Today, We Get Info Without Julian Assange

Dana Priest and William M. Arkin at WaPo

Nine years after the terrorist attacks of 2001, the United States is assembling a vast domestic intelligence apparatus to collect information about Americans, using the FBI, local police, state homeland security offices and military criminal investigators.

The system, by far the largest and most technologically sophisticated in the nation’s history, collects, stores and analyzes information about thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing.

The government’s goal is to have every state and local law enforcement agency in the country feed information to Washington to buttress the work of the FBI, which is in charge of terrorism investigations in the United States.

Other democracies – Britain and Israel, to name two – are well acquainted with such domestic security measures. But for the United States, the sum of these new activities represents a new level of governmental scrutiny.

This localized intelligence apparatus is part of a larger Top Secret America created since the attacks. In July, The Washington Post described an alternative geography of the United States, one that has grown so large, unwieldy and secretive that no one knows how much money it costs, how many people it employs or how many programs exist within it.

Today’s story, along with related material on The Post’s Web site, examines how Top Secret America plays out at the local level. It describes a web of 4,058 federal, state and local organizations, each with its own counterterrorism responsibilities and jurisdictions. At least 935 of these organizations have been created since the 2001 attacks or became involved in counterterrorism for the first time after 9/11.

(Search our database for your state to find a detailed profile of counterterrorism efforts in your community.)

Glenn Greenwald:

In The Washington Post today, Dana Priest and William Arkin continue their “Top Secret America” series by describing how America’s vast and growing Surveillance State now encompasses state and local law enforcement agencies, collecting and storing always-growing amounts of information about even the most innocuous activities undertaken by citizens suspected of no wrongdoing.  As was true of the first several installments of their “Top Secret America,” there aren’t any particularly new revelations for those paying attention to such matters, but the picture it paints — and the fact that it is presented in an establishment organ such as The Washington Post — is nonetheless valuable.

Today, the Post reporters document how surveillance and enforcement methods pioneered in America’s foreign wars and occupations are being rapidly imported into domestic surveillance (wireless fingerprint scanners, military-grade infrared cameras, biometric face scanners, drones on the border).  In sum:

The special operations units deployed overseas to kill the al-Qaeda leadership drove technological advances that are now expanding in use across the United States. On the front lines, those advances allowed the rapid fusing of biometric identification, captured computer records and cellphone numbers so troops could launch the next surprise raid. Here at home, it’s the DHS that is enamored with collecting photos, video images and other personal information about U.S. residents in the hopes of teasing out terrorists.

Meanwhile, the Obama Department of Homeland Security has rapidly expanded the scope and invasiveness of domestic surveillance programs — justified, needless to say, in the name of Terrorism:

[DHS Secretary Janet] Napolitano has taken her “See Something, Say Something” campaign far beyond the traffic signs that ask drivers coming into the nation’s capital for “Terror Tips” and to “Report Suspicious Activity.”

She recently enlisted the help of Wal-Mart, Amtrak, major sports leagues, hotel chains and metro riders. In her speeches, she compares the undertaking to the Cold War fight against communists.

“This represents a shift for our country,” she told New York City police officers and firefighters on the eve of the 9/11 anniversary this fall. “In a sense, this harkens back to when we drew on the tradition of civil defense and preparedness that predated today’s concerns.”

The results are predictable.  Huge amounts of post/9-11 anti-Terrorism money flooded state and local agencies that confront virtually no Terrorism threats, and they thus use these funds to purchase technologies — bought from the private-sector industry that controls and operates government surveillance programs — for vastly increased monitoring and file-keeping on ordinary citizens suspected of no wrongdoing.  The always-increasing cooperation between federal, state and local agencies — and among and within federal agencies — has spawned massive data bases of information containing the activities of millions of American citizens.  “There are 96 million sets of fingerprints” in the FBI’s data base, the Post reports.  Moreover, the FBI uses its “suspicious activities record” program (SAR) to collect and store endless amounts of information about innocent Americans:

At the same time that the FBI is expanding its West Virginia database, it is building a vast repository controlled by people who work in a top-secret vault on the fourth floor of the J. Edgar Hoover FBI Building in Washington. This one stores the profiles of tens of thousands of Americans and legal residents who are not accused of any crime. What they have done is appear to be acting suspiciously to a town sheriff, a traffic cop or even a neighbor.

To get a sense for what kind of information ends up being stored — based on the most innocuous conduct — read this page from their article describing Suspicious Activity Report No3821.  Even the FBI admits the huge waste all of this is — “‘Ninety-nine percent doesn’t pan out or lead to anything’ said Richard Lambert Jr., the special agent in charge of the FBI’s Knoxville office” — but, as history conclusively proves, data collected on citizens will be put to some use even if it reveals no criminality.

Ed Morrissey:

Again, none of this is particularly surprising.  Battlefield technologies almost always “migrate” to use at home, depending on its application and the cost.  The city of LA had halftracks used in combating drug trafficking more than two decades ago, for one example, parodied in the movie Die Hard.  The FBI collects data from many people and always has, which is one of the reasons why releasing the raw FBI files on political figures to the Clinton White House was such an egregious act.  What they do with the data is, of course, the greater consideration.  Picking the wrong imams isn’t just limited to “some law enforcement agencies,” as the Pentagon’s relationship with Anwar al-Awlaki demonstrated.  The problem of government agencies acting with less than optimal efficiency at working across boundaries is hardly new, either.

It’s still valuable to have journalists dig into these problems on a regular basis so that we can demand better performance from security groups and Congress, rather than just shrug at inefficiency, waste, and abuses of power.  But Liz Goodwin’s “5 most surprising revelations” from the WaPo entry today at Yahoo read as though Goodwin has never before reviewed governmental performance:

1. The FBI has 161,948 suspicious activity files on “tens of thousands” of Americans – The FBI set up hotlines and websites for tips on terrorism immediately after 9/11.  Each tip presumably opens up a file.  In nine years, the effort has produced less than 20,000 tips per year and (assuming the maximum range of tens of thousands) about 10,000 suspects a year.  That doesn’t seem very surprising to me.  That they haven’t arrested anywhere near that many people is a function of what an investigation produces.  Maintaining files on dead probes doesn’t mean anything, unless they get leaked.
2. DHS has no idea how much it’s spending on liaison efforts to local agencies – I’d guess that many agencies don’t really know how much they spend on any one aspect of their operations.  DHS is a huge federal agency, employing 216,000 people with an overall budget of about $52 billion with varied and overlapping jurisdictions.
3. Local officials in these “fusion centers” get little or no training – Surprise!  Government bureaucracies are notoriously inefficient.  That’s why it’s a good idea to limit them to tasks that only government can and should do — although it’s worth pointing out that this happens to be one of those tasks.
4. Local agencies are “left without guidance” from DHS – This is really the same thing as #3, isn’t it, or at least the same root problem?   She points out that among those groups suspected of potential terrorist activity by state and local authorities were Tea Party activists, historically black colleges, and a group that campaigned for human rights and bike lanes.  Again, that might have been based on tips received and followed up by the agencies, but also again, it’s part of a lack of competence and accountability endemic in bureaucracies.
5. State and local agencies are taking counterterrorist funding and using it to support regular law-enforcement efforts instead – Who couldn’t have seen that coming?  These funds are usually given in bloc grants, which means the recipient can use the money for whatever purpose they desire.  All they need is a tenuous link to the original purpose of the funds to make it pass muster, and it’s certainly arguable that by enforcing the state and local law more vigorously, local law enforcement might be able to flush out terrorists.  However, this is a problem because it makes local law enforcement dependent on federal funding, which is a bad idea in principle.  Communities should pay for their own law enforcement needs and let the feds concentrate on actual federal crimes.

These aren’t surprises at all.  They are, however, issues that need to be corrected — and it appears that the first item on correction should be a rethink of DHS and its top-heavy bureaucracy.

Spencer Ackerman at Danger Room at Wired:

Military technology has a tendency to trickle down to civilian applications, as evidenced by the fact that you’re reading this story on the internet that Darpa helped create. Usually that takes time, but police departments across the country are fielding tools that the military developed to keep tabs on insurgents are now in place to see if you’ve got any outstanding arrest warrants. That’s what the Washington Post found for the latest installment of its series on the expanding surveillance state: Arizona’s Maricopa County, for instance, keeps a database sized at “9,000 biometric digital mug shots a month.”

Here’s how the proliferation of biometrics works, as the Post discovers. The Department of Homeland Security wants more data points on potential homegrown terrorists. Through Federal-state law enforcement “fusion centers,” federal grants help finance law enforcement’s acquisition of ID tools like HIIDE, as well as powerful surveillance cameras and sensors. Police incorporate them into their regular law-enforcement duties, picking up information on suspects and using them to cut down on the time it takes to figure out who’s evading arrest.

As the military learned, positive identification depends on having a large data set of known insurgents. Cops and the feds are going just as broad. Fingerprint information from crime records gets sent to a  FBI datafarm in West Virginia, where they “mingle” with prints from detainees in Iraq, Afghanistan and elsewhere. Military and Homeland Security officials can search through the FBI database for possible connections to terrorists.

It’s unclear if there are minimization procedures in place to void someone’s fingerprints in the datafarm after a distinct period of time, or how serious a crime has to be to merit a bioscan getting sent to West Virginia. And in many cases, the technology at use here just accelerates the speed at which, say, prints from a police station get sent to the FBI, rather than making the difference between inclusion at the datafarm and remaining at the police station. But it certainly looks like there’s not such a lag time between tech developed for a complex insurgency finding applications for crime-fighting at home.

Instapundit:

Luckily, this stuff is only creepy when there’s a Republican President. Otherwise I’d be worried. But as we all know, to worry about this when there’s a Democrat in the White House is merely a sign of the “paranoid strain” in American politics.

Emptywheel at Firedoglake

“You Know, If I’d Wanted Dick Cheney As President I Would Have Just Voted For Him.”

Ellen Nakashima at WaPo:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.”

Julian Sanchez at The American Prospect:

At issue is the scope of the Federal Bureau of Investigation’s power to obtain information from “electronic communications service providers” using National Security Letters (NLS), which compel private companies to allow government access to communication records without a court order. The administration wants to add four words — “electronic communication transactional records” — to Section 2709 of the Electronic Communications Privacy Act, which spells out the types of communications data that can be obtained with an NSL. Yet those four little words would make a huge difference, potentially allowing investigators to draw detailed road maps of the online activity of citizens not even suspected of any connection to terrorism.

In their original form, NSLs were extremely narrow tools designed to allow federal investigators to obtain very basic telephone records (name, address, length of service, calls placed and received) that could be linked by “specific and articulable facts” to persons suspected of being terrorists or foreign spies. In 1993, Congress amended the statute to clarify that NSLs could be issued to electronic information service providers as well as traditional phone companies. But wary of the potential for misuse of what the House Judiciary Committee called this “extraordinary device” in a world of rapidly changing technology, Congress placed tight limits on the types of records that could be obtained, making clear that “new applications” of NSLs would be “disfavored.”

The administration is presenting this change as a mere clarification meant to resolve legal ambiguity — as though Congress had simply misplaced a semicolon. Yet the Bush-era Office of Legal Counsel already rejected that argument in a 2008 opinion, concluding that the FBI had for years misread the “straightforward” language of the statute. And clarity is certainly needed, as it is hard to know just what falls under “categories of information parallel to subscriber information and toll billing records.” The standard reference for lawyers in this sphere, David Kris’ National Security Investigations and Prosecutions, simply notes that the scope of NSLs as applied to online activity is unclear. Even the Justice Department seems uncertain. In a 2001 response to congressional inquiries about the effect of the newly enacted PATRIOT Act, DOJ told Congress that “reasonable minds may differ” as to where the line should be drawn between addressing information equivalent to toll billing records and “content” requiring a search warrant.

Congress would be wise to specify in greater detail just what are the online equivalents of “toll billing records.” But a blanket power to demand “transactional information” without a court order would plainly expose a vast range of far more detailed and sensitive information than those old toll records ever provided.

Consider that the definition of “electronic communications service providers” doesn’t just include ISPs and phone companies like Verizon or Comcast. It covers a huge range of online services, from search engines and Webmail hosts like Google, to social-networking and dating sites like Facebook and Match.com to news and activism sites like RedState and Daily Kos to online vendors like Amazon and Ebay, and possibly even cafes like Starbucks that provide WiFi access to customers. And “transactional records” potentially covers a far broader range of data than logs of e-mail addresses or websites visited, arguably extending to highly granular records of the data packets sent and received by individual users.

As the Electronic Frontier Foundation has argued, such broad authority would not only raise enormous privacy concerns but have profound implications for First Amendment speech and association interests. Consider, for instance, the implications of a request for logs revealing every visitor to a political site such as Indymedia. The constitutionally protected right to anonymous speech would be gutted for all but the most technically savvy users if chat-forum participants and blog authors could be identified at the discretion of the FBI, without the involvement of a judge.

Marc Ambinder:

Now, there’s a good faith case to be made that the FBI ought to have this authority. After all, the bad guys don’t use telephones to talk to each other any more. But the FBI has abused the NSL authority, essentially fabricating pretexts for sending NSLs to thousands of people. Since the NSL authority was expanded by the PATRIOT Act, three separate OIG investigations have found abuses that rise above the level of incidental misuse of power. The FBI has excuses: it’s the databases. It’s the urgency of terrorism investigations. It’s the lack of clarity in the language.

The urgency factor is a good excuse for the FBI to have the authority, but not to misuse it. NSLs are issued without prior approval from a judge. They’re now part of the standard anti-terrorism investigatory toolkit. They’re needed.

Democrats on the Judiciary and Intelligence committees are skeptical of the request to change the statute for precisely these reasons, and one senior aide noted that the language was met with some skepticism by Congressional staff who’ve grown wary of FBI excuses for overreach.  Then again, it is always hard for members of Congress to say no to something that the FBI claims is vital for its counterterrorism efforts.

There is a compromise here: the FBI can subject its NSL issuances to post-facto review from judges, who can decide whether the FBI’s pretexts are sufficient. The FBI doesn’t need to get a judge’s permission to issue an NSL and the internet provider can’t wait until the judicial review kicks in. This way, the FBI can get what it needs and there’s a check on that power.

But this compromise won’t work. The FBI issues tens of thousands of NSL requests per year, most of them for telephone records and other information, like credit reports. There’s no way a judge can individually approve, even in retrospect, tens of thousands of requests without significantly adding to already overflowing caseloads.

So, in the end, as with almost every issue about national security information, the question is one of trust. Can the American people, through Congress, trust the FBI to use this authority properly?  Maybe the administration and the FBI should answer this question: given past abuses, what steps will you take to ensure that this authority isn’t abused?

Kelley Vlahos at The American Conservative:

It seems so perverse and creepy, considering that WaPo reported only last week in its “Top Security America” series that the federal government’s behemoth intelligence/security apparatus has way more data than it can possibly analyze effectively. It’s  disheartening that the administration admits it’s targeting those hold-out Internet service providers that have been heretofore unwilling to play ball with the feds. In other words, private companies that have, so far, resisted the government’s push for greater authority and control over the Net.

Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order…

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.

I guess it’s safe to say now that civil libertarians have been thoroughly hosed (in other words, hoodwinked, flimflammed, bamboozled, duped, chiseled and burned) by Barack “the constitutional law professor” Obama. The question remains, how far will he go?

James Joyner:

The 4th Amendment’s requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seize” is really a nuisance, the Obama administration argues.

[…]

I understand any administration’s or agency’s desire to accumulate more power — after all, they’re decent folk who just want what’s best for the country.  But I don’t get how this passes judicial scrutiny.

While I’ve got a strong libertarian streak and am staunchly protective of our rights under the Constitution, I’m not an absolutist.   Even our most fundamental liberties, such as freedom of speech and assembly, have to be balanced against the rights of others and the need for public safety.

During the Bush administration, I defended the idea that the government ought to be able to conduct data mining operations on mass communications with persons of interest overseas.   My rationale was that this wasn’t a “search” in any meaningful sense because it was just computer algorithms sifting through impersonal information, that there would be no way to show probable cause ahead of time, the targets were overseas operatives, and that the purpose was intelligence gathering rather than prosecution.   So, the harm to individual liberty was small and mostly theoretical while the potential harm to society from not gathering the information was substantial.

But this is something quite different:  Specific searches of activities carried on by specific American citizens domestically.   Further, it’s not like the records are going anywhere, making seeking out a magistrate and getting a proper warrant a minor burden.   So there’s no reason that a warrant can’t be obtained and no additional risk to society by going through the process required by the Constitution outside the ones intended by the Framers.

Matthew Yglesias:

Of course, checking out someone’s browser history could be very useful in a terrorism investigation. But if I had some kind of cause—probable cause, let’s say—to suspect someone of involvement in terrorism, I could just get a warrant. If I want to see whether my wife has a secret Match.com account, by contrast, I’m going to need some kind of authority to compel private companies to divulge this information without me needing to explain myself to a judge.

FBI personnel are, I’m sure, overwhelmingly decent and honorable people whose subjective understanding is that they want to use these enhanced powers for legitimate purposes. But who among us, when being honest, has never misused work resources a bit for personal purposes? Everyone slacks off on the job. Everyone has moments of prurient interest in the lives of other people. Taking the gloves off, surveillance-wise, is much more likely to lead to abusive behavior than to super-awesome counterterrorism operations.

Emptywheel at Firedoglake:

Make no mistake. This is one of the most important pieces of civil liberties news in a long time. The Obama Administration is asking Congress to sanction the collection of internet records without a warrant–the kind of shit they used to do without a warrant, until people expressed their opposition.

But then Democrats took over and now they want legal sanction and now–Voila, a request that presumably provides cover.

Kevin Drum:

I forget. How many NSLs do the FBI and other federal agencies already send out every year? 30,000? 50,000? What’s it up to now? Whatever it is, I guess it’s still not enough. That business of getting approval from a judge is just so annoying, after all.

You know, if I’d wanted Dick Cheney as president I would have just voted for him.

Read This Post With The Theme Song Of “Cops” Playing In Your Head

Wendy McElroy at Gizmodo:

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the “shooter” rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where “no expectation of privacy exists” (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, “[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want.” Legal scholar and professor Jonathan Turley agrees, “The police are basing this claim on a ridiculous reading of the two-party consent surveillance law – requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense.”

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler’s license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

In 2001, when Michael Hyde was arrested for criminally violating the state’s electronic surveillance law – aka recording a police encounter – the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, “Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals….” (Note: In some states it is the audio alone that makes the recording illegal.)

The selection of “shooters” targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.

Radley Balko at Reason:

In a column last month I wrote about Anthony Graber, a Maryland man who was arrested for posting a video of a traffic stop to YouTube. Graber was pulled over on his motorcycle by Maryland State Trooper Joseph David Ulher. Uhler drew his gun during the stop. Graber was wearing a camera on his helmet. Graber thought Uhler’s actions were excessive, so he posted the video to the Internet. Days later, police raided the home of Graber’s parents. Graber was arrested, booked, and jailed. He was charged with violating Maryland’s wiretapping statute. In an interview he gave to blogger Carlos Miller shortly after, Graber said, “The judge who released me looked at the paperwork and said she didn’t see where I violated the wiretapping law.”

In my previous column, I interpreted that to mean the judge had dropped the charge. Apparently that isn’t the case. Graber is due in court next week. He faces up to five years in prison. State’s Attorney Joseph Cassilly has also charged Graber with “Possession of an Interception Device.” That “device” would be Graber’s otherwise-perfectly-legal video camera.

Graber’s case is starting to spur some local and national media discussion of the state’s wiretapping law. As I mentioned in my column last month, his arrest came at about the same time the Jack McKenna case broke nationally. McKenna, a student at the University of Maryland, was given an unprovoked beating by police during student celebrations after a basketball game last February. McKenna would probably still be facing criminal charges and the cops who beat him would likely still be on the beat were it not for several cell phone videos that captured his beating. According to Cassily’s interpretation of the law, if any of those cell phones were close enough to record audio of the beating, the people who shot the videos are felons.

Now we have another video of an arrest during the Preakness Stakes in which a Baltimore police officer can be heard telling the camera-holder, “Do me a favor and turn that off. It’s illegal to record anybody’s voice or anything else in the state of Maryland.”

That simply isn’t true, and it’s outrageous that Maryland law enforcement keeps perpetuating this myth. Perhaps that officer was merely misinformed. But Maryland police spokesmen and prosecutors are giving the impression that the state’s wiretapping law is ambiguous about recording on-duty police officers. It really isn’t. They’ve just chosen to interpret it that way, logic and common sense be damned.

Maryland is an all-parties-consent state, which means you have to get permission from all parties to a conversation before you can record it. But unlike Illinois and Massachusetts, Maryland’s law does include a privacy provision. That is, if the non-consenting party does not have a reasonable expectation of privacy with respect to the conversation that has been recorded, there is no violation of the law. State and federal courts across the country have determined that there is no reasonable expectation of privacy in public spaces. This is why someone can snap your photo in public without your consent.

[…]

No one expects what they say to a cop during a traffic stop to be private. But when you combine that with how some Maryland cops and prosecutors are interpreting the law, such as in Graber’s case, you get a perverse result: When a cop pulls you over or detains you for questioning, he—the public servant with the badge and the gun—retains a right to privacy for the entire encounter. You don’t.

This does not sound like a serious interpretation of the law. But it’s apparently the interpretation among Maryland law enforcement officials. A cynic might conclude that law enforcement officials in Maryland are reacting to the McKenna embarrassment by threatening and cracking down on anyone who videotapes on-duty cops, and they’ll interpret the law in whatever way allows them to do so. At least until a court tells them otherwise.

Whatever their motivation, their legal justification is dubious. The McKenna case is a strong argument in favor of more citizen monitoring of on-duty police. The police not only beat the kid, they then lied about it in police reports. The security camera footage of McKenna’s beating, which is controlled by University of Maryland Campus POlice, mysteriously disappeared. The officer in charge of the camera system is married to one of the officers involved in the beating. Does anyone really think the charges against McKenna would have been dropped—and the officers who beat him suspended—if it weren’t for the cell phone videos?

There are strong constitutional arguments in favor of a basic right to record on-duty police officers. But the prosecution of Anthony Graber is also wrong by any reasonable interpretation of state law, and by any sane concept of good public policy. This is the state that’s home to the notorious Prince George’s County Police Department, for God’s sake—the department that spent five years under federal oversight because of the repeated use of excessive force among its officers.

Maryland Attorney General Doug Gansler should put an end to this faux ambiguity and declare that Marylanders who record on-duty cops are breaking no laws, much less committing felonies. He should also make it clear that so long as they don’t physically interfere with an arrest or police action, they also are at no risk of having their recording equipment confiscated or destroyed.

If he doesn’t, the state legislature should do it for him.

Alex Tabarrok

Tom Bell:

Did that video violate the privacy of the three officers, clad in riot gear and swinging batons, who surrounded and beat the unarmed McKenna? No. Neither did the video that Graber shot of the Maryland trooper strutting towards him with a drawn handgun. Courts have already explained that wrongs under the Maryland Wiretapping and Electronic Surveillance Act require a showing that someone’s reasonable expectation of privacy has suffered violation (see Fearnow v. C & P Tel. Co., 104 Md. App. 1, 655 A.2d 1 (1995), rev’d on other grounds, 342 Md. 363, 676 A.2d 65 (1996)), and no officer can have a reasonable expectation of privacy while on a public street, performing public duties.

The Maryland ACLU has stepped forward to help defend Graber, and with any luck will soon educate local prosecutors about the proper scope of the Maryland Wiretapping and Electronic Surveillance Act. In the meantime, and in other jurisdictions where police threaten to deploy privacy laws against whistle-blowers, we citizens would do well to remind public servants that we can and will record their on-the-job performance. I’ve worked up a couple of notices to help.

This bumper sticker should help to put police on notice that you may record them during traffic stops, thus negating any claim to a reasonable expectation of privacy:

Make sure that you place it where video taken from the officer’s vehicle will record it! That proof might end up helping your case if, like Graber, you want to publicize police abuse.

To make doubly sure that you give adequate notice to an officer who subjects you to a traffic stop, you might also want to carry this handy magnetic sign:

Once you have been pulled over, just roll down your window and slap the sign outside your door, where a police officer cannot fail to see it.

Click on either image to buy a copy for yourself or a friend. All proceeds will go to aid the defense of Anthony Graber. Perhaps his case would have turned out differently if he had had that bumper sticker on his helmet, or that magnetic sign on his gas tank. (I thank Prof. Orin Kerr for inspiring the wording of these notices, though he of course bears no blame for my legal hijinks.)

Robin Hanson:

And this is all about the official rules. I’m pretty sure that unofficially, police have ways of punishing you for trying to record them, even if you are legally allowed to do so. Consider also:

An obvious enabler of police corruption is the fact that internal affairs units, tasked with exposing corruption, usually report to the same police chief that would be embarrassed by such exposure, and who may also be corrupt. An obvious solution is to make internal affairs more independent, e.g., reporting directly to a city council or even a governor.

This isn’t some temporary lack of adaptation to a new tech; the obvious solution has been possible, and ignored, for a long long time.  Now ask yourself honestly, in near mode, what you think will usually happen in ten years to someone who tries to visibly record their interaction with police.

Reihan Salam:

Via Alex Tabarrok, Gizmodo has a fascinating feature on how law enforcement officials are responding to the growing number of citizens who are using digital cameras to record police officers in the line of duty. So far, at least three states have banned recording on-duty police officers. This strikes me as an alarming and counterproductive trend. The vast majority of police officers behave responsibly and within the bounds of the law. But inevitably there are police officers who abuse their power, and the advent of cheap digital cameras gives citizens a valuable self-defense tool.

I could be missing something here. It’s possible that ubiquitous surveillance of this kind could undermine good order, perhaps by enforcing an excessively rigid and rule-bound approach to policing. My suspicion is that this danger is outweighed by the danger of pervasiveabuse that sows distrust between the police and the policed, a divide that is a particularly vexing problem in high-crime urban neighborhoods.

UPDATE: Glenn Reynolds at Popular Mechanics

Can President Bush Or President Obama Hear Us Now?

Emptywheel at Firedoglake:

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

More Emptywheel:

I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

Michael Scherer at Swampland at Time:

Four quick bullet points on Judge Vaughn R. Walker’s decision today in Al-Haramain Islamic Foundation v. Barack Obama. (See pdf of ruling here.)

1. The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers. At one point the judge dismisses the government’s “impressive display of argumentative acrobatics.” At another point, the judge says the government’s arguments “take a flying leap and miss by a wide margin.”

2. The judge claims that the Obama Administration is attempting to place itself above the law. “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [State Secrets Privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for the executive branch abuses of surveillance authority.” He dismisses this argument.

3. It is difficult to square the Justice Department’s use of State Secrets in this case with President Obama’s stated position on state secrets. In a press conference on April 30, 2009, Obama said the following:

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.

Glenn Greenwald:

On a positive note, the Obama administration suffered a major defeat today in its efforts to shield Bush lawbreaking from judicial scrutiny.  As Marcy Wheeler reports, District Judge Vaughn Walker ruled today in favor of the plaintiffs in the Al-Haramain case, who allege that they were subject to Bush’s illegal eavesdropping program.  For more on the background of this case and the Obama DOJ’s extraordinary efforts to compel dismissal of this lawsuit (on both secrecy and standing grounds), see here and here. I’ll likely have more on this shortly.

Orin Kerr:

The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.

Jeralyn at Talk Left:

The case involved the Al-Haramain Islamic Foundation, an Islamic charity, and two of its lawyers, Wendell Belew and Asim Ghafoor, who alleged their conversations were illegally intercepted. The Court granted their motion for summary judgment finding the Government is liable for damages for illegally wiretapping their conversations without a FISA warrant.

David Kravets at Wired:

Judge Walker likened the department’s legal tactics as “argumentative acrobatics.” He said counsel for attorneys Wendell Belew and Asim Gafoor are free to request monetary damages.

Their lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money.”

“What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security,” Eisenberg said.

Because of the evocation of the state secrets privilege, Walker had ruled the lawyers must make their case without the classified document. So Eisenberg amended the case and cited a bevy of circumstantial evidence (.pdf). Walker ruled that evidence shows that the government illegally wiretapped the two lawyers as they spoke on U.S. soil to Saudi Arabia. Walker said the amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity for which the lawyers were working, including a speech about their case by an FBI official.

Under Bush’s so-called Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Congress, with the vote of Obama — who was an Illinois senator at the time — subsequently authorized such warrantless spying in the summer of 2008.

The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the Bush administration in illegal wiretapping.

Adam Serwer at The American Prospect:

What seems immediately significant to me about this ruling, beyond calling into question the legality of the warrantless wiretapping program, is that unless the government appeals, it will be beyond argument that both administrations have been abusing the state-secrets privilege by using it to prevent scrutiny of illegal behavior by the government.

Nick Baumann at Mother Jones:

In 2006, Al-Haramain sued then-President George W. Bush and other top officials after the government mistakenly provided the charity with classified documents that supposedly prove it had been illegally surveilled. A district court judge initially ruled that Al-Haramain could use those documents in its case. Eventually, however, the courts decided that the “state secrets” clause precluded the charity from using the classified documents at trial—a defeat that some observers thought would be fatal to the lawsuit.

Instead of giving up, Al-Haramain and its lawyers tried a different tack, gathering ten times as much unclassified evidence as they had previously submitted. The government, in a tiff, refused to submit evidence contradicting the plaintiffs’ claims, and even tried to claim that it didn’t have to. Walker didn’t like that argument too much: Because the government refused to submit any evidence calling the plaintiffs’ case into question, he simply granted summary judgment—a sort of TKO.

Count this round for the civil libertarians.

UPDATE: More Greenwald

Jacob Sulllum at Reason

Julian Sanchez at Cato

J. Edgar Hoover, Call Your Office

John Solomon and Carrie Johnson in WaPo:

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

A Justice Department inspector general’s report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

The records seen by The Post do not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.

FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

“We should have stopped those requests from being made that way,” she said. The after-the-fact approvals were a “good-hearted but not well-thought-out” solution to put phone carriers at ease, she said. In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process. “What this turned out to be was a self-inflicted wound,” she said.

Justin Elliott at TPM:

The crux of the lawbreaking was the FBI’s use of so-called “exigent circumstances letters” to get phone records. That’s was a post-9/11 tool created to allow quick searches of phone records in case of emergency.

After using such an emergency letter, the bureau was legally required to get an after-the-fact national security letter — the traditional authorization for obtaining phone records, which must be OKed by top officials. But in the cases described by the Post, the FBI simply didn’t bother to get a national security letter, often because there was no real emergency.

The Blog Of Legal Times

Matthew Yglesias:

The FBI’s general counsel assures us that this was all “good-hearted.” And those reassurances keep coming down the pike. After each revelation of illegal surveillance, we’re assured that these abuses aren’t that kind of abuse—like the kind where J Edgar Hoover (who remains an honored figure in the FBI, with the headquarters building named after him) spied on Martin Luther King Jr, or Richard Nixon used counterterrorism powers against domestic political enemies. We’re talking about some whole other kind of innocuous, good-hearted abuses.

And who knows, maybe they are. But how many times does “good-hearted” abuse need to go unpunished before something more insidious happens? I find the political complacency in the face of these surveillance abuses to be really stunning. I get that many people figure that the whole arbitrary detention and torture thing is something that’s supposed to happen to other, browner people with funny names. But we don’t need to guess about what happens when the government has unrestricted surveillance power—it’s a story we’ve seen already.

Emptywheel:

Call me crazy, but since we know the FBI and NSA were illegally wiretapping organizations like al-Haramain in 2004, you have to wonder whether this was an attempt to clean up poison fruit from earlier, even more illegal surveillance.

Then there’s the detail that the FBI “shut down” this program when the IG started investigating.

Phone record searches covered by exigent letters ended in November 2006 as the Justice Department inspector general began investigating.

I can’t help but recall that Section 215 of the PATRIOT Act–which would allow for the collection of phone records–started to be used for a classified collection program in 2006.

Finally, there’s the way this story feels like a limited hang-out. The story notes that this will all be revealed in an IG report coming out later this month.

A Justice Department inspector general’s report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

So this just tells us what Glenn Fine will presumably tell us in a matter of weeks?

Steve Benen:

Bush administration officials used the cloak of counter-terrorism to abuse civil liberties, ignore the law, and violate Americans’ privacy? Imagine that.

Remind me again, conservatives, about how the public is worried about President Obama increasing the size of government and infringing on the public’s rights.

Post Script: The WaPo article was co-written by John Solomon, up until recently the editor of the far-right Washington Times. He’s listed as a “freelance journalist,” but I have to admit, I didn’t expect to see him be welcomed back into the fold so quickly.

You Can’t Wrap A Fish In An E-Mail

To explain, well give you Jon Henke‘s entire post:

If you forward an inaccurate email or write an inaccurate blog post, the White House wants to see it.[:]

There is a lot of disinformation about health insurance reform out there, spanning from control of personal finances to end of life care. These rumors often travel just below the surface via chain emails or through casual conversation. Since we can’t keep track of all of them here at the White House, we’re asking for your help. If you get an email or see something on the web about health insurance reform that seems fishy, send it to flag@whitehouse.gov.

What, exactly, does the White House plan to do with this information?

UPDATE: The White House responds…

“There is a lot of misinformation about health insurance reform circulating on the Internet and elsewhere,” she explains. “Some of it is intentionally misleading.

“We want to be sure people have the facts about health insurance reform that will lower costs, protect consumers from insurance regulations that deny them coverage and assure quality and affordable health care for all Americans,” she adds. “We are not compiling lists or sources of information. We may post fact checks from time to time to be sure Americans know the truth about health insurance reform.’‘

I believe that is the case. This was simply an inartful way of asking people to help them figure out which new claims they need to be addressing. The White House should respond to inaccurate arguments. But I hope they will do so in a transparent way. Instead of responding to private emails, they should be linking and responding to claims made publicly online. Better yet, they should be participating in a dialogue – responding to the better criticisms made by important critics in the internet media and blogosphere. That would be transparent and valuable.

Michelle Malkin:

Lots of bloggers are taking part in Operation Go Flag Yourself — flooding the Internet Snitch Brigade with e-mails turning themselves in for health care hate crimes or turning Team Obama in for “fishy” misinformation. I did my part yesterday. How about you?

Erin O’Connor

Meanwhile, in other news, the Obama administration has put out a nationwide request: “If you get an email or see something on the web about health insurance reform that seems fishy, send it to flag@whitehouse.gov.”

What government on earth–or at least, what government that purports to head a free country–could ever countenance such a call? Even if the good people in the White House are completely aboveboard–even if this is the best-intentioned initiative imaginable (I do admit I find that hard to imagine), how in the world is that sort of wording going to do anything other than inspire fear, suspicion, and the worst censorious impulses?

I am reminded of a line drawn from another classic dystopian tale: In The Matrix, Morpheus introduces Neo to the truth of his decidedly unfree world with a key line: “Welcome the the desert of the real.” That phrase, in turn, draws from an essay by French theorist Jean Baudrillard, whose thinking about the simulated, inauthentic character of contemporary life has long made him a favorite pet within academe.

Where are the academics now? Why aren’t they challenging this stuff–hooking it up to the long history and philosophy of freedom, dissenting as a means of showing patriotism, charting with scholarly dedication this administration’s frightening deviations from its own promises, not to mention the principles of liberty? I thought, when they turned that sort of intellectual critique on the Bush administration, that, as partisan as it was, it also bespoke a deeper commitment to intellectual and ethical integrity. I thought they saw themselves as guardians of some sort, as citizens with special obligations to parse Washington’s ideas and place them in context.

Guess I was wrong.

The Anchoress:

Anyone recall how, after 9/11 -after we’d been attacked in NYC and DC- the Bush Administration said: “If you see anything suspicious, you ought to report it,” causing conniptions on the left? How dare the Bushies ask people to snitch for security reasons! Now, for mere policy, that has become an acceptable, “if you see/hear anything disobedient, be the tattletale.”

Ed Morrissey:

Bear in mind that Operation TIPS intended to get data about potential crimes and acts of terrorism. It differed not at all from a myriad of local hotline tip programs used by police around the country to solve or stop crimes. Given the nature of the 9/11 attacks — conducted by infiltrators who lived in the US for months in preparation for their mass murders — the establishment of the same system for a counterterrorist effort seemed like a no-brainer.

Obama, on the other hand, has set up a snitch line not for crimes or terrorism, but for simple political dissent. Where is Pat Leahy now? Shouldn’t he be demanding to know why Obama wants to put people under “undue scrutiny” merely for the horrible crime of disagreeing with the President? For that matter, where is the Village Voice and Nat Hentoff? So far, the Voice has shown little interest in this administration’s snooping by proxy.

Scott Johnson at Powerline:

As a student of history, I think I know how this works. I want to spare my family and friends the pressure they may feel they are under to turn me in. I confess. I harbor a number of thoughts the Obama White House and Ms. Douglass deem highly fishy. I’m turning myself in.

Whatever President Obama says to induce support of his desired health care — excuse me, I mean health insurance — reform, I believe exactly the opposite. I believe he says what he says because he knows his desired reform is unpopular. I believe what Obama says bears no relationship to what the legislation he supports would do.

Thus when President Obama says if you like your insurance plan, your doctor, or both, you will be able to keep them, I believe he is slinging it. I harbor the guilty thought that the legislation he supports would create incentives for employers to dump employees who like their health insurance into a government plan.

When President Obama says that health care — excuse me, health insurance — reform is necessary to get budget deficits under control, I believe he is slinging it. I harbor the guilty thought that the legislation he supports would create deficits so large it would turn the United States into a banana republic.

When President Obama denies that he supports a Canadian-style single payer health care system, I believe he is slinging it. I believe what he seems to have said frequently in the past to the effect that he supports a system of single payer universal insurance. I harbor the guilty thought that he supports legislation that will inevitably lead to this result incrementally.

When President Obama says what he says to promote health care — excuse me, health insurance — reform, I believe he is slinging it. I harbor the guilty thought that he wants a government takeover of the health care system to turn citizens into supplicants and wards of the state.

I confess. I am guilty of fishy thoughts.

Byron York at The Examiner:

Senate Judiciary Committee lawyers studying the proposal say that although there is no absolutely settled law on the matter, the White House plan is likely not covered by the Privacy Act, which prohibits government agencies from keeping any records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained.” Therefore, it appears the White House can legally keep records of the emails and other communications it receives in response to Phillips’ request.

Those lawyers also point out that the White House is not covered by the Freedom of Information Act, which means it would not have to release any information on the plan to members of the public who make a request.

In addition, the lawyers say the collected emails likely will be covered by the Presidential Records Act, which requires the White House to preserve and maintain its records for permanent storage in a government database. Phillips’ request suggests that whatever information the White House receives on health-care reform “disinformation” will be used to further the goal of passing a national health-care makeover, which is, of course, one of the president’s main policy initiatives. Such material, and whatever the White House does with it, would qualify as presidential records. Only after more than a decade would such records be publicly available.

“So the White House, whether by design or accident, has requested information from the public that will become ‘records’ under the Presidential Records Act, yet would be impermissible for any government to otherwise collect under the Privacy Act,” writes one Judiciary Committee source. “Where were the lawyers in all of this? What is their legal basis for authorizing the collection of these records?”

Jake Tapper at ABC

Allah Pundit:

Eight minutes here from today’s presser, with things getting good a little past the halfway mark as Major Garrett tries and fails to grasp why a media operation as sophisticated as The One’s needs public input to address myths about ObamaCare. I can’t remember where but I saw some lefty blog today scoffing at the very idea that there might be something untoward about a government tip line for “fishy” information. Combine that with the fact that we now have liberals complaining about protesters comparing them to Nazis and we’ve arrived in Bizarro World circa 2003.

Alan Jacobs at The Scene, here and here. Second post:

My dear friends, the kind of response I was hoping for when I wrote that previous post was something like this:

Well, Alan, I hardly think we’re in for another Night of the Long Knives or a re-run of the McCarthy era — that’s not what you’re suggesting, is it? — but that really wasn’t the smartest thing for the White House staff to say. They should have known that a request to report to the White House anything “fishy” was bound to get spun as the first steps towards totalitarianism.

See, wouldn’t that have been reasonable and constructive? Instead I got a bunch of rotten eggs flung at my door.

People. Seriously. This isn’t the Daily Kos or No Left Turns. This is The American Scene — the Scene, man! — an oasis — yeah, I know I’m changing metaphors, just bear with me — an oasis of civilized discourse in the vast desert of the political blogosphere. Granted, it’s an oasis with a few putrid patches, but we know how to step over those, don’t we?

Really, I’m disappointed in you folks. Try to do better the next time, okay?

UPDATE: Keith Hennessey

UPDATE: #2: DiA at The Economist

UPDATE #3: The program is over?

Ed Morrissey

Wonkette

Watching The Wheels Go Round And Round

We’re able to combine any two “news” stories in song. Did you know Rockwell is Berry Gordy’s son? Everything makes sense now, doesn’t it.

AP report via TPM:

The Bush administration authorized secret surveillance activities that still have not been made public, according to a new government report that questions the legal basis for the unprecedented anti-terrorism program.

It’s unclear how much valuable intelligence was yielded by the surveillance program started after the Sept. 11, 2001, terror attacks, according to the unclassified summary of reports by five inspectors general. The reports mandated by Congress last year were delivered to lawmakers Friday.

President George W. Bush authorized other secret intelligence activities — which have yet to become public — even as he was launching the massive warrentless wiretapping program, the summary said. It describes the entire program as the “President’s Surveillance Program.”

The report describes the program as unprecedented and raises questions about the legal grounding used for its creation. It also says the intelligence agencies’ continued retention and use of the information collected under the program should be carefully monitored.

Emptywheel’s got a working thread

Spencer Ackerman’s got the report, plus a bunch of posts here, here and here.

What does it say? I’m still reading it, but one thing it says is that the CIA’s involvement in the program is deeper than has been reported. And one interesting bonus fact: the report calls the program the “President’s Surveillance Program,” rather than the manipulative “Terrorist Surveillance Program” handle the Bush administration gave the program when it became public in order to put critics in a tight spot. (”What? You oppose surveillance for dangerous terrorists who want to kill your grandchildren????”)

Glenn Greenwald

Over the past couple of years, there have been isolated leaks suggesting abuses of these eavesdropping powers, but there has been no real investigation into the ends to which these surveillance powers were used.  As a legal question, it matters little:  eavesdropping without warrants is a felony no matter the purpose for which it was done.  But since FISA’s warrant requirement arose from the recognition that widespread surveillance abuses were virtually inevitable if eavesdropping was conducted without judicial oversight, the lack of any investigation into this question reveals the extent to which both parties have been eager to help cover-up the crimes that were committed during the Bush years.  The IG Report sheds some light onto what happened, but most of it, as intended, remains in the dark, and real accountability is still as far away as it was before this Report was issued.

Jefferson Morley at TPM

Dropping The Charges

Justice Department dropping charges in the AIPAC case. Blogosphere reactions:

I believe it is Eli Lake in the Washington Times who broke the story.

Marc Ambider:

“In general, this is fairly good news for anyone who receives classified information — like journalists — and then publishes it in some form. (There are several types of classified information — if the defendants had passed signal intelligence or evidence about collection systems to Israel, they’d have been tried under a different statute).  Had the case gone to trail, the government was facing a loss, as its efforts to keep information out of the discovery process failed and its contention that the two AIPAC officials, Steve Rosen and Keith Weissman, broke the law was challenged by U.S. government classification experts.”

Jonathan Tobin in Contentions.

Spencer Ackerman in Washington Independent:

“Put aside whatever you may feel about AIPAC. The case amounted to the criminalization of extremely routine practices in Washington: acquiring and distributing information that’s overclassified.

Technically, I published classified information last Monday when I reported that there was an undisclosed classified Office of Legal Counsel memorandum on torture from 2007. There’s a widespread recognition that way too much information is needlessly classified. Indeed, “Ninety-five percent of what we do shouldn’t be classified at all, or it should be a much lower level of classification,” Joan Dempsey, a former senior CIA and Pentagon official, recently estimated, according to Secrecy News. Neither Steve Rosen nor Keith Weissman, the AIPAC lobbyists in question, were government employees. Even if we’re to take the Justice Department’s former line that the leak itself was felonious, they were never accused of being the sources of it, since they couldn’t have been. (That was a guy named Larry Franklin.)”

Michael Crowley looks at the Harman angle in the New Republic.

Jeffrey Goldberg

BLT

More links? Put ’em in the comments.

Jane Harman’s Troubles

What to make of the surveillance of Congresswoman Jane Harman?

Many are noting the irony of her stance on surveillance in regards to her current problems.

Glenn Greenwald:

http://www.salon.com/opinion/greenwald/2009/04/21/harman/index.html

The blog at The American Conservative:

http://www.amconmag.com/blog/2009/04/21/pity-for-a-constitution-stomper/

Michael Crowley at The New Republic has a list of suspects on who is targeting Harman:

http://blogs.tnr.com/tnr/blogs/the_plank/archive/2009/04/22/why-now-with-harman.aspx

Roll Call reports that Pelosi knew of the wiretap:

http://www.rollcall.com/news/34182-1.html?ET=rollcall:e4445:80038065a:&st=email

And here’s Maddow’s take on the whole thing: