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Very, very few people know the extent of the NSA surveillance program, part of which is called the Terrorist Surveillance Program and the rest of which we call Program X. We'd be dishonest if we suggested to you we knew how it works. But take a look at an interview Julian Sanchez did with former NSA analyst Russell Tice for Reason magazine in January 2006.

A brief recap: the NSA fired Tice in 2005 after he alleged that a colleague was a spy for the Chinese. (A DOD inspector general's report found "no evidence" to support the charge.) He outed himself in December of that year as a source for James Risen, one of the New York Times reporters who broke the NSA surveillance scandal, and alleged that the program as acknowledged publicly by the president was, he told me last year, "just the tip of the iceberg." That would certainly fit in with Alberto Gonzales and Mike McConnell's recent revelations. While he won't tell reporters what the iceberg exactly is -- he'd risk jail time for that -- Tice did tell me last year that NSA officials weren't particularly concerned about the risk of abuse after the administration told it in 2001 not to bother with FISA warrants. "When I brought up problems, [NSA employees] said, 'Who's gonna stop us? Keep your mouth shut.'"

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Even though Rove's aide Scott Jennings said less than nothing today about the U.S. attorney firings (he wouldn't even testify about emails which had already been turned over to the committee), he did testify about two other areas of interest. One of those concerns the White House's use of Republican National Committee-issued email accounts. A number of aides, including Jennings, violated the Presidential Records Act by using those accounts for official business. The underlying allegation, of course, is that Karl Rove's shop used a kind of off-the-record email system on purpose. Rep. Henry Waxman (D-CA), who's investigating, has called it "the most serious breach of the Presidential Records Act in the 30-year history of the law."

The White House's fig leaf for that has been the Hatch Act, which prohibits using government resources for political activities. Staffers in the White House Office of Political Affairs have both a White House address and computer and a RNC email address and devices. And as Jennings testified today, he frequently used his RNC address for official business (including matters related to the U.S. attorney firings) for "convenience and efficiency." (That's also what Jennings' boss Sara Taylor testified. Rove also found using his RNC blackberry incredibly convenient.) In fact, it sounds like he hardly used his White House address, since he carried an RNC-issued blackberry with him. The problem was not lost on Jennings, apparently, who testified, in response to a question from Sen. Patrick Leahy (D-VT), that he had actually asked for a blackberry for his White House email once.



It was "very early in my employment," he testified, "the President was doing a lot traveling in my region [the South]... I was receiving a lot of email on my official account and I requested [a blackberry for White House email] at that moment, and I was told that it wasn't the custom to give the political affairs staffers those devices."

So even though Jennings was aware that this was a problem and apparently raised the issue with a supervisor, he was told to ignore it. That doesn't quite square with the White House explanation for the illegal use of the RNC accounts, which is "oops."

Congressional negotiators are busy working out a compromise with the Bush administration over reforms to the Foreign Intelligence Surveillance Act (FISA). As a result, the specifics of any prospective legislation are currently unknown. But leading civil liberties and national security experts certainly know what they want the bill to contain -- and some, at least, are inclining favorably to a fix that Jay Rockefeller (D-WV), the chairman of the Senate intelligence committee, is proposing. Here's a guide to what to look for.

Carve-Outs vs. Safeguards. What the Bush administration wants -- and probably has done over the past six years -- is to remove FISA protections from a broad swath of people in the U.S. in order to look for terrorism connections. That has had, and will have, broad implications for what the U.S. intelligence community can collect in terms of domestic communications. "Everything that they've proposed to redefine the term 'electronic surveillance' under FISA, the effect is to put millions of communications outside the protection of FISA. It's a carve-out," says Kate Martin, director of the Center for National Security Studies. The person the administration wants to supervise that carve-out for U.S. persons able to be targeted is... the attorney-general.

Rockefeller's proposal, as it stands so far, doesn't change any existing term under FISA. Instead, pursuant to FISA as it stands, the National Security Agency can collect intelligence unimpeded on foreign-to-foreign communications. The administration would be required to go to the FISA Court for a blanket authorization targeting foreign suspected terrorists, in order to make a case that its methods are likely to net foreign communications primarily. All of what follows is a temporary fix -- set to expire after six months so the administration and Congress can work out a permanent solution -- but after 60 days of surveillance, the administration would have to inform Congress and the FISA Court exactly who has had their communications intercepted. And if the administration believes there's a "significant" pattern of communication between someone in the U.S. and a foreign-based surveillance target, it has to acquire a specific warrant from the FISA Court or end the surveillance.

"That preserves the basic framework of FISA," says Martin, "that to listen in to people in the U.S., you need a probable-cause warrant." No carve-out there, but a lot can change in deadline negotiation.

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Here's a little taste of how Scott Jennings answered any questions that had anything remotely to do with the firing of U.S. attorneys this morning.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) couldn't even get Jennings to answer the question "what role you have in the selection of nominees to be U.S. attorneys." When Jennings refused to answer based on the President's assertion of executive privilege, Leahy cautioned, "now, let's not be too contemptuous of this committee, I'm just asking you what you do."



Other lines of questioning were (slightly) more fruitful. We'll have more on that later.

Note: Jennings' former boss in the White House, Sara Taylor, began her hearing last month with a similar tack, but then ended up answering a number of questions that Jennings has refused to answer.

So here's Sen. Arlen Specter's (R-PA) verdict on Alberto Gonzales' testimony, delivered during this morning's Senate Judiciary Committee hearing with Karl Rove's aide Scott Jennings.

Gonzales, he says, sought to mislead the committee, but should not be investigated for perjury, because his testimony, while misleading, doesn't rise to that standard.

Reading from a Supreme Court opinion on the statute of perjury, which said that a witness cannot be convicted of perjury simply because he is a "wily witness" who "shrewdly" evades the questioner by speaking "the literal truth," Specter said that that's what we have here. Gonzales is certainly "wily" and sought to mislead -- but he spoke, in Specter's judgment, "the literal truth." (Here's how that might be.)

But "just because it's not perjury," Specter said, "doesn't mean it's the way that the highest ranking legal officer in the United States ought to respond to a Senate inquiry." Specter went on to say that he thought that the conclusion of the committee's investigation of the U.S. attorney firings would be to "end the tenure of Attorney General Alberto Gonzales." When that conclusion will come, however, no one knows.

The White House, as expected, claimed executive privilege with regard to testimony by Karl Rove and Rove's aide Scott Jennings about the U.S. attorney firings. You can see that letter here.

But while the White House found that Rove, as an "immediate presidential advisor" was "immune" from Congressional subpoena, they did not make that claim for Jennings. And so he's up this morning before the Senate Judiciary Committee. We'll bring you a little from that hearing, which is going on now, shortly.

Even as Congress seeks to determine whether Alberto Gonzales lied under oath about the administration's warrantless wiretapping program, the Democrats have been negotiating with the administration to update the surveillance under the Foreign Intelligence Surveillance Act (FISA).

As The Los Angeles Times reports this morning, the alleged need for such a fix was precipitated by a FISA court judge's ruling, which restricted the ability of the National Security Agency to collect information on multiple surveillance targets under a single warrant. Additionally, the FISA Court apparently balked at allowing the NSA to collect intelligence on persons whose location inside or outside the U.S. is unknown. Indeed, there's a lot that isn't clear about the ruling -- the FISA Court meets in secret -- but the Bush administration has apparently persuaded congressional leaders that it creates a cumbersome standard for surveillance, given the extent of the threat from terrorism.

Back in January, remember, the administration brought its warrantless wiretapping program -- known as the Terrorist Surveillance Program, which monitors communications between persons in the U.S. and "known" terrorists abroad -- under the auspices of FISA, making it no longer warrantless.

The administration's first proposal, apparently, was to take the power to authorize NSA surveillance of foreign targets away from the FISA court and give it to the attorney general . The Democrats, unsurprisingly, said no -- noting that it's generally a bad idea, but especially a bad idea with this attorney general. The administration came back late yesterday with a proposal that the director of national intelligence would have to sign off too. Again, the Democrats said no.

And here's the Dem proposal, as described by The Washington Post this morning:

Congressional Democrats outlined a temporary plan yesterday that would expand the government's authority to conduct electronic surveillance of overseas communications in search of terrorists.

The proposal, according to House and Senate Democrats, would permit a secret court to issue broad orders approving eavesdropping of communications involving suspects overseas and other people, who may be in the United States. To issue an order, the court would not need to identify a particular target overseas, but it would have to determine that those being targeted are "likely," in fact, overseas.

If a foreign target's communications to a person inside the United States reaches a "significant" number, then an court order based on probable cause would be required. It is unclear how "significant" would be defined.


This would seem to lower the bar in terms of the evidence needed to initiate surveillance. The FISA court has a probable cause standard to initiate surveillance of a member of Al Qaeda or some affiliated group. Apparently the Democrats' plan would initially lower that bar -- allowing the targeting of "suspects" -- but then require probable cause once the number of wiretaps became "significant," whatever that means.

Hopefully clarity will enter into whatever ultimate compromise bill emerges. Negotiators are racing to finish and vote on a proposal before the congressional August recess begins Monday. Unless the bill defines critical terms like "significant" and specifies what standard the government will have to meet to begin surveillance on a given target, the compromise will either snarl in congress, depriving the NSA of a tool it says it urgently needs, or protections on Americans' civil liberties will erode even further. Pick your poison.

Next stop, the Senate. The Senate leadership is expected to bring a vote on ethics reform this afternoon, which, if passed, would leave only a Presidential signature to make reform official. (USA TODAY)

Chiquita Banana has been in trouble recently for hiring a Columbian paramilitary group -identified by the U.S. government as a terrorist organization - to provide protection for the company. Chiquita has argued that, though they knew their actions were illegal, they would be unable to operate in Columbia without local protection. They are now justifying the decision by pointing to a series of meetings with government officials, including Michael Chertoff, that led Chiquita executives to believe the government would allow them to continue paying the paramilitaries. Chertoff allegedly sympathized with the position of Chiquita execs and told them he would inquire on the issue and get back to them, but never did, which the company took as de facto approval. (Washington Post)

Executive privilege! Are there two sweeter words in the English language? Not for Karl Rove, who got the OK from President Bush not to testify in front of the Senate Judiciary Committee today over last year's firing of U.S. Attorneys. (McClatchy Newspapers)

Despite the administration's pledge to increase the number of contracts awarded to small business for Katrina-related projects, a new congressional analysis finds that percentage of such firms represented in contracting has dropped from 12% to 7% of all those awarded. In addition, the report found that $95 million in contracts that the government claimed were awarded to small businesses were actually awarded to large companies or were ineligible receipts. (USA TODAY)

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Well, that long awaited clarification from Alberto Gonzales about his testimony last week has arrived. And as you'd expect, it follows the same line that Gonzales and the administration have been touting, most recently in the letter yesterday from Michael McConnell. We'll have more on Gonzales' parsing of the parsing tomorrow.

Here's what Sen. Patrick Leahy (D-VT) had to say after taking a gander:

“The Attorney General’s legalistic explanation of his misleading testimony under oath before the Senate Judiciary Committee last week is not what one should expect from the top law enforcement officer of the United States. It is time for full candor to enforce the law and promote justice, rather than word parsing.

“The Attorney General has until the end of this week to correct and supplement his testimony. I hope he will take that opportunity to clarify the many issues on which he appears not to have been forthcoming and to tell the Senate Judiciary Committee and the American people the whole truth.”

Planning to eat at Uncle Ted's tonight? If you are, plan on canceling.

A former aide to Sen. Ted Stevens (R-AK) filed papers in 2004 to create a restaurant company called Uncle Ted's Alaska LLC. But, unfortunately, it looks like the aide got cold feet last year, right around the time his boss' criminal investigation came to light. A few weeks following The Anchorage Daily News' initial coverage of the scandal, the aide, Trevor McCabe, dissolved the company. "Decision not to pursue original business idea," is the only explanation.

According to documents McCabe filed with the state, he was registered to run eating and drinking places, food stores and miscellaneous retail stores. Perhaps he had a vision for a chain restaurant devoted to foods loved by Stevens, who is known as "Uncle Ted" up in his home state. Alas, we'll never know (we can only offer our suggestion of "Big Boy" inspired icon). I can imagine a mean salmon sandwich, you could even call it a "Murkowski" for fun. Certainly pork (ribs? chop? roast?) would have been in generous supply.

This wouldn't have been the first time that McCabe used his relationship with Stevens for his benefit -- a connection that's become clearer due to the federal investigation of Stevens. He served on a marketing board with Stevens' son, Ben Stevens, that provided federal grants to the seafood industry, while they were paid "consulting fees" by the same companies receiving the money. He also benefited from a string of the elder Stevens' earmarks that have come under FBI scrutiny.

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