Glenn Greenwald:

A new report to be released this week by the IG, as confirmed yesterday by FBI Director Robert Mueller, details that these abuses continued unabated throughout 2006 as well. It seems there are a few brand new lessons that we can perhaps draw from these revelations:

(1) If unchecked power is vested in government officials, they’re going to abuse that power;

(2) If government officials exercise power without real oversight from other branches, they’re going to break the law and then lie about it, falsely denying that they’re done so, insisting instead that they’re only using their powers to Protect Us;

(3) Allowing government officials to engage in surveillance on American citizens with no warrant requirement ensures that surveillance will be used for improper ends, against innocent Americans.

Who could have guessed? How come nobody warned us about the dangers of “unchecked government power” and the need for checks and balances?

Indeed.

The story I posted earlier today about the FBI having a direct line into all information about telephone customers is another example of what happens when executive power goes unchecked. What is truly sickening is that the people elected to Congress, filling roles that are structurally and constitutionally design to check executive power, have repeatedly chosen to do nothing or, worse, facilitate an expansion of executive powers.

Kevin Poulsen at Threat Level reports on yet another disturbing instance of a telecom company partnering with the federal government to allow unfettered access to their customers voice and data traffic:

A U.S. government office in Quantico, Virginia, has direct, high-speed access to a major wireless carrier’s systems, exposing customers’ voice calls, data packets and physical movements to uncontrolled surveillance, according to a computer security consultant who says he worked for the carrier in late 2003.

“What I thought was alarming is how this carrier ended up essentially allowing a third party outside their organization to have unfettered access to their environment,” Babak Pasdar, now CEO of New York-based Bat Blue told Threat Level. “I wanted to put some access controls around it; they vehemently denied it. And when I wanted to put some logging around it, they denied that.”

Pasdar won’t name the wireless carrier in question, but his claims are nearly identical to unsourced allegations made in a federal lawsuit filed in 2006 against four phone companies and the U.S. government for alleged privacy violations. That suit names Verizon Wireless as the culprit.

…

According to his affidavit, Pasdar tumbled to the surveillance superhighway in September 2003, when he led a “Rapid Deployment” team hired to revamp security on the carrier’s internal network. He noticed that the carrier’s officials got squirrelly when he asked about a mysterious “Quantico Circuit” — a 45 megabit/second DS-3 line linking its most sensitive network to an unnamed third party.

Quantico, Virginia, is home to a Marine base. But perhaps more relevantly, it’s also the center of the FBI’s electronic surveillance operations.

“The circuit was tied to the organization’s core network,” Pasdar writes in his affidavit. “It had access to the billing system, text messaging, fraud detection, web site, and pretty much all the systems in the data center without apparent restrictions.” [Emphasis added]

This is as frightening a development as any other in the already widespread documentation of telecom companies partnering with the Bush administration to give intelligence and military agencies unprecedented, unregulated access to information about Americans. The surveillance described above is not regulated by warrant. It is not targeted. There is no indication that it is minimized. And the nature of the circuit means that the government has the ability to track the physical location of this telecom company’s customers, as well as their financial records, voice, text, and data transmissions.

Equally troubling is that this telecom resisted all efforts by Pasdar to not only limit the government’s access to this massive stream of information, but keep track of what is being transmitted through the circuit.

Two general principles make themselves crystal clear in this story. The Bush administration has sought and achieved unprecedented capacities to spy on Americans without warrant and without regard to duly passed, long standing laws regarding domestic surveillance. The big telecom companies have been willing partners in this process at almost every step. The big telecom companies have been willing partners in this process at almost every step. These companies and this administration must be held accountable for their lawlessness and their repeated, systemic violations of Americans’ civil liberties.

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Cross posted at the CREDO Action Blog.

Yesterday ThinkProgress highlighted a story about Boston College Law School deciding to not honor Attorney General Michael Mukasey as planned when he speaks at their commencement this spring. Mukasey’s selection as the commencement speaker has been the subject of criticism because of his stance on torture.

Dan Roth, a 2004 Law School graduate, said that while he was pleased by yesterday’s announcement, he believes that the school should have rescinded Mukasey’s invitation altogether, because his position on waterboarding conflicts with the university’s Jesuit mission.

“It’s not the time to give someone who has taken that position the platform and the honor,” Roth said.

Eagleionline, the BC Law Blog, includes this quote from my former co-blogger at Emboldened, Austin Evers.

Austin Evers ‘09, who currently serves as the President of the Boston College Law School chapter of the American Constitution Society (ACS), said, “This is good news. It is dangerous to conflate an invitation to speak with an endorsement of the speaker’s views by the institution. Attorney General Mukasey is still very controversial but I think this goes a long way to clarifying BC’s position on the matter.”

Evers is currently working with the administration to host an event on waterboarding and other issues surrounding the Attorney General’s invitations. He is also Managing Editor of Eagleionline.

I think we’re going to continue to see Bush administration officials have their speeches and awards protested and, hopefully, canceled thanks to student and alumni pressure on their schools.  In January students at Choate Rosemary Hall, a prep school in Connecticut, successfully protested the selection of Karl Rove as their commencement speaker. When Rove’s speech was rescheduled, students showed up and challenged not just his presence, but his damaging political views. Hopefully the Choate model will play out at BC and Mukasey will eventually be canceled as this year’s commencement speaker. But if he does end up speaking, I would expect students to continue to protest his presence on campus as representative of an administration that holds views contrary to the rule of law and their school’s mission.

Ryan Singel at Threat Level makes a key observation about the information in the Washington Post story yesterday on the potential FISA deal in Congress.

In the end, it turns out it’s all about the emails.

The fight in Congress and the big push for expanded wiretapping powers has nothing to do with intercepting foreign-to-foreign phone calls inside the United States without a court order. In fact, it turns out that the nation’s secret wiretapping court is fine with that.

That extraordinary admission came from Assistant Attorney General for National Security Kenneth Wainstein at a breakfast on Monday, according to the Washington Post.

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

That would make sense since email doesn’t go directly to a device in most cases, it goes to a server that holds the email until the recipient(s) come to pick up the email — which could be and often is from different parts of the world — think of any business traveler.

But that also means all the hysterical screaming and the dire scenarios constructed by right-wing spying proponents based on very thin evidence of what the secret court actually ruled — all of it is just wrong.

And more to the point, the Justice Department and the Office of the Director of National Intelligence allowed them to be wrong for months. They allowed and facilitated their supporters to scare freedom loving people with phantoms of lost wiretaps.

DNI Michael McConnell, the serial exaggerator who claims to be a non-political straight shooter, himself kept saying the NSA lost 70 percent of its capabilities after the ruling.

If that’s the case, that means that 70 percent of what the NSA does is collect emails inside United States telecom infrastructure and service providers.

This past Monday we saw the Computer & Communications Industry Association send a letter to Congress, stating their strong opposition to retroactive immunity. The CCIA is a trade group that consists of technology telecoms like Google, Yahoo, Microsoft, and Sun Microsystems. They are companies that collect a great deal of information about their users. Google, Yahoo, and Microsoft are three of the biggest, if not the biggest, providers of free email services. If Wainstein, the Assistant Attorney General for National Security, is saying this is all about email, then what the CCIA has to say about the issue is highly relevant.

Wainstein’s statement also blows up the false notion that the concerns regarding FISA have to do with how the government’s surveillance of foreign-to-foreign phone calls. Kurt Opsahl of the EFF writes:

In short, Wainstein said that the current interpretation of FISA does not impede the interception of foreign-to-foreign telephone calls – even after the secret FISA court ruling that McConnell claims required the change in the law. Indeed, it does not impede the interception of foreign-to-foreign emails, VOIP calls or other communications, so long as you know both ends are foreign.

Opsahl goes on to note that this sort of development is exactly why making public policy when a significant portion of the facts are secret is such a bad idea. I’d add that this is even more true when it comes to making decisions about abandoning the rule of law.

In my eyes, the revelations from Wainstein show the lack of urgency for granting retroactive immunity and passing new surveillance laws. The fear-mongering scenarios pushed by President Bush and his Republican cohort are not connected to any real scenario threatening our intelligence community’s collection abilities. This cuts against the need to grant the executive branch even more surveillance power, while reducing the oversight capacities of the legislative and judicial branches. It is also clear that immunity for the phone companies that partnered with the Bush administration to spy on Americans without warrant is even less necessary as a precondition for moving forward and confronting the challenges facing our intelligence community.

***

Cross posted at the CREDO Action Blog.

Another day, another article pointing towards Democratic capitulation on FISA. The Washington Post reports:

Some aides on Capitol Hill were discussing the potential for the House passing the Senate version but breaking it into two votes: one on the portion of the bill that deals with revising FISA provisions and a second on the immunity measure.

This procedural move would allow many Democrats to vote against immunity but still make its approval all but certain since almost every Republican and some centrist Democrats would vote in favor.

I’d hope no one in the Democratic caucus is counting on people who’ve fought long and hard against retroactive immunity to be fooled by a “no” vote on a free standing retroactive immunity measure. The existence of such a vote would be indication enough that the Democrats in Congress failed to defend the rule of law, despite over six months of promises that they would oppose Bush and Cheney on immunity.

Kagro X describes the “compromise” well:

It’s not the White House compromising on the substance of the bill with Congress. It’s the Congress compromising with itself on the procedure by which they’ll hand the White House exactly the substance it demands. One vote or two? It’s your choice! See? Compromise!

The failure of Democrats in the House, at this point presumably the Democratic leadership that is seeking a compromise, to recognize the line in the sand they were supposed to not cross is truly astonishing. You would think that by having watched the Senate Democrats get divided and rolled into voting on and passing the Rockefeller-Bush-Cheney Intel Committee bill that included little oversight and retroactive immunity, the House leadership would know what doesn’t work in this legislative process. Remarkably, like Harry Reid before them, the House leadership is preparing to set a legislative agenda that guarantees that retroactive immunity will pass and executive authority to conduct surveillance of the American public without congressional or judicial oversight will have been expanded.

I’m squarely with Digby on how I will be thinking about the Democrats who are helping the Constitution continue to be shredded by the Bush administration.

The Democrats believe they can fool the stupid rubes they represent by saying they aren’t culpable in this debacle because they voted against it! Yea! And we’re so stupid we’ll absolve them because we won’t figure out that the whole thing was rigged.

Digby also hits on a point that I was making earlier today, namely that regardless of what is likely to happen in the next administration, expansive executive powers to spy on the citizenry should always be opposed.

But this was a principle worth fighting for no matter what. No president, Democrat or Republican, should be trusted with this kind of power. And even if you believe that no wonderful Democratic Prez could ever be so bad, what if John McCain wins? Does anyone seriously think he won’t use it?

It seems that political expedience is winning out over principle in the halls of Congress.

It’s important that the Post article is continuing to rely on aides as sources for a yet-to-be-finalized “compromise.” No deal is final, even if the trend is bad. That means we need to continue to put pressure on our representatives in Congress to oppose retroactive immunity and any “compromise” that sets the table for retroactive immunity to pass. Contact your Representative through CREDO Action and tell them to oppose retroactive immunity.

***

Cross posted at the CREDO Action Blog.

McJoan at Daily Kos highlights an example of telecom lobbying groups expressing their opposition to retroactive immunity (PDF link to original letter).

To the Members of the U.S. House of Representatives:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well.

Sincerely,
Edward J. Black
President & CEO
Computer & Communications Industry Association
[emphasis added]

Marcy Wheeler notes that Google and Yahoo are two key members of the CCIA, as are Microsoft, Sun Microsystems, and Fujitsu. The CCIA has a greater focus on information technology, but many of their members store user data for emails, financial records, and internet traffic. Their members, in short, have a tremendous amount of information that we know the Bush administration has pursued through legal and extra-legal means. That these companies explicitly reject retroactive immunity and the Senate passed SSCI bill is incredibly telling. They know that they’ve obeyed the law and they don’t want others who did not have the strength to follow the law to be excused for their illegal behavior. They want legal certainty, which Congress has an obligation to provide.

I hope this message gets through to the Democrats in Congress that are prepared to cave to the Bush-Cheney-Rockefeller cohort demanding immunity. Of course, the most meaningful immunity will be going towards Bush and Cheney, as D-Day points out. It seems indemnifying Bush from the consequences of his illegal actions is worth so much that the rule of law is about to go out the window to protect this president’s legacy. As someone who has closely watched President Bush’s tenure in the Oval Office, it’s hard for me to imagine the rule of law being destroyed with less being gained in return than this man’s legacy.

Kagro X writes to Democrats in Congress. Here’s part:

“We’ve got to be fair to the companies,” they say.

Why?

Why not let the judges — whose actual job it is to be fair to everyone who comes into their courtrooms — worry about being fair to the telecom companies?

Why not let federal judges — who don’t and can’t take $5,000 campaign checks from the telecom companies — worry about being fair?

Can any of you explain to us why it’s “fair” to let the telecom companies lobby you, fly you on their corporate jets, and give you thousands upon thousands of dollars for your campaigns, and then take the decision on “fairness” away from the impartial judges and give it to you?

“National security sources and methods” might be exposed? Seriously?

Folks, everyone in the world currently thinks that the United States Government is listening to every phone call, vacuuming up every e-mail, and monitoring every web site on the planet.

You say they’re not.

Exactly what “sources and methods” are you afraid terrorists will discover, if they already think everything is monitored?

If that doesn’t sway you, would you at least consider the political and strategic value of trying to win one damn thing during this Congress, before asking America to trust you again in November?

Thanks!

Love,

Regular Democrats

P.S. – I hope Congress knows that the NSA has a copy of this blog post. And Kagro’s. Because the whole world knows this, thanks to Mark Klein.

Democratic House Intelligence Committee Chair Silvestre Reyes, February 14th, in a letter to President Bush:

You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.

Silvestere Reyes, March 2nd, on Late Edition with Wolf Blitzer (video at Crooks & Liars):

Mr. Reyes did not specify what provisions a House bill might contain. But his use of the words “blanket immunity” suggested that he might be moving toward a Senate bill, backed by Mr. Bush, that would protect phone companies that assisted in a federal program of wiretapping without warrants after the Sept. 11, 2001, terrorist attacks.

“I have an open mind about that,” Mr. Reyes said.

“We’re very close,” he added. “Probably within the next week, we’ll be able to move hopefully to bring it to a vote.”

Reyes is shifting from a strong position in opposition to retroactive immunity to being willing to include immunity in a deal to get a vote on FISA legislation. It looks that Reyes is moving towards the Senate-passed SSCI bill that includes retroactive immunity in Title II. One would assume that if the House Democrats are caving on retroactive immunity, they would at least get very strong Title I provisions governing congressional oversight of domestic surveillance activities and an exclusivity provision. No information suggesting this sort of deal is forthcoming, though.

In a political environment that fetishes bipartisanship and deal making, it wouldn’t be shocking that House Democrats sought compromise legislation that mixed and matched Title I and Title II provisions from the House and Senate bills. While I would not support legislation that traded good oversight for retroactive immunity (or, alternatively, poor oversight for no immunity), at least that brand of Beltway deal-making would produce something worthwhile in return for whatever Democrats are tangibly giving up. The added bonus is that a deal on those terms that produced legislation that included either no immunity or exclusivity, minimization, no basket warrants, would create a scenario where Bush was likely to veto the legislation. But we have no indication that this is what we actually would be getting in the deal described by Reyes and I’m no longer willing to give House Democratic leadership the benefit of the doubt on their ability to produce good legislation from negotiations with Jay Rockefeller and Senate Republicans. My good will went out the window when Reyes appeared on CNN touting a possible deal that includes retroactive immunity, something he’d previously blasted as unnecessary for legislation intended to pertain to our security.

As Glenn Greenwald notes, this is a very bad sign and it makes one wonder why the House Democrats even bothered to get our hopes up that they would stand on political principle, in opposition to the destructive desires of George Bush and Dick Cheney.

We need to put pressure back on the House of Representatives to demand that they oppose retroactive immunity. House Democrats must reject any deal that includes immunity. The House-passed RESTORE Act is a good piece of legislation and there’s zero reason for House Democrats to replace any parts of their FISA legislation with the bad Senate bill. Contact your representative in Congress today through CREDO Action and ask them to oppose any legislation that includes retroactive immunity.

***

Cross posted at the CREDO Action Blog.