusion with the government in breaking existing FISA laws making for a dangerous precedent.

But, a judge in a San Francisco district court isn't entirely sure he's buying into the "state secrets" argument first dished out by Bush, and now scooped up by the Obama Justice Department. The Electronic Frontier Foundation is challenging telecom immunity, as well as the existence of what they claim is a hidden room in a San Francisco AT&T office building specifically designed to provide the National Security Agency with "raw Internet traffic."

Recent Obama appointee, and Attorney General, Eric Holder, says there is no reason to think the new administration will differ from its predecessor, and that telecom immunity will continue to be what a Justice Department official calls "the law of the land."

It isn't just a couple of thousand intercepted phone calls, or several million executive branch e-mails, that are of concern here. We are concerned about a pattern of abuse in the implicit affirmation, and application, of expanded presidential powers.

The fact that the Justice Department would defend the George W. Bush's brazen noncompliance with the Presidential Records Act, and ludicrous attempt to disappear many millions of White House e-mails, many of which might be illuminating as to the real reasons behind the invasion of Iraq, has red flag written all over it.

No one would question the assertion that being a wartime president has its challenges. And, surely, the War Powers Act of 1973 allows for a more muscular, and autonomous, executive branch, as well as the right of the president to bypass Congress when taking the country to war in the event of an attack on our own soil. But, it must also be remembered that the War Powers Act was passed on the watch of the first U.S. president to resign the office of the presidency in disgrace, Richard M. Nixon. Moreover, isn't the underlying motive behind Watergate that a chief executive may do whatever it takes to stay in power even if that means trying to subvert free elections?

The excesses of the Nixon era are like a walk in the park compared with those of Bush and Cheney. George W. Bush, and Dick Cheney, took the notion of "executive privilege" to a whole new level which future historians may well see as the real prize in Iraq -- not the oil, but more power at home; a presidency on steroids, and the voluptuaries of profit would want nothing less.

While he may be willing to trade immunity in exchange for greater wartime authority, it would be reassuring to know that the president who recently took the reins with a popular mandate is one who plans to do more than hold photo-ops with Congress.

We are confident that Mr. Obama, as a constitutional lawyer, is well aware of the pitfalls of presidential hubris, and that he is a firm believer in separation of powers which is why his support for the state secrets argument, his approval of immunity for telecoms that broke privacy laws, and his siding with the former administration's need to keep their own electronic communications from public view alarms us. The idea that any commander-in-chief could find being in the war business a compelling way to broaden their own powers is also alarming.

Holder: If My Independence Is Compromised, I'll Resign

2009-01-15T14:14:39Z

Midway through the day, Eric Holder's confirmation hearings have contained moments of contention and lightheartedness. But the one thread that stands out is just how much wholesale change is wanted by -- and being promised to -- members of the Judiciary Committee.

Over the course of several hours, Holder pledged to end the practice of waterboarding, review the process of warrantless wiretapping, and end politicization of the Justice Department. One of the stated priorities of the president-elect, the closure of Guantanamo Bay, was also on the to-do list. But that venture, Holder acknowledged, would be held up in the short term by institutional barriers.

"Guantanamo Bay will be closed," said Holder. "The president-elect during the campaign made that promise. Steps are being taken as we speak to look at the manner in which that can occur. I will tell you this will not be an easy task... the question is what will we do with the people there now, roughly 250 or so people. We have to understand who these people are... based on an examination of the record that exist down there. A substantial number of those people can be sent to other countries safely. Other people can be tried in a jurisdiction and put in jail. And there will possibly be other people who we are not going to be able to try for a variety of reasons but who nevertheless are dangerous to this country. We are going to have to figure out what to do with them.

That process, he added, would require, "an extended period of time, and that is the thing that will prevent us from closing Guantanamo as quickly as we would like."

Even if the closure of Guantanamo may take some time, there will be more than enough on Holder's plate in the interim period. Early in the proceedings, he told Chairman Patrick Leahy that he viewed the practice of waterboarding to constitute torture -- leaving open the notion that his Justice Department could investigate Bush administration officials for authorizing that technique.

Later in the session, he suggested to Sen. Russ Feingold that a review of the surveillance law by the incoming administration may come soon.

And at multiple points in his testimony, Holder fielded and dismissed concerns that he would not be an independent agent in the Obama administration. The juxtaposition was the rocky tenure of former Attorney General Alberto Gonzales, who put in place political litmus tests for potential Justice Department appointees.

"I want to assure you and the American people that I will be an independent Attorney General," said Holder. "I will be the people's lawyer."

In fact, at one rather peculiar point, Holder promised to resign from his post if he felt his position as Attorney General had been compromised.

"I do not think that that is a situation that I will face," he said. "We have a president-elect who is a brilliant constitutional lawyer, a person with a great moral compass. A person who I think will take criticism and advice. ... If however, there was an issue that I thought were that significant that would compromise my ability to serve as an Attorney General in a way as I have described as the people's lawyer, I would not hesitate to resign."

William Bradley: CIA: The Panetta Pick and the Feinstein Factor

2009-01-12T16:59:14Z

President-elect Barack Obama's presents his picks for the nation's intel leadership: Leon Panetta as CIA director and Admiral Dennis Blair as director of national intelligence.

President-elect Barack Obama named his top intelligence leadership team on Friday. And, as I expected, new Senate Intelligence Committee chair Dianne Feinstein rather quickly backed down from her opposition to Leon Panetta and championing of a CIA insider for the post, of only a few days ago. The whole exercise was very instructive in old and new political dynamics.

Feinstein, a very entitled senator from my hometown of San Francisco, embarrassed Obama early last week by saying no one had consulted her on the next director of the CIA -- who is her old friendly California colleague Leon Panetta -- and going on to allow as how she thought Panetta wasn't qualified for the post.

"I was not informed about the selection of Leon Panetta to be the CIA Director. I know nothing about this, other than what I've read," she declared. "My position has consistently been that I believe the Agency is best-served by having an intelligence professional in charge at this time.'"

Not long after, she reversed course, declaring former White House chief of staff, federal budget director and California Congressman Panetta -- a very public opponent of the torture policy that was adopted during Feinstein's tenure as a senior Intelligence Committee member -- to be qualified where just a day before she had deemed him "unqualified."

The fact is that Feinstein was miffed by the Obama team's lack of interest in her opinion, and concerned that her own pick -- a career insider easily tied to the wildly controversial policies of the Bush/Cheney administration -- wasn't taken seriously for the top spot.

Bush political guru Karl Rove and Fox News personality Bill O'Reilly discuss why Leon Panetta is a bad choice for CIA director and the Bush/Cheney approach on torture was best.

Which only pointed up how out of touch California's senior senator really was with regard to the obvious dominant atmospherics of American politics after America's reputation was dragged through the mud by the torture policy, Guantanamo, Abu Ghraib, and more.

Real life is not an episode of 24, which has also backed off some from its increasing torture motif. Under pressure from U.S. Army brass, which told the hit show's producers that their easy storytelling crutch was giving the troops in Iraq the wrong idea about how to get information. Not that Feinstein isn't aware of this.

Senator Dianne Feinstein's 2006 re-election TV ad against a hapless far right Republican nominee.

California's senior senator is an estimable figure, perhaps too estimable for her own judgment in these matters. She was seriously considering getting out of politics 30 years ago when a conservative ex-San Francisco supervisor (SF is a combo city and county) murdered the mayor. She'd lost a mayoral race, the Symbionese Liberation Army had blown up her mailbox on Presidio Terrace. (Where she no longer lives.) Then Dan White, a former member of the San Francisco Board of Supervisors who wanted to reverse his hasty resignation from office, changed her life forever by assassinating Mayor George Moscone, who had refused to reappoint the wacky local pol after he resigned in a fit of pique over the emerging social liberalism of the City by the Bay.

White also assassinated San Francisco Supervisor Harvey Milk, the first openly gay major elected official in American history, who ironically had befriended the troubled conservative local pol. (See the very fine film Milk, with great performances by Sean Penn as Harvey Milk and Josh Brolin as Dan White.)

The twin killings by White -- who got off easy on the notorious "Twinkie" defense and later killed himself -- elevated Feinstein, then president of the San Francisco Board of Supervisors (read: city council) to the city's mayoralty. Because of her dignity upon taking over the office in such spectacularly tragic circumstances, Feinstein became a mostly unassailable icon.

She rode that into a should-have-won campaign for governor of California in 1990, then an easy win to replace then Governor Pete Wilson in the U.S. Senate in 1992.

Then, blessed with a very wealthy husband who's done very well in some controversial investments involving China and government contracts, she became a fixture on the Washington scene, a respected middle-of-the-road Democrat who routinely makes a lot of noise about returning to California and running for governor. As she did in 1998, deciding finally not to run after some questions were raised about business dealings, and during the recall of 2003. Both times I predicted she wouldn't run. Feinstein had been talking it up again, before she took the chairmanship of the Intelligence Committee -- something not entered into lightly or on a short-term basis -- as I expected.

In becoming a fixture on the intel panel, Feinstein's behavior demonstrated how she could have been so out of tune last week as to call for the appointment of a CIA director who could be easily linked to the practices Obama has made clear must end.

Feinstein didn't raise alarms about the establishment of the notorious prison at Guantanamo, the adoption of torture (a generally unreliable approach to interrogation, in addition to its moral and Geneva Convention problems) as national policy, or the Bush/Cheney move to circumvent the rubber-stamp FISA court and remove all real accountability from massive program of surveillance.

Despite, or perhaps because of, being heavily briefed by the top intelligence professionals she touts for the top posts, she was fooled by cooked-up intel to support the invasion of Iraq on the basis of non-existent weapons of mass destruction. And it took quite awhile for the senator to acknowledge that the war, after the initial invasion phase, was being very badly handled.

She went along with the Bush/Cheney move to adopt what author Ron Suskind calls "the one percent doctrine," Vice President Dick Cheney's notion that if there's a one person chance of a terror plot existing, it should be treated as if it is a certainty.

This is akin to basing your approach to intelligence as if every situation is an episode of 24. But life usually isn't an entertaining TV show.

That's hysteria masquerading as rationality.

Feinstein's candidate for CIA director, current Deputy Director Stephen Kappes, is a respected professional. But he couldn't be appointed to the top job by Obama, as should have been obvious to Feinstein.

Of course, a toxic operation rots its staff from the top down. A career professional can stick around or leave. Which Kappes actually did at one point during Porter Goss's tumultuous tenure in Langley. But not because of the agency's controversial, wrongheaded policies, but apparently because of a personnel dispute. And he wasn't gone long.

Before he left, as head of the operations division, Kappes was very involved with the Iraq WMD issue. That would play very badly in a public hearing, as Feinstein should understand. And, of course, CIA in that period was knee-deep in torture, renditions, and so on.

Kappes may well stay on as deputy director of the agency. But since he's already deputy director, there won't be a big Senate hearing on him, as there would have been had Feinstein had her way and he was the new CIA director-designate.

CIA Director-designate Leon Panetta addresses the Governors' Global Climate Summit in November in LA, hosted by Governor Arnold Schwarzenegger.

The truth is, Panetta makes a great deal of sense as CIA director. As even John McCain said at the end of last week: "I think that Leon Panetta is highly qualified, and in all due respect I think it is not bad from time to time to have somebody from outside of the intelligence community but with strong managerial experience as Chief of Staff of the White House, to be head of one of these agencies. I think there is some good balance there."

Panetta, who is not at all tied to the Bush/Cheney policies, having spent most of the past decade running a California-based think tank -- and having been a key member of the Iraq Study Group, which came up with a moderate way out of Iraq -- can be an honest broker in and for a deeply troubled agency.

During the Bush/Cheney years, the CIA has gone from the heights of managing a swiftly successful proxy and special ops war in Afghanistan in the immediate aftermath of 9/11 to the depths of cooked-up Iraq WMD reports and the morass of torture and rendition.

Panetta reflects a clear break from those recent disasters, as well as a strong manager with a lot of experience as a high-level consumer of intelligence. He knows the sort of things a president needs to know in order to make decisions. He's a team builder, and there are few critical agencies -- and the CIA is a very critical agency in a dangerous and complex world -- that have more need to be remade into a highly-functioning team than the CIA.

Feinstein, miffed though she undoubtedly was by not being consulted by the incoming president, should have let go of the baggage of the Bush/Cheney past and recognized that immediately.

And you can check things out during the day on my site, New West Notes ... www.newwestnotes.com

Ari Melber: Ask Obama For a Torture Special Prosecutor

2008-12-30T01:07:49Z

The Obama transition team is taking questions again at Change.gov, throwing open the site this week for citizen input. The first run of this experiment was a mixed bag. The platform was open and transparent, but the official answers felt more like old boilerplate than new responses. When the submitted questions parrot toics in the traditional media, of course, the exchange can feel like a dated press conference. But here's a vital question that few reporters have ever presented to Obama:

Will you appoint a Special Prosecutor (ideally Patrick Fitzgerald) to independently investigate the gravest crimes of the Bush Administration, including torture and warrantless wiretapping?

That question ranked sixth in voting last time -- out of over 10,000 submissions -- but the transition team only answered the top five questions. Now that Vice President Cheney confessed his support for waterboarding on national television, flouting the rule of law, the issue is even more urgent. Activist Bob Fertik, who has submitted the question twice, explains how you can vote to press this issue on the transition team:

Sign in at http://change.gov/openforquestions
Search for "Fitzgerald" [...and] find our question
Look right for the checkbox, mouseover it so it goes from white to dark, then click to cast your vote

While the press has fixated on the criminal allegations against Gov. Blagojevich, for some reason, the (even more serious) allegations of torture by officials in the current administration receive scant attention. I have not heard one question about this during Obama's transition press conferences, and the traveling press corps almost never pressed Obama on the issue during the general election campaign.

One notable exception is The Philadelphia News' Will Bunch. Although he was not in the traveling press corps, Bunch did elicit Obama's April declaration that he would ask the Attorney General to "immediately review" evidence of potential crimes by the prior administration. (That response remains Obama's most thorough statement on the matter; it is still quoted in wire stories about the potential prosecution of Bush officials.) Given the sensitivity and gravity of potential prosecutions against a prior administration, however, an independent special prosecutor is better equipped to make the decision, as many legal experts has observed.

Law professor Jonathan Turley recently advocated a special prosecutor appointment, in order to investigate crimes regardless of whether the perpetrators were high-ranking officials. "Politicians merely have to get out of the way and allow a special prosecutor to take this investigation wherever it would lead," he told Legal Times. Turley added that he has "resisted" any emphasis on "how high up the ranks" prosecutions should go, because it "misses the point":

If there was a crime, we should not be concerned about where an investigation might lead. It will lead where criminal conduct is found. We do not ask that threshold questions for bankrobbers or purse snatchers. We leave the outcome to the criminal justice system.

Legal Times also asked Turley why his view has "not gained more currency in the public debate." The response is dead-on:

The mainstream media has bought into the concept that this is merely a political not a legal question. Indeed, media often leave the clearly misleading impression that there is an equal academic debate over whether waterboarding is torture or whether warrantless surveillance is legal. To this day, media refers to waterboarding as an 'interrogation technique' when courts have consistently defined it as torture.

Some journalists do approach torture and war crimes prosecution as a serious, legal issue -- attorneys Glenn Greenwald and Scott Horton have done extensive reporting; The New York Times recently editorialized for a special prosecutor; Jeremy Brecher and Brendan Smith have pressed for war crimes accountability in The Nation, and MSNBC's Rachel Maddow has interviewed senators and experts about the Bush administration's alleged crimes. (Fertik also has his own "scorecard".)

With so few journalists directly asking the President-Elect about these issues, however, it is up to the rest of us to put accountability and the rule of law on the agenda. Change.gov is a fine place to start.

--
Ari Melber writes for The Nation, where this piece first appeared.

The Change.gov "Open for Questions" platform invites citizens to submit and vote on questions for the transition team:

Joshuah Bearman: A Former FBI Agent Joins the ACLU -- and Finds Symmetry in Opposition

2008-12-05T14:19:11Z

Cross posted from my home base.

My friend Steven Kotler, a man of prodigious turnout, recently wrote a fascinating story about a former FBI agent who left the bureau for the ACLU. The agent, Mike German, was a once-politically conservative crack undercover agent, compiling evidence in two of the most successful domestic terrorism cases in history.

What forced German into the arms of the agency's rival? In German's last undercover case -- a conspiracy between natural pals: Islamic fundamentalists and American neo-Nazis -- the bosses tried to use his evidence improperly. He cried foul. They tried to transfer him. He said no. Thereupon began his descent into dreaded Whistlblower status, which if you work for the military or intelligence community means that you are not a patriot adhering to rule of law, but a crazy person. (Hey, it worked for the Soviets!) The spy who was left out in the cold found a new home at the ACLU, where he uses his insider knowledge to hold his former employer's feet to the fire. Surprisingly, German points out the similarity between his unlikely career paths:

After two years on the outside, he decided the best way he could
continue being useful was to join the ACLU. "With the FBI, I saw a lot
of very brave people do a lot of very dangerous things. At the ACLU, I
see the exact same thing--but these people aren't out there with flak
vests and big guns taking on the bad guys. They don't have the weight
of the federal government behind them. They stand alone, unprotected,
saying this will not happen on my watch. I wanted to be a part of that."

Among German's projects at the ACLU is leading the charge against "fusion centers." These are repositories for "information sharing," meaning places where the government tries to collect data on its citizens from public and private sources -- doctors, credit card bills, financial information, shopping records, travel arrangements, gambling habits -- and look for patterns. This is the data mining that we heard so much about just after 9/11. Computers were going to help us find the next twenty hijackers. Or, as Rumsfeld would have put it, data mining would help us know those infamous unknowns. Remember all this? The Pentagon called it Total Information Awareness at first, and, reassuringly,their logo was an eyeball shining a light ray out of a pyramid, with the inscription Scientia Est Potentia. Well, it turned out people didn't like the idea of their scientia as the government's potentia.Total Information Awereness was disbanded, but in name only. Data mining lives on as a key technological holy grail for the intelligence community. Now, after revelations about Bush's illegal warrantless eavesdropping and the revised FISA, data mining's inherent dangers to privacy seem even more notable. Especially because, as German points out, data mining doesn't work:

"The whole data-mining model doesn't work," he says. "We're
sub-contracting to companies who want to solve terrorism with
technology. It's pure snake oil." Explaining this, German likes to
point out that pro football teams use much narrower data sets to scout
rookies than the government does hunting terrorists, but they still
draft a guy like Ryan Leaf. "If this kind of predictive analysis really
worked, these companies would be selling their services in Vegas or on
Wall Street. Vegas and Wall Street aren't buying it--only the government
is."

I did an interview in 2003 with Usama Fayyad, one of the world's data mining experts. Fayad is a data mining booster, with his own consulting company, DigiMine. He was also editor in chief of Data Mining and Knowledge Discovery, the primary technical journal on data mining technology. And he was very candid about the limitations of that technology for intelligence gathering:

UF: That's true, and let me give you a tougher scenario. It's one thing
to rate a credit card transaction for its likelihood of being
fraudulent. But as soon as you start looking for groupings of people,
like terrorist networks, which is what Total Information Awareness
needs to do, you now have an exponential problem. Because if there are
N entities, there's an exponential number in N of possible
subgroupings. You're looking for ten people, you don't know which ten,
among millions, and that's an absolutely astronomical number of
combinations.

BLVR: That's a whole lot of evidence extracting and link discovering.

UF: Yes, but it's not impossible. It's just very challenging. It's
never been done on this scale. It's like putting a man on the moon. If
they really want to get it done, it will require a lot of resources,
the best people in the country, and so on.

That was in 2003. And German is saying the same thing today. Fayad isn't saying its impossible. He just says it would require a commitment like the Apollo project. Which begs the question or whether those resources wouldn't be better spent on developing human intelligence rather than spying on our citizenry?

Chris Weigant: How Will Obama Enrage The Left?

2008-12-03T19:42:18Z

I'm going to make a prediction here (one I have mentioned in passing before): Barack Obama is going to do something to absolutely enrage leftists, progressives, and the few remaining Americans who actually call themselves liberals; and, furthermore, he's going to do it within his first 100 days in office. The only thing I won't predict is what that "something" is going to be.

I say this for numerous reasons. Even before Obama started announcing his cabinet picks, he showed over and over again that he was more of a centrist kind of guy than anyone would give him credit for. The right wing, of course, was going apoplectic over Obama (Socialist! Radical! Ultra-liberal!) while at the same time conveniently ignoring George Bush handing out free money to Wall Street, or (for that matter) Sarah Palin running her state's government on a strict "redistribution of wealth" philosophy. But it should also be noted that the left wing was building their own caricature of Obama, one that looked strikingly like the one the right wing was building -- "Obama, the Mighty Progressive." The left refused to take Obama at his word when he spoke of compromise, post-partisan politics, or reaching across the aisle. Leftists everywhere consoled themselves by thinking, "He's just saying that to get elected, once he gets in there, he'll pass everything on our agenda and we'll be so strong in Congress that it'll actually happen."

I hate to rain on anyone's parade, but Obama is guaranteed to disappoint. The right wing won't be terribly disappointed, of course, since they'll have plenty to complain about for the next four-to-eight years. The only disappointing thing to them will be that Obama will not turn out to be the boogeyman they created in an effort to scare the heck out of voters. This means Obama won't be as effective a Republican fundraising tool, since he won't be doing all those things that terrify Republican donors.

The left wing, however, is going to get disappointed with a short sharp shock, soon after Obama enters office. Because newly-inaugurated President Obama is going to pick one issue and swiftly smack the left in the face, by refusing to do what they want him to do. This will be a calculated move, and will likely pay off enormous political dividends for Obama over the life of his presidency.

Call it his "Sister Souljah moment," if you will. By appearing to "stand up" to the left wing, Obama will be seen as charting his own course as a strong and independent leader, beholden to no special interest group of radical progressives. That's how the news media will portray it, at any rate. His approval ratings will likely rise after he does so, since it will serve to calm fears from suburban Republicans and Independents that Obama is going to make too many radical changes too fast.

But it's going to absolutely enrage the left. You can bet the farm on that one. Taking the long view, however, I believe it will actually help Obama get more progressive laws passed. It's kind of doublethink, but bear with me. If Obama starts off his presidency showing strength and independence from the left, it will mean a lot more people out there are going to give him the benefit of the doubt over time. They didn't believe the cries of "Socialist!" in the election, and they're going to get more comfortable with Obama as a result. It will then be up to Congress to challenge him by passing laws even more sweeping than Obama asked for. Which Obama will (perhaps with a show of reluctance) then sign. Meaning more progressive legislation actually gets passed in the end. If Obama removes his "lightning rod" target for the right wing early on, over the long run he'll be able to get better laws passed, with more support from the public than they would normally have.

I could be monstrously wrong about all of this, to be sure. But from watching his campaign, and listening to what he actually said, the portrait of Obama I am left with is one of cautiousness and pragmatism, and not of some sort of progressive icon. Exhibit A in my thinking is the FISA bill he voted for. Exhibit B would have to be the numerous times he reluctantly moved left, without actually fully supporting a populist or liberal agenda. Exhibit C is his intervention with how the Senate treated Joe Lieberman. And that's without even examining his cabinet choices. All of these things point to a very centrist course for an Obama administration, with lots of compromises with political foes.

A good test case will be how President Obama handles the torture question. Will he convene a commission to investigate? Will he offer blanket immunity (or even -- gasp! -- pardons) to get honest answers about what went on? Or will he sweep the whole thing under the rug and "look to the future and not the past," while urging everyone to move on? The torture question is merely the tip of the iceberg (the best bad example, as it were) in how Obama is going to handle Bush's legacy. What Bush policies is Obama going to immediately rectify? What Bush actions will he reverse, even if it takes months? We've never really gotten clear and consistent answers as to how Obama is going to handle the Bush mess, which leaves me wondering what he will actually do when he gets the chance.

But it could be almost any issue, it doesn't just have to be how to deal with Bush's legacy. Barack Obama will likely not make the mistake Bill Clinton did when he entered office with the "gays in the military" issue. Clinton wanted to do what was right, the military balked, and we wound up with "Don't ask, don't tell," which has been a complete disaster. But the lesson here is that Clinton started off by picking a fight with his opponents -- with a bold move that he knew they would hate.

I think Obama is going to do the opposite. I think he's going to come out with some bold move that he knows the left is absolutely going to abhor. [Feel free to offer your own thoughts in the comments as to what exactly this is going to turn out to be, or even if you think I'm barking up the wrong tree entirely.] Because I simply cannot get rid of the feeling that, sometime next January or February, President Obama is going to make a point of picking a fight with some of his own most fervent supporters. They will then denounce him for his outrageous action, and go ballistic in an entirely predictable fashion. And (this is the part I'm least sure about, I have to admit) Obama will emerge from the fray even stronger politically than ever, with more "political capital" to spend on getting the rest of his agenda done. In other words, although it will require more of a "big picture" or "long view of history" type of viewpoint, I don't think it'll be as bad as it will first seem when it happens.

[UPDATE: When I posted this, I wasn't aware of this story at the top of Huffington Post. It seems like we may not even make it to the first 100 days!]

Chris Weigant blogs at: ChrisWeigant.com

Rupert Russell: Why the Conservatives Won't Crack-up, But the Left Probably Will

2008-11-24T10:23:32Z

The predictions of the conservative crack-up anticipating John McCain's defeat appear to have come to fruition. We hear of the post-election GOP power grab among the Governors in Florida, contenders for the chairmanship of the RNC, or the future presidential nominees racing to Iowa. Conservative politicians, pundits and intellectuals are openly struggling to define the reasons for Republic defeat, blaming everything from incompetence to immigration to incumbency.

Each reported argument, disagreement or challenge is welcomed by the progressive media as signs that the conservative crack-up is finally upon us. It isn't. In fact, the Left is in far greater danger of cracking up than the conservative movement ever has.

Conservative infighting is nothing new. Ideological fissures have existed since the battle between the libertarians and traditionalists of National Review in the 1950s to paleoconservative revolt from (alleged) neoconservative dominance in the 1980s. Nothing came of it. Movement conservatives under Eisenhower, Nixon (twice) and G. H. W. Bush threatened to leave the Republican Party and start afresh. It never happened. Evangelicals and anti-immigration zealots said "never" to McCain. They rallied before the convention.

The "conservative crack-up" trope goes back to a 1987 edition of The American Spectator. Disillusioned with Reagan's second term, conservatives debated whether the movement had a future. It was followed by the rise of the Christian Coalition, the founding of Fox News and The Weekly Standard, the explosion of conservative talk radio, Gingrich's Contract for America victory, and the Bush era of Republican dominance. Some crack-up.

Yet, the prediction persists relentlessly. Journalists like to dramatize high-profile defections and public criticisms within conservative circles as tectonic shifts or historic re-alignments. Conservatives threaten defection to pressure their superiors to toe their ideological line. For liberals, it's an exercise in wish-fulfillment: unable to unite themselves, they project their frustrations on hoping for the conservatives to "crack-up" instead.

But what exactly is going to crack-up? Is the Heritage Foundation going to stop sending policy memos to Republican staffers? Are Weekly Standard columnists going to stop appearing on Fox News discussion panels? Is Pat Robertson going to join forces with Howard Dean? The questions are rhetorical for a reason: the conservative Counter-Establishment is the most cast-iron entanglement of alliances and dependencies known in modern American history.

Uniting the factions is a strong cultural base. Becoming a conservative is more than signing up to a handful of policy positions or pulling the Republican leaver. It is a personal calling, a cause and crusade.

For the elites, conservatism is a privileged club with its own histories and rituals that are passed down across generations from experienced mentors to ambitious aspirants. They tell a story that runs from the fragile beginnings of the 1950s, the coming out party of the 1960s, the great advances of the 1970s, the victories of the 1980s, the struggles of the 1990s and the missed opportunity of the 2000s. They give them books to read, memorize and quote, together with the Brooks Brothers uniform to wear and Buckley poses to adopt. Soon, the young conservative has a job at a conservative organization, a new self-affirming social group of like-minded friends, from whom a spouse will the chosen to raise the next generation all over again.

Whether or not they trace their intellectual lineage to the traditionalism of Burke, neoconservatism of Strauss or libertarianism of Hayek, they share a common stigma that conservatism brings in the liberal settings they're forced to inhabit, for the most part, college or graduate school. It is their rejection from the "Liberal Establishment," and their rejection if it, that demarcates the boundaries of the big-tent of conservativism. The discomfort of ideological over-crowding never exceeds the dangers, real or imagined, of venturing out to a hostile, "Liberal" world.

For the grassroots conservatives, conservatism is a not a political game, but a moral struggle against Communists and terrorist appeasers, sex educators and abortionists, regulators and redistributors. These moral categories map onto Democrats and Republicans so perfectly that the loyalty to the GOP never requires reward as the opposing side doesn't hold a different point of view, it's in league with atheism (at best) and evil (at worst).

Newt Gingrich failed to pass a single pledge of the Christian Coalition's Contract with America, and George W. Bush did little to promote school prayer or fund faith-bases groups or ban gay marriage, despite the hot rhetoric. It was Bill Clinton who delivered them the V-Chip, school uniforms, the Defense of Marriage Act and Charitable Choice for faith-based groups. Yet Hillary Clinton was the one deemed the "Antichrist" among these campaigners, not the political secular and adulterous Gingrich .

The organizational matrix of the conservative Counter-Establishment maps perfectly onto this cultural arrangement. The genius of W. F. Buckley, Jr. was to place those with different ideological leanings within the same organization, NR. As conservatism expanded, this model was replicated. Major think-tanks and PACS embraced the diversity of the conservative movement under a single roof.

Sure, there are a few strict ideologues such as The Weekly Standard or The American Conservative, but these are small, elite outfits. They are noisy but have little impact on the grassroots activists, powerful interest groups and corporate-funded think-tanks that make up the core partnerships of the conservative coalition. And these partners are carefully catered for. Conservative entrepreneurs from Buckley to Weyrich to Norquist invest heavily in keeping them united, from banquets in Stamford, Connecticut to weekly meetings at the offices of American's for Tax Reform.

It is the Left that should be fearful of a crack-up. Its past is a history of fractures between whites and blacks, unions and feminists, moderates and radicals. The Left has never been culturally or organizationally unified but has always been and remains a balkanized mish-mash of interest and constituency groups, factions of the Democratic Party, partisan journalists and a disparate academic intelligentsia. The new progressive movement, and its rapid institution-building, represents another, albeit highly significant, Balkan state, not a new Leftist confederacy or empire.

Yet, for the first time, every stripe of the Left and center-Left has united, brought together through their mutual opposition to Bush expressed through the Obama candidacy. Now that Obama has won, the real test has begun. Once the excitement of victory passes, the interest groups will remain united so long as they get their piece of the pie and their privileges are protected. The first test will be the unions whose demands for card-check or the auto industry are already looking contentious among Democrats who they have invested in so heavily. Once Obama takes office, further conflicts will no doubt ensue. Activist journalists and bloggers will peel off as compromises are struck, half-measures are settled for, and his hawkishness towards Pakistan becomes foreign policy (we already saw the first signs of this when the Netroots revolted over Obama's support for the FISA bill last summer).

America has spoken: it is ready for change. The question for Left is: are you? Can the Left become a united front or will it remain a house divided against itself?

Recall Lean Cuisine

2008-11-19T13:12:34Z

UPDATES: Lean Cuisine Recall Page

"Lean Cuisine is taking this action after several consumers recalled finding small pieces of blue plastic material."

The Lean Cuisine meals in question are the Pesto Chicken with Bow Tie Pasta, the Chicken Mediterranean and the Chicken Tuscan.

Consumers can find out whether their meals are affected by looking at the bar code or UPC label on the boxes and calling Lean Cuisine at (800) 993-8625. No other varieties of Lean Cuisine products are affected by this recall, according to the message.

Media calls were referred to a representative, and a message left there was not immediately returned.
Read more: Fisa, Recall Lean Cuisine, Lean Cuisine Recall, Lean Cuisine, Food, Business News