Sex, Lies, and Pointless Wiretapping

Wall Street and the economy are in flames and the Republican party is smoldering. The party should burst into flames itself about some time in early November.

And one man, smelling strongly of gasoline and burnt matches, tries to blend into the wallpaper. President George W. Bush, widely considered a front-runner for the less than coveted title of "Worst President in History," pops his head up occasionally to make a brief statement, then disappears into the White House in hopes that everyone will forget he even exists. For Bush, the market failure is like a thunderstorm rolling through -- not anyone's fault and totally unavoidable. Both parties in Congress point fingers across the aisle, but no one points to Pennsylvania avenue, where a stupid, stupid man sits nearly forgotten. And he wants to keep it that way.

For the most part, he's been successful. The economy, the market, the election, the two wars he began without any plan to finish them, all keep President Zero off the front page. The lamest of lame ducks, Bush is merely a clockwatcher now, waiting to clear out his desk and start his foundation to promote his lousy ideas (no, he doesn't plan to go away).

But the ghosts of old lies and crimes poke at him, driving him out into sunlight. His neocon paranoia and his contempt for constitutional principles will continue to follow him around long after he leaves office and even into the grave. His shiny new neocon think tank for a New American Century will suffer from its association with its founder -- a man with such powerful organizational skills that he once lost a fair fight to a pretzel.





And so it is that President Bush gets a brief moment in the media spotlight, before it wanders off to more pressing issues, more flashy headlines, and less historically damned figures.

ABC News:

Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.

The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations "extremely disturbing" and said the committee has begun its own examination.

"We have requested all relevant information from the Bush Administration," Rockefeller said Thursday. "The Committee will take whatever action is necessary."

"These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.

Really takes you back, doesn't it? If it weren't for the big stories of Wall Street and the election, this would be a week-long media feast. But scandal for the Bush administration is old news and Bush himself barely exists anymore for the press, so it'll go under pretty quickly -- just one more crime exposed in a long history of presidential criminality.

When the NSA's wiretapping program first came to light, there were a lot of people -- myself included -- who said this was an unconstitutional invasion of privacy. Not so, said Bush. That's crazy talk. The Bush administration was following legal principles and getting warrants for their wiretaps. "Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order," he told us. "Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so."

Yeah, that turned out to be a complete lie. The NSA's program was soon revealed to be (and was ultimately referred to as) a warrantless wiretapping program. Completely ignoring everything they'd said about it up to that point, the Bush administration asserted they had the right to do it. They didn't.

Once it was established that the wiretapping was going on, the constitution be damned, Bush told us that it would only be used to listen in on conversations between a domestic number and one overseas. The implication being that only calls with at least one foreign national would be monitored. In fact, Bush came right out and said it would only be used if you were actually talking to al Qaeda. "What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate," Bush told us. "In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why."

That too was a lie. ABC News again:

[An intercept operator, former Navy Arab linguist, David Murfee Faulk,] says he and others in his section of the NSA facility at Fort Gordon routinely shared salacious or tantalizing phone calls that had been intercepted, alerting office mates to certain time codes of "cuts" that were available on each operator's computer.

"Hey, check this out," Faulk says he would be told, "there's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out. It would be some colonel making pillow talk and we would say, 'Wow, this was crazy'," Faulk told ABC News.

Faulk said he joined in to listen, and talk about it during breaks in Back Hall's "smoke pit," but ended up feeling badly about his actions.

"I feel that it was something that the people should not have done. Including me," he said.

Yeah, probably not. But someone needs to find out from the president which of these parties could be "reasonably suspected to be an al Qaeda link or affiliate" -- the soldier in the field or their spouse at home? ABC quotes linguist Adrienne Kinne as saying the calls were "personal, private things with Americans who are not in any way, shape or form associated with anything to do with terrorism." How can this be? Could it be that -- once again -- George W. Bush is proved to be a lying sack?

NSA wiretapping was a big deal once -- arguably impeachable and inarguably a crime. So how is this keeping us safe -- a bunch of Navy techno-spies jacking off to dirty phone calls from Lance Corporals in Fallujah? It's like Bush is just doing this because he can. It's a tremendous waste of time and resources, it's unconstitutional, unethical, and more than probably immoral. But someone told him he couldn't do it and goddam it, no one tells Emperor Bush what to do. So, like a petulant and contrary child, he does it anyway. He'll show them. It serves no other purpose.

But, of course, this isn't news. John McCain's busy freaking out over something that happened forty years ago. Somehow, that's news. Maybe Barack Obama will trip and skin his knee -- then that'll be news.

But the Constitution in a slow, pointless burn will be a blip on the media's radar screens -- something to fill time between Sarah Palin's Newsweek cover and John McCain handing out torches and pitchforks to angry Republican mobs. It's Bush, so it's not important.

The Worst President in History will watch the media spotlight move on to the newest shiny bauble and breathe a sigh of relief. Here's hoping he doesn't realize he can get away with anything at this moment in history.

-Wisco

Choose Your Adversaries Wisely

Earlier this week, the Senate passed a really lousy law. I mean a real dog. The sort of law that you usually only see in a police state. It's not as bad as the Alien and Sedition Acts, but pretty damned close. The FISA compromise bill is the sort of law that free people used to freak out about. Some free people still are.

Good on them.

American Civil Liberties Union, "ACLU Sues Over Unconstitutional Dragnet Wiretapping Law":

The American Civil Liberties Union filed a landmark lawsuit today to stop the government from conducting surveillance under a new wiretapping law that gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - will be greatly compromised by the new law.

The FISA Amendments Act of 2008, passed by Congress on Wednesday and signed by President Bush today, not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.

The ACLU had their suit all drawn up and ready to file the moment Bush signed the bill into law. While the issue of immunity (I'd call it amnesty, but more about that in a bit) for telecommunications companies who committed felonies has grabbed the attention of many, it's larger problem is that it's a near-elimination of any oversight to the National Security Agency's wiretapping program.

Glenn Greenwald cites Georgetown Law Professor Marty Lederman, who managed to sum it all up in one paragraph:

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.

I'd add that since the NSA doesn't have to prove a damned thing before they start a wiretap, even that tiny restriction about the "foreign location" is entirely theoretical. Bush and Congress have put what is essentially a police agency on the honor system. If they break the law, no one will ever know.

-Continued after the jump-


Disappointing many -- myself included -- Barack Obama, a constitutional lawyer, voted for this awful police state law. Some of the reactions to that vote are a bit overblown -- the bill would've passed regardless and people are acting as if Obama cast the deciding vote.

But just as disappointing, in my mind at least, is that Obama decided he could cast a vote that wouldn't make any difference in order to bolster his security bona fides. Politically, this is stupid, since the people he's hoping to mollify will expect this authoritarian crap all the time. It seems to me that voting against the FISA provisions would've been a zero risk proposition -- just talk about the telcom immunity to explain the vote. The only people who think that telecommunications companies absolutely must get immunity from lawsuits are right wing partisans who'd probably never vote for Obama in a million years. That was the way to address this issue -- it's an issue of crime. If someone were to criticize the vote, Obama could come back with the accusation that they were being tolerant of lawbreaking -- i.e., "soft on crime." After Enron, people don't like corporate criminals any more than they like street criminals.

But the deed is done. The question isn't whether or not it was a good idea, the question is "What happens now?" For me, I re-up to the ACLU and back the lawsuit. For others, the answer is -- somewhat counter-intuitively -- to back Obama.

"Barack Obama believes in the Constitution. He's a constitutional scholar. I believe that he will have a better chance to look at these powers that have been given to the executive branch, [even though] he'll be running the executive branch," says Senator Russ Feingold, a very vocal opponent of the bill. "I think he will understand and help take the lead in fixing some of the worst provisions."

I've found myself repeating more than once electoral lessons I've learned. One more time won't hurt any, there are only two that apply here. First, if you want a candidate who's going to do everything you want them to, you're going to have to run yourself -- that's the only way that's ever going to happen.

Second, given the previous fact, you're going to wind up voting for the adversary you'd most want to have. Ask yourself this; would you rather fight Barack Obama on a few things or John McCain on everything? It's a numbers game -- more fights means more losses. How often are you willing to lose?

Feingold's not the only one who believes that Obama's plan may be to revisit FISA as president. Former counsel to Nixon John Dean, a man I believe has found his path to redemption in being very critical of Bush in a "right on the money" way, spoke to Keith Olbermann on MSNBC's Countdown:

DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that is something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets up on the Senate floor and says, “I‘m keeping that option open.”

OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN: Exactly...

That's why I said earlier that it's not amnesty. And, as I also pointed out earlier, limiting your battles means limiting your losses. It may be that Obama voted for this because this window of opportunity was in danger of closing, that voting for immunity was a way to prevent amnesty.

Not that that makes me any happier about it. It was going to pass regardless and making a stand on principle would've held no political risk -- at least, the way I see it. Obama could've voted against this bill and still wound up in exactly the situation we're all in now. We're going to spend the rest of Bush's term with this law in place and giving Bush the benefit of the doubt, putting the NSA on the honor system, is foolish beyond all words. History has shown that the Bush administration is a little light on morally and ethically aligned people. If something can be abused, it will be abused. Right and wrong, legal and illegal, are foreign concepts to people who work in the White House.

Meanwhile, McCain's getting away with being a big backer of the bill, hypocritically being critical of Obama for voting for it, and just as hypocritically not showing up for the vote himself -- how important could McCain possibly think this bill is? The opportunism is as transparent as crystal.

Where do we go from here? The only direction we can -- forward. And the fight doesn't end in November. In fact, with democracy, the fight never ends. The idea that we can elect the perfect candidate and history will stop is pure fantasy. Fight now, fight after November, and fight long into the future. It's an absolute dead certainty that you'll be having that fight with either Barack Obama or John McCain -- a third party president is pie-in-the-sky delusion.

In fact, I'd argue that voting third party is pretty much counterproductive. I didn't used to think that, but giving it more thought, I do now. You need to think like a national campaigner -- if Barack Obama loses to McCain, Democrats aren't going to be "taught a lesson." No, if you're a national campaigner and you see a little handful of protest votes and a big block that voted for McCain, who are you going to aim for next time? If McCain wins, the "centrist Democrats" win the argument one more time and the party gets yanked even further to the right -- history shows that the more Democrats lose, the more they resemble Republicans. Vote third party and you're guaranteed to be discounted. Worse, you move the nation closer to a one-party system.

So here's your choice; McSame or Obama. Who would you rather have your fights with?

-Wisco

Technorati tags: politics; Constitution; Fourth Amendment; law; privacy; FISA; crime; elections; 2008; Who would you rather lose a fight to, Barack Obama or John McCain? What's worth Bush III?

How Important Can It Be?

Congress and the President have no higher responsibility than protecting the American people from enemies who attacked our country -- and who want to do so again. Terrorists in faraway lands are plotting and planning new ways to kill Americans. The security of our country and the safety of our citizens depend on learning about their plans. The Protect America Act is a vital tool in stopping the terrorists -- and it would be a grave mistake for Congress to weaken this tool.
-President Bush on renewal of legislation revamping the Foreign Intelligence Surveillance Act of 1978, October 10, 2007

Back in October, it was of supreme importance that the "Protect America Act" -- a revamp of FISA -- be renewed. Democrats passed Bush's legislation, which legalized his previously illegal warrentless wiretapping of calls with a party outside the US, but included a "sunset provision," where Bush wanted the retooling to be permanent.

That sun sets next month and, once again, Bush's warrantless wiretapping will become an issue -- this time, in the middle of a presidential primary. Expect a crap storm. But remember this:

Associated Press:

Telephone companies have cut off FBI wiretaps used to eavesdrop on suspected criminals because of the bureau's repeated failures to pay phone bills on time.

A Justice Department audit released Thursday blamed the lost connections on the FBI's lax oversight of money used in undercover investigations. In one office alone, unpaid costs for wiretaps from one phone company totaled $66,000.

In at least one case, a wiretap used in a Foreign Intelligence Surveillance Act investigation "was halted due to untimely payment," the audit found. FISA wiretaps are used in the government's most sensitive and secretive criminal and intelligence investigations, and allow eavesdropping on suspected terrorists or spies.

Bush's super important, must-pass-or-we'll-all-die wiretapping is so damned unimportant to the FBI that they can't even be bothered to pay their damned bills. That explains the retroactive immunity for telcoms that Bush wants -- the guy from the collection agency demands it. The FBI is an arm of the Justice Department, which in turn is an arm of the White House. You'd think President Bush would be breathing over the shoulder of these fed tappers -- he's so keen on protecting America and all.

What this story proves is that the FISA revamp was a "cover your ass" piece of legislation for the Bush administration. They'd been caught in the commission of a crime and they needed to make the crime legal -- fast. So anyone who wasn't for the then-illegal wiretaps hated America and was siding with the terrorists.

Since warrantless wiretapping was legalized, how many times has evidence obtained through them been used in court? Zero. So much for the earth-shattering importance of the legislation. Now we find out that it's as important to the FBI as office supplies -- "We're out of pencils again -- oh, and by the way, we need to pay for wiretaps. Should I just get it from petty cash?"

It also points out the problem with all these "let's run government like a business" types -- they couldn't run an Amway franchise. What successful business gets its phone service cut for non-payment? Bush, being the first MBA president, has proven that he can't run government any better than of the private ventures he'd tried.

But Bush's failures aside, this is really about how trivial the FBI seems to think these wiretaps are. It's no wonder, given their track record of zero convictions -- or even indictments -- that they don't make them much of a priority. The real purpose of the "Protect America Act" is to cover the collective asses of the Bush administration and, the President hopes, the telecommunications companies who were complicit in his illegal and failed program. The legislation really serves no other purpose -- the rest is just window dressing.

The ACLU sees the timing of the sunset provision this way, "[T]he sunset will fall in the middle of the politically charged primary season, where it may be even harder to rein in intelligence activities already in progress than it is to resist expansion of those authorities in the first place."

I disagree. The underlying issue in this campaign -- for both Democrats and Republicans -- is that Bush sucks and can do no right. That's why Mitt Romney's having so much trouble buying the GOP nomination; he's the "Yay for Dubya!" candidate. He seems to believe that the only mistake Bush has made is not being an exaggeration of himself. Whatever Bush is doing, Mitt would do it more. That's a losing hand.

Democrats risk almost nothing by opposing this legislation -- even if they'd voted for it before. That's what the sunset provision was for. And they can point to the FBI's outstanding phone bill to demonstrate how seriously the Justice Dept. takes these wiretaps. Not only is this a Bushie brainstorm, but the FBI obviously doesn't give a crap about it. Why continue the program needlessly? It was a bad idea that went pretty much the way all bad ideas go. Bush has been given the benefit of the doubt, the program was tried, and the program failed. Go back to the original FISA, which has served us well enough in the past.

In my mind, standing by the renewal is the political loser. And every GOP candidate -- with the likely exception of Ron Paul -- will do just that. They have to -- their rhetoric demands it. Democrats should use their primaries as a bully pulpit to kill it, cremate it, and scatter its ashes to the four winds.

When the FBI can't even be bothered to pay for it, when FISA wiretaps are cut mid-conversation, we know how important they really think it is.

--Wisco

Technorati tags: politics; FISA; elections; 2008; Republican; Democrat; ACLU; scandal; Warrantless wiretaps are so damned important that the FBI can't be bothered to pay for them