Are you ready for some filibuster?

Sen. Chris Dodd (D-CT) will take the floor of the US Senate today and engage in the first old-fashioned, “talk until you’re blue in the face,” “hold the floor and refuse to yield” filibuster in fifteen years. Why? Let’s just say the Sen. Dodd is rising to protect a little something I like to call The United States Constitution.

The Senate takes up debate of the latest revision to the FISA law today, and though what lead us to this point could take the better part of filibuster to understand, let me summarize by saying that the issue at hand that has motivated Dodd to rise in objection is the issue of granting retroactive immunity to telecommunications companies that broke federal law in order to help the Bush Administration illegally spy on American citizens inside the United States.

That it has come to this is tragic for so many reasons, not the least of which is the perplexing readiness of Senate Majority Leader Harry Reid (D-NV) to ignore a hold placed by Dodd on the Senate Select Committee on Intelligence version of the bill which contains immunity. That the SSCI, chaired by alleged Democrat Jay Rockefeller (WV), reported out a FISA bill that included retroactive immunity represents another titanic failure of the Democrats to show leadership and provide the constitutionally mandated check against Bush executive branch abuses of power.

Yet, in the face of so very many of those abuses over the past seven years, why is this time, this issue, the one that requires Dodd’s filibuster—and our support?

The battle over retroactive immunity contains numerous storylines that embody Bush Administration efforts to usurp power, consolidate it, and preserve it at the expense of the liberties that go to the very definition of what we are as a nation. It also exemplifies the over-close relationship that has developed between our government and corporate interests.

Writing in Sunday’s New York Times, James Risen, Eric Lichtblau, and Scott Shane—the reporters that originally broke the illegal domestic surveillance story two years ago—bring to light several new facts about the warrantless surveillance, as well as the relationship between the NSA and the Bush Administration on one side and several telecommunications providers, such as AT&T, Verizon, and Qwest Communications, on the other.

First up: if there were any doubt before, the article now makes clear that long before the attacks of 9/11/01, the Bush Administration sought to rapidly and massively expand the surveillance of communications between US citizens within the United States, and did so without using the legally prescribed processes laid out either in the FISA law, the criminal code, or the US Constitution.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

This adds detail to existing knowledge (documented—with multiple links—in two posts that I wrote in November) that within two weeks of taking office in 2001, the Bush Administration sought the cooperation of the nation’s largest telcos in order to collect a broad array of communications data generated and received by American citizens residing in the United States.

It has been noted that a program to collect phone records from citizens inside the US who called Latin America began in the mid Nineties as part of the “war on drugs,” but a) this program was ramped up significantly as soon as Bush came into office, b) such surveillance still requires some legal certification (so-called “basket warrants” or something similar), and there is no report that the Bush Administration is producing these warrants to defend the increased surveillance, and c) as noted in the above paragraph (if you look at it in the context of the NYT article) the warrantless access which was sought from Qwest was for a separate project.

Why is this timeline so important? As I wrote in early November:

It is not simply a matter of scheduling; it goes to the root of all arguments both for and against the surveillance programs. Since the telecommunications companies were approached by the administration in February of 2001, then none of this is a response to the attacks of 9/11. And, since the spying is not a response to those events, then what were the NSA and the White House looking for?

I added at the time that if they were trying to be proactive on terrorism, the tragedies that befell America seven months later prove the program an abject failure, but as we know (and know more assuredly with every revelation, biography, or ex-White House-staffer tell-all) Bush, Cheney, Rumsfeld, and Rice came into power with less than a passing interest in terrorism, and multiple attempts by outgoing Clinton officials to grab their attention did nothing to motivate the Bush bunch to ramp up their concern or actions.

So, with the drug war and terrorism ruled out as possibilities, what else could the Bush White House want to learn? Though anything I write at this point would by the rules of journalism be classified as speculation, I don’t think it’s too wild a stretch to say “everything.”

What I mean by “everything,” is that this group waltzed into the White House with dreams of a permanent Republican majority, and quickly sought to put in place an infrastructure that they thought would help them build and maintain it.

The consolidation and maintenance of power is a theme that runs through many of the outrages that now hound (or should hound) the administration. It encompasses the replacement of experts with ideologues, illegal detentions, rendition, and torture, the politicization of the Justice Department and federal bench, the accelerated consolidation of the media, the influence peddling and K Street scandals, the diminution of voting rights, and the sophistry involved in perpetuating what, for lack of a better term, I will call the permanent fear economy—and this is to name only a few.

A bulked-up surveillance network operating outside the law and the knowledge of oversight bodies gave the Bush Administration the tools to accumulate whatever information they might deem necessary for any number of projects. It is likely journalists have been the subject of some of this surveillance, and it is not beyond the bounds of logic to assume that others who have sought to dissent or challenge Republican power might also find themselves under the warrantless watchful eye of Bush Administration spooks.

It is this final point that seems to escape so many now engaged in the debate over new FISA legislation—not the least of them being members of the Democratic leadership. Does a Senator Reid or a Senator Rockefeller, who have both often railed against the lies and bad faith efforts of the White House, not believe that if given the opportunity, this administration would use all the tools in its possession to destroy Democrats or disrupt their agenda? If they can’t quite muster the strength to stand for the rule of law and the rights guaranteed by the US Constitution, you think that they could at least get it up to act in their own self-interest.

Self-interest of a different kind has shown itself to be important to the current debate. As I, and others, have noted, too many of the parties involved have a financial stake in acting in the interests of the telecommunications lobby. Jay Rockefeller has done particularly well (in terms of donations from the telecom lobby) since immunity became an issue.

The problem is, of course, that immunity stands in direct opposition to the interests of the nation and its people. As the Sunday Times article notes, there are several pending cases against the telcos that would shed necessary light on the cooperation between the industry and the administration in the building and operation of Bush’s illegal surveillance regime. Because the administration has been so secretive, and because the oversight has been so lax, the pending law suits against the likes of AT&T and Verizon are some of the few options left to those of us that want to restore protections guaranteed under the Constitution.

That members of both the intelligence community and the telecommunications industry tell the Times that a lack of retroactive immunity will make the relationship between the two more difficult—that telcos might not give their “full-hearted help” to the administration—is the very reason why liability should be preserved. After all, if the programs implemented by the Bush Administration were legal—if the White House had sought proper authority through the FISA court or other more open avenues—then the telecom industry would have nothing to worry about. If the legal documentation were in place, then the telcos would be in the clear.

Somebody (or some body) has to hold law-breakers accountable. If the administration won’t police itself, if the Justice Department has been turned into a White House rubberstamp, and the Congress won’t intervene with the power with which it has been endowed, then it is up to the people to protect their rights, themselves. It would show the utmost disrespect (for the people and for our laws) if the Senate were to take away these rights. One might even call the behavior criminal.


* * *

And, if Senators are gong to behave like criminals, where does that leave the rest of us? I would posit it leaves us as victims—or, as the surveillance regime might put it, as “targets.”

Christy Hardin Smith brings to our attention a post from early in 2006 about a provision of the Patriot Act that has been interpreted to apply to what used to be called “pen registers” and “trap and trace” devices that would make it easy and remarkably likely that pretty much anyone’s e-mail could be the target of secret surveillance without any specific warrant.

As I understand it, it is now permissible for the intel community to search the e-mails of anyone that has been connected to a target of an investigation. What constitutes a connection? An e-mail from the alleged “terrorist” or “drug kingpin” to the new party would do, but so would the appearance of the e-mail addresses of the original suspect and the new party in the header of an e-mail sent by a third party.

In other words, if I were to e-mail you, then you are connected to me. If I were to e-mail you and some guy you don’t know, let’s call him Ignatz, you are connected to me, Ignatz is connected to me, AND, in the eyes of the government, you are also connected to Ignatz—and that makes you fair game for a more intrusive level of surveillance, without additional court order.

To my mind, it’s a horrifying scenario. It would be possible—and easy—for the government to decide it wanted to target you, and then simply contract a third party to spam you and a “known” “terrorist” or “drug kingpin” with the same e-mail. With that connection made, your e-mail is now an open book. It precludes counter-arguments of “fishing expeditions” by providing a legal (or, really, “legalistic”) way to “narrow” the search. They don’t just bait the hook; they reach into the tank and wrap the fish in the line.


* * *

But in order to carryout any of this, the Bush Administration needs (needed?) the initial access to the digital systems maintained by telecom companies like Verizon, AT&T, and Qwest for their paying customers. How they wanted to gain access and what they then wanted to do was dodgy enough to give pause not only to former Qwest CEO Joseph Nacchio, but, as the Times now tells us, at least one other telecom company, as well.

Nacchio contends that his reticence cost Qwest valuable government contracts—that is up for debate. But the companies that did not pause likely did benefit from the increased level of cooperation between them and the NSA. In fact, Mike McConnell, who was in charge of the NSA, then went to the consulting firm Booz Allen Hamilton and worked on behalf of private intel-sector industries, and is now the Director of National Intelligence, has made it a crusade of his to privatize much of the government’s signal intelligence infrastructure. And, having done that, he now argues that we must grant immunity to these private concerns for fear that if they don’t have it, they will not allow the government access to their equipment.

In starker terms, McConnell is now insisting immunity be granted retroactively to the parties that he worked for during the time that the alleged crimes were committed.

All of this—the lies about when and why the surveillance began, the likely misuse of the surveillance infrastructure, the legal gymnastics used by the Bush Administration to cast the broadest of dragnets, and the cozy relationship between the government and the telco industry that it should regulate—all of this merits, indeed, requires the greatest degree of scrutiny from the Congress and the courts. That so many in Congress would choose not only to abdicate their rights to oversight, but now seek to strip that power from the people is either the height of ignorance or insolence. Either way, it should not be tolerated.

And, at least one Senator has said that he will not. Christopher Dodd, who is also a candidate for President, has taken time away from his campaign to stand up to a corrupt White House and its corporate cronies. He will spend this Monday (and perhaps many more days) filibustering a bill that his own Majority leader has forced to the floor in defiance of his party’s rank and file, and the vast majority of Americans at large. Where the former boxer Harry Reid would not fight, Chris Dodd has entered the ring. Let’s all let Senator Dodd know we are in his corner.

There are several ways to help:

Go to thankyoudodd.com where you will find suggestions on many ways to help and links to much more information.

Call your senators and ask that they support Sen. Dodd’s filibuster. Ask them to refuse to support any FISA reform that grants immunity to the telecommunications industry.

Give the Senator something to read. Chris Dodd has some time to kill, but he’d like to do it with meaningful statements that show just how much we all care about this issue, about our laws, and about our Constitution as a whole. Crooks and Liars and Firedoglake are collecting statements, and Dodd’s office will look for comments that can be used by the Senator on the floor.

You can also e-mail Chris Dodd with your support.

And, if you want to watch your government at work, Dodd’s filibuster will be carried on C-SPAN2 today (starting at 11am, I believe).


(cross-posted on guy2k, The Seminal, and Daily Kos)

Ashcroft and the Times: credibility on the line

I didn’t know that the New York Times now ran advertising on its op-ed page.

And free advertising, at that.

Op-Ed Contributor
Uncle Sam on the Line

. . . .

John Ashcroft was the United States attorney general from 2001 to 2005. He now heads a consulting firm that has telecommunications companies as clients.

While I applaud the New York Times for running a disclaimer, of sorts, in the “about the author” space at the foot of the article, my question is why bother to run this “opinion” piece at all?

I mean, honestly, is it still called an opinion if you are getting paid large sums to express it? To me, that sounds like a job.

And the Times is frankly much too happy to augment Ashcroft’s pay.

Worse still, the former attorney general’s column is so filled with sophistry and outright lies as to render its publication the height of journalistic irresponsibility.

First, Ashcroft follows his pal Jay Rockefeller in perpetuating a dangerous myth while running cover for his corporate benefactors. Last week, the Senator from West Virginia shilled for a telecommunications industry that has given him tens of thousands of dollars in campaign contributions while lying about the origins of the warrantless surveillance program(s) ordered by the Bush Administration. Monday, Ashcroft reiterated the same blatant falsehood with his first sentence:

FOR almost two years, the country has debated whether the Bush administration acted properly and lawfully in undertaking emergency surveillance operations of suspected foreign terrorists on presidential authorization in the wake of 9/11.

By my dictionary, “wake” means “after,” and we now know, as a reportedly outraged Ashcroft knew many years ago, the illegal spying started before the attacks of September 11, 2001. (I provided over a dozen citations for this point in my discussion of Jell-O Jay’s WaPo op-ed.) So, here, Ashcroft, like Rockefeller, is lying.

Next up in Mr. Ashcroft’s bullshit-filled billet-doux to the telcos, this little gem:

Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.

Of course, this comes from a man that threw a shroud over the statue of Justice. Nothing could be more fair than to allow both the plaintiffs and the phone companies their day in court, where both side could air their evidence before an impartial arbiter. In fact, it is the former chief law enforcement officer that prejudges, here—inherent in his plea is the assumption that the telecoms are guilty.

And nothing could be less “contrary to the interests of the United States” than getting this nefarious behavior—certainly in the case of the administration of which Ashcroft was once a part, allegedly in the case of companies like AT&T and Verizon—out in open court, where its legality and efficacy could be debated with both sides under oath. It might be contrary to the interests of the White House, or to the interests of Mr. Ashcroft and his telco clients, but moving forward with the various court cases would benefit this country’s democracy immeasurably.

Ashcroft continues:

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.

To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

As a practical matter, in circumstances involving classified intelligence activities, a corporation will typically not know enough about the underlying circumstances and operations to make informed judgments about legality. Moreover, for an initiative like the terrorist surveillance program — which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the president’s war powers under the Constitution — a telephone company simply has no expertise in the relevant legal issues.

Here, the mind boggles. First, American corporations maintain legions of high-priced lawyers specifically because they don’t believe that they can take government officials at their word. Laws and regulations are interpreted almost daily. And, as the case of Joseph Nacchio, former head of Qwest Communications, proves, corporate lawyers can and have disagreed with the “assurances” of government apparatchiks as to the legality of secret activities.

Qwest’s attorneys seem to have understood something that Ashcroft and so many of his former administration colleagues don’t—we are a government of laws, not of men.

As a practical matter, in these specific circumstances, the telecommunications corporations involved knew plenty about the underlying circumstances and operations to make a judgment—as Qwest, indeed, did. The NSA was quite specific about what they wanted, and in fact drew up rather explicit technical requests, since early on (again, before 9/11), the spy agency had decided to outsource much of its fiber-optic infrastructure. (This is not a secret. Qwest’s expectations of receiving contracts for this project are at the heart of Nacchio’s legal woes.)

In addition, thanks to just the sort of legal proceedings that Ashcroft wants to suppress, we also know the outline of what the Bush Administration asked of the telecoms, and we know that the telecoms understood what was requested—because most of them cooperated. Though it can be debated what was part of the Total Information Awareness program, what was part of project Groundbreaker, and what was part of Pioneer-Groundbreaker, we know that taken as a whole, the White House and the NSA were seeking both to split fiber-optic lines to harvest all the digital data that those lines carry, and also to collect all the call records of Americans that made or received an international call—and perhaps the records of those that had only made domestic calls as well. And the Bush Administration sought to do this without going through the Federal Intelligence Surveillance Court—which is (or was, until Congress capitulated to White House demands in August) a violation of the Federal Intelligence Surveillance Act.

Moreover—to borrow Mr. Ashcroft’s transition—the Office of Legal Council does not have the authority to make any such determination as to the legality of this program. John Ashcroft, of all people, should—and does—know this. After all, it was Ashcroft that rose from his hospital bed to rebuff then Bush counsel Alberto Gonzales on Gonzo’s attempt to do an end-run around the Attorney General, or acting Attorney General, as James Comey was for the time that Ashcroft was hospitalized, on one of the aspects of the warrantless surveillance programs now under scrutiny.

Further, it is a matter of public record that allowances for such spying without a court order were not granted by the Authorization for Use of Military Force. The administration came to then Senate Majority Leader Tom Daschle for such FISA workarounds, and Daschle specifically excluded this authority from the AUMF. That Ashcroft would again posit such a specious argument is the height of factual dishonesty and personal disrepute.

And the hits keep coming.

Even more important than the inherent unfairness of requiring companies to second-guess executive-branch legal judgments are the acute dangers to which it would expose the country. One of our nation’s most important comparative advantages over our adversaries is the creativity and robustness of the private sector. To cut ourselves off from that advantage would amount to a form of unilateral disarmament.

Yet if we allow the litigation to continue, that is precisely what we will do. The message that will be sent to American companies is that they can be exposed to crippling lawsuits for helping the government with national security activities that they are explicitly assured are legal. The only rational response would be for companies to adopt an attitude of extreme wariness, even in the most urgent or clear-cut situations. To put the matter plainly, this puts American lives at risk.

This might be news to the former head of law enforcement, but the judicial branch, not the executive, makes legal judgments. And, going further, the last thing any American, from the founding fathers forward, would want would be to leave our security to the “robustness of the private sector.” I know that’s something that intrigues the patrons of Blackwater USA and other initiatives to outsource responsibility, but we elect a government and fund all three branches through our taxes so that the public sector will take the lead on national security. And we have a Constitution to make sure that they do so within the rule of law.

As for those purportedly “crippling lawsuits,” I guess the only smart response would be for companies to be extremely wary, especially when, as the Qwest case has shown, an administration that plays fast and loose with the Federal Code will punish you for not cooperating. And, as is too often conveniently forgotten by proponents of breaking surveillance law, the FISA statute allows for three days, and sometimes up to a year, of spying before a FISA warrant must be sought. If a situation is so urgent that spying must start immediately, without going to a secret court, it can. If the urgency persists, than certainly a case could be made for putting an extra lawyer or two on the warrant application to comply with future deadlines.

But, as is often the case with Bush, Cheney, and their comrades, it is lines like that last one in the quote above—the waving of the bloody shirt—that are so thoroughly shameless. . . and shameful.

There is no instance—not one—where the Bush Administration can point to a life lost because of a legal requirement, nor can they show us any lives saved because they have ignored them. If anything, the last two years of revelations about the illegal spy programs prove quite the opposite.

As put forward in the discussion of the Rockefeller op-ed, since these programs began as early as February of 2001, if the warrantless surveillance was intended to catch terrorists, than 9/11 proves the program to be a failure. As is the case in so many instances where administration officials claim it necessary to violate US or international law, all of the information the government needed to foil the September 11 attacks was obtained through conventional, legal means, and was available to Bush, Cheney et al. had they been interested enough to pay attention.

Not content with that insult to our intellect and decency, Ashcroft continues:

Although the lawsuits are couched in the language of accountability and the public’s right to know, they would really have the effect of showing the world and our enemies sensitive secrets about how our national security agencies do their work.

This might come as news to Ashcroft (though it shouldn’t), but terrorists realized long ago that talking on telephones and sending e-mail was not a secure way to communicate. How did they find this out? Mostly because time after time, Bush and various high-ranking administration officials spoke in public about ongoing investigations in order to score political points. In fact, Ashcroft himself has been accused of just such a misstep.

Today, it is believed that alleged terrorists more often carry data by hand, or coordinate via an assortment of websites. These websites are published for all the world to see, but it takes good, old-fashioned intelligence work to find, watch, and translate these sites. The intel community has complained on previous occasions that such productive methods have been given short shrift while the administration dedicated personnel and financial resources to high-tech and often warrantless surveillance. (There was also a recent case in which an on-going investigation that relied on website intelligence was compromised by an eager to scare, blabbermouth Bush.)

Ashcroft has more:

For domestic purposes, proper accountability already exists — through the people’s elected representatives on the House and Senate Intelligence Committees. It is through the legislature, not lawsuits, that we as a nation have tried to balance the need to let our intelligence agencies operate in secret, as they must if they are to be effective, and the need to ensure that they do so lawfully.

Again, the former head of the Justice Department fails to understand or at least acknowledge the role of the courts as explicitly outlined in the Constitution. It is through the checks and balances exercised by all three branches of government that we as a nation moderate the excesses of any one branch. The matter of determining whether any one program or pursuit is lawful or constitutional is expressly given to the Judiciary. Any C student should be able to fill-in Ashcroft on these finer points of high school civics.

And, speaking of civics, Ashcroft informs us:

The Senate Intelligence Committee has voted 13-2 to grant immunity to telecommunication carriers that have been sued for helping the country after 9/11. Unlike most everyone else, this committee had the necessary and relevant facts when it rendered judgment.

Well, what Ashcroft fails to disclose is that, first, it was the Senate Judiciary Committee that had requested that they be availed of these “necessary and relevant facts,” but the Bush Administration prevented them from seeing this information, instead favoring the much friendlier eyes of the Jay Rockefeller-lead SSCI. (The administration finally relented and allowed Judiciary Chair Patrick Leahy and Ranking Member Arlen Specter to see documents last week, and it should be noted that they still oppose immunity.) Second, the House Intel Committee passed a revised FISA bill that specifically did not include retroactive immunity for telecommunications companies. Third—again, a civics lesson—it requires the entire Senate (and the entire House) to vote for a bill before it has a chance at becoming a law (someone needs to send John a DVD of Schoolhouse Rock). Sen. Chris Dodd (D-CT) has placed a hold on the bill, and says he won’t allow a draft that contains immunity to come to a vote, so the future (and general acceptance) of Ashcroft’s much-loved workaround is, at the very least, still an open question.

And, finally, Ashcroft sums it up for us:

Assuming that the country’s communications companies helped the National Security Agency track Qaeda operatives and other terrorists after being assured that their conduct was lawful, they acted as patriots, not privacy violators.

Alas, poor Ashcroft, a judge (remember those, John?) has already ruled on this assumption:

[F]ederal judge Vaughn Walker ruled against AT&T in Aug. 2006, specifically citing the fact that the company was not operating in “good faith” when it participated in the warrantless wiretapping program. Judge Walker wrote:

AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

I believe there’s some fancy Latin term that’s appropriate here, but I’ll put it in plain English, so that legal half-wits like John Ashcroft can understand: By your definition, the conduct of the telecoms and the government that coerced them was unlawful. They were not patriots, they were violators of our privacy, of the FISA law, and of the Fourth Amendment. Q.E.D. (I couldn’t resist.)

Once again, as he did so many times when he was Attorney General, Ashcroft has exhibited a zealous pursuit of personal interests and a glaring ignorance of the law. He is, as someone once admonished, entitled to his own opinions, but not his own facts. When we as readers of the New York Times turn to the opinion page, we are entitled to informed, thoughtful, and earnestly argued opinions; we should not be subject to columns of calumny for cash.

I was going to simply call it advertising, but advertising is actually required to back up its assertions. Because his opinion has been commissioned rather than researched, Ashcroft—and, so, the Times—cannot.

(h/t hhex65)

(cross-posted to Daily Kos and The Seminal)

Warrantless surveillance: Jay rocks the 9/11 lie. . . again

It was apt that West Virginia Senator Jay Rockefeller chose Halloween to publish an op-ed in the Washington Post that once again tried to justify warrantless surveillance of US citizens by invoking the specter of 9/11.

In the immediate aftermath of Sept. 11, the Bush administration had a choice: Aggressively pursue potential terrorists using existing laws or devise new, secret intelligence programs in uncharted legal waters.

. . . .

Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president. These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.

Though I for one am not scared by the regurgitated talking points of the cowardly and oft-bunkered Vice President Dick-in-a-Box, I am terrified that a purportedly fully briefed Senator—a Democrat, no less—thinks that any of us should be satisfied with his contorted explanations for illegal spying and retroactive immunity.

Glenn Greenwald does a fine job of debunking the circular logic used by Jell-O Jay as he tries to distract us from his cozy relationship with the people and companies that he’s indemnifying, but he misses what is to me the most glaring fabrication.

In case you missed it, let me reprise a select sentence:

Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president.

Well, I’m tired of niceties on this one, so I’m just going to state it plain; THIS. IS. A. LIE.

As has been noted in books, newspapers (and here), magazines (and here, and here), wire services, and blogs (and here, and here, and here, and here, to link to but a handfull) repeatedly over the last two years, the Bush Administration, directly from the White House or through the NSA, approached telecommunications companies about eavesdropping and data-mining on US citizens within the United States over six months before the attacks of 9/11/01. This assessment has now been confirmed by documents unsealed in the case of former Qwest head Joseph Nacchio.

Since we believe that J-Rock, as a then ranking member of the SSCI, was briefed on some or all of these warrantless spy programs early on, and since he now assures us that he’s seen all appropriate documents concerning telco involvement, unless by “within weeks of the 2001 attacks” Rocky means within 27 weeks before the attacks, Senator Rockefeller is lying. He is not only invoking 9/11 to once again scare Americans into accepting unfettered violations of their privacy, he is using the terrorist acts of 2001 to directly deceive us about the nature and intent of the illegal surveillance programs.

I perhaps am not overwhelmingly shocked that another senator has been compromised by administrations bullying and corporate cash, but I am a little dismayed that critics of Rockefeller, the new Senate FISA re-write, and the Bush Administration’s domestic spying programs in general, still often fail to cite this very disturbing and revealing truth.

It is not simply a matter of scheduling; it goes to the root of all arguments both for and against the surveillance programs. Since the telecommunications companies were approached by the administration in February of 2001, then none of this is a response to the attacks of 9/11. And, since the spying is not a response to those events, then what were the NSA and the White House looking for?

If they were looking for terrorist conversations, then the September ‘01 attacks prove that the program was a flop. In fact, it is possible to go so far as to say that the giant dragnets cast by the intel/telco partnership flooded the NSA with so much data that it actually overwhelmed the system and buried much more valuable and readily apparent terrorist signal intelligence.

As I struggle to remain up to speed on illegal surveillance issues, I know all too well that there is a heck of a lot to read out there, but I think it essential that on this key point, all off us, the SSCI, the establishment media, and the blogosphere, need to be on the same page. Warrantless domestic surveillance of US citizens by the Bush Administration started long before the 2001 hijackings. Bush, Cheney, their attorneys, their intelligence bureaucracy, and the telecom industry may all have their reasons for collecting signal intelligence on Americans without a court order, but, back when the spying started, 9/11 wasn’t one of them.

(cross-posted on The Seminal and Daily Kos)