White House Moderates Position On Protected News Sources

Call it the Judith Miller Law, but here's a first tangible move toward re-charging a First Amendment effectively trashed by perpetual Fake War footing and the threat of reporters going to jail while protecting confidential sources. The impending compromise gives more discretion to individual judges in deciding when it is in the public's interest to protect source identity.

It doesn't take a genius to predict that a flurry of appealed Supreme Court-bound cases will surely ensue, but the implications for increased transparency are positive. Whistle-blowers won't have to risk as much, so the flow of information to reporters will open up a bit. Not to expect Edward R. Murrow to resurrect or anything, but it's the first bright spot for traditional news reporting in a long time. It could even have commercial benefits--the news media seldom ruminate on how we The People might be buying less because they're putting out crappy, weakly-reported product.

The White House had been holding the hard-line status quo, and President "Make Me" Obama deserves an attaboy for giving some ground:

“We expect this proposal to move forward with bipartisan support, and the president looks forward to signing it into law,” said Ben LaBolt, a White House spokesman, who noted that the Obama administration was “the first administration in history to support media shield legislation.”

The protection would apply not only against subpoenas for reporters’ testimony or information but also against investigative efforts to obtain phone and Internet records to find out who had been talking with them.

Under the agreement, the scope of protection for reporters seeking to shield the identities of confidential sources would vary according to the nature of the case: civil, criminal or national security.

In civil cases, the litigants seeking to force reporters to testify would first have to exhaust all other means of obtaining the information. Even then, the judge would apply a “balancing test,” and the burden would be on the information seekers to show by a “preponderance of the evidence” why their need for the testimony outweighed the public’s interest in news gathering.

Full article at the New York Times.

The Need To Roll Back Presidential Power Grabs, by Arlen Specter

The tachometer swings, momentum builds. Senator Arlen Specter released the above-titled article in that respected journal of congressional politics, The New York Times Review of Books. Admittedly, it's full of juicy disclosures, and was published just as he was switching parties. Short-short: Specter fingers Dick Cheney as being responsible for using the telecoms to spy on "tens of millions" of Americans and for sabotaging previous legislative efforts to restore the Foreign Intelligence Services Act (FISA) and the rule of law. Nothing we didn't know, but any Pug who said that two short years ago would've soon been found with a Dead Girl and a Live Boy.

Coupled with the recent leak of the existence of NSA eavesdropping transcripts on conversations Rep. Jane Harman had with unnamed Israeli lobbyists, a.k.a. spies, a move clearly meant to threaten Harman, and you've a pretty good indication Cheney has active stay-behinds in the apparatus. If so, he can still use past and possibly present surveillance to put the fear of exposure into politicians and bureaucrats on both sides of the aisle. In Harman's case, she's a Dim who sits on the Intelligence Committee and has visited Israel 22 times in the past few years. She's vulnerable as hell, and all Cheney had to do was note the mere existence of transcripts to back her down.

(Note: since the transcript is about the Israel Lobby promising to get Harman put on the Intelligence Committee after the 2006 elections in exchange for keeping a couple of their red-handed own out of jail, there are different, more hopeful interpretations for the source of the leak. However, the leak was a naked demonstration of power, and Harman is now the most vocal defender of the Bush Administration's use of surveillance. Gonzales had previously quashed congressional exposure of the surveillance and protected Harman, by then an indictable criminal. Now, as threatening legislation looms, boom! The embarrassing leak. Cui bono? Veep Throat. My money's on Cheney as source.)

Evidently the NSA and "Veep Throat" have nothing on Specter. If they do, we'll hear about it soon. There were huge problems with the 2006 version of his same basic bill, including executive ability to order ISPs to hand over all communications without going in front of a judge. Still, they're playing in a different stadium now. To name but a few examples, the Pravda, I mean Washington Post, stated this week only 21% of Americans now identify themselves as Republican, House minority leader John Boehner actually used the word "torture," and a civil war is being fought in the former goose-stepping-in-unison RNC.

If he gets the anti-surveillance, anti-signing statement legislation through as described, I'll take back (most of) the bad things I've said about the Senator from Pennslovania:

In the seven and a half years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, at the expense of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new president will support.

First, I intend to introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion on whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues—including the statutes forbidding flag burning and requiring Congress to abide by federal employment laws—and I will follow those.

Second, I will reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration's warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008, this issue may yet be successfully revisited since the courts have not yet ruled on the legality of the immunity provision. My legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded.

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Further, I will reintroduce my legislation from 2006 and 2007 (the "Presidential Signing Statements Act") to prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress. These statements, sometimes issued when the president signs a bill into law, have too often been used to undermine congressional intent. Earlier versions of my legislation went nowhere because of the obvious impossibility of obtaining two-thirds majorities in each house to override an expected veto by President Bush. Nevertheless, in the new Congress, my legislation has a better chance of mustering a majority vote and being signed into law by President Obama.

To understand why these steps are so important, one must appreciate an imbalance in our "checks and balances" that has become increasingly evident in recent years. I witnessed firsthand, during many of the battles over administration policy since September 11, how difficult it can be for Congress and the courts to rally their members against an overzealous executive.

Numerous war powers statutes remain at legal loggerheads with citizens' rights in a time when the definition of war itself has been widened and loop-holed. At least this bill opens the way for ACLU lawsuits to engage the courts for definition. Arlen Specter...I've had stranger bedfellows, but none I care to disclose at this time. The rest here.

Cheney Telegraphs Nuclear Or Biological Attack With Skillful Cheer

Today Dick Cheney granted an interview to Politico, of all places. From this we know his wheelchair was not rolled into a pool of starving piranhas, that his Pumphead heart still beats and he has embarked on an internet-savvy PR campaign. We learn he owns an Amazon Kindle, that he's planning a book which will reveal how torturing people kept American soil from being attacked by external terrorists for 7 years. With the help of his earth-daughter Liz, his cloaking device worked pretty well throughout the session, so he managed to come off as remarkably life-like...at times even achieving a disarming quality. Until one examines the synthetic output:

Former Vice President Dick Cheney warned that there is a “high probability” that terrorists will attempt a catastrophic nuclear or biological attack in coming years, and said he fears the Obama administration’s policies will make it more likely the attempt will succeed.

Can't we hold this anarchist in jail, or something? He provides more specific detail of the horrific event:

Cheney said “the ultimate threat to the country” is “a 9/11-type event where the terrorists are armed with something much more dangerous than an airline ticket and a box cutter – a nuclear weapon or a biological agent of some kind” that is deployed in the middle of an American city.

“That’s the one that would involve the deaths of perhaps hundreds of thousands of people, and the one you have to spend a hell of a lot of time guarding against,” he said. “I think there’s a high probability of such an attempt."

Indeed. To approach the shock levels which followed 9/11, the loss of life from an attack would have to be at least an order of magnitude higher. So here's a red-blinking dot to connect, or not. Cheney's skillful Politico messaging was imparted just as a global threat warning was being issued by the State Department on Monday, February 2nd. A similar warning was issued to embassies and military installations on September 7th, 2001, and then updated on September 10th, 2001.

This "entity" is legion, they are in the business of threat-mongering, and where none sufficient could be conflated, they created one. That's a proven practice in their individual and collective histories as related in "To Russia, With Hate." Given the fixes necessary to feed their dreary highs, one should not disallow the proactive arming of a threat if it serves their continuing interests. Therefore, the Entities personified by Dick Cheney can be suspected as Public Enemy #1, and the threats they always pose are as serious as the mushroom clouds they're fixated upon. This is their business, this is their livelihood, and if you climb into their unhinged calculating heads you may hear questions such as these: "What's the acceptable loss, and where would it have greatest effect on funding?"

Perhaps there are such things as coincidences, the timing of the World Caution notice is mere prudence, and hopefully I'm even more paranoid than Cheney and nothing he chimed on with will happen if we stop torturing people from the third world whose uncle stole someone's goat 60 years ago and got turned in for a vendetta. Just as cheerfully I hope, probably forlornly, that Team Obama is closely monitoring the whereabouts and communications of Cheney and his associates. The most prudent thing to do would be to dispense with trials and proceed to glib denials and unfortunate accidents.

Why The NSA Spies On All Americans

Simple. Because it's much easier to record all digital communication signals than to triage them in real time. Voices and keystrokes are converted to bits which pass through surprisingly few central nodes, so "wiretapping" doesn't technically apply any longer. That's the dodge. "Monitoring" would be more like it. "Digital processing" more accurate.

You can perform some semantic analysis in real time, catch data clusters, link them to related meta-data and examine for relationships. When you find fishy stuff, you pass the suspects over to a financial transaction analysis program. If you get flags there, too, you put ears and maybe eyeballs on them and scrutinize for terrorist ties and activities. Then the optical disk slides back in place, you add the result string into the data pool so it can learn, you file report and cover butt.

The first problem with eavesdropping is intuitively obvious: it's useless if the bad guys know it's happening. The primary value is against unsuspecting people who think their communications are secure. Which brings us to the second problem, one painfully un-obvious to Americans: having the tools guarantees they'll be used against law-abiding citizens, political opponents, competitors, celebrities, defense lawyers. It's not "warrantless wiretapping." It's a huge expert system under ongoing development which can be used to drill back into anyone's communications:

National Security Agency analyst Russell Tice, who helped expose the NSA's "warrantless wiretapping" in December 2005, came forward on January 21st with more sallegations. Tice told MSNBC's Keith Olbermann on Wednesday that the programs that spied on Americans were not only much broader than previously acknowledged but specifically targeted journalists.

"The National Security Agency had access to all Americans' communications -- faxes, phone calls, and their computer communications," Tice claimed. "It didn't matter whether you were in Kansas, in the middle of the country, and you never made foreign communications at all. They monitored all communications."

Tice further explained that "even for the NSA it's impossible to literally collect all communications. ... What was done was sort of an ability to look at the metadata ... and ferret that information to determine what communications would ultimately be collected."

According to Tice, in addition to this "low-tech, dragnet" approach, the NSA also had the ability to hone in on specific groups, and that was the aspect he himself was involved with. However, even within the NSA there was a cover story meant to prevent people like Tice from realizing what they were doing.

"In one of the operations that I was in, we looked at organizations, just supposedly so that we would not target them," Tice told Olbermann. "What I was finding out, though, is that the collection on those organizations was 24/7 and 365 days a year -- and it made no sense. ... I started to investigate that. That's about the time when they came after me to fire me."

When Olbermann pressed him for specifics, Tice offered, "An organization that was collected on were US news organizations and reporters and journalists."

"To what purpose?" Olbermann asked. "I mean, is there a file somewhere full of every email sent by all the reporters at the New York Times? Is there a recording somewhere of every conversation I had with my little nephew in upstate New York?"

Tice did not answer directly, but simply stated, "If it was involved in this specific avenue of collection, it would be everything." He added, however, that he had no idea what was ultimately done with the information, except that he was sure it "was digitized and put on databases somewhere."

Tice first began alleging that there were illegal activities going on at both the NSA and the Defense Intelligence Agency in December 2005, several months after being fired by the NSA. He also served at that time as a source for the New York Times story which revealed the existence of the NSA's wireless wiretapping program.

Over the next several months, however, Tice was frustrated in his attempts to testify before Congress, had his credibility attacked by Bill O'Reilly and Rush Limbaugh, and was subpoenaed by a federal grand jury in an apparent attempt at intimidation.

Tice is now coming forward again now because George Bush is finally out of office. He told Olbermann that the Obama administration has not been in touch with him about his latest revelations, but, "I did send a letter to, I think it's [Obama intelligence adviser John] Brennan -- a handwritten letter, because I knew all my communications were tapped, my phones, my computer, and I've had the FBI on me like flies on you-know-what ... and I'm assuming that he gave the note to our current president -- that I intended to say a little bit more than I had in the past."

Until we define digital privacy rights, we live in a surveillance state and it will be very hard, Obama Administration or no, to fold this impertinent genie back into the bottle.

Obama Staffs Another Fictional Bush Cabinet Post With Actual Person

He named Dennis Blair, as the new DNI. 6th generation Navy man. Former Rhodes scholar, thinker for one of the two democratic think-tanks in existence, friend of John Podesta. Although he may be a competent guy, probably better than the outgoing John "Pardon Me, But I Have Death Squads To Run" Negroponte. We spend $100 billion or so, not including black budgets, on this shit every year. What with all the decisive victories it's achieving, like in the video above, I was thinking "Hey! What the hell, let's see what happens if we spend less."

But we obviously, desperately need another federal agency that deals with "intelligence." I mean, there's only the Director of National Intelligence, Central Intelligence Agency, Defense Intelligence Agency, Department of Homeland Security, Federal Bureau of Investigation, National Geospatial-Intelligence Agency, National Reconnaissance Office, and National Security Agency. And let's throw in the Secret Service, DEA, Centac, ATF, BNR, and the Park Rangers. We totally have to have this!

In Praise Of Warrantless Wiretapping

People have been disillusioned or angered by Barack Obama's vote for the latest FISA bill. Brother Tim, for example, Zoey & Me, and Still Life Living are in those camps, and they're thinking bloggers who deserve more explanation than the press or Congress is likely to give. I will attempt to shed some light on the murk, and because of my past work and circumstances am in position to do so. First, let me lower your expectations: only 30% of Americans believe in evolution. Roughly the same percentage of people who've gone to college. The smart thing for liberal-leanin' people is to lay in the good liquor and ammo, secure the perimeters and wait for things to get worse. We could very well fail on rolling FISA back.

While strongly supporting enhanced privacy rights and being part of a "Get FISA Right" group which generates hundreds of mails to the Obama campaign per day, I know the fight for privacy rights must occur over a long term, can best be fought in context of an intrusive, ineffective, irresponsible government, and that an enhanced, up-to-date rights package will eventually be won. Here and now, pertinent details make the controversy far less black and white than one would think. In short, the eavesdropping has been longer and far more extensive than commonly known--so extensive by now that voting the FISA bill down wouldn't have actually changed any surveillance practices. To a slight extent, the new bill slightly reigns in, or procedurally formalizes, what was happening.

You probably remember back in late 2001 when the national press announced the terrorists had been recorded on September 10th of that year, relaying code words to each other like "the match is set for tomorrow." At the time, I found the admission very curious. How did the government come by those recordings? If they had been monitoring the terrorists that closely, you'd reasonably suppose, gee, maybe they also should've stopped them from hijacking four planes, killing a few thousand people, and toppling the towering symbols of American might. Whatever you believe really happened, somehow the government was subsequently able to find the digital impressions of those terrorist calls and reconstruct them. Either way, it denotes a powerful ability to reach out and touch someone.

America has devoted tremendous resources to collecting data about its enemies, and collection has gotten steadily easier. The only distinction between a phone call and an email is they're encoded differently. Both pass through network backbones and have to be routed to specific addresses; as you know by looking at any phone bill, every call leaves a precise record. The record is logged by a router, and your digital signals are even reported back to you, as is any transaction made with a credit card or online. So if the NSA is tasked with monitoring conveniently amorphous foreign enemies like al-Qaeda, there is no feasible way to do its job without also spying on American citizens who come in contact with its members, wittingly or not. Griping about the tragic, mystifying dearth of good hummus in America could be plotting the next 9/11, and the whole surveillance needs snowball on from there.

I'm not saying the NSA or its new offshoots are only monitoring al-Q or legitimate threats, nor that I agree with Obama's vote on a surveillance bill. I'm saying the poor quality of debate and dim understandings of what the surveillance constitutes are vital problems to be addressed. My purpose is to point out the gap between the ease of monitoring and the difficulty of limiting it in ways which preserve the spirit of the Constitution, and allow the country to reasonably protect itself while respecting and newly defining rights. While most Americans don't want to be spied on, most Americans also fully support the notion of spying on al-Qaeda, or as they might call it, "Uppity Muslims." There's tremendous tension, national existential tension and unanswered questions balled up around how to properly eavesdrop.

While 20,000 or so Obama supporters like me don't like it, I believe that Obama honestly thought voting for FISA was the right thing to do, and I have to admit that when he did, he followed the collective will of 300 million Americans. He said he would filibuster against it because of telecom immunity, and he voted against that part. He said this law does not strike the right balance, he voted for it because it was better than the previous status quo, and he would redress it from a better position in the Oval Office. I believe each of those points. My biggest frustration over his vote was that I think it was a tactically weak move.

Obama is a very smart, principled, ambitious man who happens to be a politician. He's a consensus-builder, has portrayed himself as bi-partisan, and because he wants to get the power to serve his veiled biases, he's pragmatic. Ron Paul, Dennis Kucinich, Ralph Nader hold idealistic appeal, but they couldn't have gotten elected in 1860 much less now. And speaking of which, Abraham Lincoln refused to promise to end slavery after he secured his party's nomination. Yet he ran on an anti-slavery platform! Abolitionists, the progressives of pre-bellum America, hated him for it. Who now argues it would have made no difference to America if Stephen Douglass had been elected instead of Lincoln? Washington, Jefferson, FDR, Teddy Roosevelt, Reagan, and other presidents were pragmatic ideologues. I'm not saying we should grant Obama the stature of Washington, FDR or Lincoln based on what we've seen. I'm just saying we should not write him off for playing necessary politics, the kind all our other presidential candidates had to play.

His mistake on FISA does matter, and we're not going away. He knows that, and nodded encouragingly to us to keep going. It's so easy to get discouraged, so natural to be disillusioned, and living memory says we should be. But this is the only open game in town. We have to build outriggers onto this sinking democracy which can also function as patios, and reacting disproportionately to a relatively small leak in a pontoon isn't very productive. Plugging this one will be really simple. Once the Pugs realize Obama can spy on them, they're going to help us win this issue with rifles and plasters, outcries and buckshots, and we'll see just how fast the ambivalence of strange bedfellows can turn passionate.

Telcos Get Their Precious Immunity

Here are the Senators who voted for the Feingold amendment, which sought to strip immunity from the bill:

Akaka (D-HI)
Baucus (D-MT)
Biden (D-DE)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Byrd (D-WV)
Cantwell (D-WA)
Cardin (D-MD)
Casey (D-PA)
Clinton (D-NY)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Harkin (D-IA)
Kerry (D-MA)
Klobuchar (D-MN)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Menendez (D-NJ)
Murray (D-WA)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Sanders (I-VT)
Schumer (D-NY)
Stabenow (D-MI)
Tester (D-MT)
Whitehouse (D-RI)
Wyden (D-OR)

"I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure."

Statement of Senator Russ Feingold

The Future Of American Surveillance: Obama's FISA Firestorm

As America waits to die and be reincarnated, there's a storm raging in Obama's core base and it's one I'm part of. An interest forum was started on "My Barack Obama" over his support for the renewed Foreign Intelligence Surveillance Act, one which renders telecommunications providers immune from any civil suits arising from illegal surveillance of US citizens. In 6 days the group, aptly named 'Senator Obama--Please Vote Against FISA' grew to over 20,000 members.

Just as internal dissent crested, Obama responded by re-clarifying his position on July 3rd, basically saying that 1) the revised FISA is an improvement over the Patriot Act, 2) we need to have something like it, and 3) he'll work to strip telecom immunity from it later. Obama's response was pretty good--his subtext even says, "stay up in our grillework on this one"--but it's destined to be overwhelmed by events, events that will be interesting, sort of like when Ulysses sailed between Scylla and Charybdis was "interesting."

There are a mountain of details surrounding FISA, the NSA, new agencies under DHS, and the legislative battles to wonk out about, but let's gloss over what I learned from reading 1,000+ emails on it over the holiday weekend and cut to the chase: is it spying for a government to record your every phone conversation, fax transmission, most of your emails, and peek at your computer data?

I hate to grant this to the Bush Administration, but to a legal beagle, that's a pretty fair question. Fertile grounds for interpretation, and that's what lawyers will do until you take a shovel and whack it over their heads until the whimpering sounds stop coming out of their mouths. Definitions of privacy, the limits thereof, and what it constitutes have not been considered in a digital context for the citizens. For companies familiar with the terms "fair use" and "safe harbor," yes, it has been duly considered under the Digital Millenium Copyright Act, which treats commercial artists, software publishers, and the companies who treat them like serfs as virgins inviolate. In a nutshell, however, average Americans don't have any digital privacy rights whatsoever. The reasons for this are surprisingly technical.

When I say, "you're being spied on," it might sound paranoid. Sure, I may be a smidgen prone to paranoia, and that might be related to, oh, working with data mining, security, and call processing at companies involved in so-called warrantless wiretapping. All of a given day's phone conversations can be stored on a drive smaller than a box of Kleenex, and they can all be searched for keywords in real time. Naturally, it's most efficient to perform these operations directly at telecom network operations centers.

For regular folks who avoid saying "tomorrow's VX shipment to Turkey" on the phone it's no big deal, really. Unless you're bored muslim teenagers from Buffalo talking big, the defense lawyer for a charity which gives money to poor Albanians, or are having an affair with the spouse of one of the 25,000-50,000 people who works for the NSA, you're pretty much in the clear! No, the reason you're being spied on at all is mostly due to incompetence. The government's way of finding a needle in the haystack is to say, "Yes, yessss. I know precisely what we must do to find that needle, Mr. President. We will make the haystack bigger!"

Government agencies aren't necessarily listening to what you're saying--they just figure that, given that you're a potential terrorist, they might need to at some point. I mean, wouldn't it look really bad for some poor slobs just looking forward to a quiet pension if it turned out you had been a terrorist all along, and nobody was paying any attention to you? It's cheap to record and archive, and there's a new haystack every day. It starts seeming a reasonable thing to do, and there is ample precedent for surveillance and curtailment of privacies in the US during wartime. You can buy the legal argument, as counsel at many (but not all) telecoms did, that it doesn't violate the Fourth Amendment.

Personally, if I were forced to design a system for this particular government, I would doom it to elegant failure, and the people who've built ECHELON and its sister systems took a similar approach, albeit unintentionally. Well, wait--I'm really not so sure it was unintentional. If they wanted it to actually work, the general approach is simple. You'd make up something like a Terrorist Credit Score, a haystack-reducing device, stop looking at the 99.999% of hay and devote your resources to the needles. With their approach as it is, you could possibly build something predictive by associating terrorist-style outcomes with long data trails, but the incidence sparsity is a huge problem. Anyhow, combating terrorism is a convoluted rationalization, and not really the point of the 50-plus billion dollars the US now blows on digital spying every year.

Here's the real problem, one might say the Scylla with Obama's FISA support: he seems to assume surveillance works and should continue. Of these misapprehensions he should be thoroughly disabused, and that's why I'm one more thorn in his side. These systems are clearly outside the spirit of the Constitution, shouldn't be applied domestically, and they suck at catching terrorists. (Which...is...maybe...why they haven't caught any! Any real terrorists know they can communicate in complete privacy by FedEx-ing crayon drawings to each other.) What Total-Information-Awareness eavesdropping and data-mining excel at is controlling persona non grata via information blackmail or selective leaking. At that, the systems are top-notch, a totalitarian's wet dream for monitoring and stifling opponents, or as they call them in D.C., "friends."

I do not know a specific example in which surveillance has been used domestically to control congressional votes, but the irresistible temptation to do so should be manifest to every reader of current and historical affairs. In other words, it is to be strongly suspected, and may have something to do with the behavior of Congress and its attendant 10% approval rating. Applied offshore, there is even greater temptation and the lines of national security blur very quickly. To name a few examples, the NSA eavesdropped on Lady Diana's cell phone calls from its station in Scotland. To help Boeing make jet sales, it ratted out Airbus bribes to the Saudis. It has passed surveillance data on proprietary German wind turbine technology to an Enron subsidiary, which then filed a US patent on the trade secrets. Of course, these latter banalities are also outside the NSA's current charter, but no one's counting anymore.

It's hard to think of an example of a state domestic spying apparatus which was ever voluntarily given it up, but easy to think of how over-reliance on domestic spying brought regimes down. (A German-language film, 'The Lives of Others,' is great drama and effectively portrays why most surveillance is really conducted.) To walk for a moment in Obama's shoes, one would understandably be cautious when addressing a powerful security apparatus which shows every sign of having been usurped, just as Presidents once needed to stay on J. Edgar Hoover's good side. But once the apparatus is turned on innocent citizens, when the state's paranoia has gone so far, the only step left in the choreography is to turn upon itself. If privacy isn't extended to digital media, and the pre-snooping isn't made expressly illegal, it's going to get ugly here.

Whatever the outcome of Wednesday's Senate vote on FISA, it's not going to end there. Above, I mentioned that events will overwhelm Obama's stance on FISA and telecom immunity, and will quickly snowball into a question of spying in general. Here's what I meant, and welcome to Charybdis: just imagine how Rush Limbaugh and the Reich Wing will react when they realize Obama is able to spy on them.

I'm Glad This Exists, Because I Have Nothing To Hide!

The FBI Deputizes Coroporations, via the Progressive:

Today, more than 23,000 representatives of private industry are working quietly with the FBI and the Department of Homeland Security. The members of this rapidly growing group, called InfraGard, receive secret warnings of terrorist threats before the public does—and, at least on one occasion, before elected officials. In return, they provide information to the government, which alarms the ACLU. But there may be more to it than that. One business executive, who showed me his InfraGard card, told me they have permission to “shoot to kill” in the event of martial law.
InfraGard is “a child of the FBI,” says Michael Hershman, the chairman of the advisory board of the InfraGard National Members Alliance and CEO of the Fairfax Group, an international consulting firm.

InfraGard started in Cleveland back in 1996, when the private sector there cooperated with the FBI to investigate cyber threats.

“Then the FBI cloned it,” says Phyllis Schneck, chairman of the board of directors of the InfraGard National Members Alliance, and the prime mover behind the growth of InfraGard over the last several years.

InfraGard itself is still an FBI operation, with FBI agents in each state overseeing the local InfraGard chapters. (There are now eighty-six of them.) The alliance is a nonprofit organization of private sector InfraGard members.

“We are the owners, operators, and experts of our critical infrastructure, from the CEO of a large company in agriculture or high finance to the guy who turns the valve at the water utility,” says Schneck, who by day is the vice president of research integration at Secure Computing.

“At its most basic level, InfraGard is a partnership between the Federal Bureau of Investigation and the private sector,” the InfraGard website states. “InfraGard chapters are geographically linked with FBI Field Office territories.”

In November 2001, InfraGard had around 1,700 members. As of late January, InfraGard had 23,682 members, according to its website, www.infragard.net, which adds that “350 of our nation’s Fortune 500 have a representative in InfraGard.”

To join, each person must be sponsored by “an existing InfraGard member, chapter, or partner organization.” The FBI then vets the applicant. On the application form, prospective members are asked which aspect of the critical infrastructure their organization deals with. These include: agriculture, banking and finance, the chemical industry, defense, energy, food, information and telecommunications, law enforcement, public health, and transportation.

FBI Director Robert Mueller addressed an InfraGard convention on August 9, 2005. At that time, the group had less than half as many members as it does today. “To date, there are more than 11,000 members of InfraGard,” he said. “From our perspective that amounts to 11,000 contacts . . . and 11,000 partners in our mission to protect America.” He added a little later, “Those of you in the private sector are the first line of defense.”

He urged InfraGard members to contact the FBI if they “note suspicious activity or an unusual event.” And he said they could sic the FBI on “disgruntled employees who will use knowledge gained on the job against their employers.”

In an interview with InfraGard after the conference, which is featured prominently on the InfraGard members’ website, Mueller says: “It’s a great program.”

The ACLU is not so sanguine.

“There is evidence that InfraGard may be closer to a corporate TIPS program, turning private-sector corporations—some of which may be in a position to observe the activities of millions of individual customers—into surrogate eyes and ears for the FBI,” the ACLU warned in its August 2004 report The Surveillance-Industrial Complex: How the American Government Is Conscripting Businesses and Individuals in the Construction of a Surveillance Society.

Information Warfare: Mid-East Has Its Intertubes Tied

It's worth wondering why the fiber optic cables to Iran, Egypt, and Dubai were cut. While making some sport of it in my first post, and the title of this one, it's also cause for serious concerns. Ones I didn't vent at first. Conspiracy theories? Uhn-uh. To think 5 cables got cut in a total of 6 places from ships dropping anchors, the only explanation offered thus far, is to buy a lifetime membership in the Ignorance Is Bliss Gated Community.

Under current US and Israeli war doctrines, knocking out the enemy's communications infrastructure is Priority One. Those undersea cables would be the first thing to go, because if you're making war, crippling them is risk-free, high-payoff. It not only seriously degrades the enemy's advanced communications, but it also gives you mastery of the public relations message to the world. Al-Jazeera can't transfer, upload, or air video over the internet in real time. Anyone with a passing knowledge of the Israeli Defense Forces (IDF), not to mention the virulent nation itself, knows that it is first and foremost a propaganda machine. An awesomely effective one. (Remember, it's The Holocaust, and none other holocausts shalt come before it.)

Israel has to be the prime suspect in this gig, with the US a close second or an outright participant. Various other possibilities readily present themselves: countries wanting more censorship, Islamic extremists, a self-inflicted test, a psy-op...but each of these is also relatively easy to dismiss.

Naj from Iran Facts finds the censorship angle ludicrous, since manual, ad hoc measures are fully effective in the eyes of her former government. It's highly doubtful Islamic extremists possess the coordination or inclination to carry out such an operation, nor with such a light touch. A self-inflicted test on infrastructure effects carries some appeal, yet it's a stretch to imagine exactly what multinational Mid-east body would've wanted to conduct one. An intelligence psy-op study is even more appealing, but it would almost have to be a rogue operation, one whose scale makes it unlikely; the Mid-East is an active war zone where the military takes precedence.

A telecommunications professional of long acquaintance briefly mused that the cables may be tapped; while technically possible, bouncing light signals out of thousands of underwater optic strands is arduous and, due to signal loss, obvious, compared to sniffing right on the server nodes. Still, surveillance can't be ruled out, with resulting service disruption playing nicely into multiple purposes.

While very bad, I don't think the internet vasectomy signals immediate war as an attack would've (probably) already happened. It would be difficult to imagine, even granting the past and current imperial wooden-headedness in the region, giving an enemy so much time to re-adjust. This incident reads more like a message of mastery, an ape beating its chest and thumbing its nose. Strategically, it's an excellent way to signal you're escalating the threat level up another notch. You can safely sit back, gleefully gauge the reaction, and send a witty note to make your point. As mentioned in the first post below, the countries in the region are about to break down the fence and stampede off the dollar farm, and giving them electric collar shocks is just about the only means of non-violent control either primary suspect has left.

Unfortunately, the move is openly aggressive, illustrates what a wider regional war would first look like, and gives the Mid-East abundant and well-founded reason to stock up on three things: paranoia, desire for payback, and making communications infrastructure and procedures more redundant and secure.

Re-Tour

Back from Canada. To America. So much alike, so many contrasts. For example, did you ever hear the phrase, "Blame Canada first?" Well, you have now. I invented it. And as the comedian Lewis Black says, living in America is like "being on the Titanic every single day and being the only person who knows what's going to happen."

Victoria's English Inn & Resort failed to impart comparable angst. It was more like being part of the Swiss Family Robinson, with yummy extras like good books, a sumptuous dining room, cacophonous kitchen, and a highly efficient wait-staff. Very cool.

The border crossing into the US was just like Canada's, except there were not one but two of them, starting with the first check-point at the ferry terminal in Victoria harbor, where a sign states like some freakazoid Zen master: "You are now on U.S. soil." Hmm. (Technically, it was linoleum.) Yeah, and instead of providing any hint of welcome such as we received on entering the Great White North, US customs agents have been trained to assume you must be smuggling a couple bricks of blow and possibly have a bomb in your pants. (Heheh!)

The reception may be chilly but it's perfectly understandable, professional, and polite...if we're coming from a starting point of paranoid delusion. Which, it's quite obvious we are. Canada "gets it." On our way to the ferry terminal, we saw people laughing at something in a shop window, so we stopped to look. It was a T-shirt. It said:

Canadians are just like Americans
except they're un-armed
and get Health Care

The Strangest Bedfellows

Imagine you're the acting head of the Department of Justice, and you had that title because your boss has been in an Intensive Care Unit struggling for his life for six days. You get a phone call late at night, and the caller tells you that the White House Counsel is on his way with the Chief of Staff to your boss's hospital bed with a paper to sign authorizing the continuation of a progamme you strenuously disagree with. Just before his hospitalization, you and your boss had decided the Vice President had been going way too far with his wiretapping/surveillance, and decided not to renew your support for it. Your entire department is willing to resign over the issue.

You immediately think the White House is trying to pull a fast one, so you call your security detail, you call the FBI Director and tell him to get armed agents to the room, and you get dressed. Your men pick you up, put on the lights and sirens, and race to the ICU of George Washington hospital, to the bedside of your boss. You sprint up the stairs, get there, and stand between the bed he's lying on and the window of his private room. You say hello in hushed tones to him and his wife, tell them why you're there, and you wait.

Moments later, the White House Counsel and Chief of Staff arrive, carrying a piece of paper and a pen for your boss to sign it with. Your boss, known for being a hawkish conservative and despised by the "Left," tells them to stuff it and that due to his illness, you're the Attorney General. At that moment, four FBI agents arrive, and they have orders to let no one be removed from the room involuntarily. The Counsel and the Chief of Staff are startled by the agents. They purse their lips, look at you, turn, and leave without saying another word.

Is this an episode of "24," of "Lost," a re-run of the "X-Files?" No. It all happened in 2004 over warrantless wiretapping. After a decent interval, you leave the hospital room and your cell phone rings. The Chief of Staff is livid, and demands a meeting with you in the White House. Immediately. You tell him you will not meet without a witness present. Later, in the light of day, you bring your witness, and you meet. They pressure you to sign the paper. You refuse, and soon resign your position.

The Bush Administration has been using domestic surveillance to listen not just to Al-Qaeda. It listens to all its political opponents. It records all the communications of Congress and its staffers that it can. That's a big reason why it's so difficult to get Congressional votes against its agendas. Alberto Gonzales was the White House Counsel in the story above. James Comey was the Deputy Attorney General who rushed to the hospital bed. Andrew Card was the White House Chief of Staff. John Ashcroft was the Attorney General fighting for his life. The security and FBI agents were some poor bastards rousted out of an evening. After Comey resigned, Alberto Gonzales took his place as head of the Justice Department. I should not have to connect the dots for you about what has been happening with surveillance since then.

The aftermath of this story is that Ashcroft resigned for health reasons and hasn't been heard from since. James Comey gave testimony to Congress about the events above this week. All phone calls of Congressional representatives that can be recorded and transcribed, are. Almost all phone conversations which pass through Western networks are being word-spotted, sifted, and graded. Up to and including yours and mine. This isn't paranoia. It's my business, and it's how new speech technology and the old paranoia of power works. In every situation where surveillance was legal, it has been applied to everything it could be. That's what criminals do when they're in power, and want to hang onto it.

Keep talking. Talk about whatever you want without fear, but be sure to throw in extra stuff about pulsating cabbages and the Invasion of the Body Snatchers. Become the surveilled. By doing so, you're jamming a paranoid power structure, making it spend more on its meaningless watching and twitching, and it'll just fall faster.

And big kudos to James Comey, personal friend of Patrick Fitzgerald, for his principled stand, his resignation, and his testimony in front of Congress. I'll even throw in a big hug to that bashful choir-singer John Ashcroft for raising his head off his pillow and telling the White House to f%#& off.