[Earlier] you were saying something like there was a mushrooming of programs to gather and amass much more information than to analyze it. I wonder if you could just describe that to me. What was the process? What was happening?

After the initial reaction to 9/11 — and this was not limited to the FBI; I would say government-wide there [was] this growth in … the government starting programs, kind of connect-the-dots programs. So collect a lot of information, low-level information, information that’s not necessarily or not traditionally been viewed as very intrusive, and analyze to start to see patterns to try to catch the person that we don’t know about, who has no record, whose name would mean nothing in the FBI’s databases or the CIA’s databases, but [who] is doing things that we know fit a pattern of the way international terrorists tend to operate.

You certainly see efforts at the FBI. You see efforts at what becomes Homeland Security. The various Transportation Security Administration databases on airline travel — that is one. There are efforts in the Treasury Department in the financial world. There are efforts in the Department of Defense. Everyone is sort of chasing this idea that if we could construct the right tool for analyzing all of this disparate data, we could spot the next unknown terrorist.

There is a famous example of that. The Total Information Awareness [TIA] initiative was a very sort of theoretical idea, but it was a development along these lines: the idea that if you could pull from all the right databases and you could connect all of these bodies of information, then you could search them intelligently, and you could look for patterns.

So Total Information Awareness was a program, but it was also a kind of a mind-set that was growing in government.

I would say in the government, and then of course as the government does this, you have private industry which supplies the government with these tools. So in the post-9/11 environment, if you were a large defense or information technology contractor, this is a service that there is a market for. So you have many, many people building systems that are designed to search large amounts of information or designed to help a government analyst draw together disparate forms of information. …

Why? At that time, late 2001, 2002 and so on, was there greater expertise in the private sector? Were there people who had better software for analyzing data?

I think the private sector is probably where you will always find the most up-to-date technical solutions. I think the government — there are some exceptions in the government — but certainly the FBI, technology was never their strong suit, and that if you wanted this kind of expertise, it would be logical to look outside for support. Plus, this is something the private sector has been doing for a long time. If you think about telephone companies, credit bureaus, banks, they have in place to protect their own information very sophisticated mechanisms for handling huge amounts of information, for looking for trends…

Sen. Orrin Hatch (R-Utah): Now, the distinguished senator from Oregon said that you admitted you were wiretapping Americans. That’s a pretty broad statement.

Gen. Hayden: Yes, sir.

Sen. Hatch: It certainly isn’t true.

Gen. Hayden: Sir, we were intercepting the international calls entering or exiting the United States which we had reason to believe were associated with Al Qaeda, is how I would describe it. …

Sen. Russell Feingold (D-Wis.): Senator Bond asked you whether, under the warrantless surveillance program, any Americans had been targeted who were not associated with Al Qaeda. And you replied only that you didn’t see how that could occur within the NSA’s culture.

The question remains: Has it happened?

Gen. Hayden: In each case, when NSA has targeted a number under this program, there has been a probable cause standard met, in the judgment of our analysis and those who oversee them, that there is reason to believe — a reasonable person with all the facts available to him or her at the time has cause to believe that this communicant is associated with Al Qaeda.

Sen. Feingold: But that’s not my question. … It’s whether it’s ever happened that any Americans have been targeted who weren’t associated with Al Qaeda. As a matter of fact, has it happened, despite the cautions?

Gen. Hayden: Sir, I’ll give you a detail in closed session, all right? Clearly, I think logic would dictate that if you’re using a probable cause standard as opposed to absolute certitude, sometimes you may not be right.

It seems that Mikey would prefer to do his lying in closed session. An open session is just too, too painful.

When I was talking about a drift net over Lackawanna or Fremont or other cities, I switched from the word “communications” to the much more specific and unarguably accurate “conversations.”

By this Mikey means that yes, the NSA does indeed do “drift net” of communications such as email, but not of telephonic “conversations”.

I’m betting he’s lying about that too!

Frontline does some very good stuff.

Tomorrow they have a Hadith program, focusing on rules of engagement issues. I never knew that the Haditha soldiers came from the Fallujah battle background – clear the houses, no matter who is in them, bc the civilians were supposedly all evacuated (you know, like how NOLA was evacuated) That does give some additional perspective when you look at what they did.

And wrt to the very topic of this EW post, this part is especially germane, in fact, right on EW’s point:

Interview with Suzanne Spaulding (worked for Sen. Arlen Specter (R-Pa.) and Rep. Jane Harman (D-Calif.) as a counsel for the Senate and House Intelligence Committees. She also served as assistant general counsel at the CIA (1989-1995)…):

Do you buy the administration’s argument that it adequately briefed sufficient members of Congress so that there was oversight and that the overseers were satisfied that this was OK?

Absolutely not. I’m very troubled by what appears to be a growing and broadened use of the “Gang of Eight” briefings. This is a term that refers to a practice whereby the leadership of the intelligence committees and the leadership of the House and the Senate are the only members of Congress who are briefed on a certain activity. Now, there can be some situations in which that is justified, and in fact the law, the National Security Act of 1947, specifically provides for that kind of very limited briefing, but only in the context of a covert action, which is clearly defined in the statute. No one is asserting that the terrorist surveillance program is a covert action. It’s an intelligence-collection activity…

http://www.pbs.org/wgbh/pages/…..nt/themes/

From a frontline episode, some interviews on four themes about the spying.

Yoo and Ashcroft, btw, are just nuts. OK – you may not need to read anything to get to that point, but still.

I’m guessing there is already an indemnity agreement of some kind in place, but I have to think someone is sweating that a bit too, since if the compliance was illegal, then it’s hard to say an indemnifcation for performing illegal acts is enforceable.

Maybe, but I think, in fact I am damn near certain, that they will be able to document and argue that they relied on the assurances of a legal basis from the White House as well as a dire national security need (it may be WH pixie dust, but even I think the telcos will have a solid case for reliance). I think the gig was up when appellate court and even the Supremes started laughing at the Administration’s arguments.

I don’t believe that EW was making the broad point you assume, at least I didn’t see it that way. The point I saw (maybe thats because it was all I was personally contemplating, but what the hell) was that certain legality could have been supplied for certain acts pursuant to a valid on it’s face 2511 cert., but even that could not have covered the period where AGsquared was the undersigned; assuming that is what happened.

No – I think we are on the same page with that particular point – that even if you believe they were gettin 2511 certifications, those can’t be supplied by WH counsel for the gap period when the AG wouldn’t sing off.

I think where we get onto different pages was that it sounded to me as if EW was saying that while an AG certification was being given, it would pretty much automatically “count” as a 2511(2)(a)(ii) certification and I don’t think that is right (the certification has to spell out that no warrant is required by law and be specific etc.) and I think that the statements by many of the people involved have indicated that at least the parts of “teh program” that they have been talking about from time to time have not met the 2511 (2)(a)(ii) safe harbor requirements. I also havent’ seen any pleadings that attempt to “get around” that safe harbor or any invocation by the telecoms that any actions they took were pursuant to certifications given under 2511, which makes them immune from suit, even if the certifications themselves need to be kept classified/redacted because they reveal sources/methods.

In any event, I won’t say there was never a 2511 certification for any part of what might be teh program given, but I am pretty sure that 2511 wouldn’t allow for a datamining using the telecom algorithms under the specific assistance portion as well as the problems with the specification that no warrant is required by law and the recitation of compliance with statutory requirements, etc.

And I really do think if you go through the transcript that a statutory safe harbor like 2511 is exactly what Spectre was asking Comey about and that’s why he was saying that the order he was signing off on was not in the nature of a statutorily required certification – it was just something that some wildasshair guy came up with. I’m sure I partly think that bc that is exactly what they did with SWIFT and the banks, bc of all the pressure, went along with it for a long time and don’t seem to have had any indemnity agreement. Still, who really knows, one way or the other? No one in Congress seems to be trying to nail it down.

It is quite possible that parts of “The Program” were covered by 2511 certs, and that other parts were not. As you know, the Administration has constantly moved their pea in, out, and around different shells so that we really have no coherent idea of what was going on. From my understanding, the plaintiffs in San Francisco have certainly not ruled out at least some coverage by 2511 certs.

Now, that having been said, I don’t believe that EW was making the broad point you assume, at least I didn’t see it that way. The point I saw (maybe thats because it was all I was personally contemplating, but what the hell) was that certain legality could have been supplied for certain acts pursuant to a valid on it’s face 2511 cert., but even that could not have covered the period where AGsquared was the undersigned; assuming that is what happened.

I’m guessing there is already an indemnity agreement of some kind in place, but I have to think someone is sweating that a bit too, since if the compliance was illegal, then it’s hard to say an indemnifcation for performing illegal acts is enforceable. I also think that a big element of this involved, as EW has pointed out, the metadata and they may think they have someouts on that front, plus there may well be this grey area of “foreign to foreign” calls

Although FISA authorized warrantless interception of foreign power calls, it didn’t authorize warrantless interception of ALL foreign calls of any kind – but they may have thought that they had some decent grounds to argue that a US court had no jurisdiction over foreign to foreign calls, so they could datamine foreign to foreign with impunity. Then, they bring teh program within the confines of the FISC and a few minutes later, they end up with the decision that, uh, yeah, if the switch is in the US, FISC does have jurisdiction over it, and FISA is EXCLUSIVE and FISA only allows warrantless taps of foreign power calls – not wholesale sweeps.

one possiblity at least, fwiw

And, December 1, 2001, Daniel Inouye and Ted Stevens–as the ranking members of the Defense Appropriations Subcommittee–got a briefing, presumably so they could authorize the NSA to pay the telecoms tons of money to wiretap Americans.

And where might we find those annual expenditures of public funds buried in each year’s appropriations? Or would they be in Mr. Cheney’s favored “black budget”?