Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Congress chieftains to DOJ corruption investigators: Yo, get a warrant! That and other news of the day in today's Daily Muck.

After more than a little trying I think I've finally gotten a handle on this immigration debate. Or at least the president's slice of it, which goes by the name of 'comprehensive immigration reform'. If I understand this right, 'comprehensive' reform is reform that's so comprehensive that it reforms the thing in question in every way possible at the same time.

So, for instance, comprehensive sex reform -- which, given how things are going in Washington, could be just around the corner -- would mean expanding abstinence education and reducing the number of sexually active teenagers while also fulfilling the universal dream of teenagers everywhere to get laid.

More prosaically, comprehensive military reform would involve replacing all soldiers with robots while increasing the Army's size by five divisions and reorganizing the force structure around sub-divisional units.

Politics and policy make for strange bedfellows, especially when it's all politics and no policy.

A bit more on Brian Ross's reporting on the government snooping through reporters' phone records as part of their leak investigation. TPM Reader ME, in an email this evening, cut to the heart of the matter. In a criminal investigation, which a leak investigation can be, investigators can look into all sorts of private information -- phone records, financial records, travel records. They can subpoena you before a grand jury and on and on. We have only to consider the on-going Fitzgerald investigation or, even more to the point, Fitzgerald's earlier but less well known investigation into suspect Muslim charities.

If this is all we're talking about, it's not news. Indeed, the Justice Dept. has fairly detailed guidelines for federal prosecutors when they must subpoena and otherwise investigate members of the press (See 28 CFR 50:10 "Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media.").

But in his report Ross doesn't seem to be talking about subpoenas in the course of a conventional criminal investigation. He appears to be referring to something more on-going. And the investigators also seem to be using legal methods at least nominally intended for use in counter-espionage or counter-terrorism. In this case, so-called National Security Letters, the use of which was dramatically expanded by the Patriot Act and has grown by more than 100 fold since 9/11. (This November 2005 article in the Post describes how FBI field supervisors can issue NSLs on virtually anyone, often for the most seemingly trivial contacts with persons of interest.)

Given the Bush administration's self-servingly indulgent definition of the War on Terror, I don't doubt that they would define finding leakers as a subdivision of fighting terrorism, or for that matter scrutinizing political opponents.

We need to know more about what Ross is talking about.

It seems of a piece with the administration's record of abuses of power. But what we know is too vague.

Late Update: According to this AP story, the FBI says that it routinely scrutinizes the phone records of government workers in leak investigations. That doesn't seem too surprising.

The FBI spokesman interviewed by the AP said Ross's report was 'misleading' (AP's word, not his) about scrutiny of journalists. But he doesn't seem to say precisely how. Then this ...

"Where the records of a private person are sought, they may only be obtained through established legal process," [FBI spokesman] Carter said.

The FBI can seek warrants and subpoenas from judges and grand juries, either through traditional courts or a secret court established for espionage and terrorism investigations. The bureau also has the power to seek subscribers' telephone and Internet records without approval of a judge or grand jury in espionage and terrorism cases by issuing a National Security Letter.

The FBI sought information last year on 3,501 U.S. citizens and legal residents through those letters, the Justice Department said last month.

Again, this is the rub. Ross's report said they were using NSL's. Are they?

The FBI spokesman doesn't seem to deny it.

TPM Reader FZ on the Bush fisc: "An amusing aspect of Bush's speech was his line, a couple of times at least, about how he will be asking Congress "to fund" this or that immigration initiative. Fund--with what? In olden days, when a president told the nation he wanted Congress to fund a project or program, it actually meant something. Now, it's just a way of saying: Add it to the tab, borrow some more from China. For years he has told Congress to cut taxes. To hear him now, knee-deep in deficits, calling on Congress to "fund" something is hilarious."

Weird ...

BellSouth Corp., the No. 3 U.S. local telephone carrier, on Monday denied turning over customer telephone records to the National Security Agency (NSA) on a large scale as part of the NSA'scall-tracking program to detect terrorist plots.


BellSouth said in a statement on Monday that it did not have a contract with the NSA, which is tasked with eavesdropping on foreign communications and protecting U.S. government communications.

"Based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA," BellSouth said in a statement.

Yep, they are scrutinizing journalists phone-records.

According to ABC's Brian Ross ...

The FBI acknowledged late Monday that it is increasingly seeking reporters’ phone records in leak investigations.

“It used to be very hard and complicated to do this, but it no longer is in the Bush administration,” said a senior federal official.

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.

Ross's report is still awfully murky. But it suggests that the FBI is using new provisions of the Patriot Act which allows for the expanded use of so-called National Security Letters. As Ross explains, "the NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government."

In rule of law terms, I guess there's some extremely mild solace to be taken in the fact that the administration has apparently deigned to follow the law in this case. But a police state law still gets you a police state.

This is what the Patriot Act is being used for. In a free society, law enforcement goes before independent magistrates. Apparently we're now beyond that.

FCC Commissioner Michael J. Copps: "Recent news reports suggest that some – but interestingly not all – of the nation’s largest telephone companies have provided the government with their customers’ calling records. There is no doubt that protecting the security of the American people is our government’s number one responsibility. But in a Digital Age where collecting, distributing, and manipulating consumers’ personal information is as easy as a click of a button, the privacy of our citizens must still matter. To get to the bottom of this situation, the FCC should initiate an inquiry into whether the phone companies’ involvement violated Section 222 or any other provisions of the Communications Act. We need to be certain that the companies over which the FCC has public interest oversight have not gone – or been asked to go – to a place where they should not be."